Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 1 of 7

1 ANNA Y. PARK, CA SBN 164242 PETER LAURA, CA SBN 116426
2 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3 255 East Temple Street, 4th Floor Los Angeles, CA 90012
4 Telephone: (213) 894-1080 Facsimile: (213) 894-1301
5 JOHN C. HENDRICKSON, IL SBN 1187589
6 GREGORY GOCHANOUR, IL SBN 6210804 U.S. EQUAL EMPLOYMENT
7 OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800
8 Chicago, Illinois 60661 Telephone: (312) 886-9124
9 Facsimile: (312) 353-8555

10 Attorneys for Plaintiff, U.S. EQUAL EMPLOYMENT
11 OPPORTUNITY COMMISSION

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

U.S. EQUAL EMPLOYMENT ) CASE NO.:

15 OPPORTUNITY COMMISSION, )

) COMPLAINT- CIVIL RIGHTS

16

Plaintiff,

) EMPLOYMENT

) DISCRIMINATION

17

v.

) (42 U.S.C. §§ 2000e, et seq.)

)

18 ABERCROMBIE & FITCH

) JURY TRIAL DEMAND

STORES, INC., A & F

)

19 CALIFORNIA, LLC, A & F OHIO, )

INC., A & F MANAGEMENT CO., )

20 INC., and DOES 1-10 Inclusive, )

)

21

)

Defendants.

)

22

)

23

NATURE OF THE ACTION

24

This is an action under Title VII of the Civil Rights Act of 1964 and the

25 Civil Rights Act of 1991 to correct unlawful employment practices on the basis of

26 race, national origin, color which includes Blacks, Hispanics, and Asians, and/or

27 sex (female) and to provide appropriate relief to a class of persons who were

28 adversely affected by such practices.

COMPLAINT

Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 2 of 7

1

JURISDICTION AND VENUE

2

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451,

3 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to

4 Section 706(f)(1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as

5 amended, 42 U.S.C. § 2000(e) et seq. ("Title VII") and Section 102 of the Civil

6 Rights Act of 1991, 42 U.S.C. § 1981a.

7

2. The employment practices alleged to be unlawful were and are now

8 being committed within the jurisdiction of the United States District Court for

9 California, Northern District.

10

PARTIES

11

3. Plaintiff, the U.S. Equal Employment Opportunity Commission

12 ("Commission"), is the agency of the United States of America charged with the

13 administration, interpretation and enforcement of Title VII, and is expressly

14 authorized to bring this action by Section 706(f)(1) and (3); Sections 706(f)(1)

15 and (3); and 707 of Title VII.

16

4. Defendants Abercrombie & Fitch Stores, Inc., A & F California,

17 LLC, A & F Ohio, Inc., and A & F Management Co., Inc. are hereinafter

18 collectively identified as “Abercrombie”, or “Defendants”.

19

5. Defendant, Abercrombie & Fitch Stores, Inc., is an Ohio corporation

20 and a wholly owned subsidiary of Abercrombie. Based on representations of

21 defendants, from July 1996 ro August 2000, during which time it was a Delaware

22 corporation, Abercrombie & Fitch Stores, Inc. operated all California

23 Abercrombie stores; from August 2000, when it became an Ohio corporation, to

24 May 2002, it operated all Abercrombie stores; and since May 2002, it has operated

25 all Abercrombie stores outside of California and Ohio.

26

6. Defendant A & F California, LLC is an Ohio limited liability

27 company and a wholly owned subsidiary of Abercrombie. Based on the

28 ///

2

COMPLAINT

Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 3 of 7

1 representations of defendants, since May 2002, it has operated all Abercrombie

2 stores in California.

3

7. Defendant A & F Ohio, Inc. is an Ohio corporation and a wholly

4 owned subsidiary of Abercrombie. Based on the representations of defendants,

5 since May 2002, it has operated all Abercrombie stores in Ohio.

6

8. Defendant A & F Management Co., Inc. is an Ohio corporation and a

7 wholly owned subsidiary of Abercrombie. Based upon representations of

8 Defendants, A&F Management Company, Inc. operates Abercrombie corporate

9 offices in Ohio.

10

9. At all relevant times, Defendants have continuously been an employer

11 engaged in an industry affecting commerce within the meaning of Sections 701(b),

12 (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

13

10. Plaintiff is ignorant of the true names and capacities of Defendants

14 sued as Doe Defendants 1 through 10, inclusive, herein and therefore Plaintiff sues

15 said Defendants by such fictitious names. Plaintiff reserves the right to amend the

16 complaint to name the Doe Defendants as they become known. Plaintiff alleges

17 that each of the Defendants named as Doe Defendants was in some manner

18 responsible for the acts and omissions alleged herein and Plaintiff will amend the

19 complaint to allege such responsibility when same shall have been ascertained by

20 Plaintiff.

21

11. It is further alleged on information and belief that the Defendants and

22 the Doe Defendants are alter egos of one another.

23

12. All of the acts and failures to act alleged herein were duly performed

24 by and attributable to all Defendants, each acting as a successor, agent, employee

25 or under the direction and control of the others, except as otherwise specifically

26 alleged. Said acts and failures to act were within the scope of such agency and/or

27 employment, and each Defendant participated in, approved and/or ratified the

28 unlawful acts and omissions by other Defendants complained of herein.

3

COMPLAINT

Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 4 of 7

1 Whenever and wherever reference is made in this Complaint to any act by a

2 Defendant or Defendants, such allegations and reference shall also be deemed to

3 mean the acts and failures to act of each Defendant acting individually, jointly,

4 and/or severally.

5

STATEMENT OF CLAIMS

6

13. More than thirty days prior to the institution of this lawsuit, a charge

7 was filed with the Commission alleging violations of Title VII by Defendants. All

8 conditions precedent to the institution of this lawsuit have been fulfilled.

9

14. Since at least February 1999, Defendants have engaged in a pattern or

10 practice of discrimination in violation of Title VII, 42 U.S.C. §2000e, et seq. at its

11 stores nationwide as follows:

12

A. By deterring minority applicants from applying for sales, stock,

13 overnight, manager-in-training, assistant manager and store manager positions

14 because of their race, color and/or national origin which includes Blacks,

15 Hispanics, and Asians;

16

B. By failing and refusing to recruit minority and female

17 applicants for sales, stock, overnight, manager-in-training, assistant manager and

18 store manager positions because of their race, color, national origin which includes

19 Blacks, Hispanics, and Asians, and/or sex (female);

20

C. By failing and refusing to hire and assign minorities and

21 females into sales, stock, overnight, manager-in-training, assistant manager and

22 store manager positions because of their race, color, national origin which include

23 Blacks, Hispanics, and Asians, and/or sex (female);

24

D. By terminating minority and female employees because of their

25 race, color, national origin which includes Blacks, Hispanics, and Asians, and/or

26 sex (female);

27

E. By segregating its workforce on the basis of race, color,

28 national origin which includes Blacks, Hispanics, and Asians, and/or sex (female);

4

COMPLAINT

Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 5 of 7

1

F. By failing and refusing to hire, assign, or promote minorities

2 and females into sales, stock, overnight, manager-in-training, assistant manager

3 and store manager positions because of their race, color, national origin which

4 includes Blacks, Hispanics, and Asians, and/or sex (female); and

5

G. Defendants also failed to maintain records as required by

6 federal law.

7

15. The effect of the practices complained of above has been to deprive a

8 class of individuals of equal employment opportunities and otherwise adversely

9 affect their status as applicants, employees, mangers-in-training, and managers for

10 employment, because of their race, national origin, color which includes Blacks,

11 Hispanics, and Asians, and/or sex(female).

12

16. The unlawful employment practices complained of above were

13 intentional.

14

17. The unlawful employment practices complained of above were done

15 with malice or with reckless indifference to the federally protected rights of the

16 class of individuals.

17

PRAYER FOR RELIEF

18

Wherefore, the Commission respectfully requests that this Court:

19

A. Grant a permanent injunction enjoining Defendants, its officers,

20 successors, assigns, and all persons in active concert or participation with it, from

21 engaging in discrimination on the basis of race, national origin, color, and/or sex

22 and any other employment practice which discriminates on the basis of race,

23 national origin, color and/or sex.

24

B. Order Defendants to institute and carry out policies, practices, and

25 programs which provide equal employment opportunities for African Americans,

26 Hispanics, Asians, minority women, and women, and which eradicate the effects

27 of its past and present unlawful employment practices.

28 ///

5

COMPLAINT

Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 6 of 7

1

C. Order Defendants to make whole the class of individuals, by

2 providing appropriate backpay with prejudgment interest, in amounts to be

3 determined at trial, and other affirmative relief necessary to eradicate the effects of

4 its unlawful employment practices, including but not limited to hiring, promotion,

5 and reinstatement.

6

D. Order Defendant Employers to make whole the class of individuals,

7 by providing compensation for past and future pecuniary losses resulting from the

8 unlawful employment practices described above in amounts to be determined at

9 trial.

10

E. Order Defendant Employers to make whole the class of individuals by

11 providing compensation for past and future nonpecuniary losses resulting from the

12 unlawful practices complained of above, including emotional pain, suffering,

13 inconvenience, loss of enjoyment of life, and humiliation in amounts to be

14 determined at trial.

15

F. Order Defendant Employers to pay the class of individuals punitive

16 damages for its malicious and reckless conduct described above, in amounts to be

17 determined at trial.

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

6

COMPLAINT

Case 3:04-cv-04731-SI Document 1 Filed 11/08/2004 Page 7 of 7

1

G. Grant such further relief as the Court deems necessary and proper in

2 the public interest.

3

H. Award the Commission its costs of this action.

4

JURY TRIAL DEMAND

5

The Commission requests a jury trial on all questions of fact raised by its

6 complaint.

7

8

Respectfully Submitted,

9

ERIC S. DREIBAND

General Counsel

10

JAMES LEE

11

Deputy General Counsel

12

GWENDOLYN YOUNG REAMS

Associate General Counsel

13

U.S. EQUAL EMPLOYMENT

14

OPPORTUNITY COMMISSION

1801 “L” Street, N.W.

15

Washington, D.C. 20507

16

BY:

17

ANNA Y. PARK

Regional Attorney

18

U.S. EQUAL EMPLOYMENT

19

OPPORTUNITY COMMISSION

255 East Temple Street, 4th Floor

20

Los Angeles, CA 90012

21

22

BY:___________________________

23

JOHN C. HENDRICKSON

Regional Attorney

24

GREGORY GOCHANOUR

Supervisory Trial Attorney

25

U.S. EQUAL EMPLOYMENT

26

OPPORTUNITY COMMISSION

500 West Madison Street, Suite 2800

27

Chicago, Illinois 60661

28

7

COMPLAINT

 
 Case 3:04-cv-04731-SI Document 16 Filed 04/12/2005 Page 1 of 4

1

2

3 John C. Hendrickson (IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804)
4 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
5 500 West Madison Street Suite 2800
6 Chicago, IL 60661 Telephone: (312) 886-9124
7 Facsimile: (312) 353-8555

8 Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426)
9 Sue Noh (SBN 192134) U.S. EQUAL EMPLOYMENT
10 OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor
11 Los Angeles, CA 90012

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

EDUARDO GONZALEZ, ANTHONY 16 OCAMPO, ENCARNACION GUTIERREZ,

Case Nos. 03-2817 SI, 04-4730 and 04-4731

JOHAN MONTOYA, JUANCARLOS GÓMEZ17 MONTEJANO, JENNIFER LU, AUSTIN CHU,

NOTICE OF FILING AND

IVY NGUYEN, ANGELINE WU, ERIC FIGHT, 18 CARLA GRUBB, DAVID CULPEPPER,

PLAINTIFF EEOC’S MEMORANDUM OF POINTS AND

PATRICE DOUGLASS, and ROBAIR 19 SHERROD, BRANDY HAWK and ANDRE

AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR

STEELE, on behalf of themselves and all others 20 similarly situated,

ORDER GRANTING FINAL APPROVAL OF THE

21

Plaintiffs,

CONSENT DECREE

22

v.

Hearing Date: April 14, 2005 Hearing Time: 4:00 p.m.

23 ABERCROMBIE & FITCH STORES, INC., A&F Courtroom of Hon. Susan Illston CALIFORNIA, LLC, A&F OHIO, INC., and
24 ABERCROMBIE & FITCH MANAGEMENT CO.,
25
Defendants. 26

27

28

[Continued on next page]

- i -

NOTICE OF FILING AND EEOC’S MEMO IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GRANTING FINAL APPROVAL OF THE PROPOSED CONSENT DECREE

Case 3:04-cv-04731-SI Document 16 Filed 04/12/2005 Page 2 of 4

1

2

3 ELIZABETH WEST and JENNIFER LU,
4 Plaintiffs,
5 v.
6 ABERCROMBIE & FITCH STORES, INC., A&F
7 CALIFORNIA, LLC, A&F OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT
8 CO.,

9

Defendants.

10
EQUAL EMPLOYMENT OPPORTUNITY 11 COMMISSION,

12

v.

13 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
14 ABERCROMBIE & FITCH MANAGEMENT CO.
15
Defendants. 16

17

NOTICE OF FILING AND EEOC’S MEMORANDUM IN SUPPORT OF

PLAINTIFFS’ MOTION FOR

18

ORDER GRANTING FINAL APPROVAL

19 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
20 NOTICE IS HEREBY GIVEN that on April 12, 2005, the Equal Employment
21 Opportunity Commission filed with the Clerk of the Court Plaintiff EEOC’s Memorandum in
22 Support of Plaintiffs’ Motion for Order Granting Final Approval of Consent Decree.
23 MEMORANDUM OF POINTS AND AUTHORITIES
24 The Court should grant final approval to the settlement of this case under the terms of the
25 proposed Consent Decree. When the risks and uncertainties of continued litigation are compared
26 with the benefits conferred on the class members by the settlement, it is clear that the settlement
27 is a fair, adequate, reasonable, and just resolution of this matter.
28
- ii -
NOTICE OF FILING AND EEOC’S MEMO IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GRANTING FINAL APPROVAL OF THE PROPOSED CONSENT DECREE

Case 3:04-cv-04731-SI Document 16 Filed 04/12/2005 Page 3 of 4

1

2

3

The EEOC agrees with and hereby incorporates by reference the argument set forth by

4 private plaintiffs in Sections IV (The Proposed Consent Decree Satisfies The Requirements For

5 Final Approval Because It Is Fair, Reasonable, and Adequate), V (Objections are Without Merit),

6 and VII (The Proposed Class Representative and Charging Party Awards are Fair, Reasonable

7 and Adequate) of their Memorandum of Points and Authorities in Support of Plaintiffs’ Motion

8 for Order Granting Final Approval.

9

In addition to the above, the EEOC’s involvement in negotiating the settlement and

10 support for the Consent Decree is further evidence that the settlement is proper. The EEOC has

11 no interest in this litigation other than ensuring that the victims of discrimination are

12 appropriately compensated and that employment discrimination is eradicated. See General

13 Telephone Company of the Northwest v. EEOC, 446 U.S. 318, 326 (1980)(“When the EEOC acts,

14 albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public

15 interest in preventing employment discrimination”). Because the EEOC was a full partner in

16 negotiating the settlement and wholly supports the agreement having only these interests in mind,

17 the Court may be assured that the settlement is in the best interests of the class. See Mendoza and 18 United States v. Tucson Sch. Dist. No.1, 623 F.2d 1338, 1353 (9th Cir. 1980, cert. denied Sanchez

19 v. Tucson Unified Sch. Dist. No. 1, 450 U.S. 912 (1981) (participation of a government agency in

20 the negotiations and settlement serves to protect the interests of the class against possible

21 improper dealings).

22

23

24

25

26

27

28 - iii -
NOTICE OF FILING AND EEOC’S MEMO IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GRANTING FINAL APPROVAL OF THE PROPOSED CONSENT DECREE

Case 3:04-cv-04731-SI Document 16 Filed 04/12/2005 Page 4 of 4

1

2

3

CONCLUSION

4

For all the foregoing reasons, the EEOC respectfully requests that this Court grant

5 final approval to the Consent Decree.

6 April 12, 2005
7
8
9
10

____/s/________________________ John C. Hendrickson Gregory M. Gochanour U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street Suite 2800 Chicago, IL 60661

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - iv -
NOTICE OF FILING AND EEOC’S MEMO IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GRANTING FINAL APPROVAL OF THE PROPOSED CONSENT DECREE

 
 Case 3:04-cv-04731-SI Document 17 Filed 04/14/2005 Page 1 of 3

1 John C. Hendrickson (IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804)
2 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3 500 West Madison Street Suite 2800
4 Chicago, IL 60661 Telephone: (312) 886-9124
5 Facsimile: (312) 353-8555

6 Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426)
7 Sue Noh (SBN 192134) U.S. EQUAL EMPLOYMENT
8 OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor
9 Los Angeles, CA 90012

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

EDUARDO GONZALEZ, ANTHONY 14 OCAMPO, ENCARNACION GUTIERREZ,

Case Nos. 03-2817 SI, 04-4730 and 04-4731

JOHAN MONTOYA, JUANCARLOS GÓMEZ15 MONTEJANO, JENNIFER LU, AUSTIN CHU,

NOTICE OF FILING AND

IVY NGUYEN, ANGELINE WU, ERIC FIGHT, 16 CARLA GRUBB, DAVID CULPEPPER,

PLAINTIFF EEOC’S RESPONSE TO OBJECTOR POTTER’S

PATRICE DOUGLASS, and ROBAIR 17 SHERROD, BRANDY HAWK and ANDRE

LETTER OF APRIL 12, 2005

STEELE, on behalf of themselves and all others 18 similarly situated,

Hearing Date: April 14, 2005 Hearing Time: 4:00 p.m.

19

Plaintiffs,

Courtroom of Hon. Susan Illston

20

v.

21 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
22 ABERCROMBIE & FITCH MANAGEMENT CO.,
23
Defendants. 24

25

26

[Continued on next page]

27

28
422864.1

- 1 -
NOTICE OF FILING AND EEOC’S RESPONSE TO OBJECTOR POTTER

Case 3:04-cv-04731-SI Document 17 Filed 04/14/2005 Page 2 of 3

1
ELIZABETH WEST and JENNIFER LU, 2
Plaintiffs, 3
v. 4
ABERCROMBIE & FITCH STORES, INC., A&F 5 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 6 CO.,

7

Defendants.

8 EQUAL EMPLOYMENT OPPORTUNITY
9 COMMISSION,

10

v.

11 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
12 ABERCROMBIE & FITCH MANAGEMENT CO.
13
Defendants. 14

15

NOTICE OF FILING AND EEOC’S RESPONSE TO OBJECTOR POTTER’S

LETTER OF APRIL 12, 2005

16

17 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

18

NOTICE IS HEREBY GIVEN that on April 14, 2005, the Equal Employment

19 Opportunity Commission filed with the Clerk of the Court Plaintiff EEOC’s Response to

20 Objector Potter’s Letter of April 12, 2005.

21

EEOC’s Response to Objector Potter’s Letter

22

Rachel Potter has filed an Objection to the Court’s Approval of the Consent Decree. On

23 April 12, 2005 Potter filed a letter reiterating the objections and seeking discovery. The EEOC

24 hereby adopts the Response of Class Counsel filed on April 12, 2005. In addition, the EEOC will

25 briefly address below the concerns raised by Ms. Potter regarding EEOC’s commitment to fulfill

26 its obligation to monitor the Defendants’ compliance with the terms of the Consent Decree.

27

First, EEOC is fully committed to monitoring Defendants’ compliance with this Consent

28 Decree, including, if necessary, filing appropriate actions with this Court. The decision whether

422864.1

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NOTICE OF MOTION AND EEOC’S RESPONSE TO OBJECTOR POTTER

Case 3:04-cv-04731-SI Document 17 Filed 04/14/2005 Page 3 of 3

1 to pursue such an action(s) will not be motivated by the issue of attorneys’ fees. Generally under

2 Title VII, the EEOC does not and cannot recover fees for actions it brings. 42 U.S.C.§ 2000e-

3 5(k).

4

Second, Ms. Potter’s assertion that the dispute resolution procedures will be futile because

5 it will “completely reduce the incentive for EEOC to pursue complaints because it will never

6 recoup its costs and fees for an otherwise very valid challenge ” is simply wrong. The EEOC

7 resisted the prevailing party language and insisted that each party pay its own fees resulting from

8 any challenges. EEOC would much prefer to pay its own fees and costs and not run the risk of 9 being assessed the fees and costs of defendants.1

10

Ms. Potter’s objection appears to be based upon a misunderstanding about how the issue

11 of attorneys’ fees affects the EEOC. In light of the above explanation regarding the issue of

12 attorneys’ fees we ask that Ms. Potter withdraw this portion of her objection. Failing that, we

13 respectfully request that the Court reject Ms. Potter’s objection.

14

15 April 14, 2005 16 17 18 19

____/s/Gregory M. Gochanour___ John C. Hendrickson Gregory M. Gochanour U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street Suite 2800 Chicago, IL 60661

20

21

22

23

24

25 1 While the EEOC is generally not able to seek recovery of its attorneys’ fees, see supra, EEOC 26 can, under Title VII, seek and recover attorneys’ fees for discovery sanctions or in instances
where the parties agree to a prevailing party standard (such as that suggested by Potter). 27 However, any fees or costs recovered by the EEOC are paid directly to the U.S. Treasury and not
into EEOC’s budget. Whenever fees or costs are assessed against the EEOC, they are paid out of 28 EEOC’s budget, not the U.S. Treasury.

422864.1

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NOTICE OF MOTION AND EEOC’S RESPONSE TO OBJECTOR POTTER

 
 Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 1 of 73

1 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
3 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Thomas A. Saenz (SBN 159430)
8 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
9 AND EDUCATIONAL FUND 634 South Spring Street
10 Los Angeles, CA 90014 Telepho ne: (213) 629-2512
11 Facsimile: (213) 629-0266
12 Joseph C. Kohn Martin J. D’Urso
13 Hilary Cohen KOHN, SWIFT & GRAF, P.C.
14 One South Broad Street, Suite 2100 Philadelphia, PA 19107
15 Telephone: (215) 238-1700 Facsimile: (215) 238-1968
16 Jack W. Lee, Esq. (SBN 071626)
17 Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532)
18 MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor
19 San Francisco, CA 94108 Telephone: (415) 788-9000
20 Facsimile: Fax (415) 398-3887

Douglas R. Young Sandra A. Kearney FARELLA BRAUN & MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4481
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knueve VORYS, SATER, SEYMOUR & PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 Telephone: 614-464-6400 Facsimile: 614-464-6350
Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012
John C. Hendrickson (IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

21 Attorneys for Plaintiffs and Defendants [Additional counsel listed on signature page]

22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

23

24 EDUARDO GONZALEZ, ANTHONY

25

OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GÓMEZ-

26

MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT,

27

CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS, and ROBAIR

28 SHERROD, BRANDY HAWK and ANDRE

Case Nos. 03-2817 SI, 04-4730 and 04-4731
CONSENT DECREE

426266.1

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-473

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 2 of 73

1 STEELE, on behalf of themselves and all others similarly situated,
2 Plaintiffs,
3 v.
4 ABERCROMBIE & FITCH STORES, INC., A&F
5 CALIFORNIA, LLC, A&F OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT
6 CO.,

7

Defendants.

8
ELIZABETH WEST and JENNIFER LU, 9
Plaintiffs, 10
v. 11
ABERCROMBIE & FITCH STORES, INC., A&F 12 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 13 CO.,

14

Defendants.

15 EQUAL EMPLOYMENT OPPORTUNITY
16 COMMISSION,

17

v.

18 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
19 ABERCROMBIE & FITCH MANAGEMENT CO.
20
Defendants. 21

22

23

24

25

26

27

28

426266.1

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 3 of 73

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ...............................................................................................................1

4 II. III.
5 IV.

PURPOSES OF THE CONSENT DECREE.......................................................................1 DEFINITIONS.....................................................................................................................2 LITIGATION BACKGROUND .........................................................................................4

6 7 8 V.

A. The Gonzalez Litigation...........................................................................................4 B. The EEOC Litigation...............................................................................................6 C. The West Litigation .................................................................................................7 JURISDICTION...................................................................................................................8

9 VI. EFFECTIVE DATES AND DURATION OF THE DECREE............................................8

10 VII. SETTLEMENT CLASS ......................................................................................................9

VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS AND EEOC ACTION .....................10

11

A. Release of Claims by Settlement Class..................................................................10

12

B. Release of Claims by Plaintiffs ..............................................................................11

13

C. Unknown Claims ...................................................................................................12

D. EEOC Release........................................................................................................12

14

E. No Tolling of Harassment Claims .........................................................................13

15

F. No Bar to Future Claims ........................................................................................13

16 IX. 17

MISCELLANEOUS PROVISIONS..................................................................................13 A. No Admission of Liability .....................................................................................13 B. Modification and Severability of the Consent Decree ...........................................14

18

C. Duty to Support and Defend the Decree ................................................................15

19 X.
20
21

D. Execution In Counterparts .....................................................................................15 GENERAL EQUITABLE PROVISIONS.........................................................................15 A. General Injunctive Provisions ................................................................................15 B. Dispute Resolution and Enforcement Procedures..................................................16

22 XI.
23
24
25
26

C. Marketing ...............................................................................................................19 ABERCROMBIE’S INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT AND DIVERSITY PRACTICES ...........................................20 A. Creation of Office of Diversity..............................................................................20 B. Notice and Posting .................................................................................................22 C. EEO and Diversity Training ..................................................................................23 D. Internal Complaint Procedure ................................................................................25

27

E. Performance Evaluations .......................................................................................28

XII. JOB ANALYSIS, MINIMUM ELIGIBILITY REQUIREMENTS, JOB

28

CRITERIA, RECRUITMENT, HIRING, JOB ASSIGNMENTS AND

MANAGERIAL PROMOTION AND STAFFING ..........................................................28

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1

TABLE OF CONTENTS

(continued)

2

Page

3

A. Job Analysis and Job Criteria ................................................................................28

4

B. Recruitment and Hiring..........................................................................................29

C. Managerial Promotions ..........................................................................................31

5 XIII. AFFIRMATIVE RECRUITING EFFORTS .....................................................................31

6

A. Diversity Recruiters ...............................................................................................31

7

B. Advertisements.......................................................................................................32

C. Recruiting Events ...................................................................................................32

8

D. Diversity Consultant ..............................................................................................32

9

E. Documentation.......................................................................................................32

10 XIV. BENCHMARKS................................................................................................................33

A. General Principles..................................................................................................33

11

B. Interim Hiring Goals ..............................................................................................34

12

C. Applicant Rate Goals .............................................................................................38

13 XV. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS .......................39

A. Documents To Be Preserved For The Duration of The Decree .............................39

14

B. Documents to Be Maintained for Two Years ........................................................39

15

C. Access to Documents.............................................................................................39

16

D. Reporting Schedule ................................................................................................40

E. Contents of the Semi- Annual Progress Reports.....................................................40

17

F. Compliance Meetings ............................................................................................42

18

G. Status Conference with Court ................................................................................43

19 XVI. MONITORING OF IMPLEMENTATION.......................................................................43 A. Court-Appointed Monitor ......................................................................................43
20 XVII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE ...................................47

21

A. Establishment of Settlement Fund .........................................................................47

22

B. Distribution of Settlement Fund .............................................................................49

1. Class Representatives and EEOC Charging Parties...................................49

23

2. Settlement Class .........................................................................................49

24

C. Notice .....................................................................................................................49

25

1. Mailed Notice.............................................................................................49

2. Published Notice ........................................................................................50

26

D. Objections and Exclusions .....................................................................................50

27

1. Objections ..................................................................................................50

28
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2. Exclusions ..................................................................................................51

3. Rescission of Class Member Opt-Outs ......................................................51

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1

TABLE OF CONTENTS

(continued)

2

Page

3

4. Opt-Out Credits..........................................................................................52

4

5. Defendant’s Rescission of Agreement .......................................................52

E. Claims Administration...........................................................................................53

5

F. Submission of Claim Forms...................................................................................53

6

G. Deceased Claimants ...............................................................................................54

7

H. Determining Eligibility ..........................................................................................54

I. Late-Filed Claims...................................................................................................55

8

J. Appeals of Claims Eligibility.................................................................................55

9

K. Claimant Information Provided by Abercrombie ..................................................55

10

L. Allocation Plan.......................................................................................................56

M. Distribution of the Monetary Awards ....................................................................56

11

N. Allocation of Monetary Awards ............................................................................57

12

O. Cy Pres Fund ..........................................................................................................57

13

P. Report from Claims Administrator ........................................................................58

XVIII. ATTORNEYS’ FEES, COSTS AND EXPENSES .........................................................58

14

A. Basis for Award of Fees, Costs and Expenses .......................................................58

15

B. Payment of Award .................................................................................................59

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

This Consent Decree (“Decree”) has been voluntarily entered into by the parties for the

3 purpose of finally resolving the litigation between them.

4

This Consent Decree includes a joint statement of the purposes of the Decree, a

5 description of the history of the litigation, and various substantive provisions agreed upon by the

6 parties. As a result of negotiations supervised by a mediator, the parties have reached a voluntary

7 agreement that is contained in this Decree.

8 II. PURPOSES OF THE CONSENT DECREE

9

The parties have entered into this Consent Decree for the following purposes:

10

A. To resolve all disputes covered by this Consent Decree in such a way as to avoid

11 further expensive and protracted litigation.

12

B. To ensure equal employment opportunity for African Americans, Asian

13 Americans, Latinos, and women applying to, and working within, stores operated by defendants.

14

C. To ensure equal employment opportunity for African American women, Latino

15 women and Asian American women applying to, and working within, stores operated by

16 defendants.

17

D. To provide for the implementation of recruitment, selection and personnel systems

18 that will ensure that African Americans, Asian Americans, Latinos and women are considered for

19 recruitment, hire, job assignment and managerial promotion for which they are interested and

20 qualified on a non-discriminatory basis.

21

E. To provide for implementation of recruitment, selection and personnel systems

22 that will ensure that African American women, Latino women, and Asian American women are

23 considered for recruitment, hire, job assignment and mana gerial promotion for which they are

24 interested and qualified on a non-discriminatory basis.

25

F. To create an expedited and efficient procedure for implementing equitable relief

26 pursuant to the terms of this Decree; and

27

G. To provide finality to the resolution of all claims and defenses asserted in these

28 civil actions.

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1 III. DEFINITIONS

2

A. “Abercrombie” or the “Company” means Abercrombie & Fitch Stores, Inc.; A&F

3 California, LLC; A&F Ohio, Inc.; and Abercrombie & Fitch Management Co., as well as each of

4 their parents, subsidiaries, affiliates, officers, directors, agents, management, successors and

5 assigns and those in active concert or participation with them, or any of them. The terms of this

6 Decree cover all stores operated by Abercrombie whether under the name Abercrombie & Fitch,

7 Hollister, abercrombie, or any other concept operated by Abercrombie.

8

B. “Adverse impact” shall be defined in a manner consistent with Title VII law.

9

C. “African American” means all persons having origins in any of the black racial

10 groups of Africa.

11

D. “Approval Date” means the date upon which the Court signs this Decree, having

12 determined that it is fair, adequate and reasonable after: (i) notice to the Settlement Class; (ii)

13 opportunity to opt out of the Settlement Class with respect to monetary relief; (iii) opportunity to

14 submit timely objection to the Decree; (iv) appropriate discovery of the specifics of any such

15 timely objections; and (v) a hearing on the fairness of the settlement.

16

E. “Asian American” means all persons having origins in any of the original peoples

17 of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area

18 includes, but is not limited to, China, India, Japan, Korea, the Philippine Islands, and Samoa.

19

F. “Associates” means all in-store hourly or managerial employees.

20

G. “Benchmark Positions” means Brand Representative and Manager- in-Training

21 positions.

22

H. “Best Efforts” means implementing and adequately funding a plan reasonably

23 designed to comply with all the specific objectives to which the best efforts are directed.

24

I. “Charging Party” means Lekisha Bondurant, Torrey Dickson, Stanley Elmore,

25 Timothy Greer, Eric Jason and Jason Noel.

26

J. “Class Counsel” means all counsel of record for the Class Representatives in the

27 Private Civil Actions.

28

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1

K. “Class Representatives” or “Plaintiffs” means Eduardo Gonzalez, Anthony

2 Ocampo, Encarnacion Gutierrez, Brandy Hawk, Johan Montoya, Juancarlos Gómez-Montejano,

3 Jennifer Lu, Austin Chu, Ivy Nguyen, Angeline Wu, Eric Fight, Carla Grubb, David Culpepper,

4 Patrice Douglass, Robair Sherrod, Andre Steele, and Elizabeth West.

5

L. “Consolidated Litigation” means the Private Civil Actions and the EEOC Civil

6 Action that the parties stipulate they will move, or have already moved, to consolidate before

7 Judge Susan Illston for purposes of approval and oversight of this settlement.

8

M. “Court” means the United States District Court for the Northern District of

9 California.

10

N. “EEOC Civil Action” means EEOC v. Abercrombie & Fitch Stores, Inc., N.D. Cal.

11 Case No. 04-4731.

12

O. “Final Approval” means the entry of this Decree on the Approval Date by the

13 United States District Court for the Northern District of California, and either: (1) the expiration

14 of the time for filing of a direct appeal from the Court’s approval of the Decree without the filing

15 of a notice of appeal, or (2) if a timely direct appeal is filed, the final resolution of the appeal

16 (including any requests for rehearing and/or petitions for a writ of certiorari), resulting in final

17 judicial approval of the Consent Decree.

18

P. “Good Faith Offer” means an offer of employment -- under the same terms and

19 conditions of employment (e.g., hours, shifts or locations offered) offered to similarly situated

20 individuals who receive employment offers -- that is made to an individual who has submitted a

21 written or electronic application for a job.

22

Q. “Latino” means all persons of Mexican, Puerto Rican, Cuban, Central American,

23 South American or other Spanish culture or origin, regardless of race.

24

R. “Lead Counsel” means Lieff, Cabraser, Heimann & Bernstein, LLP; the Mexican

25 American Legal Defense and Educational Fund (MALDEF); and Kohn, Swift & Graf

26 representing the Gonzalez Minority class; and Minami, Lew & Tamaki representing the West

27 gender class.

28

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1

S. “Minority” means all African Americans, Asian Americans, and Latinos.

2 “Minority Group” means each of these three groups.

3

T. “Minority Women” means African American females, Latina females, and Asian

4 American females.

5

U. “Preliminary Approval Date” means the date upon which the Court enters an

6 Order preliminarily approving this Decree, pend ing notice (an opportunity to opt out of the

7 notice), an opportunity to opt out of the Settlement Class or submit objections to the Decree, and

8 a fairness hearing thereon.

9

V. “Private Civil Actions” means Gonzalez v. Abercrombie & Fitch Stores, Inc., N.D.

10 Cal. Case No. 03-2817-SI and West v. Abercrombie & Fitch Stores, Inc., N.D. Cal. Case No. 04-

11 4730.

12

W. “Release” means the Release of Claims set forth in Section VIII of the Decree.

13

X. “Settlement Class” means those persons described in Section VII of the Decree.

14 “Settlement Class Members” means each and every person described in Section VII of the

15 Decree.

16

Y. “Term of the Decree,” “Period of the Decree” or “Duration of the Decree” is the

17 period from the Approval Date until the expiration of the Decree under Section VI.

18 IV. LITIGATION BACKGROUND

19

A. The Gonzalez Litigation

20

On June 16, 2003, Plaintiffs filed the Gonzalez case in the Northern District of California,

21 alleging violations of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act,

22 and providing notice of Plaintiffs’ intent to bring claims under Title VII of the Civil Rights Act of

23 1964. The Complaint was brought on behalf of a putative class of minority individuals who

24 alleged that Defendants discriminate against minorities on the basis of race, color, and/or national

25 origin, with respect to hiring, firing, job assignment, compensation and other terms and conditions

26 of employment, by enforcing a nationwide corporate policy of preferring white employees for

27 sales positions, desirable job assignments, and fa vorable work schedules in its stores throughout

28 the United States.

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1

Plaintiffs filed the First Amended Complaint on August 18, 2003, which alleged

2 substantially the same facts and legal claims. This complaint added three named plaintiffs and

3 three defendants, Abercrombie & Fitch Stores, Inc., A&F California, LLC, and A&F Ohio, Inc.

4 On September 11, 2003, Defendants answered the First Amended Complaint, denying Plaintiffs’

5 allegations.

6

On January 9, 2004, Plaintiffs filed the Second Amended Complaint, which again alleged

7 substantially the same facts and legal claims, this time converting the notice of intent to file Title

8 VII claims into actual Title VII claims. This complaint added two named plaintiffs and removed

9 one defendant, Abercrombie & Fitch Co. This complaint also included as exhibits Right-to-Sue

10 letters from the EEOC issued to 13 of the 14 named plaintiffs who brought Title VII and FEHA

11 claims. Defendants answered the Second Amended Complaint, denying Plaintiffs’ allegations, on

12 January 26, 2004.

13

Plaintiffs filed the Third Amended Complaint on June 10, 2004, which again alleged

14 substantially the same facts and legal claims. This complaint added individual causes of action

15 for gender discrimination, brought only on behalf of named plaintiffs Ivy Nguyen and Angeline

16 Wu. On June 21, 2004, Defendants answered the Third Amended Complaint, denying Plaintiffs’

17 allegations.

18

On November 8, 2004, Plaintiffs filed the Fourth Amended Complaint naming two

19 additional Plaintiffs and an additional defendant, Abercrombie & Fitch Management Co., as well

20 as adding claims of discrimination in hiring of Managers-in- Training positions and promotion to

21 in-store managerial positions.

22

On October 10, 2003, Plaintiffs served their first set of requests for discovery. On

23 February 19, 2004, Plaintiffs served their second set of requests for discovery. Defendants

24 responded by producing roughly 17,000 pages of documents, as well as files from Abercrombie’s

25 computerized personnel databases.

26

Defendants served their first set of requests for discovery in November 2003 and took the

27 depositions of seven class representatives in February 2004. Plaintiffs took six days of

28 depositions of Abercrombie officials and managers under Fed. R. Civ. P. 30(b)(6) in March 2004.

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1 Plaintiffs and Defendants have obtained numerous declarations from putative class members and

2 witnesses, including managers, concerning alleged discrimination, or lack of discrimination, that

3 they would testify to if called.

4

On April 13, 2004, and on several dates subsequently, the parties conducted mediation

5 discussions in an attempt to resolve the Consolidated Litigation. These discussions have

6 culminated in this settlement agreement.

7

B. The EEOC Litigation

8

Between December 21, 1999 and January 29, 2004, the EEOC received charges of

9 discrimination alleging discrimination in hiring, assignment, layoff, constructive discharge,

10 discharge, terms and conditions of employment, and failure to promote into manager positions

11 due to race, national origin, and/or gender.

12

Specific ally, on or about December 21, 1999, a charging party filed an individual charge

13 alleging national origin discrimination and wrongful termination. The charge was later amended

14 on or about March 21, 2001 alleging that the charging party was not hired into a sales position or

15 a Brand Representative position due to his national origin. Class allegations were included,

16 alleging that Abercrombie failed to recruit, hire, and assign Latinos into Brand Representative

17 positions and that Latinos were terminated due to their national origin.

18

On or about September 13, 2001, the EEOC issued a Letter of Determination finding

19 probable cause that the charging party was denied a permanent sales or Brand Representative

20 position, denied assignments, and terminated due to his national origin. The EEOC also found

21 probable cause that Latinos and African Americans as a class were not recruited, hired, or

22 assigned permanent positions or given assignments due to their race and national origin. The

23 Commission further found probable cause that Abercrombie failed to maintain records as required

24 by federal law.

25

EEOC received additional charges against Abercrombie nationwide and issued additional

26 Letters of Determination on or about September 30, 2004 and November 1, 2004 finding probable

27 cause that Abercrombie violated Title VII by discriminating against minority individuals on the

28 basis of national origin, color, race, and/or gender (female including minority women) in hiring,

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1 staffing, constructive discharge, failing to promote into manager positions, steering, and

2 discharge, on an individual basis and also on a nationwide class basis. The EEOC also found

3 probable cause that Abercrombie violated Title VII by discriminating against a class of

4 individuals nationwide by deterring minority applicants from applying for sales, stock, overnight,

5 manager- in-training, and manager positions because of their race, color, and/or national origin;

6 failing or refusing to recruit minority and female applicants for sales, stock, overnight, manager-

7 in-training, and manager positions because of their race, color, and/or national origin; failing and

8 refusing to hire and to assign minorities and females into sales, stock, overnight, manager- in

9 training, and manager positions because of their race, color, national origin and/or gender; failing

10 and refusing to promote minorities and females into manager- in-training and manager positions

11 because of their race, color, national origin, and/or gender; terminating minority and female

12 employees because of their race, color, national origin, and/or sex; and segregating its workforce

13 on the basis of race, color, national origin, and/or gender. The EEOC again found probable cause

14 that Abercrombie failed to maintain records as required by federal law.

15

After meeting all the conditions precedent, the EEOC filed a federal lawsuit in the matter

16 of EEOC v. Abercrombie and Fitch Stores, Inc., N.D. Cal., Case No. 04-4731, on November 8,

17 2004 ("EEOC Litigation") encompassing all the claims set forth in the Letters of Determination

18 as described above. The EEOC's pre- filing investigation involved analysis of hard copy

19 documents, statistical compilations and computer-readable files, and investigative interviews of

20 employees and company officials.

21

C. The West Litigation

22

Counsel for the gender class became involved in this case in February 2004 after being

23 contacted by one of the named plaintiffs in Gonzalez v. Abercrombie & Fitch. This named

24 plaintiff sought separate counsel to file a gender class action against Abercrombie.

25

Putative counsel for the gender class thereafter conducted an independent, on-going

26 investigation to determine the merits of a possible class gender discrimination claim against

27 Abercrombie. Counsel for the gender class contacted scores of class members and witnesses,

28 collected declarations from many class members regarding their experiences at Abercrombie,

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1 reviewed statistical reports produced in the course of the Gonzalez litigation and conducted a

2 separate analysis of the workforce by gender.

3

After informing defendant of its intent to file a gender complaint, counsel for the gender

4 class was invited to participate in the initial April 2004 mediation sessions with the Gonzales

5 parties and EEOC in an effort to resolve this case without further litigation.

6

During the mediation, which lasted over fifteen days over the course of eight months, all

7 parties engaged in extensive discussions regarding the merits of the race and gender claims, relief

8 for class members, and procedures to be put into place to ensure equa l employment opportunity

9 for minorities and women in the future.

10

The gender class action, West v. Abercrombie & Fitch Stores, Inc., N.D. Cal., Case No.

11 04-4730 was filed on November 8, 2004.

12 V. JURISDICTION

13

The Court has jurisdiction over the parties and subject matter of the Private Civil Actions

14 and EEOC Civil Action. The parties agree that they will seek, or have already sought

15 consolidation of the Private Civil Actions and the EEOC Civil Action before Judge Susan Illston

16 for purposes of approval of this settlement. If the claims asserted in the complaints filed in these

17 civil actions were proven, the Court would have the authority to grant the equitable and monetary

18 relief set forth in this Consent Decree. Venue is proper in this District. This Court shall retain

19 jurisdiction of these civil actions during the duration of the Decree solely for the purposes of

20 entering all orders, authorized hereunder, that may be necessary to implement the relief provided.

21 VI. EFFECTIVE DATES AND DURATION OF THE DECREE

22

A. Unless provided otherwise, the equitable provisions in this Decree are effective

23 immediately upon the Approval Date.

24

B. The provisions of this Decree shall remain in effect for a period of six years (72

25 months). Abercrombie may file a motion to be relieved of the provisions of the decree at any

26 point following the expiration of 54 months from the effective date of the decree. The parties subject to Court approval
27 may stipulate that Abercrombie should be relieved of the provisions of the Decree.^Absent such
28 agreement, in order to be relieved of the provisions of the Decree before the full period of 72

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1 months, Abercrombie must demonstrate that: 1) it has satisfied its duty to use Best Efforts with

2 respect to its obligations under the Decree; 2) it has implemented and maintained all programs

3 mandated by the Decree; 3) it has satisfied, without use of standard deviations, each of the

4 benchmarks established by the Decree during the preceding 24 months; and 4) it has satisfied all

5 monetary provisions of the Decree. Abercrombie bears the burden of demonstrating its

6 satisfaction of these conditions to the Court. Lead Counsel and EEOC may oppose any motion to

7 be relieved on grounds that any of these conditions have not been met and on the grounds set

8 forth in Section X.C.1.b. Unless and until the court issues an order granting the motion to be

9 relieved, all provisions of the Decree shall remain in full force and effect.

10

C. Abercrombie shall provide 30 days notice to the Special Master, Lead Counsel,

11 and EEOC of any motion to be relieved of the provisions of the decree before the full period of 72

12 months. Abercrombie shall then provide its briefing and other support for its motion to the

13 Special Master, Lead Counsel, and EEOC. Lead Counsel and the EEOC shall have 30 days to

14 provide any opposition to the motion to the Special Master and Abercrombie. Abercrombie shall

15 have 15 days to provide any reply materials to the Special Master, Lead Counsel, and EEOC.

16 The Special Master shall then have 30 days to prepare a written recommendation to the court as to

17 the resolution of the motion to be relieved. The parties shall then jointly file with the court all of

18 the briefing and the Special Master's recommendation, and set a hearing for 28 days from the

19 filing. Each party may file and serve a response to the Special Master's recommendation, not to

20 exceed ten pages, not later than 14 days before the scheduled hearing.

21 VII. SETTLEMENT CLASS

22

A. For purposes of the monetary relief provided in this Decree, the Settlement Class

23 is certified under Federal Rule of Civil Procedure 23(b)(3) and consists of:

24

1. All Minority and/or female applicants who applied for employment as

25 Associates in Abercrombie stores, or attempted to apply and were discouraged from applying for

26 employment, between February 24, 1999 and the Preliminary Approval Date and who were not

27 hired, except those who file a timely request to opt out of the monetary relief provisions.

28

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1

2. All Minority and/or female Associates of Abercrombie who are or were

2 employed in an Abercrombie store, for any length of time, between February 24, 1999, and the

3 Preliminary Approval Date, except those who file a timely request to opt out of the monetary

4 relief provisions.

5

B. For purposes of the equitable and declaratory relief provided in this Decree, the

6 Settlement Class is certified under Federal Rule of Civil Procedure 23(b)(2) and consists of:

7

1. All Minority and/or female applicants who applied for employment as

8 Associates in Abercrombie stores, or attempted to apply and were discouraged from applying for

9 employment, between February 24, 1999 and the Preliminary Approval Date and who were not

10 hired.

11

2. All Minority and/or female Associates of Abercrombie who are or were

12 employed in an Abercrombie store, for any length of time, between February 24, 1999, and the

13 Preliminary Approval Date.

14

C. Settlement Class Members who have filed a timely request to opt out of the

15 monetary relief provisions shall not be held to release any claims for individual relief.

16

D. In the event that Final Approval is not obtained, nothing in this Decree shall be

17 deemed to waive Abercrombie’s objections and defenses to class certification, liability, or

18 entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation, the

19 Private Civil Actions, or the EEOC Civil Action, and this Decree shall then be deemed null and

20 void and not admissible in any court regarding the propriety of class certification, liability, or

21 entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation, the

22 Private Civil Actions, or the EEOC Civil Action.

23 VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS AND EEOC ACTION

24

A. Release of Claims by Settlement Class.

25

Upon Final Approval of the Decree, Abercrombie and its employees, managers, insurers

26 and attorneys shall be fully released and forever discharged from any and all individual and/or

27 class-wide claims, demands, charges, complaints, rights and causes of action of any kind, known

28 or unknown, by the Class Representatives, Plaintiffs, Charging Parties, the Settlement Class, each

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1 member of the Settlement Class (hereafter “Releasers”), and by the Releasers’ estates, whether

2 seeking monetary and/or equitable relief of any sort, which arise out of conduct within the

3 liability period of February 24, 1999 through the Preliminary Approval Date constituting alleged

4 race, color, national origin or gender discrimination in recruitment, the application process

5 (including claims of individuals who attempted to apply for and were discouraged from applying

6 for employment), hiring, job channeling or assignment, termination of emp loyment, any terms

7 and conditions of employment that were or could have been raised in the Consolidated Litigation

8 and/or managerial promotion under Title VII, 42 U.S.C. Section 1981, the California FEHA or

9 any other federal, state, or local law prohibiting race, color, national origin or gender

10 discrimination, whether statutory, regulatory, pursuant to local ordinance, or at common law,

11 excepting solely claims of Class members other than Plaintiffs and Charging Parties for alleged

12 harassment (including constructive discharge allegedly caused by such harassment). This Release

13 is final and shall survive expiration of the Decree’s terms.

14

B. Release of Claims by Plaintiffs.

15

Upon Final Approval of the Decree, for and in consideration of the mutual promises,

16 terms and conditions by and between Plaintiffs and Charging Parties, and Defendants set forth

17 herein, the sufficiency of which consideration is expressly acknowledged, the Plaintiffs and

18 Charging Parties do hereby fully, finally and forever release and discharge Abercrombie and its

19 employees, managers, insurers and attorneys from any and all past and/or present claims,

20 demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs,

21 losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not

22 known, that they have had, now have, or may have from the beginning of time to the Preliminary

23 Approval Date, including without limitation those arising in any way out of the alleged facts,

24 circumstances and occurrences underlying those allegations of violations of Title VII, Section

25 1981 and the California FEHA that were asserted or that might have been asserted by or on behalf

26 of the Plaintiffs against Defendants either in Plaintiffs’ complaints in the Gonzalez and West

27 actions, or in any and all charges of discrimination filed against Abercrombie by some or all of

28 the Plaintiffs and Charging Parties with the EEOC and/or DFEH. This Release does not include

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1 workers’ compensation claims, if any, of the Plaintiffs or Charging Parties. This Release is final

2 and shall survive the expiration of the Term of the Decree. Prior to receiving any monetary relief

3 under this Decree, including any enhanced or service payment, each Plaintiff and Charging Party

4 will be required to execute a full and final general release of all claims against Abercrombie,

5 whether or not asserted in the Consolidated Litigation, in the form attached as Exhibit A.

6

C. Unknown Claims.

7

Plaintiffs and Charging Parties acknowledge that they may not now know fully the

8 number or magnitude of the claims they may have, and that they may suffer some further loss or

9 damage in some way connected with the subject matter of the Consolidated Litigation, but which

10 is unknown or unanticipated at this time. Plaintiffs and Charging Parties have taken these risks

11 and possibilities into account and accept that, nevertheless, this Consent Decree covers all claims

12 arising out of or related to the subject matter of the Consolidated Litigation, which, although

13 unknown at the time of the execution of this Consent Decree, may be discovered later. Plaintiffs

14 and Charging Parties understand and assume these risks and expressly waive the provisions of

15 California Civil Code § 1542, or any comparable federal or other state statute, which states:

16

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

17

EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE

RELEASE, WHICH IF KNOWN BY HIM MUST HAVE

18

MATERIALLY AFFECTED HIS SETTLEMENT WITH THE

DEBTOR. 19

20 Plaintiffs and Charging Parties expressly waive any right to assert hereafter that any claim was

21 excluded from this Consent Decree through ignorance, oversight, or error. It is expressly

22 understood and agreed that this waiver of Civil Code § 1542 and the release and waiver set forth

23 in this Consent Decree are material terms of the agreement and were separately negotiated

24 between the parties. This Section VIII.C. does not waive any rights of Settlement Class members

25 other than Plaintiffs and Charging Parties.

26

D. EEOC Release.

27

Upon Final Approval, this Decree shall fully and finally resolve any and all claims,

28 demands, charges, complaints, rights and causes of action of any kind, known or unknown,

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1 asserted by EEOC in its Complaint arising from incidents occurring prior to the Preliminary

2 Approval Date. It is the intention of Abercrombie and the EEOC that this release terminates all

3 investigations relating to claims of Settlement Class Members which were asserted by EEOC in

4 its Complaint. This Release shall survive the termination of this Decree.

5

E. No Tolling of Harassment Claims.

6

Any claims of Settlement Class Members (other than the Plaintiffs) for alleged harassment

7 based upon race, color, national origin or gender (including constructive discharge allegedly

8 caused by such harassment), or for the alleged retaliation for opposing or complaining about such

9 purported harassment, are not released hereunder because such claims are not and have never

10 been asserted on a class-wide basis as a part of the Private Civil Actions or the EEOC Civil

11 Action. Hence, there also has been no tolling of the statute of limitations for asserting any such

12 claims against Abercrombie and its employees, managers, insurers and attorneys by operation of

13 these civil actions or any of the Plaintiffs’ individual EEOC or DFEH charges.

14

F. No Bar to Future Claims.

15

Nothing in the Decree shall be construed to bar any claims of members of the Settlement

16 Class or Plaintiffs that arise after the Preliminary Approval Date.

17 IX. MISCELLANEOUS PROVISIONS

18

A. No Admission of Liability.

19

This Consent Decree does not constitute and shall not be deemed to be a finding or

20 determination by the Court, nor an admission by any party, regarding the merits, validity or

21 accuracy of any of the allegations, claims or defenses. This Decree represents the compromise of

22 disputed claims that the parties recognize would require protracted and costly litigation to

23 determine. Abercrombie denies that it has engaged in any policy or pattern or practice of

24 unlawful discrimination, or that it has engaged in any other unlawful conduct as alleged in the

25 Consolidated Litigation, and Abercrombie’s entry into this Decree is not and may not be used by

26 any person in any proceeding as an admission or evidence that Abercrombie and/or its employees,

27 managers, and/or attorneys have on any occasion engaged in discriminatory employment

28 practices or any other unlawful conduct, such being expressly denied. Abercrombie has

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1 voluntarily entered into this Decree because it believes the actions it has agreed to undertake

2 demonstrate its strong commitment to diversity and equal employment opportunity. Neither the

3 Decree nor any compliance reports, filings, data, or other compliance information arising out of

4 or related to the Decree shall be discoverable, admissible or used as evidence of liability or non-

5 liability for unlawful discrimination in any proceeding other than one relating to the enforcement

6 of this Decree.

7

B. Modification and Severability of the Consent Decree.

8

1. Whenever possible, each provision and term of this Decree shall be

9 interpreted in such a manner as to be valid and enforceable; provided, however, that in the event

10 that after Final Approval hereof any provision or term of this Decree should be determined to be

11 or rendered unenforceable on collateral review, all other provisions and terms of this Decree and

12 the application thereof to all persons and circumstances subject thereto shall remain unaffected to

13 the extent permitted by law. If any application of any provisions or term of this Decree to any

14 specific person or circumstance should be determined to be invalid or unenforceable, the

15 application of such provision or term to other persons or circumstances shall remain unaffected to

16 the extent permitted by law.

17

2. Lead Counsel, Abercrombie and the EEOC may jointly agree in writing to

18 modify the Decree. In the event that changed or other circumstances make a modification of the

19 Decree necessary to ensure its purposes are fully effectuated, but good faith negotiations seeking

20 such modifications are unsuccessful, any party to the Decree shall have the right to move the

21 Court to modify this Decree. Such motion shall be granted only upon the movant proving to the

22 Court by clear and convincing evidence that changed or other circumstances make such

23 modification necessary. In determining the specific modification to order, the Court shall

24 consider whether there is an equally effective modification that would not materially increase the

25 burden of compliance and/or cost to Abercrombie of compliance (out-of-pocket or otherwise).

26 Any such modification to this Decree by the Court shall be ordered in such a fashion as will limit

27 the burden of compliance and/or the cost to Abercrombie (out-of-pocket or otherwise) to the

28 extent possible consistent with effectuating the purposes of this Decree. The procedures for

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1 negotiations to modify this Decree (and, if necessary, for resolution of disputes) shall be the same

2 as those set forth in Section X.B, regarding Decree enforcement.

3

C. Duty to Support and Defend the Decree.

4

Class Representatives, Class Counsel, EEOC and Abercrombie each agree to abide by all

5 of the terms of this Decree in good faith and to support it fully, and shall use Best Efforts to

6 defend this Decree from any legal challenge, whether by appeal or collateral attack.

7

D. Execut ion In Counterparts

8

The parties agree that the Decree may be executed in counterparts, each of which shall be

9 deemed to be an original and all of which together shall be deemed to be part of the same Decree.

10 X. GENERAL EQUITABLE PROVISIONS

11

A. General Injunctive Provisions.

12

1. Abercrombie is hereby enjoined from enacting, maintaining or

13 implementing any policy or engaging in any practice or procedure that discriminates against

14 African Americans, Asian Americans, or Latinos on the basis of race, color and/or national

15 origin.

16

2. Abercrombie is hereby enjoined from enacting, maintaining or

17 implementing any policy or engaging in any practice or procedure that discriminates against

18 women on the basis of gender.

19

3. Abercrombie is hereby enjoined from enacting, maintaining or

20 implementing any policy or engaging in any practice, conduct or procedure that retaliates or has

21 the purpose of retaliating against any future, current or former employee or applicant of

22 Abercrombie because he or she opposed discrimination on the basis of race, color, national origin

23 or gender; filed a charge of discrimination on the basis of race, color, national origin or gender;

24 testified, furnished information or participated in any manner in any investigation, proceeding, or

25 hearing in connection with any charge or complaint of discrimination on the basis of race, color,

26 national origin or gender; testified, furnished information or participated in any manner in

27 connection with the monitoring or implementation of this Decree; or sought and/or received any

28 monetary and/or non- monetary relief pursuant to this Consent Decree.

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1

4. Abercrombie will implement or maintain non-discrimination and non-

2 harassment policies and an internal complaint procedure designed to assure equal employment

3 opportunity.

4

5. Abercrombie will make available to Minority and female associates and

5 applicants the same employment opportunities and terms and conditions of employment,

6 including but not limited to recruitment, hiring, job assignments, and managerial promotions, as

7 Abercrombie affords similarly-situated white male employees.

8

B. Dispute Resolution and Enforcement Procedures.

9

1. The parties agree to the appointment of Hunter Hughes as Special Master.

10 The Special Master may be removed at the joint written request of Lead Counsel, EEOC, and

11 Abercrombie, or by order of the Court upon motion of any party and a showing of good cause that

12 Mr. Hughes should no longer serve as Special Master. In the event that Mr. Hughes becomes

13 unavailable to serve as Special Master for any reason, Lead Counsel, EEOC and Abercrombie

14 will make a good faith effort to select on a joint basis a new Special Master. If Lead Counsel,

15 EEOC and Abercrombie are unable to reach agreement as to a successor Special Master within

16 forty- five (45) days following the date Mr. Hughes becomes unavailable to serve as Special

17 Master, the Court shall appoint a successor Special Master upon motion of Lead Counsel, EEOC

18 or Abercrombie. Lead Counsel, EEOC or Abercrombie may nominate to the Court persons for

19 consideration as a successor Special Master. Lead Counsel, EEOC and Abercrombie shall each

20 have the right to interview any nominated person, and to present argument and evidence to the

21 Court regarding the selection of the successor Special Master.

22

2. The Special Master shall have authority to resolve all disputes arising

23 under the Decree, subject to limitations and standards set forth in the Decree.

24

3. At the request of Lead Counsel, EEOC or Abercrombie, the parties shall

25 use Best Efforts to resolve promptly any differences or any disputes regarding the interpretation

26 or implementation of the Consent Decree.

27

28

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1

4. Lead Counsel, EEOC or Abercrombie shall have the right to initiate steps

2 to resolve any dispute or issue of compliance regarding any provision of the Decree subject to

3 limitations and standards set forth in the Decree.

4

a. If Lead Counsel, EEOC or Abercrombie has good reason to believe

5 that a legitimate dispute exists, the initiating party shall first promptly give written notice to the

6 other parties, including: (a) a reference to all specific provisions of the Decree that are involved;

7 (b) a statement of the issue; (c) a statement of the remedial action sought by the initiating party;

8 and (d) a brief statement of the specific facts, circumstances and any other arguments supporting

9 the position of the initiating party;

10

b. Within thirty (30) days after receiving such notice, the non-

11 initiating party shall respond in writing to the statement of facts and arguments set forth in the

12 notice and shall provide its written position, including the facts and arguments upon which it

13 relies in support of its position;

14

c. Lead Counsel, EEOC and Abercrombie shall undertake good- faith

15 negotiations, including meeting or conferring by telephone or in person and exchanging relevant

16 documents and/or other information, to attempt to resolve the issues in dispute or alleged

17 noncompliance;

18

d. The Special Master, upon motion, may permit Lead Counsel,

19 EEOC or Abercrombie to take post-settlement discovery as provided by the Federal Rules of

20 Civil Procedure, but only as to matters relevant to the underlying claim of breach, if the Special

21 Master determines that the informal exchange of documents or information has not been

22 sufficient to allow Lead Counsel, EEOC or Abercrombie to present the dispute upon a factual

23 record adequate for a fair determination of the issue;

24

e. If the parties’ good- faith efforts to resolve the matter have failed,

25 and after written notice of an impasse by the moving party to the non- initiating party or parties,

26 Lead Counsel, EEOC or Abercrombie may file a motion with the Special Master, with a

27 supporting brief, requesting resolution of the dispute or the issues of non-compliance, provided,

28

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1 however, that such motion shall be limited to the dispute(s) and/or issue(s) as to which the parties

2 have met and conferred as described in this Section X. B.4.;

3

f. The non- moving parties will have fifteen (15) days to respond to

4 any such motion;

5

g. The Special Master shall attempt within fifteen (15) days after

6 filing of the final brief to resolve the dispute and may schedule a hearing or other proceeding,

7 including an evidentiary hearing, to resolve the matter; and

8

h. Within thirty (30) days of any hearing, the Special Master shall

9 issue a written determination, including findings of fact if requested by any party.

10

5. The provisions of this Section do not prevent Lead Counsel, EEOC or

11 Abercrombie from promptly bringing an issue directly before the Court when exigent facts or

12 circumstances require immediate Court action to prevent a serious violation of the terms of this

13 Decree, which otherwise would be without meaningful remedy. The moving papers shall explain

14 the facts and circumstances that allegedly necessitate immediate action by the Court. Absent a

15 showing of exigent facts or circumstances, the Court shall refer the matter to the Special Master

16 to resolve in accordance with procedures set forth above. If any such matter is brought before the

17 Court requesting immediate action, the other parties shall be provided with appropriate actual

18 notice, and an opportunity to be heard on the motion, under the Local Rules of the Court and the

19 Federal Rules of Civil Procedure. The Court in its discretion may set such procedures for

20 emergency consideration as are appropriate to the particular facts or circumstances, but no such

21 matter may be heard or considered on an ex parte basis.

22

6. All fees and expenses of the Special Master shall be paid by Abercrombie.

23

7. Lead Counsel, EEOC or Abercrombie may appeal a decision of the Special

24 Master to the Court provided that such an appeal is made within fourteen (14) days of receipt of

25 notice of the decision by the Special Master. Any such appeal shall be brought by motion under

26 the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the

27 Special Master shall be affirmed unless the Court determines that the Special Master made clearly

28 erroneous findings of fact or wrongly interpreted or applied the Consent Decree. A party may

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1 seek on appeal any remedy provided by law, provided that such remedy is consistent with the

2 provisions of this Decree.

3

8. Only Lead Counsel, EEOC or Abercrombie shall have standing to move

4 the Court to enforce, apply, or modify this Decree. Any individual concerned about

5 Abercrombie’s compliance with this Decree may so notify Lead Counsel and/or the EEOC and

6 request that they examine Abercrombie’s compliance and seek such relief, if any, as may be

7 appropriate.

8

9. In the event that any party seeks to utilize the dispute resolution procedure

9 set forth in Section X.B, then each party shall bear its own attorneys’ fees, costs and expenses for

10 all work performed through resolution by the Special Master. In the event that any party seeks to

11 appeal any decision of the Special Master, then the prevailing party in such matter shall be

12 entitled to recover reasonable attorneys’ fees, costs and expenses incurred in such appeal from the

13 other party, consistent with applicable standards under Title VII. Whether and to what extent any

14 party is a prevailing party and awarded fees and expenses shall be determined in the sole and

15 absolute discretion of the Court. This provision shall not apply to the EEOC, as Abercrombie and

16 the EEOC mutually agree not to seek fees under this Section from each other.

17

C. Marketing.

18

1. Abercrombie believes that the artistic aspect of its marketing materials is a

19 critical factor driving the success of Abercrombie and its brand. As a company committed to

20 achieving diversity in its store associates, as reflected in the other terms of this Decree,

21 Abercrombie will reflect diversity, as reflected by the major racial/ethnic minority populations of

22 the United States, in its marketing materials (taken as a whole). Lead Counsel and/or the EEOC

23 may assert that Abercrombie has not met its commitment under this paragraph for the following

24 purposes only:

25

a. In the eve nt that, at the end of the twenty- four (24) month period

26 following the Approval Date, the Applicant Rate for any Minority group is lower than such

27 group’s interim Benchmark for the fourth six- month period, Lead Counsel and/or the EEOC may

28 assert that this was caused by a chilling of applicant flow caused in part by not meeting the

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1 commitment in paragraph 1 of this Section. Any such assertion, and Abercrombie’s response

2 thereto, may be considered by the Special Master. If the Special Master accepts the assertion of

3 Lead Counsel and/or the EEOC, then the sole remedy shall be that the applicable interim

4 Benchmark shall remain in effect unless and until the applicable Applicant Rate exceeds the

5 applicable interim Benchmark.

6

b. In the event that Abercrombie seeks to obtain early termination of

7 this Decree, under Section VI.B. hereof, and in the event that Lead Counsel and/or the EEOC

8 seeks to challenge such early termination, Lead Counsel and/or the EEOC may assert that

9 Abercrombie has not met its commitment in paragraph 1 of this Section. Any such assertion, and

10 Abercrombie’s response thereto, may be considered by the Special Master and/or the Court, along

11 with Abercrombie’s meeting or failing to meet other provisions of the Decree, in deciding

12 whether to grant Ab ercrombie’s request for early termination of the Decree.

13

2. Nothing in this Section shall limit the scope of the Monitor’s discretion

14 under Section XVI.A.2. of this Decree in evaluating compliance (including barriers to

15 compliance) with any of the objectives of the Decree. However, nothing in this Section or

16 otherwise in this Decree shall be deemed to provide Lead Counsel, the EEOC, the Monitor, the

17 Special Master, or the Court with the authority or ability to contest, challenge, alter, or seek to

18 alter Abercrombie’s marketing materials or the selection of photographs or models therefor.

19

3. Marketing materials include specifically, but not exclusively: quarterly

20 magazines and similar materials, shopping bags, store posters and video, website, A&F TV, and

21 purchased advertising.

22 XI. ABERCROMBIE’S INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT AND DIVERSITY PRACTICES
23
A. Creation of Office of Diversity. 24

25

1. If Abercrombie has not already done so, then within thirty (30) days of the

26 Approval Date, Abercrombie shall create an Office of Diversity headed by a corporate executive

27 with the title of Vice President (“Diversity VP”). The Diversity VP shall report directly to the

28 Chief Executive Officer (CEO) or the Chief Operating Officer (COO) of Abercrombie.

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1

2. Abercrombie sha ll appoint a person to serve as Diversity VP no later than

2 sixty (60) days after the Approval Date. In the event that the position of Diversity VP becomes

3 vacant, Abercrombie shall appoint a successor as soon as practicable after the position becomes

4 vacant, and in any event, if the position remains vacant for sixty (60) days, Abercrombie will

5 retain a search firm to search for a successor, and will appoint an interim Diversity VP who will

6 be charged with temporarily performing the functions of the position. The following procedures

7 shall apply in selecting the Diversity VP:

8

a. Abercrombie shall use Best Efforts to appoint an individual who

9 will be effective in carrying out the duties and responsibilities set forth in Section XI.A.3.

10

b. Abercrombie will use a minority-owned search firm, or a minority

11 from a majority-owned search firm, to identify potential candidates for the Diversity VP position.

12 Abercrombie will identify the search firm or individual to Lead Counsel and the EEOC. Prior to

13 appointing an individual for the Diversity VP position, Abercrombie shall provide Lead Counsel

14 and EEOC with a resume of the individual whom Abercrombie intends to appoint to the position.

15 Within ten (10) days of receiving the resume, Lead Counsel and/or the EEOC may provide their

16 views to Abercrombie as to the individual’s qualifications and suitability for the Diversity VP

17 position. The decision as to which individual to select for the position shall be solely

18 Abercrombie’s and is not subject to further review under Section X.

19

3. The Diversity VP shall use Best Efforts to ensure Abercrombie’s

20 implementation and compliance with the provisions of this Decree, including the following:

21

a. Monitoring and implementation of any required changes to human

22 resources systems;

23

b. Monitoring and implementation of the Benchmarks provided for

24 under the Decree;

25

c. Overseeing the development and implementation of all training and

26 education programs to be provided under the Decree;

27

d. Submitting progress reports and other monitoring and reporting

28 material provided for in the Decree;

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1

e. Overseeing the investigation, collection, tracking, and appropriate

2 resolution of complaints of unlawful discrimination submitted under Abercrombie’s Internal

3 Complaint Procedure (described herein, in Section XI.D.); and

4

f. Overseeing the development of all recruiting programs to be

5 provided under this Decree and monitoring the implementation of such programs.

6

4. Abercrombie will use Best Efforts to provide such staff, funds, and other

7 resources to the Diversity VP as are necessary to discharge Abercrombie’s obligations under the

8 Decree.

9

5. Upon completion of the Internal Complaint Procedure investigation, the

10 Diversity VP shall have the authority to recommend appropriate action to be taken and/or

11 monetary payment to be made to any individual who has submitted a complaint of unlawful

12 discrimination or of a violation of the Decree.

13

B. Notice and Posting.

14

1. Within ten (10) days of the Approval Date, Abercrombie shall post in

15 conspicuous places where employee notices are posted in each of its stores and corporate offices,

16 the Notice attached hereto as Exhibit B. The Notice shall remain posted in each such location

17 (and in any new stores or corporate offices) for the duration of this Consent Decree. In addition,

18 the Notice shall be published every four (4) months with the HR 411 Bulletin for the duration of

19 this Consent Decree. In connection with each Semi-Annual Progress Report, Abercrombie shall

20 certify that the Notice has been posted and remained posted as required above during the

21 preceding six (6) month period.

22

2. Abercrombie shall also include within its Employee Handbook or

23 otherwise provide to each new employee, the following statement or its equivalent: “In 2004,

24 Abercrombie voluntarily entered into a Decree, agreeing to undertake actions that demonstrate its

25 strong commitment to diversity and equal employment opportunity. Each store has a posted

26 notice regarding this decree, and a summary and copy of the Consent Decree are available at

27 [domain name].”

28

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1

C. EEO and Diversity Training.

2

1. During the Term of the Decree, Abercrombie shall provide training on

3 equal employment opportunity and compliance with the provisions of the Decree to Managers-In-

4 Training, Assistant Managers, Store Managers and General Managers, to include the following

5 topics: (1) compliance with the Decree; (2) equal employment opportunity; (3) federal, state and

6 Company prohibitions of unlawful discrimination and retaliation; (4) diversity issues; and

7 (5) other topics that will encourage equal employment in recruiting, hiring, assigning, promoting,

8 and retaining minorities and females. Such training may be delivered by computer program, live

9 “discussion” format, video format, written materials, or any combination of these or other formats

10 tailored to be effective in communicating the material, provided, however, that such training as

11 occurs within the first twelve months following the Approval Date shall not be provided to

12 participants solely through written materials. No less than two hours shall be devoted to training

13 on these topics for each participant within four months following (a) the Approval Date, or (b) the

14 date of the participant’s hiring as a Manager in Training, or promotion to an Assistant Manager,

15 Store Manager, or General Manager position, whichever occurs la ter. In addition, during the

16 Term of the Decree, Abercrombie shall provide (on a group or individual basis) at least two hours

17 of additional training described above to Assistant Managers, Store Managers, and General

18 Managers every twelve months after the Assistant Managers, Store Managers, and General

19 Managers last received such training (on a group or individual basis).

20

2. During the Term of the Decree, Abercrombie shall provide training on

21 equal employment opportunity and compliance with the provisions of the Decree to all District

22 Managers, Regional Managers, and salaried exempt employees in the departments of Store

23 Administration, Store Communications, Security, Stores HR, Store Operations, and Store

24 Control, to include the following topics: (1) compliance with the Decree; (2) equal employment

25 opportunity; (3) federal, state, and Company prohibitions of unlawful discrimination and

26 retaliation; (4) diversity issues; and (5) other topics that will encourage equal employment

27 recruiting, hiring, training, promoting, and retaining minorities and females. Such training may

28 be delivered by computer program, live “discussion” format, video format, written materials, or

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1 any combination of these or other formats tailored to be effective in communicating the material,

2 provided, however, that such training as occurs within the first twelve months following the

3 Approval Date shall not be provided to participants solely through written materials. No less than

4 two hours shall be devoted to the training on these topics for each participant within four months

5 following (a) the Approval Date, or (b) the date of the participant’s promotion to District

6 Manager or Regional Manager position, whichever occurs later. In addition, during the Term of

7 the Decree, Abercrombie shall provide (on a group or individual basis) at least two hours of

8 additional training as described above to District Managers, Regional Managers, and salaried

9 exempt employees in the departments of Store Administration, Store Communications, Security,

10 Stores HR, Store Operations, and Store Control, every twelve months after the District Managers,

11 Regional Managers, and corporate employees last received such training. Provided further that if

12 Abercrombie holds a meeting of District and/or Regional Managers in order to conduct training,

13 then at least one hour of the training described above shall be done in live “discussion” format at

14 such meeting.

15

3. Within thirty (30) days following the Approval Date, Abercrombie will

16 train its human resources associates who ha ve substantive responsibilities related to compliance

17 with fair employment laws, and the practices and procedures established by this Decree. New

18 human resources associates shall receive such training within thirty (30) days of their date of

19 entry into such positions. Such training shall include, but not be limited to: (a) federal and state

20 equal employment opportunity laws, including but not limited to the general provisions of these

21 laws, the bases on which discrimination is prohibited under these laws, the identity, roles and

22 responsibilities of agencies established to enforce these laws, and the principles and objectives

23 underlying these laws; (b) the application of equal employment opportunity to typical

24 employment situations, including but not limited to recruiting, hiring, job assignment, managerial

25 promotion, and other career advancement opportunities, and general recruiting, hiring and

26 supervision without engaging in racial, ethnic or gender stereotyping; (c) the provisions and

27 requirements of the Decree; (d) the Internal Complaint Procedure; (e) the role and responsibility

28 of the human resources staff; and (f) following up EEO complaints and investigations (including,

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1 but not limited to, addressing potential or alleged retaliation, working with the complainant, and

2 appropriate discipline and other remedial measures).

3

4. The training described in this section may be held in conjunction with other

4 Company business, at Abercrombie’s discretion, and may be organized geographically in such

5 fashion as Abercrombie deems appropriate.

6

5. Abercrombie will provide Lead Counsel and the EEOC with the proposed

7 plan for training discussed in Sections XI.C. 2, 3 and 4 in order to provide an opportunity for

8 comment. Lead Counsel and the EEOC will provide comments, if any, within twenty-one (21)

9 days of receipt. Abercrombie shall respond to such comments within fifteen (15) days of receipt.

10 If the parties cannot agree on the proposed plan for training, any disputes will be submitted to the

11 Special Master for resolution. The proposed plan for training will be presumed to be acceptable

12 unless Lead Counsel and/or EEOC demonstrate that the proposed plan for training is improper.

