2006 WL 1787244
2006 WL 1787244 (N.D.Cal.) (Trial Pleading) United States District Court, N.D. California.
San Francisco/Oakland Division
Juanita WYNNE and Dante Byrd, on behalf of themselves and classes of those similarly situated, Plaintiffs, v.
MCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and McCormick & Schmick Restaurant Corp., Defendants.
No. C 06 3153 CW. May 11, 2006.
Complaint for Injunctive, Declaratory Relief, and Damages for Violations of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act
James M. Finberg (SBN 114850), Bill Lann Lee (SBN 108452), Jahan C. Sagafi (SBN 224887), Lieff, Cabraser, Heimann & Bernstein, LLP, 275 Battery Street, 30th Floor, San Francisco, CA 94111-3339, Telephone: (415) 956-1000, Facsimile: (415) 956-1008, Email: jfinberg@lchb.com, Email: blee@lchb.com, Email: jsagafi @lchb.com, Robert Rubin (SBN 085084), Diana C. Tate (SBN 232264), The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, 131 Steuart Street, Suite 400, San Francisco, CA 94105, Telephone: (415) 543-9444, Facsimile: (415) 543-0296, Email: rrubin@lccr.com, Email: dtate@lccr.com, Attorneys for Plaintiffs and proposed Classes.
Thomas A. Warren Law Offices, 2032 Thomasville Rd # D, Tallahassee, FL 32308-0734, Telephone: (850) 385-1551, Facsimile: (850) 385-6008, Email: tw @nettally.com, Todd F. Jackson (SBN 202598), Vincent Cheng (SBN 230827), Lindsay Nako (SBN 239090), Lewis Feinberg Renaker & Jackson, P.C., 1300 Broadway, Suite 1800, Oakland, CA 94612, Telephone: (510) 839-6824, Facsimile: (510) 839-7839, Email: tjackson@lewisfeinberg.com, Email: vcheng @lewisfeinberg.com, Email: lnako@lewisfeinberg.com, Gary Lafayette (SBN 088666), Lafayette & Kumagai, 100 Spear Street, Suite 400, San Francisco, CA 94105, Telephone: (415) 357-4600, Facsimile: (415) 357-4605, glafayette @lkclaw.com, Eric Kingsley (SBN 185123), Kingsley & Kingsley, 16133 Venture Blvd., Suite 1200, Encino, CA 91436, Telephone: 818-990-8300, Facsimile: 818-990-2903, Email: kingsleylaw@aol.com, Attorneys for Plaintiffs and the proposed Class Members.
CLASS ACTION
DEMAND FOR JURY TRIAL
Individual and Representative Plaintiffs Juanita Wynne and Dante Byrd (collectively “Representative Plaintiffs”), on behalf of themselves and all others similarly situated, allege against Defendants McCormick & Schmick’s Seafood Restaurants, Inc. and McCormick & Schmick Restaurant Corp. (hereinafter collectively identified as “McCormick & Schmick’s,” “M&S,” or “the Company”) as follows:
INTRODUCTORY STATEMENT
1. Defendant McCormick & Schmick’s is a national restaurant chain that discriminates against African Americans throughout the United States on the basis of race with respect to hiring, job assignment, compensation, promotion to managerial positions, discipline, and other terms and conditions of employment.
2. M&S has a nationwide corporate policy and practice of preferring white employees over African American employees for “front-of-the-house” positions (i.e., prominent positions such as server, hostess/host and bartender where customers can

2006 WL 1787244
easily see and/or interact with the employees), and management positions in its restaurants and offices throughout the United States. M&S disproportionately hires white employees for, and assigns white employees to, front-of-the-house positions and disproportionately assigns African American employees to back-of-the-house positions (i.e., positions in which employees are less likely to be seen by, heard by, or interact with customers). Those back-of-the-house positions include busser positions, bar back positions, and certain less desirable kitchen positions. The few African Americans assigned to server positions are given less desirable assignments.
3. M&S discourages applications from African American applicants for “front-of-the-house” positions and disproportionately refuses to hire African Americans for such positions. To the extent that M&S hires African Americans, M&S disproportionately channels them to back-of-the-house positions.
4. When qualified African American applicants (both incumbents and individuals from outside the Company) inquire about employment in the restaurant, managers and other M&S representatives sometimes tell them that the restaurant is not hiring, even though it is. When African American applicants submit applications, managers and other M&S representatives acting at their direction sometimes throw them away without seriously considering them.
5. Furthermore, promotions are often given preferentially to white workers
6. M&S hires, assigns, compensates, and promotes individuals using subjective, arbitrary, standardless, and unvalidated criteria, without requiring a formal application process.
7. In addition, M&S systematically takes adverse employment actions against qualified, high-performing African American employees in front-of-the-house positions by giving them less desirable job assignments, lower pay, fewer promotional opportunities, and more frequent and harsher discipline.
8. Managers have been instructed by corporate headquarters to “clean up the restaurant,” meaning to hire fewer African Americans, to keep the African American employees away from front-of-the-house positions, and to subject African American employees to harsher discipline.
9. This class action is brought by (a) current and former African American non-management employees of M&S throughout the United States; and (b) African Americans who applied to, or were deterred from applying to, M&S at its restaurants or offices in the United States for “front-of-the-house” or management positions, but were not hired.
10. This action seeks an end to M&S’s discriminatory policies or practices, an award of backpay and front pay, as well as compensatory damages, punitive damages, and injunctive relief, including rightful place relief for all Class members.
JURISDICTION AND VENUE
11. This Court has jurisdiction over the First Claim for Relief pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1981.
12. This Court also has jurisdiction over the First and Second Claims for Relief under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action in which: (1) there are 100 or more individuals in each proposed Class; (2) at least some individuals in each proposed Class have different state citizenship from at least one Defendant; and (3) the claims of the proposed Class members exceed $5,000,000 in the aggregate.
13. In addition, this Court has supplemental jurisdiction under 28 U.S.C. § 1367 over the Second Claim for Relief, because that claim and Plaintiffs’ First Claim for Relief arise from a common nucleus of operative fact.
14. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
15. The Northern District of California has personal jurisdiction over Defendants because they have qualified with the California Secretary of State to do business and are doing business in California, and in this district, and because many of the acts complained of occurred in this State and this District and gave rise to the claims alleged herein.

2006 WL 1787244
16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because M&S resides in this district and because a substantial part of the events giving rise to the claims alleged herein occurred in this District. M&S operates restaurants in San Francisco, Berkeley, and San Jose.
17. Pursuant to N.D. Cal. Local Rule 3-2(c) and (d), intradistrict assignment to the San Francisco / Oakland Division is proper because a substantial part of the events giving rise to the claims presented in this Complaint occurred in Alameda County.
PARTIES
18. Plaintiff Juanita Wynne is an African American resident of Berkeley, California. She has repeatedly been denied desirable shifts and work stations, inappropriately disciplined for insignificant infractions, and had her number of shifts (and pay) cut approximately in half at Spenger’s Fresh Fish Grotto restaurant in Berkeley, California, owned and operated by M&S, when similarly situated whites were treated more fairly.
19. Plaintiff Dante Byrd is an African American resident of Oakland, California. He twice applied for and was denied a position as a bartender at Spenger’s Fresh Fish Grotto restaurant in Berkeley, California, owned and operated by M&S, despite having a diploma from a bartending school and more than seven years of bartending experience, and even though whites who were not more qualified were hired.
20. Defendant McCormick & Schmick’s Seafood Restaurants, Inc. is headquartered in Portland, Oregon and is incorporated in Delaware.
21. Defendant McCormick & Schmick Restaurant Corp. is a subsidiary of McCormick & Schmick’s Seafood Restaurants, Inc.
22. McCormick & Schmick’s is a nationwide restaurant company that owns and operates approximately 61 upscale casual-dining restaurants. McCormick & Schmick’s operates its restaurants under various names, including McCormick & Schmick’s Seafood Restaurant, McCormick’s Fish House & Bar, M&S Grill, Spenger’s Fresh Fish Grotto, The Heathman Restaurant, Jake’s Famous Crayfish, and Jake’s Grill. Although each restaurant may use different menus, different layouts, and/or different marketing approaches, they all follow the same human resources policies and practices, participate in the same discrimination, and are run by the same corporate management. African American applicants to and employees of each restaurant owned or operated by M&S in the United States, however denominated, are included in the proposed Classes.
CLASS ACTION ALLEGATIONS
23. The Representative Plaintiffs bring this Class Action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of the following two Classes: (a) All African Americans who since May 11, 2002 have been employed by, are employed by, or will in the future be employed by McCormick & Schmick’s in non-management positions (“Employee Class”); and
(b) All African Americans who since May 11, 2004 have applied for, or been deterred from applying for, server, host/hostess, bartender, or management positions (including chef/sous chef) with McCormick & Schmick’s and were not hired for those positions (“Applicant Class”).
24. Plaintiff Wynne is a member of, and seeks to represent, the Employee Class. Plaintiff Byrd is a member of, and seeks to represent, the Applicant Class.
25. The members of each Class identified herein are so numerous that joinder of all members is impracticable. The number of Class members is currently indeterminate, but, on information and belief, is larger than can be addressed through joinder. As of December 2005, McCormick & Schmick’s employed approximately 5,401 employees. Each of McCormick & Schmick’s roughly 61 restaurants employs very few African American employees in front-of-the-house positions, but each restaurant,

2006 WL 1787244
on average, annually receives numerous applications from qualified African Americans who are potential front-of-the-house employees. Furthermore, as a result of McCormick & Schmick’s systematic discriminatory hiring and job assignment practices, on information and belief, a significant number of qualified African American applicants have also been deterred from applying for front-of-the-house and management positions. Thus, although the precise number of qualified African American applicants who are not hired and/or who are fired or otherwise discriminated against is currently unknown, it is far greater than can be feasibly addressed through joinder.
26. There are questions of law and fact common to the Classes. Common questions include, among others:
a. whether McCormick & Schmick’s policies or practices result in disparate impact adverse to African American employees and applicants;
b. whether McCormick & Schmick’s discriminatory policies and practices are intentional;
c. whether McCormick & Schmick’s policies or practices violate 42 U.S.C. § 1981;
d. whether McCormick & Schmick’s policy and practice violates FEHA, as to Class Members who have been employed by M&S in, or who reside in, California; and
e. whether compensatory and punitive damages, injunctive relief, and other equitable remedies (including backpay and front pay) for the Classes are warranted.
27. The Representative Plaintiffs’ claims are typical of the Classes’ claims.
28. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Classes. The Representative Plaintiffs have retained counsel competent and experienced in complex class actions and employment discrimination litigation.
29. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because McCormick & Schmick’s has acted and/or refused to act on grounds generally applicable to the Classes, making appropriate declaratory and injunctive relief with respect to the Representative Plaintiffs and the class as a whole. The Class members are entitled to injunctive relief to end McCormick & Schmick’s common, uniform, and unfair racially discriminatory employment policies and practices.
30. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The Class members have been damaged and are entitled to recovery as a result of McCormick & Schmick’s common, uniform, and unfair racially discriminatory employment policies and practices. McCormick & Schmick’s has computerized payroll and personnel data that will make calculation of damages for specific Class members relatively simple.
CLAIMS OF THE REPRESENTATIVE PLAINTIFFS
Juanita Wynne
31. Plaintiff Juanita Wynne is an African American resident of Berkeley, California, and current employee of McCormick & Schmick’s. She has been employed as a server at Spenger’s Fish Grotto in Berkeley, California, since approximately November 1999. During approximately 2002-03, her shifts and pay were cut approximately in half, whereas the shifts and pay of white servers were not so cut. Ms. Wynne has been also denied desirable shifts and stations, and she was disciplined for insignificant infractions, while white employees were not so disciplined.
32. Ms. Wynne is currently the only African American server on staff at the restaurant.
33. Ms. Wynne has observed that McCormick & Schmick’s tends to seat African American customers at the back of the restaurant, where they are less visible to the rest of the public.

2006 WL 1787244
34. On or about May 3, 2005, Ms. Wynne filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). On or about June 30, 2005, she filed an amended charge of discrimination with the EEOC. She received a copy of her Notice of Right to Sue from the California Department of Fair Employment and Housing (“DFEH”), dated April 25, 2005. Attached to this Complaint as Exhibit A and incorporated by reference are copies of those charges and that notice. The EEOC is currently investigating Ms. Wynne’s charge and has not issued a Notice of Right to Sue to Ms. Wynne. Plaintiffs intend to seek leave to amend the complaint to add a classwide cause of action under Title VII of the Civil Rights Act of 1964 on behalf of Ms. Wynne once the Notice of Right to Sue is issued, and to propose Ms. Wynne as a Class Representative for the Employee Class for relief under Title VII.
Dante Byrd
35. Plaintiff Dante Byrd is an African American resident of Oakland, California, and applicant to McCormick & Schmick’s.
36. In November 2004, Mr. Byrd applied to become a bartender at M&S’s Spenger’s Fish Grotto in Berkeley. He was interviewed by the General Manager/Bar Manager, a non-African American male. Mr. Byrd thought the interview went well, but he never heard back about the job.
37. In January 2005, Mr. Byrd learned that McCormick & Schmick’s was again seeking applications from bartenders, so he applied again. He was interviewed by the same non-African American male and by a white female. He was invited to come back and work the bar for a test shift. He did so, working for approximately 4-5 hours. The General Manager/Bar Manager told Mr. Byrd that he had done a good job on this test shift. Mr. Byrd was never paid for this work. He never heard back about the job.
38. At the time, Mr. Byrd had seven years of experience as bartender, plus a year of attendance and graduation from bartender school. Since being denied employment at McCormick & Schmick’s, Mr. Byrd has applied for and been hired by a comparable restaurant in Oakland, California.
39. On or about June 29, 2005, Mr. Byrd filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). He received a copy of his Notice of Right to Sue from the California Department of Fair Employment and Housing (“DFEH”), dated July 6, 2005. Attached to this Complaint as Exhibit B and incorporated by reference are copies of that charge and that notice. The EEOC is currently investigating Mr. Byrd’s charge and has not issued a Notice of Right to Sue to Mr. Byrd. Plaintiffs intend to seek leave to amend the complaint to add a classwide cause of action under Title VII of the Civil Rights Act of 1964 on behalf of Mr. Byrd once the Notice of Right to Sue is issued, and to propose Mr. Byrd as a Class Representative for the Applicant Class for relief under Title VII.
GENERAL POLICIES OR PRACTICES OF DISCRIMINATION
40. The denials and abridgments of employment opportunities suffered by the Representative Plaintiffs are part of a general policy or practice of discrimination on the basis of race in employment that has existed at McCormick & Schmick’s since at least May 10, 2002. These are not isolated employment practices or individual decisions. On the contrary, these incidents are representative of McCormick & Schmick’s systematic discrimination against African Americans and in favor of white applicants and employees, to create an overwhelmingly white image to the public.
41. The under-representation of African Americans in front-of-the-house positions throughout McCormick & Schmick’s approximately 61 restaurants in the United States results from a policy and practice of discrimination on the basis of race in hiring, job assignment, compensation, promotion to managerial positions, discipline, and other terms and conditions of employment.
42. McCormick & Schmick’s has pursued policies or practices on a continuing basis that have denied or restricted job opportunities to qualified African American applicants and employees.
43. Such discriminatory policies or practices include, without limitation:

2006 WL 1787244
a. reliance on subjective, arbitrary, standardless, and unvalidated criteria in making hiring and job assignment decisions, focusing on whether applicants and employees properly reflect the preferred white look and image rather than whether they would be responsible, effective, diligent employees who could perform their jobs well; b. reliance on subjective, arbitrary, standardless, and unvalidated criteria in making decisions in compensation, shift, and weekly hour allocations, focusing on whether applicants and employees properly reflect the preferred white look and image rather than whether they would be responsible, effective, diligent employees who could perform their jobs well; c. shunting African American applicants and employees to back-of-the-house positions where they are out of the public eye and/or do not interact with the public; d. offering and providing African American employees with fewer hours and/or less desirable job duties and/or assignments than their white counterparts; e. targeting white candidates for recruitment for front-of-the-house positions, but avoiding, ignoring, discouraging or dissuading equally qualified African Americans from applying for those positions; f. subjecting front-of-the-house African American employees to harsher discipline based on their race without regard to their performance on the job; and g. failure to promote African American employees to managerial positions. 44. M&S acted or failed to act as herein alleged with malice or reckless indifference to the protected rights of Plaintiffs and the Class members. Plaintiffs and the Class members are thus entitled to recover punitive damages in an amount to be determined according to proof.
FIRST CLAIM FOR RELIEF
(Federal Civil Rights, 42 U.S.C. § 1981) (Brought by the Representative Plaintiffs on behalf of a nationwide Class) 45. Plaintiffs incorporate paragraphs 1 through 43, as alleged above. 46. This claim is brought by the Representative Plaintiffs on behalf of themselves and the Classes they represent. 47. McCormick & Schmick’s has maintained an intentionally discriminatory system with respect to hiring, job assignment, compensation, promotion to managerial positions, discipline, and other terms and conditions of employment. 48. The foregoing conduct constitutes illegal intentional discrimination with respect to the making, performance, modification, and termination of contracts prohibited by 42 U.S.C. § 1981.
SECOND CLAIM FOR RELIEF (California Fair Employment and Housing Act, Government Code § 12940 et seq.) (Brought by the Representative Plaintiffs on behalf of a California subclass) 49. Plaintiffs incorporate paragraphs 1 through 43, as alleged above. 50. This claim is brought by the Representative Plaintiffs on behalf of themselves and the subclass of Class members who worked for M&S in California, or resided in California, since May 3, 2004. 51. The Representative Plaintiffs have received copies of their Right to Sue letters from the DFEH. The pendency of the

2006 WL 1787244
EEOC investigations into Plaintiffs’ charges tolled the time limits for filing civil actions pursuant to the Fair Employment and Housing Act. Plaintiffs have therefore timely complied with all prerequisites to suit.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs and Class members pray for relief as follows: 52. Certification of the case as a class action on behalf of the proposed Classes; 53. Designation of the Representative Plaintiffs as representatives of the Classes; 54. Designation of the Representative Plaintiffs’ counsel of record as Class counsel; 55. A declaratory judgment that the practices complained of herein are unlawful and violate 42 U.S.C. § 1981 and the California Fair Employment and Housing Act, Government Code § 12940 et seq.; 56. A preliminary and permanent injunction against McCormick & Schmick’s and its officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs, and us ages set forth herein; 57. An order that McCormick & Schmick’s institute and carry out policies, practices, and programs that provide equal employment opportunities for all African Americans, and that it eradicate the effects of its past and present unlawful employment practices; 58. An order restoring the Representative Plaintiffs and Class members to their rightful positions at McCormick & Schmick’s, or, in lieu of reinstatements, an order for front pay benefits; 59. Back pay (including interest and benefits) for the Representative Plaintiffs and Class members; 60. All damages sustained as a result of McCormick & Schmick’s conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof; 61. Exemplary and punitive damages in an amount commensurate with McCormick & Schmick’s ability to pay and to deter future conduct; 62. Costs incurred herein, including reasonable attorneys’ fees to the extent allowable by law; 63. Pre-judgment and post-judgment interest, as provided by law; and 64. Such other and further legal and equitable relief as this Court deems necessary, just, and proper. Dated: May 10, 2006
DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial on all causes of action and claims with respect to which they have a right to jury trial. Dated: May 10, 2006 Respectfully submitted By: <<signature>> James M. Finberg

2006 WL 1787244
James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452) Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: jfinberg@lchb.com Email: blee@lchb.com Email: jsagafi@lchb.com Attorneys for Plaintiffs and the proposed Class Members

 
 Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 1 of 10

1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP
3 177 Post Street, Suite 300 San Francisco, CA 94108
4 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
5 E-Mail: jfinberg@altshulerberzon.com E-Mail: ecervantez@altshulerberzon.com
6 E-Mail: revenson@altshulerberzon.com

7 Kelly M. Dermody (SBN 171716)

Jahan C. Sagafi (SBN 224887)

8 LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

9 275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

10 Telephone: (415) 956-1000

Facsimile: (415) 956-1008

11 E-Mail: kdermody@lchb.com

E-Mail: jsagafi@lchb.com

12

Attorneys for Plaintiffs and proposed Classes

13 Additional Counsel Listed on Signature Page of

Motion for Preliminary Settlement Approval

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

16 JUANITA WYNNE and DANTE BYRD,

17

on behalf of themselves and classes of those similarly situated,

18

Plaintiffs,

19

v.

20 MCCORMICK & SCHMICK’S

21

SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK

22 RESTAURANT CORP.,

23

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. C-06-3153 CW REVISED [PROPOSED] ORDER (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND PROPOSED CONSENT DECREE; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES; (3) APPROVING AND DIRECTING DISTRIBUTION OF NOTICE OF THE SETTLEMENT; AND (4) SETTING A SCHEDULE FOR THE FINAL SETTLEMENT APPROVAL PROCESS

24 25

) ) ) ) )

DATE: TIME: PLACE: JUDGE:

April 3, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken

26

)

27

28

Revised [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 2 of 10

1

Having reviewed Plaintiffs’ Motion for an Order (1) Preliminarily Approving Class

2 Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement

3 Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a

4 Schedule for the Final Settlement Approval Process, the Memorandum of Points and Authorities

5 in support thereof, the Declaration of James M. Finberg in support thereof, the proposed Consent

6 Decree, Notice and Claim Form, and the arguments of counsel, along with the files and records

7 of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows:

8 I. PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES

9

A. For settlement purposes, the Parties have proposed provisional certification of the

10 following settlement classes (terms defined in the proposed Consent Decree attached hereto as

11 Exhibit 1):

12

1. For purposes of the injunctive and declaratory relief provided in the

13 Decree, an injunctive-relief settlement class certified under Federal Rules of Civil Procedure

14 23(a) and 23(b)(2) and consisting of “All African Americans employed by McCormick &

15 Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the

16 date the Decree terminates;” (“Front of the House” is defined in Section Section III(O) of the

17 Decree; “Back of the House” is defined in Section III (C) of the Decree).

18

2. For purposes of the monetary relief provided in the Decree, a monetary

19 relief settlement class certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and

20 consisting of: “All African Americans employed by McCormick & Schmick’s in Front of the

21 House or Back of the House positions between May 15, 2002 and the date of the entry of this

22 order, except those who file a timely request to opt out of the monetary relief provisions of the

23 Decree.”

24

B. The injunctive relief and monetary relief settlement classes allege claims for race

25 discrimination brought under the Civil Rights Act of 1964 (both disparate impact and disparate

26 treatment), and 42 U.S.C. § 1981, and those class members who worked in California during the

27 class period allege violations of the California Fair Employment and Housing Act.

28

C. The Court hereby provisionally FINDS and CONCLUDES that the injunctive relief

1 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 3 of 10

1 settlement class set forth above satisfies all of the requirements for certification under Rule 23(a)

2 and Rule 23(b)(2). The class is sufficiently numerous (approximately 3,000 persons) that joinder

3 is impracticable. The members of the class share common issues of fact and law regarding (1)

4 whether McCormick & Schmick’s employment policies and practices were intentionally

5 discriminatory and/or had an adverse impact on African Americans; and (2) whether Title VII or

6 Section 1981 have been violated. Juanita Wynne’s claims are typical of those of the class she

7 represents because they arise out of the same policies, practices and course of conduct alleged on

8 behalf of all class members. Juanita Wynne is an adequate representative of the class she

9 represents, because her interests are co-extensive with those of class members, and she has

10 retained experienced counsel to represent the class. Plaintiffs are seeking meaningful declaratory

11 and injunctive relief applicable to the class as a whole. Accordingly, the Court hereby

12 provisionally CERTIFIES the injunctive-relief settlement class under Rule 23(a) and Rule

13 23(b)(2).

14

D. The Court also hereby provisionally FINDS and CONCLUDES that the monetary

15 relief settlement class described above satisfies all of the requirements for certification under

16 Rule 23(a) and Rule 23(b)(2). As discussed in Paragraph 3, above, the requirements of Rule

17 23(a) - numerosity, commonality, typicality, and adequacy appear to be satisfied. In addition, the

18 Court provisionally concludes that the monetary relief settlement class satisfies the requirements

19 for certification under Rule 23(b)(3). Questions of law or fact common to the class predominate

20 over individualized issues, and a class action is superior to other available methods for the fair

21 and efficient adjudication of the controversy. Because certification of the monetary relief

22 settlement class is proposed in the context of a settlement, the Court need not inquire whether the

23 case, if tried as a class action, would present intractable management problems. Accordingly, the

24 Court provisionally CERTIFIES the monetary-relief settlement class as set forth above, under

25 Rules 23(a) and 23(b)(3).

26 II. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL

27

A. The Court finds that Class Representative Juanita Wynne has claims typical of class

28 members and is an adequate representative of the class members. The Court appoints her to

2 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 4 of 10

1 serve as Class Representatives of both the injunctive relief and monetary relief classes.

2

B. The Court finds that Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein,

3 LLP; the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Thomas A.

4 Warren Law Offices; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; and Kingsley & Kinsgsley

5 have extensive experience and expertise in prosecuting employment discrimination class action

6 cases. The Court appoints these firms as Class Counsel for both the injunctive relief and

7 monetary relief classes.

8 III. PRELIMINARY APPROVAL OF CONSENT DECREE

9

A. The Court has reviewed the terms of the [Proposed] Consent Decree attached as

10 Exhibit 1, including specifically the injunctive relief provisions and the plan of allocation. The

11 Court also reviewed the Motion papers and the declaration of James M. Finberg, which describe

12 Class Counsel’s legal and factual investigation, and the settlement mediation process. Based on

13 review of those papers, and the Court’s familiarity with this case, the Court concludes that the

14 settlement and Consent Decree are the result of extensive, arms’ length negotiations between the

15 Parties after Class Counsel had investigated the class claims and became familiar with the

16 strengths and weakness of plaintiffs’ case. The assistance of an experienced mediator in the

17 settlement process confirms that the settlement is non-collusive. Based on that review, and the

18 Court’s familiarity with the issues in the case, the Court concludes that the proposed Consent

19 Decree has no obvious defects and is within the range of possible settlement approval, such that

20 notice to the Class is appropriate.

21

B. It is therefore ORDERED that:

22

1. The [Proposed] Consent Decree and the settlement it embodies are hereby

23 PRELIMINARILY APPROVED. Final approval and entry of the Consent Decree is subject to

24 the hearing of any objections of members of the Settlement Class to the proposed settlement

25 embodied in the Consent Decree.

26

2. Pending determination of the fairness of the Consent Decree, all further

27 litigation of this action is hereby STAYED.

28

3 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 5 of 10
1 IV. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS NOTICE AND CLAIM FORM
2 A. The Parties have also submitted for this Court’s approval a proposed Class Notice and
3 a proposed Claim Form, which the Court has carefully reviewed. The Court finds and concludes
4 as follows:
5 1. The proposed Class Notice is the best notice practical under the
6 circumstances and allows Class Members a full and fair opportunity to consider the proposed
7 Settlement. The proposed plan for distributing the Class Notice and Claim Form, which are
8 attached as Exhibits 2 and 3 hereto, likewise is a reasonable method calculated to reach all
9 members of the Class who would be bound by the Settlement. Under this plan, the Claims
10 Administrator will distribute the Class Notice and Claim Form to Class Members, all of whom
11 are current or former employees of the Company, by first class U.S. Mail to their last known
12 addresses, as updated by the USPS NCOA service. There is no additional method of distribution
13 that would be reasonably likely to notify Class Members who may not receive notice pursuant to
14 the proposed distribution plan.
15 2. The Class Notice fairly, plainly, accurately, and reasonably informs Class
16 Members of: (1) the nature of this litigation, the settlement class, the identity of Class Counsel,
17 and the essential terms of the Settlement and Decree, including injunctive relief and the plan of
18 allocation; (2) Class Counsel’s forthcoming application for attorneys’ fees, the proposed service
19 payments to the Class Representative, and other payments that will be deducted from the
20 settlement fund; (3) how to participate in the Settlement; (4) this Court’s procedures for final
21 approval of the Settlement Agreement and Settlement, and about class members’ right to appear
22 through counsel if they desire; (5) how to challenge or opt-out of the Settlement, if they wish to
23 do so; and (6) how to obtain additional information regarding this litigation, the Settlement, and
24 the Decree.
25 3. Similarly, the proposed Notice and Claim Form allow members of the
26 Settlement Classes a full and fair opportunity to submit a claim for proceeds in connection with
27 the Settlement. The Notice and Claim Form fairly, accurately, and reasonably inform Settlement
28
4 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 6 of 10

1 Class Members that failure to complete and submit a Claim Form, in the manner and time

2 specified, shall constitute a waiver of any right to obtain any share of the settlement payment.

3

4. The Court FINDS and CONCLUDES that the proposed plan for

4 distributing the Notice and Claim Form (“Notice Materials”) will provide the best notice

5 practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due

6 process requirements.

7

5. Accordingly, the Court hereby ORDERS as follows:

8

a. The form of the Notice Materials is approved.

9

b. The manner of distributing the Notice Materials is approved.

10

c. Promptly following the entry of this Order, the Claims Administrator

11 shall prepare final versions of the Notice Materials, incorporating into the Notice the relevant

12 dates and deadlines set forth in this Order.

13

d. Within twenty days following entry of this order, McCormick &

14 Schmick’s shall provide the Claims Administrator with computer readable information, in a

15 format acceptable to the Claims Administrator, that contains the full names, social security

16 numbers, last known addresses, position(s) held during the class period, and start dates and any

17 applicable end dates of employment for each position held with McCormick & Schmick’s from

18 May 15, 2002 to the date of the entry of this order of all persons who are potential Settlement

19 Class members.

20

e. Prior to the mailing of the Notice Materials, the Claims

21 Administrator will update any new address information for potential class members as may be

22 available through the National Change of Address (“NCOA”) system.

23

f. Within ten (10) days of the date that the Claims Administrator

24 receives the data described in paragraph (d), above, the Claims Administrator shall mail the

25 Notice Materials, via first class mail, to all known potential settlement class members at their last

26 known address or the most recent address that may have been obtained through the NCOA. The

27 Claims Administrator will trace all returned undeliverable notices and re-mail them to the most

28 recent address available.

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Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 7 of 10

1

g. The Claims Administrator shall take all reasonable steps to obtain

2 the correct address of any Class Members for whom the notice is returned by the post office as

3 undeliverable, and otherwise to provide the Notice Materials to such persons. The Claims

4 Administrator shall notify Class Counsel of any mail sent to Class Members that is returned as

5 undeliverable after the first mailing as well as any such mail returned as undeliverable after any

6 subsequent mailing(s).

7

h. The Claims Administrator shall take all other actions in furtherance

8 of claims administration as are specified in the Decree.

9 V. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT

10

A. Fairness Hearing

11

The Court hereby schedules a hearing to determine whether to grant final certification of

12 the Settlement Classes, and final approval of the Consent Decree (including the proposed plan of

13 allocation, injunctive relief, payment of attorneys’ fees and costs, and service payments to the

14 Class Representatives) (the “Fairness Hearing”), for July 31, 2008 at 2:00 p.m.

15

B. Deadline to Request Exclusion from the Settlement

16

1. Class members may exclude themselves from, or opt-out of, of the

17 monetary relief provisions of the class settlement. Any request for exclusion must be in the form

18 of a written “opt-out” statement sent to the Claims Administrator. A person wishing to opt-out

19 must sign a statement which includes the following language:

20

I understand that I am requesting to be excluded from the class monetary

settlement and that I will receive no money from the settlement fund created under

21

the Consent Decree entered into by McCormick & Schmick’s. I understand that if

I am excluded from the class monetary settlement, I may bring a separate legal

22

action seeking damages, but may receive nothing or less than what I would have

received if I had filed a claim under the class monetary settlement procedure in

23

this case. I also understand that I may not seek exclusion from the class for

injunctive relief and that I am bound by the injunctive provisions of the Consent

24

Decree entered into by McCormick & Schmick’s.

25

2. To be effective, any opt-out statement must be sent to the Claims

26 Administrator postmarked no later than 60 days after the date that the Claims Administrator first

27 mails the Class Notice to the Class. Only those class members who request exclusion in the time

28 and manner set forth herein shall be excluded from the class for monetary relief purposes.

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Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 8 of 10

1 Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and provisions of the

2 Consent Decree concerning monetary relief shall have no binding effect on any person who

3 makes a timely request for exclusion in the manner required by this Order.

4

3. The Claims Administrator shall stamp the date received on the original of

5 any opt-out statement and serve copies on Class Counsel and counsel for McCormick &

6 Schmick’s no later than two business days after receipt of such statement. Class Counsel will

7 file the date-stamped originals with the Clerk of the Court no later than five (5) business days

8 prior to the date of the Fairness Hearing

9

4. Class members shall be permitted to withdraw or rescind their opt-out

10 statements by submitting a “rescission of opt-out” statement to the Claims Administrator. The

11 rescission of opt-out statement shall include the following language:

12

I previously submitted an Opt-out statement seeking exclusion from the class

monetary settlement. I have reconsidered and wish to withdraw my Opt-out

13

statement. I understand that by rescinding my Opt-out I may be eligible to receive

an award from the claims settlement fund and may not bring a separate legal

14

action against McCormick & Schmick’s seeking damages with respect to the

Released Claims. I further understand that in order to receive an award from the

15

claims settlement fund, I must submit a complete and timely claim form.

16 To be effective, any opt-out recission statement must sent to the Claims Administrator

17 postmarked no later than the deadline for the claims filing period specified herein.

18

5. The Claims Administrator shall stamp the date received on the original of

19 any rescission of opt-out statement and serve copies on Class Counsel and counsel for

20 McCormick & Schmick’s no later than two business days after receipt of such statement. Class

21 Counsel will file the date-stamped originals with the Clerk of the Court no later than five (5)

22 business days prior to the date of the Fairness Hearing.

23

C. Defendant’s Right to Rescind Agreement

24

McCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree

25 prior to the Settlement Effective Date if five percent (5%) or more of the Class Members opt-out

26 of the monetary relief provisions of the Consent Decree and do not rescind their opt-out

27 statements. To exercise this option, the Company must inform Class Counsel that it will revoke

28 the Consent Decree within 10 business days of the deadline for postmarking opt out statements.

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Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 9 of 10

1 In the event that McCormick & Schmick’s exercises its unilateral right to revoke the Consent

2 Decree pursuant to this section, all monies in the Settlement Fund, and all income earned

3 thereon, shall be immediately returned to the entity that funded the Settlement Fund.

4

D. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree

5

Class members objecting to the terms of the settlement must do so in writing. To be

6 effective, any objection must be sent to the Claims Administrator postmarked no later than 60

7 days after the date that the Claims Administrator first mails the Class Notice to the Class. The

8 Claims Administrator will record the date of receipt of the objection and forward it to both

9 McCormick & Schmick’s and Class Counsel within two (2) business days following receipt.

10

Class Counsel will file the original objections with the Clerk of the Court no later than

11 ten (10) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain

12 copies of all written objections until such time as it has completed its duties and responsibilities

13 under this Decree.

14

E. Deadline for Submitting Claims Forms

15

A Class Member who does not opt out will be eligible to receive his or her proportionate

16 share of the settlement benefit. To receive this share, such a Class Member must properly and

17 timely complete a Claim Form in accordance with the terms of the Consent Decree. To be

18 effective, the Claim Form must be sent to the Claims Administrator postmarked no later than 70

19 days after the initial mailing of the Class Notice to class members. Settlement Class members

20 who do not file timely and valid Claim Forms shall nonetheless be bound by the judgment and

21 release in this action as set forth in the proposed Consent Decree, unless that Settlement Class

22 member timely opts out of the Settlement.