13

D. Internal Complaint Procedure.

14

1. If Abercrombie has not already done so, then within thirty (30) days of the

15 Approval Date, Abercrombie shall develop an Internal Complaint Procedure to provide for the

16 filing, investigation and, if appropriate, remedying of complaints of discrimination or retaliation

17 by associates or applicants for employment on the basis of race, color, national origin or gender,

18 or where a violation of this Decree has occurred or is alleged. Abercrombie will implement the

19 Internal Complaint Procedure within sixty (60) days of the Approval Date. Abercrombie will

20 provide Lead Counsel and EEOC with the proposed Internal Complaint Procedure in order to

21 provide an opportunity for comment regarding the proposed procedure. Lead Counsel and the

22 EEOC will provide comments, if any, within twenty-one (21) days of receipt of the Internal

23 Complaint Procedure. Abercrombie shall respond to such comments within fifteen (15) days of

24 receipt. If the parties cannot agree on the Internal Complaint Procedure, any disputes will be

25 submitted to the Special Master for resolution. The Internal Complaint Procedure will be

26 presumed to be acceptable unless Lead Counsel and EEOC demonstrate that the proposed Internal

27 Complaint Procedure is improper. Any decision of the Special Master is final and not subject to

28 appeal.

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1

2. The Diversity VP shall be responsible for oversight of:

2

a. publicizing the availability of this Internal Complaint Procedure;

3

b. tracking and collecting all complaints filed thereunder;

4

c. investigating and resolving such complaints in a timely and

5 effective manner; and

6

d. retaining records regarding the resolution of all such complaints.

7

3. The internal complaint procedure shall incorporate the following elements:

8

a. A policy describing how investigations will be conducted, to be

9 included in the Associate Handbook;

10

b. A prompt commencement and thorough investigation by a person

11 trained to conduct such investigations who is not connected with the complaint;

12

c. A statement that an investigation should include interviews of all

13 relevant witnesses, including the complainant, and reviews of all relevant documents;

14

d. A written record of all investigatory steps, and any findings and

15 conclusions, and any actions taken;

16

e. Provision for the reasonably prompt resolution of such complaints;

17

f. An opportunity for the complainant to review and respond to

18 tentative findings, except in tho se circumstances in which it is necessary to take immediate

19 action;

20

g. Confidentiality of the complaint and investigation to the extent

21 possible;

22

h. Appropriate communication of the final conclusions of the

23 investigation provided to the complainant;

24

i. An appeal procedure to the Vice President of Human Resources, or

25 other appropriate Abercrombie representative, should the complainant be dissatisfied with the

26 results of the investigation; and

27

j. A notice that employees or applicants complaining of

28 discrimination may use the company’s internal complaint procedure and/or may file charges with

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1 the EEOC or state or local Fair Employment Practice (FEP) agencies. The notice shall also state

2 that filing an internal complaint does not relieve the complainant of meeting any applicable

3 deadline for the filing of a charge or complaint with EEOC or state or local FEP agencies.

4

4. Abercrombie may encourage resolution of internal complaints at a local

5 level prior to investigation, but not require such informal resolution. A complaina nt shall not be

6 required to first report the complaint to a person who is accused of the inappropriate conduct to

7 invoke the Internal Complaint Procedure.

8

5. The Internal Complaint Procedure will permit, but not require, an

9 employee to initiate the complaint process by submitting a written complaint on a form designed

10 for that purpose. Abercrombie shall also set up or maintain a toll- free telephone number to

11 receive complaints and shall designate additional persons at the district level who will be

12 authorized to accept such complaints on behalf of the Company.

13

6. The Internal Complaint Procedure shall be incorporated into the Associate

14 Handbook. Abercrombie shall continue to issue the Associate Handbook to all new store

15 associates.

16

7. Abercrombie will maintain a policy of nondiscrimination and equal

17 treatment, including a policy of zero tolerance for unlawful discrimination, in all of its

18 employment practices.

19

8. The Internal Complaint Procedure is not intended to supplant the right of

20 any employee to file a charge or complaint of discrimination or retaliation under any available

21 municipal, state, or federal law.

22

9. Abercrombie shall publish with the Internal Complaint Procedure the

23 following elements that will be included in the procedure:

24

a. A statement that it is unacceptable to retaliate against any associate

25 for use of the Internal Complaint Procedure, for assisting in the investigation of a complaint, or

26 for otherwise assisting in the utilization of the procedure. Abercrombie reserves the right to take

27 disciplinary action against an associate who intentionally provides false information in connection

28 with the procedure.

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1

b. A statement that if an allegation of discrimination or retaliation

2 against a manager or other associate is substantiated, then such conduct will result in appropriate

3 discipline, up to and including discharge.

4

E. Performance Evaluations.

5

1. If Abercrombie has not already done so prior to the Approval Date, it shall

6 revise its performance evaluation forms for Assistant Managers, Store Managers, General

7 Managers, Dis trict Managers, and Regional Managers in order to include as measures of

8 performance: (1) compliance with Abercrombie’s Equal Employment Opportunity Policy and

9 Discrimination and Harassment Policy; (2) attainment and management of diversity in the

10 workplace; and (3) efforts to meet Benchmarks and to comply with other provisions of the

11 Decree. The results of such evaluation factors shall have a meaningful impact upon

12 compensation and/or bonus calculation.

13

2. At least thirty (30) days prior to implementation of the performance

14 evaluation forms described in Section XI.D.1, Abercrombie will provide Lead Counsel and the

15 EEOC with the proposed revisions in order to provide an opportunity for comment regarding the

16 revisions. Lead Counsel and the EEOC will provide comments, if any, within twenty-one (21)

17 days of receipt of the proposed revisions. Abercrombie shall respond to such comments within

18 fifteen (15) days of receipt. If the parties cannot agree on the proposed revisions, any disputes

19 will be submitted to the Special Master for resolution. The proposed revisions will be presumed

20 to be acceptable unless Lead Counsel and/or EEOC demonstrate that the proposed revisions are

21 improper. Any decision of the Special Master is final and not subject to appeal.

22 XII. JOB ANALYSIS, MINIMUM ELIGIBILITY REQUIREMENTS, JOB CRITERIA,

RECRUITMENT, HIRING, JOB ASSIGNMENTS AND MANAGERIAL

23

PROMOTION AND STAFFING

24

A. Job Analysis and Job Criteria.

25

1. The parties stipulate and agree upon Abercrombie’s retention of Kathleen

26 Lundquist, a professional industrial organizational psychologist, to develop a written job analysis

27 and job-related criteria for each in-store store position.

28

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1

2. No later than four (4) months after the Approval Date, in consultation with

2 the industrial organizational psychologist, Abercrombie shall develop selection criteria for in-

3 store positions, including Minimum Eligibility Requirements that are job related and consistent

4 with business necessity to the extent required by Title VII. Selection criteria shall be subject to

5 challenge under Section X of this Decree only if a particular position’s selection criteria, taken

6 collectively, cause adverse impact in selection rate for African Americans, Asian Americans,

7 Latinos, or women. If the selection criteria cause such adverse impact and are challenged under

8 Section X of this Decree, the selection criteria shall be affirmed if Abercrombie shows that it has

9 used Best Efforts to determine whether alternative job-related selection criteria or whether an

10 alternative use of job-related selection criteria has less adverse impact and would be equally

11 predictive of job performance.

12

3. Abercrombie will not use as a criterion for store positions any of the

13 following: enrollment in a target college, participation in college fraternity or sorority activities

14 generally, participation in particular fraternities or sororities, participation in particular athletic

15 activities, or gender. Abercrombie will not use enrollment in college as a Minimum Eligibility

16 Requirement for non- management store positions.

17

4. Abercrombie will provide Lead Counsel and the EEOC with the job

18 analyses, including Minimum Eligibility Requirements, and job-related criteria in order to

19 provide an opportunity for comment. The content of the job analyses and job-related criteria

20 prepared pursuant to Section XII.A.1. will not be subject to review under Section X of this

21 Decree.

22

B. Recruitment and Hiring.

23

1. No later than four months after the Approval Date, Abercrombie, in

24 consultation with the industrial organizational psychologist, shall develop and implement a

25 written Recruitment and Hiring Protocol to recruit and hire job applicants for all hourly in-store

26 positions and the Manager- in-Training position. The Recruitment and Hiring Protocol shall

27 require that Abercrombie affirmatively seek out applications from qualified African Americans,

28 Asian Americans, and Latinos of both genders.

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1

2. Abercrombie’s recruitment and operations materials will reflect diversity in

2 race, color, national origin and gender in the United States, including the use of African

3 Americans, Asian Americans and Latino models of both genders.

4

3. The Recruitment and Hiring Protocol shall prohibit Abercrombie from

5 discouraging the submission of an application by any qualified person, or discarding or otherwise

6 diverting any application submitted. In addition, the Recruitment and Hiring Protocol shall

7 instruct Managers to make available and accept applications for Manager- in-Training at all of the

8 places and through all of the means that applications for Brand Representative are made available

9 and received.

10

4. The Recruitment and Hiring Protocol shall require clear and concise

11 written job descriptions for each in-store non- managerial position and the Manager-in- Training

12 position.

13

5. Job descriptions will be made available to anyone who requests them, and

14 non- management job descriptions will be made available in a single package so that potential

15 applicants are made aware of the differences among positions.

16

6. The Recruitment and Hiring Protocol will contain instructions for

17 dissemination of applications, the conduct of structured interviews, programs to train involved

18 staff, hiring decisions, documentation, and the hiring process generally.

19

7. The Recruitment and Hiring Protocol shall instruct Managers that Minority

20 associates shall not be disproportionately assigned involuntarily to any particular positions on the

21 basis of race or national origin.

22

8. Within sixty (60) days of the adoption of the Recruitment and Hiring

23 Protocol and continuing every twelve (12) months thereafter, Abercrombie will use Best Efforts

24 to train all involved staff in the conduct of structured interviews and other elements of the

25 Recruitment and Hiring Protocol.

26

9. Abercrombie will provide Lead Counsel and the EEOC with the

27 Recruitment and Hiring Protocol and the job descriptions in order to provide an opportunity for

28 comment regarding the adequacy of the Recruiting and Hiring Protocol. If the parties cannot

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1 agree on the Recruitment and Hiring Protocol, any disputes will be submitted to the Special

2 Master for resolution and the Recruitment and Hiring Protocol shall be affirmed by the Special

3 Master unless Lead Counsel and /or the EEOC demonstrate that said protocol is clearly improper

4 and not in accordance with accepted industrial organizational psychologist professional standards.

5 Any decision of the Special Master is final and not subject to appeal.

6

C. Managerial Promotions.

7

1. Abercrombie will use Best Efforts to promote African Americans, Latinos,

8 Asian Americans and women at the following rates: Beginning in the second six- month period,

9 Abercrombie shall use its Best Efforts to promote women and members of each Minority Group

10 to positions of Assistant Manager and Store Manager/General Manager in a proportion that is no

11 less than the specific group’s proportion of the available feeder pool. The appropriate available

12 feeder pool for Assistant Managers consists of all incumbent Managers-in- Training. The

13 appropriate available feeder pool for Store Manager/General Manager consists of all incumbent

14 Assistant Managers. The measuring date of incumbents in the available feeder pool shall be the

15 last day of the preceding six- month period. For this set of Benchmarks only, if Abercrombie

16 promotes women and African Americans, Latinos, and Asian Americans to such positions in a

17 proportion that deviates by no more than two standard deviations from the specific group’s

18 proportion of the available feeder pool, Abercrombie shall be deemed to have achieved its

19 promotion Benchmarks.

20 XIII. AFFIRMATIVE RECRUITING EFFORTS

21

A. Diversity Recruiters.

22

In the first six months of the Decree, if not before, Abercrombie will hire and maintain at

23 least ten (10) full- time diversity recruiters who will be based in major metropolitan areas and will

24 be charged with recruiting Minority applicants, including female applicants of each Minority,

25 who meet Minimal Eligibility Requirements, into in-store positions. No later than twelve months

26 after the Approval Date, Abercrombie will hire and maintain an additional fifteen (15) full- time

27 diversity recruiters. Abercrombie will use Best Efforts to ensure that its recruiters themselves

28 reflect diversity in race/national origin and gender. Abercrombie will consider both external and

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1 internal candidates for recruiter positions. Abercrombie will provide the resumes of the diversity

2 recruiters to Lead Counsel and the EEOC. If Abercrombie has met the Benchmarks set forth in

3 Section XIV for the first thirty (30) months of the term of this Decree, Abercrombie shall have

4 the right to petition the Special Master, and if necessary the Court, for modification of this

5 provision.

6

B. Advertisements.

7

During the Term of the Decree, Abercrombie will advertise for in-store employment

8 opportunities in periodicals or other media that target African Americans, Asian Americans,

9 and/or Latinos of both genders. Abercrombie will provide a list of media publications in which

10 advertisements were placed to Lead Counsel and the EEOC on an annual basis.

11

C. Recruiting Events.

12

During the Term of the Decree, Abercrombie will attend Minority job fairs and Minority

13 recruiting events that are attended by African Americans, Asian Americans, and/or Latinos of

14 both genders.

15

D. Diversity Consultant.

16

During the Term of the Decree, Abercrombie will utilize a diversity consultant whose

17 identity will be made known to Lead Counsel and the EEOC. The diversity consultant will

18 conduct diversity/inclusion training for all field based managers and selected home office

19 personnel. The diversity consultant will also, in conjunction with the VP of Diversity, aid in

20 identifying sources of qualified Minority candidates. Abercrombie will ensure that its diversity

21 consultant, or any subcontracted consultant, has familiarity with and experience in providing

22 diversity training as to all three of the minority groups – African American, Asian American and

23 Latinos – and gender.

24

E. Documentation.

25

Abercrombie will ensure that its recruiters document their recruiting efforts and that such

26 records are retained for review by the Vice President of Diversity and are available to the

27 monitor. Such documentation shall include, specifically but not exclusively: 1) a description of

28

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1 the placement of advertisements (publication, size, time, duration, targeted audience) and 2) a

2 description of events/fairs attended (place, date, targeted audience).

3 XIV. BENCHMARKS

4

A. General Principles

5

1. Abercrombie shall use Best Efforts to meet the selection benchmarks set

6 forth in this section. These Benchmarks do not establish maximum or minimum rates for the

7 selection of African Americans, Latinos, Asian Americans or women; rather these Benchmarks

8 establish selection rates that Abercrombie will use Best Efforts to achieve.

9

2. In attempting to meet these Benchmarks, Abercrombie shall not be

10 required to select unqualified persons or to displace any incumbent associate from his or her

11 position. These Benchmarks are not quotas; rather, they are Benchmarks designed to afford

12 guidance as to whether Abercrombie is making selection decisions in such a way as to afford

13 equal employment opportunity.

14

3. Abercrombie's failure to achieve a Benchmark for a particular position or

15 period will not be considered a violation of this Decree unless Abercrombie has failed to use Best

16 Efforts to meet the Benchmark. Should Abercrombie demonstrate that the proportion of good

17 faith offers made to applicants of a particular group as compared to all applicants was at least as

18 high as the Benchmark percentage, such evidence will conclusively establish that the Benchmark

19 was met.

20

4. Unless otherwise specified, achievement of the Benchmarks will be

21 calculated on a semi-annual basis and based on companywide employment data.

22

5. Failure to achieve a Benchmark by a fraction of a person shall not be

23 deemed to constitute a failure to achieve a Benchmark under the Decree.

24

6. Abercrombie shall use voluntary self- identification to identify the race and

25 gender of applicants and employees. No party shall influence an applicant’s or employee’s self-

26 identification. Absent clear applicant or employee error, no applicant or employee shall be

27 permitted to change his or her identified race or ethnicity.

28

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1

B. Interim Hiring Goals

2

1. Interim hiring Benchmarks shall be established for Benchmark Positions.

3

2. Abercrombie shall monitor, by applicant self- identification, applicant flow

4 of African Americans, Asian Americans, Latinos and women.

5

3. “Applicant Rate” shall be the actual applicant flow rate of a group as

6 measured on a six- month basis.

7

4. “Maintenance Level” shall be the proportion of Asian Americans hired

8 compared to all groups hired in a position as of the Preliminary Approval Date of this Decree.

9

5. “Percentage Level” for African-Americans shall be six-and-a-half percent

10 (6.5%) for the second six- month period, seven-and-a-half percent (7.5%) for the third six- month

11 period, and nine percent (9%) for the fourth six- month period.

12

6. “Percentage Level” for Latinos shall be seven percent (7%) for the second

13 six-month period, eight percent (8%) for the third six- month period, and nine percent (9%) for the

14 fourth six- month period.

15

7. “Percentage Level” for women shall be fifty-three percent (53%) for the

16 second six- month period, fifty- three percent (53%) for the third six- month period, and fifty-three

17 percent (53%) for the fourth six- month period.

18

8. The first six- month period begins at the beginning of the month following

19 the Approval Date.

20

9. Brand Representative Position.

21

Abercrombie will use Best Efforts to meet the following interim hiring

22 goals:

23

a. First six- month period:

24

African American: five percent (5%);

25

Latinos: six percent (6%);

26

Asian Americans: Maintenance Level; and

27

Women: fifty-three percent (53%).

28

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1

b. Second six- month period:

2

African American: the greater of Percentage Level of six-and-a-half

3

percent (6.5%) or Applicant Rate, as adjusted;1

4

Latinos: the greater of Percentage Level of seven percent (7%) or

5

Applicant Rate, as adjusted;2

6

Asian Americans: the greater of Maintenance Level or Applicant

7

Rate; and

8

Women: the greater of Percentage Level of fifty-three percent

9

(53%) or Applicant Rate;

10

c. Third six- month period:

11

African Americans: the greater of Percentage Level of seven-and-

12

a-half percent (7.5%) or Applicant Rate, as adjusted;3

13

Latinos: the greater of Percentage Level of eight percent (8%) or

14

Applicant Rate, as adjusted;4

15

Asian Americans: the greater of Maintenance Level or Applicant

16

Rate; and

17

Women: the greater of Percentage Level of fifty-three percent

18

(53%) or Applicant Rate;

19

d. Fourth six- month period:

20

African Americans: the greater of Percentage Level of nine percent

21

(9%) or Applicant Rate in the third six- month period;

22
1 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
23 (3%) the proportion of African Americans hired into the Brand Representative position compared to all Minority
individuals hired into that position in the first six-month period.
24 2 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
(3%) the proportion of Latinos hired into the Brand Representative position compared to all Minority individuals
25 hired into that position in the first six-month period.
26 3 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
percent (1.5%) the proportion of African Americans hired into the Brand Representative position compared to all
27 Minority individuals hired into that position in the second six-month period.
4 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
28 percent (1.5%) the proportion of Latinos hired into the Brand Representative position compared to all Minority
individuals hired into that position in the second six-month period.

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1

Latinos: the greater of Percentage Level of nine percent (9%) or

2

Applicant Rate in the third six- month period;

3

Asian Americans: the greater of Maintenance Level or Applicant

4

Rate in the third six- month period; and

5

Women: the greater of Percentage Rate of fifty- three percent

6

(53%) or Applicant Rate.

7

10. Minority Female Goal.

8

In addition to the interim hiring goals set forth in Section XIV.B.9,

9 Abercrombie will use Best Efforts to meet the following interim hiring goals for African

10 American women for the Brand Representative position:

11

a. First six- month period:

12

4.25 percent of all women hired;

13

b. Second six- month period:

14

the greater of 5.5 percent of all women hired or Applicant Rate, as

15

adjusted;5

16

c. Third six- month period:

17

the greater of 6.4 percent of all women hired or Applicant Rate, as

18

adjusted;6

19

d. Fourth six- month period:

20

the greater of 7.6 percent of all women hired or Applicant Rate.

21

Notwithstanding the foregoing, Abercrombie shall be deemed to have

22 achieved this Benchmark if Abercrombie achieves its Benchmark for African Americans and if

23 Abercrombie hires or extends good faith offers to African American women at the greater of the

24 following rates: (1) 45% of Abercrombie’s total African American hires; or (2) the Applicant

25

26 5 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
(3%) the proportion of African American women hired into the Brand Representative position compared to all
27 minority women hired into that position in the first six-month period.
6 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
28 percent (1.5%) the proportion of African American women hired into the Brand Representative position compared to
all minority women hired into that position in the second six-month period.

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1 Rate of African American women. In addition, Abercrombie shall report the number of all Latina

2 and Asian American women hired in the Brand Representative position. If, in two consecutive

3 six-month periods, the number of Latina women or Asian American women hired as a proportion

4 of all women hired into that position is lower to a statistically significant degree than the number

5 of Latina women or Asian American women as a proportion of all women employed in that

6 particular position at the time this Decree takes effect, the parties shall meet and confer regarding

7 the matter.

8

11. Manager- in-Training Position.

9

Abercrombie will use Best Efforts to meet the following interim hiring

10 goals:

11

a. First six- month period:

12

African American: three-and-a-half percent (3.5%);

13

Latinos: three-and-a-half percent (3.5%) ;

14

Asian Americans: three and four-tenths percent (3.4%); and

15

Women: fifty-three (53) percent .

16

b. Second six- month period:

17

African American: four-and-a-half percent (4.5%) or Applicant

18

Rate;

19

Latinos: four-and-a-half percent (4.5%) or Applicant Rate;

20

Asian Americans: three and six- tenths percent (3.6%) or Applicant

21

Rate; and

22

Women: fifty-three percent (53%) or Applicant Rate.

23

c. Third six- month period:

24

African American: five-and-a-half percent (5.5%) or Applicant

25

Rate;

26

Latinos: five-and-a-half percent (5.5%) or Applicant Rate;

27

Asian Americans: three and eight-tenths percent (3.8%) or

28

Applicant Rate; and

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1

Women: fifty-three percent (53%) or Applicant Rate.

2

d. Fourth six- month period:

3

African American: seven percent (7%) or Applicant Rate;

4

Latinos: seven percent (7%) or Applicant Rate;

5

Asian Americans: four percent (4%) or Applicant Rate; and

6

Women: fifty-three percent (53%) or Applicant Rate.

7

12. Notwithstanding the foregoing provisions XIV.B.9.-11., a rebuttable

8 presumption shall arise that Abercrombie has exercised its Best Efforts to meet the Minority

9 interim hiring goals for a particular six- month period if (i) Abercrombie is then in compliance

10 with its obligations under the Decree and (ii) Abercrombie has met Percentage Level interim

11 goals for two of the three Minority groups. However, the rebuttable presumption shall not be

12 deemed to arise if Abercrombie has missed an interim goal for the same group for a second

13 consecutive period. Nor would a rebuttable presumption arise if the interim goal Abercrombie

14 has missed is based upon the Applicant Rate. If the presumption is deemed to arise, and if Lead

15 Counsel and/or the EEOC seek to challenge whether Abercrombie has used Best Efforts to meet

16 the Minority interim hiring goals, Lead Counsel and/or the EEOC shall have the burden of

17 proving Abercrombie’s failure to use Best Efforts by a preponderance of the evidence.

18

C. Applicant Rate Goals

19

After the period when Interim Hiring Goals, described in Part B above, will be used,

20 Abercrombie shall use Applicant Rate in the preceding six- month period as a goal for Benchmark

21 Positions during the remaining term of the Decree. Abercrombie will identify the applicable

22 Applicant Rate to the Monitor, Lead Counsel, and the EEOC within thirty (30) days of the

23 beginning of each six- month period. If Abercrombie has been found to have failed to use Best

24 Efforts to implement Benchmarks, the parties shall meet and confer under the direction of the

25 Special Master to determine when and under what conditions Abercrombie may proceed to use of

26 Applicant Rate goals.

27

28

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1 XV. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS

2

A. Documents To Be Preserved For The Duration of The Decree.

3

Abercrombie shall retain the following employment-related records for the Duration of the

4 Decree or as required by state or federal law, whichever is longer:

5

1. Internal Complaint Procedure;

6

2. Job Analyses for Benchmark Positions;

7

3. Minimum Eligibility Requirements and job-related criteria for Benchmark

8 Positions;

9

4. Recruitment and Hiring Protocol;

10

5. Job descriptions for Benchmark Positions;

11

6. Training plans;

12

7. Semi- Annual Progress Reports; and

13

8. Monitor’s Reports and Executive Summaries.

14

B. Documents to Be Maintained for Two Years.

15

The following documents shall be maintained for two years from the date the document is

16 created, or as required by state or federal law, whichever is longer:

17

1. Performance Evaluations of Managers;

18

2. Training Program Materials.;

19

3. Internal Complaints;

20

4. Recruiting Documentation described in Section XIII.E; and

21

5. Marketing Materials.

22

C. Access to Documents.

23

1. The Monitor shall, upon reasonable notice, be entitled to review all

24 documents, including electronic data in machine-readable form, that are required to be maintained

25 or created by the express terms of this Decree or that are used or referred to by Abercrombie to

26 prepare Semi- Annual Progress Reports, except, ho wever, that the Monitor shall not be entitled to

27 review any such documents that are protected by attorney-client privilege or attorney work

28 product doctrine (“privileged documents”).

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1

2. Lead Counsel and the EEOC may seek access to non-privileged documents

2 described in C.1 above by requesting, with notice to Abercrombie, copies of such documents

3 from the Monitor. Upon request, and notice to Abercrombie, the Monitor shall provide Lead

4 Counsel and the EEOC with access to documents described in Section XV.C.1 unless

5 Abercrombie objects within five (5) days of receipt of notice. If Abercrombie timely objects, the

6 objection shall be resolved by the Monitor. The Monitor shall determine any matter in dispute by

7 requiring that Lead Counsel and the EEOC demonstrate the access requested is relevant to a claim

8 of breach of the Decree.

9

3. All documents required to be maintained by the express terms of the

10 Decree, and all documents that are provided to the Monitor, Lead Counsel, or the EEOC under

11 the terms of the Decree, are and shall be treated as confidential business records. Neither Lead

12 Counsel, the EEOC nor the Monitor shall divulge any such documents to any third party unless so

13 ordered by the Court after notice to Abercrombie and an opportunity for Abercrombie to object to

14 such disclosure and be heard. Upon expiration of this Decree, Lead Counsel, the EEOC and the

15 Monitor shall promptly return to Abercrombie or destroy any and all documents Abercrombie

16 furnished under this Decree. This provision shall not prevent a party from filing otherwise

17 confidential documents with the Court, provided that, either: (a) such documents are filed under

18 seal; or (b) Lead Counsel and/or the EEOC give ten (10) days advance notice to Abercrombie, to

19 permit opportunity to seek a protective order sealing such documents.

20

D. Reporting Schedule.

21

Within sixty (60) days of completion of the initial Benchmark period, and at six (6) month

22 intervals thereafter through the Term of the Decree, Abercrombie shall provide Semi- Annual

23 Progress Reports to the Monitor, Lead Counsel and EEOC on Abercrombie’s compliance with the

24 Decree’s requirements. All such Reports shall be subject to the same confidentiality restrictions

25 described in Section XV.C.3. above.

26

E. Contents of the Semi-Annual Progress Reports.

27

Abercrombie’s Semi- Annual Progress Reports shall include information regarding the

28 following:

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1

1. Progress in achieving each of the Benchmarks described above in

2 Section XIV. This report will include the applicable goal proportion and the actual achieved

3 proportion. Abercrombie will indicate any shortfalls in achieving Benchmarks for the preceding

4 six-month period, will analyze the possible reasons for such shortfall, and will identify plans to

5 facilitate achievement of the Benchmark not met. If applicable, Abercrombie will analyze

6 possible reasons if any division reflects shortfalls (i.e., less then 80 percent of companywide

7 level) even if companywide Benchmarks are satisfied. (Division is defined as Abercrombie &

8 Fitch, Hollister, abercrombie, or any other concept adopted by Abercrombie during the period of

9 this Decree). In addition, if applicable, Abercrombie will analyze possible reasons that any

10 Benchmark was met through good faith offers only.

11

2. Number and proportion of persons companywide in the preceding six

12 months by race/ethnicity and gender (i.e., African American men, African American women,

13 Asian American men, Asian American women, Latino men, Latina women, white men, white

14 women) extended a good faith offer, hired or promoted (each of which shall be separately

15 reported) into (a) each in-store non-managerial position (e.g., Brand Representative, stocker,

16 overnight); (b) Manager-In-Training; (c) Assistant Manager; (d) Store Manager; and (e) General

17 Manager.

18

3. Number and proportion of persons in the preceding six months extended a

19 good faith offer, hired or promoted (each of which shall be separately reported) by store, state and

20 division by race/ethnicity and gender (i.e. African American men, African American women,

21 Asian American men, Asian American women, Latino men, Latina women, white men, white

22 women) for (a) each in-store non- managerial position (e.g., Brand Representative, stocker,

23 overnight); (b) Manager-In-Training; (c) Assistant Manager; (d) Store Manager; and (e) General

24 Manager.

25

4. Composition of incumbent associates by each store position and by race,

26 ethnicity and gender within each store, state, division and company-wide at the end of the

27 preceding six month period.

28

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1

5. Number and proportion of associates in each in-store non- managerial

2 position (e.g., Brand Representative, stocker, overnight) by race/ethnicity and gender and by

3 store, state, division, and companywide in the preceding six months;

4

6. Attrition or termination of associates from each store position by race,

5 ethnicity and gender and by reason for leaving within each store, state, and division during the

6 preceding six month period;

7

7. Confirmation by District Managers that the poster required by Section XI.B

8 is posted, with copies attached;

9

8. Summary of activity of Diversity V.P. in implementing affirmative

10 recruitment efforts, diversity training and Internal Complaint Procedure, with copies of materials

11 attached;

12

9. Copies of Company materials depicting persons referred to in Section

13 XII.B.2 and an indication of which persons used are or have been Abercrombie associates;

14

10. Copies of posting and publication of job descriptions of in-store positions

15 as required in Section XII.B.5;

16

11. Copies of recruitment documentation referred to in Section XIII.

17

12. The number of hourly in-store employees by race/gender tha t have been

18 terminated in the preceding six- month reporting period at the direction of home office

19 management excluding human resources.

20

13. Copies of all marketing materials used by the Company in the preceding

21 six months (e.g., print, television or internet advertising; quarterly magazines, store catalogs, and

22 similar materials; store posters; videos; A&F television; shopping bags; etc.).

23

F. Compliance Meetings.

24

1. Within three months of the Approval Date, representatives of Abercrombie,

25 Lead Counsel, and the EEOC, shall confer with the Monitor in order to review the initial

26 implementation of the Decree, Abercrombie’s compliance with the requirements, and other

27 related topics. Thereafter, representatives of Abercrombie, Lead Counsel, and the EEOC, shall

28 confer with the Monitor every six months to review the Semi-Annual Progress Reports required

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1 by Section XV.E above. Within one month of the initial Progress Report and after each such

2 Report submitted thereafter representatives of Abercrombie, Lead Counsel and the EEOC shall

3 confer with the Monitor in order to review the matters described above. Such meetings shall be

4 in person if requested by Lead Counsel, EEOC, or Abercrombie, except that if, after three years

5 after the Approval Date, Abercrombie has met the Benchmarks, then only one compliance

6 meeting each year need be in person.

7

2. The parties will discuss, among other things, identifying any goal not

8 achieved and an analysis of the reasons that the goal was not achieved and plans that would

9 facilitate achievement of the goal. In addition, if applicable, the parties will discuss possible

10 reasons that any Benchmark was met through good faith offers only.

11

3. The Diversity VP shall attend each Compliance Meeting. Other officers,

12 managers, and associates of Abercrombie, whose presence will assist the attainment of the

13 purpose of the Compliance Meetings, may attend as appropriate. Compliance Meetings shall take

14 place in San Francisco (or another mutually agreeable location).

15

G. Status Conference with Court.

16

1. The parties shall conduct an annual status conference with the Court to

17 discuss the status of implementation of the Decree. Abercrombie, Lead Counsel, and the EEOC

18 may be represented at the status conference. No party shall file any document with the Court in

19 conjunction with the status conference, unless directed to do so by the Court.

20 XVI. MONITORING OF IMPLEMENTATION

21

A. Court-Appointed Monitor.

22

1. The parties have stipulated to Fred Alvarez, Esq. of Palo Alto, California

23 for the Court to appoint as a Monitor.

24

2. The Monitor will prepare an Annual Compliance Report (“Report”) on the

25 status of implementation and Abercrombie’s compliance with the terms and objectives of the

26 Decree, as well as an “Executive Summary” of such Report. The Monitor’s Report will include

27 (a) a summary of the requirements of the Decree; and (b) an assessment of Abercrombie’s

28 semiannual compliance reports. The Monitor will review and evaluate Abercrombie’s

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1 compliance with the specific terms of this Decree, and identify any barriers to fulfillment of its

2 objectives. The Monitor will also review and assess the responsibilities and performance of the

3 VP of Diversity.

4

3. The Executive Summary shall set forth the substance of the Monitor’s

5 findings for the applicable reporting period. The parties contemplate that the Executive Summary

6 will reflect the Monitor’s general findings in areas such as, but not limited to, training,

7 recruitment, creation of job analyses and descriptions, and attainment of Benchmarks, all as more

8 specifically covered by the Report, and the parties also contemplate that the Executive Summary

9 will not include specific findings as to, inter alia, the numbers of applications, hires, promotions,

10 or specific occurrences or events. By way of example, the Executive Summary’s discussion of

11 the Company’s training could generally set out the Monitor's findings relative to whether the

12 Company had or had not met its overall training objectives under the Decree over the subject

13 reporting period and, if not, a general statement of matters with respect to which there had been

14 non-compliance and any steps the Company is to take to resolve such matters. The EEOC may

15 respond to any legitimate inquiries by the public, media, or the government, with information

16 contained in the Summary or a copy thereof. Other than this exception to the EEOC, the

17 Executive Summary and information contained therein would be subject to the confidentiality

18 provisions of Section XV.C.3 of this Decree.

19

4. The Monitor will provide the Special Master, Abercrombie, Lead Counsel,

20 and the EEOC with copies of the Report and Executive Summary within ninety (90) days of the

21 anniversary date of the Decree. The Report shall be subject to the confidentiality restrictions

22 described in Section XV.C.3.

23

5. The Monitor shall have reasonable and timely access to relevant books,

24 data (including databases), documents, and other sources of information necessary or appropriate

25 to the exercise of his/her authority, in whatever form they are maintained in the ordinary course of

26 business. This will include, but not be limited to, access to the following insofar as they relate to

27 compliance with equal employment opportunity law and/or the terms of this Decree: (a)

28 applications and related documents; (b) guidelines or training on recruitment, hiring, job

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1 assignment, and managerial promotion; (c) EEO complaints, and any internal complaints; (d)

2 managerial performance evaluations; (e) records of employee discipline; (f) records of attrition

3 and terminations; (g) recruitment materials; and (h) marketing materials.

4

6. The Monitor shall address compliance issues that may arise as follows:

5

a. The Monitor shall categorize compliance issues as Low Level,

6 Intermediate Level, or High Level and treat them as follows:

7

i. Low Level means non-systemic matters, such as compliance

8 issues arising at a single store. Low Level issues may be resolved by Abercrombie and the

9 Monitor without consulting Lead Counsel or the EEOC. Low Level issues that are not resolved

10 by Abercrombie after notice from the Monitor and a reasonable opportunity to cure become

11 Intermediate Level issues. Low Level issues that are resolved shall only be reported by the

12 number of such issues in each region of Abercrombie in a confidential addendum to the Monitor’s

13 report that shall be provided to the parties. In addition, the Monitor shall maintain a log of all

14 resolved Low Level issues that includes, as to each issue, identification of the store involved and

15 a brief description of the nature of the issue and resolution. The Monitor shall provide the Special

16 Master with such log on an annual basis. Neither the Monitor nor the Special Master shall

17 produce such log to Lead Counsel or the EEOC unless and until Lead Counsel and/or the EEOC

18 undertake an enforcement procedure under the Decree in which such information would be

19 relevant, at which point Lead Counsel and/or the EEOC may seek such log through discovery

20 under the standards set forth in Section X.B.4.d above.

21

ii. Intermediate Level means either Low Level issues that the

22 Monitor and Abercrombie are unable to resolve after notice and a reasonable opportunity to cure,

23 or systemic issues that arise out of policy or implementation concerns that affect a significant

24 number of individuals. Prior to reporting Intermediate Level issues, the Monitor shall provide

25 Abercrombie with notice and a reasonable opportunity to cure any Intermediate Level issues.

26 Intermediate Level issues, including any resolution of such issues, will be reported in Compliance

27 Reports and may be the topic of discussion at Section XV.F Compliance Meetings.

28

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1

iii. High Level means situations involving exigent facts or

2 circumstances which require immediate action to prevent a serious violation of the terms of this

3 Decree. In the event a High Level matter shall arise, the Monitor will immediately notify EEOC,

4 Lead Counsel and Abercrombie of the pressing concern. The matter shall be resolved in

5 accordance with the provisions of Section X.B.

6

b. Upon request, and notice to Abercrombie, the Monitor shall provide

7 Lead Counsel and the EEOC with access to documents described in Section XV.C.1 unless

8 Abercrombie objects within five (5) days of receipt of notice. If Abercrombie timely objects, the

9 objection shall be resolved in accordance with the provisions of Section X.B.

10

c. The Monitor shall not report or disclose any action or matter

11 discovered in the course of the Monitor’s function that does not directly relate to the terms of this

12 Decree and Abercrombie’s compliance therewith.

13

7. Nothing herein shall be interpreted to preclude the Monitor from resolving

14 matters informally between the parties.

15

8. The Monitor may audit Abercrombie data for accuracy and/or

16 completeness, or retain an independent expert(s) for this purpose, as he/she deems necessary or

17 appropriate.

18

9. The Monitor may visit Abercrombie stores, as well as corporate offices, as

19 necessary to fulfill his/her responsibilities. The Monitor may also interview and communicate

20 with class members, in-store managers, employees, or other witnesses as necessary to fulfill

21 his/her responsibilities.

22

10. The Monitor may request additional information from Abercrombie and

23 may communicate with the Diversity VP, in a manner that assists the Monitor in the exercise of

24 his/her duties. After reasonable notice, the Monitor may communicate with members of

25 Abercrombie’s senior management. The Monitor may communicate with the Special Master,

26 counsel for Abercrombie, Lead Counsel and the EEOC.

27

11. All fees and expenses of the Monitor shall be paid by Abercrombie.

28

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1 XVII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE

2

A. Establishment of Settlement Fund.

3

1. Abercrombie shall establish a settlement fund (“Settlement Fund”) in the

4 amount of $40,000,000.00 for the purpose of providing individual monetary awards to Class

5 Representatives, Charging Parties and other eligible members of the Settlement Class and funding

6 a portion of the settlement administration expenses, in accordance with the provisions of this

7 Section. The Settlement Fund will be supplemented by the amount described in Section

8 XVII.A.2.

9

2. The Settlement Fund will be supplemented by an amount calculated as

10 imputed interest on the $40,000,000.00 as follows:

11

$40,000,000.00 multiplied by .025 (2.5% imputed interest)

multiplied by a fraction (the numerator of which is the number of

12

days between the Preliminary Approval Date, and the date

Abercrombie wire transfers final payment from the Settlement Fund

13

to the Settlement Fund Account as provided in Section XVII.A.4.e.

and the denominator of which is 360 days).

14

15

3. Lead Counsel and the EEOC will select a Claims Administrator. The

16 Claims Administrator will open and administer an interest-bearing account (“Settlement Fund

17 Account”) designated by Lead Counsel and with a unique Taxpayer Identification Number.

18

4. Payments will be made by Abercrombie from the Settlement Fund to the

19 Settlement Fund Account as follows:

20

a. Within seven (7) days of the Preliminary Approval Date,

21 Abercrombie will wire $350,000.00 to the Settlement Fund Account. This amount is intended to

22 cover costs of the mailed notices and expenses associated with the claims procedure.

23

b. Within seven (7) days of the Approval Date, Abercrombie will wire

24 $350,000.00 to the Settlement Fund Account. This amount is intended to cover expenses

25 associated with continued implementation of the claims procedure.

26

c. If there is no Final Approval of the Consent Decree, then the

27 Claims Administrator shall return to Abercrombie any funds remaining in the Settlement Fund

28 Account from the amounts described in Sections XVII.A.4.a and b.

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1

d. Within seven (7) days of Final Approval, Abercrombie will wire the

2 aggregate amount set forth in Exhibit C to the Settlement Fund Account. This amount shall be

3 distributed by the Claims Administrator to the Class Representatives and Charging Parties as set

4 forth in Section XVII.B.1.

5

e. After Final Approval and within seven (7) days after the Cla ims

6 Administrator has informed Abercrombie in writing that it is prepared to distribute the Settlement

7 Fund to the eligible members of the Settlement Class, Abercrombie will wire an amount to the

8 Settlement Fund Account calculated as follows:

9

$40,000,000.00 as supplemented by the amount calculated in

Section XVII.A.2., less amounts Abercrombie has paid to the

10

Settlement Fund Account in accordance with Sections XVII.A.4.a.,

b., and d., and less the aggregate amount of opt-out credits as

11

calculated under the provisions of Section XVII.D.4.

12

f. Upon payment of the amounts set forth in Section XVII.A.4. from

13 the Settlement Fund to the Settlement Fund Account having been made, Abercrombie will have

14 no further monetary obligation hereunder to Class Representatives, Charging Parties or members

15 of the Settlement Class, including no obligation to pay any funds for distribution to Class

16 Representatives, Charging Parties or members of the Settlement Class; no obligation to pay costs

17 of mailed notices and expenses associated with the claims procedure; and no obligation to pay

18 any other settlement administration costs, except that Abercrombie will be responsible for paying

19 for the published notice of the Settlement Notice as specified in XVII.C.2.

20

5. Nothing herein shall be deemed to require Abercrombie to separate or

21 segregate its assets into a restricted settlement fund. The Settlement Fund Account will constitute

22 a restricted settlement fund, and it will be created, managed and disbursed by the Claims

23 Administrator under the supervision of Lead Counsel and the EEOC. Other than paying funds

24 from the Settlement Fund to the Settlement Fund Account, Abercrombie will have no

25 responsibilities or liabilities with respect to the Settlement Fund Account, its administration, or

26 distributions therefrom.

27

28

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1

B. Distribution of Settlement Fund.

2

1. Class Representatives and EEOC Charging Parties.

3

Each Class Representative and each Charging Party shall receive a liquidated amount as

4 set forth in Exhibit C. This liquidated amount will compensate the Class Representatives or

5 Charging Party for the (a) full settlement of all their claims against Abercrombie; (b) payment in

6 recognition of risks related to being Class Representative or Charging Party; and (c) payment in

7 consideration for the time and effort expended in the Consolidated Litigation or EEOC

8 proceedings. Payment of these sums shall be made by the Claims Administrator no later than

9 seven (7) days after the receipt of the funds described in Section XVII.A.4.d.

10

2. Settlement Class.

11

The remainder of the Settlement Fund Account will be distributed to eligible members of

12 the Settlement Class who do not opt out based on a formula set out in the allocation plan as set

13 forth in Section L. The distribution of the Settlement Fund Account according to the allocation

14 plan will be undertaken by the Claims Administrator. Except as set forth in Section

15 XVII.C.2.below, the fees, costs and expenses of the Claims Administrator shall be paid from the

16 Settlement Fund Account, including the interest on the Settlement Fund Account. All payments

17 to the Claims Administrator shall be approved by Lead Counsel and the EEOC.

18

C. Notice.

19

1. Mailed Notice.

20

Within twenty (20) days following the Preliminary Approval Date, Abercrombie shall

21 provide the Claims Administrator with a computer disk containing the full names, social security

22 numbers, last known addresses and phone numbers, start dates, and, as applicable, end dates of

23 employment with Abercrombie for all in-store hourly and manager employees employed by

24 Abercrombie at any time from February 24, 1999 through the Preliminary Approval Date who are

25 potential Settlement Class members. Within twenty (20) days following the Preliminary

26 Approval Date, Lead Counsel shall provide the Claims Administrator with a computer readable

27 list of all known potential Settlement Class members and their mailing addresses. Prior to the

28 mailing of the Notices, the Claims Administrator will combine these lists of potential Settlement

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1 Class members received from Abercrombie and Lead Counsel and update any new address

2 information for potential class members as may be available through the National Change of

3 Address system. The Claims Administrator shall determine through a computer database search

4 the most recent address that may be obtained for each person on the combined list of potential

5 Settlement Class members. Within sixty (60) days of the Preliminary Approval Date, the Claims

6 Administrator shall mail, via first class postage, Notice of Class Settlement, the Claim Form and

7 the Explanation of Claims Procedure, all in the form approved by the Court in the Preliminary

8 Approval Order, to all known potential Settlement Class members at their last known address and

9 at the most recent address that may have been obtained through the computer database search.

10

2. Published Notice.

11

Abercrombie shall cause to be published the notice of the class settlement in the form

12 approved by the Court in the Preliminary Approval Order, in newspapers and other media set

13 forth in the Preliminary Approval Order. Abercrombie shall pay for the cost of the published

14 notice, not to exceed $600,000.00.

15

D. Objections and Exclusions.

16

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

17

1. Objections.

18

Class members objecting to the terms of the settlement must do so in writing at least forty

19 (40) days prior to the scheduled Fairness Hearing. The written objection must be sent to the

20 Claims Administrator on or before the date specified in the Preliminary Approval Order. The

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

22 Abercrombie and Lead Counsel within two (2) business days following receipt. The Claims

23 Administrator will also file the original objections with the Clerk of the Court no later than five

24 (5) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain

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

26 under this Decree.

27

28

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1

2. Exclusions.

2

Class members may exclude themselves, or opt-out, of the monetary relief provisions of

3 the class settlement. Any request for exclusion must be in the form of a written “Opt-out”

4 statement sent to the Claims Administrator. Information on how to opt-out of the settlement shall

5 be made available by the Claims Administrator. A person wishing to opt-out must sign a

6 statement which includes the following language:

7

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

monetary settlement and that I will receive no money from the

8

settlement fund created under the Consent Decree entered into by

Abercrombie. I understand that if I am excluded from the class

9

monetary settlement, I may bring a separate legal action seeking

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

10

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

procedure in this case. I also understand that I may not seek

11

exclusion from the class for injunctive relief and that I am bound by

the injunctive provisions of the Consent Decree entered into by

12

Abercrombie.

13

A class member submitting an Opt-out statement shall sign and date the statement and

14 deliver it to the Claims Administrator at least forty (40) days prior to the scheduled Fairness

15 Hearing, as specified in the Preliminary Approval Order.

16

The Claims Administrator shall date stamp the original of any Opt-out statement and serve

17 copies on both Abercrombie and Lead Counsel within two (2) business days of receipt of such

18 statement. The Claims Administrator will also file the original Opt-out statements with the Clerk

19 of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims

20 Administrator shall retain copies of all Opt-out statements until such time as it has completed its

21 duties and responsibilities under this Decree.

22

3. Rescission of Class Member Opt -Outs

23

The parties recognize that some class members who initially submit Opt-out forms

24 seeking exclusion may, upon further reflection, wish to withdraw or rescind such Opt-out

25 statements. The parties agree that class members shall be permitted to withdraw or rescind their

26 Opt-out statements by submitting a “Rescission of Opt-out” statement to the Claims

27 Administrator. The Rescission of Opt-out statement shall include the following language:

28

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1

I previously submitted an Opt-out statement seeking exclusion from

the class monetary settlement. I have reconsidered and wish to

2

withdraw my Opt-out statement. I understand that by rescinding

my Opt-out I may be eligible to receive an award from the claims

3

settlement fund and may not bring a separate legal action against

Abercrombie seeking damages.

4

5

A class member submitting such a rescission statement shall sign and date the statement

6 and cause it to be delivered to the Claims Administrator no later than the deadline for claims

7 filing period specified in the Preliminary Approval Order.

8

The Claims Administrator shall stamp the date received on the original of any Rescission

9 of Opt-out statement and serve copies to counsel for Abercrombie and Lead Counsel no later than

10 (2) days after receipt thereof and shall file the date-stamped originals with the Clerk of the Court

11 no later than five (5) business days prior to the date of the Fairness Hearing. The Claims

12 Administrator shall retain copies of all Rescissions of Opt-Out statements until such time as the

13 Claims Administrator is relieved of its duties and responsibilities under this Decree.

14

4. Opt-Out Credits.

15

In the event any Settlement Class member elects to opt-out in the time and manner set

16 forth in Section XVII.D.2, and does not rescind it, Abercrombie shall be entitled to a credit for

17 each such opt-out. The credit amount will be 125% of the average settlement award of all class

18 members eligible to participate in the monetary settlement fund as determined by the Allocation

19 Plan, Section XVII.L. The aggregate credit for each opt-out shall be calculated and deducted

20 from the Settlement Fund prior to the wire transfer of funds set forth in Section XVII.A.4.e.

21

5. Defendant’s Rescission of Agreement.

22

If the number of individuals who opt out of the Settlement Class in the manner provided

23 in this Decree exceeds one percent (1 %) of the number of the class members who submit

24 completed claim forms, then Abercrombie, at its sole option, shall have the right to void this

25 settlement on the tenth (10th) day after the Court requires individuals to return opt out notices. If

26 Abercrombie exercises this option, all of Abercrombie’s obligations under the Consent Decree

27 shall cease to be of any force and effect, and the Consent Decree and any orders entered in

28 connection therewith shall be vacated, rescinded, canceled, and annulled, and the parties shall

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 58 of 73

1 return to the status quo in the Consolidated Litigation as if the parties had not entered into the

2 Consent Decree. In addition, in such event, the Consent Decree and all negotiations, court orders

3 and proceedings relating thereto shall be without prejudice to the rights of any and all parties

4 hereto, and evidence relating to the Consent Decree and all negotiations shall not be admissible or

5 discoverable in the Consolidated Litigation or otherwise.

6

E. Claims Administration.

7

The Claims Administrator shall (1) prepare and mail settlement notices and claim forms to

8 class members; (2) establish and operate a website designed to provide information to and

9 communication with class members; (3) receive and evaluate claims eligibility; (4) seek

10 additional information from claimants, when appropriate; (5) receive and file opt-out statements

11 and objections; (6) respond to questions from potential class members; (7) implement the

12 allocatio n plan; and (8) maintain a toll- free number for communicating with class members; and

13 (9) any other duties necessary to carry out its responsibilities set forth in this Decree.

14

The Claims Administrator shall make claim forms available to potential class members

15 who submit oral, e- mail, or written requests for claim forms. The Claims Administrator shall

16 mail the requested claim form via first class postage within two (2) business days after receiving a

17 request. If Abercrombie, or its counsel, receives requests for claim forms or for information

18 regarding the class settlement, it shall refer such requestors to the toll- free number established by

19 the Claims Administrator for the purpose of administering this settlement. The requestors shall

20 be informed that any requests for claim forms or information should be directed to the Claims

21 Administrator. The Claims Administrator shall retain copies of all written requests for claim

22 forms and all records of oral or e- mail requests for claim forms until such time as it has

23 completed its duties and responsibilities under this Decree.

24

F. Submission of Claim Forms.

25

Class members who seek recovery of monetary compensation must complete a claim form

26 and cause it to be filed with the Claims Administrator by the claim filing deadline set forth in the

27 Preliminary Approval Order. The claim form must be postmarked on or before such date in order

28 to be considered timely. All claim forms must be signed under penalty of perjury to be

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 59 of 73

1 considered. Failure to file a timely claim form, for any reason whatsoever, shall bar the potential

2 class member from having his or her claim considered and from receiving monetary

3 compensation from the Settlement Fund Account. Class members who file a claim form must

4 notify the Claims Administrator of any change of address. A failure to notify the Claims

5 Administrator of a change of address may result in the forfeiture of a monetary award. The

6 Claims Administrator shall be available through the toll- free line and via e- mail through the

7 Claims Website to respond to requests from class members for assistance in completing and filing

8 claim forms. Lead Counsel shall also be available to consult with and provide assistance to

9 potential class members who request assistance in completing their claim forms.

10

G. Deceased Claimants.

11

Claims may be filed by deceased claimants through representatives of their estate if

12 appropriate documentation is provided. Any claims paid to a deceased claimant shall be made

13 payable to the estate of the deceased claimant.

14

H. Determining Eligibility.

15

The Claims Administrator shall make the determination as to whether a claim form is

16 complete. If it is not complete, the Claims Administrator shall request additional information

17 from the claimant, if it appears that such additional informa tion would complete the Claim Form.

18 Such requests for information shall be in writing and shall specify the information necessary to

19 complete the claim form. The requests for information will be sent via first class mail and inform

20 the claimant that a response must be returned no later than thirty (30) days from the date the

21 request for information was mailed. The claimant must provide the requested information, signed

22 under penalty of perjury, to the Claims Administrator by mail with a postmark no later than thirty

23 (30) days from the date of the mailed request for information. Such additional information shall

24 be considered part of the original claim form and will relate back to the original filing date. The

25 failure of a claimant to timely respond to the request for information may result in the denial of

26 the claim.

27

28

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 60 of 73

1

I. Late-Filed Claims.

2

For claims received after the filing deadline, the Claims Administrator shall notify late-

3 filing claimants that their claims are untimely and that they are not eligible for any monetary

4 award. The Claims Administrator shall also inform late- filing claimants that they may seek a

5 review of the determination that they filed untimely by requesting the Claims Administrator to

6 reconsider its determination. The Claims Administrator may reverse its determination that a

7 claim was not timely filed only if the claimant proves that the claim form was filed on or before

8 the filing deadline and that the untimeliness determination is erroneous.

9

J. Appeals of Claims Eligibility.

10

Within ninety (90) days of the close of the claims filing period, all ineligible claimants

11 shall receive written notice of their ineligibility for monetary relief. Any claimants wishing to

12 seek review of their ineligibility determinations must do so by returning a written request for

13 review to the Claims Administrator by mail with a postmark no later than twenty-one (21) days

14 from the date of the notice of claim ineligibility. Failure to file a timely request for review shall

15 bar a claimant from challenging a determination of ineligibility.

16

The Claims Administrator shall resolve the requests for review based on the written

17 requests for review and any other documentation or written information submitted by the

18 claimant, or deemed necessary by the Claims Administrator. The Claims Administrator may seek

19 further written information from the claimant as to the basis of their request and may consider the

20 written arguments of Lead Counsel or Abercrombie.

21

The Claims Administrator shall attempt to expeditiously resolve any requests for review

22 within sixty (60) days after the filing of the request for review. The Claims Administrator’s

23 decisions shall be communicated to the claimant in writing and shall be binding and non-

24 appealable.

25

K. Claimant Information Provided by Abercrombie.

26

The parties understand and agree that Abercrombie may possess information that may

27 assist in the determination of eligibility of potential class members for monetary compensation.

28 Abercrombie shall reasonably cooperate in providing such information which Lead Counsel, the

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 61 of 73

1 EEOC or the Claims Administrator deems reasonably necessary to assist in determining the

2 eligibility of any class member for monetary relief. Abercrombie shall attempt to provide such

3 information within fourteen (14) days of any written requests for the information.

4

L. Allocation Plan.

5

Other than the Class Representatives whose monetary awards are separately determined,

6 the disbursement of the Settlement Fund Account to eligible class members shall follow the

7 allocation plan described in this section.

8

Each class member who seeks to receive an award must fill out the claim form and supply

9 information related to his or her claim. On the basis of a review of the information supplied, the

10 Claims Administrator shall allocate a certain number of points based upon specific factors related

11 to the claims. The specific factors include length of service with Abercrombie; discrimination

12 claims based on race, national origin or gender in promotion, assignment, hire or termination; any

13 personal injury, such as emotional distress, suffered as a result of the discrimination; and any time

14 or effort devoted to the litigation. The Claims Administrator shall total the points applicable to all

15 eligible claimants, determine each eligible claimant’s proportionate share of the total points, and

16 allocate each eligible claimant’s proportionate share of the Settlement Fund Account.

17

For example, if the amount available for distribution from the Settlement Fund Account to

18 eligible class members is $1,000,000.00, and the Claims Administrator has awarded 10,000 points

19 to eligible class members and if an eligible class member were awarded 10 points, then that class

20 member would receive an award of $1,000.00 since each point would be worth $100.00

21 ($1,000,000.00 ÷ 10,000).

22

M. Distribution of the Monetary Awards.

23

As soon as practicable after making the calculations required by the allocation plan set

24 forth in Section XVII.L, the Claims Administrator shall distribute the monetary awards to eligible

25 class members via first class mail. The Claims Administrator shall only issue the checks in the

26 name of the eligible class members unless Section XVII.G. is applicable. Included with the check

27 due to the eligible claimant will be a statement showing the gross amount of the payment and an

28 itemized statement of all deductions made. Flat rate deductions from gross amounts that are

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 62 of 73

1 determined to be wage payments will be made for federal and state income taxes, the employee’s

2 share of social security and medicare tax, and any local income or payroll tax that applies. The

3 Claims Administrator will inform Abercrombie of the employer’s share of all taxes or

4 contributions (i.e., matching social security and medicare tax) required to be paid by Abercrombie

5 and Abercrombie shall timely remit all such payments to the Claims Administrator for payment to

6 appropriate taxing authorities.

7

Any amounts designated as interest shall not be subject to withholding and shall be

8 reported, if required, to the IRS on Form 1099-INT. The amounts paid for emotiona l distress

9 shall not be subject to withholding and shall be reported to the IRS on Form 1099-MISC.

10

The Claims Administrator will be responsible for preparing and filing all appropriate tax

11 filings and reports (except for any unemployment compensation taxes that may be due, which will

12 be the sole responsibility of Abercrombie to calculate and pay), including, but not limited to, W-2

13 and 1099 forms for all eligible claimants and Class Representatives for their payments from the

14 Settlement Fund, as well as any required for the Settlement Fund. The Claims Administrator will

15 also be responsible for reporting and remitting to the appropriate taxing authorities the employer’s

16 share of taxes or contributions required to be paid by Abercrombie in a timely manner after

17 receipt of the amount due for those payments from Abercrombie.

18

N. Allocation of Monetary Awards.

19

The monetary awards shall be allocated 15% to lost wages and 85% to compensatory

20 damages.

21

O. Cy Pres Fund.

22

It is the intention of the parties to completely distribute the funds in the Settlement Fund

23 Account. In the event that checks are returned and the Settlement Fund is not completely

24 distributed for any reason, the remaining sum shall become part of a cy pres fund to be distributed

25 to a non-profit organization or organizations designated by Lead Counsel that assist Minorities or

26 women to obtain equal employment opportunity .

27

28

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 63 of 73

1

P. Report from Claims Administrator.

2

Within thirty (30) days of the distribution of the monies from the Settlement Fund, the

3 Claims Administrator shall furnish an accounting of all distributions from the Settlement Fund to

4 the Court with copies to Lead Counsel, the EEOC and Abercrombie.

5 XVIII. ATTORNEYS’ FEES, COSTS AND EXPENSES

6

A. Basis for Award of Fees, Costs and Expenses.

7

1. The parties have agreed that it is appropriate as part of the settlement

8 underlying this Consent Decree for Abercrombie to pay to Class Counsel, on behalf of the Class

9 Representatives and the Settlement Class, reasonable attorneys’ fees, litigation expenses, and

10 costs in this case.

11

2. The Company has agreed to pay Class Counsel an award of reasonable

12 attorneys’ fees, litigation expenses, and costs in the amount of $7,250,000.00 for work performed

13 and costs and expenses incurred through and including the Approval Date. Included in this

14 amount is approximately $540,000.00 for litigation costs and expenses incurred by Class Counsel.

15 This amount fully satisfies any arguable obligation the Company may have to pay attorneys’ fees,

16 litigation expenses, and costs for and on behalf of the Plaintiffs, Class Representatives and the

17 Settlement Class for any and all work performed and costs and expenses incurred through and

18 including the Approval Date.

19

3. The Company also has agreed to pay Class Counsel an amount of

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

21 Class Counsel after the Approval Date pursuant to this Decree. The Company agrees that Class

22 Counsel shall be paid such attorneys’ fees, expenses and costs in the amount of $600,000.00 for

23 work performed and costs and expenses incurred after the Approval Date relating to defense of

24 the Decree, monitoring, administration and implementation, including, without limitation,

25 evaluating possible compliance with this Decree, including the retention of experts to assist in

26 such evaluation, and defense of the Decree. Except as provided in Section X.B.9 for appeals of

27 decisions of the Special Master, this amount satisfies any arguable obligation the Company may

28 have to pay attorneys’ fees, expenses and costs to Class Counsel for any and all work performed

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 64 of 73

1 and costs and expenses incurred after the Approval Date of the Decree for the monitoring,

2 administration, implementation and defense of the Decree.

3

4. Nothing herein shall be interpreted to preclude Abercrombie from seeking

4 attorneys’ fees, expenses and costs incurred in litigating enforcement matters according to Title

5 VII law applicable to a prevailing defendant under Section X.B.9. for appeals of decisions of the

6 Special Master.

7

B. Payment of Award.

8

1. Within fourteen (14) days following the Approval Date, Abercrombie shall

9 pay to Lieff, Cabraser, Heimann & Bernstein, LLP one half (½) of the $7,250,000.00 or

10 $3,625,000.00, for litigation-related attorneys’ fees, expenses and costs as set forth in Section

11 XVIII.A.2. Abercrombie shall pay Lieff, Cabraser, Heimann & Bernstein, LLP the remaining

12 amount within fourteen (14) days following the Final Approval Date. Lieff, Cabraser, Heimann

13 & Bernstein, LLP shall have sole responsibility to distribute attorneys’ fees, expenses and costs to

14 other Class Counsel, and if Abercrombie makes such payments to Lieff, Cabraser, Heimann &

15 Bernstein, LLP, no Class Counsel may assert any claim for such payments from Abercrombie. In

16 the event that Final Approval of the Decree is not attained, Lieff, Cabraser, Heimann & Bernstein,

17 LLP shall return to Abercrombie the initial payment of $3,625,000.00 within fifteen (15) days

18 after the non-approval of the Decree becomes final.

19

2. The attorneys’ fees, expenses and costs awarded and agreed to be paid by

20 the Company pursuant to Section XVIII.A.3. shall be paid to Lieff, Cabraser, Heimann &

21 Bernstein, LLP according to the following schedule:

22

Date

Amount

23

Thirty (30) days after the Approval Date

$150,000

24

March 15, 2006

$125,000

25

March 15, 2007

$100,000

26

March 15, 2008

$100,000

27

March 15, 2009

$ 75,000

28

March 15, 2010

$ 50,000

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 65 of 73

1 If the Decree is terminated prior to March 15, 2011 pursuant to Section VI.B., Abercrombie shall

2 pay to Lieff, Cabraser, Heimann & Bernstein, LLP all attorneys’ fees listed above that are unpaid

3 as of the date of the Decree is terminated. Such payment shall be made no later than fourteen

4 (14) days after the date the Decree is terminated.

5

IT IS SO ORDERED, ADJUDGED AND DECREED this _1_4_t_h_ day of

6 _A_p_r_il________________, 2005.

7

s/Susan Illston

8 SUSAN ILLSTON

9

United States District Judge

Northern District of California

10

11 Respectfully submitted,
12

13 Thomas A. Saenz Shaheena Ahmad Simons

Bill Lann Lee Kelly M. Dermody

14 MEXICAN AMERICAN LEGAL DEFENSE Eve H. Cervantez

AND EDUCATIONAL FUND

Elizabeth A. Alexander (pro hac vice)

15 634 South Spring Street, 11th Floor Los Angeles, CA 90014

Jahan C. Sagafi Nirej S. Sekhon

16

LIEFF, CABRASER, HEIMANN

& BERNSTEIN, LLP

17

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

18 Julie Su

19 Minah Park ASIAN PACIFIC AMERICAN LEGAL

20

CENTER

1145 Wilshire Blvd., 2nd Floor

21 Los Angeles, CA 90017

Joseph C. Kohn Martin J. D’Urso Hilary Cohen KOHN, SWIFT & GRAF, P.C. One South Broad Street Philadelphia, PA 19107

22 Kimberly West-Faulcon NAACP LEGAL DEFENSE AND

23

EDUCATIONAL FUND, INC.

1055 Wilshire Blvd., Suite 1480

24 Los Angeles, CA 90017

25 Sidney L. Gold
26 Traci M. Greenberg SIDNEY L. GOLD & ASSOCIATES, P.C.
27 1835 Market Street Philadelphia, PA 19103
28

Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MILLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103
Cleo Fields THE FIELDS LAW FIRM, L.L.C. 2147 Government Street Baton Rouge, LA

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 66 of 73

1 James F. Keller Zachary Gottesman
2 GOTTESMAN & ASSOCIATES 2121 URS Center
3 36 East 7th Street Cincinnati, OH 45202
4 5 6 7 April 11, 2005 8 9 April 11, 2005 10 11 12 13 14 April 11, 2005 15 16 17 18 19 20 21 22 23 24 April 11, 2005 25 26 27 28
426266.1

Barry L. Goldstein GOLDSTEIN, DEMCHAK, BALLER,
BORGEN & DARDARIAN 300 Lakeside Avenue Oakland, CA 94612

/s/ Bill Lann Lee Bill Lann Lee
/s/ Thomas A. Saenz Thomas A. Saenz MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 South Spring Street Los Angeles, CA 90014
/s/ Martin J. D’Urso Martin J. D’Urso KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107
Attorneys for Plaintiff Gonzalez, et al.
Jack W. Lee, Esq. (SBN 071626) Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532) MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108
/s/ Jack W. Lee Jack W. Lee
Attorneys for Plaintiff West, et al.

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Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 67 of 73

1 2 3 4 5 6 7 8 April 11, 2005 9 10 11 12
April 11, 2005 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
426266.1

ERIC S. DREIBAND General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507
By: /s/ Anna Y. Park ANNA Y. PARK Regional Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Te mple Street, 4th Floor Los Angeles, CA 90012
By: /s/ Gregory M. Gochanour
JOHN C. HENDRICKSON Regional Attorney GREGORY M.GOCHANOUR Supervisory Trial Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

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Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 68 of 73

1 2 3 4 5 6 7 8 9
April 11, 2005 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
426266.1

Douglas R. Young Sandra A. Kearney FARELLA BRAUN & MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knue ve VORYS, SATER, SEYMOUR & PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008
/s/ Thomas Brennan Ridgley Thomas Brennan Ridgley
Attorneys for Defendants

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 69 of 73
EXHIBIT A
FULL AND FINAL GENERAL RELEASE OF CLAIMS
The undersigned _______________ agrees to this Full and Final General Release of Claims (“Release”) as follows:
Section 1. Benefits
In consideration of and exchange for this Release, I will receive a payment in a liquidated amount approved by the Court pursuant to the Consent Decree in Gonzalez, et al. v. Abercrombie & Fitch Stores, Inc., et al. ; EEOC v. Abercrombie & Fitch Stores, Inc., et al. and West, et al. v. Abercrombie & Fitch Stores, Inc., et al. (the “Consolidated Litigation”), less applicable withholdings and deductions, in settlement of my claims, and I will receive no other consideration, whether monetary or otherwise. I acknowledge that I will receive no cash payment unless and until I sign this Release.
Section 2. Complete Release
(a) Claims Released: I hereby fully, finally, irrevocably and unconditionally release and discharge Abercrombie & Fitch Stores, Inc., A&F California, LLC, A&F Ohio, Inc. and Abercrombie & Fitch Management Co. (collectively, “the Company”), its officers, directors, agents, employees, managers, insurers, attorneys, successors and assigns (the “Released Parties”) from any and all past and/or present claims, charges, demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs, losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not known, that I have had, now have, or may have from the beginning of time to [the preliminary approval date], including without limitation those arising in any way out of the alleged facts, circumstances and occurrences underlying those allegations of violations of Title VII, Section 1981 and the California FEHA that were asserted or might have been asserted by me or on my behalf in the Consolidated Litigation, or in any and all charges of discrimination filed against the Company and/or the Released Parties by me with the EEOC and/or DFEH. This Release does not include any workers’ compensation claims I may have. This Release is final and shall survive the expiration of the term of the Consent Decree in the Consolidated Litigation.
(b) Unknown Claims: I acknowledge that I may not now know fully the number or magnitude of the claims I may have, and that I may suffer some further loss or damage in some way connected with the subject matter of the Consolidated Litigation, but which is unknown or unanticipated at this time. I have taken these risks and possibilities into account and accept that, nevertheless, this Release covers all claims arising out of or related to the subject matter of the Consolidated Litigation, which, although unknown at the time of the execution of this Consent Decree, may be discovered later. I understand and assume these risks and expressly waive the provisions of California Civil Code § 1542, or any comparable federal or other state statute, which states:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

I expressly waive any right to assert hereafter that any claim was excluded from this Release through ignorance, oversight, or error. It is expressly understood and agreed that this waiver of Civil Code § 1542 and the release and waiver set forth in this Consent Decree are material terms of the agreement and were separately negotiated between the parties.

Section 3. Promises.

(a) Pursuit of Released Claims: Except for the Gonzalez or West Class Action, and any administrative charges filed with respect to the claims asserted therein, I represent and warrant that I have not filed or caused to be filed any lawsuit, complaint, or charge with respect to any Claim that I am releasing herein, and I promise never to file or prosecute a lawsuit, complaint, or charged based on such Claims. I promise never to seek any damages, remedies, or other relief for myself personally (any right to which I hereby waive) by filing or prosecuting a charge with any administrative agency with respect to any such Claim. I promise to request any administrative agency or other body that assumes jurisdiction of any such lawsuit, complaint, or charge to withdraw from the matter or dismiss the matter with prejudice.

(b) Taxes: I acknowledge I am solely responsible for paying any federal, state or local income taxes on amounts I receive because I signed this Release, as well as the employee’s share of F.I.C.A., and will hold the Company harmless with respect to any claims related to the aforementioned tax treatment of the amount paid to me.

(c) Ownership of Claims: I represent and warrant that I have not assigned or transferred any Claim I am purporting to release, nor have I attempted to do so.

(d) Nonadmission of Liability: I agree that neither this Release nor the payment of money to me or to the Class pursuant to the Decree is an admission of guilty or wrongdoing by any of the Released Parties. I acknowledge that the Released Parties do not believe or admit that any of them has done anything wrong, such being expressly denied by all of them.

Section 4. Consideration of Release

I acknowledge that, before signing this Release, I was given a period of at least twenty-one days in which to consider it. I further acknowledge that: (1) I took advantage of as much of this period to consider this Release as I desired before signing it; (2) I carefully read this Release; (3) I fully understand it; (4) I am entering into it voluntarily; (5) I am receiving valuable consideration in exchange for my execution of this Release that I would not otherwise be entitled to receive; and (6) the Company, in writing, encouraged me to discuss this Release with my attorney (at my own expense) before signing it, and that I did so to the full extent I deemed appropriate. I understand that I have seven days within which to cancel this Release after I have

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Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 71 of 73
executed it and must do so by delivery of an executed written revocation to Mark A. Knueve, Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, Columbus, Ohio 43215, within the seven-day period.
Section 5. Miscellaneous
(a) Entire Agreement: This Release may not be modified in any manner, nor may any provision of it or any legal remedy with respect to it be waived, except by a writing signed by both me and an authorized Company attorney. I acknowledge that the Company has made no representations or promises to me, other than those in or referred to by this Release. If any provision in this Release is found to be unenforceable, all other provisions will remain fully enforceable.
(b) This Release binds my heirs, administrators, representatives, executors, successors, and assigns.
Section 6. Interpretation
This Release shall be construed as a whole according to its fair meaning. Unless the context indicates otherwise, the term “or” shall be deemed to include the term “and” and the singular or plural number shall be deemed to include the other. Except to the extent governed by federal law, this Release shall be governed by the statues and common law of the State of California (excluding any that mandate the use of another jurisdiction’s laws).
Executed at ____________, ____, this _____ day of ___________, 2004.
______________________________________________ [Name Printed]

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EXHIBIT B
NOTICE TO ALL ABERCROMBIE EMPLOYEES AND APPLICANTS RE SETTLEMENT OF DISCRIMINATION LAWSUIT
This Notice is being posted pursuant to a Consent Decree entered by the federal court resolving the consolidated class action litigation brought against Abercrombie & Fitch by private plaintiffs and the U.S. Equal Employment Opportunity Commission (EEOC) Case Nos. 03-2817 SI, 04-4730, and 04-4731 (N.D. CA).
In the lawsuits, the plaintiffs asserted that Abercrombie violated Title VII of the Civil Rights Act of 1964, by discriminating against African Americans, Asian Americans, Latinos, females, and females of each of the foregoing minority groups on the basis of race, color, national origin and/or gender in recruitment, hiring, promotion and terms and conditions of employment.
Abercrombie has voluntarily entered into this Decree because the actions it has agreed to undertake demonstrate its strong commitment to diversity and equal employment opportunity.
Abercrombie believes that it has not engaged in any policy or pattern or practice of unlawful discrimination, and that it has not engaged in any other unlawful conduct as alleged in the consolidated litigation. Abercrombie has agreed to:
1) not discriminate against African Americans, Latinos, Asian Americans, women or women of any of the foregoing minority groups on the basis of race, color, national origin and/or gender in recruitment, hiring, promotion or terms and conditions of employment;
2) not retaliate against any person because she or he opposed discrimination on the basis of race, color, national origin, or gender, filed a charge of discrimination on the basis of race, color, national origin, or gender, or asserted any rights under the Consent Decree; and
3) hire a Monitor to ensure Abercrombie's compliance with the terms of the Consent Decree.
A summary and copy of the Consent Decree are available at [domain name].
Abercrombie’s policy and federal law prohibit discrimination in employment on the basis of sex, race, color, religion, national origin, disability, and age. If you believe you have been discriminated against by Abercrombie, you may utilize the Internal Complaint Procedure published in the Associate Handbook by contacting your manager or the Human Resources Department at 614/283-5548. Yo u may also contact the Monitor, [name], at [email address] or by calling _____________ and/or the Equal Employment Opportunity Commission (EEOC) at [email address] or by calling _____________. The EEOC is the federal agency that enforces the federal laws prohibiting discrimination in employment on the basis of sex, race, color, religion, national origin, disability, and age.
This is an Official Notice and must not be defaced or covered. This Notice shall remain posted until __________. If you have any questions about this Notice contact the Monitor or the EEOC at the numbers listed above.
359203.1

Case 3:04-cv-04730-SI Document 16 Filed 04/15/2005 Page 73 of 73

EXHIBIT C LIQUIDATED AMOUNTS FOR CLASS REPRESENTATIVES AND CHARGING PARTIES

Named Plaintiffs
Chu, Austin Culpepper, David Douglass, Patrice Fight, Eric Gómez-Mont., Juancarlos Gonzalez, Eduardo Grubb, Carla Gutierrez, Encarnacion Hawk, Brandy Lu, Jennifer Montoya, Johan Nguyen, Ivy Ocampo, Anthony Sherrod, Robair Steele, Andre West, Elizabeth Wu, Angeline
Charging Parties Bondurant, Lekisha Dixon, Torrey Elmore, Stanley Greer, Timothy Jason, Eric Noel, Jason
Total (23 individuals)

$17,000 $11,000 $12,000 $13,000 $39,000 $13,000 $17,000 $16,000 $18,000 $21,000 $13,000 $19,000 $19,000 $8,000 $24,000 $9,000 $21,000
$10,000 $12,000 $12,000 $16,000 $8,000 $12,000
$360,000

361007.1

 
 1

2

3

4

SfP X (; 2006

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISIOi

11 12 13 14 15 16 17 18 19
20 21
22
23 24 25
26
27 28
F3IeUa Brawl & M3It cl LLP Ruu Bui lding
235 MOlllgoml.T. Y Sired San Francisco. CA 94104
(41 5) 954...4400

EDUARDO GONZALEZ, ANTHONY OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GOMEZ-MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT, CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS and ROBAIR SHERROD on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC and A&F OHIO, INC.,
Defendants.
ELIZABETH WEST and JENNIFER LU,
Plaintiffs,
vs .
ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT CO.,
Defendants.
[PROPOS ED] ORDER Case No . C03-28 17 SI

Case No . C03-2817 SI, 04-4730 and 04-4731 [PROPOSED] ORDER DIRECTING THE PARTIES TO FILE UNDER SEAL THE COURT-APPOINTED MONITOR'S REPORT AND EXECUTIVE SUMMARY
18 125\ 1048675 .1

1 EQUAL EMPLOYMENT
2 OPPORTUNITY COMMISSION,

3

Plaintiffs,

4

vs .

5 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F
6 OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT CO.,
7 Defendants.
8

9

The Court having advised the parties of its desire to review the Court-Appointed

10 Monitor's First Annual Compliance Report (" Report") and Executive Summary of Court-

11 Appointed Monitor's First Annual Compliance Report ("Executive Summary") and having

12 determined that they will be reviewed by the Court under seal subject to any party requesting to

13 have the seal lifted, it is hereby ordered that the Report and Executive Summary be filed under 14 seal until further Order of the Court and without prejudice to any party filing a request to have the

15 seal lifted.

16

IT IS SO ORDERED.

17

18 DATED: 19
20
21 22

Hon. Susan Illston United States District Court Judge

23
24
25
26
27
28
FarcU,a Braun & Mmcl LLP Russ Bui lding
135 Montgomery Sl.tctC S;w. Friillcisco. CA 94104
(415) 9"4400

[PROPOSED] ORDER Case No. C03-28 17 Sl

-2 -

18 125\ 1048675. 1

 
 Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 1 of 16

1 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
3 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Thomas A. Saenz (SBN 159430)
8 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
9 AND EDUCATIONAL FUND 634 South Spring Street
10 Los Angeles, CA 90014 Telepho ne: (213) 629-2512
11 Facsimile: (213) 629-0266
12 Joseph C. Kohn Martin J. D’Urso
13 Hilary Cohen KOHN, SWIFT & GRAF, P.C.
14 One South Broad Street, Suite 2100 Philadelphia, PA 19107
15 Telephone: (215) 238-1700 Facsimile: (215) 238-1968
16 Jack W. Lee, Esq. (SBN 071626)
17 Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532)
18 MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor
19 San Francisco, CA 94108 Telephone: (415) 788-9000
20 Facsimile: Fax (415) 398-3887

Douglas R. Young Sandra A. Kearney FARELLA BRAUN + MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4481
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knueve VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 Telephone: 614-464-6400 Facsimile: 614-464-6350
Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012
John C. Hendrickson (IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

21 Attorneys for Plaintiffs and Defendants [Additional counsel listed on signature page]

22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

23

24 EDUARDO GONZALEZ, ANTHONY

25

OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GÓMEZ-

26

MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT,

27

CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS, and ROBAIR

28 SHERROD, BRANDY HAWK and ANDRE

Case Nos. 03-2817 SI, 04-4730 SI and 04-4731 SI
STIPULATION OF PROPOSED SETTLEMENT AND [PROPOSED] ORDER OF PRELIMINARY APPROVAL OF PROPOSED CONSENT DECREE

360368.2

STIPULATION OF PROPOSED SETTLEMENT AND [PROPOSED] ORDER
CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 2 of 16

1 STEELE, on behalf of themselves and all others similarly situated,
2 Plaintiffs,
3 v.
4 ABERCROMBIE & FITCH STORES, INC., A&F
5 CALIFORNIA, LLC, A&F OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT
6 CO.,

7

Defendants.

8
ELIZABETH WEST and JENNIFER LU, 9
Plaintiffs, 10
v. 11
ABERCROMBIE & FITCH STORES, INC., A&F 12 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 13 CO.,

14

Defendants.

15 EQUAL EMPLOYMENT OPPORTUNITY
16 COMMISSION,

17

v.

18 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
19 ABERCROMBIE & FITCH MANAGEMENT CO.
20
Defendants. 21

22

23

24

25

26

27

28

360368.2

STIPULATION OF PROPOSED SETTLEMENT AND [PROPOSED] ORDER
CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 3 of 16

1

Plaintiffs in the above-captioned Gonzalez action have alleged that Abercrombie

2 & Fitch Stores, Inc. and related companies (“Abercrombie,” the “Defendant” or the “Company”)

3 utilized and maintained discriminatory employment policies and practices against its African-

4 American, Latino and Asian American (hereafter “Minority”) applicants and employees in

5 violation of Title VII of the Civil Rights Act of 1964, as amended, 74 U.S.C. § 2000 et seq.

6 (“Title VII”), 42 U.S.C. § 1981, and the California Fair Employment and Housing Act, Cal. Gov.

7 Code §§ 12940 et seq. (the “FEHA”). Plaintiffs in the above-captioned West action have alleged

8 that Abercrombie utilized and maintained discriminatory employment policies and practices

9 against its female applicants and employees in violation of Title VII and FEHA. The U. S. Equal

10 Employment Opportunity Commission (“EEOC) alleged in its enforcment action that

11 Abercrombie engaged in discriminatory practices against both Minority and women applicants

12 and employees in violation of Title VII.

13

Abercrombie has completely denied the allegations of Plaintiffs and the EEOC in

14 their complaints.

15

The parties entered into court-ordered mediation for the purpose of attempting to

16 settle the claims asserted. Those negotiations have been successful. Subject to the provisions in

17 this Stipulation, Plaintiffs, the EEOC, and Defendant have agreed to the entry of the proposed

18 Consent Decree submitted concurrently with this Stipulation and Order and attached hereto as

19 Exhibit 1 (hereafter “Consent Decree” or “Decree”), as a full settlement of the actions. By

20 entering into this Stipulation, Abercrombie continues to deny all allegations of unlawful race,

21 ethnicity and gender discrimination contained in the Complaints of EEOC and the Plaintiffs. Nor

22 does Abercrombie admit or concede that it has, in any manner, violated Title VII, § 1981, the

23 FEHA or any other fair employment law prohibiting race, ethnicity and/or gender discrimination.

24

Plaintiffs and Abercrombie have further agreed that the settlement of this case

25 should proceed as a class action under Rule 23 of the Federal Rules of Civil Procedure as

26 described below, in order that this settlement will constitute a final and complete adjudication of

27 the parties’ and class members’ rights, liabilities and obligations as set forth in the Consent

28 Decree.
360368.2

STIPULATION OF PROPOSED SETTLEMENT

1

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 4 of 16

1

Plaintiffs assert they have presented evidence that the class certification

2 requirements of Rule 23(a) and Rule 23(b)(2) and (b)(3) have been met. For purposes of

3 settlement only, Defendant acknowledges that the evidence presented by Plaintiffs provides an

4 arguable basis for finding those requirements have been met, and, for settlement purposes only,

5 consents to the class certification sought in this Stipulation.

6

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, Plaintiffs and

7 Defendant, through their respective counsel, jointly stipulate that the Court enter an Order as

8 follows:

9

1. For purposes of settlement only, this case shall proceed as a class action

10 pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure for equitable relief and

11 pursuant to Rule 23(b)(3) for purposes of monetary relief. The class represented by Plaintiffs (the

12 “Settlement Class”) shall be as follows:

13

a. For purposes of the monetary relief provided in the proposed

14 Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P. 23(b)(3) and

15 consists of:

16

(i) All Minority and/or female applicants who applied for

17

employment as in-store hourly or managerial employees (hereafter

18

“Associates”) in Abercrombie stores, or attempted to apply and

19

were discouraged from applying for employment, between

20

February 24, 1999 and the Preliminary Approval Date and who

21

were not hired, except those who file a timely request to opt out of

22

the monetary relief provisions.

23

(ii) All Minority and/or female Associates of Abercrombie who

24

are or were employed in an Abercrombie store, for any length of

25

time, between February 24, 1999, and the Preliminary Approval

26

Date, except those who file a timely request to opt out of the

27

monetary relief provisions.

28
360368.2

STIPULATION OF PROPOSED SETTLEMENT

2

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 5 of 16

1

b. For purposes of the equitable and declaratory relief provided in the

2 proposed Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P.

3 23(b)(2) and consists of:

4

(i) All Minority and/or female applicants who applied for

5

employment as Associates in Abercrombie stores, or attempted to

6

apply and were discouraged from applying for employment,

7

between February 24, 1999 and the Preliminary Approval Date and

8

who were not hired.

9

(ii) All Minority and/or female Associates of Abercrombie who

10

are or were employed in an Abercrombie store, for any length of

11

time, between February 24, 1999, and the Preliminary Approval

12

Date.

13

2. Should this Court or any reviewing court on direct appeal and/or on writ of

14 certiorari to the Supreme Court of the United States from a direct appeal to the U.S. Court of

15 Appeals for the Ninth Circuit refuse to approve this Consent Decree or require modification to

16 this Decree, the Decree, including any stipulated class certification orders, shall be null and void,

17 inadmissible and unusable in any court or proceeding regarding any issues whatsoever and shall

18 not be considered a binding settlement agreement, unless Plaintiffs and Abercrombie each

19 expressly and voluntarily approve in writing any such required modification by this Court or by

20 the reviewing court.

21 BASED ON THE ABOVE STIPULATIONS, STATEMENTS OF COUNSEL FOR THE

22 PARTIES AND THE ENTIRE RECORD BEFORE THE COURT, THE COURT FINDS AS

23 FOLLOWS:

24

The parties have conditionally agreed to a proposed settlement. It appears to the

25 Court that the proposed settlement and Consent Decree are the result of extensive, arms- length

26 negotiations between the parties after extensive litigation including discovery of company

27 policies, practices, and statistical data; administrative investigation by a federal agency, the Equal

28 Employment Opportunity Commission (hereafter “EEOC”); and other exchanges of information

360368.2

STIPULATION OF PROPOSED SETTLEMENT

3

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 6 of 16

1 and discussions, and the assistance of a mediator. After reviewing the terms of the proposed

2 Consent Decree in the context of the record in this action and the controlling legal authority, the

3 Court finds that the proposed Consent Decree is sufficiently reasonable, adequate, fair and

4 consistent with relevant state and federal law, to warrant notice thereof to members of the

5 Settlement Class and a full hearing thereon.

6 IT IS THEREFORE ORDERED THAT:

7

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

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

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

10 embodied in the Consent Decree.

11

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

12 litigation of the consolidated actions is STAYED.

13

3. For purposes of settlement only as set forth in the Consent Decree, the

14 Court hereby CERTIFIES the Gonzalez v. Abercrombie & Fitch and West v. Abercrombie &

15 Fitch actions as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure

16 for purposes of declaratory and equitable relief, and pursuant to Rule 23(b)(3) for purposes of

17 monetary relief and hereby DESIGNATES a Settlement Class as follows:

18

a. For purposes of the monetary relief provided in the proposed

19 Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P. 23(b)(3) and

20 consists of:

21

(i) All Minority and/or female applicants who applied for

22

employment as Associates in Abercrombie stores, or attempted to

23

apply and were discouraged from applying for employment,

24

between February 24, 1999 and the Preliminary Approval Date and

25

who were not hired, except those who file a timely request to opt

26

out of the monetary relief provisions.

27

(ii) All Minority and/or female Associates of Abercrombie who

28
360368.2

are or were employed in an Abercrombie store, for any length of

STIPULATION OF PROPOSED SETTLEMENT

4

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 7 of 16

1

time, between February 24, 1999, and the Preliminary Approval

2

Date, except those who file a timely request to opt out of the

3

monetary relief provisions.

4

b. For purposes of the equitable and declaratory relief provided in the

5 proposed Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P.

6 23(b)(2) and consists of:

7

(i) All Minority and/or female applicants who applied for

8

employment as Associates in Abercrombie stores, or attempted to

9

apply and were discouraged from applying for employment,

10

between February 24, 1999 and the Preliminary Approval Date and

11

who were not hired.

12

(ii) All Minority and/or female Associates of Abercrombie who

13

are or were employed in an Abercrombie store, for any length of

14

time, between February 24, 1999, and the Preliminary Approval

15

Date.

16

4. Should this Court or any reviewing court on direct appeal and/or on writ of

17 certiorari to the Supreme Court of the United States from a direct appeal to the U.S. Court of

18 Appeals for the Ninth Circuit refuse to approve this Consent Decree or require modification to

19 this Decree, the Decree (and any stipulated class certification orders) shall be null and void,

20 inadmissible and unusable in any court or proceeding regarding any issue whatsoever, and the

21 Decree shall not be considered a binding settlement agreement, unless Plaintiffs, EEOC and

22 Abercrombie each expressly and voluntarily approve in writing any such required modification

23 by this Court or by the reviewing court.

24

5. Notice of Procedures

25

a. Publication Notice

26

Within sixty (60) days of the entry of this Order, the Company shall begin

27 publication of the Notice set forth as Exhibit 2 hereto in the publications and internet media

28 identified in Exhibit 3 hereto.

360368.2

5

STIPULATION OF PROPOSED SETTLEMENT AND [PROPOSED] ORDER
CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 8 of 16

1

b. Claims Adminstrator

2

The Claims Adminstrator shall be Gonzalez v. Abercrombie Claims Administrator,

3 P.O. Box 10564, Tallahassee, FL 32302-2564, telephone: (866) 854-4175.

4

c. Mailed Notice

5

Within twenty (20) days of entry of this Order, Abercromb ie shall provide the

6 Claims Administrator with a computer disk containing the full names, social security numbers,

7 last known addresses and phone numbers, start dates, and, as applicable, end dates of employment

8 with Abercrombie for all Associates employed by Abercrombie at any time from February 24,

9 1999 through the Preliminary Approval Date who are potential Settlement Class members. It is

10 understood, and acceptable, that Abercrombie only has such data available for Associates who

11 were employed on January 1, 2000 and thereafter, which necessarily will include some, but not

12 all, Associates employed between February 24 and December 31, 1999. Within twenty (20) days

13 of entry of this Order, Plaintiffs’ Lead Counsel shall provide the Claims Administrator with a

14 computer readable list of all known potential Settlement Class members and their mailing

15 addresses. Prior to the mailing of the Notices, the Claims Administrator will combine these lists

16 of potential Settlement Class members received from Abercrombie and Lead Counsel and update

17 any new address information for potential class members as may be available through the

18 National Change of Address system. The Claims Administrator shall determine through a

19 computer database search the most recent address that may be obtained for each person on the

20 combined list of potential Settlement Class members. Within sixty (60) days of the entry of this

21 Order, the Claims Administrator shall mail, via first class postage, Notice of Class Settlement (as

22 set forth in Exhibit 4 hereto), the Claim Form (as set forth as exhibit 5 hereto), and the

23 Explanation of Claims Procedure (as set forth in Exhibit 6 hereto) to all known potential

24 Settlement Class members at their last known address and at the most recent address that may

25 have been obtained through the computer database search.

26

6. The manner and forms of Notices and the Claim Forms and Instructions

27 attached to this Stipulation and Order as Exhibits 2, 3, 4, 5, and 6 are hereby found, under the

28 circumstances, to constitute the most effective and practicable notice of the pendency of the class

360368.2

STIPULATION OF PROPOSED SETTLEMENT

6

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 9 of 16

1 action, proposed settlement and fairness hearing to all class members who can be identified

2 through reasonable effort and constitute due and sufficient notice for all other purposes to all

3 persons entitled to receive notice required by due process and Rule 23 of the Federal Rules of

4 Procedure. Pursuant to the parties’ agreement, Abercrombie shall pay all costs of the publication

5 Notice process, which will not exceed $600,000.00, and will advance the costs of preparing,

6 distributing and/or mailing the mailed Notices as provided in Section XVII.A.4.a. of the Decree.

7

7. Eligible members of the Settlement Class shall have until _________ __,

8 2005 (the “Claim Filing Deadline”), within which to complete and file their Claim Forms. Such

9 Claim Forms shall be filed with the Claims Administrator at Gonzalez v. Abercrombie Claims

10 Administrator, P.O. Box 10564, Tallahassee, FL 32302-2564. Claim Forms will be deemed filed

11 on the postmark date shown on the envelope in which the completed Claim Form is mailed to the

12 Claims Administrator. Failure to postmark a completed Claim Form by the Claim Filing

13 Deadline shall bar the settlement Class member from having his or her request for a monetary

14 award considered or from receiving any monetary award pursuant to the proposed Consent

15 Decree. Settlement Class members who do not file timely and valid Claim Forms shall

16 nonetheless be bound by the judgment and release in this action as set forth in the proposed

17 Consent Decree.

18

8. It shall be the sole responsibility of each member of the Settlement Class

19 who seeks a monetary award to notify the Claims Administrator if the class member changes his

20 or her address. Failure of a Settlement Class member to keep the Claims Administrator apprised

21 of his or her address may result in his or her claim being denied or forfeited.

22

9. A hearing pursuant to Rule 23(e), Federal Rules of Civil Procedure (the

23 “Fairness Hearing”), shall be held at __ _.m. on ____________ __, 2005, at the United States

24 District Courthouse, Courtroom 10, 19th Floor, 450 Golden Gate Avenue, San Francisco,

25 California, at which time the Court shall consider the fairness of the Consent Decree and whether

26 it should be approved and entered by the Court. If any attorney will be representing a class

27 member objecting to the Consent Decree, the attorney shall file a notice of appearance with the

28
360368.2

STIPULATION OF PROPOSED SETTLEMENT

7

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 10 of 16

1 Court and serve counsel for all parties on or before __________ __ , 2005 [30 days before the

2 Fairness Hearing].

3

10. Any member of the Settlement Class may object to the proposed Consent

4 Decree by filing an objection and, if he or she so desires, appearing at the Fairness Hearing. To

5 be considered by the Court, however any objection to the final approval of the Consent Decree

6 must state the basis for the objection and must be timely filed in writing, along with any other

7 papers the class member wishes the Court to consider, with the Claims Administrator, Gonzalez

8 v. Abercrombie Claims Administrator, P.O. Box 10564, Tallahassee, FL 32302-2564 on or before

9 ___________ __, 2005 [30 days before the Fairness Hearing]. Any member of the class who

10 does not timely file and serve such a written objection shall not be permitted to raise such

11 objection, except for good cause shown, and any member of the class who fails to object in the

12 manner prescribed herein shall be deemed to have waived, and shall be foreclosed from raising

13 any such objection. The Claims Administrator shall record the date of receipt of each objection

14 and shall forward copies of each objection to Abercrombie and to Plaintiffs’ Lead Counsel within

15 two (2) business days following receipt. The Claims Adminstrator shall also file the original of

16 each objection with the Clerk of the Court no later than five (5) days prior to the Fairness Hearing

17 date.

18

11. If objections are filed, Class Counsel, the EEOC or counsel for

19 Abercrombie may engage in discovery concerning the filed objections prior to the Fairness

20 Hearing. Class Counsel and Abercrombie shall serve on each other and file with the Court on or

21 before three (3) days prior to the Fairness Hearing any further documents in support of the

22 proposed Consent Decree, including responses to any papers filed by Settlement Class members.

23

12. Consistent with Section VII of the proposed Consent Decree providing for

24 certification of the Settlement Class under Federal Rules of Civil Procedure 23(b)(3) for purposes

25 of monetary relief, and in according with the requirement of Federal Rules of Civil Procedure

26 23(b)(3), any potential Settlement Class member may request exclusion from the class, but only

27 for purposes of opting-out of the monetary relief provisions.

28
360368.2

STIPULATION OF PROPOSED SETTLEMENT

8

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 11 of 16

1

13. Potential class members who wish to exclude themselves from membership

2 in the Settlement Class for purposes of participation in the monetary portion of the settlement

3 must do so in writing, by mailing a signed and dated “Opt-out” statement to the Claims

4 Administrator at Gonzalez v. Abercrombie Claims Administrator, P.O. Box 10564, Tallahassee,

5 FL 32302-2564 on or before ____________ ___, 2005 [30 days before the Fairness Hearing].

6 Opt-out statements shall at a minimum contain the following language:

7

I am a Settlement Class Member in the lawsuit of Gonzalez v.

Abercrombie & Fitch, Case No. 03-2817 or West v. Abercrombie &

8

Fitch, Case No. 04-4730. I wish to opt out of the monetary portion

of the settlement of this case. 9

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

10

monetary settlement and that I will receive no money from the

settlement fund created under the Consent Decree entered into by

11

Abercrombie. I understand that if I am excluded from the class

monetary settlement, I may be able to bring a separate legal action

12

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

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

13

settlement procedure in this case. I also understand that I may not

seek exclusion from the class for injunctive relief and that I am

14

bound by the injunctive provisions of the Consent Decree entered

into by Abercrombie. 15

Only those class members who request exclusion in the time and manner set forth herein shall be 16

excluded from the class for monetary relief purposes. Pursuant to the Federal Rules of Civil 17

Procedure 23(b)(3) and (c)(2), the terms and provisions of the Consent Decree concerning 18

monetary relief shall have no binding effect on any person who makes a timely request for 19

exclusion in the manner required by this Order. 20

The Claims Administrator shall date stamp the original of each Opt-out statement 21

and serve copies on Abercrombie, Plaintiffs’ Lead Counsel and the EEOC within two (2) business 22

days of receipt of such statement. The Claims Administrator shall also file the original Opt-out 23

statements with the Clerk of the Court no later than five (5) days prior to the Fairness Hearing 24

date. 25

14. Subject to Court approval, class members will be permitted to withdraw 26

objections or requests for exclusion from the monetary provisions of the Decree by submitting a 27

Rescission to the Claims Administrator at Gonzalez v. Abercrombie Claims Adminstrator, P.O. 28

360368.2

STIPULATION OF PROPOSED SETTLEMENT

9

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 12 of 16

1 Box 10564, Tallahassee, FL 32302-2564 up to but not later than _________ __, 2005 [the Claim

2 Filing Deadline]. A Rescission of Objection that shall at a minimum contain the following

3 language:

4

I am a Settlement Class Member in the lawsuit of Gonzalez v.

Abercrombie & Fitch, Case No. 03-2817 or West v. Abercrombie &

5

Fitch, Case No. 04-4730.

6

I previously submitted an Objection seeking to object to the class

settlement. I have reconsidered and wish to withdraw my

7

Objection. I understand that by rescinding my Objection I may not

object to the settlement and may be eligible to receive an award

8

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

action against Abercrombie seeking damages. 9

A rescission of a request for exclusion from the monetary provisions of the Decree 10

shall at a minimum contain the following language: 11

I am a Settlement Class Member in the lawsuit of Gonzalez v.

12

Abercrombie & Fitch, Case No. 03-2817 or West v. Abercrombie &

Fitch, Case No. 04-4730. 13

I previously submitted an Opt-out statement seeking exclusion from

14

the class monetary settlement. I have reconsidered and wish to

withdraw my Opt-out statement. I understand that by rescinding

15

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

16

Abercrombie seeking damages.

17 A class member submitting such a rescission statement shall sign and date the statement.

18

The Claims Administrator shall date stamp the original of each rescission

19 statement and serve copies on both Abercrombie and Plaintiffs’ Lead Counsel within two (2)

20 business days of receipt of such statement. The Claims Administrator shall also file the rescission

21 statements with the Clerk of the Court no later than five (5) days prior to the Fairness Hearing

22 date.

23

24

25

26

27

28
360368.2

STIPULATION OF PROPOSED SETTLEMENT

10

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 13 of 16

1 Dated: November 12, 2004
2
3

Respectfully submitted,

4 Thomas A. Saenz

Bill Lann Lee

Shaheena Ahmad Simons

Kelly M. Dermody

5 MEXICAN AMERICAN LEGAL DEFENSE Eve H. Cervantez

AND EDUCATIONAL FUND 6 634 South Spring Street, 11th Floor

Elizabeth A. Alexander (pro hac vice) Jahan C. Sagafi

Los Angeles, CA 90014 7

Nirej S. Sekhon LIEFF, CABRASER, HEIMANN

& BERNSTEIN, LLP

8

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339 9

Julie Su 10 Minah Park

ASIAN PACIFIC AMERICAN LEGAL

11

CENTER

1145 Wilshire Blvd., 2nd Floor 12 Los Angeles, CA 90017

Joseph C. Kohn Martin J. D’Urso Hilary Cohen KOHN, SWIFT & GRAF, P.C. One South Broad Street Philadelphia, PA 19107

13 Kimberly West-Faulcon

NAACP LEGAL DEFENSE AND

14

EDUCATIONAL FUND, INC.

1055 Wilshire Blvd., Suite 1480 15 Los Angeles, CA 90017

16
Sidney L. Gold 17 Traci M. Greenberg
SIDNEY L. GOLD & ASSOCIATES, P.C. 18 1835 Market Street
Philadelphia, PA 19103 19
James F. Keller 20 Zachary Gottesman
GOTTESMAN & ASSOCIATES 21 2121 URS Center
36 East 7th Street 22 Cincinnati, OH 45202

Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MILLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103
Cleo Fields THE FIELDS LAW FIRM, L.L.C. 2147 Government Street Baton Rouge, LA
Barry L. Goldstein GOLDSTEIN, DEMSCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Avenue Oakland, CA 94612

23

24

25

26

27

28
360368.2

STIPULATION OF PROPOSED SETTLEMENT

11

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 14 of 16

1 November 12, 2004
2 3 4 5 6 7 8 9 10 November 12, 2004 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
360368.2

_____/s/________________________ Bill Lann Lee LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
Jack W. Lee, Esq. (SBN 071626) Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532) MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108
_____/s/_________________________ Jack W. Lee MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108
Attorneys for Plaintiff West, et al.

STIPULATION OF PROPOSED SETTLEMENT

12

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 15 of 16

1 2 November 12, 2004 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
360368.2

ERIC S. DREIBAND General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507
By: ______/s/_______________ ANNA Y. PARK Regional Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012
By: _______/s/_______________
JOHN C. HENDRICKSON Regional Attorney GREGORY M.GOCHANOUR Supervisory Trial Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

STIPULATION OF PROPOSED SETTLEMENT

13

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

Case 3:03-cv-02817-SI Document 101-1 Filed 11/12/2004 Page 16 of 16

1 November 12, 2004 2 3 4 5 6 7 8

Douglas R. Young Sandra A. Kearney FARELLA BRAUN + MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knueve VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008

9

________/s/______________________

10

Douglas R. Young

Sandra A. Kearney

11

FARELLA BRAUN + MARTEL, LLP

Russ Building, 30th Floor

12

235 Montgomery Street

San Francisco, CA 94104

13

Attorneys for Defendant Abercrombie & Fitch, et al.

14

15

16

17 ORDER
18 IT IS SO ORDERED.
19

20 Dated: November 21

, 2004

The Honorable Susan Illston UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28
360368.2

STIPULATION OF PROPOSED SETTLEMENT

14

AND [PROPOSED] ORDER

CASE NOS. 03-2817 SI, 04-4730 SI and 04-4731 SI

 
 Case 3:03-cv-02817-SI Document 101E-X2HIBFIiTled1 11/12/2004 Page 1 of 77

1 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
3 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Thomas A. Saenz (SBN 159430)
8 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
9 AND EDUCATIONAL FUND 634 South Spring Street
10 Los Angeles, CA 90014 Telepho ne: (213) 629-2512
11 Facsimile: (213) 629-0266
12 Joseph C. Kohn Martin J. D’Urso
13 Hilary Cohen KOHN, SWIFT & GRAF, P.C.
14 One South Broad Street, Suite 2100 Philadelphia, PA 19107
15 Telephone: (215) 238-1700 Facsimile: (215) 238-1968
16 Jack W. Lee, Esq. (SBN 071626)
17 Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532)
18 MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor
19 San Francisco, CA 94108 Telephone: (415) 788-9000
20 Facsimile: Fax (415) 398-3887

Douglas R. Young Sandra A. Kearney FARELLA BRAUN & MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4481
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark Knueve VORYS, SATER, SEYMOUR & PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 Telephone: 614-464-6400 Facsimile: 614-464-6350
Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012
John C. Hendrickson (IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

21 Attorneys for Plaintiffs and Defendants [Additional counsel listed on signature page]

22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

23

24 EDUARDO GONZALEZ, ANTHONY

25

OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GÓMEZ-

26

MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT,

27

CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS, and ROBAIR

28 SHERROD, BRANDY HAWK and ANDRE

Case Nos. 03-2817 SI, 04-4730 and 04-4731
CONSENT DECREE

358602.7

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730AND 04-4731

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 2 of 77

1 STEELE, on behalf of themselves and all others similarly situated,
2 Plaintiffs,
3 v.
4 ABERCROMBIE & FITCH STORES, INC., A&F
5 CALIFORNIA, LLC, A&F OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT
6 CO.,

7

Defendants.

8
ELIZABETH WEST and JENNIFER LU, 9
Plaintiffs, 10
v. 11
ABERCROMBIE & FITCH STORES, INC., A&F 12 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 13 CO.,

14

Defendants.

15 EQUAL EMPLOYMENT OPPORTUNITY
16 COMMISSION,

17

v.

18 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
19 ABERCROMBIE & FITCH MANAGEMENT CO.
20
Defendants. 21

22

23

24

25

26

27

28

358602.7

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730AND 04-4731

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 3 of 77

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ...............................................................................................................1

4 II. III.
5 IV.

PURPOSES OF THE CONSENT DECREE.......................................................................1 DEFINITIONS.....................................................................................................................2 LITIGATION BACKGROUND .........................................................................................4

6

A. The Gonzalez Litigation...........................................................................................4

7 8 V.

B. The EEOC Litigation...............................................................................................6 C. The West Litigation .................................................................................................7 JURISDICTION...................................................................................................................8

9 VI. EFFECTIVE DATES AND DURATION OF THE DECREE............................................8

10 VII. SETTLEMENT CLASS ......................................................................................................9

VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS AND EEOC ACTION .....................10

11

A. Release of Claims by Settlement Class..................................................................10

12

B. Release of Claims by Plaintiffs ..............................................................................11

13

C. Unknown Claims ...................................................................................................12

D. EEOC Release........................................................................................................12

14

E. No Tolling of Harassment Claims .........................................................................13

15

F. No Bar to Future Claims ........................................................................................13

16 IX. 17

MISCELLANEOUS PROVISIONS..................................................................................13 A. No Admission of Liability .....................................................................................13 B. Modification and Severability of the Consent Decree ...........................................14

18

C. Duty to Support and Defend the Decree ................................................................15

19 X.
20

D. Execution In Counterparts .....................................................................................15 GENERAL EQUITABLE PROVISIONS.........................................................................15 A. General Injunctive Provisions ................................................................................15

21

B. Dispute Resolution and Enforcement Procedures..................................................16

22 XI.
23

C. Marketing ...............................................................................................................19
ABERCROMBIE’S INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT AND DIVERSITY PRACTICES ...........................................20

24

A. Creation of Office of Diversity..............................................................................20

B. Notice and Posting .................................................................................................22

25

C. EEO and Diversity Training ..................................................................................23

26

D. Internal Complaint Procedure ................................................................................25

27

E. Performance Evaluations .......................................................................................28

28

-i-

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 4 of 77

1

TABLE OF CONTENTS

(continued)

2

Page

3 XII. JOB ANALYSIS, MINIMUM ELIGIBILITY REQUIREMENTS, JOB

CRITERIA, RECRUITMENT, HIRING, JOB ASSIGNMENTS AND

4

MANAGERIAL PROMOTION AND STAFFING ..........................................................28

5

A. Job Analysis and Job Criteria ................................................................................28

B. Recruitment and Hiring..........................................................................................29

6

C. Managerial Promotions ..........................................................................................31

7 XIII. AFFIRMATIVE RECRUITING EFFORTS .....................................................................31

8

A. Diversity Recruiters ...............................................................................................31

B. Advertisements.......................................................................................................32

9

C. Recruiting Events ...................................................................................................32

10

D. Diversity Consultant ..............................................................................................32

11

E. Documentation.......................................................................................................32

XIV. BENCHMARKS................................................................................................................33

12

A. General Principles..................................................................................................33

13

B. Interim Hiring Goals ..............................................................................................34

14

C. Applicant Rate Goals .............................................................................................38

XV. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS .......................39

15

A. Documents To Be Preserved For The Duration of The Decree .............................39

16

B. Documents to Be Maintained for Two Years ........................................................39

17

C. Access to Documents .............................................................................................39

D. Reporting Schedule ................................................................................................40

18

E. Contents of the Semi- Annual Progress Reports.....................................................40

19

F. Compliance Meetings ............................................................................................42

20

G. Status Conference with Court ................................................................................43

XVI. MONITORING OF IMPLEMENTATION.......................................................................43

21

A. Court-Appointed Monitor ......................................................................................43

22 XVII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE ...................................47

23

A. Establishment of Settlement Fund .........................................................................47

B. Distribution of Settlement Fund .............................................................................49

24

1. Class Representatives and EEOC Charging Parties...................................49

25

2. Settlement Class .........................................................................................49

26

C. Notice .....................................................................................................................49

1. Mailed Notice.............................................................................................49

27

2. Published Notice ........................................................................................50

28

D. Objections and Exclusions .....................................................................................50

-ii-

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 5 of 77

1

TABLE OF CONTENTS

(continued)

2

Page

3

1. Objections ..................................................................................................50

4

2. Exclusions ..................................................................................................51

3. Rescission of Class Member Opt-Outs ......................................................51

5

4. Opt-Out Credits..........................................................................................52

6

5. Defendant’s Rescission of Agreement .......................................................52

7

E. Claims Administration...........................................................................................53

F. Submission of Claim Forms...................................................................................53

8

G. Deceased Claimants ...............................................................................................54

9

H. Determining Eligibility ..........................................................................................54

10

I. Late-Filed Claims...................................................................................................55

J. Appeals of Claims Eligibility.................................................................................55

11

K. Claimant Information Provided by Abercrombie ..................................................55

12

L. Allocation Plan.......................................................................................................56

13

M. Distribution of the Monetary Awards ....................................................................56

N. Allocation of Monetary Awards ............................................................................57

14

O. Cy Pres Fund ..........................................................................................................57

15

P. Report from Claims Administrator ........................................................................58

16 XVIII. ATTORNEYS’ FEES, COSTS AND EXPENSES .........................................................58

A. Basis for Award of Fees, Costs and Expenses .......................................................58

17

B. Payment of Award .................................................................................................59

18

19

20

21

22

23

24

25

26

27

28

-iii-

Case 3:03-cv-02817-SI Document 101E-X2HIBFIiTled1 11/12/2004 Page 6 of 77

1 I. INTRODUCTION

2

This Consent Decree (“Decree”) has been voluntarily entered into by the parties for the

3 purpose of finally resolving the litigation between them.

4

This Consent Decree includes a joint statement of the purposes of the Decree, a

5 description of the history of the litigation, and various substantive provisions agreed upon by the

6 parties. As a result of negotiations supervised by a mediator, the parties have reached a voluntary

7 agreement that is contained in this Decree.

8 II. PURPOSES OF THE CONSENT DECREE

9

The parties have entered into this Consent Decree for the following purposes:

10

A. To resolve all disputes covered by this Consent Decree in such a way as to avoid

11 further expensive and protracted litigation.

12

B. To ensure equal employment opportunity for African Americans, Asian

13 Americans, Latinos, and women applying to, and working within, stores operated by defendants.

14

C. To ensure equal employment opportunity for African American women, Latino

15 women and Asian American women applying to, and working within, stores operated by

16 defendants.

17

D. To provide for the implementation of recruitment, selection and personnel systems

18 that will ensure that African Americans, Asian Americans, Latinos and women are considered for

19 recruitment, hire, job assignment and managerial promotion for which they are interested and

20 qualified on a non-discriminatory basis.

21

E. To provide for implementation of recruitment, selection and personnel systems

22 that will ensure that African American women, Latino women, and Asian American women are

23 considered for recruitment, hire, job assignment and managerial promotion for which they are

24 interested and qualified on a non-discriminatory basis.

25

F. To create an expedited and efficient procedure for implementing equitable relief

26 pursuant to the terms of this Decree; and

27

G. To provide finality to the resolution of all claims and defenses asserted in these

28 civil actions.

358602.7

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730AND 04-4731

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 7 of 77

1 III. DEFINITIONS

2

A. “Abercrombie” or the “Company” means Abercrombie & Fitch Stores, Inc.; A&F

3 California, LLC; A&F Ohio, Inc.; and Abercrombie & Fitch Management Co., as well as each of

4 their parents, subsidiaries, affiliates, officers, directors, agents, management, successors and

5 assigns and those in active concert or participation with them, or any of them. The terms of this

6 Decree cover all stores operated by Abercrombie whether under the name Abercrombie & Fitch,

7 Hollister, abercrombie, or any other concept operated by Abercrombie.

8

B. “Adverse impact” shall be defined in a manner consistent with Title VII law.

9

C. “African American” means all persons having origins in any of the black racial

10 groups of Africa.

11

D. “Approval Date” means the date upon which the Court signs this Decree, having

12 determined that it is fair, adequate and reasonable after: (i) notice to the Settlement Class; (ii)

13 opportunity to opt out of the Settlement Class with respect to monetary relief; (iii) opportunity to

14 submit timely objection to the Decree; (iv) appropriate discovery of the specifics of any such

15 timely objections; and (v) a hearing on the fairness of the settlement.

16

E. “Asian American” means all persons having origins in any of the original peoples

17 of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area

18 includes, but is not limited to, China, India, Japan, Korea, the Philippine Islands, and Samoa.

19

F. “Associates” means all in-store hourly or managerial employees.

20

G. “Benchmark Positions” means Brand Representative and Manager- in-Training

21 positions.

22

H. “Best Efforts” means implementing and adequately funding a plan reasonably

23 designed to comply with all the specific objectives to which the best efforts are directed.

24

I. “Charging Party” means Lekisha Bondurant, Torrey Dickson, Stanley Elmore,

25 Timothy Greer, Eric Jason and Jason Noel.

26

J. “Class Counsel” means all counsel of record for the Class Representatives in the

27 Private Civil Actions.

28

358602.7

- 2 -

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730AND 04-4731

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 8 of 77

1

K. “Class Representatives” or “Pla intiffs” means Eduardo Gonzalez, Anthony

2 Ocampo, Encarnacion Gutierrez, Brandy Hawk, Johan Montoya, Juancarlos Gómez-Montejano,

3 Jennifer Lu, Austin Chu, Ivy Nguyen, Angeline Wu, Eric Fight, Carla Grubb, David Culpepper,

4 Patrice Douglass, Robair Sherrod, Andre Steele, and Elizabeth West.

5

L. “Consolidated Litigation” means the Private Civil Actions and the EEOC Civil

6 Action that the parties stipulate they will move, or have already moved, to consolidate before

7 Judge Susan Illston for purposes of approval and oversight of this settlement.

8

M. “Court” means the United States District Court for the Northern District of

9 California.

10

N. “EEOC Civil Action” means EEOC v. Abercrombie & Fitch Stores, Inc., N.D. Cal.

11 Case No. 04-4731.

12

O. “Final Approval” means the entry of this Decree on the Approval Date by the

13 United States District Court for the Northern District of California, and either: (1) the expiration

14 of the time for filing of a direct appeal from the Court’s approval of the Decree without the filing

15 of a notice of appeal, or (2) if a timely direct appeal is filed, the final resolution of the appeal

16 (including any requests for rehearing and/or petitions for a writ of certiorari), resulting in final

17 judicial approval of the Consent Decree.

18

P. “Good Faith Offer” means an offer of employment -- under the same terms and

19 conditions of employment (e.g., hours, shifts or locations offered) offered to similarly situated

20 individuals who receive employment offers -- that is made to an individual who has submitted a

21 written or electronic application for a job.

22

Q. “Latino” means all persons of Mexican, Puerto Rican, Cuban, Central American,

23 South American or other Spanish culture or origin, regardless of race.

24

R. “Lead Counsel” means Lieff, Cabraser, Heimann & Bernstein, LLP; the Mexican

25 American Legal Defense and Educational Fund (MALDEF); and Kohn, Swift & Graf

26 representing the Gonzalez Minority class; and Minami, Lew & Tamaki representing the West

27 gender class.

28

358602.7

- 3 -

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730AND 04-4731

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 9 of 77

1

S. “Minority” means all African Americans, Asian Americans, and Latinos.

2 “Minority Group” means each of these three groups.

3

T. “Minority Women” means African American females, Latina females, and Asian

4 American females.

5

U. “Preliminary Approval Date” means the date upon which the Court enters an

6 Order preliminarily approving this Decree, pending notice (an opportunity to opt out of the

7 notice), an opportunity to opt out of the Settlement Class or submit objections to the Decree, and

8 a fairness hearing thereon.

9

V. “Private Civil Actions” means Gonzalez v. Abercrombie & Fitch Stores, Inc., N.D.

10 Cal. Case No. 03-2817-SI and West v. Abercrombie & Fitch Stores, Inc., N.D. Cal. Case No. 04-

11 4730.

12

W. “Release” means the Release of Claims set forth in Section VIII of the Decree.

13

X. “Settlement Class” means those persons described in Section VII of the Decree.

14 “Settlement Class Members” means each and every person described in Section VII of the

15 Decree.

16

Y. “Term of the Decree,” “Period of the Decree” or “Duration of the Decree” is the

17 period from the Approval Date until the expiration of the Decree under Section VI.

18 IV. LITIGATION BACKGROUND

19

A. The Gonzalez Litigation

20

On June 16, 2003, Plaintiffs filed the Gonzalez case in the Northern District of California,

21 alleging violations of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act,

22 and providing notice of Plaintiffs’ intent to bring claims under Title VII of the Civil Rights Act of

23 1964. The Complaint was brought on behalf of a putative class of minority individuals who

24 alleged that Defendants discriminate against minorities on the basis of race, color, and/or national

25 origin, with respect to hiring, firing, job assignment, compensation and other terms and

26 conditions of employment, by enforcing a nationwide corporate policy of preferring white

27 employees for sales positions, desirable job assignments, and favorable work schedules in its

28 stores throughout the United States.

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1

Plaintiffs filed the First Amended Complaint on August 18, 2003, which alleged

2 substantially the same facts and legal claims. This complaint added three named plaintiffs and

3 three defendants, Abercrombie & Fitch Stores, Inc., A&F California, LLC, and A&F Ohio, Inc.

4 On September 11, 2003, Defendants answered the First Amended Complaint, denying Plaintiffs’

5 allegations.

6

On January 9, 2004, Plaintiffs filed the Second Amended Complaint, which again alleged

7 substantially the same facts and legal claims, this time converting the notice of intent to file Title

8 VII claims into actual Title VII claims. This complaint added two named plaintiffs and removed

9 one defendant, Abercrombie & Fitch Co. This complaint also included as exhibits Right-to-Sue

10 letters from the EEOC issued to 13 of the 14 named plaintiffs who brought Title VII and FEHA

11 claims. Defendants answered the Second Amended Complaint, denying Plaintiffs’ allegations, on

12 January 26, 2004.

13

Plaintiffs filed the Third Amended Complaint on June 10, 2004, which again alleged

14 substantially the same facts and legal claims. This complaint added individual causes of action

15 for gender discrimination, brought only on behalf of named plaintiffs Ivy Nguyen and Angeline

16 Wu. On June 21, 2004, Defendants answered the Third Amended Complaint, denying Plaintiffs’

17 allegations.

18

On November 8, 2004, Plaintiffs filed the Fourth Amended Complaint naming two

19 additional Plaintiffs and an additional defendant, Abercrombie & Fitch Management Co., as well

20 as adding claims of discrimination in hiring of Managers-in- Training positions and promotion to

21 in-store managerial positions.

22

On October 10, 2003, Plaintiffs served their first set of requests for discovery. On

23 February 19, 2004, Plaintiffs served their second set of requests for discovery. Defendants

24 responded by producing roughly 17,000 pages of documents, as well as files from Abercrombie’s

25 computerized personnel databases.

26

Defendants served their first set of requests for discovery in November 2003 and took the

27 depositions of seven class representatives in February 2004. Plaintiffs took six days of

28 depositions of Abercrombie officials and managers under Fed. R. Civ. P. 30(b)(6) in March 2004.

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1 Plaintiffs and Defendants have obtained numerous declarations from putative class members and

2 witnesses, including managers, concerning alleged discrimination, or lack of discrimination, that

3 they would testify to if called.

4

On April 13, 2004, and on several dates subsequently, the parties conducted mediation

5 discussions in an attempt to resolve the Consolidated Litigation. These discussions have

6 culminated in this settlement agreement.

7

B. The EEOC Litigation

8

Between December 21, 1999 and January 29, 2004, the EEOC received charges of

9 discrimination alleging discrimination in hiring, assignment, layoff, constructive discharge,

10 discharge, terms and conditions of employment, and failure to promote into manager positions

11 due to race, national origin, and/or gender.

12

Specifically, on or about December 21, 1999, a charging party filed an individual charge

13 alleging national origin discrimination and wrongful termination. The charge was later amended

14 on or about March 21, 2001 alleging that the charging party was not hired into a sales position or

15 a Brand Representative position due to his national origin. Class allegations were included,

16 alleging that Abercrombie failed to recruit, hire, and assign Latinos into Brand Representative

17 positions and that Latinos were terminated due to their national origin.

18

On or about September 13, 2001, the EEOC issued a Letter of Determination finding

19 probable cause that the charging party was denied a permanent sales or Brand Representative

20 position, denied assignments, and terminated due to his national origin. The EEOC also found

21 probable cause that Latinos and African Americans as a class were not recruited, hired, or

22 assigned permanent positions or given assignments due to their race and national origin. The

23 Commission further found probable cause that Abercrombie failed to maintain records as required

24 by federal law.

25

EEOC received additional charges against Abercrombie nationwide and issued additional

26 Letters of Determination on or about September 30, 2004 and November 1, 2004 finding probable

27 cause that Abercrombie violated Title VII by discriminating against minority individuals on the

28 basis of national origin, color, race, and/or gender (female including minority women) in hiring,

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1 staffing, constructive discharge, failing to promote into manager positions, steering, and

2 discharge, on an individual basis and also on a nationwide class basis. The EEOC also found

3 probable cause that Abercrombie violated Title VII by discriminating against a class of

4 individuals nationwide by deterring minority applicants from applying for sales, stock, overnight,

5 manager- in-training, and manager positions because of their race, color, and/or national origin;

6 failing or refusing to recruit minority and female applicants for sales, stock, overnight, manager-

7 in-training, and manager positions because of their race, color, and/or national origin; failing and

8 refusing to hire and to assign minorities and females into sales, stock, overnight, manager-in

9 training, and manager positions because of their race, color, national origin and/or gender; failing

10 and refusing to promote minorities and females into manager- in-training and manager positions

11 because of their race, color, national origin, and/or gender; terminating minority and female

12 employees because of their race, color, national origin, and/or sex; and segregating its workforce

13 on the basis of race, color, national origin, and/or gender. The EEOC again found probable cause

14 that Abercrombie failed to maintain records as required by federal law.

15

After meeting all the conditions precedent, the EEOC filed a federal lawsuit in the matter

16 of EEOC v. Abercrombie and Fitch Stores, Inc., N.D. Cal., Case No. 04-4731, on November 8,

17 2004 ("EEOC Litigation") encompassing all the claims set forth in the Letters of Determination

18 as described above. The EEOC's pre- filing investigation involved analysis of hard copy

19 documents, statistical compilations and computer-readable files, and investigative interviews of

20 employees and company officials.

21

C. The West Litigation

22

Counsel for the gender class became involved in this case in February 2004 after being

23 contacted by one of the named plaintiffs in Gonzalez v. Abercrombie & Fitch. This named

24 plaintiff sought separate counsel to file a gender class action against Abercrombie.

25

Putative counsel for the gender class thereafter conducted an independent, on-going

26 investigation to determine the merits of a possible class gender discrimination claim against

27 Abercrombie. Counsel for the gender class contacted scores of class members and witnesses,

28 collected declarations from many class members regarding their experiences at Abercrombie,

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1 reviewed statistical reports produced in the course of the Gonzalez litigation and conducted a

2 separate analysis of the workforce by gender.

3

After informing defendant of its intent to file a gender complaint, counsel for the gender

4 class was invited to participate in the initial April 2004 mediation sessions with the Gonzales

5 parties and EEOC in an effort to resolve this case without further litigation.

6

During the mediation, which lasted over fifteen days over the course of eight months, all

7 parties engaged in extensive discussions regarding the merits of the race and gender claims, relief

8 for class members, and procedures to be put into place to ensure equal employment opportunity

9 for minorities and women in the future.

10

The gender class action, West v. Abercrombie & Fitch Stores, Inc., N.D. Cal., Case No.

11 04-4730 was filed on November 8, 2004.

12 V. JURISDICTION

13

The Court has jurisdiction over the parties and subject matter of the Private Civil Actions

14 and EEOC Civil Action. The parties agree that they will seek, or have already sought

15 consolidation of the Private Civil Actions and the EEOC Civil Action before Judge Susan Illston

16 for purposes of approval of this settlement. If the claims asserted in the complaints filed in these

17 civil actions were proven, the Court would have the authority to grant the equitable and monetary

18 relief set forth in this Consent Decree. Venue is proper in this District. This Court shall retain

19 jurisdiction of these civil actions during the duration of the Decree solely for the purposes of

20 entering all orders, authorized hereunder, that may be necessary to implement the relief provided.

21 VI. EFFECTIVE DATES AND DURATION OF THE DECREE

22

A. Unless provided otherwise, the equitable provisions in this Decree are effective

23 immediately upon the Approval Date.

24

B. The provisions of this Decree shall remain in effect for a period of six years (72

25 months). Abercrombie may file a motion to be relieved of the provisions of the decree at any

26 point following the expiration of 54 months from the effective date of the decree. The parties

27 may stipulate that Abercrombie should be relieved of the provisions of the Decree. Absent such

28 agreement, in order to be relieved of the provisions of the Decree before the full period of 72

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1 months, Abercrombie must demonstrate that: 1) it has satisfied its duty to use Best Efforts with

2 respect to its obligations under the Decree; 2) it has implemented and maintained all programs

3 mandated by the Decree; 3) it has satisfied, without use of standard deviations, each of the

4 benchmarks established by the Decree during the preceding 24 months; and 4) it has satisfied all

5 monetary provisions of the Decree. Abercrombie bears the burden of demonstrating its

6 satisfaction of these conditions to the Court. Lead Counsel and EEOC may oppose any motion to

7 be relieved on grounds that any of these conditions have not been met and on the grounds set

8 forth in Section X.C.1.b. Unless and until the court issues an order granting the motion to be

9 relieved, all provisions of the Decree shall remain in full force and effect.

10

C. Abercrombie shall provide 30 days notice to the Special Master, Lead Counsel,

11 and EEOC of any motion to be relieved of the provisions of the decree before the full period of 72

12 months. Abercrombie shall then provide its briefing and other support for its motion to the

13 Special Master, Lead Counsel, and EEOC. Lead Counsel and the EEOC shall have 30 days to

14 provide any opposition to the motion to the Special Master and Abercrombie. Abercrombie shall

15 have 15 days to provide any reply materials to the Special Master, Lead Counsel, and EEOC.

16 The Special Master shall then have 30 days to prepare a written recommendation to the court as to

17 the resolution of the motion to be relieved. The parties shall then jointly file with the court all of

18 the briefing and the Special Master's recommendation, and set a hearing for 28 days from the

19 filing. Each party may file and serve a response to the Special Master's recommendation, not to

20 exceed ten pages, not later than 14 days before the scheduled hearing.

21 VII. SETTLEMENT CLASS

22

A. For purposes of the monetary relief provided in this Decree, the Settlement Class

23 is certified under Federal Rule of Civil Procedure 23(b)(3) and consists of:

24

1. All Minority and/or female applicants who applied for employment as

25 Associates in Abercrombie stores, or attempted to apply and were discouraged from applying for

26 employment, between February 24, 1999 and the Preliminary Approval Date and who were not

27 hired, except those who file a timely request to opt out of the monetary relief provisions.

28

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1

2. All Minority and/or female Associates of Abercrombie who are or were

2 employed in an Abercrombie store, for any length of time, between February 24, 1999, and the

3 Preliminary Approval Date, except those who file a timely request to opt out of the monetary

4 relief provisions.

5

B. For purposes of the equitable and declaratory relief provided in this Decree, the

6 Settlement Class is certified under Federal Rule of Civil Procedure 23(b)(2) and consists of:

7

1. All Minority and/or female applicants who applied for employment as

8 Associates in Abercrombie stores, or attempted to apply and were discouraged from applying for

9 employment, between February 24, 1999 and the Preliminary Approval Date and who were not

10 hired.

11

2. All Minority and/or female Associates of Abercrombie who are or were

12 employed in an Abercrombie store, for any length of time, between February 24, 1999, and the

13 Preliminary Approval Date.

14

C. Settlement Class Members who have filed a timely request to opt out of the

15 monetary relief provisions shall not be held to release any claims for individual relief.

16

D. In the event that Final Approval is not obtained, nothing in this Decree shall be

17 deemed to waive Abercrombie’s objections and defenses to class certification, liability, or

18 entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation, the

19 Private Civil Actions, or the EEOC Civil Action, and this Decree shall then be deemed null and

20 void and not admissible in any court regarding the propriety of class certification, liability, or

21 entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation, the

22 Private Civil Actions, or the EEOC Civil Action.

23 VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS AND EEOC ACTION

24

A. Release of Claims by Settlement Class.

25

Upon Final Approval of the Decree, Abercrombie and its employees, managers, insurers

26 and attorneys shall be fully released and forever discharged from any and all individual and/or

27 class-wide claims, demands, charges, complaints, rights and causes of action of any kind, known

28 or unknown, by the Class Representatives, Plaintiffs, Charging Parties, the Settlement Class, each

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1 member of the Settlement Class (hereafter “Releasers”), and by the Releasers’ estates, whether

2 seeking monetary and/or equitable relief of any sort, which arise out of conduct within the

3 liability period of February 24, 1999 through the Preliminary Approval Date constituting alleged

4 race, colo r, national origin or gender discrimination in recruitment, the application process

5 (including claims of individuals who attempted to apply for and were discouraged from applying

6 for employment), hiring, job channeling or assignment, termination of employment, any terms

7 and conditions of employment that were or could have been raised in the Consolidated Litigation

8 and/or managerial promotion under Title VII, 42 U.S.C. Section 1981, the California FEHA or

9 any other federal, state, or local law prohibiting race, color, national origin or gender

10 discrimination, whether statutory, regulatory, pursuant to local ordinance, or at common law,

11 excepting solely claims of Class members other than Plaintiffs and Charging Parties for alleged

12 harassment (including constructive discharge allegedly caused by such harassment). This Release

13 is final and shall survive expiration of the Decree’s terms.

14

B. Release of Claims by Plaintiffs.

15

Upon Final Approval of the Decree, for and in consideration of the mutual promises,

16 terms and conditions by and between Plaintiffs and Charging Parties, and Defendants set forth

17 herein, the sufficiency of which consideration is expressly acknowledged, the Plaintiffs and

18 Charging Parties do hereby fully, finally and forever release and discharge Abercrombie and its

19 employees, managers, insurers and attorneys from any and all past and/or present claims,

20 demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs,

21 losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not

22 known, that they have had, now have, or may have from the beginning of time to the Preliminary

23 Approval Date, including without limitation those arising in any way out of the alleged facts,

24 circumstances and occurrences underlying those allegations of violations of Title VII, Section

25 1981 and the California FEHA that were asserted or that might have been asserted by or on behalf

26 of the Plaintiffs against Defendants either in Plaintiffs’ complaints in the Gonzalez and West

27 actions, or in any and all charges of discrimination filed against Abercrombie by some or all of

28 the Plaintiffs and Charging Parties with the EEOC and/or DFEH. This Release does not include

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1 workers’ compensation claims, if any, of the Plaintiffs or Cha rging Parties. This Release is final

2 and shall survive the expiration of the Term of the Decree. Prior to receiving any monetary relief

3 under this Decree, including any enhanced or service payment, each Plaintiff and Charging Party

4 will be required to execute a full and final general release of all claims against Abercrombie,

5 whether or not asserted in the Consolidated Litigation, in the form attached as Exhibit A.

6

C. Unknown Claims.

7

Plaintiffs and Charging Parties acknowledge that they may not now know fully the

8 number or magnitude of the claims they may have, and that they may suffer some further loss or

9 damage in some way connected with the subject matter of the Consolidated Litigation, but which

10 is unknown or unanticipated at this time. Plaintiffs and Charging Parties have taken these risks

11 and possibilities into account and accept that, nevertheless, this Consent Decree covers all claims

12 arising out of or related to the subject matter of the Consolidated Litigation, which, although

13 unknown at the time of the execution of this Consent Decree, may be discovered later. Plaintiffs

14 and Charging Parties understand and assume these risks and expressly waive the provisions of

15 California Civil Code § 1542, or any comparable federal or other state statute, which states:

16

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

17

EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE

RELEASE, WHICH IF KNOWN BY HIM MUST HAVE

18

MATERIALLY AFFECTED HIS SETTLEMENT WITH THE

DEBTOR. 19

20 Plaintiffs and Charging Parties expressly waive any right to assert hereafter that any claim was

21 excluded from this Consent Decree through ignorance, oversight, or error. It is expressly

22 understood and agreed that this waiver of Civil Code § 1542 and the release and waive r set forth

23 in this Consent Decree are material terms of the agreement and were separately negotiated

24 between the parties. This Section VIII.D does not waive any rights of Settlement Class members

25 other than Plaintiffs and Charging Parties.

26

D. EEOC Release.

27

Upon Final Approval, this Decree shall fully and finally resolve any and all claims,

28 demands, charges, complaints, rights and causes of action of any kind, known or unknown,

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1 asserted by EEOC in its Complaint arising from incidents occurring prior to the Preliminary

2 Approval Date. It is the intention of Abercrombie and the EEOC that this release terminates all

3 investigations relating to claims of Settlement Class Members which were asserted by EEOC in

4 its Complaint. This Release shall survive the termination of this Decree.

5

E. No Tolling of Harassment Claims.

6

Any claims of Settlement Class Members (other than the Plaintiffs) for alleged harassment

7 based upon race, color, national origin or gender (including constructive discharge allegedly

8 caused by such harassment), or for the alleged retaliation for opposing or complaining about such

9 purported harassment, are not released hereunder because such claims are not and have never

10 been asserted on a class-wide basis as a part of the Private Civil Actions or the EEOC Civil

11 Action. Hence, there also has been no tolling of the statute of limitations for asserting any such

12 claims against Abercrombie and its employees, managers, insurers and attorneys by operation of

13 these civil actions or any of the Plaintiffs’ individual EEOC or DFEH charges.

14

F. No Bar to Future Claims.

15

Nothing in the Decree shall be construed to bar any claims of members of the Settlement

16 Class or Plaintiffs that arise after the Preliminary Approval Date.

17 IX. MISCELLANEOUS PROVISIONS

18

A. No Admission of Liability.

19

This Consent Decree does not constitute and shall not be deemed to be a finding or

20 determination by the Court, nor an admission by any party, regarding the merits, validity or

21 accuracy of any of the allegations, claims or defenses. This Decree represent s the compromise of

22 disputed claims that the parties recognize would require protracted and costly litigation to

23 determine. Abercrombie denies that it has engaged in any policy or pattern or practice of

24 unlawful discrimination, or that it has engaged in any other unlawful conduct as alleged in the

25 Consolidated Litigation, and Abercrombie’s entry into this Decree is not and may not be used by

26 any person in any proceeding as an admission or evidence that Abercrombie and/or its employees,

27 managers, and/or attorneys have on any occasion engaged in discriminatory employment

28 practices or any other unlawful conduct, such being expressly denied. Abercrombie has

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1 voluntarily entered into this Decree because it believes the actions it has agreed to undertake

2 demonstrate its strong commitment to diversity and equal employment opportunity. Neither the

3 Decree nor any compliance reports, filings, data, or other compliance information arising out of

4 or related to the Decree shall be discoverable, admissible or used as evidence of liability or non-

5 liability for unlawful discrimination in any proceeding other than one relating to the enforcement

6 of this Decree.

7

B. Modification and Severability of the Consent Decree.

8

1. Whenever possible, each provision and term of this Decree shall be

9 interpreted in such a manner as to be valid and enforceable; provided, however, that in the event

10 that after Final Approval hereof any provision or term of this Decree should be determined to be

11 or rendered unenforceable on collateral review, all other provisions and terms of this Decree and

12 the application thereof to all persons and circumstances subject thereto shall remain unaffected to

13 the extent permitted by law. If any application of any provisions or term of this Decree to any

14 specific person or circumstance should be determined to be invalid or unenforceable, the

15 application of such provision or term to other persons or circumstances shall remain unaffected to

16 the extent permitted by law.

17

2. Lead Counsel, Abercrombie and the EEOC may jointly agree in writing to

18 modify the Decree. In the event that changed or other circumstances make a modification of the

19 Decree necessary to ensure its purposes are fully effectuated, but good faith negotiations seeking

20 such modifications are unsuccessful, any party to the Decree shall have the right to move the

21 Court to modify this Decree. Such motion shall be granted only upon the movant proving to the

22 Court by clear and convincing evidence that changed or other circumstances make such

23 modification necessary. In determining the specific modification to order, the Court shall

24 consider whether there is an equally effective modification that would not materially increase the

25 burden of compliance and/or cost to Abercrombie of compliance (out-of-pocket or otherwise).

26 Any such modification to this Decree by the Court shall be ordered in such a fashion as will limit

27 the burden of compliance and/or the cost to Abercrombie (out-of-pocket or otherwise) to the

28 extent possible consistent with effectuating the purposes of this Decree. The procedures for

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1 negotiations to modify this Decree (and, if necessary, for resolution of disputes) shall be the same

2 as those set forth in Section X.B, regarding Decree enforcement.

3

C. Duty to Support and Defend the Decree.

4

Class Representatives, Class Counsel, EEOC and Abercrombie each agree to abide by all

5 of the terms of this Decree in good faith and to support it fully, and shall use Best Efforts to

6 defend this Decree from any legal challenge, whether by appeal or collateral attack.

7

D. Execution In Counterparts

8

The parties agree that the Decree may be executed in counterparts, each of which shall be

9 deemed to be an original and all of which together shall be deemed to be part of the same Decree.

10 X. GENERAL EQUITABLE PROVISIONS

11

A. General Injunctive Provisions.

12

1. Abercrombie is hereby enjoined from enacting, maintaining or

13 implementing any policy or engaging in any practice or procedure that discriminates against

14 African Americans, Asian Americans, or Latinos on the basis of race, color and/or national

15 origin.

16

2. Abercrombie is hereby enjoined from enacting, maintaining or

17 implementing any policy or engaging in any practice or procedure that discriminates against

18 women on the basis of gender.

19

3. Abercrombie is hereby enjoined from enacting, maintaining or

20 implement ing any policy or engaging in any practice, conduct or procedure that retaliates or has

21 the purpose of retaliating against any future, current or former employee or applicant of

22 Abercrombie because he or she opposed discrimination on the basis of race, color, national origin

23 or gender; filed a charge of discrimination on the basis of race, color, national origin or gender;

24 testified, furnished information or participated in any manner in any investigation, proceeding, or

25 hearing in connection with any charge or complaint of discrimination on the basis of race, color,

26 national origin or gender; testified, furnished information or participated in any manner in

27 connection with the monitoring or implementation of this Decree; or sought and/or received any

28 monetary and/or non- monetary relief pursuant to this Consent Decree.

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1

4. Abercrombie will implement or maintain non-discrimination and non-

2 harassment policies and an internal complaint procedure designed to assure equal employment

3 opportunity.

4

5. Abercrombie will make available to Minority and female associates and

5 applicants the same employment opportunities and terms and conditions of employment,

6 including but not limited to recruitment, hiring, job assignments, and managerial promotions, as

7 Abercrombie affords similarly-situated white male employees.

8

B. Dispute Resolution and Enforcement Procedures.

9

1. The parties agree to the appointment of Hunter Hughes as Special Master.

10 The Special Master may be removed at the joint written request of Lead Counsel, EEOC, and

11 Abercrombie, or by order of the Court upon motion of any party and a showing of good cause that

12 Mr. Hughes should no longer serve as Special Master. In the event that Mr. Hughes becomes

13 unavailable to serve as Special Master for any reason, Lead Counsel, EEOC and Abercrombie

14 will make a good faith effort to select on a joint basis a new Special Master. If Lead Counsel,

15 EEOC and Abercrombie are unable to reach agreement as to a successor Special Master within

16 forty- five (45) days following the date Mr. Hughes becomes unavailable to serve as Special

17 Master, the Court shall appoint a successor Special Master upon motion of Lead Counsel, EEOC

18 or Abercrombie. Lead Counsel, EEOC or Abercrombie may nominate to the Court persons for

19 consideration as a successor Special Master. Lead Counsel, EEOC and Abercrombie shall each

20 have the right to interview any nominated person, and to present argument and evidence to the

21 Court regarding the selection of the successor Special Master.

22

2. The Special Master shall have authority to resolve all disputes arising

23 under the Decree, subject to limitations and standards set forth in the Decree.

24

3. At the request of Lead Counsel, EEOC or Abercrombie, the parties shall

25 use Best Efforts to resolve promptly any differences or any disputes regarding the interpretation

26 or implementation of the Consent Decree.

27

28

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1

4. Lead Counsel, EEOC or Abercrombie shall have the right to initiate steps

2 to resolve any dispute or issue of compliance regarding any provision of the Decree subject to

3 limitations and standards set forth in the Decree.

4

a. If Lead Counsel, EEOC or Abercrombie has good reason to believe

5 that a legitimate dispute exists, the initiating party shall first promptly give written notice to the

6 other parties, including: (a) a reference to all specific provisions of the Decree that are involved;

7 (b) a statement of the issue; (c) a statement of the remedial action sought by the initiating party;

8 and (d) a brief statement of the specific facts, circumstances and any other arguments supporting

9 the position of the initiating party;

10

b. Within thirty (30) days after receiving such notice, the non-

11 initiating party shall respond in writing to the statement of facts and arguments set forth in the

12 notice and shall provide its written position, including the facts and arguments upon which it

13 relies in support of its position;

14

c. Lead Counsel, EEOC and Abercrombie shall undertake good- faith

15 negotiations, including meeting or conferring by telephone or in person and exchanging relevant

16 documents and/or other information, to attempt to resolve the issues in dispute or alleged

17 noncompliance;

18

d. The Special Master, upon motion, may permit Lead Counsel,

19 EEOC or Abercrombie to take post-settlement discovery as provided by the Federal Rules of

20 Civil Procedure, but only as to matters releva nt to the underlying claim of breach, if the Special

21 Master determines that the informal exchange of documents or information has not been

22 sufficient to allow Lead Counsel, EEOC or Abercrombie to present the dispute upon a factual

23 record adequate for a fair determination of the issue;

24

e. If the parties’ good- faith efforts to resolve the matter have failed,

25 and after written notice of an impasse by the moving party to the non- initiating party or parties,

26 Lead Counsel, EEOC or Abercrombie may file a motion with the Special Master, with a

27 supporting brief, requesting resolution of the dispute or the issues of non-compliance, provided,

28

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1 however, that such motion shall be limited to the dispute(s) and/or issue(s) as to which the parties

2 have met and conferred as described in this Section X. B.4.;

3

f. The non- moving parties will have fifteen (15) days to respond to

4 any such motion;

5

g. The Special Master shall attempt within fifteen (15) days after

6 filing of the final brief to resolve the dispute and may schedule a hearing or other proceeding,

7 including an evidentiary hearing, to resolve the matter; and

8

h. Within thirty (30) days of any hearing, the Special Master shall

9 issue a written determination, including findings of fact if requested by any party.

10

5. The provisions of this Section do not prevent Lead Counsel, EEOC or

11 Abercrombie from promptly bringing an issue directly before the Court when exigent facts or

12 circumstances require immediate Court action to prevent a serious violation of the terms of this

13 Decree, which otherwise would be without meaningful remedy. The moving papers shall explain

14 the facts and circumstances that allegedly necessitate immediate action by the Court. Absent a

15 showing of exigent facts or circumstances, the Court shall refer the matter to the Special Master

16 to resolve in accordance with procedures set forth above. If any such matter is brought before the

17 Court requesting immediate action, the other parties shall be provided with appropriate actual

18 notice, and an opportunity to be heard on the motion, under the Local Rules of the Court and the

19 Federal Rules of Civil Procedure. The Court in its discretion may set such procedures for

20 emergency consideration as are appropriate to the particular facts or circumstances, but no such

21 matter may be heard or considered on an ex parte basis.

22

6. All fees and expenses of the Special Master shall be paid by Abercrombie.

23

7. Lead Counsel, EEOC or Abercrombie may appeal a decision of the Special

24 Master to the Court provided that such an appeal is made within fourteen (14) days of receipt of

25 notice of the decision by the Special Master. Any such appeal shall be brought by motion under

26 the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the

27 Special Master shall be affirmed unless the Court determines that the Special Master made clearly

28 erroneous findings of fact or wrongly interpreted or applied the Consent Decree. A party may

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1 seek on appeal any remedy provided by law, provided that such remedy is consistent with the

2 provisions of this Decree.

3

8. Only Lead Counsel, EEOC or Abercrombie shall have standing to move

4 the Court to enforce, apply, or modify this Decree. Any individual concerned about

5 Abercrombie’s compliance with this Decree may so notify Lead Counsel and/or the EEOC and

6 request that they examine Abercrombie’s compliance and seek such relief, if any, as may be

7 appropriate.

8

9. In the event that any party seeks to utilize the dispute resolution procedure

9 set forth in Section X.B, then each party shall bear its own attorneys’ fees, costs and expenses for

10 all work performed through resolution by the Special Master. In the event that any party seeks to

11 appeal any decision of the Special Master, then the prevailing party in such matter shall be

12 entitled to recover reasonable attorneys’ fees, costs and expenses incurred in such appeal from the

13 other party, consistent with applicable standards under Title VII. Whether and to what extent any

14 party is a prevailing party and awarded fees and expenses shall be determined in the sole and

15 absolute discretion of the Court. This provision shall not apply to the EEOC, as Abercrombie and

16 the EEOC mutually agree not to seek fees under this Section from each other.

17

C. Marketing.

18

1. Abercrombie believes that the artistic aspect of its marketing materials is a

19 critical factor driving the success of Abercrombie and its brand. As a company committed to

20 achieving diversity in its store associates, as reflected in the other terms of this Decree,

21 Abercrombie will reflect diversity, as reflected by the major racial/ethnic minority populations of

22 the United States, in its marketing materials (taken as a whole). Lead Counsel and/or the EEOC

23 may assert that Abercrombie has not met its commitment under this paragraph for the following

24 purposes only:

25

a. In the event that, at the end of the twenty- four (24) month period

26 following the Approval Date, the Applicant Rate for any Minority group is lower than such

27 group’s interim Benchmark for the fourth six- month period, Lead Counsel and/or the EEOC may

28 assert that this was caused by a chilling of applicant flow caused in part by not meeting the

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1 commitment in paragraph 1 of this Section. Any such assertion, and Abercrombie’s response

2 thereto, may be considered by the Special Master. If the Special Master accepts the assertio n of

3 Lead Counsel and/or the EEOC, then the sole remedy shall be that the applicable interim

4 Benchmark shall remain in effect unless and until the applicable Applicant Rate exceeds the

5 applicable interim Benchmark.

6

b. In the event that Abercrombie seeks to obtain early termination of

7 this Decree, under Section VI.B. hereof, and in the event that Lead Counsel and/or the EEOC

8 seeks to challenge such early termination, Lead Counsel and/or the EEOC may assert that

9 Abercrombie has not met its commitment in paragraph 1 of this Section. Any such assertion, and

10 Abercrombie’s response thereto, may be considered by the Special Master and/or the Court, along

11 with Abercrombie’s meeting or failing to meet other provisions of the Decree, in deciding

12 whether to grant Abercrombie’s request for early termination of the Decree.

13

2. Nothing in this Section shall limit the scope of the Monitor’s discretion

14 under Section XVI.A.2. of this Decree in evaluating compliance (including barriers to

15 compliance) with any of the objectives of the Decree. However, nothing in this Section or

16 otherwise in this Decree shall be deemed to provide Lead Counsel, the EEOC, the Monitor, the

17 Special Master, or the Court with the authority or ability to contest, challenge, alter, or seek to

18 alter Abercrombie’s marketing materials or the selection of photographs or models therefor.

19

3. Marketing materials include specifically, but not exclusively: quarterly

20 magazines and similar materials, shopping bags, store posters and video, website, A&F TV, and

21 purchased advertising.

22 XI. 23 24

ABERCROMBIE’S INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT AND DIVERSITY PRACTICES
A. Creation of Office of Diversity.

25

1. If Abercrombie has not already done so, then within thirty (30) days of the

26 Approval Date, Abercrombie shall create an Office of Diversity headed by a corporate executive

27 with the title of Vice President (“Diversity VP”). The Diversity VP shall report directly to the

28 Chief Executive Officer (CEO) or the Chief Operating Officer (COO) of Abercrombie.

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1

2. Abercrombie shall appoint a person to serve as Diversity VP no later than

2 sixty (60) days after the Approval Date. In the event that the position of Diversity VP becomes

3 vacant, Abercrombie shall appoint a successor as soon as practicable after the position becomes

4 vacant, and in any event, if the position remains vacant for sixty (60) days, Abercrombie will

5 retain a search firm to search for a successor, and will appoint an interim Diversity VP who will

6 be charged with temporarily performing the functions of the position. The following procedures

7 shall apply in selecting the Diversity VP:

8

a. Abercrombie shall use Best Efforts to appoint an individual who

9 will be effective in carrying out the duties and responsibilities set forth in Section XI.A.3.

10

b. Abercrombie will use a minority-owned search firm, or a minority

11 from a majority-owned search firm, to identify potential candidates for the Diversity VP position.

12 Abercrombie will identify the search firm or individual to Lead Counsel and the EEOC. Prior to

13 appointing an individual for the Diversity VP position, Abercrombie shall provide Lead Counsel

14 and EEOC with a resume of the individual whom Abercrombie intends to appoint to the position.

15 Within ten (10) days of receiving the resume, Lead Counsel and/or the EEOC may provide the ir

16 views to Abercrombie as to the individual’s qualifications and suitability for the Diversity VP

17 position. The decision as to which individual to select for the position shall be solely

18 Abercrombie’s and is not subject to further review under Section X.

19

3. The Diversity VP shall use Best Efforts to ensure Abercrombie’s

20 implementation and compliance with the provisions of this Decree, including the following:

21

a. Monitoring and implementation of any required changes to human

22 resources systems;

23

b. Monitoring and implementation of the Benchmarks provided for

24 under the Decree;

25

c. Overseeing the development and implementation of all training and

26 education programs to be provided under the Decree;

27

d. Submitting progress reports and other monitoring and reporting

28 material provided for in the Decree;

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1

e. Overseeing the investigation, collection, tracking, and appropriate

2 resolution of complaints of unlawful discrimination submitted under Abercrombie’s Internal

3 Complaint Procedure (described herein, in Section XI.D.); and

4

f. Overseeing the development of all recruiting programs to be

5 provided under this Decree and monitoring the implementation of such programs.