23

It shall be the sole responsibility of each member of the Settlement Class who seeks a

24 monetary award to notify the Claims Administrator if the class member changes his or her

25 address. Failure of a Settlement Class member to keep the Claims Administrator apprised of his

26 or her address may result in the claim being denied or forfeited.

27

F. Deadline for Submitting Motion Seeking Final Approval

28

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Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 10 of 10

1

No later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final

2 Approval of the Settlement and Consent Decree. On or before one week before the Fairness

3 Hearing, the Parties may file with the Court a reply brief responding to any filed objections.

4

G. Deadline for Petition for Attorneys Fees

5

Class Counsel shall file with this Court their petition for an award of attorneys’ fees and

6 reimbursement of expenses no later than 35 days before the Fairness Hearing. Class Counsel

7 may file a reply to any opposition to memorandum filed by any objector no later than one week

8 before the Fairness Hearing.

9

H. Deadline for Petition for Approval of Service Payments

10

Class Counsel shall file with this Court their petition for an award of service payments to

11 the Class Representatives no later than 35 days before the Fairness Hearing. Class Counsel may

12 file a reply to any opposition memorandum filed by any objector no later than one week before

13 the Fairness Hearing.

14 VI. PLAINTIFFS’ AND CLASS MEMBERS’ RELEASE

15

If, at the Fairness Hearing, this Court grants Final Approval to the Settlement and

16 Consent Decree, each individual Settlement Class member who does not timely opt out will

17 release their claims, as set forth in Consent Decree, by operation of this Court’s entry of the

18 Judgment and Final Approval, regardless of whether he or she submits a Claim Form or receives

19 any share of the Settlement Fund.

20 VII. APPOINTMENT OF CLAIMS ADMINISTRATOR

21

Rosenthal & Company, LLC, of Novato, California is hereby appointed Claims

22 Administrator to carry out the duties set forth in this Order and the Consent Decree.

23

IT IS SO ORDERED

24 Dated: __________________
25 26

______________________________ The Hon. Claudia Wilken United States District Judge

27

28

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 1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)
2 Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
3 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
4 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
5 Email: jfinberg@lchb.com Email: blee@lchb.com
6 Email: jsagafi@lchb.com

7 Robert Rubin (SBN 085084) Diana C. Tate (SBN 232264)
8 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA
9 131 Steuart Street, Suite 400 San Francisco, CA 94105
10 Telephone: (415) 543-9444 Facsimile: (415) 543-0296
11 Email: rrubin@lccr.com Email: dtate@lccr.com
12 Attorneys for Plaintiffs and proposed Classes
13 [additional counsel on signature page]

14

15

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17
JUANITA WYNNE and DANTE BYRD, 18 on behalf of themselves and classes of
those similarly situated, 19
Plaintiffs, 20
v. 21
MCCORMICK & SCHMICK’S 22 SEAFOOD RESTAURANTS, INC. and
MCCORMICK & SCHMICK 23 RESTAURANT CORP.,

Case No. 06-3153 CW
FIRST AMENDED COMPLAINT FOR INJUNCTIVE, DECLARATORY RELIEF, AND DAMAGES FOR VIOLATIONS OF 42 U.S.C. § 1981, TITLE VII, AND THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT
CLASS ACTION
DEMAND FOR JURY TRIAL

24

Defendants.

25

26

Individual and Representative Plaintiffs Juanita Wynne and Dante Byrd

27 (collectively “Representative Plaintiffs”), on behalf of themselves and all others similarly

28 situated, allege against Defendants McCormick & Schmick’s Seafood Restaurants, Inc. and

542200.1

FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1 McCormick & Schmick Restaurant Corp. (hereinafter collec tively identified as “McCormick &

2 Schmick’s,” “M&S,” or “the Company”) as follows:

3

INTRODUCTORY STATEMENT

4

1. Defendant McCormick & Schmick’s is a national restaurant chain that

5 discriminates against African Americans throughout the United States on the basis of race with

6 respect to hiring, job assignment, compensation, promotion to managerial positions, discipline,

7 and other terms and conditions of employment.

8

2. M&S has a nationwide corporate policy and practice of preferring white

9 employees over African American employees for “front -of-the-house” positions (i.e., prominent

10 positions such as server, hostess/host and bartender where customers can easily see and/or

11 interact with the employees), and management positions in its restaurants and offices throughout

12 the United States. M&S disproportionately hires white employees for, and assigns white

13 employees to, front -of-the-house positions and disproportionately assigns African American

14 employees to back-of-the-house positions (i.e., positions in which employees are less likely to be

15 seen by, heard by, or interact with customers). Those back -of-the-house positions include busser

16 positions, bar back positions, and certain less desirable kitchen positions. The few African

17 Americans assigned to server positions are giv en less desirable assignments.

18

3. M&S discourages applications from African American applicants for

19 “front-of-the-house” positions and disproportionately refuses to hire African Americans for such

20 positions. To the extent that M&S hires African Americans, M&S disproportionately channels

21 them to back-of-the- house positions.

22

4. When qualified African American applicants (both incumbents and

23 individuals from outside the Company) inquire about employment in the restaurant, managers and

24 other M&S representatives so metimes tell them that the restaurant is not hiring, even though it is.

25 When African American applicants submit applications, managers and other M&S representatives

26 acting at their direction sometimes throw them away without seriously considering them.

27

5. Furthermore, promotions are often given preferentially to white workers.

28

542200.1

- 2 -

FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

6. M&S hires, assigns, compensates, and promotes individuals using

2 subjective, arbitrary, standardless, and unvalidated criteria, without requiring a formal application

3 process.

4

7. In addition, M&S systematically takes adverse employment actions against

5 qualified, high-performing African American employees in front -of-the- house positions by giving

6 them less desirable job assignments, lower pay, fewer promotional opportunities, and more

7 frequent and harsher discipline.

8

8. Managers have been instructed by corporate headquarters to “clean up the

9 restaurant,” meaning to hire fewer African Americans , to keep the African American employees

10 away from front -of-the-house positions, and to subject African American employees to harsher

11 discipline.

12

9. This class action is brought by (a) current and former African American

13 non- management employees of M&S throughout the United States; and (b) African Americans

14 who applied to, or were deterred from applying to, M&S at its restaurants or offices in the United

15 States for “front -of-the-house” or management positions, but were not hired.

16

10. This action seeks an end to M&S’s discriminatory policies or practices, an

17 award of backpay and front pay, as well as compensator y damages, punitive damages, and

18 injunctive relief, including rightful place relief for all Class members.

19

JURISDICTION AND VENUE

20

11. This Court has jurisdiction over the First and Second Claims for Relief

21 pursuant to 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. § 1981, and 42 U.S.C. §§ 2000e-5(f)(3).

22

12. This Court also has jurisdiction over the First , Second, and Third Claims

23 for Relief under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action

24 in which: (1) there are 100 or more individuals in each proposed Class; (2) at least some

25 individuals in each proposed Class have different state citizenship from at least one Defendant;

26 and (3) the claims of the proposed Class members exceed $5,000,000 in the aggregate.

27

28

542200.1

- 3 -

FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

13. In addition, this Court has supplemental jurisdiction under 28 U.S.C.

2 § 1367 over the Third Claim for Relief, because that claim and Plaintiffs’ First and Second

3 Claims for Relief arise from a common nucleus of operative fact.

4

14. This Court is empowered to issue a declaratory judgment p ursuant to 28

5 U.S.C. §§ 2201 and 2202.

6

15. The Northern District of California has personal jurisdiction over

7 Defendants because they have qualified with the California Secretary of State to do business and

8 are doing business in California, and in this distric t, and because many of the acts complained of

9 occurred in this State and this District and gave rise to the claims alleged herein.

10

16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because

11 M&S resides in this district and because a substantial part of the events giving rise to the claims

12 alleged herein occurred in this District. M&S operates restaurants in San Francisco, Berkeley,

13 and San Jose.

14

17. Pursuant to N.D. Cal. Local Rule 3 -2(c) and (d), intradistrict assignment to

15 the San Francisco / Oakland Division is proper because a substantial part of the events giving rise

16 to the claims presented in this Complaint occurred in Alameda County.

17

PARTIES

18

18. Plaintiff Juanita Wynne is an African American resident of Berkeley,

19 California. She has repeate dly been denied desirable shifts and work stations, inappropriately

20 disciplined for insignificant infractions, and had her number of shifts (and , as a result, pay) cut

21 approximately in half at Spenger’s Fresh Fish Grotto restaurant in Berkeley, California , owned

22 and operated by M&S, when similarly situated whites were treated more fairly.

23

19. Plaintiff Dante Byrd is an African American resident of Oakland,

24 California. He twice applied for and was denied a position as a bartender at Spenger’s Fresh Fish

25 Grotto restaurant in Berkeley, California, owned and operated by M&S, despite having a diploma

26 from a bartending school and more than seven years of bartending experience, and whites who

27 were not more qualified were hired.

28

542200.1

- 4 -

FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

20. Defendant McCormick & Schmick’s Seafood Restaurants, Inc. is

2 headquartered in Portland, Oregon, and is incorporated in Delaware.

3

21. Defendant McCormick & Schmick Restaurant Corp. is a subsidiary of

4 McCormick & Schmick’s Seafood Restaurants, Inc.

5

22. McCormick & Schmick’s is a nationwide restaurant co mpany that owns

6 and operates approximately 61 upscale casual-dining restaurants. McCormick & Schmick’s

7 operates its restaurants under various names, including McCormick & Schmick’s Seafood

8 Restaurant, McCormick’s Fish House & Bar, M&S Grill, Spenger’s Fre sh Fish Grotto, The

9 Heathman Restaurant, Jake’s Famous Crayfish, and Jake’s Grill. Although each restaurant may

10 use different menus, different layouts, and/or different marketing approaches, they all follow the

11 same human resources policies and practices, participate in the same discrimination, and are run

12 by the same corporate management. African American applicants to and employees of each

13 restaurant owned or operated by M&S in the United States, however denominated, are included in

14 the proposed Classes.

15

CLASS ACTION ALLEGATIONS

16

23. The Representative Plaintiffs bring this Class Action pursuant to Fed. R.

17 Civ. P. 23(a), (b)(2), and (b)(3) on behalf of the following two Classes:

18

(a) All African Americans who since May 11, 2002 have been

employed by, are employed by, or will in the future be

19

employed by McCormick & Schmick’s in non- management

positions (“Employee Class”); and 20

(b) All African Americans who since May 11, 2004 have

21

applied for, or been deterred from apply ing for, server,

host/hostess, bartender, or management positions (including

22

chef/sous chef) with McCormick & Schmick’s and were not

hired for those positions (“Applicant Class”). 23

24. Plaintiff Wynne is a member of, and seeks to represent, the Employee

24

Class. Plaintiff Byrd is a member of, and seeks to represent, the Applicant Class.

25

25. The members of each Class identified herein are so numerous that joinder

26

of all members is impracticable. The number of Class members is currently indeterminate, but ,

27

on information and belief, is larger than can be addressed through joinder. As of December 2005,

28

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1 McCormick & Schmick’s employed approximately 5,401 employees. Each of McCormick &

2 Schmick’s roughly 61 restaurants employs very few African American employees in front -of-the-

3 house positions, but each restaurant, on average, annually receives numerous applications from

4 qualified African Americans who are potential front -of-the-house employees. Furthermore, as a

5 result of McCormick & Schmick’s systematic discriminatory hiring and job assignment practices,

6 on information and belief, a significant number of qualified African American applicants have

7 also been deterred from applying for front -of-the-house and management positions. Thus,

8 although the precise number of qualified African American applicants who a re not hired and/or

9 who are fired or otherwise discriminated against is currently unknown, it is far greater than can be

10 feasibly addressed through joinder.

11

26. There are questions of law and fact common to the Classes. Common

12 questions include, among others:

13

a. whether McCormick & Schmick’s policies or practices result in

14 disparate impact adverse to African American employees and applicants;

15

b. whether McCormick & Schmick’s discriminatory policies and

16 practices are intentional;

17

c. whether McCormick & Schmick’s policies or practices violate 42

18 U.S.C. § 1981;

19

d. whether McCormick & Schmick’s policy and practice violates

20 FEHA, as to Class Members who have been employed by M&S in, or who reside in, California;

21 and

22

e. whether compensatory and punitive damages, injunctive re lief, and

23 other equitable remedies (including backpay and front pay) for the Classes are warranted.

24

27. The Representative Plaintiffs’ claims are typical of the Classes’ claims.

25

28. The Representative Plaintiffs will fairly and adequately represent and

26 protect the interests of the members of the Classes. The Representative Plaintiffs have retained

27 counsel competent and experienced in complex class actions and employment discrimination

28 litigation.

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

29. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2)

2 because McCormick & Schmick’s has acted and/or refused to act on grounds generally applicable

3 to the Classes, making appropriate declaratory and injunctive relief with respect to the

4 Representative Plaintiffs and the class as a whole. The Class members are entitled to injunctive

5 relief to end McCormick & Schmick’s common, uniform, and unfair racially discriminatory

6 employment policies and practices.

7

30. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

8 because common questions of fact and law predominate over any questions affecting only

9 individual members of the Class, and because a class action is superior to other available methods

10 for the fair and efficient adjudication of this litigation. The Class members have been damaged

11 and are entitled to recovery as a result of McCormick & Schmick’s common, uniform, and unfair

12 racially discriminatory employment policies and practices. McCormick & Schmick’s has

13 computerized payroll and personnel data that will make calculation of backpay and punitive

14 damages for specific Class members relatively simple.

15 16 Juanita Wynne

CLAIMS OF THE REPRESENTATIVE PLAINTIFFS

17

31. Plaintiff Juanita Wynne is an African American resident of Berkeley,

18 California, and current employee of McCormick & Schmick’s. She has been employed as a

19 server at Spenger’s Fish Grotto in Berkeley, California, since approximately November 1999.

20 During approximately 2002-03, her shifts and pay were cut approximately in half, whereas the

21 shifts and pay of white servers were not so c ut. Ms. Wynne has been also denied desirable shifts

22 and stations, and she was disciplined for insignificant infractions, while white employees were

23 not so disciplined.

24

32. Ms. Wynne is currently the only African American server on staff at the

25 restaurant.

26

33. Ms. Wynne has observed that McCormick & Schmick ’s tends to seat

27 African American customers at the back of the restaurant, where they are less visible to the rest of

28 the public.

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

34. On or about May 3, 2005, Ms. Wynne filed a charge of discrimination with

2 the Equal Employment Opportunity Commission (“EEOC”). On or about June 30, 2005, she

3 filed an amended charge of discrimination with the EEOC. She received a copy of her Notice of

4 Right to Sue from the California Department of Fair Employment and Housing (“DFEH”), dated

5 April 25, 2005. On July 28, 2006, she received a copy of her Notice of Right to Sue from the

6 EEOC. Attached to this Complaint as Exhibit A and incorporated by refe rence are copies of

7 those charge s and those notices.

8 Dante Byrd

9

35. Plaintiff Dante Byrd is an African American resident of Oakland,

10 California, and applicant to McCormick & Schmick’s.

11

36. In November 2004, Mr. Byrd applied to become a bartender at M&S’s

12 Spenger’s Fish Grotto in Berkeley. He was interviewed by the General Manager/Bar Manager , a

13 non-African American male. Mr. Byrd thought the interview went well, but he never heard back

14 about the job.

15

37. In January 2005, Mr. Byrd learned that McCormick & Schmick’s was

16 again seeking applications from bartenders, so he applied again. He was int erviewed by the same

17 non-African American male and by a white female. He was invited to come back and work the

18 bar for a test shift. He did so, working for approximately 4 -5 hours without pay. The General

19 Manager/Bar Manager told Mr. Byrd that he had do ne a good job on this test shift. Mr. Byrd was

20 never paid for this work. He never heard back about the job.

21

38. At the time, Mr. Byrd had seven years of experience as bartender, plus a

22 year of attendance and graduation from bartender school. Since being d enied employment at

23 McCormick & Schmick’s, Mr. Byrd has applied for and been hired by a comparable restaurant in

24 Oakland, California.

25

39. On or about June 29, 2005, Mr. Byrd filed a charge of discrimination with

26 the EEOC. He received a copy of his Notice of Right to Sue from the California DFEH, dated

27 July 6, 2005. On July 28, 2006, he received a copy of his Notice of Right to Sue from the EEOC.

28

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1 Attached to this Complaint as Exhibit B and incorporated by reference are copies of that charge

2 and those notices.

3

GENERAL POLICIES OR PRACTICES OF DISCRIMINATION

4

40. The denials and abridgments of employment opportunities suffered by the

5 Representative Plaintiffs are part of a general policy or practice of discrimination on the basis of

6 race in employment that has ex isted at McCormick & Schmick’s since at least May 10, 2002.

7 These are not isolated employment practices or individual decisions. On the contrary, these

8 incidents are representative of McCormick & Schmick’s systematic discrimination against

9 African Americans and in favor of white applicants and employees, to create an overwhelmingly

10 white image to the public.

11

41. The under-representation of African Americans in front -of-the-house

12 positions throughout McCormick & Schmick’s approximately 61 restaurants in the United States

13 results from a policy and practice of discrimination on the basis of race in hiring, job assignment,

14 compensation, promotion to managerial positions, discipline, and other terms and conditions of

15 employment.

16

42. McCormick & Schmick’s has pursued po licies or practices on a continuing

17 basis that have denied or restricted job opportunities to qualified African American applicants and

18 employees.

19

43. Such discriminatory policies or practices include, without limitation:

20

a. reliance on subjective, arbitrary, standardless, and unvalidated

21 criteria in making hiring and job assignment decisions, focusing on whether applicants and

22 employees properly reflect the preferred white look and image rather than whether they would be

23 responsible, effective, diligent employees who could perform their jobs well;

24

b. reliance on subjective, arbitrary, standardless, and unvalidated

25 criteria in making decisions in compensation, shift, and weekly hour allocations, focusing on

26 whether applicants and employees properly reflect the preferr ed white look and image rather than

27 whether they would be responsible, effective, diligent employees who could perform their jobs

28 well;

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

c. failing to hire qualified African American applicants to restaurant

2 positions;

3

d. shunting African American applicants and employees to back-of-

4 the-house positions where they are out of the public eye and/or do not interact with the public;

5

e. offering and providing African American employees with fewer

6 hours and/or less desirable job duties and/or assignments than their white counterparts;

7

f. targeting white candidates for recruitment for front -of-the-house

8 positions, but avoiding, ignoring, discouraging or dissuading equally qualified African Americans

9 from applying for those positions;

10

g. subjecting front-of-the- house African American employees to

11 harsher discipline based on their race without regard to their performance on the job; and

12

h. failure to promote African American employees to manager ial

13 positions.

14

44. M&S acted or failed to act as herein alleged with malice or reckless

15 indifference to the protected rights of Plaintiffs and the Class members. Plaintiffs and the Class

16 members are thus entitled to recover punitive damages in an amount to be determined according

17 to proof.

18

FIRST CLAIM FOR RELIEF

(Federal Civil Rights, 42 U.S.C. § 1981)

19

(Brought by the Representative Plaintiffs on behalf of a nationwide Class)

20

45. Plaintiffs incorporate paragraphs 1 through 44, as alleged above.

21

46. This claim is brought by the Representative Plaintiffs on behalf of

22 themselves and the Classes they re present.

23

47. McCormick & Schmick’s has maintained an intentionally discriminatory

24 system with respect to hiring, job assignment, compensation, promotion to managerial positions,

25 discipline, and other terms and conditions of employment.

26

48. The foregoing conduct co nstitutes illegal intentional discrimination with

27 respect to the making, performance, modification, and termination of contracts prohibited by 42

28 U.S.C. § 1981.

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

SECOND CLAIM FOR RELIEF

(42 U.S.C. § 2000e et seq.)

2

(Brought by the Representative Plaintiffs on behalf of a nationwid e Class)

3

49. Plaintiffs incorporate paragraphs 1 through 44, as alleged above.

4

50. This claim is brought by the Representative Plaintiffs on behalf of

5 themselves and the Classes they represent .

6

51. McCormick & Schmick’s has maintained a system that is discriminatory,

7 subjective, standardless, and arbitrary with respect to recruitment, hiring, job assignment,

8 compensation, promotion to restaurant managerial positions, termination, and other terms and

9 conditions of employment. The system has an adverse disparate impact on African American

10 applicants and employees. This system is not and cannot be justified by business necessity, but

11 even if it could be so justified, less discriminatory alternatives exist that could equally serve any

12 alleged necessity.

13

52. McCormick & Schmick’s discriminatory policies or practices described

14 above have denied African American applicants and employees employment, job assignments,

15 promotions, job transfers, and weekly hour allocations, resulting in the loss of past a nd future

16 wages and other job benefits.

17

53. The foregoing conduct has created an unjustified disparate impact

18 prohibited by 42 U.S.C. § 2000e et seq.

19

THIRD CLAIM FOR RELIEF

(California Fair Employment and Housing Act, Government Code § 12940 et seq.)

20

(Brought by the Representative Plaintiffs on behalf of a California subclass)

21

54. Plaintiffs Wynne and Byrd incorporate paragraphs 1 through 44, as alleged

22 above.

23

55. This claim is brought by the Representative Plaintiffs on behalf of

24 themselves and the subclass of Class members who worked for M&S in California, or resided in

25 California, since May 3, 2004.

26

56. Plaintiffs Wynne and Byrd have received copies of their Right to Sue

27 letters from the DFEH. The pendency of the EEOC investigations into Plaintiffs’ charges tolle d

28

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1 the time limits for filing civil actions pursuant to the Fair Employment and Housing Act.

2 Plaintiffs have therefore timely complied with all prerequisites to suit.

3

PRAYER FOR RELIEF

4

WHEREFORE, the Representative Plaintiffs and Class members pray for relief as

5 follows:

6

57. Certification of the case as a class action on behalf of the proposed Classes;

7

58. Designation of the Representative Plaintiffs as representatives of the

8 Classes;

9

59. Designation of the Representative Plaintiffs’ counsel of record as Class

10 counsel;

11

60. A declaratory judgment that the practices complained of herein are

12 unlawful and violate 42 U.S.C. § 1981, 42 U.S.C. § 2000e et seq., and the California Fair

13 Employment and Housing Act, Government Code § 12940 et seq.;

14

61. A preliminary and permanent injunctio n against McCormick & Schmick’s

15 and its officers, agents, successors, employees, representatives, and any and all persons acting in

16 concert with them, from engaging in each of the unlawful policies, practices, customs, and usages

17 set forth herein;

18

62. An order that McCormick & Schmick’s institute and carry out policies,

19 practices, and programs that provide equal employment opportunities for all African Americans,

20 and that it eradicate the effects of its past and present unlawful employment practices;

21

63. An order restoring the Representative Plaintiffs and Class members to their

22 rightful positions at McCormick & Schmick’s, or, in lieu of reinstatements, an order for front pay

23 benefits;

24

64. Back pay (including interest and benefits) for the Representative Plaintiffs

25 and Class members;

26

65. All damages sustained as a result of McCormick & Schmick’s conduct,

27 including damages for emotional distress, humiliation, embarrassment, and anguish, according to

28 proof;

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

66. Exemplary and punitive damages in an amount commensurate with

2 McCormick & Schmick’s ability to pay and to deter future conduct;

3

67. Costs incurred herein, including reasonable attorneys’ fees to the extent

4 allowable by law;

5

68. Pre-judgment and post-judgment interest, as provided by law; and

6

69. Such other and further legal and equitable relief as this Court deems

7 necessary, just, and proper.

8 Dated: July 28, 2006 9

Respectfully submitted,

10

By: /s/ James M. Finberg

James M. Finberg 11

James M. Finberg (SBN 114850)

12

Bill Lann Lee (SBN 108452)

Jahan C. Sagafi (SBN 224887)

13

LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

14

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

15

Telephone: (415) 956-1000

Facsimile: (415) 956-1008

16

Email: jfinberg@lchb.com

Email: blee@lchb.com

17

Email: jsagafi@lchb.com

18

Robert Rubin (SBN 085084)

Diana C. Tate (SBN 232264)

19

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

OF THE SAN FRANCISCO BAY AREA

20

131 Steuart Street, Suite 400

San Francisco, CA 94105

21

Telephone: (415) 543-9444

Facsimile: (415) 543-0296

22

Email: rrubin@lccr.com

Email: dtate@lccr.com 23

Thomas A. Warren

24

THOMAS A. WARREN LAW OFFICES

2032 Thomasville Rd # D

25

Tallahassee, FL 32308-0734

Telephone: (850) 385-1551

26

Facsimile: (850) 385-6008

Email: tw@nettally.com 27

28

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
542200.1

Todd F. Jackson (SBN 202598) Vincent Cheng (SBN 230827) Lindsay Nako (SBN 239090) LEWIS FEINBERG RENAKER &
JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com Email: lnako@lewisfeinberg.com
Gary Lafayette (SBN 088666) LAFAYETTE & KUMAGAI 100 Spear Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 357-4600 Facsimile: (415) 357-4605 Email: glafayette@lkclaw.com
Eric Kingsley (SBN 185123) KINGSLEY & KINGSLEY 16133 Venture Blvd., Suite 1200 Encino, CA 91436 Telephone: 818-990-8300 Facsimile: 818-990-2903 Email: kingsleylaw@aol.com
Attorneys for Plaintiffs and the proposed Class Members

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

1

DEMAND FOR JURY TRIAL

2 Plaintiffs hereby demand a jury trial on all causes of action and claims with respect

3 to which they have a right to jury trial.

4

Dated: July 28, 2006

Respectfully submitted,

5

6

By: /s/ James M. Finberg

7

James M. Finberg

8

James M. Finberg (SBN 114850)

Bill Lann Lee (SBN 108452)

9

Jahan C. Sagafi (SBN 224887)

LIEFF, CABRASER, HEIMANN &

10

BERNSTEIN, LLP

275 Battery Street, 30th Floor

11

San Francisco, CA 94111-3339

Telephone: (415) 956-1000

12

Facsimile: (415) 956-1008

Email: jfinberg@lchb.com

13

Email: blee@lchb.com

Email: jsagafi@lchb.com

14

Attorneys for Plaintiffs and the proposed Class

15

Members

16

17

18

19

20

21

22

23

24

25

26

27

28

542200.1

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FIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION
CASE NO. 06-3153 CW

EXHIBIT A

EXHIBIT B

 
 Case4:06-cv-03153-CW Document113 Filed08/08/08 Page1 of 52 Counsel listing on signature page

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

JUANITA WYNNE, on behalf of herself and classes of those similarly situated, and DANTE BYRD,
Plaintiffs,
v.
MCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK RESTAURANT CORP.,
Defendants.

Case No. 06-3153 CW CONSENT DECREE

[PROPOSED] CONSENT DECREE CASE NO. 06-3153 CW

Case4:06-cv-03153-CW Document113 Filed08/08/08 Page2 of 52

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

LITIGATION BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

PURPOSES OF THE CONSENT DECREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

V.

TERM OF THE DECREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI.

CLASS DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

VII.

RELEASE OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VIII.

GENERAL EQUITABLE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IX.

SENIOR OFFICIAL AND REGIONAL EEO MANAGERS . . . . . . . . . . . . . . . . 8

X.

DIVERSITY MONITOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

XI.

BENCHMARKS FOR JOB FILLS FOR FRONT OF THE HOUSE

POSITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

XII.

REGISTRATION OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

XIII.

SHIFT AND SECTION ASSIGNMENT AND COMPENSATION . . . . . . . . . 18

XIV.

MANAGER INCENTIVE TO PROMOTE DIVERSITY . . . . . . . . . . . . . . . . . . 18

XV.

INTERNAL COMPLAINT SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

XVI.

RECRUITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

XVII.

EMPLOYEE AND MANAGER TRAINING . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

XVIII.

REPORTING AND RECORDKEEPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

XIX.

COMPLIANCE REPORT TO THE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

XX.

DISPUTE RESOLUTION AND ENFORCEMENT PROCEDURES . . . . . . . . 28

XXI.

MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE . . . . . . . . . . . 31

XXII.

NOTICE TO CLASS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

XXIII.

OBJECTIONS AND OPT OUTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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CASE NO. 06-3153 CW

Case4:06-cv-03153-CW Document113 Filed08/08/08 Page3 of 52

XXIV. XXV. XXVI. XXVII. XXVIII. XXIX. XXX.

CLAIMS ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 SUBMISSION OF CLAIM FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 REVIEW OF CLAIM FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 PLAN OF ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 DIVERSITY MONITOR FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . 44 POST-APPROVAL ATTORNEYS’ FEES AND EXPENSES . . . . . . . . . . . . . . 44 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

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CASE NO. 06-3153 CW

Case4:06-cv-03153-CW Document113 Filed08/08/08 Page4 of 52
INTRODUCTION As a result of extensive arms-length negotiations supervised by a mediator, the Parties have reached a voluntary agreement that is contained in this Consent Decree. I. LITIGATION BACKGROUND Plaintiffs Juanita Wynne and Dante Byrd filed class-wide administrative charges with the EEOC on May 3 and June 29, 2005. On May 11, 2006 Plaintiffs filed the Complaint in this action alleging racial discrimination claims under Title VII, FEHA and Section 1981 on behalf of themselves and classes of McCormick & Schmick’s African American employees and applicants. Plaintiffs filed their First Amended Complaint on July 28, 2006. After filing the First Amended Complaint, the parties conducted discovery. Plaintiffs took the depositions of six Rule 30(b)(6) designees relating to Company operations, hiring practices, training, compensation policies, store openings, data collection, and others. Company deponents included the Director of Human Resources, the Director of Training, the Vice President of Operations, and others. During this period, Defendants took depositions of plaintiffs Juanita Wynne and Dante Byrd. Plaintiffs served written discovery, including interrogatories and document requests, and obtained many thousands of pages of documents from Defendants, including personnel manuals and policies, training materials, and employment applications. Plaintiffs also obtained, and with the assistance of expert statisticians analyzed, Company computerized personnel and payroll data from 2003 through 2006. Defendants served written discovery on Juanita Wynne and Dante Byrd. Juanita Wynne and Dante Byrd responded to interrogatories and produced hundreds of pages of documents related to their employment at McCormick & Schmick’s. Plaintiffs and Defendants engaged expert consultants to analyze the payroll data, to determine whether disparities exist in hiring and compensation of African Americans in front of the house positions, and to calculate potential damages exposure. Expert consultants also assisted the parties in negotiating the settlement by proposing and analyzing various
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CASE NO. 06-3153 CW