6

4. Abercrombie will use Best Efforts to provide such staff, funds, and other

7 resources to the Diversity VP as are necessary to discharge Abercrombie’s obligations under the

8 Decree.

9

5. Upon completion of the Internal Complaint Procedure investigation, the

10 Diversity VP shall have the authority to recommend appropriate action to be taken and/or

11 monetary payment to be made to any individual who has submitted a complaint of unlawful

12 discrimination or of a violation of the Decree.

13

B. Notice and Posting.

14

1. Within ten (10) days of the Approval Date, Abercrombie shall post in

15 conspicuous places where employee notices are posted in each of its stores and corporate offices,

16 the Notice attached hereto as Exhibit B. The Notice shall remain posted in each such location

17 (and in any new stores or corporate offices) for the duration of this Consent Decree. In addition,

18 the Notice shall be published every four (4) months with the HR 411 Bulletin for the duration of

19 this Consent Decree. In connection with each Semi-Annual Progress Report, Abercrombie shall

20 certify that the Notice has been posted and remained posted as required above during the

21 preceding six (6) month period.

22

2. Abercrombie shall also include within its Employee Handbook or

23 otherwise provide to each new employee, the following statement or its equivalent: “In 2004,

24 Abercrombie voluntarily entered into a Decree, agreeing to undertake actions that demonstrate its

25 strong commitment to diversity and equal employment opportunity. Each store has a posted

26 notice regarding this decree, and a summary and copy of the Consent Decree are available at

27 [domain name].”

28

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1

C. EEO and Diversity Training.

2

1. During the Term of the Decree, Abercrombie shall provide training on

3 equal employment opportunity and compliance with the provisions of the Decree to Managers-In-

4 Training, Assistant Managers, Store Managers and General Managers, to include the following

5 topics: (1) compliance with the Decree; (2) equal employment opportunity; (3) federal, state and

6 Company prohibitions of unlawful discrimination and retaliation; (4) diversity issues; and

7 (5) other topics that will encourage equal employment in recruiting, hiring, assigning, promoting,

8 and retaining minorities and females. Such training may be delivered by computer program, live

9 “discussion” format, video format, written materials, or any combination of these or other formats

10 tailored to be effective in communicating the material, provided, however, that such training as

11 occurs within the first twelve months following the Approval Date shall not be provided to

12 participants solely through written materials. No less than two hours shall be devoted to training

13 on these topics for each participant within four months following (a) the Approval Date, or (b) the

14 date of the participant’s hiring as a Manager in Training, or promotion to an Assistant Manager,

15 Store Manager, or General Manager position, whichever occurs later. In addition, during the

16 Term of the Decree, Abercrombie shall provide (on a group or individual basis) at least two hours

17 of additional training described above to Assistant Managers, Store Managers, and General

18 Managers every twelve months after the Assistant Managers, Store Managers, and General

19 Managers last received such training (on a group or individual basis).

20

2. During the Term of the Decree, Abercrombie shall provide training on

21 equal employment opportunity and compliance with the provisions of the Decree to all District

22 Managers, Regional Managers, and salaried exempt employees in the departments of Store

23 Administration, Store Communications, Security, Stores HR, Store Operations, and Store

24 Control, to include the following topics: (1) compliance with the Decree; (2) equal employment

25 opportunity; (3) federal, state, and Company prohibitions of unlawful discrimination and

26 retaliation; (4) diversity issues; and (5) other topics that will encourage equal employment

27 recruiting, hiring, training, promoting, and retaining minorities and females. Such training may

28 be delivered by computer program, live “discussion” format, video format, written materials, or

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1 any combination of these or other formats tailored to be effective in communicating the material,

2 provided, however, that such training as occurs within the first twelve months following the

3 Approval Date shall not be provided to participants solely through written materials. No less than

4 two hours shall be devoted to the training on these topics for each participant within four months

5 following (a) the Approval Date, or (b) the date of the participant’s promotion to District

6 Manager or Regional Manager position, whichever occurs later. In addition, during the Term of

7 the Decree, Abercrombie shall provide (on a group or individual basis) at least two hours of

8 additional training as described above to District Managers, Regional Managers, and salaried

9 exempt employees in the departments of Store Administration, Store Communications, Security,

10 Stores HR, Store Operations, and Store Control, every twelve months after the District Managers,

11 Regional Managers, and corporate employees last received such training. Provided further that if

12 Abercrombie holds a meeting of District and/or Regional Managers in order to conduct training,

13 then at least one hour of the training described above shall be done in live “discussion” format at

14 such meeting.

15

3. Within thirty (30) days following the Approval Date, Abercrombie will

16 train its human resources associates who have substantive responsibilities related to compliance

17 with fair employment laws, and the practices and procedures established by this Decree. New

18 human resources associates shall receive such training within thirty (30) days of their date of

19 entry into such positions. Such training shall include, but not be limited to: (a) federal and state

20 equal employment opportunity laws, including but not limited to the general provisions of these

21 laws, the bases on which discrimination is prohibited under these laws, the identity, roles and

22 responsibilities of agencies established to enforce these laws, and the principles and objectives

23 underlying these laws; (b) the application of equal employment opportunity to typical

24 employment situations, including but not limited to recruiting, hiring, job assignment, managerial

25 promotion, and other career advancement opportunities, and general recruiting, hiring and

26 supervision without engaging in racial, ethnic or gender stereotyping; (c) the provisions and

27 requirements of the Decree; (d) the Internal Complaint Procedure; (e) the role and responsibility

28 of the human resources staff; and (f) following up EEO complaints and investigations (including,

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1 but not limited to, addressing potential or alleged retaliation, working with the complainant, and

2 appropriate discipline and other remedial measures).

3

4. The training described in this section may be held in conjunction with other

4 Company business, at Abercrombie’s discretion, and may be organized geographically in such

5 fashion as Abercrombie deems appropriate.

6

5. Abercrombie will provide Lead Counsel and the EEOC with the proposed

7 plan for training discussed in Sections XI.C. 2, 3 and 4 in order to provide an opportunity for

8 comment. Lead Counsel and the EEOC will provide comments, if any, wit hin twenty-one (21)

9 days of receipt. Abercrombie shall respond to such comments within fifteen (15) days of receipt.

10 If the parties cannot agree on the proposed plan for training, any disputes will be submitted to the

11 Special Master for resolution. The proposed plan for training will be presumed to be acceptable

12 unless Lead Counsel and/or EEOC demonstrate that the proposed plan for training is improper.

13

D. Internal Complaint Procedure.

14

1. If Abercrombie has not already done so, then within thirty (30) days of the

15 Approval Date, Abercrombie shall develop an Internal Complaint Procedure to provide for the

16 filing, investigation and, if appropriate, remedying of complaints of discrimination or retaliation

17 by associates or applicants for employment on the basis of race, color, national origin or gender,

18 or where a violation of this Decree has occurred or is alleged. Abercrombie will implement the

19 Internal Complaint Procedure within sixty (60) days of the Approval Date. Abercrombie will

20 provide Lead Counsel and EEOC with the proposed Internal Complaint Procedure in order to

21 provide an opportunity for comment regarding the proposed procedure. Lead Counsel and the

22 EEOC will provide comments, if any, within twenty-one (21) days of receipt of the Internal

23 Complaint Procedure. Abercrombie shall respond to such comments within fifteen (15) days of

24 receipt. If the parties cannot agree on the Internal Complaint Procedure, any disputes will be

25 submitted to the Special Master for resolution. The Internal Complaint Procedure will be

26 presumed to be acceptable unless Lead Counsel and EEOC demonstrate that the proposed Internal

27 Complaint Procedure is improper. Any decision of the Special Master is final and not subject to

28 appeal.

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1

2. The Diversity VP shall be responsible for oversight of:

2

a. publicizing the availability of this Internal Complaint Procedure;

3

b. tracking and collecting all complaints filed thereunder;

4

c. investigating and resolving such complaints in a timely and

5 effective manner; and

6

d. retaining records regarding the resolution of all such complaints.

7

3. The internal complaint procedure shall incorporate the following elements:

8

a. A policy describing how investigations will be conducted, to be

9 included in the Associate Handbook;

10

b. A prompt commencement and thorough investigation by a person

11 trained to conduct such investigations who is not connected with the complaint;

12

c. A statement that an investigation should include interviews of all

13 relevant witnesses, including the complainant, and reviews of all relevant documents;

14

d. A written record of all investigatory steps, and any findings and

15 conclusions, and any actions taken;

16

e. Provision for the reasonably prompt resolution of such complaints;

17

f. An opportunity for the complainant to review and respond to

18 tentative findings, except in those circumstances in which it is necessary to take immediate

19 action;

20

g. Confidentiality of the complaint and investigation to the extent

21 possible;

22

h. Appropriate communication of the final conclusions of the

23 investigation provided to the complainant;

24

i. An appeal procedure to the Vice President of Human Resources, or

25 other appropriate Abercrombie representative, should the complainant be dissatisfied with the

26 results of the investigation; and

27

j. A notice that employees or applicants complaining of

28 discrimination may use the company’s internal complaint procedure and/or may file charges with

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1 the EEOC or state or local Fair Employment Practice (FEP) agencies. The notice shall also state

2 that filing an internal complaint does not relieve the complainant of meeting any applicable

3 deadline for the filing of a charge or complaint with EEOC or state or local FEP agencies.

4

4. Abercrombie may encourage resolution of internal complaints at a local

5 level prior to investigation, but not require such informal resolution. A complainant shall not be

6 required to first report the complaint to a person who is accused of the inappropriate conduct to

7 invoke the Internal Complaint Procedure.

8

5. The Internal Complaint Procedure will permit, but not require, an

9 employee to initiate the complaint process by submitting a written complaint on a form designed

10 for that purpose. Abercrombie shall also set up or maintain a toll- free telephone number to

11 receive complaints and shall designate additional persons at the district level who will be

12 authorized to accept such complaints on behalf of the Company.

13

6. The Internal Complaint Procedure shall be incorporated into the Associate

14 Handbook. Abercrombie shall continue to issue the Associate Handbook to all new store

15 associates.

16

7. Abercrombie will maintain a policy of nondiscrimination and equal

17 treatment, including a policy of zero tolerance for unlawful discrimination, in all of its

18 employment practices.

19

8. The Internal Complaint Procedure is not intended to supplant the right of

20 any employee to file a charge or complaint of discrimination or retaliation under any available

21 municipal, state, or federal law.

22

9. Abercrombie shall publish with the Internal Complaint Procedure the

23 following elements that will be included in the procedure:

24

a. A statement that it is unacceptable to retaliate against any associate

25 for use of the Internal Complaint Procedure, for assisting in the investigation of a complaint, or

26 for otherwise assisting in the utilization of the procedure. Abercrombie reserves the right to take

27 disciplinary action against an associate who intentionally provides false information in connection

28 with the procedure.

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1

b. A statement that if an allegation of discrimination or retaliation

2 against a manager or other associate is substantiated, then such conduct will result in appropriate

3 discipline, up to and including discharge.

4

E. Performance Evaluations.

5

1. If Abercrombie has not already done so prior to the Approval Date, it shall

6 revise its performance evaluation forms for Assistant Managers, Store Managers, General

7 Managers, District Managers, and Regional Managers in order to include as measures of

8 performance: (1) compliance with Abercrombie’s Equal Employment Opportunity Policy and

9 Discrimination and Harassment Policy; (2) attainment and management of diversity in the

10 workplace; and (3) efforts to meet Benchmarks and to comply with other provisions of the

11 Decree. The results of such evaluation factors shall have a meaningful impact upon

12 compensation and/or bonus calculation.

13

2. At least thirty (30) days prior to implementation of the performance

14 evaluation forms described in Section XI.D.1, Abercrombie will provide Lead Counsel and the

15 EEOC with the proposed revisions in order to provide an opportunity for comment regarding the

16 revisions. Lead Counsel and the EEOC will provide comments, if any, within twenty-one (21)

17 days of receipt of the proposed revisions. Abercrombie shall respond to such comments within

18 fifteen (15) days of receipt. If the parties cannot agree on the proposed revisions, any disputes

19 will be submitted to the Special Master for resolution. The proposed revisions will be presumed

20 to be acceptable unless Lead Counsel and/or EEOC demonstrate that the proposed revisions are

21 improper. Any decision of the Special Master is final and not subject to appeal.

22 XII. JOB ANALYSIS, MINIMUM ELIGIBILITY REQUIREMENTS, JOB CRITERIA,

RECRUITMENT, HIRING, JOB ASSIGNMENTS AND MANAGERIAL

23

PROMOTION AND STAFFING

24

A. Job Analysis and Job Criteria.

25

1. The parties stipulate and agree upon Abercrombie’s retention of Kathleen

26 Lundquist, a professional industrial organizational psychologist, to develop a written job analysis

27 and job-related criteria for each in-store store position.

28

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1

2. No later than four (4) months after the Approval Date, in consultation with

2 the industrial organizational psychologist, Abercrombie shall develop selection criteria for in-

3 store positions, including Minimum Eligibility Requirements that are job related and consistent

4 with business necessity to the extent required by Title VII. Selection criteria shall be subject to

5 challenge under Section X of this Decree only if a particular position’s selection criteria, taken

6 collectively, cause adverse impact in selection rate for African Americans, Asian Americans,

7 Latinos, or women. If the selection criteria cause such adverse impact and are challenged under

8 Section X of this Decree, the selection criteria shall be affirmed if Abercrombie shows that it has

9 used Best Efforts to determine whether alternative job-related selection criteria or whether an

10 alternative use of job-related selection criteria has less adverse impact and would be equally

11 predictive of job performance.

12

3. Abercrombie will not use as a criterion for store positions any of the

13 following: enrollment in a target college, participation in college fraternity or sorority activities

14 generally, participation in particular fraternities or sororities, participation in particular athletic

15 activities, or gender. Abercrombie will not use enrollment in college as a Minimum Eligibility

16 Requirement for non- management store positions.

17

4. Abercrombie will provide Lead Counsel and the EEOC with the job

18 analyses, including Minimum Eligibility Requirements, and job-related criteria in order to

19 provide an opportunity for comment. The content of the job analyses and job-related criteria

20 prepared pursuant to Section XII.A.1. will not be subject to review under Section X of this

21 Decree.

22

B. Recruitment and Hiring.

23

1. No later than four months after the Approval Date, Abercrombie, in

24 consultation with the industrial organizational psychologist, shall develop and implement a

25 written Recruitment and Hiring Protocol to recruit and hire job applicants for all hourly in-store

26 positions and the Manager- in-Training position. The Recruitment and Hiring Protocol shall

27 require that Abercrombie affirmatively seek out applications from qualified African Americans,

28 Asian Americans, and Latinos of both genders.

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1

2. Abercrombie’s recruitment and operations materials will reflect diversity in

2 race, color, national origin and gender in the United States, including the use of African

3 Americans, Asian Americans and Latino models of both genders.

4

3. The Recruitment and Hiring Protocol shall prohibit Abercrombie from

5 discouraging the submission of an application by any qualified person, or discarding or otherwise

6 diverting any application submitted. In addition, the Recruitment and Hiring Protocol shall

7 instruct Managers to make available and accept applications for Manager- in-Training at all of the

8 places and through all of the means that applications for Brand Representative are made available

9 and received.

10

4. The Recruitment and Hiring Protocol shall require clear and concise

11 written job descriptions for each in-store non- managerial position and the Manager-in- Training

12 position.

13

5. Job descriptions will be made available to anyone who requests them, and

14 non- management job descriptions will be made available in a single package so that potential

15 applicants are made aware of the differences among positions.

16

6. The Recruitment and Hiring Protocol will contain instructions for

17 dissemination of applications, the conduct of structured interviews, programs to train involved

18 staff, hiring decisions, documentation, and the hiring process generally.

19

7. The Recruitment and Hiring Protocol shall instruct Managers that Minority

20 associates shall not be disproportionately assigned involuntarily to any particular positions on the

21 basis of race or national origin.

22

8. Within sixty (60) days of the adoption of the Recruitment and Hiring

23 Protocol and continuing every twelve (12) months thereafter, Abercrombie will use Best Efforts

24 to train all involved staff in the conduct of structured interviews and other elements of the

25 Recruitment and Hiring Protocol.

26

9. Abercrombie will provide Lead Counsel and the EEOC with the

27 Recruitment and Hiring Protocol and the job descriptions in order to provide an opportunity for

28 comment regarding the adequacy of the Recruiting and Hiring Protocol. If the parties cannot

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1 agree on the Recruitment and Hiring Protocol, any disputes will be submitted to the Special

2 Master for resolution and the Recruitment and Hiring Protocol shall be affirmed by the Special

3 Master unless Lead Counsel and /or the EEOC demonstrate that said protocol is clearly improper

4 and not in accordance with accepted industrial organizational psychologist professional standards.

5 Any decision of the Special Master is final and not subject to appeal.

6

C. Managerial Promotions.

7

1. Abercrombie will use Best Efforts to promote African Americans, Latinos,

8 Asian Americans and women at the following rates: Beginning in the second six- month period,

9 Abercrombie shall use its Best Efforts to promote women and members of each Minority Group

10 to positions of Assistant Manager and Store Manager/General Manager in a proportion that is no

11 less than the specific group’s proportion of the available feeder pool. The appropriate available

12 feeder pool for Assistant Managers consists of all incumbent Managers-in- Training. The

13 appropriate available feeder pool for Store Manager/General Manager consists of all incumbent

14 Assistant Managers. The measur ing date of incumbents in the available feeder pool shall be the

15 last day of the preceding six- month period. For this set of Benchmarks only, if Abercrombie

16 promotes women and African Americans, Latinos, and Asian Americans to such positions in a

17 proportion that deviates by no more than two standard deviations from the specific group’s

18 proportion of the available feeder pool, Abercrombie shall be deemed to have achieved its

19 promotion Benchmarks.

20 XIII. AFFIRMATIVE RECRUITING EFFORTS

21

A. Diversity Recruiters.

22

In the first six months of the Decree, if not before, Abercrombie will hire and maintain at

23 least ten (10) full- time diversity recruiters who will be based in major metropolitan areas and will

24 be charged with recruiting Minority applicants, including female applicants of each Minority,

25 who meet Minimal Eligibility Requirements, into in-store positions. No later than twelve months

26 after the Approval Date, Abercrombie will hire and maintain an additional fifteen (15) full- time

27 diversity recruiters. Abercrombie will use Best Efforts to ensure that its recruiters themselves

28 reflect diversity in race/national origin and gender. Abercrombie will consider both external and

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1 internal candidates for recruiter positions. Abercrombie will provide the resumes of the diversity

2 recruiters to Lead Counsel and the EEOC. If Abercrombie has met the Benchmarks set forth in

3 Section XIV for the first thirty (30) months of the term of this Decree, Abercrombie shall have

4 the right to petition the Special Master, and if necessary the Court, for modification of this

5 provision.

6

B. Advertisements.

7

During the Term of the Decree, Abercrombie will advertise for in-store employment

8 opportunities in periodicals or other media that target African Americans, Asian Americans,

9 and/or Latinos of both genders. Abercrombie will provide a list of media publications in which

10 advertisements were placed to Lead Counsel and the EEOC on an annual basis.

11

C. Recruiting Events.

12

During the Term of the Decree, Abercrombie will attend Minority job fairs and Minority

13 recruiting events that are attended by African Americans, Asian Americans, and/or Latinos of

14 both genders.

15

D. Diversity Consultant.

16

During the Term of the Decree, Abercrombie will utilize a diversity consultant whose

17 identity will be made known to Lead Counsel and the EEOC. The diversity consultant will

18 conduct diversity/inclusion training for all field based managers and selected home office

19 personnel. The diversity consultant will also, in conjunction with the VP of Diversity, aid in

20 identifying sources of qualified Minority candidates. Abercrombie will ensure that its diversity

21 consultant, or any subcontracted consultant, has familiarity with and experience in providing

22 diversity training as to all three of the minority groups – African American, Asian American and

23 Latinos – and gender.

24

E. Documentation.

25

Abercrombie will ensure that its recruiters document their recruiting efforts and that such

26 records are retained for review by the Vice President of Diversity and are available to the

27 monitor. Such documentation shall include, specifically but not exclusively: 1) a description of

28

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1 the placement of advertisements (publication, size, time, duration, targeted audience) and 2) a

2 description of events/fairs attended (place, date, targeted audience).

3 XIV. BENCHMARKS

4

A. General Principles

5

1. Abercrombie shall use Best Efforts to meet the selection benchmarks set

6 forth in this section. These Benchmarks do not establish maximum or minimum rates for the

7 selection of African Americans, Latinos, Asian Americans or women; rather these Benchmarks

8 establish selection rates that Abercrombie will use Best Efforts to achieve.

9

2. In attempting to meet these Benchmarks, Abercrombie shall not be

10 required to select unqualified persons or to displace any incumbent associate from his or her

11 position. These Benchmarks are not quotas; rather, they are Benchmarks designed to afford

12 guidance as to whether Abercrombie is making selection decisions in such a way as to afford

13 equal employment opportunity.

14

3. Abercrombie's failure to achieve a Benchma rk for a particular position or

15 period will not be considered a violation of this Decree unless Abercrombie has failed to use Best

16 Efforts to meet the Benchmark. Should Abercrombie demonstrate that the proportion of good

17 faith offers made to applicants of a particular group as compared to all applicants was at least as

18 high as the Benchmark percentage, such evidence will conclusively establish that the Benchmark

19 was met.

20

4. Unless otherwise specified, achievement of the Benchmarks will be

21 calculated on a semi-annual basis and based on companywide employment data.

22

5. Failure to achieve a Benchmark by a fraction of a person shall not be

23 deemed to constitute a failure to achieve a Benchmark under the Decree.

24

6. Abercrombie shall use voluntary self- identification to identify the race and

25 gender of applicants and employees. No party shall influence an applicant’s or employee’s self-

26 identification. Absent clear applicant or employee error, no applicant or employee shall be

27 permitted to change his or her identified race or ethnicity.

28

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1

B. Interim Hiring Goals

2

1. Interim hiring Benchmarks shall be established for Benchmark Positions.

3

2. Abercrombie shall monitor, by applicant self- identification, applicant flow

4 of African Americans, Asian Americans, Latinos and women.

5

3. “Applicant Rate” shall be the actual applicant flow rate of a group as

6 measured on a six- month basis.

7

4. “Maintenance Level” shall be the proportion of Asian Americans hired

8 compared to all groups hired in a position as of the Preliminary Approval Date of this Decree.

9

5. “Percentage Level” for African-Americans shall be six-and-a-half percent

10 (6.5%) for the second six- month period, seven-and-a-half percent (7.5%) for the third six- month

11 period, and nine percent (9%) for the fourth six- month period.

12

6. “Percentage Level” for Latinos shall be seven percent (7%) for the second

13 six-month period, eight percent (8%) for the third six- month period, and nine percent (9%) for the

14 fourth six- month period.

15

7. “Percentage Level” for women shall be fifty-three percent (53%) for the

16 second six- month period, fifty- three percent (53%) for the third six- month period, and fifty-three

17 percent (53%) for the fourth six- month period.

18

8. The first six- month period begins at the beginning of the month following

19 the Approval Date.

20

9. Brand Representative Position.

21

Abercrombie will use Best Efforts to meet the following interim hiring

22 goals:

23

a. First six- month period:

24

African American: five percent (5%);

25

Latinos: six percent (6%);

26

Asian Americans: Maintenance Level; and

27

Women: fifty-three percent (53%).

28

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1

b. Second six- month period:

2

African American: the greater of Percentage Level of six-and-a-half

3

percent (6.5%) or Applicant Rate, as adjusted;1

4

Latinos: the greater of Percentage Level of seven percent (7%) or

5

Applicant Rate, as adjusted;2

6

Asian Americans: the greater of Maintenance Level or Applicant

7

Rate; and

8

Women: the greater of Percentage Level of fifty-three percent

9

(53%) or Applicant Rate;

10

c. Third six- month period:

11

African Americans: the greater of Percentage Level of seven-and-

12

a-half percent (7.5%) or Applicant Rate, as adjusted;3

13

Latinos: the greater of Percentage Level of eight percent (8%) or

14

Applicant Rate, as adjusted;4

15

Asian Americans: the greater of Maintenance Level or Applicant

16

Rate; and

17

Women: the greater of Percentage Level of fifty-three percent

18

(53%) or Applicant Rate;

19

d. Fourth six- month period:

20

African Americans: the greater of Percentage Level of nine percent

21

(9%) or Applicant Rate in the third six- month period;

22 1 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
(3%) the proportion of African Americans hired into the Brand Representative position compared to all Minority
23 individuals hired into that position in the first six-month period. 24 2 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
(3%) the proportion of Latinos hired into the Brand Representative position compared to all Minority individuals
25 hired into that position in the first six-month period.
3 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
26 percent (1.5%) the proportion of African Americans hired into the Brand Representative position compared to all
Minority individuals hired into that position in the second six-month period.
27 4 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
percent (1.5%) the proportion of Latinos hired into the Brand Representative position compared to all Minority
28 individuals hired into that position in the second six-month period.

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1

Latinos: the greater of Percentage Level of nine percent (9%) or

2

Applicant Rate in the third six- month period;

3

Asian Americans: the greater of Maintenance Level or Applicant

4

Rate in the third six- month period; and

5

Women: the greater of Percentage Rate of fifty- three percent

6

(53%) or Applicant Rate.

7

10. Minority Female Goal.

8

In addition to the interim hiring goals set forth in Section XIV.B.9,

9 Abercrombie will use Best Efforts to meet the following interim hiring goals for African

10 American women for the Brand Representative position:

11

a. First six- month period:

12

4.25 percent of all women hired;

13

b. Second six- month period:

14

the greater of 5.5 percent of all women hired or Applicant Rate, as

15

adjusted;5

16

c. Third six- month period:

17

the greater of 6.4 percent of all women hired or Applicant Rate, as

18

adjusted;6

19

d. Fourth six- month period:

20

the greater of 7.6 percent of all women hired or Applicant Rate.

21

Notwithstanding the foregoing, Abercrombie shall be deemed to have

22 achieved this Benchmark if Abercrombie achieves its Benchmark for African Americans and if

23 Abercrombie hires or extends good faith offers to African American women at the greater of the

24 following rates: (1) 45% of Abercrombie’s total African American hires; or (2) the Applicant

25
5 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
26 (3%) the proportion of African American women hired into the Brand Representative position compared to all
minority women hired into that position in the first six-month period.
27 6 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
percent (1.5%) the proportion of African American women hired into the Brand Representative position compared to
28 all minority women hired into that position in the second six-month period.

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1 Rate of African American women. In addition, Abercrombie shall report the number of all Latina

2 and Asian American women hired in the Brand Representative position. If, in two consecutive

3 six-month periods, the number of Latina women or Asian American women hired as a proportion

4 of all women hired into that position is lower to a statistically significant degree than the number

5 of Latina women or Asian American women as a proportion of all women employed in that

6 particular position at the time this Decree takes effect, the parties shall meet and confer regarding

7 the matter.

8

11. Manager- in-Training Position.

9

Abercrombie will use Best Efforts to meet the following interim hiring

10 goals:

11

a. First six- month period:

12

African American: three-and-a-half percent (3.5%);

13

Latinos: three-and-a-half percent (3.5%) ;

14

Asian Americans: three and four-tenths percent (3.4%); and

15

Women: fifty-three (53) percent .

16

b. Second six- month period:

17

African American: four-and-a-half percent (4.5%) or Applicant

18

Rate;

19

Latinos: four-and-a-half percent (4.5%) or Applicant Rate;

20

Asian Americans: three and six- tenths percent (3.6%) or Applicant

21

Rate; and

22

Women: fifty-three percent (53%) or Applicant Rate.

23

c. Third six- month period:

24

African American: five-and-a-half percent (5.5%) or Applicant

25

Rate;

26

Latinos: five-and-a-half percent (5.5%) or Applicant Rate;

27

Asian Americans: three and eight-tenths percent (3.8%) or

28

Applicant Rate; and

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1

Women: fifty-three percent (53%) or Applicant Rate.

2

d. Fourth six- month period:

3

African American: seven percent (7%) or Applicant Rate;

4

Latinos: seven percent (7%) or Applicant Rate;

5

Asian Americans: four percent (4%) or Applicant Rate; and

6

Women: fifty-three percent (53%) or Applicant Rate.

7

12. Notwithstanding the foregoing provisions XIV.B.9.-11., a rebuttable

8 presumption shall arise that Abercrombie has exercised its Best Efforts to meet the Minority

9 interim hiring goals for a particular six- month period if (i) Abercrombie is then in compliance

10 with its obligations under the Decree and (ii) Abercrombie has met Percentage Level interim

11 goals for two of the three Minority groups. However, the rebuttable presumption shall not be

12 deemed to arise if Abercrombie has missed an interim goal for the same group for a second

13 consecutive period. Nor would a rebuttable presumption arise if the interim goal Abercrombie

14 has missed is based upon the Applicant Rate. If the presumption is deemed to arise, and if Lead

15 Counsel and/or the EEOC seek to challenge whether Abercrombie has used Best Efforts to meet

16 the Minority interim hiring goals, Lead Counsel and/or the EEOC shall have the burden of

17 proving Abercrombie’s failure to use Best Efforts by a preponderance of the evidence.

18

C. Applicant Rate Goals

19

After the period when Interim Hiring Goals, described in Part B above, will be used,

20 Abercrombie shall use Applicant Rate in the preceding six- month period as a goal for Benchmark

21 Positions during the remaining term of the Decree. Abercrombie will identify the applicable

22 Applicant Rate to the Monitor, Lead Counsel, and the EEOC within thirty (30) days of the

23 beginning of each six- month period. If Abercrombie has been found to have failed to use Best

24 Efforts to implement Benchmarks, the parties shall meet and confer under the direction of the

25 Special Master to determine when and under what conditions Abercrombie may proceed to use of

26 Applicant Rate goals.

27

28

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1 XV. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS

2

A. Documents To Be Preserved For The Duration of The Decree.

3

Abercrombie shall retain the following employment-related records for the Duration of the

4 Decree or as required by state or federal law, whichever is longer:

5

1. Internal Complaint Procedure;

6

2. Job Analyses for Benchmark Positions;

7

3. Minimum Eligibility Requirements and job-related criteria for Benchmark

8 Positions;

9

4. Recruitment and Hiring Protocol;

10

5. Job descriptions for Benchmark Positions;

11

6. Training plans;

12

7. Semi- Annual Progress Reports; and

13

8. Monitor’s Reports and Executive Summaries.

14

B. Documents to Be Maintained for Two Years.

15

The following documents shall be maintained for two years from the date the document is

16 created, or as required by state or federal law, whichever is longer:

17

1. Performance Evaluations of Managers;

18

2. Training Program Materials.;

19

3. Internal Complaints;

20

4. Recruiting Documentation described in Section XIII.E; and

21

5. Marketing Materials.

22

C. Access to Documents.

23

1. The Monitor shall, upon reasonable notice, be entitled to review all

24 documents, including electronic data in machine-readable form, that are required to be maintained

25 or created by the express terms of this Decree or that are used or referred to by Abercrombie to

26 prepare Semi- Annual Progress Reports, except, however, that the Monitor shall not be entitled to

27 review any such documents that are protected by attorney-client privilege or attorney work

28 product doctrine (“privileged documents”).

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1

2. Lead Counsel and the EEOC may seek access to non-privileged documents

2 described in C.1 above by requesting, with notice to Abercrombie, copies of such documents

3 from the Monitor. Upon request, and notice to Abercrombie, the Monitor shall provide Lead

4 Counsel and the EEOC with access to documents described in Section XV.C.1 unless

5 Abercrombie objects within five (5) days of receipt of notice. If Abercrombie timely objects, the

6 objection shall be resolved by the Monitor. The Monitor shall determine any matter in dispute by

7 requiring that Lead Counsel and the EEOC demonstrate the access requested is relevant to a claim

8 of breach of the Decree.

9

3. All documents required to be maintained by the express terms of the

10 Decree, and all documents that are provided to the Monitor, Lead Counsel, or the EEOC under

11 the terms of the Decree, are and shall be treated as confidential business records. Neither Lead

12 Counsel, the EEOC nor the Monitor shall divulge any such documents to any third party unless so

13 ordered by the Court after notice to Abercrombie and an opportunity for Abercrombie to object to

14 such disclosure and be heard. Upon expiration of this Decree, Lead Counsel, the EEOC and the

15 Monitor shall promptly return to Abercrombie or destroy any and all documents Abercrombie

16 furnished under this Decree. This provision shall not prevent a party from filing otherwise

17 confidential documents with the Court, provided that, either: (a) such documents are filed under

18 seal; or (b) Lead Counsel and/or the EEOC give ten (10) days advance notice to Abercrombie, to

19 permit opportunity to seek a protective order sealing such documents.

20

D. Reporting Schedule.

21

Within sixty (60) days of completion of the initial Benchmark period, and at six (6) month

22 intervals thereafter through the Term of the Decree, Abercrombie shall provide Semi-Annual

23 Progress Reports to the Monitor, Lead Counsel and EEOC on Abercrombie’s compliance with the

24 Decree’s requirements. All such Reports shall be subject to the same confidentiality restrictions

25 described in Section XV.C.3. above.

26

E. Contents of the Semi-Annual Progress Reports.

27

Abercrombie’s Semi- Annual Progress Reports shall include information regarding the

28 following:

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1

1. Progress in achieving each of the Benchmarks described above in

2 Section XIV. This report will include the applicable goal proportion and the actual achieved

3 proportion. Abercrombie will indicate any shortfalls in achieving Benchmarks for the preceding

4 six-month period, will analyze the possible reasons for such shortfall, and will identify plans to

5 facilitate achievement of the Benchmark not met. If applicable, Abercromb ie will analyze

6 possible reasons if any division reflects shortfalls (i.e., less then 80 percent of companywide

7 level) even if companywide Benchmarks are satisfied. (Division is defined as Abercrombie &

8 Fitch, Hollister, abercrombie, or any other concept adopted by Abercrombie during the period of

9 this Decree). In addition, if applicable, Abercrombie will analyze possible reasons that any

10 Benchmark was met through good faith offers only.

11

2. Number and proportion of persons companywide in the preceding six

12 months by race/ethnicity and gender (i.e., African American men, African American women,

13 Asian American men, Asian American women, Latino men, Latina women, white men, white

14 women) extended a good faith offer, hired or promoted (each of which shall be separately

15 reported) into (a) each in-store non-managerial position (e.g., Brand Representative, stocker,

16 overnight); (b) Manager-In-Training; (c) Assistant Manager; (d) Store Manager; and (e) General

17 Manager.

18

3. Number and proportion of persons in the preceding six months extended a

19 good faith offer, hired or promoted (each of which shall be separately reported) by store, state and

20 division by race/ethnicity and gender (i.e. African American men, African American women,

21 Asian American men, Asian American women, La tino men, Latina women, white men, white

22 women) for (a) each in-store non- managerial position (e.g., Brand Representative, stocker,

23 overnight); (b) Manager-In-Training; (c) Assistant Manager; (d) Store Manager; and (e) General

24 Manager.

25

4. Composition of incumbent associates by each store position and by race,

26 ethnicity and gender within each store, state, division and company-wide at the end of the

27 preceding six month period.

28

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1

5. Number and proportion of associates in each in-store non- managerial

2 position (e.g., Brand Representative, stocker, overnight) by race/ethnicity and gender and by

3 store, state, division, and companywide in the preceding six months;

4

6. Attrition or termination of associates from each store position by race,

5 ethnicity and gender and by reason for leaving within each store, state, and division during the

6 preceding six month period;

7

7. Confirmation by District Managers that the poster required by Section XI.B

8 is posted, with copies attached;

9

8. Summary of activity of Diversity V.P. in implementing affirmative

10 recruitment efforts, diversity training and Internal Complaint Procedure, with copies of materials

11 attached;

12

9. Copies of Company materials depicting persons referred to in Section

13 XII.B.2 and an indication of which persons used are or have been Abercrombie associates;

14

10. Copies of posting and publication of job descriptions of in-store positions

15 as required in Section XII.B.5;

16

11. Copies of recruitment documentation referred to in Section XIII.

17

12. The number of hourly in-store employees by race/gender that have been

18 terminated in the preceding six- month reporting period at the direction of home office

19 management excluding human resources.

20

13. Copies of all marketing materials used by the Company in the preceding

21 six months (e.g., print, television or internet advertising; quarterly magazines, store catalogs, and

22 similar materials; store posters; videos; A&F television; shopping bags; etc.).

23

F. Compliance Meetings.

24

1. Within three months of the Approval Date, representatives of Abercrombie,

25 Lead Counsel, and the EEOC, shall confer with the Monitor in order to review the initial

26 implementation of the Decree, Abercrombie’s compliance with the requirements, and other

27 related topics. Thereafter, representatives of Abercrombie, Lead Counsel, and the EEOC, shall

28 confer with the Monitor every six months to review the Semi-Annual Progress Reports required

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1 by Section XV.E above. Within one month of the initial Progress Report and after each such

2 Report submitted thereafter representatives of Abercrombie, Lead Counsel and the EEOC shall

3 confer with the Monitor in order to review the matters described above. Such meetings shall be

4 in person if requested by Lead Counsel, EEOC, or Abercrombie, except that if, after three years

5 after the Approval Date, Abercrombie has met the Benchmarks, then only one compliance

6 meeting each year need be in person.

7

2. The parties will discuss, among other things, identifying any goal not

8 achieved and an analysis of the reasons that the goal was not achieved and plans that would

9 facilitate achievement of the goal. In addition, if applicable, the parties will discuss possible

10 reasons that any Benchmark was met through good faith offers only.

11

3. The Diversity VP shall attend each Compliance Meeting. Other officers,

12 managers, and associates of Abercrombie, whose presence will assist the attainment of the

13 purpose of the Compliance Meetings, may attend as appropriate. Compliance Meetings shall take

14 place in San Francisco (or another mutually agreeable location).

15

G. Status Conference with Court.

16

1. The parties shall conduct an annual status conference with the Court to

17 discuss the status of implementation of the Decree. Abercrombie, Lead Counsel, and the EEOC

18 may be represented at the status conference. No party shall file any document with the Court in

19 conjunction with the status conference, unless directed to do so by the Court.

20 XVI. MONITORING OF IMPLEMENTATION

21

A. Court-Appointed Monitor.

22

1. The parties have stipulated to Fred Alvarez, Esq. of Palo Alto, California

23 for the Court to appoint as a Monitor.

24

2. The Monitor will prepare an Annual Compliance Report (“Report”) on the

25 status of implementation and Abercrombie’s compliance with the terms and objectives of the

26 Decree, as well as an “Executive Summary” of such Report. The Monitor’s Report will include

27 (a) a summary of the requirements of the Decree; and (b) an assessment of Abercrombie’s

28 semiannual compliance reports. The Monitor will review and evaluate Abercrombie’s

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1 compliance with the specific terms of this Decree, and identify any barriers to fulfillment of its

2 objectives. The Monitor will also review and assess the responsibilities and performance of the

3 VP of Diversity.

4

3. The Executive Summary shall set forth the substance of the Monitor’s

5 findings for the applicable reporting period. The parties contemplate that the Executive Summary

6 will reflect the Monitor’s general findings in areas such as, but not limited to, training,

7 recruitment, creation of job analyses and descriptions, and attainment of Benchmarks, all as more

8 specifically covered by the Report, and the parties also contemplate that the Executive Summary

9 will not include specific findings as to, inter alia, the numbers of applications, hires, promotions,

10 or specific occurrences or events. By way of example, the Executive Summary’s discussion of

11 the Company’s training could generally set out the Monitor's findings relative to whether the

12 Company had or had not met its overall training objectives under the Decree over the subject

13 reporting period and, if not, a general statement of matters with respect to which there had been

14 non-compliance and any steps the Company is to take to resolve such matters. The EEOC may

15 respond to any legitimate inquiries by the public, media, or the government, with information

16 contained in the Summary or a copy thereof. Other than this exception to the EEOC, the

17 Executive Summary and information contained therein would be subject to the confidentiality

18 provisions of Section XV.C.3 of this Decree.

19

4. The Monitor will provide the Special Master, Abercrombie, Lead Counsel,

20 and the EEOC with copies of the Report and Executive Summary within ninety (90) days of the

21 anniversary date of the Decree. The Report shall be subject to the confidentiality restrictions

22 described in Section XV.C.3.

23

5. The Monitor shall have reasonable and timely access to relevant books,

24 data (including databases), documents, and other sources of information necessary or appropriate

25 to the exercise of his/her authority, in whatever form they are maintained in the ordinary course of

26 business. This will include, but not be limited to, access to the following insofar as they relate to

27 compliance with equal employment opportunity law and/or the terms of this Decree: (a)

28 applications and related documents; (b) guidelines or training on recruitment, hiring, job

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1 assignment, and managerial promotion; (c) EEO complaints, and any internal complaints; (d)

2 managerial performance evaluations; (e) records of employee discipline; (f) records of attrition

3 and terminations; (g) recruitment materials; and (h) marketing materials.

4

6. The Monitor shall address compliance issues that may arise as follows:

5

a. The Monitor shall categorize compliance issues as Low Level,

6 Intermediate Level, or High Level and treat them as follows:

7

i. Low Level means non-systemic matters, such as compliance

8 issues arising at a single store. Low Level issues may be resolved by Abercrombie and the

9 Monitor without consulting Lead Counsel or the EEOC. Low Level issues that are not resolved

10 by Abercrombie after notice from the Monitor and a reasonable opportunity to cure become

11 Intermediate Level issues. Low Level issues that are resolved shall only be reported by the

12 number of such issues in each region of Abercrombie in a confidential addendum to the Monitor’s

13 report that shall be provided to the parties. In addition, the Monitor shall maintain a log of all

14 resolved Low Level issues that includes, as to each issue, identification of the store involved and

15 a brief description of the nature of the issue and resolution. The Monitor shall provide the Special

16 Master with such log on an annual basis. Neither the Monitor nor the Special Master shall

17 produce such log to Lead Counsel or the EEOC unless and until Lead Counsel and/or the EEOC

18 undertake an enforcement procedure under the Decree in which such information would be

19 relevant, at which point Lead Counsel and/or the EEOC may seek such log through discovery

20 under the standards set forth in Section X.B.4.d above.

21

ii. Intermediate Level means either Low Level issues that the

22 Monitor and Abercrombie are unable to resolve after notice and a reasonable opportunity to cure,

23 or systemic issues that arise out of policy or implementation concerns that affect a significant

24 number of individuals. Prior to reporting Intermediate Level issues, the Monitor shall provide

25 Abercrombie with notice and a reasonable opportunity to cure any Intermediate Level issues.

26 Intermediate Level issues, including any resolution of such issues, will be reported in Compliance

27 Reports and may be the topic of discussion at Section XV.F Compliance Meetings.

28

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1

iii. High Level means situations involving exigent facts or

2 circumstances which require immediate action to prevent a serious violation of the terms of this

3 Decree. In the event a High Level matter shall arise, the Monitor will immediately notify EEOC,

4 Lead Counsel and Abercrombie of the pressing concern. The matter shall be resolved in

5 accordance with the provisions of Section X.B.

6

b. Upon request, and notice to Abercrombie, the Monitor shall provide

7 Lead Counsel and the EEOC with access to documents described in Section XV.C.1 unless

8 Abercrombie objects within five (5) days of receipt of notice. If Abercrombie timely objects, the

9 objection shall be resolved in accordance with the provisions of Section X.B.

10

c. The Monitor shall not report or disclose any action or matter

11 discovered in the course of the Monitor’s function that does not directly relate to the terms of this

12 Decree and Abercrombie’s compliance therewith.

13

7. Nothing herein shall be interpreted to preclude the Monitor from resolving

14 matters informally between the parties.

15

8. The Monitor may audit Abercrombie data for accuracy and/or

16 completeness, or retain an independent expert(s) for this purpose, as he/she deems necessary or

17 appropriate.

18

9. The Monitor may visit Abercrombie stores, as well as corporate offices, as

19 necessary to fulfill his/her responsibilities. The Monitor may also interview and communicate

20 with class members, in-store managers, employees, or other witnesses as necessary to fulfill

21 his/her responsibilities.

22

10. The Monitor may request additional information from Abercrombie and

23 may communicate with the Diversity VP, in a manner that assists the Monitor in the exercise of

24 his/her duties. After reasonable notice, the Monitor may communicate with members of

25 Abercrombie’s senior manage ment. The Monitor may communicate with the Special Master,

26 counsel for Abercrombie, Lead Counsel and the EEOC.

27

11. All fees and expenses of the Monitor shall be paid by Abercrombie.

28

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1 XVII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE

2

A. Establishment of Settlement Fund.

3

1. Abercrombie shall establish a settlement fund (“Settlement Fund”) in the

4 amount of $40,000,000.00 for the purpose of providing individual monetary awards to Class

5 Representatives, Charging Parties and other eligible members of the Settlement Class and funding

6 a portion of the settlement administration expenses, in accordance with the provisions of this

7 Section. The Settlement Fund will be supplemented by the amount described in Section

8 XVII.A.2.

9

2. The Settlement Fund will be supplemented by an amount calc ulated as

10 imputed interest on the $40,000,000.00 as follows:

11

$40,000,000.00 multiplied by .025 (2.5% imputed interest)

multiplied by a fraction (the numerator of which is the number of

12

days between the Preliminary Approval Date, and the date

Abercrombie wire transfers final payment from the Settlement Fund

13

to the Settlement Fund Account as provided in Section XVII.A.4.e.

and the denominator of which is 360 days).

14

15

3. Lead Counsel and the EEOC will select a Claims Administrator. The

16 Claims Administrator will open and administer an interest-bearing account (“Settlement Fund

17 Account”) designated by Lead Counsel and with a unique Taxpayer Identification Number.

18

4. Payments will be made by Abercrombie from the Settlement Fund to the

19 Settlement Fund Account as follows:

20

a. Within seven (7) days of the Preliminary Approval Date,

21 Abercrombie will wire $350,000.00 to the Settlement Fund Account. This amount is intended to

22 cover costs of the mailed notices and expenses associated with the claims procedure.

23

b. Within seven (7) days of the Approval Date, Abercrombie will wire

24 $350,000.00 to the Settlement Fund Account. This amount is intended to cover expenses

25 associated with continued implementation of the claims procedure.

26

c. If there is no Final Approval of the Consent Decree, then the

27 Claims Administrator shall return to Abercrombie any funds remaining in the Settlement Fund

28 Account from the amounts described in Sections XVII.A.4.a and b.

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1

d. Within seven (7) days of Final Approval, Abercrombie will wire the

2 aggregate amount set forth in Exhibit C to the Settlement Fund Account. This amount shall be

3 distributed by the Claims Administrator to the Class Representatives and Charging Parties as set

4 forth in Section XVII.B.1.

5

e. After Final Approval and within seven (7) days after the Claims

6 Administrator has informed Abercrombie in writing that it is prepared to distribute the Settlement

7 Fund to the eligible members of the Settlement Class, Abercrombie will wire an amount to the

8 Settlement Fund Account calculated as follows:

9

$40,000,000.00 as supplemented by the amount calculated in

Section XVII.A.2., less amounts Abercrombie has paid to the

10

Settlement Fund Account in accordance with Sections XVII.A.4.a.,

b., and d., and less the aggregate amount of opt-out credits as

11

calculated under the provisions of Section XVII.D.4.

12

f. Upon payment of the amounts set forth in Section XVII.A.4. from

13 the Settlement Fund to the Settlement Fund Account having been made, Abercrombie will have

14 no further monetary obligation hereunder to Class Representatives, Charging Parties or members

15 of the Settlement Class, including no obligation to pay any funds for distribution to Class

16 Representatives, Charging Parties or members of the Settlement Class; no obligation to pay costs

17 of mailed notices and expenses associated with the claims procedure; and no obligation to pay

18 any other settlement administration costs, except that Abercrombie will be responsible for paying

19 for the published notice of the Settlement Notice as specified in XVII.C.2.

20

5. Nothing herein shall be deemed to require Abercrombie to separate or

21 segregate its assets into a restricted settlement fund. The Settlement Fund Account will constitute

22 a restricted settlement fund, and it will be created, managed and disbursed by the Claims

23 Administrator under the supervision of Lead Counsel and the EEOC. Other than paying funds

24 from the Settlement Fund to the Settlement Fund Account, Abercrombie will have no

25 responsibilities or liabilities with respect to the Settlement Fund Account, its administration, or

26 distributions therefrom.

27

28

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1

B. Distribution of Settlement Fund.

2

1. Class Representatives and EEOC Charging Parties.

3

Each Class Representative and each Charging Party shall receive a liquidated amount as

4 set forth in Exhibit C. This liquidated amount will compensate the Class Representatives or

5 Charging Party for the (a) full settlement of all their claims against Abercrombie; (b) payment in

6 recognition of risks related to being Class Representative or Charging Party; and (c) payment in

7 consideration for the time and effort expended in the Consolidated Litigation or EEOC

8 proceedings. Payment of these sums shall be made by the Claims Administrator no later than

9 seven (7) days after the receipt of the funds described in Section XVII.A.4.d.

10

2. Settlement Class.

11

The remainder of the Settlement Fund Account will be distributed to eligible members of

12 the Settlement Class who do not opt out based on a formula set out in the allocation plan as set

13 forth in Section L. The distribution of the Settlement Fund Account according to the allocation

14 plan will be undertaken by the Claims Administrator. Except as set forth in Section

15 XVII.C.2.below, the fees, costs and expenses of the Claims Administrator shall be paid from the

16 Settlement Fund Account, including the interest on the Settlement Fund Account. All payments

17 to the Claims Administrator shall be approved by Lead Counsel and the EEOC.

18

C. Notice.

19

1. Mailed Notice.

20

Within twenty (20) days following the Preliminary Approval Date, Abercrombie shall

21 provide the Claims Administrator with a computer disk containing the full names, social security

22 numbers, last known addresses and phone numbers, start dates, and, as applicable, end dates of

23 employment with Abercrombie for all in-store hourly and manager employees employed by

24 Abercrombie at any time from February 24, 1999 through the Preliminary Approval Date who are

25 potential Settlement Class members. Within twenty (20) days following the Preliminary

26 Approval Date, Lead Counsel shall provide the Claims Administrator with a computer readable

27 list of all known potential Settlement Class members and their mailing addresses. Prior to the

28 mailing of the Notices, the Claims Administrator will combine these lists of potential Settlement

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1 Class members received from Abercrombie and Lead Counsel and update any new address

2 information for potential class members as may be available through the National Change of

3 Address system. The Claims Administrator shall determine through a computer database search

4 the most recent address that may be obtained for each person on the combined list of potential

5 Settlement Class members. Within sixty (60) days of the Preliminary Approval Date, the Claims

6 Administrator shall mail, via first class postage, Notice of Class Settlement, the Claim Form and

7 the Explanation of Claims Procedure, all in the form approved by the Court in the Preliminary

8 Approval Order, to all known potential Settlement Class members at their last known address and

9 at the most recent address that may have been obtained through the computer database search.

10

2. Published Notice.

11

Abercrombie shall cause to be published the notice of the class settlement in the form

12 approved by the Court in the Preliminary Approval Order, in newspapers and other media set

13 forth in the Preliminary Approval Order. Abercrombie shall pay for the cost of the published

14 notice, not to exceed $600,000.00.

15

D. Objections and Exclusions.

16

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

17

1. Objections.

18

Class members objecting to the terms of the settlement must do so in writing at least thirty

19 (30) days prior to the scheduled Fairness Hearing. The written objection must be sent to the

20 Claims Administrator on or before the date specified in the Preliminary Approval Order. The

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

22 Abercrombie and Lead Counsel within two (2) business days following receipt. The Claims

23 Administrator will also file the original objections with the Clerk of the Court no later than five

24 (5) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain

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

26 under this Decree.

27

28

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1

2. Exclusions.

2

Class members may exclude themselves, or opt-out, of the monetary relief provisions of

3 the class settlement. Any request for exclusion must be in the form of a written “Opt-out”

4 statement sent to the Claims Administrator. Information on how to opt-out of the settlement shall

5 be made available by the Claims Administrator. A person wishing to opt-out must sign a

6 statement which includes the following language:

7

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

monetary settlement and that I will receive no money from the

8

settlement fund created under the Consent Decree entered into by

Abercrombie. I understand that if I am excluded from the class

9

monetary settlement, I may bring a separate legal action seeking

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

10

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

procedure in this case. I also understand that I may not seek

11

exclusion from the class for injunctive relief and that I am bound by

the injunctive provisions of the Consent Decree entered into by

12

Abercrombie.

13

A class member submitting an Opt-out statement shall sign and date the statement and

14 deliver it to the Claims Administrator at least thirty (30) days prior to the scheduled Fairness

15 Hearing, as specified in the Preliminary Approval Order.

16

The Claims Administrator shall date stamp the original of any Opt-out statement and serve

17 copies on both Abercrombie and Lead Counsel within two (2) business days of receipt of such

18 statement. The Claims Administrator will also file the original Opt-out statements with the Clerk

19 of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims

20 Administrator shall retain copies of all Opt-out statements until such time as it has completed its

21 duties and responsibilities under this Decree.

22

3. Rescission of Class Member Opt -Outs

23

The parties recognize that some class members who initially submit Opt-out forms

24 seeking exclusion may, upon further reflection, wish to withdraw or rescind such Opt-out

25 statements. The parties agree that class members shall be permitted to withdraw or rescind their

26 Opt-out statements by submitting a “Rescission of Opt-out” statement to the Claims

27 Administrator. The Rescission of Opt-out statement shall include the following language:

28

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1

I previously submitted an Opt-out statement seeking exclusion from

the class monetary settlement. I have reconsidered and wish to

2

withdraw my Opt-out statement. I understand that by rescinding

my Opt-out I may be eligible to receive an award from the claims

3

settlement fund and may not bring a separate legal action against

Abercrombie seeking damages.

4

5

A class member submitting such a rescission statement shall sign and date the statement

6 and cause it to be delivered to the Claims Administrator no later than the deadline for claims

7 filing period specified in the Preliminary Approval Order.

8

The Claims Administrator shall stamp the date received on the original of any Rescission

9 of Opt-out statement and serve copies to counsel for Abercombie and Lead Counsel no later than

10 (2) days after receipt thereof and shall file the date-stamped originals with the Clerk of the Court

11 no later than five (5) business days prior to the date of the Fairness Hearing. The Claims

12 Administrator shall retain copies of all Rescissions of Opt-Out statements until such time as the

13 Claims Administrator is relieved of its duties and responsibilities under this Decree.

14

4. Opt-Out Credits.

15

In the event any Settlement Class member elects to opt-out in the time and manner set

16 forth in Section XVII.D.2, and does not rescind it, Abercrombie shall be entitled to a credit for

17 each such opt-out. The credit amount will be 125% of the average settlement award of all class

18 members eligible to participate in the monetary settlement fund as determined by the Allocation

19 Plan, Section XVII.L. The aggregate credit for each opt-out shall be calculated and deducted

20 from the Settlement Fund prior to the wire transfer of funds set forth in Section XVII.A.4.e.

21

5. Defendant’s Rescission of Agreement.

22

If the number of individuals who opt out of the Settlement Class in the manner provided

23 in this Decree exceeds one percent (1 %) of the number of the class members who submit

24 completed claim forms, then Abercrombie, at its sole option, shall have the right to void this

25 settlement on the tenth (10th) day after the Court requires individuals to return opt out notices. If

26 Abercrombie exercises this option, all of Abercrombie’s obligations under the Consent Decree

27 shall cease to be of any force and effect, and the Consent Decree and any orders entered in

28 connection therewith shall be vacated, rescinded, canceled, and annulled, and the parties shall

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1 return to the status quo in the Consolidated Litigation as if the parties had not entered into the

2 Consent Decree. In addition, in such event, the Consent Decree and all negotiations, court orders

3 and proceedings relating thereto shall be without prejudice to the rights of any and all parties

4 hereto, and evidence relating to the Consent Decree and all negotiations shall not be admissible or

5 discoverable in the Consolidated Litigation or otherwise.

6

E. Claims Administration.

7

The Claims Administrator shall (1) prepare and mail settlement notices and claim forms to

8 class members; (2) establish and operate a website designed to provide information to and

9 communication with class members; (3) receive and evaluate claims eligibility; (4) seek

10 additional information from claimants, when appropriate; (5) receive and file opt-out statements

11 and objections; (6) respond to questions from potential class members; (7) implement the

12 allocation plan; and (8) maintain a toll- free number for communicating with class members; and

13 (9) any other duties necessary to carry out its responsibilities set forth in this Decree.

14

The Claims Administrator shall make claim forms available to potential class members

15 who submit oral, e- mail, or written requests for claim forms. The Claims Administrator shall

16 mail the requested claim form via first class postage within two (2) business days after receiving a

17 request. If Abercrombie, or its counsel, receives requests for claim forms or for information

18 regarding the class settlement, it shall refer such requestors to the toll- free number established by

19 the Claims Administrator for the purpose of administering this settlement. The requestors shall

20 be informed that any requests for claim forms or information should be directed to the Claims

21 Administrator. The Claims Administrator shall retain copies of all written requests for claim

22 forms and all records of oral or e- mail requests for claim forms until such time as it has

23 completed its duties and responsibilities under this Decree.

24

F. Submission of Claim Forms.

25

Class members who seek recovery of monetary compensation must complete a claim form

26 and cause it to be filed with the Claims Administrator by the claim filing deadline set forth in the

27 Preliminary Approval Order. The claim form must be postmarked on or before such date in order

28 to be considered timely. All claim forms must be signed under penalty of perjury to be

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1 considered. Failure to file a timely claim form, for any reason whatsoever, shall bar the potential

2 class member from having his or her claim considered and from receiving monetary

3 compensation from the Settlement Fund Account. Class members who file a claim form must

4 notify the Claims Administrator of any change of address. A failure to notify the Claims

5 Administrator of a change of address may result in the forfeiture of a monetary award. The

6 Claims Administrator shall be available through the toll- free line and via e- mail through the

7 Claims Website to respond to requests from class members for assistance in completing and filing

8 claim forms. Lead Counsel shall also be available to consult with and provide assistance to

9 potential class members who request assistance in completing their claim forms.

10

G. Dece ased Claimants.

11

Claims may be filed by deceased claimants through representatives of their estate if

12 appropriate documentation is provided. Any claims paid to a deceased claimant shall be made

13 payable to the estate of the deceased claimant.

14

H. Determining Eligibility.

15

The Claims Administrator shall make the determination as to whether a claim form is

16 complete. If it is not complete, the Claims Administrator shall request additional information

17 from the claimant, if it appears that such additional information would complete the Claim Form.

18 Such requests for information shall be in writing and shall specify the information necessary to

19 complete the claim form. The requests for information will be sent via first class mail and inform

20 the claimant that a response must be returned no later than thirty (30) days from the date the

21 request for information was mailed. The claimant must provide the requested information, signed

22 under penalty of perjury, to the Claims Administrator by mail with a postmark no later tha n thirty

23 (30) days from the date of the mailed request for information. Such additional information shall

24 be considered part of the original claim form and will relate back to the original filing date. The

25 failure of a claimant to timely respond to the request for information may result in the denial of

26 the claim.

27

28

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1

I. Late-Filed Claims.

2

For claims received after the filing deadline, the Claims Administrator shall notify late-

3 filing claimants that their claims are untimely and that they are not eligible for any monetary

4 award. The Claims Administrator shall also inform late- filing claimants that they may seek a

5 review of the determination that they filed untimely by requesting the Claims Administrator to

6 reconsider its determination. The Claims Administrator may reverse its determination that a

7 claim was not timely filed only if the claimant proves that the claim form was filed on or before

8 the filing deadline and that the untimeliness determination is erroneous.

9

J. Appeals of Claims Eligibility.

10

Within ninety (90) days of the close of the claims filing period, all ineligible claimants

11 shall receive written notice of their ineligibility for monetary relief. Any claimants wishing to

12 seek review of their ineligibility determinations must do so by returning a written request for

13 review to the Claims Administrator by mail with a postmark no later than twenty-one (21) days

14 from the date of the notice of claim ineligibility. Failure to file a timely request for review shall

15 bar a claimant from challenging a determination of ineligibility.

16

The Claims Administrator shall resolve the requests for review based on the written

17 requests for review and any other documentation or written information submitted by the

18 claimant, or deemed necessary by the Claims Administrator. The Claims Administrator may seek

19 further written information from the claimant as to the basis of their request and may consider the

20 written arguments of Lead Counsel or Abercrombie.

21

The Claims Administrator shall attempt to expeditiously resolve any requests for review

22 within sixty (60) days after the filing of the request for review. The Claims Administrator’s

23 decisions shall be communicated to the claimant in writing and shall be binding and non-

24 appealable.

25

K. Claimant Information Provided by Abercrombie.

26

The parties understand and agree that Abercrombie may possess information that may

27 assist in the determination of eligibility of potential class members for monetary compensation.

28 Abercrombie shall reasonably cooperate in providing such information which Lead Counsel, the

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1 EEOC or the Claims Administrator deems reasonably necessary to assist in determining the

2 eligibility of any class member for monetary relief. Abercrombie shall attempt to provide such

3 information within fourteen (14) days of any written requests for the information.

4

L. Allocation Plan.

5

Other than the Class Representatives whose monetary awards are separately determined,

6 the disbursement of the Settlement Fund Account to eligible class members shall follow the

7 allocation plan described in this section.

8

Each class member who seeks to receive an award must fill out the claim form and supply

9 information related to his or her claim. On the basis of a review of the information supplied, the

10 Claims Administrator shall allocate a certain number of points based upon specific factors related

11 to the claims. The specific factors include length of service with Abercrombie; discrimination

12 claims based on race, national origin or gender in promotion, assignment, hire or termination; any

13 personal injury, such as emotional distress, suffered as a result of the discrimination; and any time

14 or effort devoted to the litigation. The Claims Administrator shall total the points applicable to all

15 eligible claimants, determine each eligible claimant’s proportionate share of the total points, and

16 allocate each eligible claimant’s proportionate share of the Settlement Fund Account.

17

For example, if the amount available for distribution from the Settlement Fund Account to

18 eligible class members is $1,000,000.00, and the Claims Administrator has awarded 10,000 points

19 to eligible class members and if an eligible class member were awarded 10 points, then that class

20 member would receive an award of $1,000.00 since each point would be worth $100.00

21 ($1,000,000.00 ÷ 10,000).

22

M. Distribution of the Monetary Awards.

23

As soon as practicable after making the calculations required by the allocation plan set

24 forth in Section XVII.L, the Claims Administrator shall distribute the monetary awards to eligible

25 class members via first class mail. The Claims Administrator shall only issue the checks in the

26 name of the eligible class members unless Section XVII.F. is applicable. Included with the check

27 due to the eligible claimant will be a statement showing the gross amount of the payment and an

28 itemized statement of all deductions made. Flat rate deductions from gross amounts that are

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1 determined to be wage payments will be made for federal and state income taxes, the employee’s

2 share of social security and medicare tax, and any local income or payroll tax that applies. The

3 Claims Administrator will inform Abercrombie of the employer’s share of all taxes or

4 contributions (i.e., matching social security and medicare tax) required to be paid by Abercrombie

5 and Abercrombie shall timely remit all suc h payments to the Claims Administrator for payment to

6 appropriate taxing authorities.

7

Any amounts designated as interest shall not be subject to withholding and shall be

8 reported, if required, to the IRS on Form 1099-INT. The amounts paid for emotional distress

9 shall not be subject to withholding and shall be reported to the IRS on Form 1099-MISC.

10

The Claims Administrator will be responsible for preparing and filing all appropriate tax

11 filings and reports (except for any unemployment compensation taxes that may be due, which will

12 be the sole responsibility of Abercrombie to calculate and pay), including, but not limited to, W-2

13 and 1099 forms for all eligible claimants and Class Representatives for their payments from the

14 Settlement Fund, as well as any required for the Settlement Fund. The Claims Administrator will

15 also be responsible for reporting and remitting to the appropriate taxing authorities the employer’s

16 share of taxes or contributions required to be paid by Abercrombie in a timely manner after

17 receipt of the amount due for those payments from Abercrombie.

18

N. Allocation of Monetary Awards.

19

The monetary awards shall be allocated 15% to lost wages and 85% to compensatory

20 damages.

21

O. Cy Pres Fund.

22

It is the intention of the parties to completely distribute the funds in the Settlement Fund

23 Account. In the event that checks are returned and the Settlement Fund is not completely

24 distributed for any reason, the remaining sum shall become part of a cy pres fund to be distributed

25 to a non-profit organization or organizations designated by Lead Counsel that assist Minorities or

26 women to obtain equal employment opportunity .

27

28

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1

P. Report from Claims Administrator.

2

Within thirty (30) days of the distribution of the monies from the Settlement Fund, the

3 Claims Administrator shall furnish an accounting of all distributions from the Settlement Fund to

4 the Court with copies to Lead Counsel, the EEOC and Abercrombie.

5 XVIII. ATTORNEYS’ FEES, COSTS AND EXPENSES

6

A. Basis for Award of Fees, Costs and Expenses.

7

1. The parties have agreed that it is appropriate as part of the settlement

8 underlying this Consent Decree for Abercrombie to pay to Class Counsel, on behalf of the Class

9 Representatives and the Settlement Class, reasonable attorneys’ fees, litigation expenses, and

10 costs in this case.

11

2. The Company has agreed to pay Class Counsel an award of reasonable

12 attorneys’ fees, litigation expenses, and costs in the amount of $7,250,000.00 for work performed

13 and costs and expenses incurred through and including the Approval Date. Included in this

14 amount is approximately $400,000.00 for litigation costs and expenses incurred by Class Counsel.

15 This amount fully satisfies any arguable obligation the Company may have to pay attorneys’ fees,

16 litigation expenses, and costs for and on behalf of the Plaintiffs, Class Representatives and the

17 Settlement Class for any and all work performed and costs and expenses incurred through and

18 including the Approval Date.

19

3. The Company also has agreed to pay Class Counsel an amount of

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

21 Class Counsel after the Approval Date pursuant to this Decree. The Company agrees that Class

22 Counsel shall be paid such attorneys’ fees, expenses and costs in the amount of $600,000.00 for

23 work performed and costs and expenses incurred after the Approval Date relating to defense of

24 the Decree, monitoring, administration and implementation, including, without limitation,

25 evaluating possible compliance with this Decree, including the retention of experts to assist in

26 such evaluation, and defense of the Decree. Except as provided in Section X.B.9 for appeals of

27 decisions of the Special Master, this amount satisfies any arguable obligation the Company may

28 have to pay attorneys’ fees, expenses and costs to Class Counsel for any and all work performed

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Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 64 of 77

1 and costs and expenses incurred after the Approval Date of the Decree for the monitoring,

2 administration, implementation and defense of the Decree.

3

4. Nothing herein shall be interpreted to preclude Abercrombie from seeking

4 attorneys’ fees, expenses and costs incurred in litigating enforcement matters according to Title

5 VII law applicable to a prevailing defendant under Section X.B.9. for appeals of decisions of the

6 Special Master.

7

B. Payment of Award.

8

1. Within fourteen (14) days following the Approval Date, Abercrombie shall

9 pay to Lieff, Cabraser, Heimann & Bernstein, LLP one half (½) of the $7,250,000.00 or

10 $3,625,000.00, for litigation-related attorneys’ fees, expenses and costs as set forth in Section

11 XVIII.A.2. Abercrombie shall pay Lieff, Cabraser, Heimann & Bernstein, LLP the remaining

12 amount within fourteen (14) days following the Final Approval Date. Lieff, Cabraser, Heimann

13 & Bernstein, LLP shall have sole responsibility to distribute attorneys’ fees, expenses and costs to

14 other Class Counsel, and if Abercrombie makes such payments to Lieff, Cabraser, Heimann &

15 Bernstein, LLP, no Class Counsel may assert any claim for such payments from Abercrombie. In

16 the event that Final Approval of the Decree is not attained, Lieff, Cabraser, Heimann & Bernstein,

17 LLP shall return to Abercrombie the initial payment of $3,625,000.00 within fifteen (15) days

18 after the non-approval of the Decree becomes final.

19

2. The attorneys’ fees, expenses and costs awarded and agreed to be paid by

20 the Company pursuant to Section XVIII.A.3. shall be paid to Lieff, Cabraser, Heimann &

21 Bernstein, LLP according to the following schedule:

22

Date

Amount

23

Thirty (30) days after the Approval Date

$150,000

24

March 15, 2006

$125,000

25

March 15, 2007

$100,000

26

March 15, 2008

$100,000

27

March 15, 2009

$ 75,000

28

March 15, 2010

$ 50,000

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Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 65 of 77

1 If the Decree is terminated prior to March 15, 2011 pursuant to Section VI.B., Abercrombie shall

2 pay to Lieff, Cabraser, Heimann & Bernstein, LLP all attorneys’ fees listed above that are unpaid

3 as of the date of the Decree is terminated. Such payment shall be made no later than fourteen

4 (14) days after the date the Decree is terminated.

5

IT IS SO ORDERED, ADJUDGED AND DECREED this _____ day of

6 ____________________, 2005.

7

8 9 10 11 Dated: ______________, 2004 12

SUSAN ILLSTON United States District Judge Northern District of California
Respectfully submitted,

13 Thomas A. Saenz

Bill Lann Lee

14 Shaheena Ahmad Simons

Kelly M. Dermody

MEXICAN AMERICAN LEGAL DEFENSE Eve H. Cervantez

15

AND EDUCATIONAL FUND

634 South Spring Street, 11th Floor

Elizabeth A. Alexander (pro hac vice) Jahan C. Sagafi

16 Los Angeles, CA 90014

Nirej S. Sekhon LIEFF, CABRASER, HEIMANN

17

& BERNSTEIN, LLP

275 Battery Street, 30th Floor

18

San Francisco, CA 94111-3339

19 Julie Su Minah Park
20 ASIAN PACIFIC AMERICAN LEGAL CENTER
21 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017
22 Kimberly West-Faulcon
23 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
24 1055 Wilshire Blvd., Suite 1480 Los Angeles, CA 90017
25

Joseph C. Kohn Martin J. D’Urso Hilary Cohen KOHN, SWIFT & GRAF, P.C. One South Broad Street Philadelphia, PA 19107
Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MILLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103

26

27

28

358602.7

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Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 66 of 77

1 Sidney L. Gold Traci M. Greenberg
2 SIDNEY L. GOLD & ASSOCIATES, P.C. 1835 Market Street
3 Philadelphia, PA 19103
4 James F. Keller Zachary Gottesman
5 GOTTESMAN & ASSOCIATES 2121 URS Center
6 36 East 7th Street Cincinnati, OH 45202
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Cleo Fields THE FIELDS LAW FIRM, L.L.C. 2147 Government Street Baton Rouge, LA
Barry L. Goldstein GOLDSTEIN, DEMCHAK, BAUER,
BORGEN & DARDARIAN 300 Lakeside Avenue Oakland, CA 94612

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Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 72 of 77

Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 73 of 77
EXHIBIT A
FULL AND FINAL GENERAL RELEASE OF CLAIMS
The undersigned _______________ agrees to this Full and Final General Release of Claims (“Release”) as follows:
Section 1. Benefits
In consideration of and exchange for this Release, I will receive a payment in a liquidated amount approved by the Court pursuant to the Consent Decree in Gonzalez, et al. v. Abercrombie & Fitch Stores, Inc., et al. ; EEOC v. Abercrombie & Fitch Stores, Inc., et al. and West, et al. v. Abercrombie & Fitch Stores, Inc., et al. (the “Consolidated Litigation”), less applicable withholdings and deductions, in settlement of my claims, and I will receive no other consideration, whether monetary or otherwise. I acknowledge that I will receive no cash payment unless and until I sign this Release.
Section 2. Complete Release
(a) Claims Released: I hereby fully, finally, irrevocably and unconditionally release and discharge Abercrombie & Fitch Stores, Inc., A&F California, LLC, A&F Ohio, Inc. and Abercrombie & Fitch Management Co. (collectively, “the Company”), its officers, directors, agents, employees, managers, insurers, attorneys, successors and assigns (the “Released Parties”) from any and all past and/or present claims, charges, demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs, losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not known, that I have had, now have, or may have from the beginning of time to [the preliminary approval date], including without limitation those arising in any way out of the alleged facts, circumstances and occurrences underlying those allegations of violations of Title VII, Section 1981 and the California FEHA that were asserted or might have been asserted by me or on my behalf in the Consolidated Litigation, or in any and all charges of discrimination filed against the Company and/or the Released Parties by me with the EEOC and/or DFEH. This Release does not include any workers’ compensation claims I may have. This Release is final and shall survive the expiration of the term of the Consent Decree in the Consolidated Litigation.
(b) Unknown Claims: I acknowledge that I may not now know fully the number or magnitude of the claims I may have, and that I may suffer some further loss or damage in some way connected with the subject matter of the Consolidated Litigation, but which is unknown or unanticipated at this time. I have taken these risks and possibilities into account and accept that, nevertheless, this Release covers all claims arising out of or related to the subject matter of the Consolidated Litigation, which, although unknown at the time of the execution of this Consent Decree, may be discovered later. I understand and assume these risks and expressly waive the provisions of California Civil Code § 1542, or any comparable federal or other state statute, which states:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

I expressly waive any right to assert hereafter that any claim was excluded from this Release through ignorance, oversight, or error. It is expressly understood and agreed that this waiver of Civil Code § 1542 and the release and waiver set forth in this Consent Decree are material terms of the agreement and were separately negotiated between the parties.

Section 3. Promises.

(a) Pursuit of Released Claims: Except for the Gonzalez or West Class Action, and any administrative charges filed with respect to the claims asserted therein, I represent and warrant that I have not filed or caused to be filed any lawsuit, complaint, or charge with respect to any Claim that I am releasing herein, and I promise never to file or prosecute a lawsuit, complaint, or charged based on such Claims. I promise never to seek any damages, remedies, or other relief for myself personally (any right to which I hereby waive) by filing or prosecuting a charge with any administrative agency with respect to any such Claim. I promise to request any administrative agency or other body that assumes jurisdiction of any such lawsuit, complaint, or charge to withdraw from the matter or dismiss the matter with prejudice.

(b) Taxes: I acknowledge I am solely responsible for paying any federal, state or local income taxes on amounts I receive because I signed this Release, as well as the employee’s share of F.I.C.A., and will hold the Company harmless with respect to any claims related to the aforementioned tax treatment of the amount paid to me.

(c) Ownership of Claims: I represent and warrant that I have not assigned or transferred any Claim I am purporting to release, nor have I attempted to do so.

(d) Nonadmission of Liability: I agree that neither this Release nor the payment of money to me or to the Class pursuant to the Decree is an admission of guilty or wrongdoing by any of the Released Parties. I acknowledge that the Released Parties do not believe or admit that any of them has done anything wrong, such being expressly denied by all of them.