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methodologies for establishing hiring benchmarks. The Plaintiffs have vigorously prosecuted this case, and McCormick &
Schmick’s has vigorously contested it. As a result, the Parties were able to assess reliably the relative merits of the claims of the Plaintiffs and of McCormick & Schmick’s defenses. On July 12, September 26, and November 5, 2007, counsel for the Parties met to negotiate a settlement of this matter with the assistance of experienced mediator Hunter Hughes of Atlanta, Georgia. In addition, counsel for the Parties met face-to-face without the mediator on August 8 and September 12, 2007, and exchanged numerous written settlement proposals from July 2007 through February 2008.
The Parties agree that the formal and informal discovery conducted in this action – the depositions taken by both sides, the documents produced, and the information exchanged during mediation, including expert consultant analyses, are sufficient to assess reliably the merits of the respective parties’ positions and to compromise the issues on a fair and equitable basis. As reflected by the signatures of counsel at the end of this document, the Parties have consented to entry of this Decree. II. PURPOSES OF THE CONSENT DECREE
The Parties have entered into the Consent Decree for the following purposes:
A. To resolve all disputes covered by this Consent Decree in such a way as to avoid further expensive and protracted litigation;
B. To use their Best Efforts to achieve equal employment opportunity for African Americans working at McCormick & Schmick’s restaurants; and
C. To create an expedited procedure for implementing equitable relief pursuant to the terms of this Decree and distributing a monetary settlement to eligible members of the Settlement Class.
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III. DEFINITIONS A. “African American” for class membership purposes means all persons having
origins in any of the Black racial groups of Africa, and includes individuals who identify as Black or African American, or who identify as more than one race so long as at least one of the races identified is Black or African American.
B. “Applicant Flow” means the percentage of individuals applying for specified positions who are African American, as specified in Section XI(A)(1) of the Decree.
C. “Back of the house” positions means all non-exempt restaurant-level positions not included in the definition of “Front of the House” positions.
D. “Best Efforts” means all reasonable steps necessary to comply with the specific objective to which the Best Efforts are directed.
E. “Civil Action” means Wynne v.McCormick & Schmick’s Seafood Restaurants, Inc, Case No. 06-3153 CW (N.D. Cal.).
F. “Class Counsel” means Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein, LLP; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; The Lawyers’ Committee For Civil Rights Of The San Francisco Bay Area; Thomas A. Warren Law Offices; and Kingsley & Kingsley.
G. “Class Representative” means Juanita Wynne. H. “Expected Representation of African Americans in the Labor Market” is defined in Section XI(A)(2) of the Decree. I. “Injunctive Relief Class” is defined in Section VI of this Consent Decree. J. “Monetary Settlement Class” is defined in Section VI of this Consent Decree. K. “Company” means McCormick & Schmick’s Seafood Restaurants, Inc. and McCormick & Schmick Restaurant Corp. L. “Company-wide Benchmark” means the company-wide benchmark as set forth in Section XI(B) of the Decree.
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M. “Final Approval Date” means the date upon which the Court signs this Decree after having found that it is fair, adequate and reasonable.
N. “Front of the House” positions or jobs means: waiter, waitress, server, host, hostess, bartender, and cocktail server.
O. “McCormick & Schmick’s” refers to McCormick & Schmick’s Seafood Restaurants, Inc. and McCormick & Schmick Restaurant Corp.
P. “Party” or “Parties” means the Class Representative and McCormick & Schmick's.
Q. “Preliminary Approval Date” means the date upon which the Court enters an Order preliminarily approving this Decree, directing notice and an opportunity for persons falling within the definition of the Settlement Class to opt out of the Settlement Class or submit an objection to the Decree, and setting a fairness hearing.
R. “Relevant Census Occupation” means, for the waiter/waitress/server/ cocktail server positions, Census Occupation Code 411 (waiters and waitresses). For the bartender position, the Relevant Census Occupation Code is 404 (Bartenders). For the host position, the Relevant Census Occupation Code is 415 (Hosts and Hostesses).
S. “Release” means the Release of claims set forth in Section VII of the Decree. T. “Released Parties” means the Parties who are beneficiaries of the Release of Claims set forth in Section VII of the Decree. U. “Released Claims” means the Claims released as set forth in Section VII of the Decree. V. “Relevant Geographical Area” means all census-defined counties/county sets within a 25-mile radius that contribute one or more employees to that particular restaurant's workforce. Determination of counties/county sets will be based on the ZIP codes of employee home addresses for all employees at the restaurant. W. “Restaurant Benchmark” means the restaurant-level benchmark as set forth in Section XI(A) of the Decree.
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X. “Settlement Class” is defined in Section VI of the Decree. Y. “Settlement Effective Date” shall mean the first day following the last of the following occurrences:
1. The date on which the Final Order approving the Settlement has been signed; or
2. If an objection has been made to the settlement, the date the time to appeal or seek permission to appeal or seek other judicial review of the entry of a Final Order approving the Settlement has expired with no appeal or other judicial review having been taken or sought; or if an appeal or other judicial review has been taken or sought, the date the Final Order is finally affirmed by an appellate court with no possibility of subsequent appeal or other judicial review therefrom, or the date the appeal(s) or other judicial review therefrom are finally dismissed with no possibility of subsequent appeal or other judicial review therefrom.
Z. “Term of the Decree” means the period described in Section V of the Decree. AA. “White” means all persons who identify as White and do not identify as more than one race. IV. JURISDICTION The Court has jurisdiction over the parties and subject matter of this Civil Action. The First Amended Complaint in this action asserts claims that, if proved, would authorize the Court to grant the equitable and monetary relief set forth in this Decree. Venue is proper in this Court. The Court shall retain jurisdiction of this Civil Action during the Term of the Decree for the purpose of entering all orders authorized by the Decree, which may be necessary to implement the relief provided in the Decree or to enforce the provisions of the Decree. V. TERM OF THE DECREE A. The equitable provisions of this Decree are effective immediately upon the Final Approval Date. B. Except as otherwise provided herein, the provisions of this Decree and the
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agreements contained herein shall remain in effect for a period of five (5) years from the Final Approval Date, provided, however, that four (4) years after the Final Approval date, the Court may terminate the Decree, upon motion of the Company, if the Company has met all of its Company-wide Benchmarks (as defined in Section XI(B) below) during any consecutive threeyear period prior to the fourth anniversary of the Decree. VI. CLASS DEFINITION
A. Injunctive Relief Class For purposes of the injunctive and declaratory relief provided in this Decree, the Settlement Class is certified under Federal Rule of Civil Procedure 23(b)(2) and consists of: “All African Americans employed by McCormick & Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the date the Decree terminates.” B. Monetary Relief Class
1. For purposes of the monetary relief provided in this Decree, the Settlement Class is certified pursuant to Federal Rule of Civil Procedure 23(b)(3) and consists of: “All African Americans employed by McCormick & Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the Preliminary Approval Date, except those who file a timely request to opt out of the monetary relief provisions of the Decree.”
2. All African Americans hired by the Company after the Preliminary Approval Date may avail themselves of the equitable relief provided in the Decree but shall not be entitled to any portion of the monetary relief provided hereunder.
3. Settlement Class members who have filed a timely request to opt out of the monetary relief provisions of the Decree shall not be included in the Monetary Relief Class and shall not be held to release any claims for individual relief.
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VII. RELEASE OF CLAIMS A. Release of Claims by Settlement Class. Upon the Settlement Effective Date, all
Monetary Relief Class Members who do not timely opt out will release all race discrimination claims against McCormick & Schmick’s and its directors, officers, managers, agents, successors and assigns, which arise out of the conduct alleged in the First Amended Complaint under Title VII, 42 U.S.C. §1981, the California FEHA and/or any other state or federal law prohibiting race discrimination, for the liability period of May 15, 2002 through the Preliminary Approval Date.
B. Release of Claims By Juanita Wynne and Dante Byrd. Juanita Wynne and Dante Byrd, in exchange for consideration in the amount of $5,000 each, as provided in Section XXI(D)(4), will give McCormick’s a release of all claims arising out of their application for employment and employment by McCormick’s, including, for Ms. Wynne, a release of any nonclass claims for race harassment/hostile work environment, and, for Mr. Byrd, a release of any non-class claims arising out of his application for employment with McCormick & Schmick’s. VIII. GENERAL EQUITABLE PROVISIONS
A. The Company shall not engage in or be a party to any act, policy, practice or procedure that discriminates, retaliates, or has the purpose of discriminating or retaliating against any Class Representative or member of the Class, and employee of, or applicant to the Company, or any other person because he or she testified, furnished information or participated in any investigation, proceeding, or hearing in connection with this lawsuit or any charge or complaint of discrimination on which this lawsuit is based; testified, furnished information or participated in connection with the monitoring or implementation of this Decree; or sought and/or received monetary and/or non-monetary relief pursuant to this Decree.
B. The Company shall make available to African-American employees and applicants the same opportunities and terms and conditions of employment as the Company affords similarly situated non-African American employees and applicants.
C. Class Counsel will have sole and exclusive authority to act for the Class on issues of compliance or non-compliance with this Decree.
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D. The Company shall abide by the provisions of this Consent Decree, but otherwise shall maintain management discretion over decisions to select, hire, assign, transfer, train, promote, compensate, discipline, or terminate its employees. Nothing in this Consent Decree shall require the Company to violate any applicable law, ordinance or regulation. IX. SENIOR OFFICIAL AND REGIONAL EEO MANAGERS
A. Within thirty (30) days of the Final Approval Date, and after consultation with Class Counsel, the Company shall appoint a senior-level Human Resources official (“Senior Official”) to be responsible for internal monitoring of the Consent Decree provisions and providing annual monitoring reports to the outside monitor (“Diversity Monitor”). If Class Counsel disagrees with the appointment, Class Counsel may use the Dispute Resolution procedures set forth in Section XX.
B. The Senior Official will report directly to the CEO and the Executive Committee of the Board of Directors.
C. The Company will also appoint three regional Human Resources Managers to assist the Senior Official with processing employee complaints arising from units within their respective regions, regional recruitment efforts, regional diversity efforts, and any aspect of Consent Decree compliance, at the discretion of the Senior Official. X. DIVERSITY MONITOR
A. The parties agree to appointment of Barry Goldstein as Diversity Monitor. In the event that Barry Goldstein becomes unavailable to serve as Diversity Monitor for any reason, Class Counsel and the Company will make a good faith effort to select on a joint basis a new Diversity Monitor. If Class Counsel and the Company are unable to reach agreement as to a successor Diversity Monitor within forty-five (45) days following the date Barry Goldstein becomes unavailable to serve as Diversity Monitor, the Court shall appoint a successor Diversity Monitor upon motion of Class Counsel or the Company. Class Counsel or the Company may nominate to the Court persons for consideration as a successor Diversity Monitor. Class Counsel
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and the Company shall each have the right to interview any nominated person, and to present argument and evidence to the Court regarding the selection of the successor Diversity Monitor. XI. BENCHMARKS FOR JOB FILLS FOR FRONT OF THE HOUSE POSITIONS
A. Restaurant Benchmarks. Within 13 months after the Final Approval date, and every reporting period thereafter for the life of the decree, the Company shall, with respect to persons placed in Front of the House positions during the preceding reporting period, calculate for each restaurant, and report in its Progress Report (as defined in Section XVIII(D)), one “Restaurant Benchmark” for servers and cocktail servers, one “Restaurant Benchmark” for bartenders, and one “Restaurant Benchmark” for hosts, for the 12 month period following the Final Approval date, and for each reporting period thereafter.
The “Restaurant Benchmark” for each position in each restaurant will be the higher of “Applicant Flow” or “Expected Representation of African Americans in the Labor Market.”
1. Applicant Flow. Applicant Flow means the percentage of all individuals who applied for the specified position in the specified restaurant during the 12 months being measured who are African American. Applicant Flow shall be calculated as follows: The Company shall separately calculate Applicant Flow, for each restaurant, for each of the following positions a) waiter/waitress/server/cocktail server, b) bartender, and c) host, as follows: Calculate the number of applicants who applied for the specified position during the 12 month period under review. The number of applicants for each position shall include all individuals who applied for that position and also who applied for that position plus other positions with the Company. The number of applicants for each position shall not include individuals whose applications fail to identify their race, or state more than one race but do not specify the races. Out of the total number of applicants for each position (as defined in subsection a, above), calculate the number and percentage who identified themselves on the applications as African American or Black, or who identified as more than one race and at least one race identified is African American or Black, or, if the Company modifies the racial categories on its application form to track the 2000 census codes, African American or Black
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means individuals falling within census codes for Black non-Hispanic, plus Black and White non-Hispanic, plus Black and American Indian Alaskan Native. This percentage is the “Applicant Flow” for the specified position in the specified restaurant.
2. Expected Representation of African Americans in the Labor Market. The Company shall separately calculate Expected Representation of African Americans in the Labor Market, for each restaurant, for each of the following positions a) waiter/waitress/server/cocktail server, b) bartender, and c) host, as follows:
a. Calculate, for each restaurant and each position, the percentage of individuals within the "Relevant Geographical Area" who fall within the "Relevant Census Occupations Code" who are African American or Black, based on Census 2000 data. If, after 2010, but before the termination of the Decree, the Census Bureau completes and makes available an update of the "EEO Special File" containing data on occupations by race, the first set of such updated data shall be used for the calculation of benchmarks during the remainder of the term of the Decree. At no time, however, shall the Company be required to use any special EEO availability data source that is not a typical data source endorsed by the U.S. Department of Labor, OFCCP, for AAP reporting requirements of federal government contractors.
b. Relevant Geographical Area means all census-defined counties/county sets within a 25-mile radius that contributed one or more employees to that particular restaurant's workforce during the relevant year. Determination of counties/county sets will be based on the ZIP codes of employee home addresses for all employees at the restaurant, regardless of position held. Data from each census defined county/county set shall be weighted according to the percentage of employees residing in each county/county set.
c. For the waiter/waitress/server/ cocktail server positions, the Relevant Census Occupation Code is 411 (waiters and waitresses). For the bartender position, the Relevant Census Occupation Code is 404 (Bartenders). For the host position, the Relevant Census Occupation Code is 415 (Hosts and Hostesses).
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d. For the purpose of this calculation, African American or Black means individuals falling within census codes for Black non-Hispanic, plus Black and White non-Hispanic, plus Black and American Indian Alaskan Native.
B. Company-wide Placement Benchmarks. Within 13 months after the Final Approval date, and every 12 months thereafter for the life of the decree, the Company shall calculate three (3) “Company-wide Benchmarks:”
1) one for waiters/waitresses/servers/ cocktail servers, 2) one for bartenders, and 3) one for hosts. The Company-wide Placement Benchmark for each position shall be calculated as follows: 1. For each position, calculate the weighted average of the restaurant-byrestaurant Applicant Flow (as defined in Section XI(A)(1)). The average shall be weighted for the total number of employees placed in the relevant position in each restaurant as of December 31 of the preceding year. 2. For each position, calculate the weighted average of the restaurant-byrestaurant Expected Representation of African Americans in the Labor Market (as defined in Section XI(A)(2)). The average shall be weighted for the total number of employees placed in the relevant position in each restaurant as of December 31 of the preceding year. 3. For each position, the Company-wide Benchmark is the higher of the weighted average of the Applicant Flow and the weighted average of the Expected Representation of African Americans in the Labor Market. C. If Company-Wide Placement Benchmark Is Not Met 1. If the Company reports in its annual Progress Report (Section XVIII(D)) that it has failed to meet any of its three position Company-wide Placement Benchmarks, the Diversity Monitor shall conduct an investigation to determine the cause(s) of the failure to meet the benchmarks not met, including, but not limited to, ascertaining
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a. all of the individual restaurants that failed to meet the relevant Restaurant Benchmark;
b. the decision maker(s) responsible for hiring and job placement at such location(s);
c. the decision(s) leading to such failure. 2. Within 90 days after the date of the Progress Report, the Diversity Monitor shall issue a Diversity Monitor Report (Section XVIII(E)) that states, among other things, the Diversity Monitor’s findings regarding whether the failure to meet an individual Restaurant Benchmark was due to a failure of the Company or any of its employees to make their Best Efforts to recruit, hire, retain, and/or promote African Americans or otherwise comply with the letter and spirit of the decree. When evaluating whether the failure to meet a benchmark was due to a failure of the Company or any of its employees to use Best Efforts, the Diversity Monitor will consider the following factors, among others:
a. The percentage and number of employees by which the restaurant failed to achieve its benchmark.
b. Whether the restaurant failed to achieve its Restaurant Benchmark in preceding years, and if so by how much.
c. Whether the failure to achieve the Restaurant Benchmark is part of any national, regional or local trend of failing to achieve benchmarks.
d. Whether Applicant Flow at the restaurant(s) is increasing from year-to-year during the life of the Decree, using the data from the first half of 2007 as a point of comparison.
3. If the Diversity Monitor concludes that any failure to achieve a Restaurant Benchmark is due to a failure of the Company, or one of its restaurants, or any of its employees to make their Best Efforts to recruit, hire, retain, and/or promote African Americans or otherwise comply with the letter of spirit of the decree, the Diversity Monitor will inform Class Counsel and counsel for the Company.
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D. If The Diversity Monitor Finds That the Company or a Restaurant Failed to Make Best Efforts to Meet Benchmarks:
1. If the Diversity Monitor issues a Diversity Monitor Report concluding that any failure to achieve a Restaurant Benchmark is due to a failure of the Company, or one of its restaurants, or any of its employees to make their Best Efforts to recruit, hire, retain, and/or promote African Americans or otherwise comply with the letter or spirit of the decree, Class Counsel and counsel for the Company will meet and confer to determine appropriate remedial measures.
2. If Class Counsel and counsel for the Company are unable to agree on appropriate remedial measures within 30 days of the Diversity Monitor Report, Class Counsel and counsel for the Company will present the dispute to the Diversity Monitor. The Diversity Monitor shall set appropriate and proportional remedial measures, which may include:
a. Require restaurant(s) to hire African Americans into Front of the House positions from Registration of Interest lists (if any African Americans are on such list), until the restaurant(s) have hired a number that would have satisfied the benchmark in the previous year.
b. Require the Company or individual restaurants to hire additional recruiters, and/or increase recruiting efforts at places or institutions with high African American representation (such as historically Black colleges or universities), or advertise in or recruit through media that reach large numbers of African Americans.
c. Require restaurant(s), or the Company (if applicable) to validate hiring criteria that the Diversity Monitor determines have an adverse impact on African American applicants, and are not job related and consistent with business necessity.
d. Require restaurant(s) to establish hiring safeguards, including 1) requiring that managers who make hiring decisions evaluate all applicants based on the same set of factors with the same rating system, and 2) requiring that at least two managers independently evaluate each applicant.
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e. Require the Company to provide reports setting forth relevant manager performance evaluation scores, isolating the scores for the EEO section of the performance evaluation, and setting forth any changes in compensation/bonus for each person.
f. Require the Company to increase the portion of the restaurant’s managers’ compensation tied to achieving EEO and/or impose discipline on managers who are failing to comply with the spirit and terms of the decree.
g. Require the Company to undertake remedial steps at the regional management level.
3. In determining the appropriate remedial measures, the Diversity Monitor shall consider, among other things:
a. The percentage and number of employees by which the restaurant failed to achieve its benchmark.
b. Whether the restaurant failed to achieve its benchmark in preceding years, and if so by how much.
c. Whether the failure to achieve the benchmark is part of any national, regional or local trend of failing to achieve benchmarks.
d. Whether Applicant Flow at the restaurant(s) is increasing from year-to-year during the life of the Decree, using the data from the first half of 2007 as a point of comparison.
4. The Diversity Monitor’s determination shall become final and binding, and enforceable as though it were a Court order, if there is no appeal within 14 days from the date that the Diversity Monitor informs the Parties, in writing, of his determination. If either party disagrees with the remedial measures ordered by the Diversity Monitor, that party may appeal the Diversity Monitor’s decision to the District Court. The Diversity Monitor’s decision shall be reviewed under an “abuse of discretion” standard.
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XII. REGISTRATION OF INTEREST A. Establishing Registration of Interest Program 1. Within ninety (90) days of the Final Approval Date, the Company shall
implement a “Registration of Interest” program at each of its unit locations. The program will be implemented to facilitate employees’ expression of interest in both hourly and managementlevel positions.
2. Each restaurant shall have a single bulletin board that contains postings as follows:
a. On a monthly basis, the Company will post open positions at that location and other metropolitan area locations. Employees will also be directed to the web-based job posting site for the most current listing of all open positions;
b. Job descriptions for all positions (regardless of whether an opening currently exists); and
c. Procedures for registering interest in any restaurant-level position (regardless of whether an opening currently exists), including a statement indicating that employees may use managers’ computers to complete an online registration of interest form.
3. Restaurant managers shall make their computers reasonably available for employees to complete registrations of interest, and shall work with the Regional EEO Managers to ensure that they learn of openings at all restaurants in the local metropolitan area, and post such openings as provided in Section 2(a), above.
4. The Company shall establish and maintain a Registration of Interest database that contains all information entered by employees who register interest. To the extent that an employee is selected for training or promotion for an open position, the Company shall maintain records of such training or promotion. The employees’ registrations of interest automatically shall be provided to managers making hiring decisions at all area restaurants and, upon request, to the Diversity Monitor.
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5. Employee training shall explain the company Registration of Interest and job posting/promotion policies.
B. Front of the House and Back of the House (non-Exempt) Positions 1. Employees who register interest in Front of the House and Back of the
House (non-Exempt) position(s) and who meet the following conditions shall be considered applicants for any openings in such position in all area restaurants:
a. The employee has served in his/her current position for six (6) months.
b. The employee does not have any disability precluding him or her from fulfilling the essential job duties, even with an accommodation;
c. For positions with a minimum age, the employee is of the required age.
d. For positions for which any certification is required, the employee must have the requisite certification.
e. The employee has had an on-time attendance rate of 95% over the preceding six months.
f. The employee has not committed any violation of Company rules (other than attendance) resulting in formal written discipline within the prior six months.
g. The employee has a level of English proficiency that is job related and consistent with business necessity.
2. Nothing in this program should be construed to limit the Company’s ability to promote employees in shorter timeframes than those set forth above, or the ability of employees to apply directly for openings in any restaurant.
C. Management (Exempt) Positions 1. An employee who registers interest in any management-level (exempt)
position and who meets the following conditions shall be considered an applicant for any openings in such position in all area restaurants:
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a. The employee has been employed by the Company for 18 months, and for at least one year has held a position immediately subordinate to the management-level position sought.
b. The employee does not have any disability precluding him or her from fulfilling the essential job duties, even with an accommodation;
c. For positions with a minimum age, the employee is of the required age.
d. For positions for which any certification is required, the employee must have the requisite certification.
e. The employee has had an on-time attendance rate of 95% over the preceding three months;
f. The employee has not committed any violation of Company rules (other than attendance) resulting in formal written discipline within the prior six months.
g. The employee has a level of English proficiency that is job related and consistent with business necessity.
2. Nothing in this program should be construed to limit the Company’s ability to promote employees in shorter timeframes than those set forth above, or the ability of employees to apply directly for openings in any restaurant.
3. Nothing in this program shall preclude the Company from conducting background checks that are job related and consistent with business necessity for persons being considered for management opportunities.
D. Record Retention. Registration of Interest forms and data regarding training and hiring via the Registration of Interest Program will be maintained for the Term of the Decree. For employees placed into management-level training, the Company shall maintain written documentation regarding the training for the Term the Decree.
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XIII. SHIFT AND SECTION ASSIGNMENT AND COMPENSATION A. The Company’s annual Progress report (Section XVIII(D)) shall include, among
other things, data regarding the compensation earned by the server, bartender, and host/hostess job categories by race at each restaurant. If the Diversity Monitor finds that significant disparities exist in the compensation earned by African American and White employees in a restaurant, the Diversity Monitor shall investigate the cause of the disparities. As part of any such investigation, the Diversity Monitor shall have access to Company data showing average base wages, average hourly compensation, and employee shift and table assignments at the restaurant level (including “covers” data demonstrating the number of customers at a table).
B. If the Diversity Monitor’s Report (Section XVIII(E)) concludes that there are significant pay disparities by race, and those disparities are due to Company compensation policies or practices (including shift or section assignment policies or practices), that have an adverse impact, or result from intentional discrimination, based on race, the Diversity Monitor will inform Class Counsel and counsel for the Company of the factual bases for the finding. Class Counsel and counsel for the Company shall meet and confer to determine appropriate remedial measures. If they are unable to agree, Class Counsel and counsel for the Company shall present the dispute to the Diversity Monitor pursuant to the post-impasse Dispute Resolution Procedures (Section XX(C)). XIV. MANAGER INCENTIVE TO PROMOTE DIVERSITY
A. The Company shall evaluate unit-level managers and regional managers, in part, on their degree of success in helping the Company to achieve its diversity goals (including achieving Restaurant Benchmarks, implementing the registration of interest program, and otherwise complying with the letter and spirit of this Decree). The Company shall incorporate an evaluation of the manager’s participation and performance in the Company’s efforts to achieve its diversity goals and to implement the registration of interest program into the evaluation of each manager’s bonus. A meaningful portion of the manager’s bonus shall be
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based on EEO performance objectives established by the Company’s Human Resources Department and consistent with this Decree.
B. If the Company fails to meet one or more of its Company-wide Benchmarks, the Diversity Monitor may request that the Company provide it with reports setting forth manager bonus evaluation scores, isolating the scores for the EEO section of the bonus evaluation, and setting forth any changes in bonus for each manager in any restaurant that did not achieve its Restaurant Benchmark, or any Regional manager in any Region in which more than two Restaurants missed the Restaurant Benchmark. XV. INTERNAL COMPLAINT SYSTEM
A. Ethics Point. The Company shall inform all employees that the Ethics Point complaint system provides a means by which employees can submit discrimination and EEOrelated complaints, including complaints related to the Registration of Interest program and to shift and section assignments. The Company shall integrate training on Ethics Point into training programs for new hires and existing employees. The Company shall also post information about Ethics Point prominently on employee bulletin boards. Employees will have the option of calling the Ethics Point hotline or submitting written complaints.
B. Complaint Investigation. 1. The Regional EEO Managers shall be in charge of investigating race
discrimination complaints in their regions. For each investigation, the EEO Manager shall document:
a. the investigation steps taken (including naming witnesses interviewed, documents gathered, etc.);
b. the outcome of the investigation; and c. the remedial measures taken (if any). 2. These steps shall be followed for all race discrimination complaints, regardless of whether the underlying complaint is ultimately found to be meritorious.
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3. Employees who are not satisfied with the outcome of an Ethics Point race discrimination complaint shall have an opportunity to appeal directly to the Senior Official.
4. The records of Ethics Point race discrimination complaints and follow-up investigations shall be maintained at the Company’s corporate headquarters in Portland, Oregon for the Term of the Decree. Summaries of Ethics Point investigation reports alleging race discrimination shall be appended to monitoring reports provided to Class Counsel. XVI. RECRUITING
A. The Company shall create a new position of Corporate Recruiter, who will be based in Portland, Oregon. The Corporate Recruiter will undertake his or her Best Efforts to increase diversity in all Front of the House non-exempt positions and in all exempt positions.
B. The Corporate Recruiter will work with Regional EEO Managers and Unit Managers at existing and new restaurants to increase the recruitment and hiring of African Americans. This shall include 1) developing a list of recruitment and outreach sources, such as schools with high African American attendance levels, and job fairs attended by large numbers of African Americans, 2) developing a list of advertising media that have a large African American audience, and 3) advertising all job openings in outreach sources and media identified pursuant to subsections 1 and 2, above. Within 180 days after the Final Approval Date, the Corporate Recruiter will provide the Diversity Monitor with all such lists, along with a summary of additional recruitment efforts and strategies undertaken.
C. In the event that the African American Applicant Flow (as defined in Section XI(A)(1)) for any position in any restaurant declines for two consecutive years, the Company shall exercise its Best Efforts to increase the Applicant Flow to 1) the highest level recorded in any year for that position in that restaurant during the term of the Decree, or 2) the Applicant Flow for that position in that restaurant during the first half of 2007, whichever is higher.
D. In the event that the Applicant Flow (as defined in Section XI(A)(1)) for any position in any restaurant in any year is lower than the Expected Representation of African Americans in the Labor Market (as defined in Section XI(A)(2)) for that position in that
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restaurant in that year, the Company shall, within 30 days after the close of the next Reporting Period, develop a plan to increase the Applicant Flow percentage to at least the Expected Representation of African Americans. The Company shall present that action plan to Class Counsel. Class Counsel and the Company shall meet and confer about the plan. If Class Counsel and the Company are not in agreement about the plan, they shall ask the Diversity Monitor to make a recommendation about an appropriate plan designed to increase Applicant Flow at the restaurant to at least the Expected Representation of African Americans in the Labor Market in that restaurant’s Relevant Geographical Area (as defined in Section XI(A)(2)). The Diversity Monitor’s recommendation shall become final and binding, and enforceable as though it were a Court order, if there is no appeal within 14 days from the date that the Diversity Monitor informed the Parties of his recommendation. If either party appeals the decision to the District Court, the Diversity Monitor’s recommendation shall be reviewed under an “abuse of discretion” standard. XVII. EMPLOYEE AND MANAGER TRAINING
A. Employee Training. 1. Not later than 180 days after the Final Approval Date, the Company shall
provide to each of its restaurant-level employees a video presentation and written materials that: a. affirm the Company’s commitment to diversity and equal
employment opportunity; and b. explain the Registration of Interest Program and the methods for
learning about other positions in the restaurant and job openings at all area restaurants; and c. explain the Company’s Ethics Point complaint procedures.
2. The video presentation shall also be provided to all restaurant level new hires within 30 days of their first day of work.
3. A copy of the video and training materials shall be provided to Class Counsel. At least once every two years during the term of the Decree, the Company shall provide a similar communication to each of its restaurant-level employees, after first providing a
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copy of any new materials and reasonable opportunity for comment to Class Counsel. The

written communications will be signed and issued by the Chief Executive Officer of the

Company.

B. Management Training.

1. In addition to the employee training set forth in Section XVII(A), the

Company will provide an EEO and diversity training program for all exempt employees at the

restaurant, regional, and executive levels.

2. The manager training will cover the issues included in the employee

training set forth in Section XVII(A), but will provide more depth about complaint procedures

and investigation, use of the Registration of Interest program, the recruitment provisions in the

Decree, the Benchmark provisions in the Decree, the EEO Component of manager

compensation, and other terms and conditions of this Decree. The training will also include an

interactive training module to help managers identify barriers that inhibit valuing race and ethnic

diversity, understand why race and ethnic diversity awareness and acceptance is important to the

Company’s growth and future, and learn how race and ethnic stereotypes hinder effective

communication and workplace interactions. Such training shall not be provided solely through

written materials.

3. No less than two hours shall be devoted to the training on these topics for

all exempt employees within 180 days of the Final Approval Date, and every 24 months

thereafter during the term of the Decree; provided, however, that if some topics covered by the

training have been covered by training provided to exempt employees within the 18-month

period prior to the Final Approval Date, the Company need not repeat training on such topics for

those employees within 180 days of the Final Approval Date. For all employees hired or

promoted into exempt positions after the Final Approval Date, such training shall also be

provided within 120 days of employment or promotion.

XVIII.

REPORTING AND RECORDKEEPING

A. Documents to Be Preserved for the Term of the Decree

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The Company shall retain the following employment-related records for the Term of the Decree or as required by state or federal law, whichever is longer:
1. A computer readable database or databases containing computerized payroll and personnel information for restaurant-level employees. The payroll information contained in the database or databases shall include the information currently contained in the Company’s payroll databases. The personnel information shall include the job position and race of each employee.
2. Records showing each employee’s shift and table assignments. 3. All versions of Registration of Interest Forms. 4. Registration of Interest records. 5. Records of the Company’s recruitment efforts. 6. Job descriptions, including any changes to job descriptions. 7. Documentation of any validation studies performed on any employment requirements. 8. Copies of Ethics Point complaints regarding race discrimination, and documentation of investigations, findings and remedial measures taken. 9. Training documents and videos. 10. All documents expressly required to be created by this Decree. Nothing in this Decree shall be interpreted to relieve the Company of any recordkeeping requirements otherwise imposed by applicable Federal or State law. B. Access to Documents. The Diversity Monitor will have access to all documents and information reasonably related to his/her responsibilities pursuant to the Decree. The Diversity Monitor and Class Counsel shall, upon reasonable notice, be entitled to review all documents required to be maintained or created by the express terms of this Decree, except, however, that neither Class Counsel nor the Diversity Monitor shall be entitled to review any such documents that are protected by attorney-client or work product privilege. C. Reporting Schedule. The Company shall provide Progress Reports to the
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Diversity Monitor and Class Counsel regarding the Company’s compliance with the Decree’s requirements 30 days after the close of the following reporting periods: 1) Months 1-12 after the Final Approval Date; 2) Months 13-24 after the Final Approval Date; 3) Months 25-36 after the Final Approval Date; 4) Months 37-48 after the Final Approval Date; and, if the Consent Decree has not been terminated pursuant to Section V(B), 5) Months 49-56 after the Final Approval Date.
D. Contents of the Company Progress Reports. The Progress Reports shall include the following information:
1. A chart or charts displaying, for each Front of the House position in each restaurant, 1) the Applicant Flow, including the total number of applicants (as defined in Section XI(A)(1)), the total number who were African American (as defined in Section IIII(A)), and the resulting percentage; 2) the Expected Representation of African Americans in the Labor Market (as defined in Section XI(A)(2)); 3) the number of persons hired or promoted to fill that position at that restaurant during that year; and 4) the number and percentage of individuals hired or promoted to fill that position at that restaurant during that year who were African American.
2. A chart setting forth the Company-wide Benchmarks, and whether they were met, with respect to the percentage of persons hired or promoted into the position during the year.
3. A chart comparing the Applicant Flow (as defined in Section XI(A)(1)) for Front of the House positions at each restaurant for each year during the Term of the Decree, which shall include as an initial point of comparison the Applicant Flow from the first six months of 2007.
4. A chart or charts setting forth Registration of Interest records received, by race (African American and all others) and by job category, training provided based on Registration of Interest by race (African American and all others) and job category, and promotions made to individuals who used the Registration of Interest program by race (African
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American and all others) and job category during the reporting year and for the Term of the Decree.
5. A chart or charts setting forth average hourly wages, average weekly hours, and average compensation per hour for African American and White employees for each Front of the House position in each restaurant.
6. A description of the implementation and delivery of the training required by Sections XVII, and lists of those in attendance.
7. Summaries of Ethics Point complaints regarding a) race discrimination and race-based retaliation, b) the Registration of Interest Program, and/or c) section/shift assignments received during the year, including a summary of the nature of the complaint, the nature of the investigation that was undertaken, and the outcome. Upon request, further documentation, including actual reports and investigation notes, shall be provided to the Diversity Monitor.
8. Certification by the Senior Official that she or he has used Best efforts to see that the Consent Decree is implemented.
9. The first Progress Report shall also contain a statement setting forth the qualifications for each restaurant position; subsequent Reports shall set forth any changes made to such qualifications.
10. The final Progress Report shall also include a chart comparing the number of African American, White and all other employees in Front of the House positions at each restaurant for each year during the Term of the Decree, which shall include as an initial point of comparison the number of African Americans, White and all other employees in Front of the House positions as of year-end 2006.
E. Diversity Monitor Reports 1. Upon receipt of the Company’s Progress Report, the Diversity Monitor
shall review the Report and identify any potential or actual failures to achieve benchmarks or to use Best Efforts, and conduct any investigation required by this Decree.
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2. Within 90 days after the Company’s first four Progress Reports, and within 45 days after the Company’s fifth progress report, the Diversity Monitor shall issue a report to Class Counsel and the Company setting forth:
a. Whether the Diversity Monitor has found that the Company achieved its Company-wide Benchmarks. If the Diversity Monitor has found that the Company failed to achieve any Company-wide Benchmark, the Report shall specify:
i. which Company-wide Benchmark(s) were missed and the individual restaurant(s) that missed the restaurant benchmark;
ii. what investigation the Diversity Monitor undertook to determine the cause of the failure(s);
iii. the Diversity’ Monitor’s findings regarding the cause of the failure(s) to achieve the benchmark(s); and
iv. the Diversity Monitor’s recommendation regarding remedial measures to be taken.
b. Whether the Diversity Monitor has found that Applicant Flow for any position in any restaurant has declined for two consecutive years. If so, the Diversity Monitor’s report shall specify:
i. what investigation the Diversity Monitor undertook to determine the cause of the failure(s) with respect to Applicant Flow;
ii. whether the Diversity Monitor has found that the Company or any restaurant or company employee failed to use Best Efforts to recruit African American applicants; and
iii. the Diversity Monitor’s recommendation regarding remedial measures to be taken.
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c. Whether the Diversity Monitor found that any significant racial disparities exist in the average hourly wages earned by the three benchmark job categories at each restaurant. If the Diversity Monitor finds significant racial disparities, the Report shall specify:
i. what investigation the Diversity Monitor undertook to determine the cause of the disparities;
ii. the Diversity’ Monitor’s findings regarding the cause of the disparities; and
iii. the Diversity Monitor’s recommendation regarding remedial measures to be taken.
d. Any other matters that the Diversity Monitor believes are necessary in order to implement the letter and spirit of this Decree.
F. Parties to Meet and Confer. If the Diversity Monitor has made any finding that the Company has failed to use Best Efforts to effectuate any requirement of this Decree, the parties shall, within 30 days of receipt of the Diversity Monitor’s Report, meet and confer to discuss appropriate remedial measures to be taken, if any. If the parties are unable to reach agreement at such meet and confer session, either Party may invoke the post-impasse Dispute Resolution procedures set forth in Section XX(C). XIX. COMPLIANCE REPORT TO THE COURT
At any time during the operation of the Decree, Class Counsel or the Diversity Monitor may request that a Compliance Hearing be held before the Court. Class Counsel shall provide four weeks’ notice to the Company and the Diversity Monitor before making any such request. The Diversity Monitor shall provide four weeks’ notice to Class Counsel and the Company before making any such request.
Either Class Counsel or the Diversity Monitor can also file a written report with the Court, including a report updating the Court on the status of Decree compliance. Class Counsel or the Diversity Monitor shall give counsel for the Company two weeks’ notice before filing
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such a report. Counsel for the Company may add a supplement to the report, or file its own report. XX. DISPUTE RESOLUTION AND ENFORCEMENT PROCEDURES
A. General. 1. The Diversity Monitor shall have authority to resolve all disputes arising
under the Decree, subject to limitations and standards set forth in the Decree. 2. At the request of Class Counsel or the Company, the parties shall use Best
Efforts to resolve promptly any differences or any disputes regarding the interpretation or implementation of the Consent Decree.
3. Class Counsel or the Company shall have the right to initiate steps to resolve any dispute or issue of compliance regarding any provision of the Decree subject to limitations and standards set forth in the Decree.
B. Initial Dispute Resolution Procedures. 1. If Class Counsel or the Company has good reason to believe that a
legitimate dispute exists, the initiating party shall first promptly give written notice to the other party including: (a) a reference to all specific provisions of the Decree that are involved; (b) a statement of the issue; (c) a statement of the remedial action sought by the initiating party; and (d) a brief statement of the specific facts, circumstances and any other argument supporting the position of the initiating party;
2. Within twenty one (21) days after receiving such notice, the non-initiating party shall respond in writing to the statement of facts and arguments set forth in the notice and shall provide its written position, including the facts and arguments upon which it relies in support of its position;
3. Class Counsel and the Company shall undertake good-faith negotiations, including meeting or conferring by telephone or in person and exchanging relevant documents and/or other information, to attempt to resolve the issues in dispute or alleged noncompliance;
C. Post-Impasse Dispute Resolution Procedures.
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1. The Diversity Monitor, upon motion, may permit Class Counsel or the Company to take post-settlement discovery as provided by the Federal Rules of Civil Procedure, but only as to matters relevant to the underlying claim of breach, if the Diversity Monitor determines that the informal exchange of documents or information has not been sufficient to allow Class Counsel or the Company to present the dispute upon a factual record adequate for a fair determination of the issue.
2. If the parties’ good-faith efforts to resolve the matter have failed, and after written notice of an impasse by the moving party to the non-initiating party or parties, Class Counsel or the Company may file a motion with the Diversity Monitor, with a supporting brief, requesting resolution of the dispute or the issues of non-compliance, provided however, that such motion shall be limited to the dispute(s) and/or issue(s) as to which the parties have met and conferred as described in this Section.
3. The non-moving parties will have fifteen (15) days to respond to any such motions.
4. The Diversity Monitor shall attempt within fifteen (15) days after filing of the final brief to resolve the dispute and may schedule a hearing or other proceeding, including an evidentiary hearing, to resolve the matter.
5. Within thirty (30) days of any hearing, the Diversity Monitor shall issue a written determination, including findings of fact if requested by any Party.
6. The Diversity Monitor’s determination shall become final and binding, and enforceable as though it were a Court order, if there is no appeal within 14 days from the date that the Diversity Monitor informed the Parties of his determination.
7. Class Counsel or the Company may appeal a decision of the Diversity Monitor to the Court provided that such an appeal is made within fourteen (14) days of receipt of notice of the decision by the Diversity Monitor. Any such appeal shall be brought by motion under the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the Diversity Monitor shall be affirmed unless the Court determines that the Diversity
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Monitor’s decision was an abuse of discretion under the Consent Decree. A party may seek on appeal any remedy provided by law, provided that such remedy is consistent with the provisions of this Decree.
8. Only Class Counsel or the Company shall have standing to move the Court to enforce, apply, or modify this Decree. Any individual concerned about the Company’s compliance with this Decree may so notify Class Counsel or the Diversity Monitor and request that they examine the Company compliance and seek such relief, if any, as may be appropriate.
9. In the event that any party seeks to use the dispute resolution procedure set forth in Section XX, then each party shall bear its own attorneys’ fees, costs and expenses for all work performed through resolution by the Diversity Monitor. In the event that any party seeks to appeal any decision of the Diversity Monitor, then the prevailing party in such matter shall be entitled to recover reasonable attorneys’ fees, costs and expenses incurred in such appeal from the other party, consistent with applicable standards under Title VII. Whether and to what extent any party is a prevailing party entitled to an award of fees and expenses shall be determined in the sole and absolute discretion of the Court. For purposes of this Section, Class Counsel shall be deemed a “party” to any enforcement proceedings.
10. The provisions of this Section do not prevent Class Counsel or the Company from promptly bringing an issue directly before the Court when exigent facts or circumstances require immediate Court action to prevent a serious violation of the terms of this Decree, which otherwise would be without meaningful remedy. The moving papers shall explain the facts and circumstances that allegedly necessitate immediate action by the Court. Absent a showing of exigent facts or circumstances, the Court shall refer the matter to the Diversity Monitor to resolve in accordance with procedures set forth above. If any such matter is brought before the Court requesting immediate action, the other party shall be provided with appropriate actual notice, and an opportunity to be heard on the motion, under the Local Rules of the Court and the Federal Rules of Civil Procedure. The Court in its discretion may set such
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procedures for emergency consideration as are appropriate to the particular facts or circumstances, but no such matter may be heard or considered on an ex parte basis.
11. The dispute resolution provisions set forth in Section XX are not intended to be an exclusive mechanism for resolution of complaints of discrimination by the Company. The Company’s employees complaining of violations of state and/or federal law prohibiting discrimination in employment may use the Company’s internal complaint procedure or may file charges with the EEOC, or the state or local fair employment agency, even where such violations, if proven, might also constitute violations of the provisions in this Consent Decree. Individual complaints for such alleged violations, as distinguished from pattern or practice allegations, shall not be considered to raise an issue of compliance or non-compliance with this Decree. XXI. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE
A. The Claims Administrator will open and administer an interest-bearing Qualified Settlement Fund account (“QSF”) with a unique Tax Payer Identification Number. Within five (5) business days after the Preliminary Approval Date, the Company shall pay $2.1 million into the QSF for the purpose of providing individual monetary awards to the Class Representative and other eligible members of the Settlement Class pursuant to Sections XXI(D)(1), payment of one half of the employer’s share of payroll taxes pursuant to Section XXVII(C)(2), payment of the employees’ share of payroll taxes pursuant to Section XXVII(C)(2), payment of attorneys’ fees, litigation expenses, and costs, as provided in Section XXI(D)(3), service payment for Class Representative Juanita Wynne, pursuant to Section XXI(D)(2), separate payment to Dante Byrd and Juanita Wynne for release of their non-class claims, pursuant to Section XXI(D)(4), and claims administration and monitoring of the Decree, as provided in Section XXI(D)(5).
B. After the Settlement Effective Date, and within seven business days after the Claims Administrator has informed the Company in writing that it is prepared to distribute monetary awards to the eligible members of the Settlement Class, the Company will also wire to
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the QSF one half of the employer’s share of all applicable payroll taxes on amounts treated as wages.
C. Nothing herein shall be deemed to require the Company to separate or segregate its assets into a restricted fund. The QSF will be created, managed and disbursed by the Claims Administrator under the supervision of Class Counsel. The Company will have no responsibilities or liabilities with respect to the QSF, its administration, or distributions therefrom.
D. Distribution of QSF Funds. 1. Payments to Settlement Class members. The Claims Administrator will
distribute $1.1 million from the QSF, less any amount awarded by the Court for the payment of a Service Award, less one half of the employer’s share of payroll taxes on amounts designated as wages, less the employees’ share of payroll taxes on amounts designated as wages, and less appropriate withholdings from amounts designated as wages, as set forth in Section XXVII(C)(2), to eligible members of the Settlement Class according to the Distribution Formula.
2. Service Award. The Claims Administrator will distribute a Service Award in the amount of $5,000, or such amount as is approved by the Court, not to exceed $5,000, to Class Representative Juanita Wynne. This amount will compensate Juanita Wynne in consideration for the time and effort she expended in these proceedings, including providing information and assistance in prosecuting and settling this action, responding to written discovery and document requests, and preparing for and submitting to deposition. Payment of the Court-approved service payment shall be made from the QSF no later than (7) business days after the Settlement Effective Date or the issuance of a court order approving the Motion for Service Payments, whichever is later. This amount shall not be deemed wages, and the Claims Administrator shall issue a form 1099 for this amount. The amount of the service payment, if any, shall be in addition to any amount Ms. Wynne is eligible to receive pursuant to this Consent Decree as a member of the Settlement Class and for waiver of her non-class claims.
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3. Attorneys’ Fees and costs. The Claims Administrator will distribute $900,000, or such amount as is approved by the Court, to Class Counsel for work they performed and costs they expended through the date of final settlement approval. This amount fully satisfies any statutory obligation the Company may have, or might incur, to pay attorneys’ fees, litigation expenses, and costs for and on behalf of the Plaintiffs, the Class Representative and Settlement Class for any and all work performed and costs and expenses incurred through and including the Final Approval Date. The Claims Administrator will wire from the QSF to Class Counsel the amount of Court-approved attorneys’ fees, litigation expenses, and costs for the period prior to Final Approval within seven (7) business days after the Settlement Effective Date or the issuance of a court order approving Class Counsel’s attorneys’ fees, litigation expenses, and costs, whichever is later.
4. Named Plaintiffs Dante Byrd and Juanita Wynne. The Company has agreed to pay $5,000 each to named plaintiffs Dante Byrd and Juanita Wynne to settle any and all claims arising out of their application for employment or employment with McCormick & Schmick’s, including, for Ms. Wynne, a release of any non-class claims for race harassment/hostile work environment, and, for Mr. Byrd, a release of any non-class claims arising out of his application for employment with McCormick & Schmick’s. The Claims Administrator shall pay these amounts from the QSF within seven (7) business days after the Settlement Effective date. The payment to Ms. Wynne pursuant to this subsection shall be in addition to the amount of the service payment, if any, that the Court approves and the amount that Ms. Wynne is eligible to receive pursuant to this Consent Decree as a member of the Settlement Class. Mr. Byrd is not a class member and is not eligible to receive any other payment pursuant to this Consent Decree, including any service payment.
5. Administration and Monitoring Fund. The Claims Administrator shall allocate $90,000, plus all interest earned on moneys in the QSF, plus any amount from uncashed checks pursuant to XXVII(E), as an Administration and Monitoring Fund.
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a. The Administration and Monitoring Fund shall be used to pay the expenses of the Claims Administrator pursuant to Section XXIV(D), the fees and expenses of the Diversity Monitor pursuant to Section XXVIII, the attorneys’ fees and expenses of Class Counsel incurred in implementing and monitoring the Decree pursuant to Section XXIX(A), and any taxes owing on any net income of the Qualified Settlement Fund.
b. If there are insufficient funds in the Administration and Monitoring Fund, the other items listed in XXI(D)(5)(a) will be given priority over payment to Class Counsel. If the Administration and Monitoring Fund has enough money to cover all of the items listed in XXI(D)(5)(a), Class Counsel will receive its full hourly rate for its monitoring work. Consent Decree Section XXIX(A).
c. If there is any amount remaining in the Administration and Monitoring Fund after the Decree has terminated and all outstanding bills pursuant to subsection a (above) have been paid, Class Counsel may apply to the Court for an award of such remaining amount 1) as compensation for work performed prior to the Final Approval Date that was not compensated as part of the proposed $900,000 attorneys’ fee award, and 2) as compensation for having undertaken the risk that the Administration and Monitoring Fund would not have sufficient funds to compensate Class Counsel for work performed in implementing and monitoring the Decree. In the event that the Court does not approve payment of the full amount to Class Counsel, the remaining amount shall be distributed as follows:
i. If the amount is $50,000 or more, the funds shall be distributed (less claims administration costs) on a pro-rata basis to class members who submitted timely and valid claim forms;
ii. If the amount is less than $50,000, the funds shall be distributed to a charity mutually agreed-upon by the parties.
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XXII. NOTICE TO CLASS A. Within twenty (20) days following the Preliminary Approval Date, McCormick &
Schmick’s shall provide the Claims Administrator with a computer disk containing the full name, social security number, last known address and phone number, position(s) held during the class period, start date during the class period, and, as applicable, end date of employment for each position held during the class period, for all employees employed by McCormick & Schmick’s through the Preliminary Approval Date who are potential Settlement Class members.

B. Upon receipt of the computer disc, the Claims Administrator will update the

addresses of employees provided by McCormick & Schmick’s through the National Change of

Address (“NCOA”) system.

C. Within ten (10) days of the date that the Claims Administrator receives the data

described in Section XXII(A), the Claims Administrator shall mail, via first class postage, pre-

printed Notices of Class Settlement and Claim Forms, all in the form approved by the Court in

the Preliminary Approval Order, to all known potential Settlement Class members at their last

known address or at the most recent address that may have been obtained through the NCOA.

D. The Claims Administrator will trace all returned undeliverable notices and re-mail

to the most recent address available.

XXIII.

OBJECTIONS AND OPT OUTS

Class members may object to or opt-out of the class settlement.

A. Objections. Class members objecting to the terms of the settlement must do so in

writing; the written objection must be sent to the Claims Administrator postmarked on or before

the date specified in the Preliminary Approval Order. The Claims Administrator will record the

date of receipt of the objection and forward it, by e-mail as a PDF attachment, to both

McCormick & Schmick’s and Class Counsel within two (2) business days following receipt.

Class Counsel will file the original objections with the Clerk of the Court no later than five (5)

days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain copies

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of all written objections until such time as it has completed its duties and responsibilities under this Decree.
B. Opt-Outs. 1. Class members may exclude themselves, or opt-out, of the monetary relief
provisions of the class settlement. Any request for exclusion must be in the form of a written “opt-out” statement sent to the Claims Administrator postmarked on or before the date specified in the Preliminary Approval Order. Information on how to opt-out of the settlement shall be made available by the Claims Administrator. A person wishing to opt-out must sign and date a statement which includes the following language:
I understand that I am requesting to be excluded from the class monetary settlement and that I will receive no money from the settlement fund created under the Consent Decree entered into by McCormick & Schmick’s. I understand that if I am excluded from the class monetary settlement, I may bring a separate legal action seeking damages, but may receive nothing or less than what I would have received if I had filed a claim under the class monetary settlement procedure in this case. I also understand that I may not seek exclusion from the class for injunctive relief and that I am bound by the injunctive provisions of the Consent Decree entered into by McCormick & Schmick’s. 2. The Claims Administrator shall date stamp the original of any Opt-out statement and serve copies on both McCormick & Schmick’s and Class Counsel by email as a PDF attachment within two (2) business days of receipt of such statement. Class Counsel will file a list of timely opt outs with the Clerk of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall not include in the filing with the Court the Opt Out Statements of those class members who submitted complete and timely Opt Out Rescission statements. The Claims Administrator shall retain copies of all Opt-out statements until such time as it has completed its duties and responsibilities under this Decree. C. Rescission of Class Member Opt-Outs. 1. The parties recognize that some class members who initially submit Optout statements seeking exclusion may, upon further reflection, wish to withdraw or rescind such
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Opt-out statements. The parties agree that class members shall be permitted to withdraw or rescind their Opt-out statements by submitting a “Rescission of Opt-out” statement to the Claims Administrator. The Rescission of Opt-out statement shall include the following language:
I previously submitted an Opt-out statement seeking exclusion from the class monetary settlement. I have reconsidered and wish to withdraw my Opt-out statement. I understand that by rescinding my Opt-out I may be eligible to receive an award from the claims settlement fund and may not bring a separate legal action against McCormick & Schmick’s seeking damages with respect to the Released Claims. I further understand that in order to receive an award from the claims settlement fund, I must submit a complete and timely claim form. 2. A class member submitting such a rescission statement shall sign and date the statement and send it to the Claims Administrator postmarked no later than the deadline for the claims filing period specified in the Preliminary Approval Order. 3. The Claims Administrator shall stamp the date received on the original of any Rescission of Opt-out statement and serve copies to counsel for McCormick & Schmick’s and Class Counsel by email as a PDF attachment no later than (2) days after receipt thereof. Class Counsel will file the date-stamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Fairness Hearing. The Claims Administrator shall retain copies of all Rescissions of Opt-out statements until such time as the Claims Administrator is relieved of its duties and responsibilities under this Decree. 4. McCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree prior to the Settlement Effective Date if five percent (5%) or more of the Class Members opt-out of the monetary relief provisions of the Consent Decree and do not rescind their opt-out statements. If McCormick & Schmick’s exercises its unilateral right to revoke the Consent Decree pursuant to this section, it shall inform Class Counsel within ten business days after the deadline for postmarking opt out statements. In the event that McCormick & Schmick’s exercises its unilateral right to revoke the Consent Decree pursuant to this section, all monies in
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the QSF, and all income earned thereon, shall be immediately returned to the entity that funded

the QSF.

XXIV.

CLAIMS ADMINISTRATION

A. The Claims Administrator shall (1) prepare and mail settlement notices and claim

forms to class members; (2) receive and evaluate claims eligibility; (3) seek additional

information from claimants, when appropriate; (4) receive, serve, and file opt-out statements,

rescission of opt-out statements, and objections; (5) respond to questions from potential class

members; (6) implement the allocation plan; (7) maintain a toll-free number for communicating

with class members; (8) establish and operate a website designed to provide information to and

communication with class members; (9) administer the QSF and the Administration and

Monitoring Fund; and (10) perform any other duties necessary to carry out its responsibilities set

forth in this Decree.

B. The Claims Administrator shall make notices and claim forms available to

potential class members who submit oral, e-mail, or written requests for notices or claim forms.

If a potential class member requests that a notice or claim form be sent by mail, the Claims

Administrator shall mail the requested notice or claim form via first class mail within one (1)

business day after receiving a request. If a potential class member requests a notice or claim

form to be sent by email or fax, the Claims Administrator shall email or fax the requested notice

or claim form within (1) business day after receiving a request.

C. If McCormick & Schmick’s, or its counsel, receives requests for notices, claim

forms or for information regarding the class settlement, it shall refer such requestors to the toll-

free number established by the Claims Administrator for the purpose of administering this

settlement. The requestors shall be informed that any requests for notices, claim forms or

information should be directed to the Claims Administrator. The Claims Administrator shall

retain copies of all written requests for notices, claim forms and all records of oral or e-mail

requests for notices or claim forms until such time as it has completed its duties and

responsibilities under this Decree.

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D. The fees, costs, and expenses of the Claims Administrator shall be paid from the Administration and Monitoring Fund, established pursuant to XXI(D)(5). The Claims Administrator shall forward to Class Counsel invoices for work performed pursuant to this Decree. Unless Class Counsel objects, the Administration and Monitoring Fund shall pay the Claims Administrator the amount invoiced 30 days after the date of the invoice.
Class Counsel reserves the right to challenge bills of the Claims Administrator if the amount of time billed is excessive for the work performed. Such challenges will be reviewed by the Court. XXV. SUBMISSION OF CLAIM FORMS
A. To be eligible for payment of a monetary award from the QSF, an individual must:
1. Complete a claim form signed under penalty of perjury and send it to the Claims Administrator postmarked by the claim filing deadline set forth in the Preliminary Approval Order. The claim form must be postmarked on or before such date in order to be considered timely, unless good cause is shown for failure to have such timely postmark. All claim forms must be signed under penalty of perjury to be considered.
2. Provide her or his full name, current address, current social security number, and other name(s) used while applying for or being employed by McCormick & Schmick’s; and
3. State that she or he is African American or Black, or is more than one race, one of which is African American or Black.
B. The Claims Administrator shall be available through the toll-free telephone number and via e-mail through the Claims Website to respond to requests from class members for assistance in completing and filing claim forms. Class Counsel shall also be available to consult with and provide assistance to potential class members who request assistance in completing their claims forms.
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XXVI.

REVIEW OF CLAIM FORMS

A. Incomplete Claim Forms. The Claims Administrator shall make the

determination as to whether a claim form is complete. If it is not complete, the Claims

Administrator shall, within seven (7) days of receipt of the claim form, request additional

information from the claimant, if it appears that such additional information would complete the

Claim Form. Such requests for information shall be in writing and shall specify the information

necessary to complete the claim form. The request for information will be sent via first class

mail and inform the claimant that a response must be returned no later than thirty days from the

date the request for information was mailed. The claimant must provide the requested

information, signed under penalty of perjury, to the Claims Administrator by mail with a

postmark no later than thirty days from the date of the mailed request for information. Such

additional information shall be considered part of the original claim form and will relate back to

the original filing date. The failure of a claimant to timely respond to the request for information

may result in the denial of the claim.

B. Deceased Claimants. Claims may be filed by deceased claimants through

representatives of their estate if a photocopy of a death certificate and a statement of

representation is included with the claim form. Claim payments shall be made payable to the

estate of the deceased claimant.

C. Late-Filed Claims. For claims received after the filing deadline, the Claims

Administrator shall notify late-fling claimants that their claims are untimely and that they are not

eligible for any monetary award, unless the Court determines that the Claimant has established

good cause for filing late, and that accepting the untimely claim form will not delay the

Settlement Effective Date or the distribution of funds pursuant to this Consent Decree.

D. Appeals of Claims Eligibility.

1. Within ninety (90) days of the close of the claims filing period, the Claims

Administrator shall provide written notice to inform all ineligible claimants of their ineligibility

for monetary relief. Any claimants wishing to seek review of their ineligibility determinations

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must do so by returning a written request for review to the Claims Administrator by mail with a postmark no later than twenty-one days from the date of the notice of claim ineligibility. Failure to file a timely request for review shall bar a claimant from challenging a determination of ineligibility.
2. The Claims Administrator shall resolve the requests for review based on the written request for review and any other documentation or written information submitted by the claimant, or deemed necessary by the Claims Administrator. The Claims Administrator may seek further written information from the claimant as to the basis of their request and may consider the written arguments of counsel for McCormick’s.
3. The Claims Administrator shall attempt to expeditiously resolve any request for review within sixty days after the filing of the request for review. The Claims Administrator’s decisions shall be communicated to the claimant in writing and shall be final, binding and non-appealable.
E. Claimant Information Provided by McCormick & Schmick’s The parties understand and agree that McCormick & Schmick’s may possess information that may assist in the determination of eligibility of potential class members for monetary compensation. McCormick & Schmick’s shall reasonably cooperate in providing such information which Class Counsel or the Claims Administrator deems reasonably necessary to assist in determining the eligibility of any class member for monetary relief. McCormick & Schmick’s shall attempt to provide such information within fourteen days of any written request for the information. Neither Class Counsel nor the Claims Administrator shall be entitled to receive information that is protected by attorney-client or work product privilege. F. Confirmation of Receipt of Claim Form The Claims Administrator website shall provide a means for class members to obtain confirmation of receipt of their claim forms. In addition, the Claims Administrator shall respond to all requests from class member for confirmation of receipt of claims forms.
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XXVII.

PLAN OF ALLOCATION

A. Distribution Formula.

1. Each eligible class member shall receive 1 point for each full pay period

worked in any Front of the House position, and 3 points for each full pay period worked in any

Back of the House position.

2. Sixty (60) days after the claims filing deadline, the Claims Administrator

shall total the points applicable to all eligible claimants, determine each eligible claimant’s

proportionate share of the total points, and allocate each eligible claimant’s proportionate share

of the Settlement. Once this formula is completed, the Claims Administrator shall inform Class

Counsel and the Company that it has completed the calculations required by the Plan of

Distribution.

B. Allocation of Monetary Awards. The monetary awards shall be allocated to lost

wages, compensatory damages, and interest, with 30% allocated to lost wages, 50% allocated to

compensatory damages, and 20% allocated to interest.

C. Distribution of the Monetary Awards.

1. As soon as practicable after 1) the Settlement Effective Date and 2)

making the calculations required by the allocation plan set forth in Section XXVII(A), above, the

Claims Administrator shall distribute the monetary awards to eligible class members via first

class mail. The checks shall be invalid if not cashed within 180 days of the issue date.

2. Any amounts allocated to lost wages shall be subject to withholding for

federal and state income and payroll taxes. Each Class Member will be responsible for all

income taxes on his or her monetary award, and the Company shall be responsible for one half of

the employer’s share of all applicable payroll taxes. The Claims Administrator will inform

McCormick & Schmick’s of the amount that is one half of the employer’s share of the payroll

taxes, and the Company shall pay such amount as provided in Section XXI(B). Any amounts

designated as interest shall not be subject to withholding and shall be reported, if required, to the

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IRS on Form 1099-INT. The amounts paid for emotional distress shall not be subject to withholding and shall be reported to the IRS on Form 1099-MISC.
3. Included with the check due to the eligible claimant will be a statement showing the gross amount of the payment and an itemized statement of all deductions made. Flat rate deductions from gross amounts that are determined to be wage payments will be made for federal and state income taxes. The employee’s share of social security and Medicare tax, and any local income or payroll taxes will be based on the rates in effect with the federal and local governments.
4. The Claims Administrator will be responsible for preparing the filing of all appropriate tax filings and reports including, but not limited to, W-2 and 1099 forms for all eligible claimants and the Class Representative for their payments from the QSF, as well as any required for the QSF. The Claims Administrator will also be responsible for reporting and remitting to the appropriate taxing authorities the employer’s and employees’ shares of payroll taxes.
D. Confidentiality of Claimant Information. McCormick & Schmick’s counsel and payroll department will only be provided with the names and social security numbers of class members who filed claims on a need-to-know basis. The identity of the claimants will not be disclosed to McCormick Restaurant management.
E. Use of Residual Funds from Uncashed Checks. It is the intention of the parties to distribute completely the funds in the QSF. The Claims Administrator will use social security numbers to attempt to get better addresses for any class members whose checks are returned, and will remail the uncashed checks to the new addresses. The Claims Administrator will also attempt to telephone any class member who has not cashed a check of at least $1,000. If, despite those efforts, checks remain uncashed after they have become invalid, the remaining sum shall be paid to the Administration and Monitoring Fund.
F. Report from Claims Administrator. Within thirty days of the distribution of the monies from the QSF to the eligible Class members, the Claims Administrator shall furnish an
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accounting of the distributions from the QSF to the Court with copies to Class Counsel and

McCormick & Schmick’s. Within thirty days of the completion of the Term of the Decree the

Claims Administrator shall furnish a final accounting of all the distribution from the QSF to the

Court, Class Counsel and McCormick & Schmick’s.

XXVIII. DIVERSITY MONITOR FEES AND EXPENSES

The Diversity Monitor shall be compensated exclusively from the Administration and

Monitoring Fund for reasonable time billed and expenses incurred in connection with performing

his duties under this decree. The Diversity Monitor will receive payment on the basis of his or

her standard hourly rate of $650 (and reasonable annual increases) and reimbursement for out-

of-pocket expenses, thirty days after submitting to the Administration and Monitoring Fund and

Class Counsel a bill including an itemized statement of time spent and work performed and

expenses and costs incurred.

Class Counsel reserves the right to challenge bills of the Diversity Monitor if the amount

of time billed is excessive for the work performed. Such challenges will be reviewed by the

Court.

XXIX.

POST-APPROVAL ATTORNEYS’ FEES AND EXPENSES

A. In addition to the amount paid for attorneys’ fees and expenses through the Final

Approval Date pursuant Section XXI(D)(3), Class Counsel may be awarded their reasonable

attorneys’ fees, litigation expenses, and costs for work required to be performed by Class

Counsel after the Final Approval Date pursuant to this Decree, subject to the limits of the

Administration and Monitoring Fund. Said attorneys’ fees, expenses and costs shall be paid

exclusively from the Administration and Monitoring Fund. Class Counsel will receive payment

on the basis of his or her standard hourly rates (set forth in Appendix 1 hereto, plus reasonable

annual increases) and reimbursement for out-of-pocket expenses, thirty days after submitting to

the Administration and Monitoring Fund a bill including an itemized statement of time spent and

work performed and expenses and costs incurred.

B. In addition to the foregoing amounts, the Company agrees that in the event that

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the Company or any of its officers, managers or supervisors is held in contempt violation of this Decree, Class Counsel shall be paid their reasonable costs, expenses and attorneys’ fees for the enforcement proceedings resulting in the contempt holding, as though the Class Representative then were a prevailing party in Title VII litigation, based on extent to which counsel prevailed. XXX. MISCELLANEOUS PROVISIONS
A. Modification and Severability of the Consent Decree. 1. Whenever possible, each provision and term of this Decree shall be
interpreted in such a manner as to be valid and enforceable; provided, however, that in the event that after Final Approval hereof any provision or term of this Decree should be determined to be or rendered unenforceable on collateral review, all other provisions and terms of this Decree and the application thereof to all persons and circumstances subject thereto shall remain unaffected to the extent permitted by law. If any application of any term of this Decree to any specific person or circumstance should be determined to be invalid or unenforceable, the application of such provision or term to other persons or circumstances shall remain unaffected to the extent permitted by law.
2. Class Counsel and the Company may jointly agree to modify the Decree in writing signed by both Class Counsel and the Company.
3. In the event that changed or other circumstances make a modification of the Decree necessary to ensure its purposes are fully effectuated, but good faith negotiations seeking such modifications are unsuccessful, any party to the Decree shall have the right to move the Court to modify this Decree. Such motion shall be granted only upon the movant proving to the Court by clear and convincing evidence that changed or other circumstances make such modification necessary. The procedures for negotiations to modify this Decree shall be the same as those set forth in Section XX regarding Decree enforcement.
B. Duty to Support and Defend the Decree. Class Representative, Class Counsel, and the Company each agree to abide by all the terms of this Decree in good faith and to support
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it fully, and shall use Best Efforts to defend this Decree from any legal challenge, whether by appeal or collateral attack.
C. Failure to obtain final approval of Consent Decree. In the event that this Consent Decree does not become final and effective in its current form, for whatever reason, this entire Consent Decree shall become null and void and of no force or effect.
D. Execution in Counterparts. The parties agree that the Decree may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be part of the same Decree.
IT IS SO ORDERED, ADJUDGED AND DECREED this 8th day of August, 2008.
______________________________ Hon. Claudia Wilken United States District Judge Northern District of California
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STIPULATED, ACKNOWLEDGED AND AGREED TO BY: CLASS COUNSEL

James M. Finberg (SBN 114850) Eve H. Cervantez (SB 164709) Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-Mail: jfinberg@altshulerberzon.com E-Mail: ecervantez@altshulerberzon.com

Kelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com E-Mail: jsagafi@lchb.com

Robert Rubin (SBN 085084) THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone (415) 543-9444 Facsimile: (415) 543-0296 E-Mail: rrubin@lccr.com

Thomas A. Warren THOMAS A. WARREN LAW OFFICES 2032 Thomasville Rd #D Tallahassee, FL 32308-0734 Telephone: (850) 385-1551 Facsimile: (850) 385-6008 Email: tw@nettally.com

Bill Lann Lee (SBN 108452) Todd F. Jackson (SBN 202598) Vincent Cheng (SBN 230827) Lindsay Nako (SBN 239090) LEWIS, FEINBERG, LEE, RENAKER &
JACKSON, P.C. 1300 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com Email: lnako@lewisfeinberg.com

Eric Kingsley (SBN 185123) KINGSLEY & KINSGSLEY 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990-8300 Facsimile: (818) 990-2903 Email: kingsleylaw@aol.com

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COUNSEL FOR MCCORMICK & SCHMICK’S
Gilmore F. Diekmann, Jr. (SBN 50400) Eric A. Hill (SBN 173247) Kamili Williams Dawson (SBN 193264) SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Email: gdiekmann@seyfarth.com Email: ehill@seyfarth.com Email: kdawson@seyfarth.com
Gerald L. Maatman, Jr. (pro hac vice) SEYFARTH SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, IL 60603-5577 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 Email: gmaatman@seyfarth.com
Michael L. Gallion (SBN 189128) Joshua A. Rodine (SBN 237774) William C. Thomas (SBN 241789) SEYFARTH SHAW LLP 2029 Century Park East, #3300 Los Angeles, CA 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Email: mgallion@seyfarth.com Email: jrodine@seyfarth.com Email: wthomas@seyfarth.com
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1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP
3 177 Post Street, Suite 300 San Francisco, CA 94108
4 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
5 E-Mail: jfinberg@altshulerberzon.com E-Mail: ecervantez@altshulerberzon.com
6 E-Mail: revenson@altshulerberzon.com

7 Kelly M. Dermody (SBN 171716)

Jahan C. Sagafi (SBN 224887)

8 LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

9 275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

10 Telephone: (415) 956-1000

Facsimile: (415) 956-1008

11 E-Mail: kdermody@lchb.com

E-Mail: jsagafi@lchb.com

12

Attorneys for Plaintiffs and proposed Classes

13 Additional Counsel Listed on Signature Page of

Motion for Preliminary Settlement Approval

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

16 JUANITA WYNNE and DANTE BYRD,

17

on behalf of themselves and classes of those similarly situated,

18

Plaintiffs,

19

v.

20 MCCORMICK & SCHMICK’S

21

SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK

22 RESTAURANT CORP.,

23

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. C-06-3153 CW
REVISED ORDER (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND PROPOSED CONSENT DECREE; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES; (3) APPROVING AND DIRECTING DISTRIBUTION OF NOTICE OF THE SETTLEMENT; AND (4) SETTING A SCHEDULE FOR THE FINAL SETTLEMENT APPROVAL PROCESS

24 25

) ) ) ) )

DATE: TIME: PLACE: JUDGE:

April 3, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken

26

)

27

28

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Case4:06-cv-03153-CW Document82 Filed04/04/08 Page2 of 10

1

Having reviewed Plaintiffs’ Motion for an Order (1) Preliminarily Approving Class

2 Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement

3 Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a

4 Schedule for the Final Settlement Approval Process, the Memorandum of Points and Authorities

5 in support thereof, the Declaration of James M. Finberg in support thereof, the proposed Consent

6 Decree, Notice and Claim Form, and the arguments of counsel, along with the files and records

7 of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows:

8 I. PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES

9

A. For settlement purposes, the Parties have proposed provisional certification of the

10 following settlement classes (terms defined in the proposed Consent Decree attached hereto as

11 Exhibit 1):

12

1. For purposes of the injunctive and declaratory relief provided in the

13 Decree, an injunctive-relief settlement class certified under Federal Rules of Civil Procedure

14 23(a) and 23(b)(2) and consisting of “All African Americans employed by McCormick &

15 Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the

16 date the Decree terminates;” (“Front of the House” is defined in Section Section III(O) of the

17 Decree; “Back of the House” is defined in Section III (C) of the Decree).

18

2. For purposes of the monetary relief provided in the Decree, a monetary

19 relief settlement class certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and

20 consisting of: “All African Americans employed by McCormick & Schmick’s in Front of the

21 House or Back of the House positions between May 15, 2002 and the date of the entry of this

22 order, except those who file a timely request to opt out of the monetary relief provisions of the

23 Decree.”

24

B. The injunctive relief and monetary relief settlement classes allege claims for race

25 discrimination brought under the Civil Rights Act of 1964 (both disparate impact and disparate

26 treatment), and 42 U.S.C. § 1981, and those class members who worked in California during the

27 class period allege violations of the California Fair Employment and Housing Act.

28

C. The Court hereby provisionally FINDS and CONCLUDES that the injunctive relief

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1 settlement class set forth above satisfies all of the requirements for certification under Rule 23(a)

2 and Rule 23(b)(2). The class is sufficiently numerous (approximately 3,000 persons) that joinder

3 is impracticable. The members of the class share common issues of fact and law regarding (1)

4 whether McCormick & Schmick’s employment policies and practices were intentionally

5 discriminatory and/or had an adverse impact on African Americans; and (2) whether Title VII or

6 Section 1981 have been violated. Juanita Wynne’s claims are typical of those of the class she

7 represents because they arise out of the same policies, practices and course of conduct alleged on

8 behalf of all class members. Juanita Wynne is an adequate representative of the class she

9 represents, because her interests are co-extensive with those of class members, and she has

10 retained experienced counsel to represent the class. Plaintiffs are seeking meaningful

11 declaratory and injunctive relief applicable to the class as a whole. Accordingly, the Court

12 hereby provisionally CERTIFIES the injunctive-relief settlement class under Rule 23(a) and

13 Rule 23(b)(2).

14

D. The Court also hereby provisionally FINDS and CONCLUDES that the monetary

15 relief settlement class described above satisfies all of the requirements for certification under

16 Rule 23(a) and Rule 23(b)(2). As discussed in Paragraph 3, above, the requirements of Rule

17 23(a) - numerosity, commonality, typicality, and adequacy appear to be satisfied. In addition,

18 the Court provisionally concludes that the monetary relief settlement class satisfies the

19 requirements for certification under Rule 23(b)(3). Questions of law or fact common to the class

20 predominate over individualized issues, and a class action is superior to other available methods

21 for the fair and efficient adjudication of the controversy. Because certification of the monetary

22 relief settlement class is proposed in the context of a settlement, the Court need not inquire

23 whether the case, if tried as a class action, would present intractable management problems.

24 Accordingly, the Court provisionally CERTIFIES the monetary-relief settlement class as set

25 forth above, under Rules 23(a) and 23(b)(3).

26 II. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL

27

A. The Court finds that Class Representative Juanita Wynne has claims typical of class

28 members and is an adequate representative of the class members. The Court appoints her to

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1 serve as Class Representatives of both the injunctive relief and monetary relief classes.

2

B. The Court finds that Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein,

3 LLP; the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Thomas A.

4 Warren Law Offices; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; and Kingsley &

5 Kinsgsley have extensive experience and expertise in prosecuting employment discrimination

6 class action cases. The Court appoints these firms as Class Counsel for both the injunctive relief

7 and monetary relief classes.

8 III. PRELIMINARY APPROVAL OF CONSENT DECREE

9

A. The Court has reviewed the terms of the [Proposed] Consent Decree attached as

10 Exhibit 1, including specifically the injunctive relief provisions and the plan of allocation. The

11 Court also reviewed the Motion papers and the declaration of James M. Finberg, which describe

12 Class Counsel’s legal and factual investigation, and the settlement mediation process. Based on

13 review of those papers, and the Court’s familiarity with this case, the Court concludes that the

14 settlement and Consent Decree are the result of extensive, arms’ length negotiations between the

15 Parties after Class Counsel had investigated the class claims and became familiar with the

16 strengths and weakness of plaintiffs’ case. The assistance of an experienced mediator in the

17 settlement process confirms that the settlement is non-collusive. Based on that review, and the

18 Court’s familiarity with the issues in the case, the Court concludes that the proposed Consent

19 Decree has no obvious defects and is within the range of possible settlement approval, such that

20 notice to the Class is appropriate.