Section 4. Consideration of Release

I acknowledge that, before signing this Release, I was given a period of at least twenty-one days in which to consider it. I further acknowledge that: (1) I took advantage of as much of this period to consider this Release as I desired before signing it; (2) I carefully read this Release; (3) I fully understand it; (4) I am entering into it voluntarily; (5) I am receiving valuable consideration in exchange for my execution of this Release that I would not otherwise be entitled to receive; and (6) the Company, in writing, encouraged me to discuss this Release with my attorney (at my own expense) before signing it, and that I did so to the full extent I deemed appropriate. I understand that I have seven days within which to cancel this Release after I have

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Case 3:03-cv-02817-SI Document 101-2 Filed 11/12/2004 Page 75 of 77
executed it and must do so by delivery of an executed written revocation to Mark A. Knueve, Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, Columbus, Ohio 43215, within the seven-day period.
Section 5. Miscellaneous
(a) Entire Agreement: This Release may not be modified in any manner, nor may any provision of it or any legal remedy with respect to it be waived, except by a writing signed by both me and an authorized Company attorney. I acknowledge that the Company has made no representations or promises to me, other than those in or referred to by this Release. If any provision in this Release is found to be unenforceable, all other provisions will remain fully enforceable.
(b) This Release binds my heirs, administrators, representatives, executors, successors, and assigns.
Section 6. Interpretation
This Release shall be construed as a whole according to its fair meaning. Unless the context indicates otherwise, the term “or” shall be deemed to include the term “and” and the singular or plural number shall be deemed to include the other. Except to the extent governed by federal law, this Release shall be governed by the statues and common law of the State of California (excluding any that mandate the use of another jurisdiction’s laws).
Executed at ____________, ____, this _____ day of ___________, 2004.
______________________________________________ [Name Printed]

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EXHIBIT B
NOTICE TO ALL ABERCROMBIE EMPLOYEES AND APPLICANTS RE SETTLEMENT OF DISCRIMINATION LAWSUIT
This Notice is being posted pursuant to a Consent Decree entered by the federal court resolving the consolidated class action litigation brought against Abercrombie & Fitch by private plaintiffs and the U.S. Equal Employment Opportunity Commission (EEOC) Case Nos. 03-2817 SI, 04-4730, and 04-4731 (N.D. CA).
In the lawsuits, the plaintiffs asserted that Abercrombie violated Title VII of the Civil Rights Act of 1964, by discriminating against African Americans, Asian Americans, Latinos, females, and females of each of the foregoing minority groups on the basis of race, color, national origin and/or gender in recruitment, hiring, promotion and terms and conditions of employment.
Abercrombie has voluntarily entered into this Decree because the actions it has agreed to undertake demonstrate its strong commitment to diversity and equal employment opportunity.
Abercrombie believes that it has not engaged in any policy or pattern or practice of unlawful discrimination, and that it has not engaged in any other unlawful conduct as alleged in the consolidated litigation. Abercrombie has agreed to:
1) not discriminate against African Americans, Latinos, Asian Americans, women or women of any of the foregoing minority groups on the basis of race, color, national origin and/or gender in recruitment, hiring, promotion or terms and conditions of employment;
2) not retaliate against any person because she or he opposed discrimination on the basis of race, color, national origin, or gender, filed a charge of discrimination on the basis of race, color, national origin, or gender, or asserted any rights under the Consent Decree; and
3) hire a Monitor to ensure Abercrombie's compliance with the terms of the Consent Decree.
A summary and copy of the Consent Decree are available at [domain name].
Abercrombie’s policy and federal law prohibit discrimination in employment on the basis of sex, race, color, religion, national origin, disability, and age. If you believe you have been discriminated against by Abercrombie, you may utilize the Internal Complaint Procedure published in the Associate Handbook by contacting your manager or the Human Resources Department at 614/283-5548. Yo u may also contact the Monitor, [name], at [email address] or by calling _____________ and/or the Equal Employment Opportunity Commission (EEOC) at [email address] or by calling _____________. The EEOC is the federal agency that enforces the federal laws prohibiting discrimination in employment on the basis of sex, race, color, religion, national origin, disability, and age.
This is an Official Notice and must not be defaced or covered. This Notice shall remain posted until __________. If you have any questions about this Notice contact the Monitor or the EEOC at the numbers listed above.
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EXHIBIT C LIQUIDATED AMOUNTS FOR CLASS REPRESENTATIVES AND CHARGING PARTIES

Named Plaintiffs
Chu, Austin Culpepper, David Douglass, Patrice Fight, Eric Gómez-Mont., Juancarlos Gonzalez, Eduardo Grubb, Carla Gutierrez, Encarnacion Hawk, Brandy Lu, Jennifer Montoya, Johan Nguyen, Ivy Ocampo, Anthony Sherrod, Robair Steele, Andre West, Elizabeth Wu, Angeline
Charging Parties Bondurant, Lekisha Dixon, Torrey Elmore, Stanley Greer, Timothy Jason, Eric Noel, Jason
Total (23 individuals)

$17,000 $11,000 $12,000 $13,000 $39,000 $13,000 $17,000 $16,000 $18,000 $21,000 $13,000 $19,000 $19,000 $8,000 $24,000 $9,000 $21,000
$10,000 $12,000 $12,000 $16,000 $8,000 $12,000
$360,000

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 Case 3:03-cv-02817-SI Document 125-1 Filed 04/11/2005 Page 1 of 48

1 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
3 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Thomas A. Saenz (SBN 159430)
8 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
9 AND EDUCATIONAL FUND 634 South Spring Street
10 Los Angeles, CA 90014 Telepho ne: (213) 629-2512
11 Facsimile: (213) 629-0266

Joseph C. Kohn Martin J. D’Urso Hilary Cohen KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Facsimile: (215) 238-1968
Jack W. Lee, Esq. (SBN 071626) Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532) MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108 Telephone: (415) 788-9000 Facsimile: (415) 398-3887

12

Attorneys for Plaintiffs [Additional counsel listed on signature page]

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 EDUARDO GONZALEZ, ANTHONY

Case Nos. 03-2817 SI, 04-4730 and

16

OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GÓMEZ-

04-4731

17

MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT,

NOTICE OF MOTION AND PLAINTIFFS’ MOTION FOR

18

CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS, and ROBAIR

ORDER GRANTING FINAL APPROVAL OF THE

19

SHERROD, BRANDY HAWK and ANDRE STEELE, on behalf of themselves and all others

CONSENT DECREE AND MEMORANDUM OF POINTS AND

20 similarly situated,

AUTHORITIES IN SUPPORT THEREOF

21

Plaintiffs,

Hearing Date: April 14, 2005

22

v.

Hearing Time: 4:00 p.m.

23

ABERCROMBIE & FITCH STORES, INC., A&F Courtroom of Hon. Susan Illston CALIFORNIA, LLC, A&F OHIO, INC., and

24

ABERCROMBIE & FITCH MANAGEMENT CO.,

25

Defendants.

26

27 [Continued on next page] 28
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Case 3:03-cv-02817-SI Document 125-1 Filed 04/11/2005 Page 2 of 48

1
ELIZABETH WEST and JENNIFER LU, 2
Plaintiffs, 3
v. 4
ABERCROMBIE & FITCH STORES, INC., A&F 5 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 6 CO.,

7

Defendants.

8 EQUAL EMPLOYMENT OPPORTUNITY
9 COMMISSION,

10

v.

11 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
12 ABERCROMBIE & FITCH MANAGEMENT CO.
13
Defendants. 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF CONTENTS

2

Page

3 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1

4 I. II.
5 III. 6
7
8 IV.
9
10

INTRODUCTION ...............................................................................................................1
PROCEDURAL BACKGROUND.....................................................................................3
ADEQUATE NOTICE WAS GIVEN TO THE CLASS OF THE PROPOSED CONSENT DECREE AND THE OPPORTUNITY TO OPT OUT. ..................................5
A. Legal Standard .........................................................................................................5
B. Adequate Notice Was Given....................................................................................6
THE PROPOSED CONSENT DECREE SATISFIES THE REQUIREMENTS FOR FINAL APPROVAL BECAUSE IT IS FAIR, REASONABLE, AND ADEQUATE. .......................................................................................................................7
A. The Consent Decree Provides Exceptional Injunctive And Monetary Relief for the Class. ............................................................................................................9

11

B. This Litigation Involved Substantial Potential Risks.............................................10

12

C. The Discovery Completed and the Stage of Proceedings Support Final Approval. ................................................................................................................11

13

D. The Experience and Views of Class Counsel, the EEOC, and Mediator

Support the Proposed Consent Decree...................................................................12

14

E. The Reaction of Class Members Supports the Proposed Settlement .....................13

15 16 V. 17 18

F. The Settlement Is a Product of Extensive, Arm’s-Length Negotiations................14 THE OBJECTIONS ARE WITHOUT MERIT. ................................................................15 A. Objections of Three Minority Class Members with Disabilities. ..........................15 B. Late Objections of Amani J. King and Efe Agindotan. .........................................16 C. Objection of Elizabeth Guleke. ..............................................................................16

19

D. The Objection of Rachel Potter..............................................................................17

1. The Proposed Consent Decree Is Sufficiently Clear..................................18

20

2. The Court Retains Jurisdiction Over the Parties And Has Sole

21

Authority To Modify the Terms of the Consent Decree. ...........................20

3. The Release Is Narrow, Protecting Class Members’ Rights To the

22

Maximum Extent Feasible. ........................................................................21

23

4. Plaintiffs Agree that the Single-Letter Typographical Error Should Be Corrected. .............................................................................................21

24

5. The Monitoring Mechanisms Are Adequate..............................................22

25 VI.
26

6. The 125% Opt-Out Credit Is Reasonable. .................................................23
THE PROPOSED CLASS REPRESENTATIVE AND CHARGING PARTY AWARDS ARE FAIR, REASONABLE, AND ADEQUATE. ........................................23

27

VII.

THE PROPOSED FEE IS LIKEWISE FAIR, REASONABLE, AND ADEQUATE. .....................................................................................................................26

28

A. The Time and Labor Required Were Substantial. ..................................................29

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1

TABLE OF CONTENTS

(continued)

2

Page

3

B. The Questions Involved Were Novel and Difficult. ..............................................30

4

C. The Case Required Significant Skill to Perform the Legal Service Properly. .......30

D. Class Counsel Were Precluded From Other Employment Due to

5

Acceptance of the Case. .........................................................................................30

6

E. The Customary Fee and Awards in Similar Cases, Whether Measured Under the Lodestar Method or the Percentage Method, Support the Fee

7

Application. ............................................................................................................30

1. The fee is reasonable under the lodestar- multiplier method. .....................31

8

2. The fee is also reasonable under the percentage method. ..........................33

9

F. The Contingent Nature of the Fee Supports the Proposed Award. ........................34

10

G. The Time Limitations Imposed by the Client and the Circumstances Support the Fee Award. .........................................................................................35

11

H. The Amount Involved Was Substantial and the Results Obtained Were

Exceptional, Including $40 million for the Class as Well as Robust

12

Injunctive Relief. ....................................................................................................35

13

I. Class Counsel Have a High Degree of Experience, Reputation, and Ability. .......36

J. The Case Was Somewhat Undesirable. .................................................................36

14

K. Class Counsel’s Professional Relationship with the Class Representatives

15

Was Longstanding. .................................................................................................36

CONCLUSION..............................................................................................................................36

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page

3

CASES

4 Alaniz v. California Processors, Inc.,

73 F.R.D. 269 (N.D. Cal. 1976) ...............................................................................................20

5 Amchem Prods., Inc. v. Windsor,

6

521 U.S. 591 (1997) .................................................................................................................24

Bebchick v. Wash. Metro. Area Transit Comm'n,

7

805 F.2d 396 (D.C. Cir. 1986) .................................................................................................35

8

Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D. Fla. 1988)..............................................................................................32

9 Blum v. Stenson,

465 U.S. 886 (1984) .................................................................................................................27

10 Bogosian v. Gulf Oil Corp.,

11

621 F.Supp. 27 (E.D. Pa. 1985) ...............................................................................................25

Bouman v. Block,

12

940 F.2d 1211 (9th Cir. 1991) .................................................................................................31

13

Boyd v. Bechtel Corp., 485 F. Supp. 622 (N.D. Cal. 1979) ..............................................................................12, 13, 14

14 Bryan v. Pittsburgh Plate Glass Co.,

59 F.R.D. 616 (W.D. Pa. 1973), aff’d,

15

494 F.2d 799 (3d Cir.)..............................................................................................................25

16

Butler v. Home Depot, Case Nos. C-94-4335 SI, C-95-2182 SI (N.D. Cal.)................................................................20

17 Carson v. American Brands, Inc.,

450 U.S. 79 (1981) .....................................................................................................................7

18 Chalmers v. City of Los Angeles,

19

796 F.2d 1205 (9th Cir. 1986) .................................................................................................27

Churchill Village, L.L.C. v. General Elec.,

20

361 F.3d 566 (9th Cir. 2004) .................................................................................................7, 8

21

Cimarron Pipeline Const., Inc. v. National Council on Compensation Ins., 1993 WL 355466 (W.D. Okla. June 8, 1993)..........................................................................25

22 City of Detroit v. Grinnell Corp.,

356 F. Supp. 1380 (S.D.N.Y. 1972), aff'd in part,

23

rev'd in part on other grounds, 495 F.2d 448 ..........................................................................16

24

City of Oakland v. Oakland Raiders, 203 Cal. App. 3d 78 (1988) .....................................................................................................32

25 Class Plaintiffs v. City of Seattle,

955 F.2d 1268 (9th Cir. 1992) ...............................................................................................7, 8

26 Coalition for Los Angeles County Planning in the Pub. Interest v. Bd. of

27

Supervisors of Los Angeles County, 76 Cal. App. 3d 241 (1977) .....................................................................................................32

28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Cook v. Niedert,

142 F.3d 1004 (7th Cir. 1998) .................................................................................................26

4 County of Suffolk v. Long Island Lighting Co.,

5

710 F. Supp. 1428 (E.D.N.Y. 1989) ........................................................................................13

Deposit Guar. Nat’l Bank v. Roper,

6

445 U.S. 326 (1980) .................................................................................................................28

7

Ellis v. Naval Air Rework Facility, 87 F.R.D. 15 (N.D. Cal. 1980) .......................................................................................7, 12, 19

8 Enterprise Energy Corp. v. Columbia Gas Transmission Corp.,

137 F.R.D. 240 (S.D. Ohio 1991) ............................................................................................25

9 Florida v. Dunne,

10

915 F.2d 542 (9th Cir. 1990) ...................................................................................................27

Glicken v. Bratford,

11

35 F.R.D. 144 (S.D.N.Y. 1964) .................................................................................................9

12

Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993) .................................................................................................19

13 Grant v. Bethlehem Steel Corp.,

823 F.2d 20 (2d Cir. 1987).......................................................................................................13

14 Guardians Ass'n of New York City Police Dept. v. Civil Service Commission of

15

City of New York, 527 F. Supp. 751 (S.D.N.Y. 1981)...........................................................................................14

16 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1988) .......................................................................................8, 15, 28

17 Hensley v. Eckerhart,

18

461 U.S. 424 (1983) .................................................................................................................27

Huguley v. General Motors Corp.,

19

128 F.R.D. 81 (E.D. Mich. 1989), aff'd,

925 F.2d 1464 (6th Cir. 1991) .................................................................................................14

20 In re Anthracite Coal Antitrust Litig.,

21

79 F.R.D. 707 (M.D. Pa. 1978), aff’d in part, 612 F.2d 576 (3rd Cir. 1979) ...................................................................................................13

22 In re Baldwin-United Corp.,

770 F.2d 328 (2d Cir. 1985).....................................................................................................21

23 In re Cement and Concrete Antitrust Litigation,

24

817 F.2d 1435 (9th Cir. 1987) ...................................................................................................6

In re Cont’l Ill. Sec. Litig.,

25

962 F.2d 566 (7th Cir. 1992) ...................................................................................................34

26

In re Corrugated Container Antitrust Litig., 643 F.2d 195 (5th Cir. 1981) ...................................................................................................21

27 In re Dun & Bradstreet Credit Services Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) ............................................................................................25
28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig.,

55 F.3d 768 (3rd Cir. 1995) .....................................................................................................34

4 In re Michael Milken & Assocs. Sec. Litig.,

5

150 F.R.D. 57 (S.D.N.Y. 1993) ...............................................................................................18

In re NASDAQ Market-Makers Anti-trust Litig.,

6

187 F.R.D. 465 (S.D.N.Y. 1998) .............................................................................................10

7

In re Pac. Enters. Sec. Litig., 47 F.3d 373 (9th Cir. 1995) .....................................................................................................33

8 In Re S. Ohio Correctional Facility,

175 F.R.D. 270 (S.D. Ohio 1997) ............................................................................................25

9 In re Safety Components Int’l, Inc.,

10

166 F. Supp.2d 72 (D.N.J. 2001) .............................................................................................28

In re Saxon Sec. Litig.,

11

644 F. Supp. 465 (S.D.N.Y. 1985)...........................................................................................12

12

In re Shell Oil Refinery, 155 F.R.D. 552 (E.D. La. 1993)...............................................................................................35

13 In re Unisys Corp. Retiree Medical Benefits ERISA Litig.,

886 F. Supp. 445 (E.D. Pa. 1995) ............................................................................................32

14 In re Warner Communications Sec. Litig.,

15

618 F. Supp. 735 (S.D.N.Y. 1985), aff’d, 798 F.2d 35 (2d Cir. 1986).......................................................................................................28

16 In re Washington Public Power Supply Systems Securities Litigation,

720 F. Supp. 1379 (D. Ariz. 1989) ..............................................................................10, 27, 34

17 Ingram v. Coca-Cola Co.,

18

200 F.R.D. 685 (N.D. Ga. 2001)........................................................................................24, 26

Kerr v. Screen Extras Guild, Inc.,

19

526 F.2d 67 (9th Cir. 1975) .....................................................................................................29

20

Ketchum v. Moses, 24 Cal. 4th 1122 (2001) ...........................................................................................................35

21 Kyriazi v. Western Elec. Co.,

527 F. Supp. 18 (D.N.J. 1981) .................................................................................................25

22 League of Martin v. City of Milwaukee,

23

588 F. Supp. 1004 (E.D. Wis. 1984)........................................................................................25

Lealao v. Beneficial Cal., Inc.,

24

82 Cal. App. 4th 19 (2002) ......................................................................................................32

25

Linney v. Cellular Alaska P’ship, 1997 WL 450064 (N.D. Cal. July 18, 1997)............................................................................12

26 Loring v. City of Scottsdale, Ariz.,

721 F.2d 274 (9th Cir. 1983) ...................................................................................................29

27 Mangold v. Cal. Pub. Utils. Comm’n,

28

67 F.3d 1470 (9th Cir. 1995) .............................................................................................28, 32

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Manners v. American Gen. Life Ins. Co.,

1999 WL 33581944 (M.D. Tenn., Aug. 11, 1999) ..................................................................28

4 Marshall v. Holiday Magic, Inc.,

5

550 F.2d 1173 (9th Cir. 1977) .............................................................................................8, 10

Martens v. Smith Barney,

6

No. 96 Civ. 3779, 1998 WL 1661385 *4 (S.D.N.Y. July 28, 1998) and 181

F.R.D. 243 (S.D.N.Y. 1998) ....................................................................................................25

7 Mendoza v. United States,

8

623 F.2d 1338 (9th Cir. 1980) ...................................................................................................6

Missouri v. Jenkins by Agyei,

9

491 U.S. 274 (1989) .................................................................................................................31

10

Moore v. City of San Jose, 615 F.2d 1265 (9th Cir. 1980) ...................................................................................................7

11 Morales v. City of San Rafael,

96 F.3d 359 (9th Cir. 1996) .....................................................................................................35

12 Muehler v. Land O'Lakes, Inc.,

13

617 F. Supp. 1370 (D. Minn. 1985).........................................................................................27

Mullane v. Central Hanover Bank & Trust Co.,

14

339 U.S. 306 (1950)), rev'd on other grounds,

490 U.S. 93 (1989) .....................................................................................................................6

15 Newman v. Stein,

16

464 F.2d 689 (2d Cir. 1972).......................................................................................................9

Officers for Justice v. Civil Service Comm’n,

17

688 F.2d 615 (9th Cir. 1982) .................................................................................................7, 8

18

Parker v. Anderson, 667 F.2d 1204, 33 Fed. R. Serv. 2d 963 (5th Cir. 1982) .........................................................14

19 Paul, Johnson, Alston & Hunt v. Graulty,

886 F.2d 268 (9th Cir. 1989) .............................................................................................28, 33

20 PLCM Group, Inc. v. Drexler,

21

22 Cal. 4th 1084 (2000) ...........................................................................................................32

Reed v. General Motors Corp.,

22

703 F.2d 170 (5th Cir. 1983) ...................................................................................................13

23

Riverside v. Rivera, 477 U.S. 561 (1986) .................................................................................................................36

24 Roberts v. Texaco Inc.,

94 Civ. 2015 (CLB) (S.D.N.Y.) ...................................................................................21, 25, 26

25 Safeco Corp. v. Van Bronkhorst,

26

529 F.2d 943 (9th Cir. 1976) .....................................................................................................7

Scherrer v. Group Voyagers, Inc.,

27

No. C 99-04834 (N.D. Cal. March 8, 2005) ............................................................................32

28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Serrano v. Priest,

20 Cal. 3d at 25 (1977).............................................................................................................32

4 Six (6) Mexican Workers v. Arizona Citrus Growers,

5

904 F.2d 1301 (9th Cir. 1990) .................................................................................................27

Sorenson v. Mink,

6

239 F.3d 1140 (9th Cir. 2001) .................................................................................................27

7

State of W. Va. v. Chas. Pfizer & Co., 314 F. Supp. 710 (S.D.N.Y. 1970)...........................................................................................23

8 Staton v. Boeing,

327 F.3d 938 (9th Cir. 2003) .............................................................................................24, 26

9 Stoetzner v. United States Steel Corp.,

10

897 F.2d 115 (3rd Cir. 1990) ...................................................................................................13

Torrisi v. Tucson Elec. Power Co.,

11

8 F.3d 1370 (9th Cir. 1994) .......................................................................................................6

12

Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294 (N.D. Cal. 1995) ..............................................................................25, 26, 32

13 Vizcaino v. Microsoft,

290 F.3d 1043 (9th Cir. 2002) .....................................................................................28, 33, 35

14 Weinberger v. Kendrick,

15

698 F.2d 61 (2d Cir. 1982).......................................................................................................14

Wershba v Apple Computer, Inc.,

16

91 Cal. App. 4th 224 (2001) ....................................................................................................32

17

Wise v. Popoff, 835 F. Supp. 977 (E.D. Mich. 1993)........................................................................................28

18 Women's Comm. For Equal Employment Opportunity v. National Broadcasting

Co.,

19

76 F.R.D. 173 (S.D.N.Y.1977) ..........................................................................................25, 26

20

Zerkle v. Cleveland-Cliffs Iron Co., 52 F.R.D. 151 (S.D. N.Y. 1971) ................................................................................................9

21

STATUTES

22 42 U.S.C. § 1981............................................................................................................................10

42 U.S.C. §2000e .....................................................................................................................10, 23

23 California’s Fair Employment and Housing Act, Govt. Code

24

§12940......................................................................................................................................10

RULES

25 Fed. R. Civ. P.

26

Rule 23(e).................................................................................................................................26 Rule 23(e)(1)(B).........................................................................................................................6

27

Rule 30(b)(6)..............................................................................................................................3

28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3

TREATISES

4

3 NEWBERG 4TH, § 8:32........................................................................................................................................19

5 4 Alba Conte & Herbert B. Newberg, NEWBERG ON CLASS ACTIONS (4th ed. 2002)

§ 11:41........................................................................................................................................7

6 4 NEWBERG 4TH,

7

§ 11:45......................................................................................................................................11 § 11:49......................................................................................................................................12

8

§ 11:58................................................................................................................................15, 16 § 12:13......................................................................................................................................23

9

§ 12:15......................................................................................................................................21

5 Moore’s Federal Practice, § 23.83[2] (Matthew Bender 3d ed. 1999) .................................18, 19

10 8 NEWBERG 4TH,

11

§ 11.41........................................................................................................................................9 § 24:126......................................................................................................................8, 9, 14, 20

12

§ 24:127....................................................................................................................................14 § 24:129....................................................................................................................................24

13 Manual for Complex Litigation, Fourth (2004)

§ 14.121..............................................................................................................................29, 33

14

§ 14.122....................................................................................................................................28

§ 21.312......................................................................................................................................6

15

§ 21.313....................................................................................................................................19

§ 21.634......................................................................................................................................7

16

§ 32.465....................................................................................................................................19

17

Richard Posner, ECONOMIC ANALYSIS OF LAW (3d ed. 1986) § 21.9........................................................................................................................................34

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND PLAINTIFFS’ MOTION FOR

ORDER GRANTING FINAL APPROVAL

2

3 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

4

NOTICE IS HEREBY GIVEN that on April 14, 2005, at 4:00 p.m., or as soon

5 thereafter as the matter may be heard in the Courtroom of the Honorable Susan Illston, located at

6 450 Golden Gate Avenue, San Francisco, California, Plaintiffs Eduardo Gonzalez, Anthony

7 Ocampo, Encarnacion Gutierrez, Johan Montoya, Juancarlos Gómez-Montejano, Jennifer Lu,

8 Austin Chu, Ivy Nguyen, Angeline Wu, Eric Fight, Carla Grubb, David Culpepper, Patric e

9 Douglass, Robair Sherrod, Brandy Hawk, Andre Steele, and Elizabeth West will and hereby do

10 move this Court for final approval of the settlement that was preliminarily approved by this Court

11 on November 16, 2004.

12

This motion is based upon this Notice of Motion and Motion and the

13 Memorandum of Points and Authorities in Support thereof; the Declaration of Bill Lann Lee In

14 Support of Order of Final Approval (“Bill Lann Lee Decl.”) ; the Declaration of Gregory M.

15 Gochanour (“Gochanour Decl.”), the Declaration of Hunter R. Hughes III (“Hughes Decl.”), the

16 other declarations of Plaintiffs’ counsel submitted herewith; the other records, pleadings, and

17 papers filed in this action; and upon such other documentary and oral evidence or argument as

18 may be presented to the Court at the hearing of this motion.

19

MEMORANDUM OF POINTS AND AUTHORITIES

20 I. INTRODUCTION

21

On November 16, 2004, this Court (1) certified a settlement class; (2) appointed

22 Plaintiffs’ counsel as Class Counsel; (3) appointed Plaintiffs as adequate Class Representatives;

23 (4) preliminarily approved the proposed class action settlement at issue; (5) directed distribution

24 to the Class of notice of settlement and opportunity to “opt out” of or object to the settlement; and

25 (6) set a schedule for the final settlement approval process. Stipulation of Proposed Settlement

26 and Order of Preliminary Approval of Proposed Consent Decree, November 16, 2004

27 (“Preliminary Approval Order’).

28
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1

As directed by this Court, notice of the settlement and instructions on how to

2 submit Claim forms for monetary relief and on how to opt out were given by publication in

3 periodicals and internet banner advertisements, and by first class mail to roughly 320,000

4 potential class members. See Claims Administrator’s Interim Report to the Cour t and Point

5 Allocation Recommendation, filed Friday, April 8, 2005 (“Interim Report”) at p. 2; Declaration of

6 Wayne Pines, filed Friday, April 8, 2005 (“Pines Decl.”) at ¶ 10 (describing “total circulation of

7 all print advertising in the Notice campaign [as] 21,468,694”).

8

The proposed Consent Decree1 resolves all of Plaintiffs’ claims against

9 Abercrombie arising out of the facts at issue in this litigation, including injunctive relief,

10 monetary relief, and attorneys’ fees and costs. The Consent Decree satisfies all the criteria for

11 final settlement approval under Ninth Circuit law and falls well within the range of possible

12 approval.

13

To date, the Claims Administrator has received approximately 20,000 claim forms,

14 eight objections to the settlement (two of which were untimely), and 57 opt-outs (one of which

15 was untimely, and five of which were rescinded). Interim Report at pp. 1-2. Thus, 0.04% of the

16 claimants objected, and 0.28% of the people submitting Claim forms or opt-out statements opted

17 out (both figures include timely and untimely submissions as well as timely rescissions). The

18 objections are narrow in scope. The objectors principally raised issues concerning the fact that

19 the Decree did not encompass disability discrimination, unsupported claims that the monetary

20 relief obtained was insufficient, and concerns about certain general release and other provisions.

21 As explained below, these objections are meritless.

22

Plaintiffs therefore respectfully request that the Court grant final approval to the

23 Consent Decree, putting into effect the parties’ settlement of Plaintiffs’ claims against Defendants

24 Abercrombie & Fitch Stores, Inc., A&F California, LLC, A&F Ohio, Inc., and Abercrombie &

25 Fitch Management Co. (hereinafter “Abercrombie”), for significant injunctive and monetary

26

27

28 1 The Consent Decree is attached hereto as Exhibit 1.

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1 relief for the benefit of the class of minority and female employees and applicants for

2 employment certified in the Preliminary Approval Order.

3 II. 4

PROCEDURAL BACKGROUND This litigation consists of three related cases that the court ordered consolidated on

5 November 11, 2004.

6

Plaintiffs filed their first Gonzalez complaint on June 16, 2003, alleging that

7 Abercrombie’s nationwide employment policies and practices discriminated against minorities

8 with respect to recruitment, hiring, job assignment, managerial promotion, termination, and other

9 terms and conditions of employment in violation of 42 U.S. § 1981 and the California Fair

10 Employment and Housing Act (“FEHA”). The claims of named Plaintiffs paralleled the class

11 allegations. The complaint was filed four years after the initial administrative charge of

12 discrimination was filed with the U.S. Equal Employment Opportunity Commission (“EEOC”)

13 and two years after the EEOC determined that Abercrombie had engaged in classwide

14 discrimination against Latino and African American applicants and employees.

15

This complaint was subsequently amended on August 13, 2003, January 9, 2004,

16 June 10, 2004 and November 8, 2004 to add Title VII claims, managerial discrimination claims,

17 and more named Plaintiffs and Defendants. Abercrombie answered each complaint, denying all

18 liability.

19

The parties conducted extensive discovery relevant to class certification. In

20 particular, Plaintiffs’ counsel obtained and analyzed 17,000 pages of documents and

21 approximately 74 discs containing computerized data and information. After the initial round of

22 class discovery of documents, Plaintiffs’ Fed. R. Civ. P. Rule 30(b)(6) manager depositions, and

23 Abercrombie’s depositions of several named Plaintiffs, the parties commenced mediation while

24 continuing to prepare for class certification. Plaintiffs’ Mediation Brief, submitted April 5, 2004,

25 summarized the discovery Plaintiffs conducted as well as the expert analyses prepared from the

26 discovery. (Plaintiffs’ Mediation Brief was submitted under seal as an exhibit to the

27 November 12, 2004 Declaration of Bill Lann Lee in Support of Motion for Order Granting

28 Preliminary Approval of the Proposed Consent Decree (“Bill Lann Lee Preliminary Approval

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1 Decl.”).) In addition to formal discovery, Plaintiffs’ counsel contacted more than 500 potential

2 class members of witnesses, and prepared over 165 declarations from potential class members

3 and witnesses. See Bill Lann Lee Preliminary Approval, ¶ 12; Bill Lann Lee Decl., ¶ 35. The

4 declarations and analyses of expert witnesses that Plaintiffs’ counsel retained were prepared both

5 for the mediation and for a class certification motion should the mediation fail.

6

After eight two-day sessions of arm’s-length mediation, under the supervision of

7 Mediator Hunter R. Hughes III, Esq., of Atlanta, Georgia, the parties reached agreement to the

8 proposed Consent Decree.

9

A related class action complaint, the West action, was filed at the conclusion of the

10 mediation on November 8, 2004, alleging gender discrimination by Abercrombie in employment

11 policies and practices nationwide. Although their complaint was filed at the conclusion of the

12 mediation, Plaintiffs’ West counsel engaged in significant pre-suit activity, including contacting

13 over 70 witnesses, collecting declarations from Class Members and retaining an expert witness to

14 prepare statistical analyses. West counsel also participated fully in the mediation. See

15 November 12, 2004 Declaration of Jack W. Lee In Support of Preliminary Approval of the

16 Proposed Consent Decree.

17

The EEOC filed its pattern or practice action, EEOC v. Abercrombie, alleging both

18 race and gender discrimination by Abercrombie in employment policies and practices nationwide,

19 on November 8, 2004. Prior to filing, the EEOC conducted an active investigation encompassing

20 administrative charges across the country, interviewing numerous witnesses, performing

21 independent statistical analyses, and questioning Abercrombie managers and officials. The

22 EEOC also fully participated in every mediation session.

23

Under the terms of the proposed Consent Decree, Abercrombie will pay

24 approximately $40 million directly to the Class.2 In addition, Abercrombie has agreed to

25 substantial injunctive reforms, including:

26 2 After subtracting an estimated $154,767 in opt-out credits, an estimated $125,000 in 27 administrative costs beyond imputed interest, and $360,000 in awards for Class Representatives
and Charging Parties, in accordance with the Consent Decree, approximately $39,360,233 (or 28 98.4% of the fund) remains for distribution to the Class Members. See Interim Report at 6.

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1

1. Benchmarks and goals for hiring and promotion of women, Latinos,

2

African Americans, and Asian Americans, the progress toward which

3

Abercrombie will be required to report at regular intervals ;

4

2. A prohibition on using participation in fraternities or sororities as a

5

criterion for employment and a prohibition on targeting specific colleges

6

for recruitment purposes;

7

3. A new Office and Vice President of Diversity, responsible for reporting to

8

the CEO or COO on Abercrombie’s progress toward fair employment

9

practices;

10

4. Equal Employment Opportunity (EEO) and Diversity Training for all

11

employees with hiring authority;

12

5. Advertising of jobs, revision of position descriptions and employee

13

performance evaluations for managers;

14

6. A new internal complaint procedure;

15

7. The hiring of 25 recruiters to recruit and hire female and minority

16

employees, and a requirement for Abercrombie to advertise employment

17

opportunities in media that target minorities of both genders;

18

8. Abercrombie marketing materials will reflect diversity by including

19

members of minority racial and ethnic groups;

20

9. Regular reporting and an annual Court hearing to review progress; and

21

10. A Monitor and a Special Master to oversee compliance.

22 The term of the decree is six years unless the Court relieves Abercrombie of the provisions of the

23 Decree after four and a half years.

24 III. ADEQUATE NOTICE WAS GIVEN TO THE CLASS OF THE PROPOSED CONSENT DECREE AND THE OPPORTUNITY TO OPT OUT.
25
A. Legal Standard 26
In the Ninth Circuit, “[t]he due process clause requires that notice be ‘reasonably 27
calculated, under all the circumstances, to apprise interested parties of the pendency of the action 28

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1 and afford them an opportunity to present their objections.’” In re Cement and Concrete Antitrust

2 Litigation, 817 F.2d 1435, 1440 (9th Cir. 1987) (quoting Mullane v. Central Hanover Bank &

3 Trust Co., 339 U.S. 306 (1950)), rev'd on other grounds, 490 U.S. 93 (1989).

4

This standard does not mean that the notice must recite the

language of every provision of a proposed settlement agreement.

5

Notice is satisfactory if it “generally describes the terms of the

settlement in sufficient detail to alert those with adverse viewpoints

6

to investigate and to come forward and be heard.”

7 Id. (Mendoza v. United States, 623 F.2d 1338, 1352 (9th Cir. 1980)); Torrisi v. Tucson Elec.

8 Power Co., 8 F.3d 1370, 1374 (9th Cir. 1994). Likewise, according to the Manual for Complex

9 Litigation, Fourth (2004) (“MCL 4th”), the Court must “‘direct notice in a reasonable manner to

10 all class members who would be bound by a proposed settlement, voluntary dismissal, or

11 compromise’ regardless of whether the class was certified under Rule 23(b)(1), (b)(2), or (b)(3).”

12 Id. at § 21.312, p. 293 (quoting Fed. R. Civ. P. 23(e)(1)(B)).

13

Rule 23 requires that the notice provide certain minimal information:

14

The notice should announce the terms of a proposed settlement and

state that, if approved, it will bind all class members. If the class

15

has been certified only for settlement purposes, that fact should be

disclosed. Even though a settlement is proposed, the notice should

16

outline the original claims, relief sought, and defenses so class

members can make an informed decision about whether to opt out. 17

18 Id. at p. 294.

19

B. Adequate Notice Was Given

20

Pursuant to the Court’s Preliminary Approval Order, Claims Administrator

21 Settlement Services, Inc. (“SSI”) sent by first class mail approximately 320,000 notices of class

22 settlement, claim forms and explanation claims procedure on or before January 18, 2005 to all

23 known potential Class Members. See Declaration of Mark Patton (filed on April 8, 2005), ¶ 9; id.

24 at ¶ 4 (describing database of 171,309 employees and former employees received from defense

25 counsel); Declaration of Ron Barton (filed on April 11, 2005), ¶¶ 2-4 (describing same, compiled

26 by Abercrombie Senior Systems Engineer and sent to defense counsel). This population included

27 thousands of Class Members as well as thousands of individuals fitting the demographic profile

28 of the Class who were not Class Members.

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1

In addition, the Court’s Preliminary Approval Order required that Abercrombie

2 publish by January 18, 2005 a legal notice of class settlement, the form of which the Court

3 previously approved, in internet banner ads and the following periodicals: People, Teen People,

4 Cosmopolitan, Glamour, Parents, Vibe, Ebony, People en Español, and Maxim en Español.

5 Defendant Abercrombie timely published legal notice of class settlement. See Wayne Pines

6 Decl., ¶¶ 9-10. Furthermore, both the filing and the settlement of the case generated significant

7 nationwide media coverage.

8

Adequate notice was given. As a result of the notice provided, approximately

9 20,000 Class Members have filed claim forms, 57 opted out, and eight submitted objections.

10 IV. THE PROPOSED CONSENT DECREE SATISFIES THE REQUIREMENTS FOR FINAL APPROVAL BECAUSE IT IS FAIR, REASONABLE, AND ADEQUATE.
11
“The compromise of complex litigation is encouraged by the courts and favored by 12
public policy.” 4 Alba Conte & Herbert B. Newberg, NEWBERG ON CLASS ACTIONS (4th ed. 13
2002) (“NEWBERG 4TH”), § 11:41, p. 87 (citing Carson v. American Brands, Inc., 450 U.S. 79, 88 14
n.14 (1981) (Title VII employment) (“In enacting Title VII, Congress expressed a strong 15
preference for encouraging voluntary settlement of employment discrimination claims.”)); Ellis v. 16
Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980) (“[C]ooperation and voluntary 17
compliance are the preferred means for achieving the statutory goals of Title VII.”); Churchill 18
Village, L.L.C. v. General Elec., 361 F.3d 566, 576 (9th Cir. 2004) (quoting Class Plaintiffs v. 19
City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Officers for Justice v. Civil Service Comm’n, 20
688 F.2d 615, 625 (9th Cir. 1982); Safeco Corp. v. Van Bronkhorst, 529 F.2d 943, 950 (9th Cir. 21
1976). 22
The Ninth Circuit has held that a class action settlement should be approved if the 23
settlement is fair, reasonable, and adequate. See Class Plaintiffs, 955 F.2d at 1276; MCL 4th, 24
§ 21.634, p. 322 (“At the fairness hearing, the proponents of the settlement must show that the 25
proposed settlement is “‘fair, reasonable, and adequate.’”) ); 4 NEWBERG 4TH, § 11:41, p. 87; 26
Moore v. City of San Jose, 615 F.2d 1265, 1271 (9th Cir. 1980) (“The sole question before the 27
district court in reviewing a settlement agreement is whether the agreement is fundamentally fair 28

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1 or just.”).

2

Trial courts are entrusted with broad discretion in determining whether a proposed

3 settlement is fair, reasonable, and adequate, and will only be reversed for a clear abuse of

4 discretion. Class Plaintiffs, 955 F.2d at 1276; Officers for Justice, 688 F.2d at 626; Marshall v.

5 Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977); 8 NEWBERG 4TH, § 24:126, p. 493-94

6 (“When appealed, a court-approved settlement rarely will be overturned. The abuse of discretion

7 standard leaves much room for judicial discretion.”); Churchill, 361 F.3d at 575. Furthermore,

8 courts should give “proper deference to the private consensual decision of the parties,” since “the

9 court’s intrusion upon what is otherwise a private consensual agreement negotiated between the

10 parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the

11 agreement is not the product of fraud or overreaching by, or collusion between, the negotiating

12 parties, and the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.”

13 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1988).

14

The Ninth Circuit has provided a nonexhaustive list of factors to guide courts’

15 discretion:

16

the strength of plaintiffs’ case; the risk, expense, complexity, and

likely duration of further litigation; the risk of maintaining class

17

action status throughout the trial; the amount offered in settlement;

the extent of discovery completed, and the stage of the proceedings;

18

the experience and views of counsel; the presence of a

governmental partic ipant; and the reaction of the class members to

19

the proposed settlement.

20 Officers for Justice, 688 F.2d at 625 (internal citations omitted).

21

Newberg provides similar guidance.

22

In making a determination of whether an employment

discrimination class action settlement is fair and reasonable and to

23

safeguard properly the interests of absent class members, the

district court should evaluate: (1) the probable outcome of the

24

litigation; (2) the recommendation and experience of counsel;

25

26

(3) the amount and nature of discovery; (4) the future expense and

duration of litigation; and (5) the number of objectors, and the

27

substance of the objections.

28 8 NEWBERG 4TH, § 24:126, pp. 492-93. “Basically, the court should weigh the rewards the class

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1 could secure from the settlement against the probable costs and results of continued litigation as

2 well as consider the public policy aspects of Title VII.” Id. at 493. Newberg also advises that

3 “arm's- length bargaining” is relevant to the fairness and reasonableness of the settlement. Id.,

4 § 11.41, p. 90.

5

Here, these factors support a finding that the Cons ent Decree is fair, adequate, and

6 reasonable. First, the strength of Plaintiffs’ case, the risk, expense, complexity, and likely

7 duration of further litigation, and the risk of maintaining class action status throughout the trial,

8 compared to the amount offered in settlement, all support approval. Second, the discovery

9 completed and the stage of the proceedings support the settlement because the parties have

10 adduced sufficient evidence to provide a reliable basis for assessing the relative strength of the ir

11 positions. Third, Plaintiffs’ counsel’s and the EEOC’s recommendation support final approval of

12 the Consent Decree because counsel and the EEOC are experienced in this type of complex

13 employment discrimination class action litigation. Fourth, the enthusiastic reaction of Class

14 Members and the tiny number of objections support final approval. Fifth, because the settlement

15 is the result of extensive, arm’s- length negotiations spanning six months, the Consent Decree

16 should be granted final approval.

17

A. The Consent Decree Provides Exceptional Injunctive And Monetary Relief

for the Class. 18

19

The determination of a “reasonable” settlement is not susceptible of a

20 mathematical equation yielding a particular sum. Rather, “in any case, there is a range of

21 reasonableness with respect to a settlement.” Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972).

22 See also Zerkle v. Cleveland-Cliffs Iron Co., 52 F.R.D. 151, 159 (S.D. N.Y. 1971); Glicken v.

23 Bratford, 35 F.R.D. 144, 152 (S.D.N.Y. 1964). Here, the proposed Consent Decree is reasonable

24 in part because it offers substantial concrete benefits to Class Members that they would otherwise

25 be unlikely to achieve. In particular, the injunctive relief is robust, possibly exceeding what

26 might be attainable through complete litigation of the claims. The injunctive relief obtained in

27 the proposed Decrees substantially complies with the ambitious outline of relief Plaintiffs initially

28 proposed at the beginning of mediation. See Plaintiffs’ Mediation Brief, Exhibit A. Furthermore,

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1 the monetary relief of $40 million is approximately 59% of the $69 million Plaintiffs sought in

2 mediation ($73 million less $4 million of 1998 pre-class period losses). See Plaintiffs’ Mediation

3 Brief, Table D.

4

Specifically, the injunctive relief, as noted above, provides for monitoring for six

5 years;3 hiring benchmarks and goals; a ban on recruiting from fraternities, sororities, or specific

6 colleges for recruitment purposes; a new Office and Vice President of Diversity; EEO and

7 diversity training for all employees with hiring authority; advertising of vacancies and revision of

8 job descriptions and manager performance evaluations; a new internal complaint procedure; the

9 hiring of 25 recruiters to recruit and hire female and minority employees, and targeted advertising

10 to minorities; a requirement that marketing materials will reflect diversity; regular reporting and

11 an annual Court hearing and appointment of a Monitor and a Special Master.

12

B. This Litigation Involved Substantial Potential Risks.

13

The complexity, expense, and likely duration of the litigation are also relevant.

14 Marshall, 550 F.2d at 1173, 1178; In re NASDAQ Market-Makers Anti-trust Litig., 187 F.R.D.

15 465 (S.D.N.Y. 1998); In re Washington Public Power Supply Systems Securities Litigation, 720

16 F. Supp. 1379, 1387 (D. Ariz. 1989).

17

The factual and legal issues in this action are complex. The trial of Plaintiffs’

18 claims under Title VII of the Civil Rights Act, 42 U.S.C. §2000e, under 42 U.S.C. § 1981, and

19 under California’s Fair Employment and Housing Act, Govt. Code §12940 et seq. — claims that

20 involve potentially tens of thousands of Class Members and which arose in hundreds of stores

21 nationwide over a period of more than five years — would require substantial preparation and

22 ultimately the presentation of a large number of witnesses.

23 3 In contrast, recent comparable consent decrees in major employment discrimination cases have 24 had shorter terms. (Copies of several such decrees and related documents are attached to the Bill
Lann Lee Decl., ¶¶ 20-34, Exs. H-V (hereinafter referred to, respectively, as Boeing consent 25 decree; Coca-Cola consent decree; Fleetwood consent decree; Group Voyagers consent decree;
Home Depot consent decree; Ingles consent decree; Mitsubishi consent decree; Publix consent 26 decree; Rent-a-Center consent decree; Shoney’s consent decree; Texaco consent decree; United
consent decree; United notice).) See, e.g., Mitsubishi consent decree at ¶ 14 (3- year term); 27 Boeing consent decree at 12 (minimum 3- year term); Coca-Cola consent decree at 46 (4-year
term); Fleetwood consent decree at 2 (4- year term); Rent-a-Center consent decree at 7-8 (4-year 28 term, with possible 1- year extension).

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1

Of particular relevance to the reasonableness of the proposed Consent Decree is

2 the fact that Defendant has available legal and factual grounds for defending this action, including

3 whether common questions exist justifying class action treatment of Abercrombie’s three

4 divisions extending to over 700 stores; whether special qualifications and interest limit the pool of

5 minority or women applicants; whether Class Members applied for Abercrombie’s relatively low-

6 paying, part-time sales associate jobs; the extent of alleged in-store segregation; difficulty of

7 assessing damages in light of the ease of mitigating harm to applicants for jobs paying slightly

8 above minimum wage; and whether emotional distress damages are available on a classwide

9 basis. Thus, Plaintiffs and the Class could recover no compensation for emotional distress

10 damages or for backpay and/or they could win only limited or no injunctive relief. By the same

11 token, Abercrombie faces the potential for a substantial jury verdict. Between these two disparate

12 extremes is a more reasonable outcome, which is this settlement.

13

Furthermore, final resolution of the case through complete litigation could easily

14 take another few years. The parties would be unlikely to be ready for trial before until 2006.

15 Even if trial were to occur then, the delay of appeals could postpone final resolution until 2008 or

16 later. By settling now, Plaintiffs and the Class are able to secure compensation and injunctive

17 relief immediately, and Abercrombie is able to achieve finality.

18

The proposed Consent Decree will yield a certain, substantial, and prompt

19 recovery for the class both in monetary relief and reform of Abercrombie’s employment policies

20 and practices. Such a result will benefit the parties and the court system.

21

C. The Discovery Completed and the Stage of Proceedings Support Final

Approval. 22

23

Plaintiffs presented substantial evidence to support the fairness, reasonableness,

24 and adequacy of the settlement, though such evidence is not necessary for final approval.

25 4 NEWBERG 4TH, § 11:45, p. 127 (noting that in the context of a class action settlement, “[i]t is

26 clear that the court need not possess evidence to decide the merits of the issue, because the

27 compromise is proposed in order to avoid further litigation”).

28

As noted above, the results of Plaintiffs’ classwide discovery and expert analyses

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1 are summarized in the Bill Lann Lee Preliminary Approval Decl. and Plaintiffs’ Mediation Brief.

2 Class Counsel and Abercrombie reviewed the extensive evidence carefully during the litigation

3 and settlement negotiations to assess the strengths and weaknesses of their respective cases. They

4 were therefore well prepared to reliably gauge the reasonableness of the Consent Decree. Their

5 judgment of the appropriateness of the monetary compensation and the sufficiency, completeness,

6 and feasibility of the injunctive relief was well- founded.

7

Thus, Plaintiffs’ counsel negotiated the Consent Decree with ample knowledge of

8 the strengths and weaknesses of their case.

9

D. The Experience and Views of Class Counsel, the EEOC, and Mediator

Support the Proposed Consent Decree. 10

11

In appraising the fairness of a proposed settlement, the view of experienced

12 counsel favoring the settlement is “entitled to considerable weight.” In re Saxon Sec. Litig., 644

13 F. Supp. 465 (S.D.N.Y. 1985); Boyd v. Bechtel Corp., 485 F. Supp. 622 (N.D. Cal. 1979); Linney

14 v. Cellular Alaska P’ship, 1997 WL 450064 , at *5 (N.D. Cal. July 18, 1997); Ellis, 87 F.R.D. at

15 15, 18.

16

Class Counsel are highly experienced in class action litigation generally, and

17 specifically in employment discrimination class actions. See Bill Lann Lee Preliminary Approval

18 Decl., ¶ 4; Declaration of Thomas A. Saenz (“Saenz Decl.”), ¶¶ 4-7; Declaration of Martin

19 D’Urso (“D’Urso Decl.”), ¶¶ 4-6; Declaration of Jack W. Lee. It is their considered opinion that

20 the proposed Consent Decree achieves the best result possible for Class Members under the

21 circumstances. Some of the Class Counsel have been prosecuting this case for roughly six years,

22 and are intimately familiar with the strengths and risks involved in the case. Likewise, the EEOC

23 has been involved in the investigation of the claims raised in this case for almost six years as well

24 and recommends this Consent Decree.

25

The EEOC’s enthusiastic participation in the settlement supports approval.

26 4 NEWBERG 4TH, § 11:49, p. 154 (noting that “the court may ask for the agency’s opinion of the

27 fairness and adequacy of the settlement”). See Declaration of Gregory M. Gochanour

28 (“Gochanour Decl.”) (supporting the Consent decree as “fair, reasonable, and adequate relief for

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1 the Class,” and opining that “the result is a just one ”).

2

Mediator Hunter Hughes, himself an experienced emp loyment discrimination

3 litigator and mediator, has submitted a declaration attesting to the fairness, adequacy, and

4 reasonableness of the proposed Consent Decree. See Hughes Decl.

5

E. The Reaction of Class Members Supports the Proposed Settlement

6

All 16 Class Representatives support final approval. Class Members were given

7 reasonable notice of the settlement terms and had the opportunity to object and/or opt out, in

8 compliance with Rule 23(e)(4)(A) and the Court’s Preliminary Approval Order.

9

The overwhelmingly positive response of potential class members supports the

10 conclusion that the proposed settlement is fair, adequate, and reasonable. Approximately 20,000

11 individuals in a largely transient, college-age population submitted Claim forms. Including

12 untimely submissions and excluding rescissions, 63 individuals, or 0.31% of the total, submitted

13 opt-out statements or objections. Thus, roughly 99.69% of the response supported the Decree by

14 seeking relief under its terms.

15

It would be “extremely unusual” if no objections were submitted. See In re

16 Anthracite Coal Antitrust Litig., 79 F.R.D. 707, 712-13 (M.D. Pa. 1978), aff’d in part, 612 F.2d

17 576 (3rd Cir. 1979). Hence, for example, in Stoetzner v. United States Steel Corp., 897 F.2d 115,

18 118-19 (3rd Cir. 1990), the Third Circuit held that the fact that “only” 29 members of a 281-

19 member class (10%) had objected “strongly favor[ed] settlement.” See also Boyd v. Bechtel

20 Corp., 485 F. Supp. 610, 624 (N.D. Cal. 1979) (that only 16% of the class objected was

21 persuasive of the adequacy of the settlement); County of Suffolk v. Long Island Lighting Co., 710

22 F. Supp. 1428, 1437 (E.D.N.Y. 1989) (“[O]pposition to a class settlement--even by a majority of

23 the class — is not a bar to court approval if the settlement is fair,” citing Grant v. Bethlehem Steel

24 Corp., 823 F.2d 20, 23 (2d Cir. 1987)).

25

Objections by several class members or even by a substantial percentage of class

26 members do not prevent the Court from granting final approval. See Reed v. General Motors

27 Corp., 703 F.2d 170 (5th Cir. 1983) (affirming district court's approval of proposed class

28 settlement, despite objections by 23 of 27 named plaintiffs and nearly 40% of the class); Huguley

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1 v. General Motors Corp., 128 F.R.D. 81 (E.D. Mich. 1989), aff'd, 925 F.2d 1464 (6th Cir. 1991),

2 and aff'd, 999 F.2d 142 (6th Cir. 1993) (approving settlement over objections of approximately

3 15% of the class); Parker v. Anderson, 667 F.2d 1204, 33 Fed. R. Serv. 2d 963 (5th Cir. 1982)

4 (affirming approval of settlement over class member and plaintiff objections); 8 NEWBERG 4TH, §

5 24:127, p. 501 (“Before approving a consent decree, the court may make adjustments for

6 objections raised, unless the settlement is found to be fair and reasonable in spite of the rais ed

7 objections.”).

8

F. The Settlement Is a Product of Extensive, Arm’s-Length Negotiations .

9

Where a settlement is reached through arm’s- length negotiations, in the absence of

10 fraud or collusion, the Court should be hesitant to substitute its own judgment for that of counsel.

11 “A presumption exists in favor of a settlement when there ha s been arm's- length bargaining and

12 no objections by the parties, and when both counsel are able to evaluate reasonably their chances

13 for success if the case were to proceed to trial.” 8 NEWBERG 4TH, § 24:126, p. 493 (citing

14 Guardians Ass'n of New York City Police Dept. v. Civil Service Commission of City of New York,

15 527 F. Supp. 751 (S.D.N.Y. 1981)); Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979)

16 (Orrick, J.) ((approving settlement of employment discrimination case negotiated by experienced

17 counsel after significant discovery, despite finding that it provided very modest relief to the

18 class); Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982).

19

The Consent Decree is the result of vigorous, extended arm’s- length negotiations

20 spanning half a year of structured mediation. The negotiations between Plaintiffs’ counsel, the

21 EEOC, and counsel for Abercrombie were conducted under the supervision of experienced

22 mediator Hunter Hughes. See Hughes Decl., ¶¶ 8-10; Gochanour Decl., ¶ 6. The parties

23 submitted mediation briefs, declarations, expert statistical reports, damages estimates and legal

24 authorities to Mr. Hughes prior to the first mediation session on April 13-14, 2004, and thereafter

25 as well. The negotiations were often heated and protracted. The settlement discussions involved

26 eight two-day mediation sessions and numerous additional telephone discussions and drafting

27 sessions. Bill Lann Lee Preliminary Approval Decl., ¶ 31. Extensive, good- faith settlement

28 discussions between the parties continued outside of mediation sessions. The parties exchanged

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1 numerous settlement drafts until the day the Consent Decree was signed on November 8, 2004.

2 See Bill Lann Lee Preliminary Approval Decl., ¶ 29. Moreover, the Court was involved in

3 regulating the mediation schedule, extending several times the Court’s deadlines.

4

The EEOC’s participation in the negotiations weighs in favor of finding a class

5 settlement fundamentally fair, adequate, and reasonable. Hanlon, 150 F.3d at 1026. Here, the

6 government entity specifically charged with enfo rcing Title VII for private employees like

7 Abercrombie, is a signatory to the proposed Decree.

8

The intensive efforts of Plaintiffs’ counsel, the EEOC, and Defendant’s counsel to

9 resolve this case have resulted in a fair and comprehensive settlement that provides significant

10 injunctive and monetary relief for the class members.

11 V. 12

THE OBJECTIONS ARE WITHOUT MERIT. Only eight objections were filed by Class Members, including two that were

13 received late. We discuss each of the objections in turn, but note initially that most of the

14 objections are conclusory. “General objections without factual or legal substantiation carry little

15 weight.” 4 NEWBERG 4TH, § 11:58.

16

A. Objections of Three Minority Class Members with Disabilities.

17

Three minority Class Members with disabilities objected to the proposed Decree

18 because the Decree does not address disability discrimination. See Objections of Esteban Diaz,

19 Tony Gómez, and Maria I. Hernandez (included in Interim Report). Those objections stated that

20 they would make claim forms for monetary relief as minority Class Members, but that they would

21 continue to pursue their EEOC charges raising disability discrimination against Abercrombie.

22

The instant cases concern discrimination on the basis of race, national origin or

23 gender. Neither the three related complaints, the underlying administrative charges of named

24 Plaintiffs, nor the proposed Decree address claims of discrimination on the basis of disability.

25 Nor does the Decree bar these or other individuals from pursuing disability claims against

26 Abercrombie in subsequent proceedings. The release provision for Class Members is limited to

27 claims of “alleged race, color, national origin or gender discrimination. ” Consent Decree,

28 XVIII.A.

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1

These objections do not warrant any action by the Court because, as these

2 objectors themselves admit, they can continue asserting their disability claims notwithstanding

3 the proposed Decree.

4

B. Late Objections of Amani J. King and Efe Agindotan.

5

Amani J. King filed a late objection (received by the Claims Administrator on

6 March 10, 2005) to the $40 million monetary relief as not sufficient without any supporting data.

7 Efe Agindotan filed a late objection (received by the Claims Administrator on March 22, 2005)

8 “claiming the amount of $250,000.00 USD.”

9

“Inadequacy of the fund may be attacked on the basis that the circumstances

10 indicate that the plaintiff's likelihood of recovery is greater than suggested by the proponents, or

11 that the potential recovery of damages has been undervalued and therefore underestimated.”

12 4 NEWBERG 4TH, § 11:58; City of Detroit v. Grinnell Corp., 356 F. Supp. 1380 (S.D.N.Y. 1972),

13 aff'd in part, rev'd in part on other grounds,

14 495 F.2d 448 (antitrust) (approving settlement that represented 3.2 to 3.8% of possible damages).

15

In this case, King offers no factual support for his claim that the settlement is

16 insufficient. In fact, as noted above, the $40 million in monetary relief Plaintiffs ultimately

17 obtained is approximately three- fifths of Plaintiffs’ initial estimate of loss, in spite of Defendants’

18 substantial defenses. Similarly, Agindotan offers no factual support for his personal claim of

19 entitlement to a quarter of a million dollars, nor did he opt out to bring his own claim.

20

C. Objection of Elizabeth Guleke.

21

Objector Elizabeth Guleke, represented by her father James O. Guleke II, filed a

22 motion to dismiss for lack of personal jurisdiction (because she is a Texas resident) and a request

23 for exclusion, as well as objecting to the proposed Decree. Plaintiffs treat the motion to dismiss

24 and request for exclusion as an opt-out notice.

25

Guleke objects to the “binding” effect upon her of the injunctive relief, questions

26 whether Class Members obtain any “real” benefit from the Decree, objects to disclosing private

27 information during the implementation of the Decree, and argues that the appointment of

28 Mediator Hunter Hughes as Special Master is inappropriate. First, the binding effect of the

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1 Decree’s reforms to Abercromb ie’s employment system result from Rule 23(b)(2), not the

2 Decree. In any event, the binding effect is largely theoretical for a former employee such as

3 Guleke. Second, Plaintiffs submit that the Decree’s benefits are not only real but also substantial.

4 Moreover, Guleke has no standing to object because she has not submitted a claim form and has

5 excluded herself from the monetary relief. Third, there is no evidence at all of abuse of Class

6 Members’ privacy interests by the Claims Administrator SSI, and, again, Guleke has no standing

7 to raise issues concerning the claims procedure.

8

Fourth, Guleke’s opposition to the parties’ proposal that the Court appoint

9 Mr. Hughes as Special Master for implementation of the Consent Decree is meritless. She argues

10 that a mediator should not disclose mediation communications to a Special Master “appointed to

11 resolve all disputes arising under the Decree.” Guleke’s position stems from a misreading of the

12 Decree and a misconception of the legal principles governing consent decree implementation.

13 She is wrong that the Special Master will resolve all disputes; Section X.B. makes clear that the

14 Court itself is the ultimate arbiter of disputes under the Decree. Furthermore, the parties’ joint

15 proposal of Mr. Hughes as Special Master waives any objections in view of the advantages of his

16 knowledge and experience. Again, neither party nor the EEOC objects to the fact that Mr.

17 Hughes’s fee will be paid by Abercrombie. Nor is there any basis for analogizing Mr. Hughes’

18 prior service as the parties’ neutral mediator to serving as a lawyer for a party. In short, there is

19 neither a conflict of interest nor any appearance of impropriety.

20

D. The Objection of Rachel Potter.

21

Rachel Potter (a.k.a. “Rachel Lee Hoop”)4 and Leigh Foster, represented by some

22 of the same counsel, submitted substantially overlapping objections on March 7, 2005, each of

23 which is less than four pages, addressing a series of perceived shortcomings of the Consent

24 Decree in one or two paragraphs.5 The objections were conclusory and cited no legal authority.

25 4 See Bill Lann Lee Decl., ¶ 17, Ex. F (attaching Claim form of Rachel Lee Hoop (which lists 26 “Rachel Lee Potter” as a former name)).
5 By agreement of the parties, Foster’s counsel has withdrawn her objection subject to the Court’s 27 approval in exchange for the written assurance of Plaintiffs’ Counsel to provide notice and an
opportunity to comment upon any proposed modification of the Decree and to have the comments 28 brought to the attention of the Special Master and the Court, as well as Plaintiffs’ Counsels’

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1 The lone objection with merit is the discovery of a self-described “typographical” error, in which

2 the letter “D” should be changed to “C.” (The parties have agreed to make this change, subject to

3 the Court’s approval.)6

4

1. The Proposed Consent Decree Is Sufficiently Clear.

5

Potter objects that the Decree “is simply inadequate,” arguing that the 60-page

6 Consent Decree and the Notice “do not state how much money the class member is to potentially

7 receive.” Potter Objection, at 2. Potter also asserts that the Allocation Plan is “vague and

8 unclear,” Potter Objection, at 3, but specifies no particular phrase that is vague or unclear and

9 suggests no improvements to the Consent Decree. Potter’s counsel could have easily called Class

10 Counsel, Abercrombie’s counsel, the EEOC, or the Claims Administrator to better understand the 11 Consent Decree. Her counsel did not.7 See Interrogatory Responses of Rachel Potter, pp. 10-11

12 (answering only “None” or that “I spoke with my attorney” in response to interrogatories

13 regarding the effort she made to understand allocation to her or to the class members generally

14 under the Decree). Thousands of other Class Members chose the straightforward route of calling

15 for information. See Interim Report at 2-3 (summarizing over 5,000 instances of people

16 contacting Claims Administrator for information).

17

Notice need only provide “general” information about a settlement. See, e.g.,

18 Mendoza v. United Stat es, 623 F.2d 1338, 1352 (9th Cir. 1980) (“very general description of the

19 proposed settlement” satisfies standards); In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D.

20 57, 60 (S.D.N.Y. 1993) (Class notice “need only describe the terms of the settlement

21 generally.”).) “It is not necessary to include all of the details of the settlement, but only to ‘fairly

22 apprise’ class members of the terms of the settlement.” 5 Moore’s Federal Practice, § 23.83[2]

23 payment of $15,000 in attorneys’ fees. See Motion For Order Approving Withdrawal of
24 Objection Submitted By Leigh Foster, filed on April 11, 2005. 6 Potter also complains, without factual support, that the negotiated attorneys’ fees are
25 “excessive” and should “better correspond to the actual value” conferred, without specifying what a more appropriate fee would be. Potter Objection, at 5. This objection is addressed above.
26 7 Potter also complains that Exhibit C was not posted on the Claims Administrator’s website. It 27 was available from Counsel, the Clerk’s Office and the Claims Administrator, but her counsel
chose not to request it. See Interrogatory Responses of Rachel Potter, p. 10 (Bill Lann Lee Decl., 28 ¶ 18, Ex. G).

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1 (Matthew Bender 3d ed. 1999) (quoting Gottlieb v. Wiles, 11 F.3d 1004, 1013 (10th Cir. 1993)

2 (settlement notice was not deficient simply because it failed to specify exact formula to be used in

3 calculating amounts to be awarded to individual class members)). “[F]requently, . . . settlements

4 provide only the basic principles for determining [class member] awards, contemplating further

5 proceedings to ascertain the factual matters on which the awards depend.” MCL 4th, § 32.465, p.

6 597; 3 NEWBERG 4TH, § 8:32, at p. 265 (“It is unnecessary for the settlement distribution formula

7 to specify precisely the amount that each individual class member may expect to recover.”).

8 “Often, . . . the details of allocation and distribution are not established until after the settlement is

9 approved.” MCL 4th, § 21.313, pp. 295-96. Here, the Notice approved by the Court explained

10 the settlement process and monetary relief factors in significant detail.8

11

Usually, it is impossible for an individual class member to determine their

12 individual recovery (or even the average recovery) ex ante, because the number of claimants is

13 unknowable ex ante. See, e.g., United notice, p. 2 (explaining allocation as dependent on future

14 individualized fact determinations); Mitsubishi consent decree, ¶ 24 (explaining discretionary

15 allocation based on EEOC’s case-by-case determination of each claim’s value, based on five

16 factors); Rent-a-Center consent decree, p. 15 (providing individual monetary recovery contingent

17 on number of claimants and attorneys’ fees and costs to be taken out of fund); Boeing consent

18 decree, p. 18, 21-23 (same).

19

The proposed Decree is not vague. In addition to providing the total class

20 recovery, the proposed Decree provided the specific factors that would be used to evaluate

21 claims. These factors are: “length of service with Abercrombie; discrimination claims based on

22 race, national origin or gender in promotion, assignment, hire or termination; any personal injury,

23 such as emotional distress, suffered as a result of the discrimination; and any time or effort

24 devoted to the litigation.” Consent Decree at 56. (Potter’s counsel does not appear to have read

25 the Decree with a great amount of care, erroneously claiming that Plaintiffs’ fees and costs total

26 8 Potter’s objection also lacks sufficient support because she failed to “specify what amount 27 would fairly, adequately, and reasonably settle [her] monetary claims,” or to “state on what
grounds [s]he deserve s a larger share of the settlement funds.” Ellis v. Naval Air Rework Facility, 28 87 F.R.D. 15, 20 (N.D. Cal. 1980).

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1 $40 million. Potter Objection, at p. 4 n.1.)

2

2. The Court Retains Jurisdiction Over the Parties And Has Sole

Authority To Modify the Terms of the Consent Decree. 3

Potter misreads the Consent Decree to permit the parties to unilaterally modify the

4

60-page proposal and then objects to its own misreading.

5

First, Potter misconstrues Section VI.B., asserting that it allows the parties to

6

collusively abort the Consent decree’s term without Court approval, after payment of all

7

attorneys’ fees, Potter Objection, at 3, reading the first sentence in isolation. However, “[u]nless

8

and until the court issues an order granting the motion to be relieved, all provisions of the Decree

9

shall remain in full force and effect.” Section VI.B., at p. 9.

10

Second, Potter similarly argues that Section IX.B.2. allows the parties to modify

11

the Consent decree without Court approval. Potter Objection, at 3-4. This ignores the remainder

12

of the paragraph, which makes clear that Court approval is required to effectuate a modification.

13

More importantly, a consent decree is an order of the court. Only the court may

14

amend its own order. Decrees and commentators references to the parties’ ability to modify a

15

decree impliedly assume that such modifications require court approval. See, e.g., 8 NEWBERG

16

4TH, § 24:126, p. 494 (“Consent decrees that are approved as part of a class settlement may be

17

modified based on the experience of the parties implementing the decree.”) (citing Alaniz v.

18

California Processors, Inc., 73 F.R.D. 269 (N.D. Cal. 1976) (Title VII employment class action)

19

(approving certain modifications in consent decree agreed upon by the parties).

20

In fact, this Court approved a Consent Decree that contained almost identical

21

language in Butler v. Home Depot, Case Nos. C-94-4335 SI, C-95-2182 SI (N.D. Cal.) (“Class

22

Counsel and Home Depot may jointly agree to modify the Decree. . . .”). See Bill Lann Lee

23

Decl., ¶¶ 24-25, Exs. L-M (attaching consent decree and subsequent order in which the Court

24

modified two aspects of that Consent Decree in response to the parties’ stipulated proposed

25

order). Similar modification language has been used in other employment discrimination consent

26

decrees. See, e.g., Boeing consent decree at 63 (allowing the parties to “negotiate in good faith

27

over modifications that will ensure that the objectives of this Decree may be achieved”); Publix

28

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1 consent decree at 30 (providing that class counsel, the EEOC, and the defendant “may jointly

2 agree to modify the Decree”); Ingles consent decree at 14 (same, without EEOC).

3

3. The Release Is Narrow, Protecting Class Members’ Rights To the

Maximum Extent Feasible. 4

Potter next asserts that the release is “far too broad,” Potter Objection, at 4,

5

without specifying how the release is overbroad, by, for example, pointing to specific types of 6

claims (whether hers or hypothetical) that might be released. In actuality, the release is narrow. 7

Here, the release is limited to claims arising out of conduct during the liability period alleging 8
discrimination by race, color, national origin, and/or gender in employment. Section VIII.A., at 9

pp. 10-11. It explicitly excludes harassment claims. It does not release disability discrimination, 10

age discrimination, minimum wage, or overtime claims, for example. (In contrast, the named 11

Plaintiffs’ release is broader.) 12
Class action settlements commonly release “any and all related civil claims the 13

plaintiffs had against the settling defendant[] based on the same facts.” In re Baldwin-United 14

Corp., 770 F.2d 328, 337 (2d Cir. 1985); In re Corrugated Container Antitrust Litig., 15

643 F.2d 195, 221 (5th Cir. 1981). The release “may refer to all claims, both potential and actual, 16

that may have been raised in the pending action with respect to the matter in controversy.” 17
4 NEWBERG 4TH, § 12:15, pp. 310-11; id. at 312 & 312 n.6 (noting that it is typical for the 18

judgment to embrace “the claims that were asserted or that may arise out of the transactions or 19

events pleaded in the complaint”). 20

Comparable major employment discrimination settlements have often included 21
much broader releases than those here. See, e.g., Roberts v. Texaco Inc., 94 Civ. 2015 at 5 (CLB) 22

(S.D.N.Y.) (releasing age, disability, gender, and religion discrimination claims in racial 23

discrimination class action); Coca-Cola consent decree at 31 n.10 (releasing “all employment 24

claims” including workers’ compensation, age, disability, gender, and religion discrimination, 25
libel, slander, assault and invasion of privacy). 26

4. Plaintiffs Agree that the Single-Letter Typographical Error Should Be

27

Corrected.

28

Potter points out a typographical error in Section VIII.C. Potter Objection, at 4.

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1 The last sentence begins, “This Section VIII.D.” Because the sentence is within Section VIII.C.,

2 the letter “D” should be changed to “C.”9 As described in the Motion For Order Approving

3 Withdrawal of Objection Submitted By Leigh Foster, filed on April 11, 2005, this change has

4 already been addressed through the discussions between Class Counsel and Objector Foster’s

5 counsel.

6

5. The Monitoring Mechanisms Are Adequate.

7

Potter argues that the monitoring mechanisms are inadequa te for failing to award

8 attorneys’ fees to successful challenges, asserting that the fixed payment to Class Counsel for

9 such future challenges is an insufficient incentive for Class Counsel to uphold their duty. Potter

10 Objection, at 4-5. This criticism is meritless.

11

As an initial matter, the Consent Decree provides multiple overlapping

12 enforcement mechanisms, which together ensure that Class Members’ interests are more than

13 adequately protected: (1) a Court-appointed Monitor, (2) a Court-appointed Special Master,

14 (3) judicial oversight, including annual status reports and hearings, (4) regular compliance

15 meetings, (5) extensive reporting and recordkeeping, and (6) oversight by Class Counsel and

16 EEOC.

17

Class Counsel will satisfy their ongoing obligations to the Class by properly

18 seeking out and presenting instances of noncompliance to the Special Master. The liquidated

19 $600,000 allocated for future attorneys’ fees is staggered in six declining annual payments from

20 2005 to 2010. Section XVIII.B., p. 59. The Home Depot Consent Decree contained a similar

21 provision. Id. at 82 (staggering payments over several years after final approval date). The

22 Court, which will hold annual hearings, will of course be able to gauge whether Class Counsel are

23 fulfilling their duties.

24

Potter also criticizes omitting the EEOC from seeking fees. Potter Objection, at

25 p. 4. However, the EEOC is precluded by statute from recovering fees under Title VII. 42 U.S.C.

26

27 9 Although Objectors Foster and Potter could have brought it to the parties’ attention by a simple phone call or other informal contact, Objectors instead chose to bring a formal objection to the
28 Consent Decree.

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1 § 2000e-5(k) (permitting parties, but not the EEOC, to recover costs and attorney's fees). This

2 fact will not prevent the EEOC from fulfilling its duties under the Consent Decree.

3

6. The 125% Opt-Out Credit Is Reasonable.

4

Potter further asserts that the 125% credit that Abercrombie receives for each opt-

5 out is excessive because the “percentage returned . . . to Abercrombie should never exceed the

6 amount paid to [the] average Class Member.” Potter Objection, at 3. Potter cites no authority or

7 logic. To the contrary, a 125% credit is reasonable because opt-outs are likely to litigate their

8 claims individually, imposing defense costs on Abercrombie and exposing Abercrombie to

9 greater-than-average liability risk.

10

“A lump sum settlement offer by defendants may contain a provision that entitles

11 the defendants to reduce the settlement fund on exclusion of a substantial portion of class claims.”

12 4 NEWBERG 4TH, § 12:13, p. 307; id. at p. 308 (citing State of W. Va. v. Chas. Pfizer & Co., 314

13 F. Supp. 710 (S.D.N.Y. 1970) (approving reduction of settlement from $100 million to $83

14 million based on opt-out credits)). Similar employment discrimination class actions have similar

15 provisions. For example, the Publix consent decree provided for an opt-out credit to the

16 defendant of $20,000-150,000 per class member who opted out, up to a total of $4,000,000 in opt-

17 out credits. Id. at 106-08. Similarly, in Ingles, the defendant received $37,500 or $5,000 for each

18 opt-out, up to a total of $1,000,000. Id. at 67.

19

In the instant case, the Claims Administrator has calculated that average Class

20 Member awards should range from $1,449 to $2,757. Interim Report at 6-7. The average opt-out

21 credits therefore range from $1,811 to $3,446. These amounts do not provide Abercrombie

22 generous amounts to defend individual cases. The objection to the size of the opt-out credit is

23 without merit.

24 VI. THE PROPOSED CLASS REPRESENTATIVE AND CHARGING PARTY AWARDS ARE FAIR, REASONABLE, AND ADEQUATE.
25
In accordance with routine class action practice, the parties propose that the named 26
plaintiffs receive awards to provide fair compensation for their contribution to the litigation. 27
These awards are in place of their recovery as Class members, and compensate them for their 28

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1 investment of time and effort, their exposure to the risks of retaliation and harassment, the

2 invaluable service they provided during the pre- and post- filing investigation of potential

3 discrimination, and their broader claims releases.

4

“Settlement agreements in employment discrimination class actions may contain

5 provisions awarding monetary recoveries and other special benefits to named plaintiffs for their

6 unique claims.” 8 NEWBERG, § 24:129, p. 504-05; cf. Amchem Prods., Inc. v. Windsor, 521 U.S.