21

B. It is therefore ORDERED that:

22

1. The [Proposed] Consent Decree and the settlement it embodies are hereby

23 PRELIMINARILY APPROVED. Final approval and entry of the Consent Decree is subject to

24 the hearing of any objections of members of the Settlement Class to the proposed settlement

25 embodied in the Consent Decree.

26

2. Pending determination of the fairness of the Consent Decree, all further

27 litigation of this action is hereby STAYED.

28

3 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document82 Filed04/04/08 Page5 of 10
1 IV. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS NOTICE AND CLAIM FORM
2 A. The Parties have also submitted for this Court’s approval a proposed Class Notice and
3 a proposed Claim Form, which the Court has carefully reviewed. The Court finds and concludes
4 as follows:
5 1. The proposed Class Notice is the best notice practical under the
6 circumstances and allows Class Members a full and fair opportunity to consider the proposed
7 Settlement. The proposed plan for distributing the Class Notice and Claim Form, which are
8 attached as Exhibits 2 and 3 hereto, likewise is a reasonable method calculated to reach all
9 members of the Class who would be bound by the Settlement. Under this plan, the Claims
10 Administrator will distribute the Class Notice and Claim Form to Class Members, all of whom
11 are current or former employees of the Company, by first class U.S. Mail to their last known
12 addresses, as updated by the USPS NCOA service. There is no additional method of distribution
13 that would be reasonably likely to notify Class Members who may not receive notice pursuant to
14 the proposed distribution plan.
15 2. The Class Notice fairly, plainly, accurately, and reasonably informs Class
16 Members of: (1) the nature of this litigation, the settlement class, the identity of Class Counsel,
17 and the essential terms of the Settlement and Decree, including injunctive relief and the plan of
18 allocation; (2) Class Counsel’s forthcoming application for attorneys’ fees, the proposed service
19 payments to the Class Representative, and other payments that will be deducted from the
20 settlement fund; (3) how to participate in the Settlement; (4) this Court’s procedures for final
21 approval of the Settlement Agreement and Settlement, and about class members’ right to appear
22 through counsel if they desire; (5) how to challenge or opt-out of the Settlement, if they wish to
23 do so; and (6) how to obtain additional information regarding this litigation, the Settlement, and
24 the Decree.
25 3. Similarly, the proposed Notice and Claim Form allow members of the
26 Settlement Classes a full and fair opportunity to submit a claim for proceeds in connection with
27 the Settlement. The Notice and Claim Form fairly, accurately, and reasonably inform Settlement
28
4
[Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document82 Filed04/04/08 Page6 of 10

1 Class Members that failure to complete and submit a Claim Form, in the manner and time

2 specified, shall constitute a waiver of any right to obtain any share of the settlement payment.

3

4. The Court FINDS and CONCLUDES that the proposed plan for

4 distributing the Notice and Claim Form (“Notice Materials”) will provide the best notice

5 practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due

6 process requirements.

7

5. Accordingly, the Court hereby ORDERS as follows:

8

a. The form of the Notice Materials is approved.

9

b. The manner of distributing the Notice Materials is approved.

10

c. Promptly following the entry of this Order, the Claims Administrator

11 shall prepare final versions of the Notice Materials, incorporating into the Notice the relevant

12 dates and deadlines set forth in this Order.

13

d. Within twenty days following entry of this order, McCormick &

14 Schmick’s shall provide the Claims Administrator with computer readable information, in a

15 format acceptable to the Claims Administrator, that contains the full names, social security

16 numbers, last known addresses, position(s) held during the class period, and start dates and any

17 applicable end dates of employment for each position held with McCormick & Schmick’s from

18 May 15, 2002 to the date of the entry of this order of all persons who are potential Settlement

19 Class members.

20

e. Prior to the mailing of the Notice Materials, the Claims

21 Administrator will update any new address information for potential class members as may be

22 available through the National Change of Address (“NCOA”) system.

23

f. Within ten (10) days of the date that the Claims Administrator

24 receives the data described in paragraph (d), above, the Claims Administrator shall mail the

25 Notice Materials, via first class mail, to all known potential settlement class members at their last

26 known address or the most recent address that may have been obtained through the NCOA. The

27 Claims Administrator will trace all returned undeliverable notices and re-mail them to the most

28 recent address available.

5 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document82 Filed04/04/08 Page7 of 10

1

g. The Claims Administrator shall take all reasonable steps to obtain

2 the correct address of any Class Members for whom the notice is returned by the post office as

3 undeliverable, and otherwise to provide the Notice Materials to such persons. The Claims

4 Administrator shall notify Class Counsel of any mail sent to Class Members that is returned as

5 undeliverable after the first mailing as well as any such mail returned as undeliverable after any

6 subsequent mailing(s).

7

h. The Claims Administrator shall take all other actions in

8 furtherance of claims administration as are specified in the Decree.

9 V. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT

10

A. Fairness Hearing

11

The Court hereby schedules a hearing to determine whether to grant final certification of

12 the Settlement Classes, and final approval of the Consent Decree (including the proposed plan of

13 allocation, injunctive relief, payment of attorneys’ fees and costs, and service payments to the

14 Class Representatives) (the “Fairness Hearing”), for August 7, 2008 at 2:00 p.m.

15

B. Deadline to Request Exclusion from the Settlement

16

1. Class members may exclude themselves from, or opt-out of, of the

17 monetary relief provisions of the class settlement. Any request for exclusion must be in the form

18 of a written “opt-out” statement sent to the Claims Administrator. A person wishing to opt-out

19 must sign a statement which includes the following language:

20

I understand that I am requesting to be excluded from the class monetary

settlement and that I will receive no money from the settlement fund created

21

under the Consent Decree entered into by McCormick & Schmick’s. I understand

that if I am excluded from the class monetary settlement, I may bring a separate

22

legal action seeking damages, but may receive nothing or less than what I would

have received if I had filed a claim under the class monetary settlement procedure

23

in this case. I also understand that I may not seek exclusion from the class for

injunctive relief and that I am bound by the injunctive provisions of the Consent

24

Decree entered into by McCormick & Schmick’s.

25

2. To be effective, any opt-out statement must be sent to the Claims

26 Administrator postmarked no later than 60 days after the date that the Claims Administrator first

27 mails the Class Notice to the Class. Only those class members who request exclusion in the time

28 and manner set forth herein shall be excluded from the class for monetary relief purposes.

6 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document82 Filed04/04/08 Page8 of 10

1 Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and provisions of the

2 Consent Decree concerning monetary relief shall have no binding effect on any person who

3 makes a timely request for exclusion in the manner required by this Order.

4

3. The Claims Administrator shall stamp the date received on the original of

5 any opt-out statement and serve copies on Class Counsel and counsel for McCormick &

6 Schmick’s no later than two business days after receipt of such statement. Class Counsel will

7 file the date-stamped originals with the Clerk of the Court no later than five (5) business days

8 prior to the date of the Fairness Hearing

9

4. Class members shall be permitted to withdraw or rescind their opt-out

10 statements by submitting a “rescission of opt-out” statement to the Claims Administrator. The

11 rescission of opt-out statement shall include the following language:

12

I previously submitted an Opt-out statement seeking exclusion from the class

monetary settlement. I have reconsidered and wish to withdraw my Opt-out

13

statement. I understand that by rescinding my Opt-out I may be eligible to

receive an award from the claims settlement fund and may not bring a separate

14

legal action against McCormick & Schmick’s seeking damages with respect to the

Released Claims. I further understand that in order to receive an award from the

15

claims settlement fund, I must submit a complete and timely claim form.

16 To be effective, any opt-out recission statement must sent to the Claims Administrator

17 postmarked no later than the deadline for the claims filing period specified herein.

18

5. The Claims Administrator shall stamp the date received on the original of

19 any rescission of opt-out statement and serve copies on Class Counsel and counsel for

20 McCormick & Schmick’s no later than two business days after receipt of such statement. Class

21 Counsel will file the date-stamped originals with the Clerk of the Court no later than five (5)

22 business days prior to the date of the Fairness Hearing.

23

C. Defendant’s Right to Rescind Agreement

24

McCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree

25 prior to the Settlement Effective Date if five percent (5%) or more of the Class Members opt-out

26 of the monetary relief provisions of the Consent Decree and do not rescind their opt-out

27 statements. To exercise this option, the Company must inform Class Counsel that it will revoke

28 the Consent Decree within 10 business days of the deadline for postmarking opt out statements.

7 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document82 Filed04/04/08 Page9 of 10

1 In the event that McCormick & Schmick’s exercises its unilateral right to revoke the Consent

2 Decree pursuant to this section, all monies in the Settlement Fund, and all income earned

3 thereon, shall be immediately returned to the entity that funded the Settlement Fund.

4

D. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree

5

Class members objecting to the terms of the settlement must do so in writing. To be

6 effective, any objection must be sent to the Claims Administrator postmarked no later than 60

7 days after the date that the Claims Administrator first mails the Class Notice to the Class. The

8 Claims Administrator will record the date of receipt of the objection and forward it to both

9 McCormick & Schmick’s and Class Counsel within two (2) business days following receipt.

10

Class Counsel will file the original objections with the Clerk of the Court no later than

11 ten (10) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall

12 retain copies of all written objections until such time as it has completed its duties and

13 responsibilities under this Decree.

14

E. Deadline for Submitting Claims Forms

15

A Class Member who does not opt out will be eligible to receive his or her proportionate

16 share of the settlement benefit. To receive this share, such a Class Member must properly and

17 timely complete a Claim Form in accordance with the terms of the Consent Decree. To be

18 effective, the Claim Form must be sent to the Claims Administrator postmarked no later than 70

19 days after the initial mailing of the Class Notice to class members. Settlement Class members

20 who do not file timely and valid Claim Forms shall nonetheless be bound by the judgment and

21 release in this action as set forth in the proposed Consent Decree, unless that Settlement Class

22 member timely opts out of the Settlement.

23

It shall be the sole responsibility of each member of the Settlement Class who seeks a

24 monetary award to notify the Claims Administrator if the class member changes his or her

25 address. Failure of a Settlement Class member to keep the Claims Administrator apprised of his

26 or her address may result in the claim being denied or forfeited.

27

F. Deadline for Submitting Motion Seeking Final Approval

28

8 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document82 Filed04/04/08 Page10 of 10

1

No later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final

2 Approval of the Settlement and Consent Decree. On or before one week before the Fairness

3 Hearing, the Parties may file with the Court a reply brief responding to any filed objections.

4

G. Deadline for Petition for Attorneys Fees

5

Class Counsel shall file with this Court their petition for an award of attorneys’ fees and

6 reimbursement of expenses no later than 35 days before the Fairness Hearing. Class Counsel

7 may file a reply to any opposition to memorandum filed by any objector no later than one week

8 before the Fairness Hearing.

9

H. Deadline for Petition for Approval of Service Payments

10

Class Counsel shall file with this Court their petition for an award of service payments to

11 the Class Representatives no later than 35 days before the Fairness Hearing. Class Counsel may

12 file a reply to any opposition memorandum filed by any objector no later than one week before

13 the Fairness Hearing.

14 VI. PLAINTIFFS’ AND CLASS MEMBERS’ RELEASE

15

If, at the Fairness Hearing, this Court grants Final Approval to the Settlement and

16 Consent Decree, each individual Settlement Class member who does not timely opt out will

17 release their claims, as set forth in Consent Decree, by operation of this Court’s entry of the

18 Judgment and Final Approval, regardless of whether he or she submits a Claim Form or receives

19 any share of the Settlement Fund.

20 VII. APPOINTMENT OF CLAIMS ADMINISTRATOR

21

Rosenthal & Company, LLC, of Novato, California is hereby appointed Claims

22 Administrator to carry out the duties set forth in this Order and the Consent Decree.

23

IT IS SO ORDERED

24

4/4/08

Dated: __________________

25

26

______________________________ The Hon. Claudia Wilken United States District Judge

27

28

9 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW

 
 Case4:06-cv-03153-CW Document108 Filed08/07/08 Page1 of 2

1 James M. Finberg (SBN 114850)

2

Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP

3 177 Post Street, Suite 300 San Francisco, CA 94108
4 Telephone: (415) 421-7151

5

Facsimile: (415) 362-8064 E-Mail: jfinberg@altshulerberzon.com

6 E-Mail: ecervantez@altshulerberzon.com E-Mail: revenson@altshulerberzon.com

7

Kelly M. Dermody (SBN 171716) 8 Jahan C. Sagafi (SBN 224887)

9 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
10 275 Battery Street, 30th Floor

San Francisco, CA 94111-3339 11 Telephone: (415) 956-1000

12 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com

13 E-Mail: jsagafi@lchb.com

14 Attorneys for Plaintiffs and proposed Classes 15 Additional Counsel on the signature page

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

OAKLAND DIVISION

19 20

JUANITA WYNNE and DANTE BYRD, on behalf of themselves and classes of those similarly situated,

) ) ) )

21

Plaintiffs,

) )

22

v.

) )

23 24 25

MCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK RESTAURANT CORP.,

) ) ) ) )

26

Defendants.

) )

Case No. C-06-3153 CW
ORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS
Hearing Date: August 7, 2008 Hearing Time: 2:00 p.m. Courtroom of Hon. Claudia Wilken

27

28
[PROPOSED] ORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS, Case No. C-06-3153 CW

Case4:06-cv-03153-CW Document108 Filed08/07/08 Page2 of 2

1

The Court having considered Class Counsel’s Motion for Award of Attorneys’ Fees and

2 Reimbursement of Costs and Expenses, and the supporting declarations, and being familiar with

3 this action, HEREBY FINDS AS FOLLOWS:

4

1. Notice of the requested award of attorneys’ fees and reimbursement of costs and

5 expenses was directed to Class Members in a reasonable manner, and complied with Rule

6 23(h)(1) of the Federal Rules of Civil Procedure;

7

2. Class Members and any party from whom payment is sought have been given the

8 opportunity to object in compliance with Fed. R. Civ. P. 23(h)(2);

9

3. No class member has objected to the requested fees and expenses;

10

4. The time spent by Class Counsel on this case was reasonable;

11

5. The rates used by Class Counsel are reasonable;

12

6. The attorneys’ fees request, which is for less than Class Counsel’s lodestar is

13 reasonable;

14

7. The costs and expenses incurred by Class Counsel are reasonable;

15

8. The requested award of $900,000.00 for attorneys’ fees and costs and expenses is fair

16 and reasonable.

17 Accordingly, IT IS HEREBY ORDERED as follows:

18 Class Counsel are hereby awarded attorneys’ fees and costs and expenses in the amount

19 of $900,000.00 for work performed and costs and expenses incurred prior to the hearing on final

20 approval.

21 8/7/08

22 Dated:______________
23

__________________________________ The Honorable Claudia Wilken United States District Judge

24

25

26

27

28
-1-

[PROPOSED] ORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS, Case No. C-06-3153 CW

 
 Case4:06-cv-03153-CW Document55 Filed03/16/07 Page1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 JUANITA WYNNE and DANTE

)

BYRD, on behalf of

)

12 themselves and classes of )

No. C06-3153 CW (BZ)

those similarly situated, )

13

)

Plaintiff(s),

)

14

)

v.

)

ORDER TO SHOW CAUSE

15

)

MCCORMICK & SCHMICKS’S

)

16 SEAFOOD RESTAURANTS, INC., )

et al.,

)

17

)

Defendant(s).

)

18

)

)

19

On October 10, 2006 I issued an Initial Discovery Order

20

which, among other things, required the parties to meet and

21

confer in a good faith effort to resolve any discovery

22

disputes prior to seeking court intervention and to make a

23

record of their meeting.

24

On March 6, 2007 counsel for plaintiffs requested court

25

intervention with respect to a long standing dispute over

26

certain documents plaintiffs were seeking from defendant.

27

After reading defendant’s written response, I became troubled

28

that the parties had not been able to resolve at least part of

1

Case4:06-cv-03153-CW Document55 Filed03/16/07 Page2 of 2

1 their dispute during the meet and confer session and ordered

2 plaintiffs to lodge a record of that session for my review.

3

Today the court was informed that there is no record of

4 the meet and confer session. Accordingly, IT IS HEREBY

5 ORDERED that both parties show cause in writing by March 30,

6 2007, why they should not be held in contempt of court or

7 otherwise sanctioned under Rule 16(f) of the Federal Rules of

8 Civil Procedure for failing to comply with the court’s Initial

9 Discovery Order. A hearing on the Order to Show Cause is

10 scheduled for Wednesday, April 18, 2007 at 10:00 a.m. in

11 Courtroom G, 15th Floor, Federal Building, 450 Golden Gate

12 Avenue, San Francisco, California 94102.

13 Dated: March 16, 2007

14

15

Bernard Zimmerman

United States Magistrate Judge

16

17 G:\BZALL\-REFS\WYNNE\OSC.wpd

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 1 of 23

1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP
3 177 Post Street, Suite 300 San Francisco, CA 94108
4 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
5 E-Mail: jfinberg@altshulerberzon.com
E-Mail: ecervantez@altshulerberzon.com 6 E-Mail: revenson@altshulerberzon.com

7 Kelly M. Dermody (SBN 171716)

8

Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP 9 275 Battery Street, 30th Floor

10

San Francisco, CA 94111-3339 Telephone: (415) 956-1000

11

Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com

12 E-Mail: jsagafi@lchb.com

13 Attorneys for Plaintiffs and proposed Classes Additional Counsel on the signature page

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

16 JUANITA WYNNE and DANTE BYRD, 17 on behalf of themselves and classes of those
similarly situated,
18 Plaintiffs,
19 v.
20 MCCORMICK & SCHMICK’S
21 SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK
22 RESTAURANT CORP.,

23

Defendants.

24

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. C-06-3153 CW
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR ORDER: (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND PROPOSED CONSENT DECREE; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES; (3) APPROVING AND DIRECTING DISTRIBUTION OF NOTICE OF THE SETTLEMENT; AND (4) SETTING A SCHEDULE FOR THE FINAL SETTLEMENT APPROVAL PROCESS; MEMORANDUM IN SUPPORT THEREOF.

25 26

) ) ) )

DATE: TIME: PLACE: JUDGE:

April 3, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken

27

28

Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 2 of 23

1

TABLE OF CONTENTS

2 NOTICE OF MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 II. PROCEDURAL HISTORY AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 III. SUMMARY OF THE PROPOSED SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7

1. Increasing African American Representation in Front of the House

Jobs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8

a. Hiring and Promotion Benchmarks . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

b. Enhanced Recruiting Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9

c. Manager Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

10

2. Opening Pathways for Promotion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Enhanced Procedures for Complaining About Race Discrimination . . . . . . . 6

11

4. Monitoring and Enforcement of Decree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. Monetary Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

12 IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

13

A. The Court Should Grant Preliminary Approval of the Class Action Settlement . . . . 9 1. The Terms of the Proposed Settlement Are Fair, Adequate and

14

Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2. Class Counsel Were Fully Informed When the Settlement Was Reached. . . 10

15

3. Liability, Damages, and the Propriety of Class Certification are all Contested. The Settlement Provides Reasonable Compensation for Class Members’

16

Claims, in Light of the Delay and Risks Associated With Continued litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

17

4. The Settlement Is the Product of Serious, Arms’ Length, Informed Negotiations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18

5. The Proposed Plan of Allocation is Fair and Reasonable. . . . . . . . . . . . . . . 13

6. The Proposed Service Payment to the Class Representative Is Reasonable. 13

19

7. The Proposed Attorneys Fees are Fair and Reasonable . . . . . . . . . . . . . . . . 13

B. The Court Should Grant Provisional Certification of the Settlement Classes . . . . . 14

20

1. Numerosity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. Commonality and Typicality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

21

3. Adequacy of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4. Rule 23(b)(2) and (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

22

C. The Proposed Notice and Claims Process Are Appropriate.. . . . . . . . . . . . . . . 16

1. The Proposed Class Notice Satisfies Due Process . . . . . . . . . . . . . . . . . . . . 16

23

2. The Notice Plan and Claims Process Are Appropriate. . . . . . . . . . . . . . . . . 17

D. The Court Should Set a Final Settlement Approval Schedule. . . . . . . . . . . . . . 18

24

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

25

26

27

28

i Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 3 of 23

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
4

Lerwill v. Inflight Motion Pictures, Inc.,

5

582 F.2d 507, 512 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

6 Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D.Ga.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14
7

8

In re S. Ohio Correctional Facility, 175 F.R.D. 270 (S.D. Ohio 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

9 In re Michael Milken & Associates Sec. Litigation,

10

150 F.R.D. 57 (S.D.N.Y. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

11

In re Vitamins Antitrust Litigation, 2001 WL. 856292 (D.D.C.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12 Robert F Fry, Jr. v. Hayt, Hayt & Landau,

13

198 F.R.D. 461 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

14

Shores v. Publix Super Markets, Inc., 95-1162-CIV-T-25E (M.D. Fla) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

15 Torrisi v. Tucson Electric Power Co.,

16

8 F.3d 1370 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

17

Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18 Young v. Polo Retail, LLC,

19

2006 WL. 3050861 (N.D. Cal.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

20

FEDERAL RULES OF CIVIL PROCEDURE

21 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
22 Fed. R. Civ. P. 23(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fed. R. Civ. P. 23(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23 Fed. R. Civ. P. 23(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fed. R. Civ. P. 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
24 Fed. R. Civ. P. 23(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

25

26

27

28

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Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 4 of 23

1

NOTICE OF MOTION

2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

3

NOTICE IS HEREBY GIVEN that on April 3, 2008, at 2:00 p.m., or as soon

4 thereafter as the matter may be heard in the Courtroom of the Honorable Claudia Wilken,

5 located at 1301 Clay Street, Oakland, California, plaintiffs will and hereby do move this Court

6 for an order (1) preliminarily approving the parties’ class action settlement and proposed

7 Consent Decree, (2) provisionally certifying settlement classes, (3) approving and directing

8 distribution of the notice of settlement, and (4) setting a schedule for the final approval process.

9

This motion is based on: this Notice of Motion and Motion; the attached Memorandum

10 of Points and Authorities; the Declaration of James M. Finberg; the [Proposed] Order and 11 exhibits thereto; the Consent Decree; all other records, pleadings, and papers on file in this 12 action; and on such other evidence or argument as may be presented to the Court at the hearing 13 of this motion. 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Subject to Court approval, the parties have settled plaintiffs’ and class members’ claims

4 for comprehensive injunctive and monetary relief. The proposed Consent Decree resolves all of

5 plaintiffs’ and class members’ claims. The parties’ proposed settlement satisfies all of the

6 criteria for preliminary approval under federal law. The settlement was negotiated at arms’

7 length and falls well within the range of possible approval. The extensive injunctive relief

8 provided for in the Consent Decree will materially advance the goal of equal employment

9 opportunity for African Americans at McCormick & Schmick’s. The monetary relief will give

10 class members a monetary recovery this year without the risks and delay attendant with further

11 litigation.

12

Accordingly, the plaintiff classes request that the Court grant preliminary approval to the

13 proposed Consent Decree (attached as Exhibit 1 to the proposed order), direct distribution of the

14 class notice and claim form (attached as Exhibits 2 and 3 to the proposed order), and approve

15 the proposed schedule for final approval. Plaintiffs also request that in connection with the

16 settlement process, the Court provisionally certify a settlement class of African-American

17 employees for monetary relief (with a right to opt out of the settlement pursuant to Rule
18 23(e)(3)) and under Rule 23(b)(2) for injunctive relief (with no opt out right).
19 II. PROCEDURAL HISTORY AND BACKGROUND
20 Plaintiffs brought this action on behalf of themselves and a class of current and former
21 African American employees of McCormick & Schmick’s claiming that African Americans are
22 underrepresented in the most remunerative “front of the house” restaurant jobs (servers, cocktail
23 servers, bartender and host positions) and that African Americans who obtain employment in
24 front of the house positions are consistently assigned to the shifts and restaurant sections that are
25 the least remunerative.
26 Plaintiffs Juanita Wynne and Dante Byrd filed class-wide administrative charges with
27 the EEOC on May 3 and June 29, 2005. On May 11, 2006 Plaintiffs filed the Complaint in this
28
action alleging racial discrimination claims under Title VII, FEHA and Section 1981 on behalf

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1 of themselves and classes of McCormick & Schmick’s African American employees and

2 applicants.

3

Plaintiffs filed their First Amended Complaint on July 28, 2006. After filing the First

4 Amended Complaint, the parties conducted discovery. Plaintiffs took the depositions of six

5 Rule 30(b)(6) designees relating to Company operations, hiring practices, training,

6 compensation policies, store openings, data collection, and others. Company deponents

7 included the Director of Human Resources, the Director of Training, the Vice President of

8 Operations, and others. During this period, Defendants took depositions of plaintiffs Juanita

9 Wynne and Dante Byrd.

10

Plaintiffs served written discovery, including interrogatories and document requests, and

11 obtained many thousands of pages of documents from Defendants, including personnel manuals

12 and policies, training materials, and employment applications. Plaintiffs also obtained, and with

13 the assistance of expert statisticians analyzed, Company computerized personnel and payroll

14 data from 2002 through 2006.

15

Defendants served discovery on Juanita Wynne and Dante Byrd. Juanita Wynne and

16 Dante Byrd responded to interrogatories, produced hundreds of pages of documents related to

17 their employment at McCormick & Schmick's, and submitted to depositions.
18 Plaintiffs and Defendants engaged expert consultants to analyze the payroll data, to
19 determine whether disparities exist in hiring and compensation of African Americans in front of
20 the house positions, and to calculate potential damages exposure. Expert consultants also
21 assisted the parties in negotiating the settlement by proposing and analyzing various
22 methodologies for establishing hiring benchmarks.
23 The Plaintiffs have vigorously prosecuted this case, and McCormick & Schmick’s has
24 vigorously contested it. As a result, the Parties were able to assess reliably the relative merits of
25 the claims of the Plaintiffs and of McCormick & Schmick's defenses.
26 On July 12, September 26, and November 5, 2007, counsel for the Parties met to
27 negotiate a settlement of this matter with the assistance of experienced mediator Hunter Hughes
28
of Atlanta, Georgia, who served as the mediator in many other cases, including Satchell v.

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1 Federal Express Corp., C03-2659 SI; C03-2878 SI (N.D. Cal.), Butler v. Home Depot, No. C94

2 4335 SI (N.D. Cal.); Shores v. Publix Super Markets, Inc., 95-1162-CIV-T-25E (M.D. Fla); and

3 Ingram v. Coca-Cola Co., 200 F.R.D. 685, 699 (N.D.Ga.2001). In addition, counsel for the

4 Parties met face-to-face without the mediator on August 8 and September 12, 2007, and

5 exchanged numerous written settlement proposals from July 2007 through February 2008.

6

The formal and informal discovery conducted in this action, including the depositions,

7 the documents produced, and the information exchanged during mediation, including expert

8 consultant analyses, put Class Counsel in a position to assess the strengths and weaknesses of

9 the case.

10 III. SUMMARY OF THE PROPOSED SETTLEMENT

11

The proposed consent decree provides comprehensive injunctive relief and substantial

12 monetary relief.

13 A. Injunctive Relief

14

During the period of the Decree, McCormick & Schmick’s has agreed to implement

15 comprehensive affirmative relief addressing the selection, promotion and compensation claims

16 in this action, including the following:

17 1. Increasing African American Representation in Front of the House Jobs
18 a. Hiring and Promotion Benchmarks
19 McCormick & Schmick’s has agreed to establish benchmarks to assist in its efforts to
20 hire or promote African American employees into front of the house (server, bartender, host)
21 positions at a rate equal to African Americans’ representation in the applicant pool for that
22 position, or African Americans’ representation in the relevant local labor market, whichever is
23 higher. Consent Decree Section XI.
24 McCormick & Schmick’s also has agreed to allow a third-party Diversity Monitor to
25 examine its payroll data to ensure that it is taking appropriate steps to meet its benchmarks. The
26 Diversity Monitor can require the Company to make appropriate changes to its policies to
27 achieve diversity and ensure compliance with the Decree. Consent Decree Sections XVIII, XX.
28

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1

If McCormick & Schmick’s meets all of its Company-wide benchmarks for three

2 consecutive years, the Company may apply to the court to terminate the Consent Decree at the

3 end of the fourth year of the Decree. Consent Decree Section V. Otherwise, the Decree will be

4 in effect for five years. Id.

5

If McCormick & Schmick’s does not meet its benchmarks, the Diversity Monitor is

6 empowered to determine the causes of such failure, and to establish remedial measures,

7 including, among other things, requiring the Company to validate its hiring criteria, to enhance

8 its recruitment and outreach efforts, and to establish hiring safeguards. Consent Decree Section

9 XI(D).

10

b. Enhanced Recruiting Efforts

11

McCormick & Schmick’s has agreed to hire a new Corporate Recruiter, and to make its

12 best efforts to increase diversity in front of the house and management positions. Consent

13 Decree Section XVI(A).

14

McCormick & Schmick’s will develop a strategy for increasing the recruitment and

15 hiring of African Americans, including by developing a list of recruiting sources and advertising

16 media that reach African Americans. Consent Decree Section XVI(B).

17

If a restaurant’s African American applicant flow declines for two years in a row, or is

18 lower than the census-based benchmark, the Company will develop a specific plan to increase

19 the number of African American applicants in front of the house jobs, including by enhancing

20 its outreach and recruitment efforts. Consent Decree Section XVI(C) and (D).

21 c. Manager Accountability
22 McCormick & Schmick’s has agreed to evaluate restaurant managers in part on their
23 success in helping the Company to achieve its diversity goals, and a meaningful portion of
24 managers’ bonuses will be based on performance in helping the Company to achieve its
25 diversity goals. Consent Decree Section XIV.
26

2. Opening Pathways for Promotion 27
McCormick & Schmick’s has agreed to implement a “registration of interest” program, 28

which will inform employees about openings at all Company restaurants in the metropolitan

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1 area and about how to apply for such positions. Consent Decree Section XII.

2

Employees will be provided with an opportunity to register interest in any other

3 restaurant-level position, and employees who meet the basic criteria for the position will be

4 considered as applicants for that position in all area restaurants when openings arise. Consent

5 Decree Sections XII(B) and (C).

6

3. Enhanced Procedures for Complaining About Race Discrimination

7

McCormick & Schmick’s has agreed to train all of if its employees on its existing

8 “Ethics Point” complaint system, and to enable employees to use Ethics Point to complain about

9 shift and section assignments, the Registration of Interest program, or other measures set out in

10 the Consent Decree. McCormick & Schmick’s has also agreed to enhance its investigation

11 procedures to ensure that every complaint is fully investigated, and to document every complaint

12 and the steps taken to investigate each complaint. Consent Decree Section XV.

13 4. Monitoring and Enforcement of Decree

14

McCormick & Schmick’s has agreed to enable a third-party Diversity Monitor to

15 monitor these policies and practices and to ensure compliance with all terms of the Consent

16 Decree. The Diversity Monitor will review reports of complaints of discrimination by

17 McCormick & Schmick’s employees, and will also receive and review other data and reports
18 designed to ensure that McCormick & Schmick’s is following the new policies established
19 through this Consent Decree. Consent Decree Section XVIII(E).
20 The parties have agreed that Barry Goldstein will serve as the Diversity Monitor.
21 Consent Decree Section X. Mr. Goldstein has significant experience in litigating race
22 discrimination cases. He is a preeminent lawyer in this field. Finberg Dec., ¶31.
23 Throughout the term of the Consent Decree, McCormick & Schmick’s will provide
24 regular progress reports to the Diversity Monitor and to Counsel for the Plaintiffs. These reports
25 will describe McCormick & Schmick’s progress in implementing the Decree, include
26 information about hiring and promotion of African Americans, and detail any complaints of
27 discrimination by African American employees. McCormick & Schmick’s will also provide the
28
Diversity Monitor with data regarding the compensation of all front of the house positions by

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1 race, to enable the Diversity Monitor to ensure that there are no racial disparities in pay.

2 Consent Decree Section XVIII(D)(5).

3

If Class Counsel have grounds for believing that McCormick & Schmick’s is disobeying

4 its obligations under the Decree, Counsel may bring the matter to the attention of the Diversity

5 Monitor or the Court. Consent Decree Sections XX, XIX.

6

B. Monetary Relief

7

In addition to the significant, comprehensive injunctive relief described above,

8 McCormick & Schmick’s will pay members of the Settlement Class $1.1 million. Consent

9 Decree Section XXI(D)(1). This fund will compensate members of the Settlement Class who do

10 not opt out and who timely submit claims.

11

Each class member who does not opt out of the settlement will receive a proportionate

12 share of the net settlement payment. The calculation of each claimant’s share will be based on a

13 point system that awards a certain number of points for the following factors: (1) length of

14 service; (2) status as “front of the house” or “back of the house” employee. Consent Decree

15 Section XXVII(A).

16

Class members who do not opt out will be required to submit a claim form in order to

17 receive a monetary award. A copy of the claim form is attached to the proposed preliminary

18 approval order as Exhibit 3. Once claim forms are submitted, the claims administrator will

19 allocate points, determine each class member’s award, and distribute the settlement proceeds as

20 soon as practicable.1

21 In recognition of Class Representative Juanita Wynne’s service to the class, which

22 included providing information regarding the structure of the company and her job duties during
23 lengthy interviews with Class Counsel, responding to discovery and producing relevant
24 documents, submitting to deposition, and participating in conference calls regarding the
25 mediation process, Class Counsel will apply to the Court to award $5,000 to Ms. Wynne. The
26

27

28

1 It is the intention of the parties to distribute the entire amount in the Settlement Fund Account. If, despite the claims administrator’s efforts, checks remain uncashed after they have

become invalid, the remaining sum shall be paid to the Administration and Monitoring Fund.

See Consent Decree Section XXVII(E).

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1 Consent Decree provides that any service award shall be paid from the $1.1 million allocated to

2 class monetary relief. Consent Decree Section XXI(D)(1).

3

The proposed Consent Decree also provides that McCormick & Schmick’s will pay an

4 additional $900,000 to reimburse class counsel for the fees and costs they have incurred to date.

5 Consent Decree Section XXI(D)(3). Class Counsel will file a separate motion for approval of

6 attorneys’ fees and expenses in advance of the Fairness Hearing.

7

The proposed Consent Decree also provides that McCormick & Schmick’s will pay

8 $90,000, for claims administration, to compensate the Diversity Monitor, and to pay fees for

9 work performed by Class Counsel in monitoring the settlement, on an hourly basis. See Consent 10 Decree Section XXI(D)(5).2

11

The proposed Consent Decree also provides that McCormick & Schmick’s will pay an

12 additional $5,000 each to named plaintiffs Juanita Wynne and Dante Byrd to compensate them

13 for release of their non-class claims, including Ms. Wynne’s potential claims for racial

14 harassment/hostile work environment, and Mr. Byrd’s claims arising out of his application for

15 employment with McCormick & Schmick’s. See Consent Decree Section XXI(D)(4).

16 (Although arguably these settlements of non-class claims are not part of the class settlement,

17 Class Counsel bring these agreements to the Court’s attention pursuant to Rule 23(e)(2) of the 18

19 2 Any interest earned on the settlement fund, and any amounts from uncashed checks, will
20 also be paid into the Administration and Monitoring Fund. Consent Decree Section XXI(D)(5).
It is estimated that claims administration will cost approximately $50,000-$75,000. Finberg 21 Dec., ¶34.

22

If there are insufficient funds in the account, the other listed items will be given priority

over payment to Class Counsel. If the account has enough money to cover all of these items, 23 Class Counsel will receive its full hourly rate for its monitoring work. Consent Decree Section

XXI(D)(5)(b). 24

In the unlikely event that there is any amount remaining in the Administration and 25 Monitoring Fund after termination of the Decree, Class Counsel may apply to the Court for an

award of the remaining amount 1) as compensation for work performed prior to the Final 26 Approval Date that was not compensated as part of the proposed $900,000 attorneys' fee award,

27

and 2) as compensation for having undertaken the risk that the Administration and Monitoring Fund would not have sufficient funds to compensate Class Counsel for work performed in

28

implementing and monitoring the Decree. In the event that the Court does not approve payment of the full amount to Class Counsel, the remaining amount shall be distributed to the class

members on a pro rata basis, or, if it is less than $50,000, to charity. Consent Decree Section

XXI(D)(5)(c).

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1 Federal Rules of Civil Procedure).

2 IV. ARGUMENT

3

A. The Court Should Grant Preliminary Approval of the Class Action Settlement

4

To grant preliminary approval of this class action settlement, the Court must find only

5 that the settlement is non-collusive and within “the range of possible approval.” Young v. Polo

6 Retail, LLC, 2006 WL 3050861 (N.D. Cal.); see also In re Vitamins Antitrust Litig., 2001 WL

7 856292, *4-5 (D.D.C.); Newberg on Class Actions, Fourth Edition, §11.25.

8

1. The Terms of the Proposed Settlement Are Fair, Adequate and

9

Reasonable.

10

As long as “preliminary evaluation of the proposed settlement does not disclose grounds

11 to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class

12 representatives or of segments of the class, or excessive compensation for attorneys, and appears

13 to fall within the range of possible approval,” the Court should preliminarily approve the

14 settlement. In re Vitamins, 2001 WL 856292 at *4-5 (quoting Manual for Complex Litigation,

15 Third (FJC 1995)). The Court may also direct the giving of notice to the class members of a

16 final approval hearing, “at which arguments and evidence may be presented in support of and in

17 opposition to the settlement.” McNamara v Bre-X Minerals Ltd., 214 F.R.D. 424, 426 (E.D.

18 Tex. 2002) (quoting Manual for Complex Litigation, Third, at 237); 4 Newberg §11.25 (quoting

19 same).3

20

Here, the parties negotiated the proposed settlement in good faith and at arms’ length.

21 See Finberg Dec. ¶¶25-29. As noted above, discovery and informal exchanges of information in

22 connection with the settlement mediation process, has allowed Class Counsel – who are

23 experienced employment discrimination and class action attorneys – to assess the strengths and

24 weaknesses of the claims against McCormick & Schmick’s and the benefits of the proposed

25 settlement under the circumstances of this case. Id.

26

Counsel for both sides have conducted a thorough investigation into the facts of the case

27

28

3 The fourth edition of the Manual for Complex Litigation was released in 2004 and does not include this precise language, but instead suggests that if a court has “reservations” about any

of the issues described, it should “raise questions . . . and perhaps seek and independent review . .

. .” Manual for Complex Litigation, Fourth, at 321. The end result is the same.

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1 and have diligently investigated the class members’ claims. Class Counsel believe the

2 settlement is fair, reasonable, and adequate, achieves an excellent result for class members, and

3 is in the best interest of the class in light of all known facts and circumstances, including the risk

4 of significant delay and McCormick & Schmick’s asserted defenses. See id. ¶¶35-36.

5

2. Class Counsel Were Fully Informed When the Settlement Was

Reached. 6

As noted above, and as described in the Finberg Declaration ¶¶14-19, Class Counsel 7

spent thousands of hours litigating this case and vigorously investigating the claims asserted 8

against McCormick & Schmick’s. 9

10

Class Counsel spoke with approximately 100 of the approximately 3000 class members,

11 thoroughly interviewed two dozen of them, and analyzed information from those interviews,

12 producing a total of 17 signed declarations. Plaintiffs also propounded document requests, and

13 reviewed many thousands of pages of documents that were produced in discovery. Class

14 counsel also reviewed and, with expert assistance, analyzed comprehensive work history and

15 payroll data from 2002 through 2006. In addition to consulting with statistical experts, Class

16 Counsel consulted with a labor economist. Finberg Dec., ¶17.

17

Class Counsel also deposed six persons designated as subject matter experts under Rule

18 30(b)(6) who testified on a variety of topics, including company operations, hiring practices,

19 training, compensation policies, store openings, data collection, and others. Company

20 deponents included the Director of Human Resources, the Director of Training, the Vice

21 President of Operations, and others. Finberg Dec., ¶18.

22

Class Counsel also responded to discovery propounded by Defendants. Plaintiffs

23 responded to a total of six sets of document requests and two sets of interrogatories, and

24 produced several hundred pages of documents. In addition, Class Counsel defended depositions

25 of named plaintiffs Juanita Wynne and Dante Byrd. Finberg Dec., ¶19.

26

Class Counsel used the extensive knowledge of McCormick & Schmick’s practices that

27 counsel gained through discovery as the basis for negotiations regarding the significant

28 affirmative relief described above. Id. ¶¶27-28.

During discovery, Class Counsel also received information from McCormick &

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1 Schmick’s related to appropriate calculation of damages, including a detailed database of

2 employment and payroll information. See id. ¶29. Using that data, Class Counsel’s statistical

3 experts performed promotions and compensation analyses and then a damages analysis.

4 McCormick & Schmick’s experts did the same, and the parties’ expert damages calculations

5 formed the basis for negotiations regarding the monetary terms of the settlement. Id.

6

In sum, Class Counsel completed substantial investigation and discovery and negotiated

7 the proposed settlement with complete knowledge regarding the strengths and weaknesses of the

8 case and the amounts necessary to compensate class members for the harm suffered.

9

3. Liability, Damages, and the Propriety of Class Certification Are all

10

Contested. The Settlement Provides Reasonable Compensation for Class Members’ Claims, in Light of the Delay and Risks Associated

11

With Continued litigation.

12

Of particular relevance to the reasonableness of the proposed settlement is the fact that

13 McCormick & Schmick’s has and would continue to contest vigorously the merits of class

14 members’ claims. McCormick & Schmick’s denies that it engaged in any intentional

15 discrimination against African-American employees and denies that its employment practices

16 had a disparate impact on African Americans. It is apparent from the proceedings to date and

17 the Parties’ mediation process that, were the litigation to continue, McCormick & Schmick’s

18 would aggressively contest the propriety of class certification and would contest liability. It

19 would also argue that if liability were found, damages would be minimal.

20

McCormick & Schmick’s arguments would include, without limitation, the following:

21

1. Class certification would be inappropriate because its operations are decentralized,

22 and personnel decisions are made by individual managers at more than 60 restaurants

23 nationwide, which would make trial of this action unmanageable.

24

2. Statistical analyses show no racial disparities in hiring or job assignment when

25 compared to other restaurants in the appropriate local labor markets. Although plaintiffs

26 disputed the validity of these analyses, and had their own analysis showing statistically

27 significant disparities with respect to the placement of African Americans in front of the house

28 positions, there was a substantial risk that a trier of fact would agree with the Company’s

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1 analyses.

2

3. McCormick & Schmick’s hotly contensted that it had engaged in intentional

3 discrimination, and plaintiffs bore a significant risk that they would not be able to persuade a

4 jury that McCormick & Schmick’s standard operating procedure was a pattern and practice of

5 intentional discrimination.

6

4. McCormick & Schmick’s maintains, and has statistical analyses supporting its view,

7 that there are no differences between compensation of African American and White employees

8 doing the same job. Again, Plaintiffs had their own analysis showing disparities, but were at

9 risk that they could not persuade the trier of fact.

10

5. McCormick & Schmick’s also contended that, even if liability were established, any

11 damages were minimal. Plaintiff bore significant risk on this issue as well.

12

Such arguments notwithstanding, McCormick & Schmick’s has concluded that it is in

13 the Company’s interest to resolve and settle this litigation pursuant to the proposed Consent

14 Decree. For their part, Class Counsel have analyzed and evaluated the merits of Plaintiffs’

15 claims made against McCormick & Schmick’s in the Litigation and the impact of the proposed

16 Consent Decree on Plaintiffs and the Settlement Class. Finberg Dec., ¶35. Specifically, while

17 Plaintiffs’ counsel believes that Plaintiffs’ claims are meritorious and that Plaintiffs would

18 eventually prevail in certifying this case as a class action and would prevail on the merits,

19 Plaintiffs’ counsel has also considered factors such as the substantial risks of continued

20 litigation and the possibility that the case, if not settled now, might not result in any recovery or

21 might result in a recovery several years from now that is less favorable to class members than

22 that offered by the proposed Consent Decree. Finberg Dec., ¶¶35-36. In light of such
23 considerations, Plaintiffs’ counsel is satisfied that the terms and conditions of the Settlement are
24 fair, reasonable and adequate and that the Settlement is in the best interests of the Class. Id.
25

4. The Settlement Is the Product of Serious, Arms’ Length, Informed

26

Negotiations.

27

The Settlement resulted only after extensive, arms’ length settlement negotiations that

28 were conducted after rigorous discovery regarding the merits and damages of the disputed

12 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 16 of 23

1 claims, and under the supervision of experienced mediator Hunter Hughes. See id. ¶¶25-26.

2 The negotiations were protracted, and the mediation itself required multiple lengthy sessions.

3 See id. In sum, the proposed settlement is the non-collusive product of hard-fought litigation.

4

5. The Proposed Plan of Allocation is Fair and Reasonable.

5

As described above, the proposed plan of allocation takes into account two factors to

6 ensure that the ultimate division of the settlement proceeds among class members is fair and

7 accurate, while at the same time preserving the intended efficiencies of class action litigation:

8 length of service and type of job jeld, which takes into account the fact that those who served

9 the longest in back of the house jobs have stronger potential claims and larger potential

10 damages.

11

6. The Proposed Service Payment to the Class representative Is

12

Reasonable.

13

The Settlement provides for a service payment of up to $5,000 for Class Representative

14 Juanita Wynne. Ms. Wynne performed important services for the benefit of the Class. She

15 provided information regarding the structure of the company and her job duties during lengthy

16 interviews; she submitted to deposition by McCormick & Schmick’s; she produced relevant

17 documents; and she worked with Class Counsel throughout the case. See Finberg Dec., ¶¶20-

18 21. “Courts routinely approve incentive awards to compensate named plaintiffs for the services

19 they provided and the risks they incurred during the course of the class action litigation.”

20 Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001), quoting In re S. Ohio

21 Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)); see also Van Vranken v. Atlantic

22 Richfield Co., 901 F.Supp. 294, 300 (N.D. Cal. 1995) (approving $50,000 participation award).

23 Plaintiffs will file a separate motion for approval of the service payment.

24

7. The Proposed Attorneys Fees are Fair and Reasonable.

25

The Consent Decree provides for payment to Class Counsel of $900,000, or such amount

26 as is approved by the Court, for attorneys’ fees and expenses spent litigating this matter through

27 the Final Approval Date, in light of applicable fee-shifting statutes. That amount is

28 approximately half of Class Counsel’s lodestar for time and expenses actually spent litigating

13 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 17 of 23

1 this matter. Finberg Dec. ¶33. Class Counsel will file a separate motion for approval of

2 attorneys’ fees and expenses.

3

B. The Court Should Grant Provisional Certification of the Settlement Classes.

4

This Court has the power pursuant to F.R.C.P. 23 to “make a conditional determination

5 of whether the action should be maintained as a class action, subject to approval at a later date.”

6 Robert F Fry, Jr. v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (2000).

7

Plaintiffs seek approval of two provisional Settlement Classes:

8

An Injunctive Relief Class, certified pursuant to Rule 32(b)(3), defined in the Consent

9 Decree to include “All African Americans employed by McCormick & Schmick’s in Front of

10 the House or Back of the House positions between May 15, 2002 and the date the Decree

11 terminates;” (Consent Decree Section VI(A)) and

12

A Monetary Relief Class, certified pursuant to Rule 32(b)(2), defined to include “All

13 African Americans employed by McCormick & Schmick’s in Front of the House or Back of the

14 House positions between May 15, 2002 and the Preliminary Approval Date, except those who

15 file a timely request to opt out of the monetary relief provisions of the Decree.” (Consent

16 Decree Section VI(B))

17

The Consent Decree defines “Front of the House” positions as waiter, waitress, server,

18 host, hostess, bartender, and cocktail server. Consent Decree Section III(O). “Back of the

19 House” positions are all the other hourly (non-exempt) restaurant positions. Consent Decree

20 Section III(C).

21 These classes sufficiently meet all the Rule 23 requirements for certification to warrant

22 the Court’s provisional certification. Fed. R. Civ. P. 23(a), 23(b)(2), 23(b)(3).
23
1. Numerosity. 24
The numerosity requirement is met if “the class is so large that joiner of all members is 25
impracticable.” Fed. R. Civ. P. 23(a)(1). McCormick & Schmick’s employee and payroll files 26
show that there are approximately 3,000 members of the Monetary Relief Class, which satisfies 27
the numerosity requirement. 28

14 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 18 of 23

1

2. Commonality and Typicality.

2

A class meets the commonality prerequisite “if there are questions of fact and law which

3 are common to the class.” Fed. R. Civ. P. 23(a)(2). This rule is to be construed permissibly.

4 “All questions of fact and law need not be common to satisfy the rule.” Hanlon v. Chrysler

5 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The typicality requirement is met if “the claims or 6 defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.

7 Civ. P. 23(a)(3). Like commonality, the typicality requirement is construed liberally and is met

8 if the class representatives have claims that are “reasonably co-extensive with those of absent

9 class members.” Hanlon, 150 F.3d at 1020. The members of the class share common issues of

10 fact and law regarding (1) whether McCormick & Schmick’s employment policies and practices

11 were intentionally discriminatory and/or had an adverse impact on African Americans; and (2)

12 whether Title VII or Section 1981 have been violated.

13 3. Adequacy of Representation.

14

Under Rule 23(a)(4), the representative parties must “fairly and adequately protect the

15 interests of the class.” To determine the adequacy of representation, a court must consider two

16 questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other

17 class members and (2) will the named plaintiffs and their counsel prosecute the action
18 vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020 (citing Lerwill v. Inflight Motion
19 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). In this case, the Class Representative and
20 Class Counsel have no conflicts with the class, and have provided excellent representation to the
21 class throughout this litigation, including in obtaining a highly favorable settlement.
22 4. Rule 23(b)(2) and (3).
23 Finally, if all the requirements of Rule 23(a) are met, class certification is appropriate if
24 the class also meets the requirements of Rule 23(b)(1), (2), or (3).
25 The injunctive relief class meets the requirements of Rule 23(b)(2), because McCormick
26 & Schmick’s has “acted or refused to act on grounds generally applicable to the class, thereby
27 making appropriate final injunctive relief or corresponding declaratory relief with respect to the
28
class as a whole.” Fed. R. Civ. P. 23(b)(2). McCormick & Schmick’s employment practices

15 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 19 of 23

1 and policies applied to all class members, and injunctive relief is appropriate with respect to all

2 class members’ claims.

3

The monetary relief class meets the requirements of Rule 23(b)(3) because common

4 questions “predominate over any questions affecting only individual members,” and class

5 resolution is “superior to other available methods for the fair and efficient adjudication of the

6 controversy.” Fed. R. Civ. P. 23(b)(3). As set forth above, the common questions predominate,

7 since the claims of the members of each class have the same legal and factual bases. The

8 superiority of a class action in this case to a multiplicity of individual and duplicative

9 proceedings is also readily apparent. If each plaintiff were required to litigate his or her case

10 separately, the courts would be tasked with resolving thousands of individual cases, and

11 McCormick & Schmick’s with defending the same number of cases. Moreover, the cost of

12 litigating the claims might deter some class members who have valid claims from pursuing

13 them. The interests of the plaintiffs, defendant and the courts are therefore best served by

14 resolving this matter on a classwide basis.

15 C. The Proposed Notice and Claims Process Are Appropriate.

16 1. The Proposed Class Notice Satisfies Due Process.

17

The content of the proposed Notice of Class Action Settlement, which is attached to the

18 proposed preliminary approval order as Exhibit 2, fully complies with due process and FRCP

19 23. The Notice provides the definition of the Settlement Class, describes the nature of the

20 action and claims, states that a member of the monetary relief settlement class may enter an

21 appearance through counsel, explains the procedures for excluding oneself or objecting to the

22 settlement, and explains the binding effect of the judgment on those who remain in the class.
23 The Notice also describes the terms of the settlement, informs the class about the attorneys’ fees
24 terms of the agreement, and provides specific information regarding the date, time, and place of
25 the final approval hearing.
26
The detailed information in the proposed Notice is more than adequate to put class 27
members on notice of the proposed settlement. Courts have approved class notices even when 28

they provided only general information about a settlement. See, e.g., In re Michael Milken &

16 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 20 of 23

1 Assocs. Sec. Litig., 150 F.R.D. 57, 60 (S.D.N.Y. 1993) (class notice “need only describe the

2 terms of the settlement generally”). The proposed Notice fully complies with the requirements

3 of Rule 23(c)(2)(B) and due process.

4

2. The Notice Plan and Claims Process Are Appropriate.

5

The Consent Decree provides that the claims administrator will send the notice by U.S.

6 mail to the last known address of each class member. McCormick & Schmick’s will provide

7 the claims administrator with names and contact information of potential Settlement Class

8 members within 20 days of preliminary approval, and that list will be updated with any

9 information available through the National Change of Address system. The claims

10 administrator will send the notice to class members within 10 days of receiving class members’

11 data from McCormick & Schmick’s. The claims administrator will also trace all returned

12 undeliverable notices and re-send them to the most recent addresses available. See Consent

13 Decree Section XXII(C).

14

As discussed above, the notice to the class will contain information about how to

15 exclude oneself, object to the settlement, and/or file a claim. Class members will have 60 days

16 from the date of mailing to submit opt-out requests or to comment on or object to the settlement.
17 This is sufficient time to give Settlement Class member a fair opportunity to respond. Cf.
18 Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (approving notice sent 31
19 days before the deadline for objections and 45 days before the hearing).4 Class members will
20 have 70 days from the mailing of Notice to submit a claim form. In doing so, they will be
21 permitted to correct any of the pre-printed information of the claim form. Once clams are
22 received, the claims administrator will send payments as soon as practicable via First Class
23 Mail.
24

25

4 McCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree

prior to the Settlement Effective Date if five percent (5%) or more of the class members opt-out

26 of the monetary relief provisions of the Consent Decree and do not rescind their opt-out

statements. To exercise this option, the Company must inform Class Counsel that it will revoke 27 the Consent Decree within 10 business days after the deadline for opt out statements. If

McCormick & Schmick’s exercises its unilateral right to revoke the Consent Decree, all monies 28 in the Settlement Fund, and all income earned thereon, will be immediately returned to the entity

that funded the Settlement Fund. See Consent Decree Section XXIII(C)(4).

17 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 21 of 23

1

D. The Court Should Set a Final Settlement Approval Schedule.

2

The last step in the settlement approval process is the formal hearing, at which the Court

3 may hear all evidence and argument necessary to evaluate the settlement. The Parties propose

4 the following schedule for final approval:

5 Last day for the claims administrator to mail Notice and Claim

6

May 2, 2008 Form to class members. (30 days from April 3)

7

July 1, 2008 Objection postmark deadline (60 days from May 2)

July 1, 2008 Opt out statement postmark deadline ( 60 days from May 2) 8

July 11, 2008 Claim form submission postmark deadline (70 days from May

9

2)

10

June 26, 2008 Deadline for filing motions re: 1) final settlement approval; 2)

service awards; and 3) attorneys’ fees and expenses (35 days

11

prior to Final Approval Hearing).

12

July 24, 2008 Reply papers due (7 days before Final Approval Hearing).

13

July 31, 2008 Final approval hearing. 2:00 p.m.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 22 of 23

1 V. CONCLUSION

2

For all of the foregoing reasons, the plaintiff classes respectfully request that the Court:

3 (1) preliminarily approve the parties’ class action settlement and proposed Consent Decree, (2)

4 provisionally certify the Settlement Classes, (3) approve and direct distribution of the class

5 notice and claim form, and (4) set the foregoing schedule for the final approval process.

6 Dated: February 28, 2008
7

By: /s/ Rebekah B. Evenson Rebekah B. Evenson

8

James M. Finberg (SBN 114850)

9

Eve H. Cervantez (SB 164709) Rebekah B. Evenson (SBN 207825)

10

ALTSHULER BERZON LLP 177 Post Street, Suite 300

11

San Francisco, CA 94108 Telephone: (415) 421-7151

12

Facsimile: (415) 362-8064 E-Mail: jfinberg@altshulerberzon.com

13

E-Mail: ecervantez@altshulerberzon.com

14

Kelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887)

15

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

16

275 Battery Street, 30th Floor San Francisco, CA 94111-3339

17

Telephone: (415) 956-1000 Facsimile: (415) 956-1008

18

E-Mail: kdermody@lchb.com

E-Mail: jsagafi@lchb.com

19 Robert Rubin (SBN 085084)

20

THE LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS OF THE SAN FRANCISCO BAY

21

AREA

131 Steuart Street, Suite 400

22

San Francisco, CA 94105

Telephone (415) 543-9444

23

Facsimile: (415) 543-0296

E-Mail: rrubin@lccr.com

24

E-Mail: dtate@lccr.com

25

Thomas A. Warren

THOMAS A. WARREN LAW OFFICES

26

2032 Thomasville Rd #D

Tallahassee, FL 32308-0734

27

telephone: (850) 385-1551

Facsimile: (850) 385-6008

28

Email: tw@nettally.com

19 Plaintiffs’ Notice of Motion and Motion for Order - Case No. C-06-3153 CW

Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 23 of 23

1

Bill Lann Lee (SBN 108452)

Todd F. Jackson (SBN 202598)

2

Vincent Cheng (SBN 230827)

Lindsay Nako (SBN 239090)

3

LEWIS, FEINBERG, LEE, RENAKER &

JACKSON, P.C.

4

1300 Broadway, Suite 1800

Oakland, CA 94612

5

Telephone: (510) 839-6824

Facsimile: (510) 839-7839

6

Email: blee@lewisfeinberg.com

Email: tjackson@lewisfeinberg.com

7

Email: vcheng@lewisfeinberg.com

Email: lnako@lewisfeinberg.com 8

Eric Kingsley (SBN 185123)

9

KINGSLEY & KINSGSLEY

10

16133 Venture Blvd., Suite 1200 Encino, CA 91436

11

Telephone: (818) 990-8300 Facsimile: (818) 990-2903

12

Email: kingsleylaw@aol.com

13

Attorneys for Plaintiffs and the proposed Class

Members

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20 Plaintiffs’ Notice of Motion and Motion for Order - Case No. C-06-3153 CW

 
 Case 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 1 of 17

1 Kelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887)
2 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
3 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
4 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
5 E-Mail: kdermody@lchb.com E-Mail: jsagafi@lchb.com
6 James M. Finberg (SBN 114850)
7 Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP
8 177 Post Street, Suite 300 San Francisco, CA 94108
9 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
10 E-Mail: jfinberg@altber.com E-Mail: ecervantez@altber.com
11 Attorneys for Plaintiffs andproposed Classes
12 [additional counsel on signature page}

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

OAKLAND DIVISION

16
mANITA WYNNE and DANTE BYRD, 17 on behalf of themselves and classes of
those similarly situated, 18
Plaintiffs, 19
v. 20
MCCORMICK & SCHMICK'S 21 SEAFOOD RESTAURANTS, INC. and
MCCORMICK & SCHMICK 22 RESTAURANT CORP.,

23

Defendants.

Case No. 06-3153 CW

PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time:

August 7, 2008 2:00 p.m.

Courtroom: 2, 4th Floor The Honorable Claudia Wilken

24

25

26

27

28

770009.1

PLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA
CASE NO. 06-3153 CW

Case 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 2 of 17

1

TABLE OF AUTHORITIES

2

Page

3 NOTICE OF MOTION AND MOTION.......................................................................................... 1

4 MEMORANDUM OF POINTS AND AUTHORITIES.................................................................. 1

5 I.

INTRODUCTION................................................................................................................ 1

6 II. THE CLASS ACTION SETTLEMENT. ............................................................................. .2

7

A. Injunctive Relief. ....................................................................................................... 3

8

1. Increasing African American Representation in

Front-of-the-House Jobs...............................................................................3

9

a. Hiring Benchmarks........................................................................... 3

10

b. Enhanced Recruiting Efforts............................................................. 3

11

c. Manager Accountability.................................................................... 4

12

2. Opening Pathways for Promotion................................................................ .4

13

3.

Enhanc~d ~ro.ced~res for Complaining about

14

Race DIscnmmatIOn......................................................................................4

15

4. Monitoring and Enforcement of Decree....................................................... 4

16

B. Monetary Relief. ....................................................................................................... 5

17

C. Attorneys' Fees and Expenses.................................................................................. 5

18

D. Claims AdministrationlDiversity Monitor. ............................................................... 6

19

E. Settlement Class Claims............................................................................................ 6

20

F. The Class Release..................................................................................................... 6

21 III. 22 23 24 25 26 27

THE PROPOSED SETTLEMENT IS "FAIR, REASONABLE, AND ADEQUATE" .................................................................................6
A. The Settlement Will Benefit the Class...................................................................... 7
B. The Reaction of the Class Supports Approval of the Settlement. ............................. 8
C. The Settlement Was Reached Through Arms-Length Negotiations after the Parties Conducted and Extensive Investigation and Analysis........................................................................................ 8
1. The Parties Actively Litigated Disputed Issues and Engaged in Substantial Discovery................................................................ 8

28

a.

The Charges, Pre-Filing Investigation, and Complaints................... 9

770009.1

PLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL

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CASE NO. 06-3153 CW

Case 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 3 of 17

1

TABLE OF AUTHORITIES

( continued)

2

Page

3

b. Litigation of Disputed Issues............................................................ 9

4

c. Extensive Discovery......................................................................... 9

5

2. The Parties Participated in Arms-Length Negotiations

Before an Experienced Neutral Mediator.. ................................................. 10

6

D. Litigating This Action Would be Complex, Expensive, and

7

Time Consuming and Would Delay and Endanger Recovery................................ l0

8
9
IV.
10

E. The Recommendations of Experienced Counsel Favor Approval of the Settlement. .................................................................................... 11
THE COURT SHOULD CONFIRM FINAL CERTIFICATION OF THE CLASSES ............................................................................. 11

11 V. CONCLUSION.................................................................................................................. 12

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

770009.1

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1

TABLE OF AUTHORITIES

( continued)

2

Page

3

4

CASES

5 Boyd v. Bechtel Corp.,

485 F.Supp. 610 (N.D. Ca1. 1979) ............................................................................. 7, 11

6

Butler v. Home Depot,

7

No. C94 4335 SI (N.D. Ca1.) ............................................................................................... 10

8 Class Plaintiffs v. City ofSeattle,

955 F.2d 1268 (9thCir.1992).......................................... ............................................ .passim

9

Ellis v. Naval Air Reword Facility,

10

87 F.RD. 15 (N.D. Ca1. 1980).................................................................................... 7, 8, 11

11 Gonzalez v. Abercrombie & Fitch Stores, Inc.,

No. 03-2817 SI, 04-4730 SI, and 04-4731 SI (N.D. Ca1.) .................................................. 10

12

Hanlon v. Chrysler Corp.,

13

150F.3d 1011 (9thCir.1998).............................................................................................. 11

14 Ingram v. Coca-Cola Co.,

200 F.RD. 685 (N.D. Ga. 2001)......................................................................................... 10

15

In re Prudential Sec. Inc. Ltd Partnerships Litig.,

16

163 F.RD. 200 (S.D.N.Y. 1995) ..................................................................................... 7

17 M Berenson Co. v. Faneuil Hall Marketplace, Inc.,

671 F.Supp.819 (D. Mass 1987)........................................................................................... 7, 11

18

Officers for Justice v. Civil Servo Comm 'n,

19

688 F.2d 615 (9th Cir. 1982) ....................................................................................... 6, 7

20 Satchell v. Federal Express Corp.,

No. 03-2659 SI, 03-2878 SI (N.D. Ca1.) ............................................................................. 10

21

Shores v. Publix Super Markets, Inc.,

22

95-1162-CIV-T-25E (M.D. Fla.)........................................................................................ 10

23 Staton v. Boeing,

327 F.3d 938. 960 (9th Cir. 2003) ............................................................................... 2, 7

24

Utility Reform Project v. Bonneville Power Admi.,

25

869 F.2d 437 (9th Cir. 1989) ........................................................................................... 6

26

27

28

770009.1

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Case 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 5 of 17

1

NOTICE OF MOTION AND MOTION

2

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

3

NOTICE IS HEREBY GIVEN that on August 7, 2008, at 2:00 p.m., or as soon

4 thereafter as the matter may be heard, in the Courtroom of the Honorable Claudia Wilken of the

5 Northern District of California, Oakland Division, located at 1301 Clay Street, Oakland,

6 California, Plaintiffs Juanita Wynne and Dante Byrd ("Plaintiffs"), on behalf of themselves and

7 all others similarly situated, will, and hereby do, move this Court (1) to grant, pursuant to Federal

8 Rule of Civil Procedure 23(e), final approval of the Consent Decree, attached as Exhibit 1 to this

9 Court's April 4, 2008 order granting preliminary approval (the "Preliminary Approval Order"),

10 and entry ofjudgment in accordance with the Settlement Agreement; and (2) to grant, pursuant to

11 Federal Rule of Civil Procedure 23(a), 23(b)(2), and 23(b)(3), final class certification of the

12 settlement Classes conditionally certified in this Court's Preliminary Approval Order.

13

The Motion is based on this Notice of Motion and Motion, the attached

14 Memorandum of Points and Authorities, the [Proposed] Order Confirming Final Certification Of

15 Class Action And Granting Final Approval To Class Action Settlement And Consent Decree

16 ("Final Order"), the Settlement Agreement, and the declarations of James M. Finberg and Jahan

17 C. Sagafi, the pleadings and papers filed in this case, and any oral argument this Court permits.

18

MEMORANDUM OF POINTS AND AUTHORITIES

19 I. 20

INTRODUCTION Plaintiffs hereby request that this Court grant final approval of the proposed

21 Consent Decree, which provides substantial injunctive and monetary relief to the Class members.

22 Specifically, the Consent Decree provides the following important injunctive remedies: (1)

23 mechanisms to increase the recruitment of African American employees, (2) benchmarks (that are

24 the higher of applicant flow or census data for the relevant occupational code) that will increase

25 the percentage of African Americans in Front-of-the-House Positions, (3) financial incentives to

26 motivate McCormick & Schmick's managers to achieve diversity goals, (4) improved job posting

27 procedures to ensure that all employees are aware of promotion opportunities, (5) enhanced race

28 discrimination complaint procedures, (6) monitoring by an experienced, respected third-party

770009.1

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Case 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 6 of 17

1 Diversity Monitor, and (7) continued oversight by Class Counsel. The Consent Decree also

2 provides $1,100,000 in monetary relief to Class members who submit valid Claim Forms.

3

In short, this settlement is "fair, reasonable, and adequate" within the meaning of

4 Federal Rule of Civil Procedure 23(e). The Class has responded extremely favorably, with 982

5 Class members submitting Claim Forms. Not a single Class member has objected to any aspect

6 of the Consent Decree. Only three individuals have opted out (i.e., only three tenths of a percent 7 of the total number of people responding). 1 Class Counsel have conducted sufficient discovery to

8 enable them to evaluate the claims and defenses in the action. The settlement is in line with the

9 strength and recoverability of Plaintiffs' claims given the risk, expense, complexity, and likely

10 duration of further litigation. See Staton v. Boeing Co., 327 F.3d 938.960 (9th Cir. 2003); Class

11 Plaintiffs v. City ofSeattle, 955 F.2d 1268,1291 (9th Cir. 1992).

12

In connection with requesting final settlement approval, the parties also request

13 that the Court confirm as final (1) the certification of the Classes conditionally certified in its

14 Preliminary Approval Order; and (2) the appointment of Plaintiff Juanita Wynne as Class

15 representative and of Plaintiffs' counsel as Class Counsel as initially ordered in that Order?

16 II. 17

THE CLASS ACTION SETTLEMENT AGREEMENT On April 4, 2008, the Court granted Plaintiffs' Motion For Order: (1) Preliminarily

18 Approving Class Action Settlement And Proposed Consent Decree; (2) Provisionally Certifying

19 Settlement Classes; (3) Approving And Directing Distribution Of Notice Of The Settlement; And

20 (4) Setting A Schedule For The Final Settlement Approval Process ("Preliminary Approval

21 Motion"). The Court determined that the settlement falls "within the range of possible settlement

22 approval," is "the result of extensive, arms' length negotiations between the Parties," "is non-

23 collusive," and was reached only "after Class Counsel had investigated the class claims and

24 became familiar with the strengths and weakness of plaintiffs' case." Preliminary Approval

25 1 The postmark deadline for Claim Forms is July 25, 2008, and the postmark deadline for objections and opt outs is July 15,2008. Class Counsel will update the Court on the final
26 numbers before the fairness hearing. 2 McCormick & Schmick's does not oppose this motion. Furthermore, by separate motion, Class
27 Counsel will, consistent with the terms of the Settlement Agreement, apply for attorneys' fees and costs and seek a service award for Ms. Wynne. McCormick & Schmick's does not oppose those
28 motions either.

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1 Order (Docket No. 82) at 3:14-19.

2

A. Injunctive Relief

3

During the five year term of the Decree, McCormick & Schmick's has agreed to

4 implement meaningful measures to increase the recruiting, hiring, promotion, and compensation

5 of African American employees, and to ensure an increase in the percentage of African

6 Americans in Front-of-the-House Positions.

7

1. Increasing African American Representation in Front of the House

Jobs 8

a. Hiring Benchmarks
9 McCormick & Schmick's will establish benchmarks increase African American
10 incumbency in Front-of-the-House (server, bartender, host) Positions. The benchmarks will be
11 set at the higher of the percentage of African Americans in the (a) applicant flow or (b) the census
12 category for the job sought in the local labor market. Consent Decree, § XI. The Diversity
13 Monitor will regularly examine McCormick & Schmick's human resources data to ensure that it
14 is taking appropriate steps to meet its benchmarks. The term of the Consent Decree is five years,
15 unless McCormick & Schmick's meets all company-wide benchmarks for three consecutive
16 years, in which case the Company may apply to the Court to terminate the Consent Decree at the
17 end of the fourth year. Id, § V.
18 The Diversity Monitor will have the power to require policy changes to increase
19 African American representation. Id, §§ XVIII, XX. If McCormick & Schmick's fails to meet
20 its benchmarks, the Diversity Monitor can order the Company to take corrective steps, such as
21 validating its hiring criteria, enhancing its recruitment, and/or requiring hiring of African
22 Americans from back-of-the-house positions who have expressed interest in moving to Front-of-
23 the-House Positions. Id, § XI(D).
24

b. Enhanced Recruiting Efforts 25
McCormick & Schmick's will also hire a new Corporate Recruiter. Id, § XVI(A). 26
The Company will develop a strategy for increasing and make its best efforts to increase African 27
American representation in front of the house and management positions. Id, § XVI(A)-(B). 28

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1 Specifically, one aspect of this strategy will be the development of a list of recruiting sources and

2 advertising media that reach African Americans. Id, § XVI(B).

3

If any restaurant's African American applicant flow declines for two years in a

4 row, or is lower than the census-based benchmark, the Company will develop a specific plan to

5 increase the number of African American applicants in front of the house jobs at that store,

6 including by enhancing its outreach and recruitment efforts. Id, § XVI(C)-(D).