7 591, 617 (1997) (“The policy at the very core of the class action mechanism is to overcome the

8 problem that small recoveries do not provide the incentive for any individual to bring a solo

9 action prosecuting his or her rights.”). The Ninth Circuit recently addressed the issue of

10 representative plaintiff awards in Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003), affirming that

11 named plaintiffs can receive reasonable incentive awards. In order to determine whether an

12 award was reasonable, the Ninth Circuit held that a court must individually evaluate the awards,

13 considering relevant factors, including each plaintiff’s actions for the interests of the class, the

14 degree of benefit to the class by those actions, the amount of time and energy a plaintiff has

15 expended for the litigation, and reasonable fears of workplace retaliation. Staton, 327 F.3d at

16 977.

17

In accordance with Staton, Plaintiffs’ counsel made individualized determinations

18 of each named Plaintiff and Charging Party award based on several factors, including an

19 assessment of their claims, pendency of administrative charges, participation in media outreach to

20 the Class, deposition and other involvement in investigative proceedings, or preparing written

21 discovery. These determinations are summarized in Bill Lann Lee Decl., ¶ 8, Ex. B.

22

In Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001), the Court approved

23 incentive awards of $300,000 to each named plaintiff in recognition of the services they provided

24 to the class by responding to discovery, participating in the mediation process and taking the risk

25 of stepping forward on behalf of the class. Id. at 694. In Boeing, the consent decree stated that

26 the 12 named plaintiffs would apply for awards of $100,000 each, for a total of $1.2 million, or

27 1.6% of the $75 million fund. Id. at 26. (This was partly in compensation for the broader release

28 of claims that they made. Id. at 27.) In Publix, each of the 12 named plaintiffs who did not opt

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1 out received $67,710, taken from the total monetary fund of $63.5 million (for a total of 1.3%).

2 Id. at 96-97. The United consent decree provided payments of $3,350,663 to the 13 named

3 plaintiffs, or 11.1% of the total, for an average of roughly $258,000 per named plaintiff. United

4 notice p. 2. The Rent-a-Center, consent decree provided payments of $100,000 each to 19 named

5 plaintiffs and 3 charging parties (for a total of $2.2 million), and $55,000 each to several other

6 named plaintiffs. Id. at 12-13. Likewise, this Court recently ordered named plaintiff awards of

7 $30,000 and $28,125 (above and beyond their compensation as class members) to two named

8 plaintiffs in an overtime pay class action. Scherrer, at 12.10

9

“[I]t is not uncommon for class members with prior charges of discrimination to

10 receive special relief in settlement.” League of Martin v. City of Milwaukee, 588 F. Supp. 1004,

11 1024 (E.D. Wis. 1984) (Title VII) (holding that individual relief for a named plaintiff, who “filed

12 the EEOC charge upon which this lawsuit is based and has been instrumental in prosecuting this

13 lawsuit since the date it was filed,” was appropriate); Kyriazi v. Western Elec. Co., 527 F. Supp.

14 18, 20 (D.N.J. 1981) (Title VII) (ordering back pay of $103,507 and reinstatement for single

15 named plaintiff in addition to $7 million settlement for which 2000 potential class members

16 submitted claim forms); Women's Comm. For Equal Employment Opportunity v. National

17 Broadcasting Co., 76 F.R.D. 173, 180 (S.D.N.Y.1977) (Title VII) (approving awards ranging

18

19 10 See also In Re S. Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997) (approving $303,000 payment to each class representative plaintiff in employment case settling before class
20 certification); Martens v. Smith Barney, No. 96 Civ. 3779, 1998 WL 1661385 *4 (S.D.N.Y. July 28, 1998) and 181 F.R.D. 243, 262 (S.D.N.Y. 1998) (approving payments of up to $150,000 for
21 named plaintiffs, for a total of $1.9 million in incentive payments for employment case settling prior to class certification); Roberts v. Texaco, 979 F. Supp. 185 (S.D.N.Y. 1997) (approving
22 incentive payments up to $85,000 for named plaintiffs in employment case settling prior to class certification); Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294 (N.D. Cal. 1995)
23 (approving $50,000 participation award); Bogosian v. Gulf Oil Corp., 621 F.Supp. 27 (E.D. Pa. 1985) (award of $20,000 each to two class representatives); Bryan v. Pittsburgh Plate Glass Co.,
24 59 F.R.D. 616, 617 (W.D. Pa. 1973), aff’d, 494 F.2d 799 (3d Cir.) (payments of $17,500 each to individual class members who aided in advancing Title VII case); Enterprise Energy Corp. v.
25 Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 (S.D. Ohio 1991) (approving $50,000 awards to named plaintiffs, from settlement with current cash value of $32 million in consumer
26 case); In re Dun & Bradstreet Credit Services Customer Litig., 130 F.R.D. 366, 374 (S.D. Ohio 1990) (approving $35,000 to $55,000 awards to corporate named plaintiffs, from settlement of
27 $18 million in consumer case); Cimarron Pipeline Const., Inc. v. National Council on Compensation Ins., 1993 WL 355466, at *2 (W.D. Okla. June 8, 1993) (approving $10,000
28 awards to corporate named plaintiffs, from settlement of $35 million in securities case).

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1 from $1,336 to $35,174 for named plaintiffs, equaling roughly 71% of their total damages, in

2 addition to settlement of $1.5 million plus injunctive relief).

3

In sum, the factors courts use in determining the amount of incentive payments

4 include (1) a comparison between the incentive awards and the range of monetary recovery

5 available to the class; Ingram, 200 F.R.D. at 694; Roberts, 979 F. Supp. at 204; (2) time and effort

6 put into the litigation; Van Vranken, 901 F. Supp. at 299; Cook v. Niedert, 142 F.3d 1004, 1016

7 (7th Cir. 1998); (3) whether the litigation will further the public policy underlying the statutory

8 scheme, Roberts, 979 F. Supp. at 201 n.25; (4) risks of retaliation, Roberts, 979 F. Supp. at 202,

9 Cook, 142 F.3d at 1016; and (5) compromise of unique individual claims, Women’s Comm. for

10 Equal Employment Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977).

11

The average amount awarded to the Class Representatives in this litigation is less

12 than $16,000, inclusive of monetary relief for their claims, which is well within the range of

13 awards courts have permitted named plaintiffs. See Exhibit C to Consent Decree (listing

14 individual Named Plaintiff and Charging Party awards). The valuable efforts of the class

15 representatives and charging parties, their willingness to litigate and pursue their representative

16 claims, and the strength of their claims have resulted in a settlement that will benefit all

17 Settlement Class Members. Bill Lann Lee Preliminary Approval Decl., ¶ 32. The payment of

18 approximately 0.9% of the $40 million total to 16 Class Representatives additional Charging

19 Parties is appropriate. Class Representatives and Charging Parties, unlike Class Members, are

20 required to execute broader releases and to forego payments under the normal Claims process.

21 VII. THE PROPOSED FEE IS LIKEWISE FAIR, REASONABLE, AND ADEQUATE.

22

“Attorneys' fees provisions included in proposed class action settlement

23 agreements are, like every other aspect of such agreements, subject to the determination whether

24 the settlement is "fundamentally fair, adequate, and reasonable.” Staton v. Boeing Co., 327 F.3d

25 938, 963 (9th Cir. 2003) (quoting Fed. R. Civ. Proc. 23(e)). To be fair, adequate, and reasonable,

26 the fees should be “not unreasonably high.” Id. at 964.

27

Adequate compensation for Class counsel is socially beneficial:

28

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1

The contingent fee and the class action are “the poor man's keys to

the courthouse.” Both vehicles allow the average citizen and

2

taxpayer to have their injuries redressed and their rights protected.

Both permit persons of limited resources to obtain competent legal

3

counsel, an essential ingredient in our adversary system of justice.

4 Muehler v. Land O'Lakes, Inc., 617 F. Supp. 1370, 1375 (D. Minn. 1985).
5 Where, as here, counsel’s efforts create a fund and/or nonmonetary benefits
6 available to a class, “the district court has discretion to use either [the percentage or the lodestar]
7 method.” In re Washington Public Power Supply System Sec. Litig., 19 F.3d 1291, 1295 (9th Cir.
8 1994). Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984) (noting that the traditional method for
9 calculating a common fund fee is to award a percentage of the total fund); Six (6) Mexican
10 Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (same). “Whether a
11 court applies the lodestar or the percentage method, ‘we require only that fee awards in common
12 fund cases be reasonable under the circumstances.’” In re Washington Public Power Supply
13 System Sec. Litig., 19 F.3d 1291, 1294 n.2 (9th Cir. 1994) (quoting Florida v. Dunne, 915 F.2d
14 542, 545 (9th Cir. 1990)).
15 First, the lodestar method involves multiplying the number of hours reasonably
16 expended by the reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983). The court
17 may reduce the hours claimed where the time was not reasonably expended, but must provide an
18 explanation for the reduction. Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001). The
19 hourly rates used must be “in line with those prevailing in the community for services by lawyers
20 of reasonably comparable skill, experience and reputation.” Blum, 465 U.S. at 886, 895.
21 “[A]pplying the attorneys’ current rates” is appropriate as a means of compensating for the delay
22 in payment. In re Washington Public Power Supply System Sec. Litig., 19 F.3d 1291, 1305 (9th
23 Cir. 1994).
24 The next step in the lodestar method is to determine whether to grant a multiplier,
25 based the Kerr factors (listed below) that are not accounted for in the lodestar determination.
26 Chalmers v. City of Los Angeles, 796 F.2d 1205, 1212 (9th Cir. 1986); In re Washington Public
27 Power Supply System Sec. Litig., 19 F.3d 1291, 1303 (9th Cir. 1994) (holding that district court
28

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1 abused its discretion in denying a lodestar multiplier).11

2

Second, the percentage-of-fund method involves awarding a reasonable percentage

3 of the fund to the attorneys. The Ninth Circuit has approved of the approach of setting the

4 benchmark percentage-based fee awards at “25 percent . . .[, which] can then be adjusted upward

5 or downward to account for any unusual circumstances involved in this case.” Paul, Johnson,

6 Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). In addition, fees in comparable

7 cases (as a percent of total recovery) are particularly relevant. Vizcaino v. Microsoft, 290 F.3d

8 1043, 1050 n.4 (9th Cir. 2002) (approving fee of 28% of $97 million recovery) (surveying 34

9 recent “megafund” cases valued at $50-200 million in recovery, and finding that “most [fee]

10 awards” are between 10% and 30% of the total recovery, and “a bare majority” are “clustered in 11 the 20-30% range”).12 “[O]ne purpose of the percentage method is to encourage early settlements

12 by not penalizing efficient counsel, thus ensuring that competent counsel continue to be willing to

13 undertake risky, complex, and novel litigation.” MCL 4th, § 14.122, p. 193 (citing Deposit Guar.

14 Nat’l Bank v. Roper, 445 U.S. 326, 338-39 (1980) (recognizing the importance of a financial

15 incentive to entice qualified attorneys to devote their time to complex, time-consuming cases in

16 which they risk nonpayment)).

17

In the instant case, Plaintiffs used a lodestar method to determine the fee after the

18 substantial injunctive and monetary relief had been negotiated. Bill Lann Lee Decl., ¶ 16;

19 Hughes Decl., ¶ 11; Gochanour Decl., ¶ 7. A percentage-based cross-check provides a means of

20 confirming the reasonableness of the fee. Hanlon, 150 F.3d at 1029 (approving of the district

21 11 Where plaintiffs attain relief under both federal and California state law, it is appropriate to enhance the lodestar fee with a multiplier based on state law, even though the multiplier is not
22 available under the federal substantive law. Mangold v. California Public Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995) (affirming multiplier of two, where plaintiffs brought both
23 ADEA and FEHA claims); Scherer, at 3 (same).
24 12 Authority in other Circuits is consistent. In re Safety Components Int’l, Inc., 166 F. Supp.2d 72, 101-04 (D.N.J. 2001) (surveying percentage of fund awards across Third Circuit and finding
25 awards well above 25 percent to be common) ; In re Warner Communications Sec. Litig., 618 F. Supp. 735, 749 (S.D.N.Y. 1985), aff’d, 798 F.2d 35 (2d Cir. 1986) (“[t]raditionally, courts in this
26 Circuit and elsewhere have awarded fees in the 20%-50% range in class actions”); Manners v. American Gen. Life Ins. Co., 1999 WL 33581944, at *29 (M.D. Tenn., Aug. 11, 1999) (citing
27 cases and stating that “throughout the Sixth Circuit, attorneys’ fees in class actions have ranged from 20%-50%”); Wise v. Popoff, 835 F. Supp. 977, 980 (E.D. Mich. 1993) (holding that courts
28 routinely award fees ranging from 20-50 percent of the common fund).

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1 court’s apparent review of the negotiated fees under a lodestar methodology, then conducting a

2 brief percentage review as a cross-check); cf. MCL 4th, § 14.121, p. 178 (noting that “seven

3 courts of appeals permit awarding fees by either the percentage- fee or lodestar method or both

4 (generally using the lodestar as a cross-check)”).

5

Under either method, the court should gauge the reasonableness of the fee by

6 considering the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975):

7

(1) the time and labor required,

(2) the novelty and difficulty of the questions involved,

8

(3) the skill requisite to perform the legal service properly,

(4) the preclusion of other employment by the attorney due to

9

acceptance of the case,

(5) the customary fee,

10

(6) whether the fee is fixed or contingent,

(7) time limitations imposed by the client or the circumstances,

11

(8) the amount involved and the results obtained,

(9) the experience, reputation, and ability of the attorneys,

12

(10) the 'undesirability' of the case,

(11) the nature and length of the professional relationship with the

13

client, and

(12) awards in similar cases. 14

Id. at 70 (lodestar method); Loring v. City of Scottsdale, Ariz., 721 F.2d 274, 275 (9th Cir. 1983) 15

(percentage method) (citations omitted). Factors 1, 2, 3, 4, 5, and 9 are generally accounted for in 16

the lodestar, and are not necessary to the determination of the multiplier here. They are discussed 17

below because of their relevance to the percentage determination. 18

A. The Time and Labor Required Were Substantial. 19

Class counsel expended substantial time and labor in securing the significant relief 20

for the Class. In total, the private firms and public interest organizations invested approximately 21

13,187 hours of attorney, law clerk, and support staff time. See declarations of Class Counsel. 22

MALDEF in particular has prosecuted the case for six years, since 1999, when the first charge of 23

discrimination was filed with the EEOC. See Saenz Decl., ¶ 12. Once the case was filed, Class 24

Counsel quickly and intensively conducted extensive class discovery in both cases, and engaged 25

in substantial research into the factual and legal issues, as evidenced by Plaintiffs’ Mediation 26

Brief. During the six- month mediation, Class Counsel continued to prepare for class certification 27

and trial. Notably, Class counsel prepared and collected over 170 signed Class Member and 28

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1 witness declarations, and conducted hundreds of other interviews. See Plaintiffs also expended

2 significant resources in extensive expert statistical, industrial, psychological, and sociological

3 analyses of Defendant’s employment data and employment practices. See, e.g., Bill Lann Lee

4 Preliminary Approval Decl., ¶¶ 10, 16.

5

B. The Questions Involved Were Novel and Difficult.

6

The questions involved raised novel and difficult issues. Plaintiffs alleged “image

7 discrimination,” a form of subjective stereotyping. Abercrombie was in a position to defend

8 against substantial backpay exposure with evidence of the opportunity for easy mitigation of

9 damages due to the low-age and part-time nature of the jobs, high industry turnover, and general

10 labor pool mobility. Furthermore, Plaintiffs’ emotional distress claims were susceptible to attack

11 at the class certification stage on commonality grounds, and at the merits stage on grounds of

12 provability and degree of harm.

13

C. The Case Required Significant Skill to Perform the Legal Service Properly.

14

The prosecution of this case required significant legal skill, as indicated in the

15 previous factor, and the staying power and managerial competence to pursue the litigation in

16 coordinated fashion with a large team of private and public interest co-counsel, and against a

17 determined adversary. The case also required significant negotiation skills and knowledge of

18 remedial options to conduct a successful protracted negotiation in the extended mediation.

19

D. Class Counsel Were Precluded From Other Employment Due to Acceptance

of the Case. 20

The attorneys who took the laboring oar in the litigation were precluded from other 21

employment by their substantial investment of time and resources in this litigation once the action 22

was filed. 23

E. The Customary Fee and Awards in Similar Cases, Whether Measured Under

24

the Lodestar Method or the Percentage Method, Support the Fee Application.

25

The customary fee in complex employment discrimination class action cases – as

26 confirmed in similar cases13 – is measured either by the lodestar method or as a percentage of the

27 fund generated. Under either method, the fee is reasonable.

28 13 The fifth and twelfth Kerr factors are addressed together here.

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1

1. The fee is reasonable under the lodestar-multiplier method.

2

The fee request is reasonable in light of the amount of time and expense invested

3 by Class Counsel during the course of investigation and litigation. Class Counsel conducted

4 extensive discovery, including interviewing hundreds of witnesses and potential class members to

5 secure over 170 signed declarations. Class Counsel invested significant resources of time and

6 money in legal, statistical, industrial, psychological, and sociological analyses of the case, and in

7 extensive negotiations. These efforts are all reflected in counsel’s contemporaneously-kept time

8 records. See Bill Lann Lee Decl., ¶¶ 9-16, Exs. C-E (attaching fee and cost data for Lieff,

9 Cabraser, Heimann & Bernstein, LLP); Saenz Decl., ¶¶ 11-19, Exs. B, C, & D (attaching fee and

10 cost data for Mexican American Legal Defense and Educational Fund); Declaration of Kimberly

11 West-Faulcon, ¶¶ 11, 16, Exs. C & D (attaching fee and cost data for NAACP Legal Defense and

12 Educational Fund); Declaration of Minah Park, ¶¶ 14-15, Exs. A & B (attaching fee and cost data

13 for Asian Pacific American Legal Center); D’Urso Decl., ¶¶ 10, 15, Ex. A (attaching fee and cost

14 data for Kohn, Swift & Graf, P.C.); Declaration of Barry Goldstein, ¶ 10, Ex. C (attaching fee

15 data for Barry Goldstein); Declaration of Jack Lee, ¶¶ 21, 26, Exs. A & C (attaching fee and cost

16 data for Minami, Lew & Tamaki LLP); Declaration of Sidney L. Gold, ¶ 10, Ex. A (attaching fee

17 data for Sidney L. Gold & Associates, P.C.); Declaration of Bryan Clobes, ¶¶ 11, 16, Exs. B & E

18 (attaching fee data for Miller Faucher); Declaration of Cleo Fields, ¶¶ 12, 17, Ex. A & B

19 (attaching fee and cost data for Rainbow/PUSH Coalition); Declaration of James Keller, ¶¶ 11, 20 16, Ex. A (attaching fee and cost data for Gottesman & Associates).14 For the Court’s

21 convenience Exhibit 2 to this document contains a summary compilation of the firms’ and

22 nonprofit organizations’ hours, lodestars, and costs.

23

The raw lodestar for Class Counsel amounts to $4,072,304. The Consent Decree

24 provides for fees and costs together of $7,250,000. Total costs equal roughly $540,000, leaving

25

26

27 14 Calculation of a lodestar based on current hourly rates is appropriate as a means of compensating for delay in payment. Missouri v. Jenkins by Agyei, 491 U.S. 274, 283-84 (1989);
28 Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991).

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1 approximately $6,710,000 as fees.15 This corresponds to a 1.65 multiplier on the raw lodestar

2 amount.

3

When awarding fees based on California law, such as the FEHA claims pleaded by

4 Plaintiffs here, the trial court has substantial discretion to adjust the lodestar. PLCM Group, Inc.

5 v. Drexler, 22 Cal. 4th 1084, 1095-96 (2000); Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19,

6 40-45 (2002). The court may augment the lodestar upon consideration of various factors,

7 including, but not limited to, the novelty and difficulty of the questions involved and the skill

8 displayed in presenting them, and the contingent nature of the fee award, both from the point

9 view of eventual victory on the merits and the point of view of establishing eligibility for an

10 award. Serrano v. Priest, 20 Cal. 3d at 25, 49 (1977). In California, courts regularly use a

11 multiplier of 2.0 or greater in statutory fee cases to approximate market fees. See, e.g., Mangold

12 v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478-79 (9th Cir. 1995) (2.0); City of Oakland v.

13 Oakland Raiders, 203 Cal. App. 3d 78, 82-85 (1988) (2.34); Coalition for Los Angeles County

14 Planning in the Pub. Interest v. Bd. of Supervisors of Los Angeles County, 76 Cal. App. 3d 241,

15 251 (1977) (slightly above 2.0). In fact, “[m]ultipliers in the 3-4 range are common in lodestar

16 awards for lengthy and complex class action litigation.” Van Vranken v. Atlantic Richfield Co.,

17 901 F. Supp. 294, 298 (N.D. Cal. 1995); Wershba v Apple Computer, Inc., 91 Cal. App. 4th 224,

18 255 (2001) (“Multipliers can range from 2 to 4 or even higher.”); In re Unisys Corp. Retiree

19 Medical Benefits ERISA Litig., 886 F. Supp. 445, 482 (E.D. Pa. 1995) (noting that “the range of

20 multipliers in large and complicated class actions has ranged from 2.26 to 4.5”) (citing Behrens v.

21 Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D. Fla. 1988) (listing 9 cases in that range and

22 awarding a 3.0 multiplier)).

23

By comparison, this Court in Scherrer v. Group Voyagers, Inc., No. C 99-04834,

24 (N.D. Cal. March 8, 2005), a class action asserting employees’ overtime pay rights, awarded

25

26 15 At the time of the Preliminary Approval hearing, Class Counsel estimated that approximately $400,000 of this amount would be allocated to costs. Since that time, Class Counsel have
27 received bills for further costs, and the total cost figure is roughly $540,000 at this point. Regardless, because the fees and costs amount is fixed, the increased costs do not change the
28 amount paid by Abercrombie or the amounts recovered by the Class Members.

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1 $3,286,916 in fees after a settlement for $14-15 million. Id. at 2, 10 (Bill Lann Lee Decl., ¶ ___,

2 Ex. K). There, the Court granted a multiplier of 1.4 based on an analysis of the Kerr factors.

3 Group Voyagers is distinguishable in four ways. First, Abercrombie Class counsel was efficient,

4 bringing this complex case to resolution prior to moving for class certification less than two years

5 after filing, whereas the parties in Group Voyagers spent more than four years and “wasteful[ly]”

6 went to the brink of trial twice. Id. at 10. Second, Abercrombie Class counsel secured substantial

7 injunctive relief to prevent recurrence of alleged discriminatory policies and practices and six-

8 year monitoring, whereas the relief in Group Voyagers was solely monetary. Id. at 1-2. Third,

9 the effective percentage of total recovery sought here (14%) is less than that sought (30-31%) or

10 actually awarded (18-19%) in Group Voyagers. Fourth, comparable complex employment

11 discrimination consent decrees, as discussed below, have involved higher percentage awards.

12

2. The fee is also reasonable under the percentage method.

13

As outlined above, the Ninth Circuit benchmark percentage award is 25%. Paul,

14 Johnson, Alston & Hunt v. Graulty, 886 F.2d at 272; Vizcaino v. Microsoft, 290 F.3d at 1050 n.4

15 (finding that “a bare majority” of recent awards in “mega fund” cases are “clustered in the 20-

16 30% range”). The Manual for Complex Litigation observes that “[a]ttorney fees awarded under

17 the percentage method are often between 25% and 30% of the fund.” MCL 4th § 14.121, p. 188

18 (“Awarding attorneys 25% of a common fund represents a typical benchmark.”); id. at p. 188

19 n.488 (citing In re Pac. Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) for the proposition

20 that the benchmark is “25% with adjustments up to 33% for complexity, risk, and nonmonetary

21 results”).

22

Recent comparable employment discrimination settlements have provided higher

23 fees than that sought by Plaintiffs’ Counsel as a percent of the total fund paid by defendant,

24 generally ranging from 18 to 25%, even where the absolute amounts were higher. See, e.g.,

25 Boeing at 56 (stating class counsel’s intent to seek 25% of the fund as fees, up to $15 million,

26 plus costs up to $3 million); Publix at 109-10 (providing 22% or $18 million in fees and costs for

27 work performed before and after approval date on top of $63.5 million in monetary relief); Rent-

28 a-Center at 58 (providing up to 22%, or fee up to $10.5 million, plus costs of up to $775,000, to

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1 be paid out of the settlement fund of $47 million); Shoney’s at 60; 86-89 (awarding 20%, or $25.5

2 million in attorneys’ fees and costs on top of a monetary fund of $105 million) ; Coca-Cola at 36-

3 37 (awarding 18%, or $20 million on top of $90 million in monetary relief).

4

Here, the amount payable by Abercrombie for the Class’s benefit is roughly

5 $49.45 million. 16 The proposed, effective percentage fee of 14% of total monetary recovery is

6 reasonable in light of the customary fee in comparable contingent employment discrimination and 7 other cases.17

8

F. The Contingent Nature of the Fee Supports the Proposed Award.

9

The contingent nature of the case also supports the fee request. As described

10 above, Class Counsel were not guaranteed success once they filed suit. Bill Lann Lee

11 Preliminary Approval Decl., ¶¶ 33-34 (describing risk at trial and appellate stages, and substantial

12 potential difficulty and delay in achieving significant injunctive relief). Furthermore, Plaintiffs

13 faced a determined opponent with substantial defenses.

14

Reward for contingency risk in cases such as this one is appropriate in the Ninth

15 Circuit. “It is an established practice in the private legal market to reward attorneys for taking the

16 risk of non-payment by paying them a premium over their normal hourly rates for winning

17 contingency cases. Contingent fees that may far exceed the market value of the services if

18 rendered on a non-contingent basis are accepted in the legal profession as a legitimate way of

19 assuring competent representation for plaintiffs who could not afford to pay on an hourly basis

20 regardless whether they win or lose.” In re Washington Public Power Supply System Sec. Litig.,

21 19 F.3d 1291, 1299 (9th Cir. 1994) (citing Richard Posner, ECONOMIC ANALYSIS OF LAW § 21.9,

22 at 534-35 (3d ed. 1986) and other authority); In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 569 (7th

23 Cir. 1992) (“[T]he failure to make any provision for risk of loss may result in systematic

24 undercompensation of Class Counsel in a class action case, where as we have said the only fee

25 16 The monetary relief of $40,000,000, plus fees and costs of $7,250,000, plus $600,000 for future monitoring, plus $600,000 in notice costs paid by Abercrombie, plus imputed interest for one
26 year at 2.5% of roughly $1,000,000, equals approximately $49,450,000.
27 17 The denominator of the percentage calculation includes the fees and costs because “those fees are still best viewed as an aspect of the class’ recovery.” In re General Motors Corp. Pick-up
28 Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 821 (3rd Cir. 1995).

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1 that counsel can obtain is, in the nature of the case, a contingent one.”); In re Shell Oil Refinery,

2 155 F.R.D. 552, 571 (E.D. La. 1993) (observing that the contingency fee system “permits a

3 greater recovery for successful cases, thereby rewarding investment in successes and offsetting

4 the losses from unsuccessful cases.”). Such is the law in California as well. Ketchum v. Moses,

5 24 Cal. 4th 1122, 1131-32 (2001).

6

G. The Time Limitations Imposed by the Client and the Circumstances Support

the Fee Award. 7

The compressed and overlapping discovery, mediation, and class certification 8

phases of the litigation resulted from the Court’s pretrial schedule. The parties reached settlement 9

prior to class certification, saving the parties and the Court time and resources. 10

H. The Amount Involved Was Substantial and the Results Obtained Were

11

Exceptional, Including $40 million for the Class as Well as Robust Injunctive

Relief. 12

The amount involved and results obtained strongly support the fee award. Class 13

Counsel secured substantial injunctive relief, as described above, as well as the approximately 14

$40 million in cash compensation for the Class, separate from fees or costs. The value of the 15

forward-looking injunctive relief is not quantifiable, and will inure to the benefit of Class 16

Members and other minority and female applicants and employees of Abercrombie for years to 17

come. 18

Courts customarily take nonmonetary relief into account when valuing the benefit 19

conferred upon the class. Vizcaino, 290 F.3d at 1049 (noting that a higher fee was warranted in 20

part because “counsel’s performance generated benefits beyond the cash settlement fund,” such as 21

the defendant’s agreement to hire class members and “change its personnel classification 22

practices”); id. (an upward adjustment to the lodestar is appropriate “to reflect the benefits to the 23

public flowing from [the] litigation”) (quoting Bebchick v. Wash. Metro. Area Transit Comm'n, 24

805 F.2d 396, 408 (D.C. Cir. 1986)); Morales v. City of San Rafael, 96 F.3d 359, 364 (9th Cir. 25

1996) (instructing district court, “in determining a reasonable fee award on remand,” to “consider 26

not only the monetary results but also the significant nonmonetary results [plaintiff] achieved for 27

himself and other members of society”) ("[A] civil rights plaintiff seeks to vindicate important 28

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1 civil and constitutional rights that cannot be valued solely in monetary terms.") (quoting Riverside

2 v. Rivera, 477 U.S. 561, 574 (1986) (plurality opinion)); Loring v. City of Scottsdale, Ariz., 721

3 F.2d 274, 275 (9th Cir. 1983) (reversing district court’s fee determination for failure to take into

4 account nonmonetary benefits to class).

5

I. Class Counsel Have a High Degree of Experience, Reputation, and Ability.

6

Class counsel’s experience, reputation, and ability also justify the fee award. The

7 attorneys contributing the bulk of the work to the case, Bill Lann Lee for Lieff, Cabraser,

8 Heimann & Bernstein, Thomas A. Saenz of MALDEF, and Martin D’Urso of Kohn, Swift &

9 Graf, have extensive experience litigating complex employment discrimination class actions, and

10 other class actions in general. See their Declarations.

11

J. The Case Was Somewhat Undesirable.

12

The undesirability of the case is a minor factor supporting the award.

13 Abercrombie is a well-established, huge corporation that had withstood the charges of

14 discrimination on file with the EEOC until these lawsuits were filed.

15

K. Class Counsel’s Professional Relationship with the Class Representatives Was

Longstanding. 16

As described above, the nature and length of the professional relationships 17

between Class Counsel and the Class Representatives support the fee award. Class Counsel 18

worked diligently not only to pursue compensation for the Class Representatives but also to seek 19

substantial programmatic changes in Abercrombie’s approach to hiring, promotions, and 20

diversity, in accordance with their clients’ wishes. 21

CONCLUSION 22

For all the foregoing reasons, the parties respectfully request that this Court grant 23

final approval to the Consent Decree with the following exceptions: [to be provided]. 24

25

26

27

28

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1 Respectfully submitted,

2 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
3 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
4 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
5 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
6 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
7 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
8 Thomas A. Saenz (SBN 159430)
9 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
10 AND EDUCATIONAL FUND 634 South Spring Street
11 Los Angeles, CA 90014 Telephone: (213) 629-2512
12 Facsimile: (213) 629-0266

Julie Su Minah Park ASIAN PACIFIC AMERICAN LEGAL
CENTER 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017
Kimberly West-Faulcon NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC. 1055 Wilshire Blvd., Suite 1480 Los Angeles, CA 90017

13 Joseph C. Kohn Martin J. D’Urso
14 Hilary Cohen KOHN, SWIFT & GRAF, P.C.
15 One South Broad Street, Suite 2100 Philadelphia, PA 19107
16 Telephone: (215) 238-1700 Facsimile: (215) 238-1968
17 Jack W. Lee, Esq. (SBN 071626)
18 Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532)
19 MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor
20 San Francisco, CA 94108 Telephone: (415) 788-9000
21 Facsimile: Fax (415) 398-3887

Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MILLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103
Cleo Fields THE FIELDS LAW FIRM, L.L.C. 2147 Government Street Baton Rouge, LA

22 James F. Keller Zachary Gottesman
23 GOTTESMAN & ASSOCIATES 2121 URS Center
24 36 East 7th Street Cincinnati, OH 45202
25
26
27
28

Sidney L. Gold Traci M. Greenberg SIDNEY L. GOLD & ASSOCIATES, P.C. 1835 Market Street Philadelphia, PA 19103
Barry L. Goldstein GOLDSTEIN, DEMCHAK, BALLER,
BORGEN & DARDARIAN 300 Lakeside Avenue Oakland, CA 94612

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1

Dated: April 11, 2005

2

By: /s/ Bill Lann Lee

Bill Lann Lee

3

Attorneys for Plaintiffs

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

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Case 3:03-cv-02817-SI Document 125-3 Filed 04/11/2005 Page 1 of 1

Exhibit 2 Gonzalez v. Abercrombie; West v. Abercrombie
Hours, Lodestar, and Costs

LCHB MALDEF APALC NAACP LDF Barry Goldstein Minami, Lew & Tamaki Kohn, Swift & Graf Miller Faucher Sidney L. Gold & Associates Gottesman & Associates Rainbow/PUSH
All Class Counsel
Fees + Costs Total Costs Total Fees
Effective multiplier

Hours
6,511 994 401
1,083 331 873
2,133 638 205 13 6
13,187

Lodestar
$1,992,630 $346,494 $79,700 $274,755 $182,160 $364,468 $552,737 $223,487 $51,285 $2,880 $1,710
$4,072,304
$7,250,000 $541,128
$6,708,872
1.65x

Costs
$476,243 $10,162
$571 $2,557
$0 $15,144 $31,597 $4,706
$0 $60 $87
$541,128

 
 Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 1 of 73

1 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
3 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Thomas A. Saenz (SBN 159430)
8 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
9 AND EDUCATIONAL FUND 634 South Spring Street
10 Los Angeles, CA 90014 Telepho ne: (213) 629-2512
11 Facsimile: (213) 629-0266
12 Joseph C. Kohn Martin J. D’Urso
13 Hilary Cohen KOHN, SWIFT & GRAF, P.C.
14 One South Broad Street, Suite 2100 Philadelphia, PA 19107
15 Telephone: (215) 238-1700 Facsimile: (215) 238-1968
16 Jack W. Lee, Esq. (SBN 071626)
17 Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532)
18 MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor
19 San Francisco, CA 94108 Telephone: (415) 788-9000
20 Facsimile: Fax (415) 398-3887

Douglas R. Young Sandra A. Kearney FARELLA BRAUN & MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4481
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knueve VORYS, SATER, SEYMOUR & PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 Telephone: 614-464-6400 Facsimile: 614-464-6350
Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012
John C. Hendrickson (IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

21 Attorneys for Plaintiffs and Defendants [Additional counsel listed on signature page]

22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

23

24 EDUARDO GONZALEZ, ANTHONY

25

OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GÓMEZ-

26

MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT,

27

CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS, and ROBAIR

28 SHERROD, BRANDY HAWK and ANDRE

Case Nos. 03-2817 SI, 04-4730 and 04-4731
CONSENT DECREE

426266.1

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-473

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 2 of 73

1 STEELE, on behalf of themselves and all others similarly situated,
2 Plaintiffs,
3 v.
4 ABERCROMBIE & FITCH STORES, INC., A&F
5 CALIFORNIA, LLC, A&F OHIO, INC., and ABERCROMBIE & FITCH MANAGEMENT
6 CO.,

7

Defendants.

8
ELIZABETH WEST and JENNIFER LU, 9
Plaintiffs, 10
v. 11
ABERCROMBIE & FITCH STORES, INC., A&F 12 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 13 CO.,

14

Defendants.

15 EQUAL EMPLOYMENT OPPORTUNITY
16 COMMISSION,

17

v.

18 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
19 ABERCROMBIE & FITCH MANAGEMENT CO.
20
Defendants. 21

22

23

24

25

26

27

28

426266.1

CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 3 of 73

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ...............................................................................................................1

4 II. III.
5 IV.

PURPOSES OF THE CONSENT DECREE.......................................................................1 DEFINITIONS.....................................................................................................................2 LITIGATION BACKGROUND .........................................................................................4

6 7 8 V.

A. The Gonzalez Litigation...........................................................................................4 B. The EEOC Litigation...............................................................................................6 C. The West Litigation .................................................................................................7 JURISDICTION...................................................................................................................8

9 VI. EFFECTIVE DATES AND DURATION OF THE DECREE............................................8

10 VII. SETTLEMENT CLASS ......................................................................................................9

VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS AND EEOC ACTION .....................10

11

A. Release of Claims by Settlement Class..................................................................10

12

B. Release of Claims by Plaintiffs ..............................................................................11

13

C. Unknown Claims ...................................................................................................12

D. EEOC Release........................................................................................................12

14

E. No Tolling of Harassment Claims .........................................................................13

15

F. No Bar to Future Claims ........................................................................................13

16 IX. 17

MISCELLANEOUS PROVISIONS..................................................................................13 A. No Admission of Liability .....................................................................................13 B. Modification and Severability of the Consent Decree ...........................................14

18

C. Duty to Support and Defend the Decree ................................................................15

19 X.
20
21

D. Execution In Counterparts .....................................................................................15 GENERAL EQUITABLE PROVISIONS.........................................................................15 A. General Injunctive Provisions ................................................................................15 B. Dispute Resolution and Enforcement Procedures..................................................16

22 XI.
23
24
25
26

C. Marketing ...............................................................................................................19 ABERCROMBIE’S INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT AND DIVERSITY PRACTICES ...........................................20 A. Creation of Office of Diversity..............................................................................20 B. Notice and Posting .................................................................................................22 C. EEO and Diversity Training ..................................................................................23 D. Internal Complaint Procedure ................................................................................25

27

E. Performance Evaluations .......................................................................................28

XII. JOB ANALYSIS, MINIMUM ELIGIBILITY REQUIREMENTS, JOB

28

CRITERIA, RECRUITMENT, HIRING, JOB ASSIGNMENTS AND

MANAGERIAL PROMOTION AND STAFFING ..........................................................28

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1

TABLE OF CONTENTS

(continued)

2

Page

3

A. Job Analysis and Job Criteria ................................................................................28

4

B. Recruitment and Hiring..........................................................................................29

C. Managerial Promotions ..........................................................................................31

5 XIII. AFFIRMATIVE RECRUITING EFFORTS .....................................................................31

6

A. Diversity Recruiters ...............................................................................................31

7

B. Advertisements.......................................................................................................32

C. Recruiting Events ...................................................................................................32

8

D. Diversity Consultant ..............................................................................................32

9

E. Documentation.......................................................................................................32

10 XIV. BENCHMARKS................................................................................................................33

A. General Principles..................................................................................................33

11

B. Interim Hiring Goals ..............................................................................................34

12

C. Applicant Rate Goals .............................................................................................38

13 XV. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS .......................39

A. Documents To Be Preserved For The Duration of The Decree .............................39

14

B. Documents to Be Maintained for Two Years ........................................................39

15

C. Access to Documents.............................................................................................39

16

D. Reporting Schedule ................................................................................................40

E. Contents of the Semi- Annual Progress Reports.....................................................40

17

F. Compliance Meetings ............................................................................................42

18

G. Status Conference with Court ................................................................................43

19 XVI. MONITORING OF IMPLEMENTATION.......................................................................43 A. Court-Appointed Monitor ......................................................................................43
20 XVII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE ...................................47

21

A. Establishment of Settlement Fund .........................................................................47

22

B. Distribution of Settlement Fund .............................................................................49

1. Class Representatives and EEOC Charging Parties...................................49

23

2. Settlement Class .........................................................................................49

24

C. Notice .....................................................................................................................49

25

1. Mailed Notice.............................................................................................49

2. Published Notice ........................................................................................50

26

D. Objections and Exclusions .....................................................................................50

27

1. Objections ..................................................................................................50

28
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2. Exclusions ..................................................................................................51

3. Rescission of Class Member Opt-Outs ......................................................51

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1

TABLE OF CONTENTS

(continued)

2

Page

3

4. Opt-Out Credits..........................................................................................52

4

5. Defendant’s Rescission of Agreement .......................................................52

E. Claims Administration...........................................................................................53

5

F. Submission of Claim Forms...................................................................................53

6

G. Deceased Claimants ...............................................................................................54

7

H. Determining Eligibility ..........................................................................................54

I. Late-Filed Claims...................................................................................................55

8

J. Appeals of Claims Eligibility.................................................................................55

9

K. Claimant Information Provided by Abercrombie ..................................................55

10

L. Allocation Plan.......................................................................................................56

M. Distribution of the Monetary Awards ....................................................................56

11

N. Allocation of Monetary Awards ............................................................................57

12

O. Cy Pres Fund ..........................................................................................................57

13

P. Report from Claims Administrator ........................................................................58

XVIII. ATTORNEYS’ FEES, COSTS AND EXPENSES .........................................................58

14

A. Basis for Award of Fees, Costs and Expenses .......................................................58

15

B. Payment of Award .................................................................................................59

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

This Consent Decree (“Decree”) has been voluntarily entered into by the parties for the

3 purpose of finally resolving the litigation between them.

4

This Consent Decree includes a joint statement of the purposes of the Decree, a

5 description of the history of the litigation, and various substantive provisions agreed upon by the

6 parties. As a result of negotiations supervised by a mediator, the parties have reached a voluntary

7 agreement that is contained in this Decree.

8 II. PURPOSES OF THE CONSENT DECREE

9

The parties have entered into this Consent Decree for the following purposes:

10

A. To resolve all disputes covered by this Consent Decree in such a way as to avoid

11 further expensive and protracted litigation.

12

B. To ensure equal employment opportunity for African Americans, Asian

13 Americans, Latinos, and women applying to, and working within, stores operated by defendants.

14

C. To ensure equal employment opportunity for African American women, Latino

15 women and Asian American women applying to, and working within, stores operated by

16 defendants.

17

D. To provide for the implementation of recruitment, selection and personnel systems

18 that will ensure that African Americans, Asian Americans, Latinos and women are considered for

19 recruitment, hire, job assignment and managerial promotion for which they are interested and

20 qualified on a non-discriminatory basis.

21

E. To provide for implementation of recruitment, selection and personnel systems

22 that will ensure that African American women, Latino women, and Asian American women are

23 considered for recruitment, hire, job assignment and mana gerial promotion for which they are

24 interested and qualified on a non-discriminatory basis.

25

F. To create an expedited and efficient procedure for implementing equitable relief

26 pursuant to the terms of this Decree; and

27

G. To provide finality to the resolution of all claims and defenses asserted in these

28 civil actions.

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1 III. DEFINITIONS

2

A. “Abercrombie” or the “Company” means Abercrombie & Fitch Stores, Inc.; A&F

3 California, LLC; A&F Ohio, Inc.; and Abercrombie & Fitch Management Co., as well as each of

4 their parents, subsidiaries, affiliates, officers, directors, agents, management, successors and

5 assigns and those in active concert or participation with them, or any of them. The terms of this

6 Decree cover all stores operated by Abercrombie whether under the name Abercrombie & Fitch,

7 Hollister, abercrombie, or any other concept operated by Abercrombie.

8

B. “Adverse impact” shall be defined in a manner consistent with Title VII law.

9

C. “African American” means all persons having origins in any of the black racial

10 groups of Africa.

11

D. “Approval Date” means the date upon which the Court signs this Decree, having

12 determined that it is fair, adequate and reasonable after: (i) notice to the Settlement Class; (ii)

13 opportunity to opt out of the Settlement Class with respect to monetary relief; (iii) opportunity to

14 submit timely objection to the Decree; (iv) appropriate discovery of the specifics of any such

15 timely objections; and (v) a hearing on the fairness of the settlement.

16

E. “Asian American” means all persons having origins in any of the original peoples

17 of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area

18 includes, but is not limited to, China, India, Japan, Korea, the Philippine Islands, and Samoa.

19

F. “Associates” means all in-store hourly or managerial employees.

20

G. “Benchmark Positions” means Brand Representative and Manager- in-Training

21 positions.

22

H. “Best Efforts” means implementing and adequately funding a plan reasonably

23 designed to comply with all the specific objectives to which the best efforts are directed.

24

I. “Charging Party” means Lekisha Bondurant, Torrey Dickson, Stanley Elmore,

25 Timothy Greer, Eric Jason and Jason Noel.

26

J. “Class Counsel” means all counsel of record for the Class Representatives in the

27 Private Civil Actions.

28

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1

K. “Class Representatives” or “Plaintiffs” means Eduardo Gonzalez, Anthony

2 Ocampo, Encarnacion Gutierrez, Brandy Hawk, Johan Montoya, Juancarlos Gómez-Montejano,

3 Jennifer Lu, Austin Chu, Ivy Nguyen, Angeline Wu, Eric Fight, Carla Grubb, David Culpepper,

4 Patrice Douglass, Robair Sherrod, Andre Steele, and Elizabeth West.

5

L. “Consolidated Litigation” means the Private Civil Actions and the EEOC Civil

6 Action that the parties stipulate they will move, or have already moved, to consolidate before

7 Judge Susan Illston for purposes of approval and oversight of this settlement.

8

M. “Court” means the United States District Court for the Northern District of

9 California.

10

N. “EEOC Civil Action” means EEOC v. Abercrombie & Fitch Stores, Inc., N.D. Cal.

11 Case No. 04-4731.

12

O. “Final Approval” means the entry of this Decree on the Approval Date by the

13 United States District Court for the Northern District of California, and either: (1) the expiration

14 of the time for filing of a direct appeal from the Court’s approval of the Decree without the filing

15 of a notice of appeal, or (2) if a timely direct appeal is filed, the final resolution of the appeal

16 (including any requests for rehearing and/or petitions for a writ of certiorari), resulting in final

17 judicial approval of the Consent Decree.

18

P. “Good Faith Offer” means an offer of employment -- under the same terms and

19 conditions of employment (e.g., hours, shifts or locations offered) offered to similarly situated

20 individuals who receive employment offers -- that is made to an individual who has submitted a

21 written or electronic application for a job.

22

Q. “Latino” means all persons of Mexican, Puerto Rican, Cuban, Central American,

23 South American or other Spanish culture or origin, regardless of race.

24

R. “Lead Counsel” means Lieff, Cabraser, Heimann & Bernstein, LLP; the Mexican

25 American Legal Defense and Educational Fund (MALDEF); and Kohn, Swift & Graf

26 representing the Gonzalez Minority class; and Minami, Lew & Tamaki representing the West

27 gender class.

28

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1

S. “Minority” means all African Americans, Asian Americans, and Latinos.

2 “Minority Group” means each of these three groups.

3

T. “Minority Women” means African American females, Latina females, and Asian

4 American females.

5

U. “Preliminary Approval Date” means the date upon which the Court enters an

6 Order preliminarily approving this Decree, pend ing notice (an opportunity to opt out of the

7 notice), an opportunity to opt out of the Settlement Class or submit objections to the Decree, and

8 a fairness hearing thereon.

9

V. “Private Civil Actions” means Gonzalez v. Abercrombie & Fitch Stores, Inc., N.D.

10 Cal. Case No. 03-2817-SI and West v. Abercrombie & Fitch Stores, Inc., N.D. Cal. Case No. 04-

11 4730.

12

W. “Release” means the Release of Claims set forth in Section VIII of the Decree.

13

X. “Settlement Class” means those persons described in Section VII of the Decree.

14 “Settlement Class Members” means each and every person described in Section VII of the

15 Decree.

16

Y. “Term of the Decree,” “Period of the Decree” or “Duration of the Decree” is the

17 period from the Approval Date until the expiration of the Decree under Section VI.

18 IV. LITIGATION BACKGROUND

19

A. The Gonzalez Litigation

20

On June 16, 2003, Plaintiffs filed the Gonzalez case in the Northern District of California,

21 alleging violations of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act,

22 and providing notice of Plaintiffs’ intent to bring claims under Title VII of the Civil Rights Act of

23 1964. The Complaint was brought on behalf of a putative class of minority individuals who

24 alleged that Defendants discriminate against minorities on the basis of race, color, and/or national

25 origin, with respect to hiring, firing, job assignment, compensation and other terms and conditions

26 of employment, by enforcing a nationwide corporate policy of preferring white employees for

27 sales positions, desirable job assignments, and fa vorable work schedules in its stores throughout

28 the United States.

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1

Plaintiffs filed the First Amended Complaint on August 18, 2003, which alleged

2 substantially the same facts and legal claims. This complaint added three named plaintiffs and

3 three defendants, Abercrombie & Fitch Stores, Inc., A&F California, LLC, and A&F Ohio, Inc.

4 On September 11, 2003, Defendants answered the First Amended Complaint, denying Plaintiffs’

5 allegations.

6

On January 9, 2004, Plaintiffs filed the Second Amended Complaint, which again alleged

7 substantially the same facts and legal claims, this time converting the notice of intent to file Title

8 VII claims into actual Title VII claims. This complaint added two named plaintiffs and removed

9 one defendant, Abercrombie & Fitch Co. This complaint also included as exhibits Right-to-Sue

10 letters from the EEOC issued to 13 of the 14 named plaintiffs who brought Title VII and FEHA

11 claims. Defendants answered the Second Amended Complaint, denying Plaintiffs’ allegations, on

12 January 26, 2004.

13

Plaintiffs filed the Third Amended Complaint on June 10, 2004, which again alleged

14 substantially the same facts and legal claims. This complaint added individual causes of action

15 for gender discrimination, brought only on behalf of named plaintiffs Ivy Nguyen and Angeline

16 Wu. On June 21, 2004, Defendants answered the Third Amended Complaint, denying Plaintiffs’

17 allegations.

18

On November 8, 2004, Plaintiffs filed the Fourth Amended Complaint naming two

19 additional Plaintiffs and an additional defendant, Abercrombie & Fitch Management Co., as well

20 as adding claims of discrimination in hiring of Managers-in- Training positions and promotion to

21 in-store managerial positions.

22

On October 10, 2003, Plaintiffs served their first set of requests for discovery. On

23 February 19, 2004, Plaintiffs served their second set of requests for discovery. Defendants

24 responded by producing roughly 17,000 pages of documents, as well as files from Abercrombie’s

25 computerized personnel databases.

26

Defendants served their first set of requests for discovery in November 2003 and took the

27 depositions of seven class representatives in February 2004. Plaintiffs took six days of

28 depositions of Abercrombie officials and managers under Fed. R. Civ. P. 30(b)(6) in March 2004.

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1 Plaintiffs and Defendants have obtained numerous declarations from putative class members and

2 witnesses, including managers, concerning alleged discrimination, or lack of discrimination, that

3 they would testify to if called.

4

On April 13, 2004, and on several dates subsequently, the parties conducted mediation

5 discussions in an attempt to resolve the Consolidated Litigation. These discussions have

6 culminated in this settlement agreement.

7

B. The EEOC Litigation

8

Between December 21, 1999 and January 29, 2004, the EEOC received charges of

9 discrimination alleging discrimination in hiring, assignment, layoff, constructive discharge,

10 discharge, terms and conditions of employment, and failure to promote into manager positions

11 due to race, national origin, and/or gender.

12

Specific ally, on or about December 21, 1999, a charging party filed an individual charge

13 alleging national origin discrimination and wrongful termination. The charge was later amended

14 on or about March 21, 2001 alleging that the charging party was not hired into a sales position or

15 a Brand Representative position due to his national origin. Class allegations were included,

16 alleging that Abercrombie failed to recruit, hire, and assign Latinos into Brand Representative

17 positions and that Latinos were terminated due to their national origin.

18

On or about September 13, 2001, the EEOC issued a Letter of Determination finding

19 probable cause that the charging party was denied a permanent sales or Brand Representative

20 position, denied assignments, and terminated due to his national origin. The EEOC also found

21 probable cause that Latinos and African Americans as a class were not recruited, hired, or

22 assigned permanent positions or given assignments due to their race and national origin. The

23 Commission further found probable cause that Abercrombie failed to maintain records as required

24 by federal law.

25

EEOC received additional charges against Abercrombie nationwide and issued additional

26 Letters of Determination on or about September 30, 2004 and November 1, 2004 finding probable

27 cause that Abercrombie violated Title VII by discriminating against minority individuals on the

28 basis of national origin, color, race, and/or gender (female including minority women) in hiring,

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1 staffing, constructive discharge, failing to promote into manager positions, steering, and

2 discharge, on an individual basis and also on a nationwide class basis. The EEOC also found

3 probable cause that Abercrombie violated Title VII by discriminating against a class of

4 individuals nationwide by deterring minority applicants from applying for sales, stock, overnight,

5 manager- in-training, and manager positions because of their race, color, and/or national origin;

6 failing or refusing to recruit minority and female applicants for sales, stock, overnight, manager-

7 in-training, and manager positions because of their race, color, and/or national origin; failing and

8 refusing to hire and to assign minorities and females into sales, stock, overnight, manager- in

9 training, and manager positions because of their race, color, national origin and/or gender; failing

10 and refusing to promote minorities and females into manager- in-training and manager positions

11 because of their race, color, national origin, and/or gender; terminating minority and female

12 employees because of their race, color, national origin, and/or sex; and segregating its workforce

13 on the basis of race, color, national origin, and/or gender. The EEOC again found probable cause

14 that Abercrombie failed to maintain records as required by federal law.

15

After meeting all the conditions precedent, the EEOC filed a federal lawsuit in the matter

16 of EEOC v. Abercrombie and Fitch Stores, Inc., N.D. Cal., Case No. 04-4731, on November 8,

17 2004 ("EEOC Litigation") encompassing all the claims set forth in the Letters of Determination

18 as described above. The EEOC's pre- filing investigation involved analysis of hard copy

19 documents, statistical compilations and computer-readable files, and investigative interviews of

20 employees and company officials.

21

C. The West Litigation

22

Counsel for the gender class became involved in this case in February 2004 after being

23 contacted by one of the named plaintiffs in Gonzalez v. Abercrombie & Fitch. This named

24 plaintiff sought separate counsel to file a gender class action against Abercrombie.

25

Putative counsel for the gender class thereafter conducted an independent, on-going

26 investigation to determine the merits of a possible class gender discrimination claim against

27 Abercrombie. Counsel for the gender class contacted scores of class members and witnesses,

28 collected declarations from many class members regarding their experiences at Abercrombie,

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1 reviewed statistical reports produced in the course of the Gonzalez litigation and conducted a

2 separate analysis of the workforce by gender.

3

After informing defendant of its intent to file a gender complaint, counsel for the gender

4 class was invited to participate in the initial April 2004 mediation sessions with the Gonzales

5 parties and EEOC in an effort to resolve this case without further litigation.

6

During the mediation, which lasted over fifteen days over the course of eight months, all

7 parties engaged in extensive discussions regarding the merits of the race and gender claims, relief

8 for class members, and procedures to be put into place to ensure equa l employment opportunity

9 for minorities and women in the future.

10

The gender class action, West v. Abercrombie & Fitch Stores, Inc., N.D. Cal., Case No.

11 04-4730 was filed on November 8, 2004.

12 V. JURISDICTION

13

The Court has jurisdiction over the parties and subject matter of the Private Civil Actions

14 and EEOC Civil Action. The parties agree that they will seek, or have already sought

15 consolidation of the Private Civil Actions and the EEOC Civil Action before Judge Susan Illston

16 for purposes of approval of this settlement. If the claims asserted in the complaints filed in these

17 civil actions were proven, the Court would have the authority to grant the equitable and monetary

18 relief set forth in this Consent Decree. Venue is proper in this District. This Court shall retain

19 jurisdiction of these civil actions during the duration of the Decree solely for the purposes of

20 entering all orders, authorized hereunder, that may be necessary to implement the relief provided.

21 VI. EFFECTIVE DATES AND DURATION OF THE DECREE

22

A. Unless provided otherwise, the equitable provisions in this Decree are effective

23 immediately upon the Approval Date.

24

B. The provisions of this Decree shall remain in effect for a period of six years (72

25 months). Abercrombie may file a motion to be relieved of the provisions of the decree at any

26 point following the expiration of 54 months from the effective date of the decree. The parties subject to Court approval
27 may stipulate that Abercrombie should be relieved of the provisions of the Decree.^Absent such
28 agreement, in order to be relieved of the provisions of the Decree before the full period of 72

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1 months, Abercrombie must demonstrate that: 1) it has satisfied its duty to use Best Efforts with

2 respect to its obligations under the Decree; 2) it has implemented and maintained all programs

3 mandated by the Decree; 3) it has satisfied, without use of standard deviations, each of the

4 benchmarks established by the Decree during the preceding 24 months; and 4) it has satisfied all

5 monetary provisions of the Decree. Abercrombie bears the burden of demonstrating its

6 satisfaction of these conditions to the Court. Lead Counsel and EEOC may oppose any motion to

7 be relieved on grounds that any of these conditions have not been met and on the grounds set

8 forth in Section X.C.1.b. Unless and until the court issues an order granting the motion to be

9 relieved, all provisions of the Decree shall remain in full force and effect.

10

C. Abercrombie shall provide 30 days notice to the Special Master, Lead Counsel,

11 and EEOC of any motion to be relieved of the provisions of the decree before the full period of 72

12 months. Abercrombie shall then provide its briefing and other support for its motion to the

13 Special Master, Lead Counsel, and EEOC. Lead Counsel and the EEOC shall have 30 days to

14 provide any opposition to the motion to the Special Master and Abercrombie. Abercrombie shall

15 have 15 days to provide any reply materials to the Special Master, Lead Counsel, and EEOC.

16 The Special Master shall then have 30 days to prepare a written recommendation to the court as to

17 the resolution of the motion to be relieved. The parties shall then jointly file with the court all of

18 the briefing and the Special Master's recommendation, and set a hearing for 28 days from the

19 filing. Each party may file and serve a response to the Special Master's recommendation, not to

20 exceed ten pages, not later than 14 days before the scheduled hearing.

21 VII. SETTLEMENT CLASS

22

A. For purposes of the monetary relief provided in this Decree, the Settlement Class

23 is certified under Federal Rule of Civil Procedure 23(b)(3) and consists of:

24

1. All Minority and/or female applicants who applied for employment as

25 Associates in Abercrombie stores, or attempted to apply and were discouraged from applying for

26 employment, between February 24, 1999 and the Preliminary Approval Date and who were not

27 hired, except those who file a timely request to opt out of the monetary relief provisions.

28

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1

2. All Minority and/or female Associates of Abercrombie who are or were

2 employed in an Abercrombie store, for any length of time, between February 24, 1999, and the

3 Preliminary Approval Date, except those who file a timely request to opt out of the monetary

4 relief provisions.

5

B. For purposes of the equitable and declaratory relief provided in this Decree, the

6 Settlement Class is certified under Federal Rule of Civil Procedure 23(b)(2) and consists of:

7

1. All Minority and/or female applicants who applied for employment as

8 Associates in Abercrombie stores, or attempted to apply and were discouraged from applying for

9 employment, between February 24, 1999 and the Preliminary Approval Date and who were not

10 hired.

11

2. All Minority and/or female Associates of Abercrombie who are or were

12 employed in an Abercrombie store, for any length of time, between February 24, 1999, and the

13 Preliminary Approval Date.

14

C. Settlement Class Members who have filed a timely request to opt out of the

15 monetary relief provisions shall not be held to release any claims for individual relief.

16

D. In the event that Final Approval is not obtained, nothing in this Decree shall be

17 deemed to waive Abercrombie’s objections and defenses to class certification, liability, or

18 entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation, the

19 Private Civil Actions, or the EEOC Civil Action, and this Decree shall then be deemed null and

20 void and not admissible in any court regarding the propriety of class certification, liability, or

21 entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation, the

22 Private Civil Actions, or the EEOC Civil Action.

23 VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS AND EEOC ACTION

24

A. Release of Claims by Settlement Class.

25

Upon Final Approval of the Decree, Abercrombie and its employees, managers, insurers

26 and attorneys shall be fully released and forever discharged from any and all individual and/or

27 class-wide claims, demands, charges, complaints, rights and causes of action of any kind, known

28 or unknown, by the Class Representatives, Plaintiffs, Charging Parties, the Settlement Class, each

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1 member of the Settlement Class (hereafter “Releasers”), and by the Releasers’ estates, whether

2 seeking monetary and/or equitable relief of any sort, which arise out of conduct within the

3 liability period of February 24, 1999 through the Preliminary Approval Date constituting alleged

4 race, color, national origin or gender discrimination in recruitment, the application process

5 (including claims of individuals who attempted to apply for and were discouraged from applying

6 for employment), hiring, job channeling or assignment, termination of emp loyment, any terms

7 and conditions of employment that were or could have been raised in the Consolidated Litigation

8 and/or managerial promotion under Title VII, 42 U.S.C. Section 1981, the California FEHA or

9 any other federal, state, or local law prohibiting race, color, national origin or gender

10 discrimination, whether statutory, regulatory, pursuant to local ordinance, or at common law,

11 excepting solely claims of Class members other than Plaintiffs and Charging Parties for alleged

12 harassment (including constructive discharge allegedly caused by such harassment). This Release

13 is final and shall survive expiration of the Decree’s terms.

14

B. Release of Claims by Plaintiffs.

15

Upon Final Approval of the Decree, for and in consideration of the mutual promises,

16 terms and conditions by and between Plaintiffs and Charging Parties, and Defendants set forth

17 herein, the sufficiency of which consideration is expressly acknowledged, the Plaintiffs and

18 Charging Parties do hereby fully, finally and forever release and discharge Abercrombie and its

19 employees, managers, insurers and attorneys from any and all past and/or present claims,

20 demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs,

21 losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not

22 known, that they have had, now have, or may have from the beginning of time to the Preliminary

23 Approval Date, including without limitation those arising in any way out of the alleged facts,

24 circumstances and occurrences underlying those allegations of violations of Title VII, Section

25 1981 and the California FEHA that were asserted or that might have been asserted by or on behalf

26 of the Plaintiffs against Defendants either in Plaintiffs’ complaints in the Gonzalez and West

27 actions, or in any and all charges of discrimination filed against Abercrombie by some or all of

28 the Plaintiffs and Charging Parties with the EEOC and/or DFEH. This Release does not include

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1 workers’ compensation claims, if any, of the Plaintiffs or Charging Parties. This Release is final

2 and shall survive the expiration of the Term of the Decree. Prior to receiving any monetary relief

3 under this Decree, including any enhanced or service payment, each Plaintiff and Charging Party

4 will be required to execute a full and final general release of all claims against Abercrombie,

5 whether or not asserted in the Consolidated Litigation, in the form attached as Exhibit A.

6

C. Unknown Claims.

7

Plaintiffs and Charging Parties acknowledge that they may not now know fully the

8 number or magnitude of the claims they may have, and that they may suffer some further loss or

9 damage in some way connected with the subject matter of the Consolidated Litigation, but which

10 is unknown or unanticipated at this time. Plaintiffs and Charging Parties have taken these risks

11 and possibilities into account and accept that, nevertheless, this Consent Decree covers all claims

12 arising out of or related to the subject matter of the Consolidated Litigation, which, although

13 unknown at the time of the execution of this Consent Decree, may be discovered later. Plaintiffs

14 and Charging Parties understand and assume these risks and expressly waive the provisions of

15 California Civil Code § 1542, or any comparable federal or other state statute, which states:

16

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

17

EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE

RELEASE, WHICH IF KNOWN BY HIM MUST HAVE

18

MATERIALLY AFFECTED HIS SETTLEMENT WITH THE

DEBTOR. 19

20 Plaintiffs and Charging Parties expressly waive any right to assert hereafter that any claim was

21 excluded from this Consent Decree through ignorance, oversight, or error. It is expressly

22 understood and agreed that this waiver of Civil Code § 1542 and the release and waiver set forth

23 in this Consent Decree are material terms of the agreement and were separately negotiated

24 between the parties. This Section VIII.C. does not waive any rights of Settlement Class members

25 other than Plaintiffs and Charging Parties.

26

D. EEOC Release.

27

Upon Final Approval, this Decree shall fully and finally resolve any and all claims,

28 demands, charges, complaints, rights and causes of action of any kind, known or unknown,

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1 asserted by EEOC in its Complaint arising from incidents occurring prior to the Preliminary

2 Approval Date. It is the intention of Abercrombie and the EEOC that this release terminates all

3 investigations relating to claims of Settlement Class Members which were asserted by EEOC in

4 its Complaint. This Release shall survive the termination of this Decree.

5

E. No Tolling of Harassment Claims.

6

Any claims of Settlement Class Members (other than the Plaintiffs) for alleged harassment

7 based upon race, color, national origin or gender (including constructive discharge allegedly

8 caused by such harassment), or for the alleged retaliation for opposing or complaining about such

9 purported harassment, are not released hereunder because such claims are not and have never

10 been asserted on a class-wide basis as a part of the Private Civil Actions or the EEOC Civil

11 Action. Hence, there also has been no tolling of the statute of limitations for asserting any such

12 claims against Abercrombie and its employees, managers, insurers and attorneys by operation of

13 these civil actions or any of the Plaintiffs’ individual EEOC or DFEH charges.

14

F. No Bar to Future Claims.

15

Nothing in the Decree shall be construed to bar any claims of members of the Settlement

16 Class or Plaintiffs that arise after the Preliminary Approval Date.

17 IX. MISCELLANEOUS PROVISIONS

18

A. No Admission of Liability.

19

This Consent Decree does not constitute and shall not be deemed to be a finding or

20 determination by the Court, nor an admission by any party, regarding the merits, validity or

21 accuracy of any of the allegations, claims or defenses. This Decree represents the compromise of

22 disputed claims that the parties recognize would require protracted and costly litigation to

23 determine. Abercrombie denies that it has engaged in any policy or pattern or practice of

24 unlawful discrimination, or that it has engaged in any other unlawful conduct as alleged in the

25 Consolidated Litigation, and Abercrombie’s entry into this Decree is not and may not be used by

26 any person in any proceeding as an admission or evidence that Abercrombie and/or its employees,

27 managers, and/or attorneys have on any occasion engaged in discriminatory employment

28 practices or any other unlawful conduct, such being expressly denied. Abercrombie has

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1 voluntarily entered into this Decree because it believes the actions it has agreed to undertake

2 demonstrate its strong commitment to diversity and equal employment opportunity. Neither the

3 Decree nor any compliance reports, filings, data, or other compliance information arising out of

4 or related to the Decree shall be discoverable, admissible or used as evidence of liability or non-

5 liability for unlawful discrimination in any proceeding other than one relating to the enforcement

6 of this Decree.

7

B. Modification and Severability of the Consent Decree.

8

1. Whenever possible, each provision and term of this Decree shall be

9 interpreted in such a manner as to be valid and enforceable; provided, however, that in the event

10 that after Final Approval hereof any provision or term of this Decree should be determined to be

11 or rendered unenforceable on collateral review, all other provisions and terms of this Decree and

12 the application thereof to all persons and circumstances subject thereto shall remain unaffected to

13 the extent permitted by law. If any application of any provisions or term of this Decree to any

14 specific person or circumstance should be determined to be invalid or unenforceable, the

15 application of such provision or term to other persons or circumstances shall remain unaffected to

16 the extent permitted by law.

17

2. Lead Counsel, Abercrombie and the EEOC may jointly agree in writing to

18 modify the Decree. In the event that changed or other circumstances make a modification of the

19 Decree necessary to ensure its purposes are fully effectuated, but good faith negotiations seeking

20 such modifications are unsuccessful, any party to the Decree shall have the right to move the

21 Court to modify this Decree. Such motion shall be granted only upon the movant proving to the

22 Court by clear and convincing evidence that changed or other circumstances make such

23 modification necessary. In determining the specific modification to order, the Court shall

24 consider whether there is an equally effective modification that would not materially increase the

25 burden of compliance and/or cost to Abercrombie of compliance (out-of-pocket or otherwise).

26 Any such modification to this Decree by the Court shall be ordered in such a fashion as will limit

27 the burden of compliance and/or the cost to Abercrombie (out-of-pocket or otherwise) to the

28 extent possible consistent with effectuating the purposes of this Decree. The procedures for

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1 negotiations to modify this Decree (and, if necessary, for resolution of disputes) shall be the same

2 as those set forth in Section X.B, regarding Decree enforcement.

3

C. Duty to Support and Defend the Decree.

4

Class Representatives, Class Counsel, EEOC and Abercrombie each agree to abide by all

5 of the terms of this Decree in good faith and to support it fully, and shall use Best Efforts to

6 defend this Decree from any legal challenge, whether by appeal or collateral attack.

7

D. Execut ion In Counterparts

8

The parties agree that the Decree may be executed in counterparts, each of which shall be

9 deemed to be an original and all of which together shall be deemed to be part of the same Decree.

10 X. GENERAL EQUITABLE PROVISIONS

11

A. General Injunctive Provisions.

12

1. Abercrombie is hereby enjoined from enacting, maintaining or

13 implementing any policy or engaging in any practice or procedure that discriminates against

14 African Americans, Asian Americans, or Latinos on the basis of race, color and/or national

15 origin.

16

2. Abercrombie is hereby enjoined from enacting, maintaining or

17 implementing any policy or engaging in any practice or procedure that discriminates against

18 women on the basis of gender.

19

3. Abercrombie is hereby enjoined from enacting, maintaining or

20 implementing any policy or engaging in any practice, conduct or procedure that retaliates or has

21 the purpose of retaliating against any future, current or former employee or applicant of

22 Abercrombie because he or she opposed discrimination on the basis of race, color, national origin

23 or gender; filed a charge of discrimination on the basis of race, color, national origin or gender;

24 testified, furnished information or participated in any manner in any investigation, proceeding, or

25 hearing in connection with any charge or complaint of discrimination on the basis of race, color,

26 national origin or gender; testified, furnished information or participated in any manner in

27 connection with the monitoring or implementation of this Decree; or sought and/or received any

28 monetary and/or non- monetary relief pursuant to this Consent Decree.

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1

4. Abercrombie will implement or maintain non-discrimination and non-

2 harassment policies and an internal complaint procedure designed to assure equal employment

3 opportunity.

4

5. Abercrombie will make available to Minority and female associates and

5 applicants the same employment opportunities and terms and conditions of employment,

6 including but not limited to recruitment, hiring, job assignments, and managerial promotions, as

7 Abercrombie affords similarly-situated white male employees.

8

B. Dispute Resolution and Enforcement Procedures.

9

1. The parties agree to the appointment of Hunter Hughes as Special Master.

10 The Special Master may be removed at the joint written request of Lead Counsel, EEOC, and

11 Abercrombie, or by order of the Court upon motion of any party and a showing of good cause that

12 Mr. Hughes should no longer serve as Special Master. In the event that Mr. Hughes becomes

13 unavailable to serve as Special Master for any reason, Lead Counsel, EEOC and Abercrombie

14 will make a good faith effort to select on a joint basis a new Special Master. If Lead Counsel,

15 EEOC and Abercrombie are unable to reach agreement as to a successor Special Master within

16 forty- five (45) days following the date Mr. Hughes becomes unavailable to serve as Special

17 Master, the Court shall appoint a successor Special Master upon motion of Lead Counsel, EEOC

18 or Abercrombie. Lead Counsel, EEOC or Abercrombie may nominate to the Court persons for

19 consideration as a successor Special Master. Lead Counsel, EEOC and Abercrombie shall each

20 have the right to interview any nominated person, and to present argument and evidence to the

21 Court regarding the selection of the successor Special Master.

22

2. The Special Master shall have authority to resolve all disputes arising

23 under the Decree, subject to limitations and standards set forth in the Decree.

24

3. At the request of Lead Counsel, EEOC or Abercrombie, the parties shall

25 use Best Efforts to resolve promptly any differences or any disputes regarding the interpretation

26 or implementation of the Consent Decree.

27

28

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1

4. Lead Counsel, EEOC or Abercrombie shall have the right to initiate steps

2 to resolve any dispute or issue of compliance regarding any provision of the Decree subject to

3 limitations and standards set forth in the Decree.

4

a. If Lead Counsel, EEOC or Abercrombie has good reason to believe

5 that a legitimate dispute exists, the initiating party shall first promptly give written notice to the

6 other parties, including: (a) a reference to all specific provisions of the Decree that are involved;

7 (b) a statement of the issue; (c) a statement of the remedial action sought by the initiating party;

8 and (d) a brief statement of the specific facts, circumstances and any other arguments supporting

9 the position of the initiating party;

10

b. Within thirty (30) days after receiving such notice, the non-

11 initiating party shall respond in writing to the statement of facts and arguments set forth in the

12 notice and shall provide its written position, including the facts and arguments upon which it

13 relies in support of its position;

14

c. Lead Counsel, EEOC and Abercrombie shall undertake good- faith

15 negotiations, including meeting or conferring by telephone or in person and exchanging relevant

16 documents and/or other information, to attempt to resolve the issues in dispute or alleged

17 noncompliance;

18

d. The Special Master, upon motion, may permit Lead Counsel,

19 EEOC or Abercrombie to take post-settlement discovery as provided by the Federal Rules of

20 Civil Procedure, but only as to matters relevant to the underlying claim of breach, if the Special

21 Master determines that the informal exchange of documents or information has not been

22 sufficient to allow Lead Counsel, EEOC or Abercrombie to present the dispute upon a factual

23 record adequate for a fair determination of the issue;

24

e. If the parties’ good- faith efforts to resolve the matter have failed,

25 and after written notice of an impasse by the moving party to the non- initiating party or parties,

26 Lead Counsel, EEOC or Abercrombie may file a motion with the Special Master, with a

27 supporting brief, requesting resolution of the dispute or the issues of non-compliance, provided,

28

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1 however, that such motion shall be limited to the dispute(s) and/or issue(s) as to which the parties

2 have met and conferred as described in this Section X. B.4.;

3

f. The non- moving parties will have fifteen (15) days to respond to

4 any such motion;

5

g. The Special Master shall attempt within fifteen (15) days after

6 filing of the final brief to resolve the dispute and may schedule a hearing or other proceeding,

7 including an evidentiary hearing, to resolve the matter; and

8

h. Within thirty (30) days of any hearing, the Special Master shall

9 issue a written determination, including findings of fact if requested by any party.

10

5. The provisions of this Section do not prevent Lead Counsel, EEOC or

11 Abercrombie from promptly bringing an issue directly before the Court when exigent facts or

12 circumstances require immediate Court action to prevent a serious violation of the terms of this

13 Decree, which otherwise would be without meaningful remedy. The moving papers shall explain

14 the facts and circumstances that allegedly necessitate immediate action by the Court. Absent a

15 showing of exigent facts or circumstances, the Court shall refer the matter to the Special Master

16 to resolve in accordance with procedures set forth above. If any such matter is brought before the

17 Court requesting immediate action, the other parties shall be provided with appropriate actual

18 notice, and an opportunity to be heard on the motion, under the Local Rules of the Court and the

19 Federal Rules of Civil Procedure. The Court in its discretion may set such procedures for

20 emergency consideration as are appropriate to the particular facts or circumstances, but no such

21 matter may be heard or considered on an ex parte basis.

22

6. All fees and expenses of the Special Master shall be paid by Abercrombie.

23

7. Lead Counsel, EEOC or Abercrombie may appeal a decision of the Special

24 Master to the Court provided that such an appeal is made within fourteen (14) days of receipt of

25 notice of the decision by the Special Master. Any such appeal shall be brought by motion under

26 the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the

27 Special Master shall be affirmed unless the Court determines that the Special Master made clearly

28 erroneous findings of fact or wrongly interpreted or applied the Consent Decree. A party may

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1 seek on appeal any remedy provided by law, provided that such remedy is consistent with the

2 provisions of this Decree.

3

8. Only Lead Counsel, EEOC or Abercrombie shall have standing to move

4 the Court to enforce, apply, or modify this Decree. Any individual concerned about

5 Abercrombie’s compliance with this Decree may so notify Lead Counsel and/or the EEOC and

6 request that they examine Abercrombie’s compliance and seek such relief, if any, as may be

7 appropriate.