7

c. Manager Accountability

8

McCormick & Schmick's will evaluate restaurant managers in part on their

9 success in helping achieve the diversity goals, and a meaningful portion of managers' bonuses

10 will be based on performance in that area. Id, § XlV.

11

2. Opening Pathways for Promotion

12

Furthermore, McCormick & Schmick's will implement a "registration of interest"

13 program, which will announce openings at all area restaurants, inviting qualified individuals to

14 apply and explaining the application process. Id, § XII. This reform will protect against the

15 possibility that African Americans miss promotion opportunities because they are not told about

16 them by friends in management. Every employee who registers interest and meets the basic

17 criteria for the position will be considered an applicant for that position in all area restaurants

18 when openings arise. Id, § XII(B)-(C).

19

3. Enhanced Procedures for Complaining About Race Discrimination

20

In addition, McCormick & Schmick's will train all employees on its existing

21 "Ethics Point" complaint system, and enable employees to use Ethics Point to complain about

22 shift and section assignments, the Registration of Interest program, or other measures set out in

23 the Consent Decree. McCormick & Schmick's has also agreed to enhance its investigation

24 procedures to ensure that every complaint is fully investigated, and to document every complaint
25 and the steps taken to investigate each complaint. Id, § xv.

26

4. Monitoring and Enforcement of Decree

27

The Diversity Monitor, Barry Goldstein, will monitor McCormick's policies and

28 practices and its human resources and payroll data, to ensure compliance with all aspects of the

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1 Consent Decree. Throughout the term of the Consent Decree, McCormick & Schmick's will

2 provide regular progress reports to the Diversity Monitor. Id, § XVIII(C)-(D). The Diversity

3 Monitor will also have access to data and documents reasonably related to his duties. Id, §

4 XVIII(B). The Diversity Monitor will issue annual reports detailing McCormick & Schmick's

5 performance on each aspect of the Consent Decree. Id, § XVIII(E).

6

The parties have agreed that Barry Goldstein will serve as the Diversity Monitor.

7 Id, § X. Mr. Goldstein has significant experience in litigating race discrimination cases; he is a

8 preeminent lawyer in this field. James M. Finberg Declaration in support of Preliminary

9 Approval ("Finberg Preliminary Approval Dec."), ~ 31.

10

Both the Diversity Monitor and Class Counsel can bring any compliance concerns

11 to the Court's attention. Id, §§ XIX, Xx.

12

B. Monetary Relief

13

In addition to the significant, comprehensive injunctive relief described above,

14 McCormick & Schmick's will pay Class members who submit valid Claim Forms $1.1 million.

15 Id, § XXI(D)(I). Importantly, none of this money can revert to McCormick & Schmick's. Each

16 Claimant's share of the monetary relief will be based on: (1) length of service and (2) status as

17 "front of the house" or "back of the house" employee. Id, § XXVII(A).3 As detailed in a

18 separate motion being submitted to the Court today, Class Counsel are also applying for approval

19 of a $5,000 class representative service award for Ms. Wynne. This amount is to be paid from the

20 $1.1 million allocated to class monetary relief. Id, § XXI(D)(I).

21

c. Attorneys' Fees and Expenses

22

In addition to the $1.1 million, McCormick & Schmick's has agreed to pay

23 attorneys' fees and costs, as well as costs of settlement administration. As detailed in a further

24 separate motion, McCormick & Schmick's has agreed to pay, separate and apart from the Class

25 monetary relief, $900,000 to reimburse Class Counsel for the substantial fees and expenses they

26 have incurred to date. Id, § XXI(D)(3).

27 3 The parties will attempt to distribute the entirety of the $1.1 million. If, despite the claims administrator's efforts, checks become invalid and are uncashed, the remaining sum shall be paid
28 to the Administration and Monitoring Fund. Id, § XXVII(E).

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1

D. Claims AdministrationlDiversity Monitor

2

McCormick & Schmick's will pay $90,000: (a) for claims administration, (b) to

3 compensate the Diversity Monitor, and (c) to pay fees for work to be performed by Class Counsel

4 in future monitoring the settlement, on an hourly basis. Id, § XXI(D)(5).4

5

E. Settlement Class Claims

6

The Company will pay $5,000 each to Ms. Wynne and Mr. Byrd to compensate

7 them for release of their non-class claims, including Ms. Wynne's potential claims for racial

8 harassment/hostile work environment, and Mr. Byrd's claims arising out of his application for

9 employment with McCormick & Schmick's. Id, §§ VII(B), XXI(D)(4).

10

F. The Class Release

11

In exchange for the aforementioned benefits, the Class members who do not opt

12 out of the settlement will release McCormick & Schmick's from claims brought in this litigation.

13 As set forth in the Consent Decree:

14

Upon the Settlement Effective Date, all Monetary Relief Class

Members who do not timely opt out will release all race

15

discrimination claims against McCormick & Schmick's and its

directors, officers, managers, agents, successors and assigns, which

16

arise out of the conduct alleged in the First Amended Complaint

under Title VII, 42 U.S.C. § 1981, the California FEHA and/or any

17

other state or federal law prohibiting race discrimination, for the

liability period of May 15,2002 through the Preliminary Approval

18

Date [April 4, 2008].

19 Id, § VII(A). The scope of this release was fully described in the Court-approved Notice.

20 (Docket No. 82-3).

21 III. THE PROPOSED SETTLEMENT IS "FAIR, REASONABLE, AND ADEQUATE."

22

"[V]oluntary conciliation and settlement are the preferred means of dispute

23 resolution," especially in complex class actions. Officers for Justice v. Civil Servo Comm 'n, 688

24 F.2d 615, 625 (9th Cir. 1982); Utility Reform Project v. Bonneville Power Admin., 869 F.2d 437,

25 443 (9th Cir. 1989). Class action lawsuits readily lend themselves to compromise because of the

26 difficulties of proof, the uncertainties of the outcome and the typical length of the litigation. As a

27 4 Interest earned on the settlement fund and amounts from uncashed checks will also be paid into the Administration and Monitoring Fund. Id, § XXI(D)(5). It is estimated that claims
28 administration will cost at least $75,000.

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1 result, courts should exercise their discretion to approve settlements "in recognition of the policy

2 encouraging settlement of disputed claims." In re Prudential Sec. Inc. Ltd Partnerships Litig.,

3 163 F.RD. 200, 209 (S.D.N.Y. 1995).

4

To approve a proposed settlement of a class action under Fed. R Civ. P. 23(e), the

5 Court must find that the proposed settlement is "fair, adequate and reasonable," recognizing that

6 "'it is the settlement taken as a whole, rather than the individual component parts, that must be

7 examined for overall fairness.'" Staton, 327 F.3d at 960 (quoting Hanlon v. Chrysler Corp., 150

8 F.3d 1011, 1026 (9th Cir. 1998)).

9

When determining whether to grant final approval, "the court's intrusion upon

10 what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must

11 be limited to the extent necessary to reach a reasoned judgment that the agreement is not the

12 product of fraud or overreaching by, or collusion between, the negotiating parties, and that the

13 settlement, taken as a whole, is fair, reasonable and adequate to all concerned." Officers for

14 Justice, 688 F.2d at 625. The Court should balance "the strength of plaintiffs' case; the risk,

15 expense, complexity, and likely duration of further litigation; the risk of maintaining class action

16 status throughout the trial; the amount offered in settlement; the extent of discovery completed,

17 and the state of the proceedings; the experience and views of counsel ... and the reaction of the

18 class to the proposed settlement." Class Plaintiffs, 955 F.2d at 1291. "The recommendations of

19 plaintiffs' counsel should be given a presumption of reasonableness." Boydv. Bechtel Corp., 485

20 F. Supp. 610, 622 (N.D. Cal. 1979); M Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F.

21 Supp. 819 (D. Mass 1987); Ellis v. Naval Air Rework Facility, 87 F.RD. 15, 18 (N.D. Cal. 1980)

22 ("[T]he fact that experienced counsel involved in the case approved the settlement after hard-

23 fought negotiations is entitled to considerable weight.").

24

A. The Settlement Will Benefit the Class.

25

The settlement provides two substantial benefits to the Class. First, it creates the

26 Consent Decree, which substantially overhauls McCormick & Schmick's employment practices

27 to enhance employment opportunities for thousands of African Americans nationwide for years or

28 decades to come. Second, the settlement creates a settlement fund of$I,100,000, plus (a) half of

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1 the employer's share of payroll taxes, (b) claims administration costs, and (c) monitoring costs.

2

Class members will reap great benefits from these improved employment practices

3 - their application and employment experience is expected to significantly improve as the reforms

4 are implemented. Furthermore, Class members will be able to receive settlement payments

5 without waiting years for payment, facing the possibility of having to participate in discovery or

6 trial, or facing the substantial risk of non-recovery.

7

B. The Reaction of the Class Supports Approval of the Settlement.

8

Notice was sent to 4,799 Class members on May 16, 2008. Declaration of John

9 Keane Re: Notice Procedures ("Keane Dec."), ~ 9. After reasonable efforts were undertaken to

10 find more accurate addresses for those whose Notice packets were returned, and to mail

11 additional Notices to the new addresses, the Claims Administrator determined that 480 Class

12 members did not receive the Notice, and could not be located through reasonable means. Id, ~

13 13. Therefore, up to 4,319 (4,799 - 480) Class members received the Notice packet by mail. As

14 a result of those efforts, 982 Class members (at least 22.7% of those receiving Notice) filed Claim

15 Forms. Furthermore, the Claims Administrator received not a single objection (0.0%). Id, ~ 17.

16 Only three individuals (0.1 % of those receiving Notice, or 0.3% of those responding to the

17 Notice) opted out of the settlement. Id, ~ 16. This indicates overwhelming support for the

18 settlement and strongly favors its approval. 5

19

c. The Settlement Was Reached Through Arms-Length Negotiations after the

Parties Conducted An Extensive Investigation and Analysis. 20

1. The Parties Actively Litigated Disputed Issues And Engaged In

21

Substantial Discovery

22

The parties and their counsel engaged in extensive fact-gathering, informal and

23 formal discovery, and extensive motion practice before reaching the Settlement Agreement. As

24 noted in the concurrently filed Motion For Approval Of Attorneys' Fees And Reimbursement Of

25 Costs and the accompanying Declaration of James M. Finberg in Support of (1) Motion for Final

26
5 Because the postmark deadline for Claim Forms is July 25, 2008, and the postmark deadline for 27 objections and opt outs is July 15,2008, it is possible that these numbers will change. Class
Counsel will submit updated figures on July 31, 2008, in their reply brief in support of final 28 settlement approval.

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1 Approval; (2) Class Counsel's Application for and Award of Attorneys' Fees and Reimbursement

2 of Costs and Expenses; and (3) Motion for Service Payments ("Finberg Final Approval Dec."),

3 Class Counsel spent thousands of hours investigating, preparing, litigating, and negotiating the

4 claims at issue.

5

a. The Charges, Pre-Filing Investigation, And Complaints

6

On May 3 and June 29, 2005, Class Counsel filed administrative charges with the

7 EEOC on behalf of Plaintiffs. Finberg Final Approval Dec., ~ 12. Prior to filing the complaint,

8 Class Counsel surveyed approximately half of McCormick & Schmick's restaurants nationwide

9 and interviewed many witnesses. Id On May 11, 2006, Plaintiffs filed the Complaint in this

10 action, alleging violations of Title VII, 42 U. S. C. § 1981, and FEHA. Id, ~ 13. Plaintiffs filed

11 the First Amended Complaint on July 28, 2006. Id

12

b. Litigation of Disputed Issues

13

At and soon after the parties' Rule 26(f) initial meet and confer, Plaintiffs

14 requested nationwide data to prove their case. McCormick & Schmick's refused, arguing that (a)

15 differences in the restaurant operational practices made nationwide data irrelevant, (b) pre-class

16 certification nationwide discovery was inappropriate, and (c) the discovery was unduly

17 burdensome. On November 29,2006, Plaintiffs moved to compel these data. (Docket No. 33.)

18 On November 28,2006, the Court, per Magistrate Judge Zimmerman, granted Plaintiffs' motion

19 in relevant part, ordering production of nationwide data. (Docket No. 42.)

20

c. Extensive Discovery

21

Class Counsel took the depositions of six Fed. R. Civ. P. 30(b)(6) designees

22 relating to Company operations, hiring practices, training, compensation policies, store openings,

23 data collection, and others. Id, ~ 15. Furthermore, Class Counsel reviewed many thousands of

24 pages of documents from McCormick & Schmick's, including personnel manuals and policies,

25 training materials, and employment applications. Id, ~ 14. Class Counsel also obtained and

26 analyzed Company employment data from 2002 through 2006. Id

27

In addition, both Plaintiffs responded to interrogatories, produced hundreds of

28 pages of documents related to their employment, and submitted to depositions. Id, ~ 17.

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1

Class Counsel and the Company each engaged expert consultants to analyze the

2 payroll data, to determine whether disparities existed in hiring, job assignment, and

3 compensation, and to calculate potential damages exposure. The parties also retained experts

4 regarding the relevant labor pools in the cities in which McCormick's has restaurants. Id, ~ 14.

5 Expert consultants also assisted the parties in negotiating the settlement by proposing and

6 analyzing various methodologies for establishing hiring benchmarks. Id, ~ 23.

7

In sum, Class Counsel completed substantial investigation and discovery and

8 negotiated the proposed Consent Decree with fulsome knowledge regarding the strengths and

9 weaknesses of the case and the amounts necessary to compensate Class members for the harm

10 suffered.

11

2. The Parties Participated In Arms-Length Negotiations Before An

Experienced Neutral Mediator. 12
On July 12, September 26, and November 5,2007, the Parties attended private

13 mediations under the guidance of experienced mediator Hunter Hughes of Atlanta, Georgia, who
14 served as the mediator in many other cases, including Satchell v. Federal Express Corp., C03-
15 2659 SI; C03-2878 SI (N.D. Ca1.), Gonzalez v. Abercrombie & Fitch Stores, Inc., No. 03-2817
16 SI, 04-4730 SI, & 04-4731 SI (N.D. Ca1.), Butler v. Home Depot, No. C94 4335 SI (N.D. Ca1.);
17 Shores v. Publix Super Markets, Inc., 95-1162-CIV-T-25E (M.D. Fla.); and Ingram v. Coca-Cola
18 Co., 200 F.RD. 685, 699 (N.D. Ga. 2001). Id, ~ 19. In addition, counsel for the Parties met
19 face-to-face without the mediator on August 8 and September 12, 2007, and exchanged numerous
20 written settlement proposals during the seven months from July 2007 through February 2008. Id
21

D. Litigating this Action Would Be Complex, Expensive, and Time Consuming,

22

and Would Delay And Endanger Recovery.

23

As is evident from the immense amount of work performed to investigate, litigate,

24 and test the claims at issue and quantify their value, this action involved difficult legal and factual

25 questions. Litigating these claims, which arose over a period of almost six years, would require

26 additional substantial and expensive discovery and pre-trial motions, as well as the consideration,

27 preparation, and presentation of voluminous documentary and testimonial evidence and the

28 preparation and analysis of expert reports. Class certification alone could entail the use of expert

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1 witnesses. Trial itself could require the further use of expert witnesses at both the liability and

2 damages phases, and would involve numerous legal and factual issues. As is typical with any

3 case, but especially so with class actions, appeals would most probably follow with the result that

4 payments to Class members, if any, would likely occur only after several years of delay. Even if

5 Plaintiffs prevailed, a judgment might prove larger than McCormick & Schmick's could afford to

6 pay.

7

In contrast, the Consent Decree before the Court will yield a prompt, certain, and

8 substantial recovery for the Class. Such a result greatly benefits the parties and the court system.

9

E. The Recommendations of Experienced Counsel Favor Approval of the

Settlement. 10
The judgment of experienced counsel regarding the settlement is entitled to great

11 weight. Boyd, 485 F. Supp. at 622; Hanlon, 150 F.3d at 1026; M Berenson Co., 671 F. Supp. at

12 822; Ellis, 87 F.RD. at 18. Here, counsel for both parties endorse the settlement as fair,

13

adequate, and reasonable. 14

In addition, the recommendation of class counsel should be given a presumption of 15

reasonableness. See, e.g., Boyd, 485 F. Supp. at 622. Class Counsel have extensive experience in

16

prosecuting and litigating class action wage-and-hour suits like this one. See Finberg Final

17 Approval Dec., ~ 10; Declaration of Jahan C. Sagafi in Support of (1) Joint Motion for Final

18 Approval of Class Action Settlement, (2) Plaintiffs Motion for Award of Attorneys' Fees, and

19 (3) Plaintiffs Motion for Award of Class Representative Service Payment ("Sagafi Dec."), ~~ 5-

20

14, 18. Class Counsel have conducted extensive investigation of this case, including by 21

reviewing thousands of pages of documents produced by McCormick & Schmick's, deposing six 22

Company representatives, reviewing Class member data, and interviewing dozens of Class

23 Members. Finberg Final Approval Dec., ~~ 14-16, 39. The fact that qualified and well-informed

24 counsel endorse the settlement as being fair, reasonable, and adequate heavily favors this Court's

25 approval of the settlement.

26

IV. THE COURT SHOULD CONFIRM FINAL CERTIFICATION OF THE CLASSES 27

The Court's Preliminary Approval Order provisionally certified the settlement 28

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1 Classes pursuant to Rule 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure. The

2 Court ruled that, for purposes of settlement, the Classes meet the Rule 23 requirements. The

3 Court also appointed Plaintiff Juanita Wynne as Class Representative of both Classes and

4 Plaintiffs' counsel as Class Counsel. The Class members have responded enthusiastically to the

5 settlement. No member of the Class objects to any aspect of the settlement. For these reasons,

6 and the reasons set forth in Plaintiffs' Preliminary Approval Motion, the Court should grant final

7 certification of the Classes for purposes of settlement and should confirm the appointment of the

8 Class Representative and Class Counsel.

9 v. CONCLUSION

10

For the reasons set forth above, Plaintiffs respectfully request that the Court (1)

11 grant final approval to the Settlement Agreement and (2) grant final class certification of the

12 settlement Classes conditionally certified in this Court's Preliminary Approval Order.

13 Date: July 2, 2008 14 15 16 17 18 19 20 21 22 23 24 25

By: lsi James M Finberg James M. Finberg
James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-Mail: jfinberg@altber.com E-Mail: ~~~JY~J)J~:?;@~l1b~Lg9m
Kelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com E-Mail: isagafi@lchb.com

26

27

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
770009.1

Thomas A. Warren THOMAS A. WARREN LAW OFFICES 2032 Thomasville Rd # D Tallahassee, FL 32308-0734 Telephone: (850) 385-1551 Facsimile: (850) 385-6008 Email: tw@nettally.com
Bill Lann Lee (SBN 108452) Todd F. Jackson (SBN 202598) Vincent Cheng (SBN 230827) Lindsay Nako (SBN 239090) LEWIS, FEINBERG, RENAKER &
JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com Email: lnako@lewisfeinberg.com
Robert Rubin (SBN 085084) LAWYERS' COMMITTEE FOR CIVIL RIGHTS
OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: rrubin@lccr.com
Eric Kingsley (SBN 185123) KINGSLEY & KINGSLEY 16133 Venture Blvd., Suite 1200 Encino, CA 91436 Telephone: 818-990-8300 Facsimile: 818-990-2903 Email: kingsleylaw@ao1.com
Attorneys for Plaintiffs and the proposed Classes

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CASE NO. 06-3153 CW

 
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UNITED STATES DISTRICT COURT 9
NORTHERN DISTRICT OF CALIFORNIA 10
OAKLAND DIVISION 11

12 JUANITA WYNNE and DANTE BYRD,
13 on behalf of themselves and classes of those similarly situated,
14 Plaintiffs,
15 v.
16 MCCORMICK & SCHMICK’S
17 SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK
18 RESTAURANT CORP.,

Case No. 06-3153 CW
STIPULATION AND [PROPOSED] ORDER REGARDING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF STATISTICAL DATA

19

Defendants.

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STIP. AND [PROPOSED] ORDER RE : MOTION TO COMPEL
PRODUCTION OF STATIS TICAL DATA
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1

This Stipulation is entered into by and between Juanita Wynne and Dante Byrd

2 (“Plaintiffs”), by and through their undersigned counsel, and McCormick & Schmick’s Seafood

3 Restaurants, Inc. and McCormick & Schmick Restaurant Corp. (“Defendant”), by and through

4 their undersigned counsel. Plaintiffs and Defendant are collectively referred to herein as the

5 “Parties.”

6

RECITALS

7

WHEREAS, on October 3, 2006, Plaintiffs filed a motion to compel statistical

8 data;

9

WHEREAS, on October 4, 2006, the motion was referred to the undersigned

10 United States Magistrate Judge;

11

WHEREAS, on October 19, 2006, after having submitted letter briefs regarding

12 the dispute in accordance with the applicable rules and standing order, the Parties participated in a

13 telephonic conference with the Magistrate Judge in an effort to resolve the dispute;

14

WHEREAS, during that conference, the Magistrate Judge ordered the Parties to

15 meet and confer in a further effort to resolve the dispute, and set forth the following briefing

16 schedule in the event that a resolution could not be reached:

17 Friday, November 3, 2006 18 Monday, November 13, 2006

Plaintiffs to file documents in accordance with N.D. Cal. Local Rule 37-2 Defendant’s opposition brief due

19 Friday, November 17, 2006

Plaintiffs’ reply brief due

20 Wednesday, November 29, 2006

Hearing before Magistrate Judge Zimmerma n,

21 10:00 a.m.

15th floor, courtroom G

WHEREAS, the Parties met and conferred in person on October 24, 2006, at 22

which time they discussed their positions, exchanged information, and considered a potential 23

compromise; and 24

WHEREAS, the Parties have been unable to reach agreement on the proposed 25

compromise, and the Parties agree that the dispute requires judicial resolution; 26

27

28

574559.1

-2-

STIP. AND [PROPOSED] ORDER RE : MOTION TO COMPEL
PRODUCTION OF STATIS TICAL DATA
CASE NO. 06-3153 CW

CaseCa4s:0e64-:c0v6--0c3v1-05331-C53W-CWDoDcoucmuemnet n3t436 FFilieledd1111//0036//200606PagPea3goef 33 of 3

1

STIPULATION AND AGREEMENT

2

1. Plaintiffs may submit a revised motion to compel and accompanying

3 documents reflecting the parties’ further discussion and exchange of information by November 3,

4 2006 along with the Rule 37-2 documents due on the same date.

5

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

6 DATED: November 3, 2006
7

Michael Gallion Michael Gallion, Attorney for Defendant

8 DATED: November 3, 2006
9

Bill Lann Lee Bill Lann Lee, Attorney for Plaintiffs

10

ORDER

11

The foregoing Stipulation is approved, and IT IS SO ORDERED.

12 Dated: __N__o_v_em__b_e_r_6________, 2006
13
14
15

_M_a_g_i_st_r_at_eT_AJ_uT_d_Eg_Se__DB_eI_rS_nT_ar_Rd__IZC_im_T_m_C_er_m__a_n_________
Northern District of California
IT IS SO ORDERED

UNITED S
ALIFORNIA

OURT NORTH

16 17

Judge Bernard Zimmerman

18 19

ERN DISTRICT OF C

20

21

22

23

24

25

26

27

28

574559.1

-3-

STIP. AND [PROPOSED] ORDER RE : MOTION TO COMPEL
PRODUCTION OF STATIS TICAL DATA
CASE NO. 06-3153 CW

 
 Case4:06-cv-03153-CW Document114 Filed08/11/08 Page1 of 5

1 SEYFARTH SHAW LLP Gilmore F. Diekmann, Jr. (SBN 050400)
2 560 Mission Street, Suite 3100 San Francisco, California 94105
3 Telephone: (415) 397-2823 Facsimile: (415) 397-8549
4 Email: gdiekmann@seyfarth.com

5 SEYFARTH SHAW LLP Michael L. Gallion (SBN 189128)
6 William C. Thomas (SBN 241789) 2029 Century Park East #3300
7 Los Angeles, CA 90067-3063 Telephone: (310) 277-7200
8 Facsimile: (310) 201-5219 Email: mgallion@seyfarth.com
9 Email: wthomas@seyfarth.com

10 Attorneys for Defendants MCCORMICK & SCHMICK’S
11 SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK’S RESTAURANT CORP.
12

13

UNITED STATES DISTRICT COURT

14

IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

JUANITA WYNNE and DANTE BYRD, ON ) BEHALF OF THEMSELVES AND CLASSES )

Case No. CV-06-3153 CW

16 OF THOSE SIMILARLY SITUATED,

)

) STIPULATION AND ORDER TO

17

Plaintiffs,

) ACCOUNT FOR CLAIMANTS WHO

) PREVIOUSLY SETTLED RACE

18

v.

) DISCRIMINATION CLAIMS

) ENCOMPASSED BY CONSENT

19 MCCORMICK & SCHMICK’S SEAFOOD ) DECREE

RESTAURANTS, INC. and MCCORMICK & )

20 SCHMICK RESTAURANT CORP.,

)

)

21

Defendants.

)

) 22

23

24 / / /

25 / / /

26 / / /

27

28

STIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE

Case4:06-cv-03153-CW Document114 Filed08/11/08 Page2 of 5

1

WHEREAS, on August 7, 2008, this Court held a Final Approval Hearing on this Class

2 Action Settlement and entered an Order granting Plaintiffs’ Motion For Final Approval of Class

3 Action Settlement;

4

WHEREAS, between 2003 and 2007, Defendants settled six individual race

5 discrimination claims brought by former employees Andre Cox, Anuheia Richardson, Donald

6 Stanfield, Shannon Campbell, Kevin Fuller and Bryant Storey;

7

WHEREAS, each of these six former employees of Defendants settled and fully released

8 their respective race discrimination claims in exchange for a monetary payment;

9

WHEREAS, counsel for Defendants have shared the six individual settlement agreements

10 with Class Counsel to demonstrate that all six persons have previously settled claims of race

11 discrimination and that the individual employees did not work for Defendants for any period of

12 time subsequent to the execution of their respective settlement agreements;

13

WHEREAS, the six individuals Andre Cox, Anuheia Richardson, Donald Stanfield,

14 Shannon Campbell, Kevin Fuller and Bryant Storey filed claims with the Claims Administrator

15 to participate in the monetary settlement of this Class Action; and

16

WHEREAS, the parties to this Stipulation are in agreement that these six class claimants

17 have previously resolved their respective race discrimination claims with Defendants in

18 exchange for a monetary payment and that each claimant should therefore not receive an

19 additional payment as a claimant in this Class Settlement.

20

IT IS HEREBY STIPULATED BY AND BETWEEN COUNSEL FOR THE PARTIES:

21 the six claimants Andre Cox, Anuheia Richardson, Donald Stanfield, Shannon Campbell, Kevin

22 Fuller and Bryant Storey did resolve with Defendants individual claims of race discrimination

23 prior to the entry of this Court’s Order dated August 7, 2008; and therefore their six individual

24 claims submitted to the Claims Administrator for this Class Action should be denied.

25

26

27

28 1
STIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE

Case4:06-cv-03153-CW Document114 Filed08/11/08 Page3 of 5

1 DATED: August 8, 2008

SEYFARTH SHAW LLP

2

By /s/ William C. Thomas III

3

William C. Thomas III

4

I hereby attest that I have on file all holograph

signatures for any signatures indicated by a

5

“conformed” signature (/S/) within this efiled

document. 6

7

Attorneys for Defendants

8 9 10 11 DATED: August 8, 2008

MCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK’S RESTAURANT CORP.
By: /s/ James M. Finberg

12

I hereby attest that I have on file all holograph

signatures for any signatures indicated by a

13

“conformed” signature (/S/) within this efiled

14

document.

15

James M. Finberg

James M. Finberg (SBN 114850)

16

Eve H. Cervantez (SB 164709)

ALTSHULER BERZON LLP

17

177 Post Street, Suite 300

18

San Francisco, CA 94108 Telephone: (415) 421-7151

19

Facsimile: (415) 362-8064

E-Mail: jfinberg@altshulerberzon.com

20

E-Mail: ecervantez@altshulerberzon.com

21

Kelly M. Dermody (SBN 171716)

22

Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &

23

BERNSTEIN, LLP

275 Battery Street, 30th Floor

24

San Francisco, CA 94111-3339

Telephone: (415) 956-1000

25

Facsimile: (415) 956-1008

26

E-Mail: kdermody@lchb.com

E-Mail: jsagafi@lchb.com

27

28 2
STIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE

Case4:06-cv-03153-CW Document114 Filed08/11/08 Page4 of 5

1

Robert Rubin (SBN 085084)

Diana C. Tate (SBN 232264

2

THE LAWYERS’ COMMITTEE FOR CIVIL

3

RIGHTS OF THE SAN FRANCISCO BAYAREA

131 Steuart Street, Suite 400

4

San Francisco, CA 94105

Telephone (415) 543-9444

5

Facsimile: (415) 543-0296

E-Mail: rrubin@lccr.com

6

E-Mail: dtate@lccr.com

7 Thomas A. Warren

8

THOMAS A. WARREN LAW OFFICES

2032 Thomasville Rd #D

9

Tallahassee, FL 32308-0734

10

telephone: (850) 385-1551 Facsimile: (850) 385-6008

11

Email: tw@nettally.com

12

Bill Lann Lee (SBN 108452)

Todd F. Jackson (SBN 202598)

13

Vincent Cheng (SBN 230827)

14

Lindsay Nako (SBN 239090) LEWIS, FEINBERG, LEE, RENAKER &

15

JACKSON, P.C.

1300 Broadway, Suite 1800

16

Oakland, CA 94612

Telephone: (510) 839-6824 17

Facsimile: (510) 839-7839

18

Email: blee@lewisfeinberg.com

19

Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com

20

Email: lnako@lewisfeinberg.com

21

Gary Lafayette (SBN 08866)

LAFAYETTE & KUMAGAI

22

100 Spear Street, Suite 400

23

San Francisco, CA 94105 Telephone: (415) 357-4600

24

Facsimile: (415) 357-4605

flafayette@lkclaw.com

25

26

27

28 3
STIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE

Case4:06-cv-03153-CW Document114 Filed08/11/08 Page5 of 5

1

Eric Kingsley (SBN 185123)

KINGSLEY & KINSGSLEY

2

16133 Venture Blvd., Suite 1200

3

Encino, CA 91436

Telephone: (818) 990-8300

4

Facsimile: (818) 990-2903

Email: kingsleylaw@aol.com

5

Attorneys for Plaintiffs and the proposed Class

6

Members JUANITA WYNNE and DANTE BYRD,

7

on behalf of themselves and classes of those

similarly situated

8

9

10

ORDER

11 The foregoing stipulation is approved, and IT IS SO ORDERED.

12

8/11/08

Date: __________________________

13

14

______________________________ Hon. Claudia Wilken United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4
STIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY LA1 6717613S.1ETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE

 
 Wynne v. McCormick & Schmicks’s Seafood Restaurants, Inc., Not Reported in...
2006 WL 3422226 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Juanita WYNNE, on behalf of themselves and classes of those similarly situated, Plaintiff(s), v.
McCORMICK & SCHMICKS’S SEAFOOD RESTAURANTS, INC., et al., Defendant(s).
No. C06-3153 CW (BZ). | Nov. 28, 2006.
Attorneys and Law Firms
James M. Finberg, Bill Lann Lee, Jahan C. Sagafi, Lieff Cabraser Heimann & Bernstein LLP, Diana Tate, Robert Rubin, Lawyers Committee for Civil Rights, Gilmore F. Diekmann, Jr., Seyfarth Shaw LLP, San Francisco, CA, Thomas A. Warren, Thomas A. Warren Law Offices, Tallahassee, FL, for Plaintiff(s).
Gilmore F. Diekmann, Jr., Eric E. Hill, Kamili Williams Dawson, Seyfarth Shaw LLP, San Francisco, CA, Gerald L. Maatman, Jr., Seyfarth Shaw LLP, Chicago, IL, Michael L. Gallion, William Carl Thomas, III, Seyfarth Shaw, Los Angeles, CA, for Defendant(s).
Opinion
ORDER GRANTING IN PART PLAINTIFFS’ AMENDED MOTION TO COMPEL PRODUCTION OF STATISTICAL DATA
BERNARD ZIMMERMAN, Magistrate Judge.
*1 Before the court is plaintiffs’ Amended Motion to Compel Production of Statistical Data.1 In opposing discovery, defendants make two principal arguments:
1. That discovery should be limited to the Berkeley restaurant which is the subject of the complaints by the two named plaintiffs; and
2. That plaintiffs should instead, or at least first, depose a broad range of individuals tendered by defendants who presumably will satisfy plaintiffs that the challenged hiring practices are limited to the Berkeley restaurant because defendants restaurants operate on a decentralized basis.
As to defendants’ first argument, this court cannot say as a matter of law that statistical evidence of discrimination at stores other than Berkeley, is not relevant to the issue of whether a class should be certified that would extend to stores other than Berkeley.2 The decision whether to permit discovery pre-class certification is within the sound discretion of the court. Barnhart v. Safeway Stores, Inc., 1992 WL 443561, at *2 (E.D.Cal. Dec. 14, 1992). Statistical evidence in particular is well-accepted evidence of class wide discrimination, and may go to the commonality prerequisite. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 154 (N.D.Cal.2004) (appeal pending); see also Barefield v. Chevron U.S.A., Inc., 1987 WL 65054, at *3 (N.D.Cal. Sept. 9, 1987). Indeed, as the Ninth Circuit has explained, “ ‘the often-cited aphorism, ‘statistics often tell much and Courts listen,’ has particular application in Title VII cases.’ “ Blake v. City of Los Angeles, 595 F.2d 1367, 1375 n. 4 (9th Cir.1979) (quoting United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.1971)).
In their opposition, defendants repeatedly argue that plaintiffs have no evidence of discrimination at any restaurant other than at Berkeley. In reply, plaintiffs have submitted declarations of nine (9) individuals who claim to have suffered or witnessed various types of discrimination in eleven (11) different restaurants operated by defendants in various states.
As to the second argument, defendants have cited no authority, and the court is aware of none, for the proposition that
1

Wynne v. McCormick & Schmicks’s Seafood Restaurants, Inc., Not Reported in...
defendants can dictate the means of discovery that the plaintiffs must use. That proposition appears inconsistent with Rule 26(d). I agree with the argument that the plaintiffs advanced during the telephonic hearing some weeks ago that it would not be efficient to require them first to depose defendants’ management personnel since they might have to be re-deposed once the statistical discovery was produced. While the defendants’ witnesses might be willing to undergo multiple depositions, I see no reason to force plaintiffs to do so.
Finally, some of defendants’ objections to the original discovery requested are well taken. While plaintiffs assert that they are moving to compel production of only statistical data, plaintiffs have not rewritten their discovery requests. In an effort to avoid confusion, I will rule on each request specifically and generally limit plaintiffs’ requests to certain electronically stored information and government mandated compliance reports and other similar documents. I have also denied those requests which are irrelevant to plaintiffs’ current need for statistical data.
*2 Based on the foregoing, I HEREBY ORDER the following:
(1) Plaintiffs’ requests for production nos. 6 and 7 are GRANTED to the extent that they request electronically stored data showing the race, date of application, date of hire, job title(s), salary/wage rates, gross pay, bonuses, fulltime/part-time status, hours, shifts, restaurant location, and termination codes for all current and former restaurant employees and applicants and current and former restaurant-level managers and applicants from May 11, 2002 to the present. Plaintiffs’ requests nos. 6 and 7 are DENIED to the extent they request the names, addresses, gender, and national origin of defendants’ employees and applicants. Plaintiffs have failed to demonstrate the relevance of this information at this stage of litigation.
(2) Plaintiffs’ request for production no. 8 is DENIED. The request is over broad and irrelevant in that corporate employees are not members of the alleged putative classes.
(3) Plaintiffs’ request for production no. 9 is DENIED. As written, plaintiffs requests all conceivable documents pertaining to daily work assignments. At this stage of litigation, the request is overly burdensome and irrelevant to plaintiffs’ need to develop statistical data for class certification purposes.
(4) Plaintiffs’ requests for production nos. 31 and 32 are DENIED. These requests seek personal information about defendants’ employees and applicants. At this stage of litigation, the requests are overly burdensome and irrelevant.
(5) Plaintiffs’ requests for production nos. 34, 35, 36 are GRANTED IN PART AND DENIED IN PART. Defendants shall produce all EEO-1 reports and all comparable compliance reports submitted to any federal, state, or local agency on behalf of each of its restaurants between May 11, 2002 to the present. Plaintiffs’ requests for documents referring or relating to the described reports are, at this stage, overly burdensome.
(6) The denials recited above are made without prejudice to plaintiffs’ ability to renew their requests at later stages of litigation.
(7) Defendants are ORDERED to provide further discovery consistent with this order no later than January 2, 2007.