8

9. In the event that any party seeks to utilize the dispute resolution procedure

9 set forth in Section X.B, then each party shall bear its own attorneys’ fees, costs and expenses for

10 all work performed through resolution by the Special Master. In the event that any party seeks to

11 appeal any decision of the Special Master, then the prevailing party in such matter shall be

12 entitled to recover reasonable attorneys’ fees, costs and expenses incurred in such appeal from the

13 other party, consistent with applicable standards under Title VII. Whether and to what extent any

14 party is a prevailing party and awarded fees and expenses shall be determined in the sole and

15 absolute discretion of the Court. This provision shall not apply to the EEOC, as Abercrombie and

16 the EEOC mutually agree not to seek fees under this Section from each other.

17

C. Marketing.

18

1. Abercrombie believes that the artistic aspect of its marketing materials is a

19 critical factor driving the success of Abercrombie and its brand. As a company committed to

20 achieving diversity in its store associates, as reflected in the other terms of this Decree,

21 Abercrombie will reflect diversity, as reflected by the major racial/ethnic minority populations of

22 the United States, in its marketing materials (taken as a whole). Lead Counsel and/or the EEOC

23 may assert that Abercrombie has not met its commitment under this paragraph for the following

24 purposes only:

25

a. In the eve nt that, at the end of the twenty- four (24) month period

26 following the Approval Date, the Applicant Rate for any Minority group is lower than such

27 group’s interim Benchmark for the fourth six- month period, Lead Counsel and/or the EEOC may

28 assert that this was caused by a chilling of applicant flow caused in part by not meeting the

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1 commitment in paragraph 1 of this Section. Any such assertion, and Abercrombie’s response

2 thereto, may be considered by the Special Master. If the Special Master accepts the assertion of

3 Lead Counsel and/or the EEOC, then the sole remedy shall be that the applicable interim

4 Benchmark shall remain in effect unless and until the applicable Applicant Rate exceeds the

5 applicable interim Benchmark.

6

b. In the event that Abercrombie seeks to obtain early termination of

7 this Decree, under Section VI.B. hereof, and in the event that Lead Counsel and/or the EEOC

8 seeks to challenge such early termination, Lead Counsel and/or the EEOC may assert that

9 Abercrombie has not met its commitment in paragraph 1 of this Section. Any such assertion, and

10 Abercrombie’s response thereto, may be considered by the Special Master and/or the Court, along

11 with Abercrombie’s meeting or failing to meet other provisions of the Decree, in deciding

12 whether to grant Ab ercrombie’s request for early termination of the Decree.

13

2. Nothing in this Section shall limit the scope of the Monitor’s discretion

14 under Section XVI.A.2. of this Decree in evaluating compliance (including barriers to

15 compliance) with any of the objectives of the Decree. However, nothing in this Section or

16 otherwise in this Decree shall be deemed to provide Lead Counsel, the EEOC, the Monitor, the

17 Special Master, or the Court with the authority or ability to contest, challenge, alter, or seek to

18 alter Abercrombie’s marketing materials or the selection of photographs or models therefor.

19

3. Marketing materials include specifically, but not exclusively: quarterly

20 magazines and similar materials, shopping bags, store posters and video, website, A&F TV, and

21 purchased advertising.

22 XI. ABERCROMBIE’S INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT AND DIVERSITY PRACTICES
23
A. Creation of Office of Diversity. 24

25

1. If Abercrombie has not already done so, then within thirty (30) days of the

26 Approval Date, Abercrombie shall create an Office of Diversity headed by a corporate executive

27 with the title of Vice President (“Diversity VP”). The Diversity VP shall report directly to the

28 Chief Executive Officer (CEO) or the Chief Operating Officer (COO) of Abercrombie.

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1

2. Abercrombie sha ll appoint a person to serve as Diversity VP no later than

2 sixty (60) days after the Approval Date. In the event that the position of Diversity VP becomes

3 vacant, Abercrombie shall appoint a successor as soon as practicable after the position becomes

4 vacant, and in any event, if the position remains vacant for sixty (60) days, Abercrombie will

5 retain a search firm to search for a successor, and will appoint an interim Diversity VP who will

6 be charged with temporarily performing the functions of the position. The following procedures

7 shall apply in selecting the Diversity VP:

8

a. Abercrombie shall use Best Efforts to appoint an individual who

9 will be effective in carrying out the duties and responsibilities set forth in Section XI.A.3.

10

b. Abercrombie will use a minority-owned search firm, or a minority

11 from a majority-owned search firm, to identify potential candidates for the Diversity VP position.

12 Abercrombie will identify the search firm or individual to Lead Counsel and the EEOC. Prior to

13 appointing an individual for the Diversity VP position, Abercrombie shall provide Lead Counsel

14 and EEOC with a resume of the individual whom Abercrombie intends to appoint to the position.

15 Within ten (10) days of receiving the resume, Lead Counsel and/or the EEOC may provide their

16 views to Abercrombie as to the individual’s qualifications and suitability for the Diversity VP

17 position. The decision as to which individual to select for the position shall be solely

18 Abercrombie’s and is not subject to further review under Section X.

19

3. The Diversity VP shall use Best Efforts to ensure Abercrombie’s

20 implementation and compliance with the provisions of this Decree, including the following:

21

a. Monitoring and implementation of any required changes to human

22 resources systems;

23

b. Monitoring and implementation of the Benchmarks provided for

24 under the Decree;

25

c. Overseeing the development and implementation of all training and

26 education programs to be provided under the Decree;

27

d. Submitting progress reports and other monitoring and reporting

28 material provided for in the Decree;

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1

e. Overseeing the investigation, collection, tracking, and appropriate

2 resolution of complaints of unlawful discrimination submitted under Abercrombie’s Internal

3 Complaint Procedure (described herein, in Section XI.D.); and

4

f. Overseeing the development of all recruiting programs to be

5 provided under this Decree and monitoring the implementation of such programs.

6

4. Abercrombie will use Best Efforts to provide such staff, funds, and other

7 resources to the Diversity VP as are necessary to discharge Abercrombie’s obligations under the

8 Decree.

9

5. Upon completion of the Internal Complaint Procedure investigation, the

10 Diversity VP shall have the authority to recommend appropriate action to be taken and/or

11 monetary payment to be made to any individual who has submitted a complaint of unlawful

12 discrimination or of a violation of the Decree.

13

B. Notice and Posting.

14

1. Within ten (10) days of the Approval Date, Abercrombie shall post in

15 conspicuous places where employee notices are posted in each of its stores and corporate offices,

16 the Notice attached hereto as Exhibit B. The Notice shall remain posted in each such location

17 (and in any new stores or corporate offices) for the duration of this Consent Decree. In addition,

18 the Notice shall be published every four (4) months with the HR 411 Bulletin for the duration of

19 this Consent Decree. In connection with each Semi-Annual Progress Report, Abercrombie shall

20 certify that the Notice has been posted and remained posted as required above during the

21 preceding six (6) month period.

22

2. Abercrombie shall also include within its Employee Handbook or

23 otherwise provide to each new employee, the following statement or its equivalent: “In 2004,

24 Abercrombie voluntarily entered into a Decree, agreeing to undertake actions that demonstrate its

25 strong commitment to diversity and equal employment opportunity. Each store has a posted

26 notice regarding this decree, and a summary and copy of the Consent Decree are available at

27 [domain name].”

28

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1

C. EEO and Diversity Training.

2

1. During the Term of the Decree, Abercrombie shall provide training on

3 equal employment opportunity and compliance with the provisions of the Decree to Managers-In-

4 Training, Assistant Managers, Store Managers and General Managers, to include the following

5 topics: (1) compliance with the Decree; (2) equal employment opportunity; (3) federal, state and

6 Company prohibitions of unlawful discrimination and retaliation; (4) diversity issues; and

7 (5) other topics that will encourage equal employment in recruiting, hiring, assigning, promoting,

8 and retaining minorities and females. Such training may be delivered by computer program, live

9 “discussion” format, video format, written materials, or any combination of these or other formats

10 tailored to be effective in communicating the material, provided, however, that such training as

11 occurs within the first twelve months following the Approval Date shall not be provided to

12 participants solely through written materials. No less than two hours shall be devoted to training

13 on these topics for each participant within four months following (a) the Approval Date, or (b) the

14 date of the participant’s hiring as a Manager in Training, or promotion to an Assistant Manager,

15 Store Manager, or General Manager position, whichever occurs la ter. In addition, during the

16 Term of the Decree, Abercrombie shall provide (on a group or individual basis) at least two hours

17 of additional training described above to Assistant Managers, Store Managers, and General

18 Managers every twelve months after the Assistant Managers, Store Managers, and General

19 Managers last received such training (on a group or individual basis).

20

2. During the Term of the Decree, Abercrombie shall provide training on

21 equal employment opportunity and compliance with the provisions of the Decree to all District

22 Managers, Regional Managers, and salaried exempt employees in the departments of Store

23 Administration, Store Communications, Security, Stores HR, Store Operations, and Store

24 Control, to include the following topics: (1) compliance with the Decree; (2) equal employment

25 opportunity; (3) federal, state, and Company prohibitions of unlawful discrimination and

26 retaliation; (4) diversity issues; and (5) other topics that will encourage equal employment

27 recruiting, hiring, training, promoting, and retaining minorities and females. Such training may

28 be delivered by computer program, live “discussion” format, video format, written materials, or

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1 any combination of these or other formats tailored to be effective in communicating the material,

2 provided, however, that such training as occurs within the first twelve months following the

3 Approval Date shall not be provided to participants solely through written materials. No less than

4 two hours shall be devoted to the training on these topics for each participant within four months

5 following (a) the Approval Date, or (b) the date of the participant’s promotion to District

6 Manager or Regional Manager position, whichever occurs later. In addition, during the Term of

7 the Decree, Abercrombie shall provide (on a group or individual basis) at least two hours of

8 additional training as described above to District Managers, Regional Managers, and salaried

9 exempt employees in the departments of Store Administration, Store Communications, Security,

10 Stores HR, Store Operations, and Store Control, every twelve months after the District Managers,

11 Regional Managers, and corporate employees last received such training. Provided further that if

12 Abercrombie holds a meeting of District and/or Regional Managers in order to conduct training,

13 then at least one hour of the training described above shall be done in live “discussion” format at

14 such meeting.

15

3. Within thirty (30) days following the Approval Date, Abercrombie will

16 train its human resources associates who ha ve substantive responsibilities related to compliance

17 with fair employment laws, and the practices and procedures established by this Decree. New

18 human resources associates shall receive such training within thirty (30) days of their date of

19 entry into such positions. Such training shall include, but not be limited to: (a) federal and state

20 equal employment opportunity laws, including but not limited to the general provisions of these

21 laws, the bases on which discrimination is prohibited under these laws, the identity, roles and

22 responsibilities of agencies established to enforce these laws, and the principles and objectives

23 underlying these laws; (b) the application of equal employment opportunity to typical

24 employment situations, including but not limited to recruiting, hiring, job assignment, managerial

25 promotion, and other career advancement opportunities, and general recruiting, hiring and

26 supervision without engaging in racial, ethnic or gender stereotyping; (c) the provisions and

27 requirements of the Decree; (d) the Internal Complaint Procedure; (e) the role and responsibility

28 of the human resources staff; and (f) following up EEO complaints and investigations (including,

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1 but not limited to, addressing potential or alleged retaliation, working with the complainant, and

2 appropriate discipline and other remedial measures).

3

4. The training described in this section may be held in conjunction with other

4 Company business, at Abercrombie’s discretion, and may be organized geographically in such

5 fashion as Abercrombie deems appropriate.

6

5. Abercrombie will provide Lead Counsel and the EEOC with the proposed

7 plan for training discussed in Sections XI.C. 2, 3 and 4 in order to provide an opportunity for

8 comment. Lead Counsel and the EEOC will provide comments, if any, within twenty-one (21)

9 days of receipt. Abercrombie shall respond to such comments within fifteen (15) days of receipt.

10 If the parties cannot agree on the proposed plan for training, any disputes will be submitted to the

11 Special Master for resolution. The proposed plan for training will be presumed to be acceptable

12 unless Lead Counsel and/or EEOC demonstrate that the proposed plan for training is improper.

13

D. Internal Complaint Procedure.

14

1. If Abercrombie has not already done so, then within thirty (30) days of the

15 Approval Date, Abercrombie shall develop an Internal Complaint Procedure to provide for the

16 filing, investigation and, if appropriate, remedying of complaints of discrimination or retaliation

17 by associates or applicants for employment on the basis of race, color, national origin or gender,

18 or where a violation of this Decree has occurred or is alleged. Abercrombie will implement the

19 Internal Complaint Procedure within sixty (60) days of the Approval Date. Abercrombie will

20 provide Lead Counsel and EEOC with the proposed Internal Complaint Procedure in order to

21 provide an opportunity for comment regarding the proposed procedure. Lead Counsel and the

22 EEOC will provide comments, if any, within twenty-one (21) days of receipt of the Internal

23 Complaint Procedure. Abercrombie shall respond to such comments within fifteen (15) days of

24 receipt. If the parties cannot agree on the Internal Complaint Procedure, any disputes will be

25 submitted to the Special Master for resolution. The Internal Complaint Procedure will be

26 presumed to be acceptable unless Lead Counsel and EEOC demonstrate that the proposed Internal

27 Complaint Procedure is improper. Any decision of the Special Master is final and not subject to

28 appeal.

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1

2. The Diversity VP shall be responsible for oversight of:

2

a. publicizing the availability of this Internal Complaint Procedure;

3

b. tracking and collecting all complaints filed thereunder;

4

c. investigating and resolving such complaints in a timely and

5 effective manner; and

6

d. retaining records regarding the resolution of all such complaints.

7

3. The internal complaint procedure shall incorporate the following elements:

8

a. A policy describing how investigations will be conducted, to be

9 included in the Associate Handbook;

10

b. A prompt commencement and thorough investigation by a person

11 trained to conduct such investigations who is not connected with the complaint;

12

c. A statement that an investigation should include interviews of all

13 relevant witnesses, including the complainant, and reviews of all relevant documents;

14

d. A written record of all investigatory steps, and any findings and

15 conclusions, and any actions taken;

16

e. Provision for the reasonably prompt resolution of such complaints;

17

f. An opportunity for the complainant to review and respond to

18 tentative findings, except in tho se circumstances in which it is necessary to take immediate

19 action;

20

g. Confidentiality of the complaint and investigation to the extent

21 possible;

22

h. Appropriate communication of the final conclusions of the

23 investigation provided to the complainant;

24

i. An appeal procedure to the Vice President of Human Resources, or

25 other appropriate Abercrombie representative, should the complainant be dissatisfied with the

26 results of the investigation; and

27

j. A notice that employees or applicants complaining of

28 discrimination may use the company’s internal complaint procedure and/or may file charges with

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1 the EEOC or state or local Fair Employment Practice (FEP) agencies. The notice shall also state

2 that filing an internal complaint does not relieve the complainant of meeting any applicable

3 deadline for the filing of a charge or complaint with EEOC or state or local FEP agencies.

4

4. Abercrombie may encourage resolution of internal complaints at a local

5 level prior to investigation, but not require such informal resolution. A complaina nt shall not be

6 required to first report the complaint to a person who is accused of the inappropriate conduct to

7 invoke the Internal Complaint Procedure.

8

5. The Internal Complaint Procedure will permit, but not require, an

9 employee to initiate the complaint process by submitting a written complaint on a form designed

10 for that purpose. Abercrombie shall also set up or maintain a toll- free telephone number to

11 receive complaints and shall designate additional persons at the district level who will be

12 authorized to accept such complaints on behalf of the Company.

13

6. The Internal Complaint Procedure shall be incorporated into the Associate

14 Handbook. Abercrombie shall continue to issue the Associate Handbook to all new store

15 associates.

16

7. Abercrombie will maintain a policy of nondiscrimination and equal

17 treatment, including a policy of zero tolerance for unlawful discrimination, in all of its

18 employment practices.

19

8. The Internal Complaint Procedure is not intended to supplant the right of

20 any employee to file a charge or complaint of discrimination or retaliation under any available

21 municipal, state, or federal law.

22

9. Abercrombie shall publish with the Internal Complaint Procedure the

23 following elements that will be included in the procedure:

24

a. A statement that it is unacceptable to retaliate against any associate

25 for use of the Internal Complaint Procedure, for assisting in the investigation of a complaint, or

26 for otherwise assisting in the utilization of the procedure. Abercrombie reserves the right to take

27 disciplinary action against an associate who intentionally provides false information in connection

28 with the procedure.

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1

b. A statement that if an allegation of discrimination or retaliation

2 against a manager or other associate is substantiated, then such conduct will result in appropriate

3 discipline, up to and including discharge.

4

E. Performance Evaluations.

5

1. If Abercrombie has not already done so prior to the Approval Date, it shall

6 revise its performance evaluation forms for Assistant Managers, Store Managers, General

7 Managers, Dis trict Managers, and Regional Managers in order to include as measures of

8 performance: (1) compliance with Abercrombie’s Equal Employment Opportunity Policy and

9 Discrimination and Harassment Policy; (2) attainment and management of diversity in the

10 workplace; and (3) efforts to meet Benchmarks and to comply with other provisions of the

11 Decree. The results of such evaluation factors shall have a meaningful impact upon

12 compensation and/or bonus calculation.

13

2. At least thirty (30) days prior to implementation of the performance

14 evaluation forms described in Section XI.D.1, Abercrombie will provide Lead Counsel and the

15 EEOC with the proposed revisions in order to provide an opportunity for comment regarding the

16 revisions. Lead Counsel and the EEOC will provide comments, if any, within twenty-one (21)

17 days of receipt of the proposed revisions. Abercrombie shall respond to such comments within

18 fifteen (15) days of receipt. If the parties cannot agree on the proposed revisions, any disputes

19 will be submitted to the Special Master for resolution. The proposed revisions will be presumed

20 to be acceptable unless Lead Counsel and/or EEOC demonstrate that the proposed revisions are

21 improper. Any decision of the Special Master is final and not subject to appeal.

22 XII. JOB ANALYSIS, MINIMUM ELIGIBILITY REQUIREMENTS, JOB CRITERIA,

RECRUITMENT, HIRING, JOB ASSIGNMENTS AND MANAGERIAL

23

PROMOTION AND STAFFING

24

A. Job Analysis and Job Criteria.

25

1. The parties stipulate and agree upon Abercrombie’s retention of Kathleen

26 Lundquist, a professional industrial organizational psychologist, to develop a written job analysis

27 and job-related criteria for each in-store store position.

28

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1

2. No later than four (4) months after the Approval Date, in consultation with

2 the industrial organizational psychologist, Abercrombie shall develop selection criteria for in-

3 store positions, including Minimum Eligibility Requirements that are job related and consistent

4 with business necessity to the extent required by Title VII. Selection criteria shall be subject to

5 challenge under Section X of this Decree only if a particular position’s selection criteria, taken

6 collectively, cause adverse impact in selection rate for African Americans, Asian Americans,

7 Latinos, or women. If the selection criteria cause such adverse impact and are challenged under

8 Section X of this Decree, the selection criteria shall be affirmed if Abercrombie shows that it has

9 used Best Efforts to determine whether alternative job-related selection criteria or whether an

10 alternative use of job-related selection criteria has less adverse impact and would be equally

11 predictive of job performance.

12

3. Abercrombie will not use as a criterion for store positions any of the

13 following: enrollment in a target college, participation in college fraternity or sorority activities

14 generally, participation in particular fraternities or sororities, participation in particular athletic

15 activities, or gender. Abercrombie will not use enrollment in college as a Minimum Eligibility

16 Requirement for non- management store positions.

17

4. Abercrombie will provide Lead Counsel and the EEOC with the job

18 analyses, including Minimum Eligibility Requirements, and job-related criteria in order to

19 provide an opportunity for comment. The content of the job analyses and job-related criteria

20 prepared pursuant to Section XII.A.1. will not be subject to review under Section X of this

21 Decree.

22

B. Recruitment and Hiring.

23

1. No later than four months after the Approval Date, Abercrombie, in

24 consultation with the industrial organizational psychologist, shall develop and implement a

25 written Recruitment and Hiring Protocol to recruit and hire job applicants for all hourly in-store

26 positions and the Manager- in-Training position. The Recruitment and Hiring Protocol shall

27 require that Abercrombie affirmatively seek out applications from qualified African Americans,

28 Asian Americans, and Latinos of both genders.

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1

2. Abercrombie’s recruitment and operations materials will reflect diversity in

2 race, color, national origin and gender in the United States, including the use of African

3 Americans, Asian Americans and Latino models of both genders.

4

3. The Recruitment and Hiring Protocol shall prohibit Abercrombie from

5 discouraging the submission of an application by any qualified person, or discarding or otherwise

6 diverting any application submitted. In addition, the Recruitment and Hiring Protocol shall

7 instruct Managers to make available and accept applications for Manager- in-Training at all of the

8 places and through all of the means that applications for Brand Representative are made available

9 and received.

10

4. The Recruitment and Hiring Protocol shall require clear and concise

11 written job descriptions for each in-store non- managerial position and the Manager-in- Training

12 position.

13

5. Job descriptions will be made available to anyone who requests them, and

14 non- management job descriptions will be made available in a single package so that potential

15 applicants are made aware of the differences among positions.

16

6. The Recruitment and Hiring Protocol will contain instructions for

17 dissemination of applications, the conduct of structured interviews, programs to train involved

18 staff, hiring decisions, documentation, and the hiring process generally.

19

7. The Recruitment and Hiring Protocol shall instruct Managers that Minority

20 associates shall not be disproportionately assigned involuntarily to any particular positions on the

21 basis of race or national origin.

22

8. Within sixty (60) days of the adoption of the Recruitment and Hiring

23 Protocol and continuing every twelve (12) months thereafter, Abercrombie will use Best Efforts

24 to train all involved staff in the conduct of structured interviews and other elements of the

25 Recruitment and Hiring Protocol.

26

9. Abercrombie will provide Lead Counsel and the EEOC with the

27 Recruitment and Hiring Protocol and the job descriptions in order to provide an opportunity for

28 comment regarding the adequacy of the Recruiting and Hiring Protocol. If the parties cannot

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1 agree on the Recruitment and Hiring Protocol, any disputes will be submitted to the Special

2 Master for resolution and the Recruitment and Hiring Protocol shall be affirmed by the Special

3 Master unless Lead Counsel and /or the EEOC demonstrate that said protocol is clearly improper

4 and not in accordance with accepted industrial organizational psychologist professional standards.

5 Any decision of the Special Master is final and not subject to appeal.

6

C. Managerial Promotions.

7

1. Abercrombie will use Best Efforts to promote African Americans, Latinos,

8 Asian Americans and women at the following rates: Beginning in the second six- month period,

9 Abercrombie shall use its Best Efforts to promote women and members of each Minority Group

10 to positions of Assistant Manager and Store Manager/General Manager in a proportion that is no

11 less than the specific group’s proportion of the available feeder pool. The appropriate available

12 feeder pool for Assistant Managers consists of all incumbent Managers-in- Training. The

13 appropriate available feeder pool for Store Manager/General Manager consists of all incumbent

14 Assistant Managers. The measuring date of incumbents in the available feeder pool shall be the

15 last day of the preceding six- month period. For this set of Benchmarks only, if Abercrombie

16 promotes women and African Americans, Latinos, and Asian Americans to such positions in a

17 proportion that deviates by no more than two standard deviations from the specific group’s

18 proportion of the available feeder pool, Abercrombie shall be deemed to have achieved its

19 promotion Benchmarks.

20 XIII. AFFIRMATIVE RECRUITING EFFORTS

21

A. Diversity Recruiters.

22

In the first six months of the Decree, if not before, Abercrombie will hire and maintain at

23 least ten (10) full- time diversity recruiters who will be based in major metropolitan areas and will

24 be charged with recruiting Minority applicants, including female applicants of each Minority,

25 who meet Minimal Eligibility Requirements, into in-store positions. No later than twelve months

26 after the Approval Date, Abercrombie will hire and maintain an additional fifteen (15) full- time

27 diversity recruiters. Abercrombie will use Best Efforts to ensure that its recruiters themselves

28 reflect diversity in race/national origin and gender. Abercrombie will consider both external and

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1 internal candidates for recruiter positions. Abercrombie will provide the resumes of the diversity

2 recruiters to Lead Counsel and the EEOC. If Abercrombie has met the Benchmarks set forth in

3 Section XIV for the first thirty (30) months of the term of this Decree, Abercrombie shall have

4 the right to petition the Special Master, and if necessary the Court, for modification of this

5 provision.

6

B. Advertisements.

7

During the Term of the Decree, Abercrombie will advertise for in-store employment

8 opportunities in periodicals or other media that target African Americans, Asian Americans,

9 and/or Latinos of both genders. Abercrombie will provide a list of media publications in which

10 advertisements were placed to Lead Counsel and the EEOC on an annual basis.

11

C. Recruiting Events.

12

During the Term of the Decree, Abercrombie will attend Minority job fairs and Minority

13 recruiting events that are attended by African Americans, Asian Americans, and/or Latinos of

14 both genders.

15

D. Diversity Consultant.

16

During the Term of the Decree, Abercrombie will utilize a diversity consultant whose

17 identity will be made known to Lead Counsel and the EEOC. The diversity consultant will

18 conduct diversity/inclusion training for all field based managers and selected home office

19 personnel. The diversity consultant will also, in conjunction with the VP of Diversity, aid in

20 identifying sources of qualified Minority candidates. Abercrombie will ensure that its diversity

21 consultant, or any subcontracted consultant, has familiarity with and experience in providing

22 diversity training as to all three of the minority groups – African American, Asian American and

23 Latinos – and gender.

24

E. Documentation.

25

Abercrombie will ensure that its recruiters document their recruiting efforts and that such

26 records are retained for review by the Vice President of Diversity and are available to the

27 monitor. Such documentation shall include, specifically but not exclusively: 1) a description of

28

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1 the placement of advertisements (publication, size, time, duration, targeted audience) and 2) a

2 description of events/fairs attended (place, date, targeted audience).

3 XIV. BENCHMARKS

4

A. General Principles

5

1. Abercrombie shall use Best Efforts to meet the selection benchmarks set

6 forth in this section. These Benchmarks do not establish maximum or minimum rates for the

7 selection of African Americans, Latinos, Asian Americans or women; rather these Benchmarks

8 establish selection rates that Abercrombie will use Best Efforts to achieve.

9

2. In attempting to meet these Benchmarks, Abercrombie shall not be

10 required to select unqualified persons or to displace any incumbent associate from his or her

11 position. These Benchmarks are not quotas; rather, they are Benchmarks designed to afford

12 guidance as to whether Abercrombie is making selection decisions in such a way as to afford

13 equal employment opportunity.

14

3. Abercrombie's failure to achieve a Benchmark for a particular position or

15 period will not be considered a violation of this Decree unless Abercrombie has failed to use Best

16 Efforts to meet the Benchmark. Should Abercrombie demonstrate that the proportion of good

17 faith offers made to applicants of a particular group as compared to all applicants was at least as

18 high as the Benchmark percentage, such evidence will conclusively establish that the Benchmark

19 was met.

20

4. Unless otherwise specified, achievement of the Benchmarks will be

21 calculated on a semi-annual basis and based on companywide employment data.

22

5. Failure to achieve a Benchmark by a fraction of a person shall not be

23 deemed to constitute a failure to achieve a Benchmark under the Decree.

24

6. Abercrombie shall use voluntary self- identification to identify the race and

25 gender of applicants and employees. No party shall influence an applicant’s or employee’s self-

26 identification. Absent clear applicant or employee error, no applicant or employee shall be

27 permitted to change his or her identified race or ethnicity.

28

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1

B. Interim Hiring Goals

2

1. Interim hiring Benchmarks shall be established for Benchmark Positions.

3

2. Abercrombie shall monitor, by applicant self- identification, applicant flow

4 of African Americans, Asian Americans, Latinos and women.

5

3. “Applicant Rate” shall be the actual applicant flow rate of a group as

6 measured on a six- month basis.

7

4. “Maintenance Level” shall be the proportion of Asian Americans hired

8 compared to all groups hired in a position as of the Preliminary Approval Date of this Decree.

9

5. “Percentage Level” for African-Americans shall be six-and-a-half percent

10 (6.5%) for the second six- month period, seven-and-a-half percent (7.5%) for the third six- month

11 period, and nine percent (9%) for the fourth six- month period.

12

6. “Percentage Level” for Latinos shall be seven percent (7%) for the second

13 six-month period, eight percent (8%) for the third six- month period, and nine percent (9%) for the

14 fourth six- month period.

15

7. “Percentage Level” for women shall be fifty-three percent (53%) for the

16 second six- month period, fifty- three percent (53%) for the third six- month period, and fifty-three

17 percent (53%) for the fourth six- month period.

18

8. The first six- month period begins at the beginning of the month following

19 the Approval Date.

20

9. Brand Representative Position.

21

Abercrombie will use Best Efforts to meet the following interim hiring

22 goals:

23

a. First six- month period:

24

African American: five percent (5%);

25

Latinos: six percent (6%);

26

Asian Americans: Maintenance Level; and

27

Women: fifty-three percent (53%).

28

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1

b. Second six- month period:

2

African American: the greater of Percentage Level of six-and-a-half

3

percent (6.5%) or Applicant Rate, as adjusted;1

4

Latinos: the greater of Percentage Level of seven percent (7%) or

5

Applicant Rate, as adjusted;2

6

Asian Americans: the greater of Maintenance Level or Applicant

7

Rate; and

8

Women: the greater of Percentage Level of fifty-three percent

9

(53%) or Applicant Rate;

10

c. Third six- month period:

11

African Americans: the greater of Percentage Level of seven-and-

12

a-half percent (7.5%) or Applicant Rate, as adjusted;3

13

Latinos: the greater of Percentage Level of eight percent (8%) or

14

Applicant Rate, as adjusted;4

15

Asian Americans: the greater of Maintenance Level or Applicant

16

Rate; and

17

Women: the greater of Percentage Level of fifty-three percent

18

(53%) or Applicant Rate;

19

d. Fourth six- month period:

20

African Americans: the greater of Percentage Level of nine percent

21

(9%) or Applicant Rate in the third six- month period;

22
1 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
23 (3%) the proportion of African Americans hired into the Brand Representative position compared to all Minority
individuals hired into that position in the first six-month period.
24 2 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
(3%) the proportion of Latinos hired into the Brand Representative position compared to all Minority individuals
25 hired into that position in the first six-month period.
26 3 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
percent (1.5%) the proportion of African Americans hired into the Brand Representative position compared to all
27 Minority individuals hired into that position in the second six-month period.
4 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
28 percent (1.5%) the proportion of Latinos hired into the Brand Representative position compared to all Minority
individuals hired into that position in the second six-month period.

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1

Latinos: the greater of Percentage Level of nine percent (9%) or

2

Applicant Rate in the third six- month period;

3

Asian Americans: the greater of Maintenance Level or Applicant

4

Rate in the third six- month period; and

5

Women: the greater of Percentage Rate of fifty- three percent

6

(53%) or Applicant Rate.

7

10. Minority Female Goal.

8

In addition to the interim hiring goals set forth in Section XIV.B.9,

9 Abercrombie will use Best Efforts to meet the following interim hiring goals for African

10 American women for the Brand Representative position:

11

a. First six- month period:

12

4.25 percent of all women hired;

13

b. Second six- month period:

14

the greater of 5.5 percent of all women hired or Applicant Rate, as

15

adjusted;5

16

c. Third six- month period:

17

the greater of 6.4 percent of all women hired or Applicant Rate, as

18

adjusted;6

19

d. Fourth six- month period:

20

the greater of 7.6 percent of all women hired or Applicant Rate.

21

Notwithstanding the foregoing, Abercrombie shall be deemed to have

22 achieved this Benchmark if Abercrombie achieves its Benchmark for African Americans and if

23 Abercrombie hires or extends good faith offers to African American women at the greater of the

24 following rates: (1) 45% of Abercrombie’s total African American hires; or (2) the Applicant

25

26 5 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by three percent
(3%) the proportion of African American women hired into the Brand Representative position compared to all
27 minority women hired into that position in the first six-month period.
6 “As adjusted” means Applicant Rate supplemented by a percentage determined by multiplying by one-and-a-half
28 percent (1.5%) the proportion of African American women hired into the Brand Representative position compared to
all minority women hired into that position in the second six-month period.

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1 Rate of African American women. In addition, Abercrombie shall report the number of all Latina

2 and Asian American women hired in the Brand Representative position. If, in two consecutive

3 six-month periods, the number of Latina women or Asian American women hired as a proportion

4 of all women hired into that position is lower to a statistically significant degree than the number

5 of Latina women or Asian American women as a proportion of all women employed in that

6 particular position at the time this Decree takes effect, the parties shall meet and confer regarding

7 the matter.

8

11. Manager- in-Training Position.

9

Abercrombie will use Best Efforts to meet the following interim hiring

10 goals:

11

a. First six- month period:

12

African American: three-and-a-half percent (3.5%);

13

Latinos: three-and-a-half percent (3.5%) ;

14

Asian Americans: three and four-tenths percent (3.4%); and

15

Women: fifty-three (53) percent .

16

b. Second six- month period:

17

African American: four-and-a-half percent (4.5%) or Applicant

18

Rate;

19

Latinos: four-and-a-half percent (4.5%) or Applicant Rate;

20

Asian Americans: three and six- tenths percent (3.6%) or Applicant

21

Rate; and

22

Women: fifty-three percent (53%) or Applicant Rate.

23

c. Third six- month period:

24

African American: five-and-a-half percent (5.5%) or Applicant

25

Rate;

26

Latinos: five-and-a-half percent (5.5%) or Applicant Rate;

27

Asian Americans: three and eight-tenths percent (3.8%) or

28

Applicant Rate; and

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1

Women: fifty-three percent (53%) or Applicant Rate.

2

d. Fourth six- month period:

3

African American: seven percent (7%) or Applicant Rate;

4

Latinos: seven percent (7%) or Applicant Rate;

5

Asian Americans: four percent (4%) or Applicant Rate; and

6

Women: fifty-three percent (53%) or Applicant Rate.

7

12. Notwithstanding the foregoing provisions XIV.B.9.-11., a rebuttable

8 presumption shall arise that Abercrombie has exercised its Best Efforts to meet the Minority

9 interim hiring goals for a particular six- month period if (i) Abercrombie is then in compliance

10 with its obligations under the Decree and (ii) Abercrombie has met Percentage Level interim

11 goals for two of the three Minority groups. However, the rebuttable presumption shall not be

12 deemed to arise if Abercrombie has missed an interim goal for the same group for a second

13 consecutive period. Nor would a rebuttable presumption arise if the interim goal Abercrombie

14 has missed is based upon the Applicant Rate. If the presumption is deemed to arise, and if Lead

15 Counsel and/or the EEOC seek to challenge whether Abercrombie has used Best Efforts to meet

16 the Minority interim hiring goals, Lead Counsel and/or the EEOC shall have the burden of

17 proving Abercrombie’s failure to use Best Efforts by a preponderance of the evidence.

18

C. Applicant Rate Goals

19

After the period when Interim Hiring Goals, described in Part B above, will be used,

20 Abercrombie shall use Applicant Rate in the preceding six- month period as a goal for Benchmark

21 Positions during the remaining term of the Decree. Abercrombie will identify the applicable

22 Applicant Rate to the Monitor, Lead Counsel, and the EEOC within thirty (30) days of the

23 beginning of each six- month period. If Abercrombie has been found to have failed to use Best

24 Efforts to implement Benchmarks, the parties shall meet and confer under the direction of the

25 Special Master to determine when and under what conditions Abercrombie may proceed to use of

26 Applicant Rate goals.

27

28

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1 XV. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS

2

A. Documents To Be Preserved For The Duration of The Decree.

3

Abercrombie shall retain the following employment-related records for the Duration of the

4 Decree or as required by state or federal law, whichever is longer:

5

1. Internal Complaint Procedure;

6

2. Job Analyses for Benchmark Positions;

7

3. Minimum Eligibility Requirements and job-related criteria for Benchmark

8 Positions;

9

4. Recruitment and Hiring Protocol;

10

5. Job descriptions for Benchmark Positions;

11

6. Training plans;

12

7. Semi- Annual Progress Reports; and

13

8. Monitor’s Reports and Executive Summaries.

14

B. Documents to Be Maintained for Two Years.

15

The following documents shall be maintained for two years from the date the document is

16 created, or as required by state or federal law, whichever is longer:

17

1. Performance Evaluations of Managers;

18

2. Training Program Materials.;

19

3. Internal Complaints;

20

4. Recruiting Documentation described in Section XIII.E; and

21

5. Marketing Materials.

22

C. Access to Documents.

23

1. The Monitor shall, upon reasonable notice, be entitled to review all

24 documents, including electronic data in machine-readable form, that are required to be maintained

25 or created by the express terms of this Decree or that are used or referred to by Abercrombie to

26 prepare Semi- Annual Progress Reports, except, ho wever, that the Monitor shall not be entitled to

27 review any such documents that are protected by attorney-client privilege or attorney work

28 product doctrine (“privileged documents”).

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1

2. Lead Counsel and the EEOC may seek access to non-privileged documents

2 described in C.1 above by requesting, with notice to Abercrombie, copies of such documents

3 from the Monitor. Upon request, and notice to Abercrombie, the Monitor shall provide Lead

4 Counsel and the EEOC with access to documents described in Section XV.C.1 unless

5 Abercrombie objects within five (5) days of receipt of notice. If Abercrombie timely objects, the

6 objection shall be resolved by the Monitor. The Monitor shall determine any matter in dispute by

7 requiring that Lead Counsel and the EEOC demonstrate the access requested is relevant to a claim

8 of breach of the Decree.

9

3. All documents required to be maintained by the express terms of the

10 Decree, and all documents that are provided to the Monitor, Lead Counsel, or the EEOC under

11 the terms of the Decree, are and shall be treated as confidential business records. Neither Lead

12 Counsel, the EEOC nor the Monitor shall divulge any such documents to any third party unless so

13 ordered by the Court after notice to Abercrombie and an opportunity for Abercrombie to object to

14 such disclosure and be heard. Upon expiration of this Decree, Lead Counsel, the EEOC and the

15 Monitor shall promptly return to Abercrombie or destroy any and all documents Abercrombie

16 furnished under this Decree. This provision shall not prevent a party from filing otherwise

17 confidential documents with the Court, provided that, either: (a) such documents are filed under

18 seal; or (b) Lead Counsel and/or the EEOC give ten (10) days advance notice to Abercrombie, to

19 permit opportunity to seek a protective order sealing such documents.

20

D. Reporting Schedule.

21

Within sixty (60) days of completion of the initial Benchmark period, and at six (6) month

22 intervals thereafter through the Term of the Decree, Abercrombie shall provide Semi- Annual

23 Progress Reports to the Monitor, Lead Counsel and EEOC on Abercrombie’s compliance with the

24 Decree’s requirements. All such Reports shall be subject to the same confidentiality restrictions

25 described in Section XV.C.3. above.

26

E. Contents of the Semi-Annual Progress Reports.

27

Abercrombie’s Semi- Annual Progress Reports shall include information regarding the

28 following:

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1

1. Progress in achieving each of the Benchmarks described above in

2 Section XIV. This report will include the applicable goal proportion and the actual achieved

3 proportion. Abercrombie will indicate any shortfalls in achieving Benchmarks for the preceding

4 six-month period, will analyze the possible reasons for such shortfall, and will identify plans to

5 facilitate achievement of the Benchmark not met. If applicable, Abercrombie will analyze

6 possible reasons if any division reflects shortfalls (i.e., less then 80 percent of companywide

7 level) even if companywide Benchmarks are satisfied. (Division is defined as Abercrombie &

8 Fitch, Hollister, abercrombie, or any other concept adopted by Abercrombie during the period of

9 this Decree). In addition, if applicable, Abercrombie will analyze possible reasons that any

10 Benchmark was met through good faith offers only.

11

2. Number and proportion of persons companywide in the preceding six

12 months by race/ethnicity and gender (i.e., African American men, African American women,

13 Asian American men, Asian American women, Latino men, Latina women, white men, white

14 women) extended a good faith offer, hired or promoted (each of which shall be separately

15 reported) into (a) each in-store non-managerial position (e.g., Brand Representative, stocker,

16 overnight); (b) Manager-In-Training; (c) Assistant Manager; (d) Store Manager; and (e) General

17 Manager.

18

3. Number and proportion of persons in the preceding six months extended a

19 good faith offer, hired or promoted (each of which shall be separately reported) by store, state and

20 division by race/ethnicity and gender (i.e. African American men, African American women,

21 Asian American men, Asian American women, Latino men, Latina women, white men, white

22 women) for (a) each in-store non- managerial position (e.g., Brand Representative, stocker,

23 overnight); (b) Manager-In-Training; (c) Assistant Manager; (d) Store Manager; and (e) General

24 Manager.

25

4. Composition of incumbent associates by each store position and by race,

26 ethnicity and gender within each store, state, division and company-wide at the end of the

27 preceding six month period.

28

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1

5. Number and proportion of associates in each in-store non- managerial

2 position (e.g., Brand Representative, stocker, overnight) by race/ethnicity and gender and by

3 store, state, division, and companywide in the preceding six months;

4

6. Attrition or termination of associates from each store position by race,

5 ethnicity and gender and by reason for leaving within each store, state, and division during the

6 preceding six month period;

7

7. Confirmation by District Managers that the poster required by Section XI.B

8 is posted, with copies attached;

9

8. Summary of activity of Diversity V.P. in implementing affirmative

10 recruitment efforts, diversity training and Internal Complaint Procedure, with copies of materials

11 attached;

12

9. Copies of Company materials depicting persons referred to in Section

13 XII.B.2 and an indication of which persons used are or have been Abercrombie associates;

14

10. Copies of posting and publication of job descriptions of in-store positions

15 as required in Section XII.B.5;

16

11. Copies of recruitment documentation referred to in Section XIII.

17

12. The number of hourly in-store employees by race/gender tha t have been

18 terminated in the preceding six- month reporting period at the direction of home office

19 management excluding human resources.

20

13. Copies of all marketing materials used by the Company in the preceding

21 six months (e.g., print, television or internet advertising; quarterly magazines, store catalogs, and

22 similar materials; store posters; videos; A&F television; shopping bags; etc.).

23

F. Compliance Meetings.

24

1. Within three months of the Approval Date, representatives of Abercrombie,

25 Lead Counsel, and the EEOC, shall confer with the Monitor in order to review the initial

26 implementation of the Decree, Abercrombie’s compliance with the requirements, and other

27 related topics. Thereafter, representatives of Abercrombie, Lead Counsel, and the EEOC, shall

28 confer with the Monitor every six months to review the Semi-Annual Progress Reports required

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1 by Section XV.E above. Within one month of the initial Progress Report and after each such

2 Report submitted thereafter representatives of Abercrombie, Lead Counsel and the EEOC shall

3 confer with the Monitor in order to review the matters described above. Such meetings shall be

4 in person if requested by Lead Counsel, EEOC, or Abercrombie, except that if, after three years

5 after the Approval Date, Abercrombie has met the Benchmarks, then only one compliance

6 meeting each year need be in person.

7

2. The parties will discuss, among other things, identifying any goal not

8 achieved and an analysis of the reasons that the goal was not achieved and plans that would

9 facilitate achievement of the goal. In addition, if applicable, the parties will discuss possible

10 reasons that any Benchmark was met through good faith offers only.

11

3. The Diversity VP shall attend each Compliance Meeting. Other officers,

12 managers, and associates of Abercrombie, whose presence will assist the attainment of the

13 purpose of the Compliance Meetings, may attend as appropriate. Compliance Meetings shall take

14 place in San Francisco (or another mutually agreeable location).

15

G. Status Conference with Court.

16

1. The parties shall conduct an annual status conference with the Court to

17 discuss the status of implementation of the Decree. Abercrombie, Lead Counsel, and the EEOC

18 may be represented at the status conference. No party shall file any document with the Court in

19 conjunction with the status conference, unless directed to do so by the Court.

20 XVI. MONITORING OF IMPLEMENTATION

21

A. Court-Appointed Monitor.

22

1. The parties have stipulated to Fred Alvarez, Esq. of Palo Alto, California

23 for the Court to appoint as a Monitor.

24

2. The Monitor will prepare an Annual Compliance Report (“Report”) on the

25 status of implementation and Abercrombie’s compliance with the terms and objectives of the

26 Decree, as well as an “Executive Summary” of such Report. The Monitor’s Report will include

27 (a) a summary of the requirements of the Decree; and (b) an assessment of Abercrombie’s

28 semiannual compliance reports. The Monitor will review and evaluate Abercrombie’s

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1 compliance with the specific terms of this Decree, and identify any barriers to fulfillment of its

2 objectives. The Monitor will also review and assess the responsibilities and performance of the

3 VP of Diversity.

4

3. The Executive Summary shall set forth the substance of the Monitor’s

5 findings for the applicable reporting period. The parties contemplate that the Executive Summary

6 will reflect the Monitor’s general findings in areas such as, but not limited to, training,

7 recruitment, creation of job analyses and descriptions, and attainment of Benchmarks, all as more

8 specifically covered by the Report, and the parties also contemplate that the Executive Summary

9 will not include specific findings as to, inter alia, the numbers of applications, hires, promotions,

10 or specific occurrences or events. By way of example, the Executive Summary’s discussion of

11 the Company’s training could generally set out the Monitor's findings relative to whether the

12 Company had or had not met its overall training objectives under the Decree over the subject

13 reporting period and, if not, a general statement of matters with respect to which there had been

14 non-compliance and any steps the Company is to take to resolve such matters. The EEOC may

15 respond to any legitimate inquiries by the public, media, or the government, with information

16 contained in the Summary or a copy thereof. Other than this exception to the EEOC, the

17 Executive Summary and information contained therein would be subject to the confidentiality

18 provisions of Section XV.C.3 of this Decree.

19

4. The Monitor will provide the Special Master, Abercrombie, Lead Counsel,

20 and the EEOC with copies of the Report and Executive Summary within ninety (90) days of the

21 anniversary date of the Decree. The Report shall be subject to the confidentiality restrictions

22 described in Section XV.C.3.

23

5. The Monitor shall have reasonable and timely access to relevant books,

24 data (including databases), documents, and other sources of information necessary or appropriate

25 to the exercise of his/her authority, in whatever form they are maintained in the ordinary course of

26 business. This will include, but not be limited to, access to the following insofar as they relate to

27 compliance with equal employment opportunity law and/or the terms of this Decree: (a)

28 applications and related documents; (b) guidelines or training on recruitment, hiring, job

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1 assignment, and managerial promotion; (c) EEO complaints, and any internal complaints; (d)

2 managerial performance evaluations; (e) records of employee discipline; (f) records of attrition

3 and terminations; (g) recruitment materials; and (h) marketing materials.

4

6. The Monitor shall address compliance issues that may arise as follows:

5

a. The Monitor shall categorize compliance issues as Low Level,

6 Intermediate Level, or High Level and treat them as follows:

7

i. Low Level means non-systemic matters, such as compliance

8 issues arising at a single store. Low Level issues may be resolved by Abercrombie and the

9 Monitor without consulting Lead Counsel or the EEOC. Low Level issues that are not resolved

10 by Abercrombie after notice from the Monitor and a reasonable opportunity to cure become

11 Intermediate Level issues. Low Level issues that are resolved shall only be reported by the

12 number of such issues in each region of Abercrombie in a confidential addendum to the Monitor’s

13 report that shall be provided to the parties. In addition, the Monitor shall maintain a log of all

14 resolved Low Level issues that includes, as to each issue, identification of the store involved and

15 a brief description of the nature of the issue and resolution. The Monitor shall provide the Special

16 Master with such log on an annual basis. Neither the Monitor nor the Special Master shall

17 produce such log to Lead Counsel or the EEOC unless and until Lead Counsel and/or the EEOC

18 undertake an enforcement procedure under the Decree in which such information would be

19 relevant, at which point Lead Counsel and/or the EEOC may seek such log through discovery

20 under the standards set forth in Section X.B.4.d above.

21

ii. Intermediate Level means either Low Level issues that the

22 Monitor and Abercrombie are unable to resolve after notice and a reasonable opportunity to cure,

23 or systemic issues that arise out of policy or implementation concerns that affect a significant

24 number of individuals. Prior to reporting Intermediate Level issues, the Monitor shall provide

25 Abercrombie with notice and a reasonable opportunity to cure any Intermediate Level issues.

26 Intermediate Level issues, including any resolution of such issues, will be reported in Compliance

27 Reports and may be the topic of discussion at Section XV.F Compliance Meetings.

28

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1

iii. High Level means situations involving exigent facts or

2 circumstances which require immediate action to prevent a serious violation of the terms of this

3 Decree. In the event a High Level matter shall arise, the Monitor will immediately notify EEOC,

4 Lead Counsel and Abercrombie of the pressing concern. The matter shall be resolved in

5 accordance with the provisions of Section X.B.

6

b. Upon request, and notice to Abercrombie, the Monitor shall provide

7 Lead Counsel and the EEOC with access to documents described in Section XV.C.1 unless

8 Abercrombie objects within five (5) days of receipt of notice. If Abercrombie timely objects, the

9 objection shall be resolved in accordance with the provisions of Section X.B.

10

c. The Monitor shall not report or disclose any action or matter

11 discovered in the course of the Monitor’s function that does not directly relate to the terms of this

12 Decree and Abercrombie’s compliance therewith.

13

7. Nothing herein shall be interpreted to preclude the Monitor from resolving

14 matters informally between the parties.

15

8. The Monitor may audit Abercrombie data for accuracy and/or

16 completeness, or retain an independent expert(s) for this purpose, as he/she deems necessary or

17 appropriate.

18

9. The Monitor may visit Abercrombie stores, as well as corporate offices, as

19 necessary to fulfill his/her responsibilities. The Monitor may also interview and communicate

20 with class members, in-store managers, employees, or other witnesses as necessary to fulfill

21 his/her responsibilities.

22

10. The Monitor may request additional information from Abercrombie and

23 may communicate with the Diversity VP, in a manner that assists the Monitor in the exercise of

24 his/her duties. After reasonable notice, the Monitor may communicate with members of

25 Abercrombie’s senior management. The Monitor may communicate with the Special Master,

26 counsel for Abercrombie, Lead Counsel and the EEOC.

27

11. All fees and expenses of the Monitor shall be paid by Abercrombie.

28

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1 XVII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE

2

A. Establishment of Settlement Fund.

3

1. Abercrombie shall establish a settlement fund (“Settlement Fund”) in the

4 amount of $40,000,000.00 for the purpose of providing individual monetary awards to Class

5 Representatives, Charging Parties and other eligible members of the Settlement Class and funding

6 a portion of the settlement administration expenses, in accordance with the provisions of this

7 Section. The Settlement Fund will be supplemented by the amount described in Section

8 XVII.A.2.

9

2. The Settlement Fund will be supplemented by an amount calculated as

10 imputed interest on the $40,000,000.00 as follows:

11

$40,000,000.00 multiplied by .025 (2.5% imputed interest)

multiplied by a fraction (the numerator of which is the number of

12

days between the Preliminary Approval Date, and the date

Abercrombie wire transfers final payment from the Settlement Fund

13

to the Settlement Fund Account as provided in Section XVII.A.4.e.

and the denominator of which is 360 days).

14

15

3. Lead Counsel and the EEOC will select a Claims Administrator. The

16 Claims Administrator will open and administer an interest-bearing account (“Settlement Fund

17 Account”) designated by Lead Counsel and with a unique Taxpayer Identification Number.

18

4. Payments will be made by Abercrombie from the Settlement Fund to the

19 Settlement Fund Account as follows:

20

a. Within seven (7) days of the Preliminary Approval Date,

21 Abercrombie will wire $350,000.00 to the Settlement Fund Account. This amount is intended to

22 cover costs of the mailed notices and expenses associated with the claims procedure.

23

b. Within seven (7) days of the Approval Date, Abercrombie will wire

24 $350,000.00 to the Settlement Fund Account. This amount is intended to cover expenses

25 associated with continued implementation of the claims procedure.

26

c. If there is no Final Approval of the Consent Decree, then the

27 Claims Administrator shall return to Abercrombie any funds remaining in the Settlement Fund

28 Account from the amounts described in Sections XVII.A.4.a and b.

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1

d. Within seven (7) days of Final Approval, Abercrombie will wire the

2 aggregate amount set forth in Exhibit C to the Settlement Fund Account. This amount shall be

3 distributed by the Claims Administrator to the Class Representatives and Charging Parties as set

4 forth in Section XVII.B.1.

5

e. After Final Approval and within seven (7) days after the Cla ims

6 Administrator has informed Abercrombie in writing that it is prepared to distribute the Settlement

7 Fund to the eligible members of the Settlement Class, Abercrombie will wire an amount to the

8 Settlement Fund Account calculated as follows:

9

$40,000,000.00 as supplemented by the amount calculated in

Section XVII.A.2., less amounts Abercrombie has paid to the

10

Settlement Fund Account in accordance with Sections XVII.A.4.a.,

b., and d., and less the aggregate amount of opt-out credits as

11

calculated under the provisions of Section XVII.D.4.

12

f. Upon payment of the amounts set forth in Section XVII.A.4. from

13 the Settlement Fund to the Settlement Fund Account having been made, Abercrombie will have

14 no further monetary obligation hereunder to Class Representatives, Charging Parties or members

15 of the Settlement Class, including no obligation to pay any funds for distribution to Class

16 Representatives, Charging Parties or members of the Settlement Class; no obligation to pay costs

17 of mailed notices and expenses associated with the claims procedure; and no obligation to pay

18 any other settlement administration costs, except that Abercrombie will be responsible for paying

19 for the published notice of the Settlement Notice as specified in XVII.C.2.

20

5. Nothing herein shall be deemed to require Abercrombie to separate or

21 segregate its assets into a restricted settlement fund. The Settlement Fund Account will constitute

22 a restricted settlement fund, and it will be created, managed and disbursed by the Claims

23 Administrator under the supervision of Lead Counsel and the EEOC. Other than paying funds

24 from the Settlement Fund to the Settlement Fund Account, Abercrombie will have no

25 responsibilities or liabilities with respect to the Settlement Fund Account, its administration, or

26 distributions therefrom.

27

28

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1

B. Distribution of Settlement Fund.

2

1. Class Representatives and EEOC Charging Parties.

3

Each Class Representative and each Charging Party shall receive a liquidated amount as

4 set forth in Exhibit C. This liquidated amount will compensate the Class Representatives or

5 Charging Party for the (a) full settlement of all their claims against Abercrombie; (b) payment in

6 recognition of risks related to being Class Representative or Charging Party; and (c) payment in

7 consideration for the time and effort expended in the Consolidated Litigation or EEOC

8 proceedings. Payment of these sums shall be made by the Claims Administrator no later than

9 seven (7) days after the receipt of the funds described in Section XVII.A.4.d.

10

2. Settlement Class.

11

The remainder of the Settlement Fund Account will be distributed to eligible members of

12 the Settlement Class who do not opt out based on a formula set out in the allocation plan as set

13 forth in Section L. The distribution of the Settlement Fund Account according to the allocation

14 plan will be undertaken by the Claims Administrator. Except as set forth in Section

15 XVII.C.2.below, the fees, costs and expenses of the Claims Administrator shall be paid from the

16 Settlement Fund Account, including the interest on the Settlement Fund Account. All payments

17 to the Claims Administrator shall be approved by Lead Counsel and the EEOC.

18

C. Notice.

19

1. Mailed Notice.

20

Within twenty (20) days following the Preliminary Approval Date, Abercrombie shall

21 provide the Claims Administrator with a computer disk containing the full names, social security

22 numbers, last known addresses and phone numbers, start dates, and, as applicable, end dates of

23 employment with Abercrombie for all in-store hourly and manager employees employed by

24 Abercrombie at any time from February 24, 1999 through the Preliminary Approval Date who are

25 potential Settlement Class members. Within twenty (20) days following the Preliminary

26 Approval Date, Lead Counsel shall provide the Claims Administrator with a computer readable

27 list of all known potential Settlement Class members and their mailing addresses. Prior to the

28 mailing of the Notices, the Claims Administrator will combine these lists of potential Settlement

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1 Class members received from Abercrombie and Lead Counsel and update any new address

2 information for potential class members as may be available through the National Change of

3 Address system. The Claims Administrator shall determine through a computer database search

4 the most recent address that may be obtained for each person on the combined list of potential

5 Settlement Class members. Within sixty (60) days of the Preliminary Approval Date, the Claims

6 Administrator shall mail, via first class postage, Notice of Class Settlement, the Claim Form and

7 the Explanation of Claims Procedure, all in the form approved by the Court in the Preliminary

8 Approval Order, to all known potential Settlement Class members at their last known address and

9 at the most recent address that may have been obtained through the computer database search.

10

2. Published Notice.

11

Abercrombie shall cause to be published the notice of the class settlement in the form

12 approved by the Court in the Preliminary Approval Order, in newspapers and other media set

13 forth in the Preliminary Approval Order. Abercrombie shall pay for the cost of the published

14 notice, not to exceed $600,000.00.

15

D. Objections and Exclusions.

16

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

17

1. Objections.

18

Class members objecting to the terms of the settlement must do so in writing at least forty

19 (40) days prior to the scheduled Fairness Hearing. The written objection must be sent to the

20 Claims Administrator on or before the date specified in the Preliminary Approval Order. The

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

22 Abercrombie and Lead Counsel within two (2) business days following receipt. The Claims

23 Administrator will also file the original objections with the Clerk of the Court no later than five

24 (5) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain

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

26 under this Decree.

27

28

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1

2. Exclusions.

2

Class members may exclude themselves, or opt-out, of the monetary relief provisions of

3 the class settlement. Any request for exclusion must be in the form of a written “Opt-out”

4 statement sent to the Claims Administrator. Information on how to opt-out of the settlement shall

5 be made available by the Claims Administrator. A person wishing to opt-out must sign a

6 statement which includes the following language:

7

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

monetary settlement and that I will receive no money from the

8

settlement fund created under the Consent Decree entered into by

Abercrombie. I understand that if I am excluded from the class

9

monetary settlement, I may bring a separate legal action seeking

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

10

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

procedure in this case. I also understand that I may not seek

11

exclusion from the class for injunctive relief and that I am bound by

the injunctive provisions of the Consent Decree entered into by

12

Abercrombie.

13

A class member submitting an Opt-out statement shall sign and date the statement and

14 deliver it to the Claims Administrator at least forty (40) days prior to the scheduled Fairness

15 Hearing, as specified in the Preliminary Approval Order.

16

The Claims Administrator shall date stamp the original of any Opt-out statement and serve

17 copies on both Abercrombie and Lead Counsel within two (2) business days of receipt of such

18 statement. The Claims Administrator will also file the original Opt-out statements with the Clerk

19 of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims

20 Administrator shall retain copies of all Opt-out statements until such time as it has completed its

21 duties and responsibilities under this Decree.

22

3. Rescission of Class Member Opt -Outs

23

The parties recognize that some class members who initially submit Opt-out forms

24 seeking exclusion may, upon further reflection, wish to withdraw or rescind such Opt-out

25 statements. The parties agree that class members shall be permitted to withdraw or rescind their

26 Opt-out statements by submitting a “Rescission of Opt-out” statement to the Claims

27 Administrator. The Rescission of Opt-out statement shall include the following language:

28

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1

I previously submitted an Opt-out statement seeking exclusion from

the class monetary settlement. I have reconsidered and wish to

2

withdraw my Opt-out statement. I understand that by rescinding

my Opt-out I may be eligible to receive an award from the claims

3

settlement fund and may not bring a separate legal action against

Abercrombie seeking damages.

4

5

A class member submitting such a rescission statement shall sign and date the statement

6 and cause it to be delivered to the Claims Administrator no later than the deadline for claims

7 filing period specified in the Preliminary Approval Order.

8

The Claims Administrator shall stamp the date received on the original of any Rescission

9 of Opt-out statement and serve copies to counsel for Abercrombie and Lead Counsel no later than

10 (2) days after receipt thereof and shall file the date-stamped originals with the Clerk of the Court

11 no later than five (5) business days prior to the date of the Fairness Hearing. The Claims

12 Administrator shall retain copies of all Rescissions of Opt-Out statements until such time as the

13 Claims Administrator is relieved of its duties and responsibilities under this Decree.

14

4. Opt-Out Credits.

15

In the event any Settlement Class member elects to opt-out in the time and manner set

16 forth in Section XVII.D.2, and does not rescind it, Abercrombie shall be entitled to a credit for

17 each such opt-out. The credit amount will be 125% of the average settlement award of all class

18 members eligible to participate in the monetary settlement fund as determined by the Allocation

19 Plan, Section XVII.L. The aggregate credit for each opt-out shall be calculated and deducted

20 from the Settlement Fund prior to the wire transfer of funds set forth in Section XVII.A.4.e.

21

5. Defendant’s Rescission of Agreement.

22

If the number of individuals who opt out of the Settlement Class in the manner provided

23 in this Decree exceeds one percent (1 %) of the number of the class members who submit

24 completed claim forms, then Abercrombie, at its sole option, shall have the right to void this

25 settlement on the tenth (10th) day after the Court requires individuals to return opt out notices. If

26 Abercrombie exercises this option, all of Abercrombie’s obligations under the Consent Decree

27 shall cease to be of any force and effect, and the Consent Decree and any orders entered in

28 connection therewith shall be vacated, rescinded, canceled, and annulled, and the parties shall

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 58 of 73

1 return to the status quo in the Consolidated Litigation as if the parties had not entered into the

2 Consent Decree. In addition, in such event, the Consent Decree and all negotiations, court orders

3 and proceedings relating thereto shall be without prejudice to the rights of any and all parties

4 hereto, and evidence relating to the Consent Decree and all negotiations shall not be admissible or

5 discoverable in the Consolidated Litigation or otherwise.

6

E. Claims Administration.

7

The Claims Administrator shall (1) prepare and mail settlement notices and claim forms to

8 class members; (2) establish and operate a website designed to provide information to and

9 communication with class members; (3) receive and evaluate claims eligibility; (4) seek

10 additional information from claimants, when appropriate; (5) receive and file opt-out statements

11 and objections; (6) respond to questions from potential class members; (7) implement the

12 allocatio n plan; and (8) maintain a toll- free number for communicating with class members; and

13 (9) any other duties necessary to carry out its responsibilities set forth in this Decree.

14

The Claims Administrator shall make claim forms available to potential class members

15 who submit oral, e- mail, or written requests for claim forms. The Claims Administrator shall

16 mail the requested claim form via first class postage within two (2) business days after receiving a

17 request. If Abercrombie, or its counsel, receives requests for claim forms or for information

18 regarding the class settlement, it shall refer such requestors to the toll- free number established by

19 the Claims Administrator for the purpose of administering this settlement. The requestors shall

20 be informed that any requests for claim forms or information should be directed to the Claims

21 Administrator. The Claims Administrator shall retain copies of all written requests for claim

22 forms and all records of oral or e- mail requests for claim forms until such time as it has

23 completed its duties and responsibilities under this Decree.

24

F. Submission of Claim Forms.

25

Class members who seek recovery of monetary compensation must complete a claim form

26 and cause it to be filed with the Claims Administrator by the claim filing deadline set forth in the

27 Preliminary Approval Order. The claim form must be postmarked on or before such date in order

28 to be considered timely. All claim forms must be signed under penalty of perjury to be

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1 considered. Failure to file a timely claim form, for any reason whatsoever, shall bar the potential

2 class member from having his or her claim considered and from receiving monetary

3 compensation from the Settlement Fund Account. Class members who file a claim form must

4 notify the Claims Administrator of any change of address. A failure to notify the Claims

5 Administrator of a change of address may result in the forfeiture of a monetary award. The

6 Claims Administrator shall be available through the toll- free line and via e- mail through the

7 Claims Website to respond to requests from class members for assistance in completing and filing

8 claim forms. Lead Counsel shall also be available to consult with and provide assistance to

9 potential class members who request assistance in completing their claim forms.

10

G. Deceased Claimants.

11

Claims may be filed by deceased claimants through representatives of their estate if

12 appropriate documentation is provided. Any claims paid to a deceased claimant shall be made

13 payable to the estate of the deceased claimant.

14

H. Determining Eligibility.

15

The Claims Administrator shall make the determination as to whether a claim form is

16 complete. If it is not complete, the Claims Administrator shall request additional information

17 from the claimant, if it appears that such additional informa tion would complete the Claim Form.

18 Such requests for information shall be in writing and shall specify the information necessary to

19 complete the claim form. The requests for information will be sent via first class mail and inform

20 the claimant that a response must be returned no later than thirty (30) days from the date the

21 request for information was mailed. The claimant must provide the requested information, signed

22 under penalty of perjury, to the Claims Administrator by mail with a postmark no later than thirty

23 (30) days from the date of the mailed request for information. Such additional information shall

24 be considered part of the original claim form and will relate back to the original filing date. The

25 failure of a claimant to timely respond to the request for information may result in the denial of

26 the claim.

27

28

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 60 of 73

1

I. Late-Filed Claims.

2

For claims received after the filing deadline, the Claims Administrator shall notify late-

3 filing claimants that their claims are untimely and that they are not eligible for any monetary

4 award. The Claims Administrator shall also inform late- filing claimants that they may seek a

5 review of the determination that they filed untimely by requesting the Claims Administrator to

6 reconsider its determination. The Claims Administrator may reverse its determination that a

7 claim was not timely filed only if the claimant proves that the claim form was filed on or before

8 the filing deadline and that the untimeliness determination is erroneous.

9

J. Appeals of Claims Eligibility.

10

Within ninety (90) days of the close of the claims filing period, all ineligible claimants

11 shall receive written notice of their ineligibility for monetary relief. Any claimants wishing to

12 seek review of their ineligibility determinations must do so by returning a written request for

13 review to the Claims Administrator by mail with a postmark no later than twenty-one (21) days

14 from the date of the notice of claim ineligibility. Failure to file a timely request for review shall

15 bar a claimant from challenging a determination of ineligibility.

16

The Claims Administrator shall resolve the requests for review based on the written

17 requests for review and any other documentation or written information submitted by the

18 claimant, or deemed necessary by the Claims Administrator. The Claims Administrator may seek

19 further written information from the claimant as to the basis of their request and may consider the

20 written arguments of Lead Counsel or Abercrombie.

21

The Claims Administrator shall attempt to expeditiously resolve any requests for review

22 within sixty (60) days after the filing of the request for review. The Claims Administrator’s

23 decisions shall be communicated to the claimant in writing and shall be binding and non-

24 appealable.

25

K. Claimant Information Provided by Abercrombie.

26

The parties understand and agree that Abercrombie may possess information that may

27 assist in the determination of eligibility of potential class members for monetary compensation.

28 Abercrombie shall reasonably cooperate in providing such information which Lead Counsel, the

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 61 of 73

1 EEOC or the Claims Administrator deems reasonably necessary to assist in determining the

2 eligibility of any class member for monetary relief. Abercrombie shall attempt to provide such

3 information within fourteen (14) days of any written requests for the information.

4

L. Allocation Plan.

5

Other than the Class Representatives whose monetary awards are separately determined,

6 the disbursement of the Settlement Fund Account to eligible class members shall follow the

7 allocation plan described in this section.

8

Each class member who seeks to receive an award must fill out the claim form and supply

9 information related to his or her claim. On the basis of a review of the information supplied, the

10 Claims Administrator shall allocate a certain number of points based upon specific factors related

11 to the claims. The specific factors include length of service with Abercrombie; discrimination

12 claims based on race, national origin or gender in promotion, assignment, hire or termination; any

13 personal injury, such as emotional distress, suffered as a result of the discrimination; and any time

14 or effort devoted to the litigation. The Claims Administrator shall total the points applicable to all

15 eligible claimants, determine each eligible claimant’s proportionate share of the total points, and

16 allocate each eligible claimant’s proportionate share of the Settlement Fund Account.

17

For example, if the amount available for distribution from the Settlement Fund Account to

18 eligible class members is $1,000,000.00, and the Claims Administrator has awarded 10,000 points

19 to eligible class members and if an eligible class member were awarded 10 points, then that class

20 member would receive an award of $1,000.00 since each point would be worth $100.00

21 ($1,000,000.00 ÷ 10,000).

22

M. Distribution of the Monetary Awards.

23

As soon as practicable after making the calculations required by the allocation plan set

24 forth in Section XVII.L, the Claims Administrator shall distribute the monetary awards to eligible

25 class members via first class mail. The Claims Administrator shall only issue the checks in the

26 name of the eligible class members unless Section XVII.G. is applicable. Included with the check

27 due to the eligible claimant will be a statement showing the gross amount of the payment and an

28 itemized statement of all deductions made. Flat rate deductions from gross amounts that are

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 62 of 73

1 determined to be wage payments will be made for federal and state income taxes, the employee’s

2 share of social security and medicare tax, and any local income or payroll tax that applies. The

3 Claims Administrator will inform Abercrombie of the employer’s share of all taxes or

4 contributions (i.e., matching social security and medicare tax) required to be paid by Abercrombie

5 and Abercrombie shall timely remit all such payments to the Claims Administrator for payment to

6 appropriate taxing authorities.

7

Any amounts designated as interest shall not be subject to withholding and shall be

8 reported, if required, to the IRS on Form 1099-INT. The amounts paid for emotiona l distress

9 shall not be subject to withholding and shall be reported to the IRS on Form 1099-MISC.

10

The Claims Administrator will be responsible for preparing and filing all appropriate tax

11 filings and reports (except for any unemployment compensation taxes that may be due, which will

12 be the sole responsibility of Abercrombie to calculate and pay), including, but not limited to, W-2

13 and 1099 forms for all eligible claimants and Class Representatives for their payments from the

14 Settlement Fund, as well as any required for the Settlement Fund. The Claims Administrator will

15 also be responsible for reporting and remitting to the appropriate taxing authorities the employer’s

16 share of taxes or contributions required to be paid by Abercrombie in a timely manner after

17 receipt of the amount due for those payments from Abercrombie.

18

N. Allocation of Monetary Awards.

19

The monetary awards shall be allocated 15% to lost wages and 85% to compensatory

20 damages.

21

O. Cy Pres Fund.

22

It is the intention of the parties to completely distribute the funds in the Settlement Fund

23 Account. In the event that checks are returned and the Settlement Fund is not completely

24 distributed for any reason, the remaining sum shall become part of a cy pres fund to be distributed

25 to a non-profit organization or organizations designated by Lead Counsel that assist Minorities or

26 women to obtain equal employment opportunity .

27

28

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 63 of 73

1

P. Report from Claims Administrator.

2

Within thirty (30) days of the distribution of the monies from the Settlement Fund, the

3 Claims Administrator shall furnish an accounting of all distributions from the Settlement Fund to

4 the Court with copies to Lead Counsel, the EEOC and Abercrombie.

5 XVIII. ATTORNEYS’ FEES, COSTS AND EXPENSES

6

A. Basis for Award of Fees, Costs and Expenses.

7

1. The parties have agreed that it is appropriate as part of the settlement

8 underlying this Consent Decree for Abercrombie to pay to Class Counsel, on behalf of the Class

9 Representatives and the Settlement Class, reasonable attorneys’ fees, litigation expenses, and

10 costs in this case.

11

2. The Company has agreed to pay Class Counsel an award of reasonable

12 attorneys’ fees, litigation expenses, and costs in the amount of $7,250,000.00 for work performed

13 and costs and expenses incurred through and including the Approval Date. Included in this

14 amount is approximately $540,000.00 for litigation costs and expenses incurred by Class Counsel.

15 This amount fully satisfies any arguable obligation the Company may have to pay attorneys’ fees,

16 litigation expenses, and costs for and on behalf of the Plaintiffs, Class Representatives and the

17 Settlement Class for any and all work performed and costs and expenses incurred through and

18 including the Approval Date.

19

3. The Company also has agreed to pay Class Counsel an amount of

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

21 Class Counsel after the Approval Date pursuant to this Decree. The Company agrees that Class

22 Counsel shall be paid such attorneys’ fees, expenses and costs in the amount of $600,000.00 for

23 work performed and costs and expenses incurred after the Approval Date relating to defense of

24 the Decree, monitoring, administration and implementation, including, without limitation,

25 evaluating possible compliance with this Decree, including the retention of experts to assist in

26 such evaluation, and defense of the Decree. Except as provided in Section X.B.9 for appeals of

27 decisions of the Special Master, this amount satisfies any arguable obligation the Company may

28 have to pay attorneys’ fees, expenses and costs to Class Counsel for any and all work performed

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 64 of 73

1 and costs and expenses incurred after the Approval Date of the Decree for the monitoring,

2 administration, implementation and defense of the Decree.

3

4. Nothing herein shall be interpreted to preclude Abercrombie from seeking

4 attorneys’ fees, expenses and costs incurred in litigating enforcement matters according to Title

5 VII law applicable to a prevailing defendant under Section X.B.9. for appeals of decisions of the

6 Special Master.

7

B. Payment of Award.

8

1. Within fourteen (14) days following the Approval Date, Abercrombie shall

9 pay to Lieff, Cabraser, Heimann & Bernstein, LLP one half (½) of the $7,250,000.00 or

10 $3,625,000.00, for litigation-related attorneys’ fees, expenses and costs as set forth in Section

11 XVIII.A.2. Abercrombie shall pay Lieff, Cabraser, Heimann & Bernstein, LLP the remaining

12 amount within fourteen (14) days following the Final Approval Date. Lieff, Cabraser, Heimann

13 & Bernstein, LLP shall have sole responsibility to distribute attorneys’ fees, expenses and costs to

14 other Class Counsel, and if Abercrombie makes such payments to Lieff, Cabraser, Heimann &

15 Bernstein, LLP, no Class Counsel may assert any claim for such payments from Abercrombie. In

16 the event that Final Approval of the Decree is not attained, Lieff, Cabraser, Heimann & Bernstein,

17 LLP shall return to Abercrombie the initial payment of $3,625,000.00 within fifteen (15) days

18 after the non-approval of the Decree becomes final.

19

2. The attorneys’ fees, expenses and costs awarded and agreed to be paid by

20 the Company pursuant to Section XVIII.A.3. shall be paid to Lieff, Cabraser, Heimann &

21 Bernstein, LLP according to the following schedule:

22

Date

Amount

23

Thirty (30) days after the Approval Date

$150,000

24

March 15, 2006

$125,000

25

March 15, 2007

$100,000

26

March 15, 2008

$100,000

27

March 15, 2009

$ 75,000

28

March 15, 2010

$ 50,000

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 65 of 73

1 If the Decree is terminated prior to March 15, 2011 pursuant to Section VI.B., Abercrombie shall

2 pay to Lieff, Cabraser, Heimann & Bernstein, LLP all attorneys’ fees listed above that are unpaid

3 as of the date of the Decree is terminated. Such payment shall be made no later than fourteen

4 (14) days after the date the Decree is terminated.

5

IT IS SO ORDERED, ADJUDGED AND DECREED this _1_4_t_h_ day of

6 _A_p_r_il________________, 2005.