Footnotes

1

A party may obtain discovery as to “any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P.

26(b)(1). Courts broadly construe the scope of permissible discovery. See, e.g., In re Advanced Interventional Systems Securities

Litigation, 1993 WL 331006, at *1 (C.D.Cal. May 17, 1993) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

(1978)).

2

I have discounted defendants arguments that the propounded discovery would be burdensome because the argument is not

supported by any declaration establishing burden. In any event I believe the limitations I impose will mitigate any burden, for the

time being, that may exist.

2

 
 Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 1 of 13
ADRMOP,CLOSED,E−Filing,PROTO,PRVADR
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:06−cv−03153−CW

Wynne et al v. McCormick & Schmick's Seafood Restaurants, Inc. et al Assigned to: Hon. Claudia Wilken Referred to: Magistrate Judge Bernard Zimmerman Cause: 42:1981 Job Discrimination (Race)
Plaintiff

Date Filed: 05/11/2006 Date Terminated: 08/08/2008 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Juanita Wynne on behalf of themselves and classes of those similarly situated

represented by James M. Finberg Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jfinberg@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: blee@creeclaw.org ATTORNEY TO BE NOTICED

Diana Tate Vermeire Gable Gotwals One Leadership Square Fifteenth Floor 211 B Robinson Oklahoma City, OK 73102 405−235−5519 Email: dvermeire@gablelaw.com ATTORNEY TO BE NOTICED

Eve Hedy Cervantez Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: 415−362−8064 Email: ecervantez@altshulerberzon.com ATTORNEY TO BE NOTICED

Gilmore F. Diekmann , Jr. Seyfarth Shaw LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: gdiekmann@seyfarth.com ATTORNEY TO BE NOTICED

Jahan C. Sagafi OUTTEN & GOLDEN LLP One Embarcadero Center 38th Floor

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 2 of 13
San Francisco, CA 94111−3339 415−638−8800 Fax: 415−638−8810 Email: jsagafi@outtengolden.com ATTORNEY TO BE NOTICED
Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com ATTORNEY TO BE NOTICED
Rebekah B. Evenson ALTSHULER BERZON LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: revenson@altshulerberzon.com ATTORNEY TO BE NOTICED
Robert Rubin Lawyers' Committee for Civil Rights of the San Francisco Bay Area 131 Steuart Street Suite 400 San Francisco, CA 94105 415−543−9444 Fax: 415−543−0296 Email: robertrubinsf@gmail.com ATTORNEY TO BE NOTICED
Thomas A. Warren Thomas A. Warren Law Offices 2032 Thomasville Rd., #D Tallahassee, FL 32308−0734 (850) 385−1551 ATTORNEY TO BE NOTICED
Vincent Cheng Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: vcheng@lewisfeinberg.com ATTORNEY TO BE NOTICED
William Carl Thomas , III Seyfarth Shaw 2029 Century Park East Suite 3300 Los Angeles, CA 90067−3063 310−201−1516 Fax: 310−201−5219 Email: wthomas@seyfarth.com ATTORNEY TO BE NOTICED
Plaintiff

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 3 of 13

Dante Byrd on behalf of themselves and classes of those similarly situated

represented by James M. Finberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Diana Tate Vermeire (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Gilmore F. Diekmann , Jr. (See above for address) ATTORNEY TO BE NOTICED

Jahan C. Sagafi (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Robert Rubin (See above for address) ATTORNEY TO BE NOTICED

Thomas A. Warren (See above for address) ATTORNEY TO BE NOTICED

Vincent Cheng (See above for address) ATTORNEY TO BE NOTICED

William Carl Thomas , III (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
McCormick & Schmick's Seafood Restaurants, Inc.

represented by Gilmore F. Diekmann , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric E. Hill Seyfarth Shaw LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: ehill@seyfarth.com

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 4 of 13

ATTORNEY TO BE NOTICED

Gerald L. Maatman , Jr. Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 312−460−5965 Fax: 312−460−7965 Email: gmaatman@seyfarth.com ATTORNEY TO BE NOTICED

Kamili Williams Dawson Seyfarth Shaw 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: kdawson@seyfarth.com ATTORNEY TO BE NOTICED

Michael L. Gallion Sheppard Mullin Richter & Hampton LLP 1901 Avenue of the Stars Suite 1600 Los Angeles, CA 90067 310−228−3700 Fax: 310−228−3701 Email: mgallion@sheppardmullin.com ATTORNEY TO BE NOTICED

William Carl Thomas , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
McCormick & Schmick Restaurant Corp.

represented by Gilmore F. Diekmann , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric E. Hill (See above for address) ATTORNEY TO BE NOTICED

Gerald L. Maatman , Jr. (See above for address) ATTORNEY TO BE NOTICED

Kamili Williams Dawson (See above for address) ATTORNEY TO BE NOTICED

Michael L. Gallion (See above for address) ATTORNEY TO BE NOTICED

William Carl Thomas , III (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 5 of 13

05/11/2006
05/11/2006 05/11/2006 05/11/2006 06/08/2006 06/08/2006 06/08/2006
06/08/2006 06/09/2006 06/09/2006 06/26/2006
06/27/2006 06/30/2006 07/07/2006 07/28/2006
08/18/2006 08/18/2006

1 COMPLAINT (with jury demand) against McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp. (Filing fee $350, receipt number 3385531). Filed by Juanita Wynne, Dante Byrd. (cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)
Summons Issued as to McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)
2 ADR SCHEDULING ORDER: Case Management Statement due by 9/1/2006. Case Management Conference set for 9/8/2006 01:30 PM. (Attachments: # 1 Standing Order)(cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)
CASE DESIGNATED for Electronic Filing. (cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)
3 NOTICE of Appearance by Gilmore F. Diekmann, Jr (Diekmann, Gilmore) (Filed on 6/8/2006) (Entered: 06/08/2006)
4 NOTICE of Appearance by Kamili Williams Dawson (Dawson, Kamili) (Filed on 6/8/2006) (Entered: 06/08/2006)
5 STIPULATION EXTENDING DEFENDANTS' TIME TO PLEAD by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp., Juanita Wynne, Dante Byrd. (Diekmann, Gilmore) (Filed on 6/8/2006) (Entered: 06/08/2006)
6 NOTICE of Appearance by Thomas Larry Watts William C. Thomas (Watts, Thomas) (Filed on 6/8/2006) (Entered: 06/08/2006)
7 NOTICE of Appearance by Eric E. Hill (Hill, Eric) (Filed on 6/9/2006) (Entered: 06/09/2006)
8 NOTICE of Appearance by Thomas Larry Watts Michael L. Gallion (Watts, Thomas) (Filed on 6/9/2006) (Entered: 06/09/2006)
9 MOTION for leave to appear in Pro Hac Vice (Thomas A. Warren) filed by Juanita Wynne, Dante Byrd; fee paid, receipt #4412891 (cp, COURT STAFF) (Filed on 6/26/2006) Additional attachment(s) added on 6/26/2006 (cp, COURT STAFF). (Entered: 06/26/2006)
10 STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO PLEAD by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Diekmann, Gilmore) (Filed on 6/27/2006) (Entered: 06/27/2006)
11 ORDER re 10 Granting STIPULATION EXTENDING TIME TO PLEAD. Signed by Judge Claudia Wilken on 6/30/06. (scc, COURT STAFF) (Filed on 6/30/2006) (Entered: 06/30/2006)
12 ORDER by Judge Claudia Wilken GRANTING 9 Motion for Pro Hac Vice (Thomas A. Warren) (kc, COURT STAFF) (Filed on 7/7/2006) (Entered: 07/07/2006)
13 AMENDED COMPLAINT First Amended Complaint for Injunctive, Declaratory Relief, and Damages for Violations of 42 U.S.C. Section 1981, Title VII, and the California Fair Employment and Housing Act; Jury Demand against McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. Filed byJuanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/28/2006) Modified on 7/31/2006 (cp, COURT STAFF). (Entered: 07/28/2006)
14 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options ADR CERTIFICATION BY PARTIES AND COUNSEL (Sagafi, Jahan) (Filed on 8/18/2006) (Entered: 08/18/2006)
15 STIPULATION and Proposed Order selecting Private ADR by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp., Juanita Wynne, Dante Byrd (Sagafi, Jahan) (Filed on 8/18/2006) (Entered: 08/18/2006)

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08/28/2006 08/31/2006 09/01/2006 09/01/2006 09/27/2006
09/29/2006 10/03/2006
10/04/2006 10/04/2006 10/04/2006 10/10/2006 10/10/2006 10/12/2006 10/13/2006
10/16/2006 10/18/2006 10/19/2006
10/19/2006

16 DEFENDANTS' ANSWER to Amended Complaint byMcCormick & Schmick's Seafood Restaurants, Inc.. (Hill, Eric) (Filed on 8/28/2006) (Entered: 08/28/2006)
17 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 8/31/2006) (Entered: 08/31/2006)
18 DEMAND for Trial by Jury by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Diekmann, Gilmore) (Filed on 9/1/2006) (Entered: 09/01/2006)
19 ORDER re 15 Granting Stipulation r selecting Private ADR and REFERRING CASE to Private ADR. Signed by Judge Claudia Wilken on 9/1/06. (scc, COURT STAFF) (Filed on 9/1/2006) (Entered: 09/01/2006)
20 MINUTE ORDER AND CASE MANAGEMENT ORDER: Case referred to Private ADR. Further Case Management Conference set for 8/10/2007 01:30 PM.. Signed by Judge Claudia Wilken on 9/27/06. (scc, COURT STAFF) (Filed on 9/27/2006) (Entered: 09/27/2006)
21 TRANSCRIPT of Proceedings held on 9/8/2006 before Judge Claudia Wilken. Court Reporter: Diane E. Skillman. (kc, COURT STAFF) (Filed on 9/29/2006) (Entered: 10/02/2006)
22 MOTION to Compel Production of Statistical Data and Memorandum of Points and Authorities filed by Juanita Wynne, Dante Byrd. (Attachments: # 1 Declaration of James M. Finberg in Support of Plaintiffs' Motion to Compel Production of Statistical Data# 2 Proposed Order Granting Plaintiffs' Motion to Compel Production of Statistical Data)(Lee, Bill) (Filed on 10/3/2006) (Entered: 10/03/2006)
23 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Claudia Wilken on 10/4/06. (scc, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/04/2006)
CASE REFERRED to Magistrate Judge Bernard Zimmerman for Discovery (wh, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/04/2006)
MOTIONS 22 MOTION to Compel Production of Statistical Data and Memorandum of Points and Authorities REFERRED to Judge Judge Bernard Zimmerman. (cp, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/05/2006)
24 INITIAL DISCOVERY ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/10/2006. (bzsec, COURT STAFF) (Filed on 10/10/2006) (Entered: 10/10/2006)
25 AMENDED INITIAL DISCOVER ORDER CORRECTING CAPTION OF ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/10/2006. (bzsec, COURT STAFF) (Filed on 10/10/2006) (Entered: 10/10/2006)
26 Letter from Bill Lann Lee to Honorable Magistrate Judge Zimmerman. (Lee, Bill) (Filed on 10/12/2006) (Entered: 10/12/2006)
31 MOTION for leave to appear in Pro Hac Vice (Gerald L. Maatman, Jr) filed by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp..; Fee paid, receipt #3391215 (cp, COURT STAFF) (Filed on 10/13/2006) (Entered: 10/20/2006)
27 Letter from Defendant McCormick & Schmick's. (Kaufman, Thomas) (Filed on 10/16/2006) (Entered: 10/16/2006)
28 CLERK'S NOTICE SCHEDULING TELEPHONIC HEARING RE DISCOVERY DISPUTE(S). (bzsec, COURT STAFF) (Filed on 10/18/2006) (Entered: 10/18/2006)
30 Minute Entry: Discovery Hearing held on 10/19/2006 before Magistrate Judge Bernard Zimmerman (Date Filed: 10/19/2006). (Tape #TC 22−06.) (bzsec, COURT STAFF) (Date Filed: 10/19/2006) Modified on 10/23/2006 (cp, COURT STAFF). (Entered: 10/20/2006)
32 ORDER by Judge Claudia Wilken granting 31 Motion for Pro Hac Vice (Gerald L. Maatman, Jr.) (cp, COURT STAFF) (Filed on 10/19/2006) (Entered: 10/20/2006)

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10/20/2006 10/23/2006 11/03/2006
11/03/2006 11/03/2006
11/06/2006 11/13/2006
11/14/2006 11/17/2006
11/22/2006 11/28/2006 11/28/2006 11/28/2006 12/18/2006 01/16/2007 01/16/2007 01/17/2007

29 SCHEDULING ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/20/2006. (bzsec, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
Set/Reset Deadlines as to 22 MOTION to Compel Production of Statistical Data and Memorandum of Points and Authorities. Motion Hearing set for 11/29/2006 10:00 AM. (cp, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/23/2006)
33 Amended MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 11/29/2006 10:00 AM in Courtroom G, 15th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Bill Lann Lee# 2 Affidavit Declaration of James M. Finberg# 3 Proposed Order # 4 Supplement Plaintiffs' Local Rule 37−2 Filing in Support of Motion to Compel)(Lee, Bill) (Filed on 11/3/2006) Modified on 11/6/2006 (cp, COURT STAFF). (Entered: 11/03/2006)
34 STIPULATION and Proposed Order Regarding Plaintiffs' Motion to Compel Production of Statistical Data by Juanita Wynne, Dante Byrd. (Lee, Bill) (Filed on 11/3/2006) (Entered: 11/03/2006)
35 Declaration of Bill Lann Lee with Exhibits A and B re 33 MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities by Juanita Wynne, Dante Byrd. (Lee, Bill) (Filed on 11/3/2006) Modified on 11/6/2006 (cp, COURT STAFF). (Entered: 11/03/2006)
36 STIPULATION AND ORDER. Signed by Magistrate Judge Bernard Zimmerman on 11/6/2006. (bzsec, COURT STAFF) (Filed on 11/6/2006) (Entered: 11/06/2006)
37 Memorandum in Opposition re 33 MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities Defendants' Opposition to Motion to Compel Production of Statistical Data filed byMcCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Attachments: # 1 Affidavit Decl of Marit Cadwell# 2 Affidavit Decl of Michael L. Gallion)(Thomas, William) (Filed on 11/13/2006) (Entered: 11/13/2006)
38 CERTIFICATE OF SERVICE by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp. re 37 Memorandum in Opposition, Proof of Service (Thomas, William) (Filed on 11/14/2006) (Entered: 11/14/2006)
39 Reply to Opposition re 33 MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Affidavit Declaration of Jahan Sagafi)(Sagafi, Jahan) (Filed on 11/17/2006) (Entered: 11/17/2006)
40 CLERK'S NOTICE REGARDING TENTATIVE RULING. (Attachments: # 1) (bzsec, COURT STAFF) (Filed on 11/22/2006) (Entered: 11/22/2006)
41 Letter from Bill Lann Lee and Michael L. Gallion to Honorable Bernard Zimmerman. (Lee, Bill) (Filed on 11/28/2006) (Entered: 11/28/2006)
42 ORDER by Magistrate Judge Bernard Zimmerman granting in part 33 Motion to Compel (bzsec, COURT STAFF) (Filed on 11/28/2006) (Entered: 11/28/2006)
43 CLERK'S NOTICE VACATING HEARING. (bzsec, COURT STAFF) (Filed on 11/28/2006) (Entered: 11/28/2006)
44 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 12/18/2006) (Entered: 12/18/2006)
45 NOTICE of Appearance by Eve H. Cervantez (Cervantez, Eve) (Filed on 1/16/2007) (Entered: 01/16/2007)
46 NOTICE by Juanita Wynne, Dante Byrd ASSOCIATION OF COUNSEL (Finberg, James) (Filed on 1/16/2007) (Entered: 01/16/2007)
47 NOTICE by Juanita Wynne, Dante Byrd of Change of Firm of Bill Lann Lee and Notice of Firm Name Change (Cheng, Vincent) (Filed on 1/17/2007) (Entered: 01/17/2007)

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03/06/2007 03/07/2007 03/07/2007 03/07/2007 03/08/2007 03/12/2007 03/15/2007 03/15/2007 03/16/2007
03/19/2007 03/19/2007
03/19/2007 03/27/2007 03/30/2007 03/30/2007
04/02/2007 04/05/2007 05/02/2007
05/02/2007

48 Letter from Jahan C. Sagafi to The Honorable Magistrate Judge Zimmerman. (Sagafi, Jahan) (Filed on 3/6/2007) (Entered: 03/06/2007)
49 Letter from Reiko Furuta to Honorable Judge Bernard Zimmerman. (Thomas, William) (Filed on 3/7/2007) (Entered: 03/07/2007)
50 ORDER GRANTING REQUEST OF DEFENDANT MCCORMICK & SCHMICK. Signed by Magistrate Judge Bernard Zimmerman on 3/7/2007. (bzsec, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)
51 CLERK'S NOTICE SCHEDULING TELEPHONIC CONFERENCE RE DISCOVERY DISPUTE. (bzsec, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)
Set/Reset Hearings: Telephonic Conference re discovery dispute set for 3/15/2007 09:00 AM (cp, COURT STAFF) (Filed on 3/8/2007) (Entered: 03/08/2007)
52 Letter from William C. Thomas, III. (Thomas, William) (Filed on 3/12/2007) (Entered: 03/12/2007)
53 Minute Entry: Discovery Hearing held on 3/15/2007 before Magistrate Judge Bernard Zimmerman (Date Filed: 3/15/2007). (Tape #TC 05−07.) (bzsec, COURT STAFF) (Date Filed: 3/15/2007) (Entered: 03/15/2007)
54 SECOND DISCOVERY ORDER. Signed by Magistrate Judge Bernard Zimmerman on 3/15/2007. (bzsec, COURT STAFF) (Filed on 3/15/2007) (Entered: 03/15/2007)
55 ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 4/18/2007 10:00 AM. Show Cause Response due by 3/30/2007.. Signed by Magistrate Judge Bernard Zimmerman on 3/16/2007. (bzsec, COURT STAFF) (Filed on 3/16/2007) (Entered: 03/16/2007)
56 NOTICE by Juanita Wynne, Dante Byrd Notice of Lodging of Audiotape and Transcript (Sagafi, Jahan) (Filed on 3/19/2007) (Entered: 03/19/2007)
57 NOTICE to Employee of Privacy Rights by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp. (cp, COURT STAFF) (Filed on 3/19/2007) Additional attachment(s) added on 4/3/2007 (cp, COURT STAFF). (Entered: 03/23/2007)
58 CLERK'S NOTICE re: Failure to E−File (docket #57) (cp, COURT STAFF) (Filed on 3/19/2007) (Entered: 03/23/2007)
59 CLERK'S NOTICE Order to Show Cause Hearing reset to 4/18/2007 02:00 PM. (ls, COURT STAFF) (Filed on 3/27/2007) (Entered: 03/27/2007)
60 Response to Order to Show Cause byJuanita Wynne, Dante Byrd. (Sagafi, Jahan) (Filed on 3/30/2007) Modified on 4/2/2007 (cp, COURT STAFF). (Entered: 03/30/2007)
61 Response to Order to Show Cause ; DECLARATION OF MICHAEL L. GALLION IN SUPPORT THEREOF byMcCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Attachments: # 1 Affidavit Proof of Service)(Thomas, William) (Filed on 3/30/2007) (Entered: 03/30/2007)
62 ORDER DISCHARGING ORDER TO SHOW CAUSE. Signed by Magistrate Judge Bernard Zimmerman on 4/2/2007. (bzsec, COURT STAFF) (Filed on 4/2/2007) (Entered: 04/02/2007)
63 NOTICE of Appearance by Rebekah B. Evenson (Evenson, Rebekah) (Filed on 4/5/2007) (Entered: 04/05/2007)
64 STIPULATION and PROPOSED ORDER FOR PROTECTIVE ORDER by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Thomas, William) (Filed on 5/2/2007) Modified on 5/3/2007 (cp, COURT STAFF). (Entered: 05/02/2007)
Received Confidentiality Agreement and Stipulation for Protective Order by Juanita Wynne, Dante Byrd. (kc, COURT STAFF) (Filed on 5/2/2007) (Entered: 05/03/2007)

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 9 of 13

05/03/2007 05/14/2007 05/16/2007 05/18/2007 05/18/2007 07/16/2007 07/26/2007 09/27/2007 10/01/2007

65 ORDER re 64 granting STIPULATION FOR PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 5/3/07. (scc, COURT STAFF) (Filed on 5/3/2007) (Entered: 05/03/2007)
66 STIPULATION AND [PROPOSED] ORDER REGARDING CLASS CERTIFICATION BRIEFING SCHEDULE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 5/14/2007) (Entered: 05/14/2007)
67 AMENDED STIPULATION AND [PROPOSED] ORDER REGARDING CLASS CERTIFICATION BRIEFING SCHEDULE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 5/16/2007) Modified on 5/17/2007 (cp, COURT STAFF). (Entered: 05/16/2007)
68 ORDER re 67 granting AMENDED STIPULATION REGARDING CLASS CERTIFICATION BRIEFING SCHEDULE. Motion Hearing set for 10/25/2007 02:00 PM.. Signed by Judge Claudia Wilken on 5/18/07. (scc, COURT STAFF) (Filed on 5/18/2007) (Entered: 05/18/2007)
69 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 10/25/2007 02:00 PM. (scc, COURT STAFF) (Filed on 5/18/2007) (Entered: 05/18/2007)
70 Stipulation and Proposed Order Staying Case Pending Mediation Discussing and Deferring Class Certification Briefing Schedule by Juanita Wynne, Dante Byrd. (Evenson, Rebekah) (Filed on 7/16/2007) Modified on 7/17/2007 (cp, COURT STAFF). (Entered: 07/16/2007)
71 ORDER re 70 GRANTING Stipulation Staying Case Pending Mediation Discussing and Deferring Class Certification Briefing Schedule. Signed by Judge CLAUDIA WILKEN on 7/26/07. (scc, COURT STAFF) (Filed on 7/26/2007) (Entered: 07/26/2007)
72 Proposed Order and Stipulation Staying Case Pending Further Mediation Discussions, Ordering Parites and Insurance Carriers to Attend Mediation Session at Oakland Courthouse, and Deferring Class Certification Briefing Schedule by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 9/27/2007) (Entered: 09/27/2007)
73

***FILED IN ERROR, SEE DOCUMENT # 74 ***

10/02/2007 10/03/2007 02/15/2008 02/28/2008

Revised Stipulation and Proposed Order Staying Case Pending Further Mediation Discussions; Ordering Parties and Insurance Carriers to Attend Mediation Session; and Deferring Class Certification Schedule by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 10/1/2007) Modified on 10/2/2007 (cp, COURT STAFF). Modified on 10/2/2007 (cp, COURT STAFF). (Entered: 10/01/2007)
74 Second Revised Stipulation and (Proposed) Order Staying Case Pending Further Mediation Discussions; Ordering Parties and Insurance Carriers to Attend Mediation Session; and Deferring Class Certification Briefing Schedule by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 10/2/2007) Modified on 10/3/2007 (cp, COURT STAFF). (Entered: 10/02/2007)
75 ORDER re 74 granting Second Revised Stipulation Staying Case Pending Further Mediation Discussions; Ordering Parties and Insurance Carriers to Attend Mediation Session; and Deferring Class Certification Briefing Schedule. Signed by Judge Claudia Wilken on 10/3/07. (scc, COURT STAFF) (Filed on 10/3/2007) (Entered: 10/03/2007)
76 STIPULATION AND [PROPOSED] ORDER SETTING PRELIMINARY APPROVAL BRIEFING SCHEDULE; SETTING PRELIMINARY APPROVAL HEARING DATE AND VACATING CLASS CERTIFICATION BRIEFING SCHEDULE by Juanita Wynne, Dante Byrd, McCormick & Schmick Restaurant Corp, et al. (Finberg, James) (Filed on 2/15/2008) Modified on 2/19/2008 (cp, COURT STAFF). (Entered: 02/15/2008)
77 MOTION for Settlement Plaintiffs' Motion for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 10 of 13

02/28/2008 02/28/2008 03/06/2008 03/25/2008 04/03/2008
04/04/2008 04/04/2008 04/24/2008 04/28/2008

of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 4/3/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Evenson, Rebekah) (Filed on 2/28/2008) Modified on 2/29/2008 (cp, COURT STAFF). (Entered: 02/28/2008)
78 Declaration of James Finberg in Support of Motion for Order: (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit to the Declaration of James Finberg)(Evenson, Rebekah) (Filed on 2/28/2008) (Entered: 02/28/2008)
79 Proposed Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting Schedule for Final Settlement Approval Process by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1 to Proposed Order [Proposed Consent Decree], # 2 Exhibit 2 to Proposed Order [Notice of Class Action Settlement], # 3 Exhibit 3 to Proposed Order [Claim Form])(Evenson, Rebekah) (Filed on 2/28/2008) (Entered: 02/28/2008)
80 ORDER re 76 granting STIPULATION SETTING PRELIMINARY APPROVAL BRIEFING SCHEDULE; SETTING PRELIMINARY APPROVAL HEARING DATE AND VACATING CLASS CERTIFICATION BRIEFING SCHEDULE. Signed by Judge Claudia Wilken on 3/6/08. (scc, COURT STAFF) (Filed on 3/6/2008) (Entered: 03/06/2008)
81 Revised Proposed Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1 Proposed Consent Decree, # 2 Exhibit 2 Proposed Class Notice, # 3 Exhibit 3 Proposed Claim Form)(Evenson, Rebekah) (Filed on 3/25/2008) Modified on 3/26/2008 (cp, COURT STAFF). (Entered: 03/25/2008)
83 Minute Entry: Motion Hearing held on 4/3/2008 before Claudia Wilken (Date Filed: 4/3/2008) re 77 MOTION for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of MOTION for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of MOTION for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of filed by Juanita Wynne, Dante Byrd. Fairness Hearing set for 8/7/2008 02:00 PM. (Court Reporter Diane Skillman.) (scc, COURT STAFF) (Date Filed: 4/3/2008) (Entered: 04/07/2008)
82 ORDER by Judge Claudia Wilken granting 77 MOTION for Settlement Plaintiffs' Motion for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (scc, COURT STAFF) (Filed on 4/4/2008) (Entered: 04/04/2008)
Set/Reset Hearings: Fairness Hearing set for 8/7/2008 02:00 PM. (scc, COURT STAFF) (Filed on 4/4/2008) (Entered: 04/04/2008)
84 STIPULATION EXTENDING TIME TO PRODUCE DATA by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Attachments: # 1 Proposed Order [PROPOSED] ORDER EXTENDING TIME TO PRODUCE DATA)(Thomas, William) (Filed on 4/24/2008) (Entered: 04/24/2008)
85 ORDER re 84 granting STIPULATION EXTENDING TIME TO PRODUCE DATA. Signed by Judge Claudia Wilken on 4/28/08. (scc, COURT STAFF) (Filed on 4/28/2008) (Entered: 04/28/2008)

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05/05/2008 05/08/2008 07/02/2008 07/02/2008
07/02/2008 07/02/2008 07/02/2008 07/02/2008 07/02/2008
07/02/2008 07/02/2008 07/02/2008 07/02/2008

86 STIPULATION AND [PROPOSED] ORDER REVISING NOTICE MATERIALS AND EXTENDING CLAIMS ADMINISTRATOR DEADLINES by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Finberg, James) (Filed on 5/5/2008) Modified on 5/6/2008 (kc, COURT STAFF). (Entered: 05/05/2008)
87 ORDER re 86 granting STIPULATION REVISING NOTICE MATERIALS AND EXTENDING CLAIMS ADMINISTRATOR DEADLINES. Signed by Judge Claudia Wilken on 5/8/08. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(scc, COURT STAFF) (Filed on 5/8/2008) (Entered: 05/08/2008)
88 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF POINTS AND AUTHORITIES filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 8/7/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Finberg, James) (Filed on 7/2/2008) Modified on 7/3/2008 (cp, COURT STAFF). (Entered: 07/02/2008)
89 Declaration of James M. Finberg IN SUPPORT OF (1) MOTION FOR FINAL APPROVAL OF SETTLEMENT; (2) CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS; AND (3) MOTION FOR SERVICE PAYMENTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
90 Declaration of John Keane RE NOTICE PROCEDURES filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
91 Proposed Order CONFIRMING FINAL CERTIFICATION OF CLASS ACTION AND GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
92 MOTION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 8/7/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Finberg, James) (Filed on 7/2/2008) Modified on 7/3/2008 (cp, COURT STAFF). (Entered: 07/02/2008)
93 Declaration of Bill Lann Lee IN SUPPORT OF PLAINTIFFS' MOTION FOR AWARD OF ATTORNEYS' FEES filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
94 Declaration of Jahan C. Sagafi IN SUPPORT OF (1) MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, (2) APPLICATION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT FO COSTS AND EXPENSES, AND (3) MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
95 Declaration of Thomas A. Warren IN SUPPORT OF CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
96 Declaration of Eric B. Kingsley filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
97 Declaration of Robert Rubin IN SUPPORT OF CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
98 Proposed Order GRANTING AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS by Juanita Wynne, Dante Byrd. (Finberg, James)

Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 12 of 13

07/02/2008 07/02/2008 07/31/2008 07/31/2008 07/31/2008 07/31/2008 07/31/2008 08/07/2008
08/07/2008 08/07/2008 08/07/2008 08/07/2008 08/07/2008

(Filed on 7/2/2008) (Entered: 07/02/2008)
99 MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT TO JUANITA WYNNE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 8/7/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Finberg, James) (Filed on 7/2/2008) Modified on 7/3/2008 (cp, COURT STAFF). (Entered: 07/02/2008)
100 Proposed Order GRANTING MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)
101 Reply Memorandum REPLY BRIEF IN SUPPORT OF (1) MOTION FOR FINAL APPROVAL OF SETTLEMENT, (2) APPLICATION FOR ATTORNEYS' FEES AND EXPENSES, AND (3) MOTION FOR SERVICE AWARDS filed byJuanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/31/2008) (Entered: 07/31/2008)
102 SUPPLEMENTAL DECLARATION OF JOHN KEANE RE NOTICE, OPT OUTS, LACK OF OBJECTIONS, AND CLAIMS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)
103 REVISED [PROPOSED] ORDER CONFIRMING FINAL CERTIFICATION OF CLASS ACTION AND GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)
104 NOTICE by Juanita Wynne, Dante Byrd OF FILING OF REVISED [PROPOSED] ORDER CONFIRMING FINAL CERTIFICATION OF CLASS ACTION AND GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)
105 NOTICE by Juanita Wynne, Dante Byrd OF MANUAL FILING OF ORIGINAL OPT−OUT FORMS (Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)
106 Minute Entry: Motion Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008) re 99 MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT TO JUANITA WYNNE filed by Juanita Wynne, Dante Byrd, 92 MOTION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES filed by Juanita Wynne, Dante Byrd, 88 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed by Juanita Wynne, Dante Byrd, Fairness Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008). (Court Reporter Raynee Mercado.) (scc, COURT STAFF) (Date Filed: 8/7/2008) (Entered: 08/07/2008)
107 ORDER by Judge Claudia Wilken granting 88 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (Attachments: # 1 Exhibit A) (scc, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)
108 ORDER by Judge Claudia Wilken granting 92 MOTION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES (scc, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)
109 ORDER by Judge Claudia Wilken granting 99 MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT TO JUANITA WYNNE (scc, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)
110 [PROPOSED] CONSENT DECREE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 8/7/2008) Modified on 8/8/2008 (kc, COURT STAFF). (Entered: 08/07/2008)
111 AMENDED Minute Entry: Fairness Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008), Motion Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008). (Court Reporter Raynee Mercado.) (scc, COURT STAFF) (Date Filed: 8/7/2008) (Entered: 08/08/2008)

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112 STIPULATION and Proposed Order to Account for Claimants Who Previously Settled Race Discrimination Claims Encompassed by Consent Decree by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Thomas, William) (Filed on 8/8/2008) (Entered: 08/08/2008)
113 ORDER re 110 granting CONSENT DECREE. Signed by Judge Claudia Wilken on 8/8/08. (scc, COURT STAFF) (Filed on 8/8/2008) (Entered: 08/08/2008)
114 ORDER re 112 GRANTING STIPULATION to Account for Claimants Who Previously Settled Race Discrimination Claims Encompassed by Consent Decree. Signed by Judge CLAUDIA WILKEN on 8/11/08. (scc, COURT STAFF) (Filed on 8/11/2008) (Entered: 08/11/2008)
115 JOINT STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Thomas, William) (Filed on 9/28/2009) Modified on 9/29/2009 (kc, COURT STAFF). (Entered: 09/28/2009)
116 ORDER re 115 granting JOINT STIPULATION EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL. Signed by Judge Claudia Wilken on 10/1/09. (scc, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/01/2009)
117 JOINT STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Thomas, William) (Filed on 11/9/2009) Modified on 11/10/2009 (cp, COURT STAFF). (Entered: 11/09/2009)
118 ORDER re 117 granting JOINT STIPULATION EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL. Signed by Judge Claudia Wilken on 11/10/09. (scc, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)
119 JOINT STIPULATION and [Proposed] Order Extending Time for Defendants to Submit Progress Report to Diversity Monitor and Class Counsel by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Thomas, William) (Filed on 11/20/2009) Modified on 11/23/2009 (cp, COURT STAFF). (Entered: 11/20/2009)
120 ORDER by Judge Claudia Wilken GRANTING 119 Stipulation Extending Time for Defendants to Submit Progress Report to Diversity Monitor and Class Counsel. Signed by Judge Claudia Wilken, on 12/10/09. (scc, COURT STAFF) (Filed on 12/10/2009) Modified on 12/11/2009 (jlm, COURT STAFF). Modified on 12/11/2009 (jlm, COURT STAFF). (Entered: 12/10/2009)
121 STIPULATION (JOINT) and PROPOSED ORDER EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Diekmann, Gilmore) (Filed on 11/10/2010) Modified on 11/12/2010 (cp, COURT STAFF). (Entered: 11/10/2010)
122 ORDER Granting re 121 Stipulation EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL. Signed by Judge Claudia Wilken on 11/15/2010. (ndr, COURT STAFF) (Filed on 11/15/2010) Modified on 11/17/2010 (kk, COURT STAFF). (Entered: 11/15/2010)