7

s/Susan Illston

8 SUSAN ILLSTON

9

United States District Judge

Northern District of California

10

11 Respectfully submitted,
12

13 Thomas A. Saenz Shaheena Ahmad Simons

Bill Lann Lee Kelly M. Dermody

14 MEXICAN AMERICAN LEGAL DEFENSE Eve H. Cervantez

AND EDUCATIONAL FUND

Elizabeth A. Alexander (pro hac vice)

15 634 South Spring Street, 11th Floor Los Angeles, CA 90014

Jahan C. Sagafi Nirej S. Sekhon

16

LIEFF, CABRASER, HEIMANN

& BERNSTEIN, LLP

17

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

18 Julie Su

19 Minah Park ASIAN PACIFIC AMERICAN LEGAL

20

CENTER

1145 Wilshire Blvd., 2nd Floor

21 Los Angeles, CA 90017

Joseph C. Kohn Martin J. D’Urso Hilary Cohen KOHN, SWIFT & GRAF, P.C. One South Broad Street Philadelphia, PA 19107

22 Kimberly West-Faulcon NAACP LEGAL DEFENSE AND

23

EDUCATIONAL FUND, INC.

1055 Wilshire Blvd., Suite 1480

24 Los Angeles, CA 90017

25 Sidney L. Gold
26 Traci M. Greenberg SIDNEY L. GOLD & ASSOCIATES, P.C.
27 1835 Market Street Philadelphia, PA 19103
28

Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MILLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103
Cleo Fields THE FIELDS LAW FIRM, L.L.C. 2147 Government Street Baton Rouge, LA

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CONSENT DECREE CASE NOS. 03-2817 SI, 04-4730 & 04-4731

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 66 of 73

1 James F. Keller Zachary Gottesman
2 GOTTESMAN & ASSOCIATES 2121 URS Center
3 36 East 7th Street Cincinnati, OH 45202
4 5 6 7 April 11, 2005 8 9 April 11, 2005 10 11 12 13 14 April 11, 2005 15 16 17 18 19 20 21 22 23 24 April 11, 2005 25 26 27 28
426266.1

Barry L. Goldstein GOLDSTEIN, DEMCHAK, BALLER,
BORGEN & DARDARIAN 300 Lakeside Avenue Oakland, CA 94612

/s/ Bill Lann Lee Bill Lann Lee
/s/ Thomas A. Saenz Thomas A. Saenz MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 South Spring Street Los Angeles, CA 90014
/s/ Martin J. D’Urso Martin J. D’Urso KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107
Attorneys for Plaintiff Gonzalez, et al.
Jack W. Lee, Esq. (SBN 071626) Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532) MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108
/s/ Jack W. Lee Jack W. Lee
Attorneys for Plaintiff West, et al.

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 67 of 73

1 2 3 4 5 6 7 8 April 11, 2005 9 10 11 12
April 11, 2005 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
426266.1

ERIC S. DREIBAND General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507
By: /s/ Anna Y. Park ANNA Y. PARK Regional Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Te mple Street, 4th Floor Los Angeles, CA 90012
By: /s/ Gregory M. Gochanour
JOHN C. HENDRICKSON Regional Attorney GREGORY M.GOCHANOUR Supervisory Trial Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 68 of 73

1 2 3 4 5 6 7 8 9
April 11, 2005 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
426266.1

Douglas R. Young Sandra A. Kearney FARELLA BRAUN & MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knue ve VORYS, SATER, SEYMOUR & PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008
/s/ Thomas Brennan Ridgley Thomas Brennan Ridgley
Attorneys for Defendants

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 69 of 73
EXHIBIT A
FULL AND FINAL GENERAL RELEASE OF CLAIMS
The undersigned _______________ agrees to this Full and Final General Release of Claims (“Release”) as follows:
Section 1. Benefits
In consideration of and exchange for this Release, I will receive a payment in a liquidated amount approved by the Court pursuant to the Consent Decree in Gonzalez, et al. v. Abercrombie & Fitch Stores, Inc., et al. ; EEOC v. Abercrombie & Fitch Stores, Inc., et al. and West, et al. v. Abercrombie & Fitch Stores, Inc., et al. (the “Consolidated Litigation”), less applicable withholdings and deductions, in settlement of my claims, and I will receive no other consideration, whether monetary or otherwise. I acknowledge that I will receive no cash payment unless and until I sign this Release.
Section 2. Complete Release
(a) Claims Released: I hereby fully, finally, irrevocably and unconditionally release and discharge Abercrombie & Fitch Stores, Inc., A&F California, LLC, A&F Ohio, Inc. and Abercrombie & Fitch Management Co. (collectively, “the Company”), its officers, directors, agents, employees, managers, insurers, attorneys, successors and assigns (the “Released Parties”) from any and all past and/or present claims, charges, demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs, losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not known, that I have had, now have, or may have from the beginning of time to [the preliminary approval date], including without limitation those arising in any way out of the alleged facts, circumstances and occurrences underlying those allegations of violations of Title VII, Section 1981 and the California FEHA that were asserted or might have been asserted by me or on my behalf in the Consolidated Litigation, or in any and all charges of discrimination filed against the Company and/or the Released Parties by me with the EEOC and/or DFEH. This Release does not include any workers’ compensation claims I may have. This Release is final and shall survive the expiration of the term of the Consent Decree in the Consolidated Litigation.
(b) Unknown Claims: I acknowledge that I may not now know fully the number or magnitude of the claims I may have, and that I may suffer some further loss or damage in some way connected with the subject matter of the Consolidated Litigation, but which is unknown or unanticipated at this time. I have taken these risks and possibilities into account and accept that, nevertheless, this Release covers all claims arising out of or related to the subject matter of the Consolidated Litigation, which, although unknown at the time of the execution of this Consent Decree, may be discovered later. I understand and assume these risks and expressly waive the provisions of California Civil Code § 1542, or any comparable federal or other state statute, which states:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

I expressly waive any right to assert hereafter that any claim was excluded from this Release through ignorance, oversight, or error. It is expressly understood and agreed that this waiver of Civil Code § 1542 and the release and waiver set forth in this Consent Decree are material terms of the agreement and were separately negotiated between the parties.

Section 3. Promises.

(a) Pursuit of Released Claims: Except for the Gonzalez or West Class Action, and any administrative charges filed with respect to the claims asserted therein, I represent and warrant that I have not filed or caused to be filed any lawsuit, complaint, or charge with respect to any Claim that I am releasing herein, and I promise never to file or prosecute a lawsuit, complaint, or charged based on such Claims. I promise never to seek any damages, remedies, or other relief for myself personally (any right to which I hereby waive) by filing or prosecuting a charge with any administrative agency with respect to any such Claim. I promise to request any administrative agency or other body that assumes jurisdiction of any such lawsuit, complaint, or charge to withdraw from the matter or dismiss the matter with prejudice.

(b) Taxes: I acknowledge I am solely responsible for paying any federal, state or local income taxes on amounts I receive because I signed this Release, as well as the employee’s share of F.I.C.A., and will hold the Company harmless with respect to any claims related to the aforementioned tax treatment of the amount paid to me.

(c) Ownership of Claims: I represent and warrant that I have not assigned or transferred any Claim I am purporting to release, nor have I attempted to do so.

(d) Nonadmission of Liability: I agree that neither this Release nor the payment of money to me or to the Class pursuant to the Decree is an admission of guilty or wrongdoing by any of the Released Parties. I acknowledge that the Released Parties do not believe or admit that any of them has done anything wrong, such being expressly denied by all of them.

Section 4. Consideration of Release

I acknowledge that, before signing this Release, I was given a period of at least twenty-one days in which to consider it. I further acknowledge that: (1) I took advantage of as much of this period to consider this Release as I desired before signing it; (2) I carefully read this Release; (3) I fully understand it; (4) I am entering into it voluntarily; (5) I am receiving valuable consideration in exchange for my execution of this Release that I would not otherwise be entitled to receive; and (6) the Company, in writing, encouraged me to discuss this Release with my attorney (at my own expense) before signing it, and that I did so to the full extent I deemed appropriate. I understand that I have seven days within which to cancel this Release after I have

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Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 71 of 73
executed it and must do so by delivery of an executed written revocation to Mark A. Knueve, Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, Columbus, Ohio 43215, within the seven-day period.
Section 5. Miscellaneous
(a) Entire Agreement: This Release may not be modified in any manner, nor may any provision of it or any legal remedy with respect to it be waived, except by a writing signed by both me and an authorized Company attorney. I acknowledge that the Company has made no representations or promises to me, other than those in or referred to by this Release. If any provision in this Release is found to be unenforceable, all other provisions will remain fully enforceable.
(b) This Release binds my heirs, administrators, representatives, executors, successors, and assigns.
Section 6. Interpretation
This Release shall be construed as a whole according to its fair meaning. Unless the context indicates otherwise, the term “or” shall be deemed to include the term “and” and the singular or plural number shall be deemed to include the other. Except to the extent governed by federal law, this Release shall be governed by the statues and common law of the State of California (excluding any that mandate the use of another jurisdiction’s laws).
Executed at ____________, ____, this _____ day of ___________, 2004.
______________________________________________ [Name Printed]

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EXHIBIT B
NOTICE TO ALL ABERCROMBIE EMPLOYEES AND APPLICANTS RE SETTLEMENT OF DISCRIMINATION LAWSUIT
This Notice is being posted pursuant to a Consent Decree entered by the federal court resolving the consolidated class action litigation brought against Abercrombie & Fitch by private plaintiffs and the U.S. Equal Employment Opportunity Commission (EEOC) Case Nos. 03-2817 SI, 04-4730, and 04-4731 (N.D. CA).
In the lawsuits, the plaintiffs asserted that Abercrombie violated Title VII of the Civil Rights Act of 1964, by discriminating against African Americans, Asian Americans, Latinos, females, and females of each of the foregoing minority groups on the basis of race, color, national origin and/or gender in recruitment, hiring, promotion and terms and conditions of employment.
Abercrombie has voluntarily entered into this Decree because the actions it has agreed to undertake demonstrate its strong commitment to diversity and equal employment opportunity.
Abercrombie believes that it has not engaged in any policy or pattern or practice of unlawful discrimination, and that it has not engaged in any other unlawful conduct as alleged in the consolidated litigation. Abercrombie has agreed to:
1) not discriminate against African Americans, Latinos, Asian Americans, women or women of any of the foregoing minority groups on the basis of race, color, national origin and/or gender in recruitment, hiring, promotion or terms and conditions of employment;
2) not retaliate against any person because she or he opposed discrimination on the basis of race, color, national origin, or gender, filed a charge of discrimination on the basis of race, color, national origin, or gender, or asserted any rights under the Consent Decree; and
3) hire a Monitor to ensure Abercrombie's compliance with the terms of the Consent Decree.
A summary and copy of the Consent Decree are available at [domain name].
Abercrombie’s policy and federal law prohibit discrimination in employment on the basis of sex, race, color, religion, national origin, disability, and age. If you believe you have been discriminated against by Abercrombie, you may utilize the Internal Complaint Procedure published in the Associate Handbook by contacting your manager or the Human Resources Department at 614/283-5548. Yo u may also contact the Monitor, [name], at [email address] or by calling _____________ and/or the Equal Employment Opportunity Commission (EEOC) at [email address] or by calling _____________. The EEOC is the federal agency that enforces the federal laws prohibiting discrimination in employment on the basis of sex, race, color, religion, national origin, disability, and age.
This is an Official Notice and must not be defaced or covered. This Notice shall remain posted until __________. If you have any questions about this Notice contact the Monitor or the EEOC at the numbers listed above.
359203.1

Case 3:03-cv-02817-SI Document 141 Filed 04/15/2005 Page 73 of 73

EXHIBIT C LIQUIDATED AMOUNTS FOR CLASS REPRESENTATIVES AND CHARGING PARTIES

Named Plaintiffs
Chu, Austin Culpepper, David Douglass, Patrice Fight, Eric Gómez-Mont., Juancarlos Gonzalez, Eduardo Grubb, Carla Gutierrez, Encarnacion Hawk, Brandy Lu, Jennifer Montoya, Johan Nguyen, Ivy Ocampo, Anthony Sherrod, Robair Steele, Andre West, Elizabeth Wu, Angeline
Charging Parties Bondurant, Lekisha Dixon, Torrey Elmore, Stanley Greer, Timothy Jason, Eric Noel, Jason
Total (23 individuals)

$17,000 $11,000 $12,000 $13,000 $39,000 $13,000 $17,000 $16,000 $18,000 $21,000 $13,000 $19,000 $19,000 $8,000 $24,000 $9,000 $21,000
$10,000 $12,000 $12,000 $16,000 $8,000 $12,000
$360,000

361007.1

 
 Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 1 of 16

1 Bill Lann Lee (SBN 108452) Kelly M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) Elizabeth A. Alexander (pro hac vice)
3 Jahan C. Sagafi (SBN 224887) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Thomas A. Saenz (SBN 159430)
8 Shaheena Ahmad Simons (SBN 225520) MEXICAN AMERICAN LEGAL DEFENSE
9 ANDEDUCATIONALFUND 634 South Spring Street
10 Los Angeles, CA 90014 Telephone: (213) 629-2512
11 Facsimile: (213) 629-0266
12 Joseph C. Kohn Martin 1. D'Urso
13 Hilary Cohen KOHN, SWIFT & GRAF, P.C.
14 One South Broad Street, Suite 2100 Philadelphia, PA 19107
15 Telephone: (215)238-1700 Facsimile: (215) 238-1968
16 Jack W. Lee, Esq. (SBN 071626)
17 Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532)
18 MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor
19 San Francisco, CA 94108 Telephone: (415) 788-9000
20 Facsimile: Fax (415) 398-3887

Douglas R. Young Sandra A. Kearney
FARELLA BRAUN + MARTEL, LLP
Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4481
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knueve VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 Telephone: 614-464-6400 Facsimile: 614-464-6350
Anna Y. Park (SBN 164242) Peter F. Laura (SBN 116426) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012
John C. Hendrickson(IL SBN 1187589) Gregory M. Gochanour (IL SBN 6210804) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

21 Attorneys for Plaintiffs and Defendants [Additional counsel listed on signature page]

22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

23

24 EDUARDO GONZALEZ, ANTHONY

25

OCAMPO, ENCARNACION GUTIERREZ, JOHAN MONTOYA, JUANCARLOS GOMEZ-

26

MONTEJANO, JENNIFER LU, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC FIGHT,

27

CARLA GRUBB, DAVID CULPEPPER, PATRICE DOUGLASS, and ROBAIR

28 SHERROD, BRANDY HAWK and ANDRE

Case Nos. 03-2817 SI, 04-4730 SI and 04-4731 SI
STIPULATION OF PROPOSED SETTLEMENT AND [PROPOSED] ORDER OF PRELIMINARY APPROVAL OF PROPOSED CONSENT DECREE

361824.1

STIPULATION OF PROPOSED SETTLEMENT
AND [PROPOSED] ORDER
CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 2 of 16

1 STEELE, on behalf of themselves and all others similarly situated,
2
Plaintiffs, 3
v. 4
ABERCROMBIE & FITCH STORES, INC., A&F 5 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 6 CO.,

7

Defendants.

8
ELIZABETH WEST and JENNIFER LU, 9
Plaintiffs, 10
v. 11
ABERCROMBIE & FITCH STORES, INC., A&F 12 CALIFORNIA, LLC, A&F OHIO, INC., and
ABERCROMBIE & FITCH MANAGEMENT 13 CO.,

14

Defendants.

15
EQUAL EMPLOYMENT OPPORTUNITY 16 COMMISSION,

17

v.

18 ABERCROMBIE & FITCH STORES, INC., A&F CALIFORNIA, LLC, A&F OHIO, INC., and
19 ABERCROMBIE & FITCH MANAGEMENT
CO.
20
Defendants. 21

22

23

24

25

26

27

28

361824.1

STIPULATION OF PROPOSED SETTLEMENT
AND [PROPOSED] ORDER
CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 3 of 16

1

Plaintiffs in the above-captioned Gonzalez action have alleged that Abercrombie

2 & Fitch Stores, Inc. and related companies ("Abercrombie," the "Defendant" or the "Company")

3 utilized and maintained discriminatory employment policies and practices against its African-

4 American, Latino and Asian American (hereafter "Minority") applicants and employees in

5 violation of Title VII of the Civil Rights Act of 1964, as amended, 74 U.S.c. § 2000 et ~

6 ("Title VII"), 42 U.S.c. § 1981, and the California Fair Employment and Housing Act, Cal. Gov.

7 Code §§ 12940 et ~(the "FEHA"). Plaintiffs in the above-captioned West action have alleged

8 that Abercrombie utilized and maintained discriminatory employment policies and practices

9 against its female applicants and employees in violation of Title VII and FEHA. The U. S. Equal

10 Employment Opportunity Commission ("EEOC) alleged in its enforcment action that

11 Abercrombie engaged in discriminatory practices against both Minority and women applicants

12 and employees in violation of Title VII.

13

Abercrombie has completely denied the allegations of Plaintiffs and the EEOC in

14 their complaints.

15

The parties entered into court-ordered mediation for the purpose of attempting to

16 settle the claims asserted. Those negotiations have been successful. Subject to the provisions in

17 this Stipulation, Plaintiffs, the EEOC, and Defendant have agreed to the entry of the proposed

18 Consent Decree submitted concurrently with this Stipulation and Order and attached hereto as

19 Exhibit 1 (hereafter "Consent Decree" or "Decree"), as a full settlement of the actions. By

20 entering into this Stipulation, Abercrombie continues to deny all allegations of unlawful race,

21 ethnicity and gender discrimination contained in the Complaints of EEOC and the Plaintiffs. Nor

22 does Abercrombie admit or concede that it has, in any manner, violated Title VII, § 1981, the

23 FEHA or any other fair employment law prohibiting race, ethnicity and/or gender discrimination.

24

Plaintiffs and Abercrombie have further agreed that the settlement of this case

25 should proceed as a class action under Rule 23 of the Federal Rules of Civil Procedure as

26 described below, in order that this settlement will constitute a final and complete adjudication of

27 the parties' and class members' rights, liabilities and obligations as set forth in the Consent

28 Decree.
361824.1

STIPULATION OF PROPOSED SETTLEMENT

1

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 4 of 16

1

Plaintiffs assert they have presented evidence that the class certification

2 requirements of Rule 23(a) and Rule 23(b)(2) and (b)(3) have been met. For purposes of

3 settlement only, Defendant acknowledges that the evidence presented by Plaintiffs provides an

4 arguable basis for finding those requirements have been met, and, for settlement purposes only,

5 consents to the class certification sought in this Stipulation.

6

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, Plaintiffs and

7 Defendant, through their respective counsel, jointly stipulate that the Court enter an Order as

8 follows:

9

1. For purposes of settlement only, this case shall proceed as a class action

10 pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure for equitable relief and

11 pursuant to Rule 23(b)(3) for purposes of monetary relief. The class represented by Plaintiffs (the

12 "Settlement Class") shall be as follows:

13

a. For purposes of the monetary relief provided in the proposed

14 Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P. 23(b)(3) and

15 consists of:

16

(i) All Minority and/or female applicants who applied for

17

employment as in-store hourly or managerial employees (hereafter

18

"Associates") in Abercrombie stores, or attempted to apply and

19

were discouraged from applying for employment, between

20

February 24, 1999 and the Preliminary Approval Date and who

21

were not hired, except those who file a timely request to opt out of

22

the monetary relief provisions.

23

(ii) All Minority and/or female Associates of Abercrombie who

24

are or were employed in an Abercrombie store, for any length of

25

time, between February 24, 1999, and the Preliminary Approval

26

Date, except those who file a timely request to opt out of the

27

monetary relief provisions.

28
361824.1

STIPULATION OF PROPOSED SETTLEMENT

2

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 5 of 16

1

b. For purposes of the equitable and declaratory relief provided in the

2 proposed Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P.

3 23(b)(2) and consists of:

4

(i) All Minority and/or female applicants who applied for

5

employment as Associates in Abercrombie stores, or attempted to

6

apply and were discouraged from applying for employment,

7

between February 24, 1999 and the Preliminary Approval Date and

8

who were not hired.

9

(ii) All Minority and/or female Associates of Abercrombie who

10

are or were employed in an Abercrombie store, for any length of

11

time, between February 24, 1999, and the Preliminary Approval

12

Date.

13

2. Should this Court or any reviewing court on direct appeal and/or on writ of

14 certiorari to the Supreme Court of the United States from a direct appeal to the U.S. Court of

15 Appeals for the Ninth Circuit refuse to approve this Consent Decree or require modification to

16 this Decree, the Decree, including any stipulated class certification orders, shall be null and void,

17 inadmissible and unusable in any court or proceeding regarding any issues whatsoever and shall

18 not be considered a binding settlement agreement, unless Plaintiffs and Abercrombie each

19 expressly and voluntarily approve in writing any such required modification by this Court or by

20 the reviewing court.

21 BASED ON THE ABOVE STIPULATIONS, STATEMENTS OF COUNSEL FOR THE

22 PARTIES AND THE ENTIRE RECORD BEFORE THE COURT, THE COURT FINDS AS

23 FOLLOWS:

24

The parties have conditionally agreed to a proposed settlement. It appears to the

25 Court that the proposed settlement and Consent Decree are the result of extensive, arms-length

26 negotiations between the parties after extensive litigation including discovery of company

27 policies, practices, and statistical data; administrative investigation by a federal agency, the Equal

28 Employment Opportunity Commission (hereafter "EEOC"); and other exchanges of information

361824.1

STIPULATION OF PROPOSED SETTLEMENT

3

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 6 of 16

1 and discussions, and the assistance of a mediator. After reviewing the terms of the proposed

2 Consent Decree in the context of the record in this action and the controlling legal authority, the

3 Court finds that the proposed Consent Decree is sufficiently reasonable, adequate, fair and

4 consistent with relevant state and federal law, to warrant notice thereof to members of the

5 Settlement Class and a full hearing thereon.

6 IT IS THEREFORE ORDERED THAT:

7

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

8 PRELIMINARILY APPROVED. Final approval and entry ofthe Consent Decree is subject to

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

10 embodied in the Consent Decree.

11

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

12 litigation of the consolidated actions is STAYED.

13

3. For purposes of settlement only as set forth in the Consent Decree, the

14 Court hereby CERTIFIES the Gonzalez v. Abercrombie & Fitch and West v. Abercrombie &

15 Fitch actions as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure

16 for purposes of declaratory and equitable relief, and pursuant to Rule 23(b)(3) for purposes of

17 monetary relief and hereby DESIGNATES a Settlement Class as follows:

18

a. For purposes of the monetary relief provided in the proposed

19 Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P. 23(b)(3) and

20 consists of:

21

(i) All Minority and/or female applicants who applied for

22

employment as Associates in Abercrombie stores, or attempted to

23

apply and were discouraged from applying for employment,

24

between February 24, 1999 and the Preliminary Approval Date and

25

who were not hired, except those who file a timely request to opt

26

out of the monetary relief provisions.

27

(ii) All Minority and/or female Associates of Abercrombie who

28
361824.1

are or were employed in an Abercrombie store, for any length of

STIPULATION OF PROPOSED SETTLEMENT

4

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 7 of 16

1

time, between February 24, 1999, and the Preliminary Approval

2

Date, except those who file a timely request to opt out of the

3

monetary relief provisions.

4

b. For purposes of the equitable and declaratory relief provided in the

5 proposed Decree, the Settlement Class is conditionally certified pursuant to Fed. R. Civ. P.

6 23(b)(2) and consists of:

7

(i) All Minority and/or female applicants who applied for

8

employment as Associates in Abercrombie stores, or attempted to

9

apply and were discouraged from applying for employment,

10

between February 24, 1999 and the Preliminary Approval Date and

11

who were not hired.

12

(ii) All Minority and/or female Associates of Abercrombie who

13

are or were employed in an Abercrombie store, for any length of

14

time, between February 24, 1999, and the Preliminary Approval

15

Date.

16

4. Should this Court or any reviewing court on direct appeal and/or on writ of

17 certiorari to the Supreme Court of the United States from a direct appeal to the U.S. Court of

18 Appeals for the Ninth Circuit refuse to approve this Consent Decree or require modification to

19 this Decree, the Decree (and any stipulated class certification orders) shall be null and void,

20 inadmissible and unusable in any court or proceeding regarding any issue whatsoever, and the

21 Decree shall not be considered a binding settlement agreement, unless Plaintiffs, EEOC and

22 Abercrombie each expressly and voluntarily approve in writing any such required modification

23 by this Court or by the reviewing court.

24

5. Notice of Procedures

25

a. Publication Notice

26

Within sixty (60) days of the entry of this Order, the Company shall begin

27 publication of the Notice set forth as Exhibit 2 hereto in the publications and internet media

28 identified in Exhibit 3 hereto.
361824.1

STIPULATION OF PROPOSED SETTLEMENT

5

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 8 of 16

1

b. Claims Adminstrator

2

The Claims Adminstrator shall be Gonzalez v. Abercrombie Claims Administrator,

3 P.O. Box 10564, Tallahassee, FL 32302-2564, telephone: (866) 854-4175.

4

c. Mailed Notice

5

Within twenty (20) days of entry of this Order, Abercromb ie shall provide the

6 Claims Administrator with a computer disk containing the full names, social security numbers,

7 last known addresses and phone numbers, start dates, and, as applicable, end dates of employment

8 with Abercrombie for all Associates employed by Abercrombie at any time from February 24,

9 1999 through the Preliminary Approval Date who are potential Settlement Class members. It is

10 understood, and acceptable, that Abercrombie only has such data available for Associates who

11 were employed on January 1,2000 and thereafter, which necessarily will include some, but not

12 all, Associates employed between February 24 and December 31,1999. Within twenty (20) days

13 of entry of this Order, Plaintiffs' Lead Counsel shall provide the Claims Administrator with a

14 computer readable list of all known potential Settlement Class members and their mailing

15 addresses. Prior to the mailing of the Notices, the Claims Administrator will combine these lists

16 of potential Settlement Class members received from Abercrombie and Lead Counsel and update

17 any new address information for potential class members as may be available through the

18 National Change of Address system. The Claims Administrator shall determine through a

19 computer database search the most recent address that may be obtained for each person on the

20 combined list of potential Settlement Class members. Within sixty (60) days of the entry of this

21 Order, the Claims Administrator shall mail, via first class postage, Notice of C lass Settlement (as

22 set forth in Exhibit 4 hereto), the Claim Form (as set forth as exhibit 5 hereto), and the

23 Explanation of Claims Procedure (as set forth in Exhibit 6 hereto) to all known potential

24 Settlement Class members at their last known address and at the most recent address that may

25 have been obtained through the computer database search.

26

6. The manner and forms of Notices and the Claim Forms and Instructions

27 attached to this Stipulation and Order as Exhibits 2, 3, 4, 5, and 6 are hereby found, under the

28 circumstances, to constitute the most effective and practicable notice of the pendency of the class

361824.1

STIPULATION OF PROPOSED SETTLEMENT

6

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 9 of 16

1 action, proposed settlement and fairness hearing to all class members who can be identified

2 through reasonable effort and constitute due and sufficient notice for all other purposes to all

3 persons entitled to receive notice required by due process and Rule 23 of the Federal Rules of

4 Procedure. Pursuant to the parties' agreement, Abercrombie shall pay all costs of the publication

5 Notice process, which will not exceed $600,000.00, and will advance the costs of preparing,

6 distributing and/or mailing the mailed Notices as provided in Section XVII.AA.a. of the Decree.

7

7. Eligible members of the Settlement Class shall have until March25, 2005

8 (the "Claim Filing Deadline"), within which to complete and file their Claim Forms. Such Claim

9 Forms shall be filed with the Claims Administrator at Gonzalez v. Abercrombie Claims

10 Administrator, P.O. Box 10564, Tallahassee, FL 32302-2564. Claim Forms will be deemed filed

l I o n the postmark date shown on the enve lope in which the completed Claim Form is mailed to the

12 Claims Administrator. Failure to postmark a completed Claim Form by the Claim Filing

13 Deadline shall bar the settlement Class member from having his or her request for a monetary

14 award considered or from receiving any monetary award pursuant to the proposed Consent

15 Decree. Settlement Class members who do not file timely and valid Claim Forms shall

16 nonetheless be bound by the judgment and release in this action as set forth in the proposed

17 Consent Decree.

18

8. It shall be the sole responsibility of each member of the Settlement Class

19 who seeks a monetary award to notify the Claims Administrator if the class member changes his

20 or her address. Failure of a Settlement Class member to keep the Claims Administrator apprised

21 of his or her address may result in his or her claim being denied or forfeited.

22

9. A hearing pursuant to Rule 23(e), Federal Rules of Civil Procedure (the

23 "Fairness Hearing"), shall be held at 4:30 p.m. on April 14, 2005, at the United States District

24 Courthouse, Courtroom 10, 19th Floor, 450 Golden Gate Avenue, San Francisco, California, at

25 which time the Court shall consider the fairness of the Consent Decree and whether it should be

26 approved and entered by the Court. If any attorney will be representing a class member objecting

27 to the Consent Decree, the attorney shall file a notice of appearance with the Court and serve

28 counsel for all parties on or before March 7, 2005 [40 days before the Fairness Hearing].

361824.1

STIPULATION OF PROPOSED SETTLEMENT

7

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 10 of 16

1

10. Any member of the Settlement Class may object to the proposed Consent

2 Decree by filing an objection and, ifhe or she so desires, appearing at the Fairness Hearing. To

3 be considered by the Court, however any objection to the final approval of the Consent Decree

4 must state the basis for the objection and must be timely filed in writing, along with any other

5 papers the class member wishes the Court to consider, with the Claims Administrator, Gonzalez

6 v. Abercrombie Claims Administrator, P.O. Box 10564, Tallahassee, FL 32302-2564 on or before

7 March 7,2005 [40 days before the Fairness Hearing]. Any member of the class who does not

8 timely file and serve such a written objection shall not be permitted to raise such objection, except

9 for good cause shown, and any member of the class who fails to object in the manner prescribed

10 herein shall be deemed to have waived, and shall be foreclosed from raising any such objection.

11 The Claims Administrator shall record the date of receipt of each objection and shall forward

12 copies of each objection to Abercrombie and to Plaintiffs' Lead Counsel within two (2) business

13 days following receipt. The Claims Administrator shall also file the original of each objection

14 with the Clerk of the Court no later than five (5) days prior to the Fairness Hearing date.

15

11. If objections are filed, Class Counsel, the EEOC or counsel for

16 Abercrombie may engage in discovery concerning the filed objections prior to the Fairness

17 Hearing. Class Counsel and Abercrombie shall serve on each other and file with the Court on or

18 before three (3) days prior to the Fairness Hearing any further documents in support of the

19 proposed Consent Decree, including responses to any papers filed by Settlement Class members.

20

12. Consistent with Section VII of the proposed Consent Decree providing for

21 certification of the Settlement Class under Federal Rules of Civil Procedure 23(b)(3) for purposes

22 of monetary relief, and in according with the requirement of Federal Rules of Civil Procedure

23 23(b)(3), any potential Settlement Class member may request exclusDn from the class, but only

24 for purposes of opting-out of the monetary relief provisions.

25

13. Potential class members who wish to exclude themselves from membership

26 in the Settlement Class for purposes of participation in the monetary portion of the settlement

27 must do so in writing, by filing a signed and dated "Opt-out" statement with the Claims

28 Administrator at Gonzalez v. Abercrombie Claims Administrator, P.O. Box 10564, Tallahassee,

361824.1

STIPULATION OF PROPOSED SETTLEMENT

8

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 11 of 16

1 FL 32302-2564, which must be received by the Claims Administrator on or before March 7,2005

2 [40 days before the Fairness Hearing]. Opt-out statements shall at a minimum contain the

3 following language:

4

I am a Settlement Class Member in the lawsuit of Gonzalez v.

Abercrombie & Fitch, Case No. 03-2817 or West v. Abercrombie &

5

Fitch, Case No. 04-4730. I wish to opt out of the monetary portion

of the settlement of this case. 6

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

7

monetary settlement and that I will receive no money from the

settlement fund created under tre Consent Decree entered into by

8

Abercrombie. I understand that if I am excluded from the class

monetary settlement, I may be able to bring a separate legal action

9

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

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

10

settlement procedure in this case. I also understand that I may not

seek exclusion from the class for injunctive relief and that I am

11

bound by the injunctive provisions of the Consent Decree entered

into by Abercrombie. 12

Only those class members who request exclusion in the time and manner set forth herein shall be

13

excluded from the class for monetary relief purposes. Pursuant to the Federal Rules of Civil

14

Procedure 23(b)(3) and (c)(2), the terms and provisions of the Consent Decree concerning 15

monetary relief shall have no binding effect on any person who makes a timely request for 16

exclusion in the manner required by this Order. 17
The Claims Administrator shall date stamp the original of each Opt-out statement 18
and serve copies on Abercrombie, Plaintiffs' Lead Counsel and the EEOC within two (2) business 19
days of receipt of such statement. The Claims Administrator shall also file the original Opt-out 20

statements with the Clerk of the Court no later than five (5) days prior to the Fairness Hearing 21

date.
22

14. Subject to Court approval, class members will be permitted to withdraw 23
objections or requests for exclusion from the monetary provisions of the Decree by submitting a 24
Rescission to the Claims Administrator at Gonzalez v. Abercrombie Claims Adminstrator, P.O. 25
Box 10564, Tallahassee, FL 32302-2564 up to but not later than March25, 2005 [the Claim 26
Filing Deadline]. A Rescission of Objection that shall at a minimum contain the following 27

language: 28

361824.1

STIPULATION OF PROPOSED SETTLEMENT

9

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 12 of 16

1

I am a Settlement Class Member in the lawsuit of Gonzalez v.

Abercrombie & Fitch, Case No. 03-2817 or West v. Abercrombie &

2

Fitch, Case No. 04-4730.

3

I previously submitted an Objection seeking to object to the class

settlement. I have reconsidered and wish to withdraw my

4

Obj ectio n. I understand that by rescinding my Obj ection I may not

object to the settlement and may be eligible to receive an award

5

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

action against Abercrombie seeking damages.

6 A rescission of a request for exclusion from the monetary provisions of the Decree

7 shall at a minimum contain the following language:

8

I am a Settlement Class Member in the lawsuit of Gonzalez v.

9

Abercrombie & Fitch, Case No. 03-2817 or West v. Abercrombie &

Fitch, Case No. 04-4730.

10

I previously submitted an Opt-out statement seeking exclusion from

11

the class monetary settlement. I have reconsidered and wish to

withdraw my Opt-out statement. I understand that by rescinding

12

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

13

Abercrombie seeking damages.

14 A class member submitting such a rescission statement shall sign and date the statement.

15

The Claims Administrator shall date stamp the original of each rescission

16 statement and serve copies on both Abercrombie and Plaintiffs' Lead Counsel within two (2)

17 business days of receipt of such statement. The Claims Administrator shall also file the rescission

18 statements with the Clerk of the Court no later than five (5) days prior to the Fairness Hearing

19 date.

20

21 22

23

24

25

26

27

28
361824.1

STIPULATION OF PROPOSED SETTLEMENT

10

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 13 of 16

1 Dated: November 12,2004
2
3

Respectfully submitted,

4 Thomas A. Saenz

Bill Lann Lee

Shaheena Ahmad Simons

Kelly M. Dermody

5 MEXICAN AMERICAN LEGAL DEFENSE Eve H. Cervantez

AND EDUCATIONAL FUND 6 634 South Spring Street, 11th Floor

Elizabeth A. Alexander (pro hac vice) Jahan C. Sagafi

Los Angeles, CA 90014 7

Nirej S. Sekhon LIEFF, CABRASER, HEIMANN

& BERNSTEIN, LLP

8

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339 9

Julie Su 10 MinahPark

ASIAN PACIFIC AMERICAN LEGAL

11

CENTER

1145 Wilshire Blvd., 2nd Floor 12 Los Angeles, CA 90017

Joseph C. Kohn Martin 1. D'Urso Hilary Cohen KOHN, SWIFT & GRAF, P.C. One South Broad Street Philadelphia, PA 19107

13 Kimberly West-Faulcon

NAACP LEGAL DEFENSE AND

14

EDUCATIONAL FUND, INC.

1055 Wilshire Blvd., Suite 1480 15 Los Angeles, CA 90017

16
Sidney L. Gold 17 Traci M. Greenberg
SIDNEY L. GOLD & ASSOCIATES, P.c. 18 1835 Market Street
Philadelphia, PA 19103 19
James F. Keller 20 Zachary Gottesman
GOTTESMAN & ASSOCIATES 21 2121 URS Center
36 East 7th Street
22 Cincinnati,OH 45202

Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MILLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103
Cleo Fields THE FIELDS LAW FIRM, L.L.c. 2147 Government Street Baton Rouge, LA
Barry L. Goldstein GOLDSTEIN, DEMSCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Avenue Oakland, CA 94612

23

24

25

26

27

28
361824.1

STIPULATION OF PROPOSED SETTLEMENT

11

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 14 of 16

1 November 12, 2004
2
3 4 5 6 7 8 9 10 November 12,2004 11 12 13 14 15 16 17 18 19 20 21
22
23 24 25 26 27 28
361824.1

/s/ Bill Lann Lee LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
Jack W. Lee, Esq. (SBN 071626) Lisa Duarte, Esq. (SBN 169750) John Ota, Esq. (SBN 195532) MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108
/s/ Jack W. Lee MINAMI, LEW & TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108
Attorneys for Plaintiff West, et al.

STIPULATION OF PROPOSED SETTLEMENT

12

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 15 of 16

1 2 November 12,2004 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
361824.1

ERIC S. DREIBAND General Counsel

JAMES LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507

By:

/s/

ANNAY.PARK

Regional Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012

By:

/s/

JOHN C. HENDRICKSON Regional Attorney GREGORY M.GOCHANOUR Supervisory Trial Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, IL 60661

STIPULATION OF PROPOSED SETTLEMENT

13

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

Case 3:04-cv-04730-SI Document 10 Filed 11/17/2004 Page 16 of 16

1 November 12,2004
2
3 4 5 6 7 8

Douglas R. Young Sandra A. Kearney
FARELLA BRAUN + MARTEL, LLP
Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104
Thomas Brennan Ridgley Jonathan M. Norman Sandra J. Anderson Mark A. Knueve VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008

9

/s/

10

Douglas R. Young

Sandra A. Kearney

11

FARELLA BRAUN + MARTEL, LLP

Russ Building, 30th Floor

12

235 Montgomery Street

San Francisco, CA 94104

13

Attorneys for Defendant Abercrombie & Fitch, et al.

14

15

16

17
18 IT IS SO ORDERED.
19
20 Dated: Novembert..6-,2004
21

ORDER
s/Susan IIlston The Honorable Susan Illston UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28
361824.1

STIPULATION OF PROPOSED SETTLEMENT

14

AND [PROP OSED] ORDER

CASE NOS. 03-2817 sr, 044730 sr and 04-4731 sr

 
 Case 3:04-cv-04731-SI Document 5 Filed 11/12/2004 Page 1 of 6

Rill Lann Lee (SBN 108452) Kety M. Dermody (SBN 171716)
2 Eve H. Cervantez (SBN 164709) E!i~abetb A. Alexander (pro hac vi<::e)
3 laban C. Sagafi (SBN 224887)
Nirej S. Sekhon (SBN 213358)
,4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor
SanFraocisc(),CA 94111·3339 6 Telephone: (415) 956-1000
Fac~jmile: (415)956·1008
7 Th(lmas A. Saenz (SEN 159430)
8 Slwlottna AI",,,.d SiuJOns (SBN 225520) MEXICAN AMERICAN LEGAL DEFTh"lSE
9 AND EDUCATIONAL :FUND 634 Somb Spring Street
10 LosAnge]es,CA 90014
Telephone: (213) 629-2512
11 FlICsimile: (213)629·0266
12 Joseph C. Kohn Martin J. D'Urso
13 Hilary Cohen KOHN, SWIFT & GRAF, P.c.
14 One South Broad Street, Suile 2100 Philadelphia, PA 19107
15 Telephone: (215) 218-1700 Fac~jmile: (215) 238-1968
16 Jack W. Lee, Esq. (SBN 071626)
17 Lisa Duarte, F~'«l' (SBN 169750) John Ota, Esq. (SBN 195532)
18 MINAMI, LEW & TAMAKI LLP
360 Post Street, 8th Floor
19 San Francisco, CA 94108 Telephone; (415) 788-9000
20 Facsimile: Fax (415) 398··3887

Dooglas R. Young
Sandra A. Kearney
FARELLA BRAUN & MARTEL, LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94 104 Telephone: (415) 954-4400 Facsimile: (415) 954-4481
Thomas Brennan Ridgley Jonathan M. Nonnan Sandra J, Anderson
Mark Knueve
VORYS, SATER, SEYMOUR & PEASE LLP
52 East Gay Street
P.O. Box 1008 Columbus, OH 43216-1008 Telephone: 614-464-6400 Facsimile: 614-464-6350
Anna Y. Park (SBN 164242)
Peter F. Laura (SBN 116426) U.S. EQUAL EMPLOYMENT OpPORTUNrry COM::M:ISSION
255 East Temple Street, 4th Floor
Los Angeles, CA 90012
10hn C. Hendrickson (IL SBN 1187589)
Gregory M. G<x:hanour (IL SBN 6210804)
U.S. EQUAL EMPLOYMENT OPPORTIJNITY COMMISSION 500 West Madison Street, Suite 2800
Chicago, IL 60661

21 Allr,rneysfor P/iJinlijJs ami DeJimdants

22 !Additiona! Counsel lisled on Signature Page]

23

UNITED STATES DISTRICT COURT

NORTHERN DISTRICr OF CALIFORNIA

24

SAN FRANCISCO I OAKLAND DIVISION

25 EDUARDO GONZALEZ, ANTHONY OCAMPO, ENCARNACION
26 GUnERRE7~ lOBAN MONTOYA,
27 lUANCARLOS GOMEZ-MONTEJANO,
28 I _ ~~"~"'·""e'~i"""e''''"'~'i"'".'''·;L~C· ______l

Case No. 03-2817 S1
STIPULATION AND JOINT STATEMENT
SUPPORTING NOTICE OF REI,ATED
CASES AND [PROI'OSED] ORDER

~'Tll'IJI.A110N AN£> 10INTSTA'ruMENT CAS6 NO. m,l&17 51

Case 3:04-cv-04731-SI Document 5 Filed 11/12/2004 Page 2 of 6

1 JENNIFER LV, AUSTIN CHU, IVY NGUYEN, ANGELINE WU, ERIC
2 FIGHT, CARLA GRIJBB, DAVID CUIl'EPPER, PATRICE DOUGLASS,
3 ROBAIR SHERROD, BRANDY ItAWK,
lind ANDRE STEELE on behalf of 4 lhemse!ve~ and all others similarly situated,

5

Plaintiffs,

6

,

7 ABERCROMBIE & FrrCH STORES, INC., A&F CALIFORNIA, LLC, A&F
8 OHIO, INC., AND ABERCROMBIE & FITCH MANAGEMENT CO.
9 Defendants.
to

11

12

Pursuant to Local Rule 3-12, the undersigned who are counsel for plaintiffs and

13 defendants ("an parties") in the above captioned !lllItter, in EEOC v, Abercrombie & FifCh, Case 14 No. 04-04731 TEll (N,D. CaL, filed Nov. 8, 2()()i); and in West v, Abercrombie & Firch, Case

15 No. 04-04730 MEJ (N.D. CaL, filed Nov. 8, 200i) hereby stipulate that these three cases satisfy

16 the definition of "related cases" as contained in L.R. 3·12(1:». These three eases - all involving

17 allegations of employment discrimination at the same single employer- involve substantially the

18 same parties, events, and questions of law; and conducting the cases in front of different judges

19 will involve unduly burdensome duplication of labor and expense.

20

Undersigned counsel intend to seek preliminary approval later this week of ajoint,

21 proposed cons(''f)t decree fully resolving these matters. Permitting these actions to be heard before

22 a single judge will facilitate settlement.

23

Notices of' Related Cases have been filed in each action identifying the other two

24 actions as related. Pursuant to LR. 3-12(d), all parties submit this join! statement supporting the

25 Notice of Related Cases filed for the above captioned maller and the Notices of Related Cases 26 filed in EEOC v. Abercrombie & Fiwh and Waf v. Abercrombie & Fifch.

27 flf

28 III

359597 I

" 1"

STWULATION AND JOINT STATEMENT CASE NO. 03..7.ll!7 8!

Case 3:04-cv-04731-SI Document 5 Filed 11/12/2004 Page 3 of 6

Dated: November 9, 2004, 2004 2

Re~pectfuny submitted,

Thomas A. Saenz 4 Shaheena Ahmad Simons

Bil! Lann Lee Ke!!y M. Dennody

MEXICAN AMERICAN LEGAL DEFENSE Eve H. Cervantez

5

AND EDUCATIONAL FUND

Elizabeth A. Ale:l:ander (pro hac vicc)

634 South Spring Street, 11th Hoor

Jahan C. Sagan

6 Los Angeles, CA 90014

Nircj S. Sekhon LfEFF, CABRASER, HEL\1ANN

7

& BERNSTEIN, LLP

275 Battery Street, 30th Floor

8

SanFmncisco,CA 94111-3339

9 Julie Su Minah Park
10 ASIAN PACIFIC AMERICAN LEGAL CENTER
" ! 145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017 12
Kimberly West-Faulcon 13 NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
1055 Wilshire Blvd., Suite 1480 Los Angeles, CA 90017
15

Joseph C. Kuhn Martin J. D'Urso Hilary Cohen KaHN, SWIFT & GRAF, P.c. One South Broad Street Philadelphia, PA 19107
Bryan L. Clobes Melody Forrester Jeffrey D. Lerner MlLLER FAUCHER AND CAFFERTY One Logan Square, Suite 1700 Philadelphia, PA 19103

16 Sidney L. Gold Truci M. Greenberg
17 SIDNEY L. GOLD & ASSOCIATES, P.c. 1835 Market Street
18 Philadelphia, PA 19103

Cleo Fields THE FIELDS LAW FIRM, L.L.c.
2147 Government Street Baton Rouge, LA

19 James F. Ke!!er Zachary Gottesman
2Il GOTTESMAN & ASSOCIATES 2121 URS Cemer
21 36 East 7th Street Cincinnati, OH 45202
22

23

24 November 9, 2004 25 26

Bill nn Lee L " CABRASER, HEIMAl\"N & BERNSTEIN, LLP
275 attery Street, 30th Floor San Fr~ncisco, CA 94111-3339

27

28

- 2-

~'TIl'1!l-AnoN AND JOINT SnTf.MF.NT CASf. NO OJ-UP 81

U." Nov 09 04 C0a3s:e593:p04-cv-0.l4a7c3k1-SI Document 5 Filed 11/12/2004 Page 4 of 6

2 3
~004 4
5 November
, 6
8 9
"
II
12
13
14
,.15
"
18 19 20
21 Z2 23 24 25
26 23 28
l~?.!'n.l

Jack W. Lee, Esq. (SBN 071626)
Lisa Duarte, Esq. (SBN 169750)
Joim Ota, K'lq. (SBN 195532) MINAMl, LEW & TA1-1AKl UJ' 360 Po~"t Street,. 8th Fk){}[ sanFmncisco, CA 941<]8
~~LP 360 Post Street, 8 Floor San Fn>n<::isc<>, CA 941 (1& Attorneys/or P!aint!iTWcst, el al.
'1"U'UI.A·noN AND.OlNT 5"rAT£""'t>T ("A'~"'() ~.....,""

Case 3:04-cv-04731-SI Document 5 Filed 11/12/2004 Page 5 of 6
T-ill P OnlDOl F-MO

!1. November 2004

ERIC S. DREIBAND General Co=!

JAMES LEE Deputy General O)unscl

GWENDOLYN YOUNG RF..AMS Asl;ociall;: ('~ COunsel

u.s. EQUAL EMPWYMENT

Ol'l'ORnJNlTY COMMISSION

1801 "1." Street, N.W.

:Y~J;:U~~

Iq ~ Regional

r

u.s. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

, November ~ 2004

u.s. EQUAL EMPlOYMENT
OPPORTUNITY COMMISSION
500 west Madison SI:re¢t, Suite 2800
Chicag<), IT. 60661
Dough!:; KYoung S<rn4nl A_ Kearney FARELLABRAUN & MARTEL, Ill' Russ Building. 30th I'loor 235 Moo!gOlllel:y Su-eet SanF:mn<;isoo, CA 94104
Thomas BTennan Ridgley
JOllaIban M. NOnmIn
Sandra J. Andruson
Mitt\( Kmreve VORYS, SATER, SEYMOUR & !'EASE LLP 52 Easl Gay Street 1',0. B= 1008
Columbus, OR 4!1216-1 008

Case 3:04-cv-04731-SI Document 5 Filed 11/12/2004 Page 6 of 6

November 9. 2004 2 3 4 5 6
7
8 9 10 11 12 13 14 15

Douglas R. Young Sandra A. Kearney PARELLA BRAUN & MARTEL, LLP Russ BuildingT 30th Floor 235 Montgomery Street San Fmnci sco, CA 94104
Thomas Brennan Ridgley Jonathan M. Nonnan Sandra J. Anderson Mark Knueve VOR YS. SATFR, SEYMOUR & PEASE LLP 52 East Guy Street P.O. Box 1008 Co)umbus. OH 43216-1008
S :J1~ If v ~·L
{)(lug as R. Young Sandra AA Kearney PARELLA BRAUN & MARTEL, UP Russ Building. 30th Hoor 235 Montgomery Street San Francisco, CA 94}04
Attorneys for Defendant Aben'rombie & FilCh, el Cll.

1.6 ORDER
1.7

1.8

Good cause appearing, IT IS HEREBY ORDERED that pursuant to Local Rule 3-

1.9 ]2, the Court wjJl hear EEOCv. Abercrombie & Fitch. Case No. 04-04731-TEHand West v

20 Abercrombie & Fitch, Case No. 04A730-MFJ al

21

IT IS SO ORDERED.

22
23
Dated: November 2004
24
E 25

26

27

28

I-~-------------"""""""""""'"'---"""""""""""""~----------+--

-5-

!-rTU'VLATJON AND JOlN'f STATEMIlNT
CASB NO. Ql··]!H7 SI

 
 EEOC Agrees to Landmark Resolution of Discrimination Case Against Abercrombie & Fitch

Page 1 of 1

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE November 16, 2004

CONTACT: Anna Y. Park, Regional Attorney Los Angeles District Office (213) 894-1080

Gregory Gochanour, Supervisory Trial Attorney Chicago District Office (312) 886-9124

TTY: (213) 894-1121

EEOC Agrees to Landmark Resolution of Discrimination Case Against Abercrombie & Fitch
LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) and private plaintiffs today announced their mutual resolution of the lawsuit entitled EEOC v. Abercrombie & Fitch Stores, Inc., Case No. CV-04-4731 SI, which was filed on November 10, 2004, in the United States District Court for the Northern District of California in San Francisco. The lawsuit alleged that Abercrombie & Fitch, which operates a nationwide chain of retail stores, violated Title VII of the Civil Rights Act of 1964 by maintaining recruiting and hiring practices that excluded minorities and women and adopting a restrictive marketing image, and other policies, which limited minority and female employment.
The lawsuit was amicably resolved by entry of a Consent Decree in the U.S. District Court, which provides that Abercrombie & Fitch will pay $50 million to resolve the EEOC lawsuit along with two private class actions filed against Abercrombie & Fitch: Gonzalez, et al. v. Abercrombie, et al. and West v. Abercrombie, et al.
The Consent Decree enjoins Abercrombie & Fitch from:
a. discriminating against applicants based upon race, color, national origin which includes African Americans, Asian Americans, and Latinos;
b. discriminating against women due to their sex; and,
c. denying promotional opportunities to women and minorities.
Abercrombie & Fitch has also agreed to develop and implement hiring and recruiting procedures to ensure compliance under the Decree. Abercrombie & Fitch agreed to ensure that minorities and women are promoted into manager-in-training and manager positions without discrimination. A Monitor will be hired to ensure Abercrombie's compliance with the terms of the Consent Decree, including reporting. Abercrombie & Fitch will hire a Vice President of Diversity and employ up to 25 diversity recruiters. Abercrombie & Fitch will devise new protocols for each of these areas. Abercrombie & Fitch will post a Notice on an internal web site and at all stores which will be periodically distributed to employees. Additionally, Abercrombie & Fitch will provide training to all of its managers. Most importantly, Abercrombie & Fitch also agreed to ensure that its marketing materials will reflect diversity.
EEOC's General Counsel Eric Dreiband stated, "The retail industry and other industries need to know that businesses cannot discriminate against individuals under the auspice of a marketing strategy or a particular ‘look.' Race and sex discrimination in employment are unlawful, and the EEOC will continue to aggressively pursue employers who choose to engage in such practices."
EEOC's Los Angeles Regional Attorney, Anna Park, stated, "The most harmed group of individuals in this case were young minorities and young women. The Commission will ensure that these young workers, who may be entering the workforce for the first time, are actually afforded equal opportunities to compete for jobs."
Olophius Perry, Director of the EEOC's Los Angeles District Office, added, "By agreeing to resolve this case, Abercrombie & Fitch is expressing a commitment to the principles of equal employment opportunity. We commend Abercrombie & Fitch for its willingness to address our concerns head-on. We encourage employers to take a proactive approach in ensuring their workplaces are free of discrimination."
Gregory Gochanour, Supervisory Trial Attorney for the EEOC's Chicago District Office, stated, "This case should serve as a message to other employers that if they choose to make their employees part of their marketing they still need to abide by the federal anti-discrimination laws."
John Rowe, Director of the EEOC's Chicago District Office, added, "This case demonstrates that the EEOC can coordinate on a nationwide basis to confront national employers who maintain discriminatory practices. Using mediation to bring about compliance with federal anti-discrimination laws has been central to the Commission's effort to eradicate discrimination. The Abercrombie & Fitch consent decree, obtained after extensive mediation efforts, shows once again that significant results can be achieved without the delay, expense and uncertainty of protracted litigation."
EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin; the Age Discrimination in Employment Act; the Equal Pay Act; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; prohibitions against discrimination affecting individuals with disabilities in the federal government; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on its web site at www.eeoc.gov.

This page was last modified on November 18, 2004. Return to Home Page

http://www.eeoc.gov/press/11-18-04.html

4/1/2007

 
 Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 1 of 9
ADRMOP,CLOSED,E−Filing,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04−cv−04731−SI

U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. et al Assigned to: Hon. Susan Illston Relate Case Cases: 3:03−cv−02817−SI
3:04−cv−04730−SI Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 11/08/2004 Date Terminated: 04/15/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

U.S. Equal Employment Opportunity Commission

represented by Anna Y. Park U.S. EEOC 255 East Temple Street 4th Floor Los Angeles, CA 90012 213/894−1080 Fax: 213−894−1301 Email: anna.park@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Hendrickson U.S. Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, Il 60661 312−886−9124 Fax: 312−353−8555 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory Gochanour U.S. Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 312−886−9124 Fax: 312−353−8555 Email: Gregory.Gochanour@eeoc.gov ATTORNEY TO BE NOTICED

Peter F. Laura U.S. Equal Employment Opportunity Commission 450 Golden Gate Ave POB 36025 San Francisco, CA 94102 415−522−3425 Email: peter.laura@eeoc.gov ATTORNEY TO BE NOTICED

Plaintiff Willis E. Brown, IV

represented by Gregory Gochanour (See above for address) ATTORNEY TO BE NOTICED

Willis E. Brown

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 2 of 9
Willis E. Brown LTD. 120 W. Madison Street, Suite 825 Chicago, IL 60602 312−372−3026 ATTORNEY TO BE NOTICED

V. Defendant Abercrombie & Fitch Stores, Inc.
Defendant A & F California, LLC Defendant

represented by Douglas R. Young Farella Braun & Martel LLP 235 Montgomery Street 17th Floor San Francisco, CA 94104 415−954−4410 Fax: 415−954−4480 Email: dyoung@fbm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Scott Andrews Farella Braun & Martel LLP 235 Montgomery Street 18th Floor San Francisco, CA 94104 415−954−4400 Fax: 415−954−4480 Email: sandrews@fbm.com ATTORNEY TO BE NOTICED
Patrick R. McKinney Farella Braun and Martel LLP 235 Montgomery Street, Suite 3000 San Francisco, CA 94104 415 954−4487 Fax: 415−954−4480 Email: pmckinney@fbm.com ATTORNEY TO BE NOTICED
Sandra A. Edwards Farella Braun + Martel LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 (415) 954−4428 Email: sedwards@fbm.com ATTORNEY TO BE NOTICED
represented by Christopher Scott Andrews (See above for address) ATTORNEY TO BE NOTICED
Patrick R. McKinney (See above for address) ATTORNEY TO BE NOTICED
Sandra A. Edwards (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 3 of 9

A & F Ohio, Inc.

represented by Christopher Scott Andrews (See above for address) ATTORNEY TO BE NOTICED

Douglas R. Young (See above for address) ATTORNEY TO BE NOTICED

Patrick R. McKinney (See above for address) ATTORNEY TO BE NOTICED

Sandra A. Edwards (See above for address) ATTORNEY TO BE NOTICED

Defendant A & F Management Co., Inc.

represented by Christopher Scott Andrews (See above for address) ATTORNEY TO BE NOTICED

Douglas R. Young (See above for address) ATTORNEY TO BE NOTICED

Patrick R. McKinney (See above for address) ATTORNEY TO BE NOTICED

Sandra A. Edwards (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/08/2004
11/08/2004 11/08/2004
11/10/2004 11/11/2004 11/12/2004 11/12/2004 11/16/2004

# Docket Text
1 COMPLAINT−Civil Right, Employment 42:USC 102, jury demand, summons issued against defendants A & F California, LLC, A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie & Fitch Stores, Inc.. Filed by plaintiff U.S. Equal Employment Opportunity Commission. (db, COURT STAFF) (Filed on 11/8/2004) Additional attachment(s) added on 12/14/2004 (ys, COURT STAFF). (Entered: 11/09/2004)
CASE DESIGNATED for Electronic Filing. (db, COURT STAFF) (Filed on 11/8/2004) (Entered: 11/09/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 3/7/2005. Case Management Conference set for 3/14/2005 01:30 PM.. Signed by Judge Thelton E. Henderson on 3/9/04. (Attachments: # 1)(db, COURT STAFF) (Filed on 11/8/2004) (Entered: 11/09/2004)
3 NOTICE of Related Case (Park, Anna) (Filed on 11/10/2004) (Entered: 11/10/2004)
4 ANSWER to Complaint by A & F California, LLC, A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie & Fitch Stores, Inc.. (Kearney, Sandra) (Filed on 11/11/2004) (Entered: 11/11/2004)
5 ORDER RELATING CASE. Case reassigned to Judge Susan Illston for all further proceedings. Judge Thelton E. Henderson no longer assigned to case. Signed by Judge Illston on 11/11/04. (ts, COURT STAFF) (Filed on 11/12/2004) (Entered: 11/12/2004)
6 CERTIFICATE OF SERVICE by A & F California, LLC, A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie & Fitch Stores, Inc. re 4 Answer to Complaint (Kearney, Sandra) (Filed on 11/12/2004) (Entered: 11/12/2004)
7 Minute Entry: Motion Hearing held on 11/15/2004 before Illston (Date Filed: 11/16/2004). (Court Reporter P. Thompsen.) (ts, COURT STAFF) (Date Filed:

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 4 of 9

11/16/2004
11/16/2004 11/17/2004 11/26/2004
12/08/2004 12/10/2004 03/31/2005 04/05/2005 04/06/2005 04/12/2005 04/14/2005 04/15/2005 04/15/2005 04/15/2005 04/18/2005 06/14/2005 05/17/2006 08/10/2006

11/16/2004) (Entered: 11/16/2004)
8 Minute Entry: Motion Hearing held on 11/16/2004 before Illston (Date Filed: 11/16/2004). Case continued to 4/14/05 @ 4:30 p.m. for Final Approval Hearing of Class Settlement(Court Reporter R. Flores.) (ts, COURT STAFF) (Date Filed: 11/16/2004) (Entered: 11/16/2004)
Set Deadlines/Hearings: Motion for Final Approval of Class Settlement Hearing set for 4/14/2005 04:30 PM. (ys, COURT STAFF) (Filed on 11/16/2004) (Entered: 11/17/2004)
9 STIPULATION AND ORDER granting preliminary approval of consent decree. Signed by Judge Illston on 11/16/04. (ts, COURT STAFF) (Filed on 11/17/2004) (Entered: 11/17/2004)
10 WAIVER OF SERVICE Returned Executed filed by U.S. Equal Employment Opportunity Commission. Service waived by A & F Management Co., Inc. waiver sent on 11/12/2004, answer due 1/11/2005; Abercrombie & Fitch Stores, Inc. waiver sent on 11/12/2004, answer due 1/11/2005; A & F California, LLC waiver sent on 11/12/2004, answer due 1/11/2005; A & F Ohio, Inc. waiver sent on 11/12/2004, answer due 1/11/2005. (Park, Anna) (Filed on 11/26/2004) (Entered: 11/26/2004)
11 CERTIFICATE OF SERVICE by U.S. Equal Employment Opportunity Commission re 2 ADR Scheduling Order (Park, Anna) (Filed on 12/8/2004) (Entered: 12/08/2004)
12 CLERK'S NOTICE re: Failure to E−File (complaint by plaintiff). (ys, COURT STAFF) (Filed on 12/10/2004) (Entered: 12/10/2004)
13 Letter from Gregory Gochanour. (Gochanour, Gregory) (Filed on 3/31/2005) (Entered: 03/31/2005)
14 Letter dated 3/16/05 from Willis E. Brown, Esq., counsel of one of class plaintiffs Willis E. Brown IV to the Court requesting to add on the docket. (ys, COURT STAFF) (Filed on 4/5/2005) (Entered: 04/05/2005)
15 ORDER granting Plaintiff's request for expedited discovery. Signed by Judge Illston on 4/6/05. (ts, COURT STAFF) (Filed on 4/6/2005) (Entered: 04/06/2005)
16 MEMORANDUM in Support of Motion for Order Approving Consent Decree filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 4/12/2005) (Entered: 04/12/2005)
17 Memorandum in Opposition to Objector Potter filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 4/14/2005) (Entered: 04/14/2005)
18 ORDER re: joint motion for order approving withdrawal of objection submitted by Leigh Foster. Signed by Judge Illston on 4/14/05. (ts, COURT STAFF) (Filed on 4/15/2005) (Entered: 04/15/2005)
19 ORDER re: opt−outs and point allocation. Signed by Judge Illston on 4/14/05. (ts, COURT STAFF) (Filed on 4/15/2005) (Entered: 04/15/2005)
20 consent decree. Signed by Judge Illston on 4/14/05. (ts, COURT STAFF) (Filed on 4/15/2005) (Entered: 04/15/2005)
21 Minute Entry: Motion Hearing held on 4/15/2005 before Illston (Date Filed: 4/18/2005). (Court Reporter J. Yeomans.) (ts, COURT STAFF) (Date Filed: 4/18/2005) (Entered: 04/18/2005)
22 ORDER approving withdrawal of objection submitted by Rachel Potter. Signed by Judge Illston on 6/10/05. (ts, COURT STAFF) (Filed on 6/14/2005) (Entered: 06/14/2005)
23 Letter dated 5/15/06 from Brittny L. Holman. (ys, COURT STAFF) (Filed on 5/17/2006) (Entered: 05/18/2006)
24 CLERK'S NOTICE Case Management Conference set for 8/22/2006 03:00 PM. (ts, COURT STAFF) (Filed on 8/10/2006) (Entered: 08/10/2006)

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 5 of 9

08/23/2006 08/23/2006 08/23/2006 09/06/2006 08/13/2007
08/13/2007 08/13/2007
08/17/2007 08/17/2007 08/22/2007 08/24/2007 09/18/2007 09/20/2007

25 Minute Entry: Further Case Management Conference held on 8/22/2006 before Illston (Date Filed: 8/23/2006). (Court Reporter Mankiewicz.) (ts, COURT STAFF) (Date Filed: 8/23/2006) (Entered: 08/23/2006)
26 Minute Entry: Further Case Management Conference held on 8/22/2006 before Illston (Date Filed: 8/23/2006). (Court Reporter Mankiewicz.) (ts, COURT STAFF) (Date Filed: 8/23/2006) (Entered: 08/23/2006)
27 AMENDED Minute Entry: Further Case Management Conference (Date Filed: 8/23/2006). () (ts, COURT STAFF) (Date Filed: 8/23/2006) (Entered: 08/23/2006)
28 ORDER directing the parties to file under seal the court−appointed monitor's report and executive summary. Signed by Judge Susan Illston on 9/1/06. (ys, COURT STAFF) (Filed on 9/6/2006) Additional attachment(s) added on 9/7/2006 (ys, COURT STAFF). (Entered: 09/07/2006)
29 MOTION Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to Be Filed Under Seal filed by A & F Management Co., Inc., Abercrombie & Fitch Stores, Inc., A & F California, LLC, A & F Ohio, Inc.. Motion Hearing set for 9/21/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 Signature Page (Declarations/Stipulations) Declaration of Thomas Ridgley re Motion to File Under Seal# 2 Proposed Order Proposed Order re Motion to File Under Seal)(McKinney, Patrick) (Filed on 8/13/2007) (Entered: 08/13/2007)
30 MEMORANDUM in Support re 29 MOTION Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to Be Filed Under Seal filed byA & F Management Co., Inc., Abercrombie & Fitch Stores, Inc., A & F California, LLC, A & F Ohio, Inc.. (Related document(s) 29 ) (McKinney, Patrick) (Filed on 8/13/2007) (Entered: 08/13/2007)
31 MOTION to Shorten Time for Hearing on Motion for Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to be Filed Under Seal filed by A & F Management Co., Inc., Abercrombie & Fitch Stores, Inc., A & F California, LLC, A & F Ohio, Inc.. (Attachments: # 1 Signature Page (Declarations/Stipulations) Declaration of Thomas Ridgley re Motion to Shorten Time for Hearing on Motion for Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to Be Filed Under Seal# 2 Proposed Order Proposed Order re Shorten Time Motion)(McKinney, Patrick) (Filed on 8/13/2007) (Entered: 08/13/2007)
32 Reply Memorandum re 31 MOTION to Shorten Time for Hearing on Motion for Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to be Filed Under Seal filed byAbercrombie & Fitch Stores, Inc.. (Young, Douglas) (Filed on 8/17/2007) (Entered: 08/17/2007)
33 Declaration of Thomas B. Ridgley in Support of 32 Reply Memorandum, filed byAbercrombie & Fitch Stores, Inc.. (Related document(s) 32 ) (Young, Douglas) (Filed on 8/17/2007) (Entered: 08/17/2007)
34 ORDER. Signed by Judge Illston on 8/20/07. (ts, COURT STAFF) (Filed on 8/22/2007) (Entered: 08/22/2007)
35 Memorandum in Opposition re 29 MOTION Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to Be Filed Under Seal filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 8/24/2007) (Entered: 08/24/2007)
36 Proposed Order re 29 MOTION Order Directing Court Appointed Monitor's Annual Compliance Reports and Executive Summaries Thereof to Be Filed Under Seal by A & F Management Co., Inc., Abercrombie & Fitch Stores, Inc., A & F California, LLC, A & F Ohio, Inc.. (McKinney, Patrick) (Filed on 9/18/2007) (Entered: 09/18/2007)
37 ORDER by Judge Illston granting 162 Motion to file under seal annual complaince reports and to file executive summeries in public record(ts, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)

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09/20/2007 09/20/2007 09/21/2007 10/02/2007 05/23/2008 05/23/2008 07/25/2008 07/25/2008 07/25/2008
07/25/2008 08/01/2008 10/16/2008 10/16/2008 10/17/2008 11/04/2008
10/14/2009

38 STATUS REPORT Executive Summary of Court−Appointed Monitor's First Annual Compliance Report by A & F Management Co., Inc., Abercrombie & Fitch Stores, Inc., A & F California, LLC, A & F Ohio, Inc.. (McKinney, Patrick) (Filed on 9/20/2007) (Entered: 09/20/2007)
39 STATUS REPORT Executive Summary of Court−Appointed Monitor's Second Annual Compliance Report by A & F Management Co., Inc., Abercrombie & Fitch Stores, Inc., A & F California, LLC, A & F Ohio, Inc.. (McKinney, Patrick) (Filed on 9/20/2007) (Entered: 09/20/2007)
40 Court−Appointed Monitor's Second Annual Compliance Report by Fred W. Alvarez, Esq.. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 9/21/2007) (Entered: 09/21/2007)
41 Minute Entry: Further Case Management Conference held on 9/28/2007 before Illston (Date Filed: 10/2/2007). () (ts, COURT STAFF) (Date Filed: 10/2/2007) (Entered: 10/02/2007)
42 CLERK'S NOTICE Motion Hearing set for 8/15/2008 09:00 AM. (ts, COURT STAFF) (Filed on 5/23/2008) (Entered: 05/23/2008)
43 Declaration of Jahan Sagafi REVISED filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 5/23/2008) (Entered: 05/23/2008)
44 Memorandum in Opposition to Lead Counsel and EEOC's Appeal of Special Master's Decisions filed byAbercrombie & Fitch Stores, Inc.. (Young, Douglas) (Filed on 7/25/2008) (Entered: 07/25/2008)
45 Declaration of Thomas B. Ridgley in Support of 44 Abercrombie's Opposition to Lead Counsel and EEOC's Appeal of Special Master's Decisions (part 1 of 2) filed byAbercrombie & Fitch Stores, Inc.. (Young, Douglas) (Filed on 7/25/2008) Modified on 7/28/2008 (ys, COURT STAFF). (Entered: 07/25/2008)
46 Declaration of Thomas B. Ridgley in Support of 44 Abercrombie's Opposition to Lead Counsel and EEOC's Appeal of Special Master's Decision (part 2 of 2) filed byAbercrombie & Fitch Stores, Inc.. (Related document(s) 45 ) (Young, Douglas) (Filed on 7/25/2008) Modified on 7/28/2008 (ys, COURT STAFF). (Entered: 07/25/2008)
47 Proposed Order Denying Lead Counsel and EEOC's Appeal and Affirming Special Master's Decisions by Abercrombie & Fitch Stores, Inc.. (Young, Douglas) (Filed on 7/25/2008) (Entered: 07/25/2008)
48 Reply Memorandum in Support of Lead Counsel and EEOCs Appeal of Special Masters Decision Granting Defendants Motion To Dismiss Dispute Resolution and Enforcement Proceedings filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 8/1/2008) (Entered: 08/01/2008)
49 STATUS REPORT Manual Filing Notification re: Court−Appointed Monitor's Third Annual Compliance Report by Abercrombie & Fitch Stores, Inc.. (Young, Douglas) (Filed on 10/16/2008) (Entered: 10/16/2008)
50 STATUS REPORT Executive Summary of Court−Appointed Monitor's Third Annual Compliance Report by Abercrombie & Fitch Stores, Inc.. (Young, Douglas) (Filed on 10/16/2008) (Entered: 10/16/2008)
51 Court−Appinted Monitor's Third Annual Compliance Report by Abercrombie & Fitch Stores, Inc., A & F Ohio, Inc.. FILED UNDER SEAL(ys, COURT STAFF) (Filed on 10/17/2008) (Entered: 10/22/2008)
52 Minute Entry: Status Conference (Date Filed: 11/4/2008). The parties shall comply with all the terms of the decree. If necessary and in compliance with the decree, counsel may ask the Court for assistance if it has been determined that non−compliance has occurred. Counsel shall have their mid year meeting in February 2009.Counsel shall notify the Court when a further status conference is needed. () (ts, COURT STAFF) (Date Filed: 11/4/2008) (Entered: 11/04/2008)
53 STATUS REPORT Executive Summary of Court−Appointed Monitor's Fourth Annual Compliance Report by A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 7 of 9

10/14/2009 10/27/2009
12/20/2010 12/20/2010 01/14/2011 03/17/2011 03/17/2011 03/17/2011
03/17/2011 03/17/2011 03/17/2011 03/18/2011

& Fitch Stores, Inc.. (Attachments: # 1 Standing Order)(Young, Douglas) (Filed on 10/14/2009) (Entered: 10/14/2009)
54 NOTICE by A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie & Fitch Stores, Inc. Manual Filing Notification of Confidential Filing Under Seal of Court−Appointed Monitor's Fourth Annual Compliance Report (Attachments: # 1 Standing Order)(Young, Douglas) (Filed on 10/14/2009) (Entered: 10/14/2009)
55 Transcript of Proceedings held on 10−21−09, before Judge Susan Illston. Court Reporter/Transcriber Connie Kuhl, Telephone number 415−431−2020. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/22/2010. (ck, COURT STAFF) (Filed on 10/27/2009) (Entered: 10/27/2009)
56 ORDER granting (205) Administrative Motion to File Under Seal in case 3:03−cv−02817−SI (tf, COURT STAFF) (Filed on 12/20/2010) (Entered: 12/20/2010)
57 ORDER Status Conference set for 1/12/2011 04:00 PM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 12/20/2010) (Entered: 12/20/2010)
58 Minute Entry: Status Conference (Date Filed: 1/14/2011). (Court Reporter C. Triska.) (tf, COURT STAFF) (Date Filed: 1/14/2011) (Entered: 01/14/2011)
59 Ex Parte MOTION to Shorten Time filed by Willis E. Brown, IV, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Declaration of Jack W. Lee in Support of Ex Parte Motion for Order Shortening Time, # 2 Proposed Order Proposed Order Granting Motion for Order Shortening Time)(Gochanour, Gregory) (Filed on 3/17/2011) (Entered: 03/17/2011)
60 Ex Parte Application to File Documents Under Seal filed by Willis E. Brown, IV, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order Proposed Order Granting Ex Parte Motion to File Documents Under Seal, # 2 Affidavit Declaration of Bill Lann Lee in Support of Motion to Extend Consent Decree)(Gochanour, Gregory) (Filed on 3/17/2011) (Entered: 03/17/2011)
61 MOTION Extend the Consent Decree filed by Willis E. Brown, IV, U.S. Equal Employment Opportunity Commission. Motion Hearing set for 4/8/2011 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (Attachments: # 1 Affidavit Declaration of Bill Lann Lee in Support of Plaintiffs' Motion to Extend the Consent Decree (Exhibits 1−11), # 2 Proposed Order Proposed Order Granting Plaintiffs' Motion to Extend the Consent Decree)(Gochanour, Gregory) (Filed on 3/17/2011) (Entered: 03/17/2011)
62 ORDER granting (213) Ex Parte Application in case 3:03−cv−02817−SI (tf, COURT STAFF) (Filed on 3/17/2011) (Entered: 03/17/2011)
63 ORDER, Set/Reset Deadlines as to (214 in 3:03−cv−02817−SI) MOTION Extend the Consent Decree, (51 in 3:04−cv−04730−SI) MOTION Extend the Consent Decree, (61 in 3:04−cv−04731−SI) MOTION Extend the Consent Decree. Motion Hearing set for 4/8/2011 09:00 AM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 3/17/2011) (Entered: 03/17/2011)
COUNSEL IS REMINDED TO E.FILE THEIR SEALED DOCUMENTS Remark (tf, COURT STAFF) (Filed on 3/17/2011) (Entered: 03/17/2011)
64 DOCUMENT E−FILED UNDER SEAL re 56 Order on Administrative Motion to File Under Seal − Motion to Extend the Consent Decree by Willis E. Brown, IV, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Bill Lann Lee in Support of Plaintiffs' Motion to Extend the Consent Decree (Exhibits 1−11), # 2 Proposed Order Proposed Order Granting Motion to Extend the Consent Decree)(Gochanour, Gregory) (Filed on 3/18/2011) Modified on 3/21/2011 (ysS, COURT STAFF). (Entered: 03/18/2011)

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 8 of 9

03/18/2011 04/01/2011
04/01/2011 04/04/2011 04/04/2011 04/05/2011
04/07/2011 04/29/2011 04/29/2011 05/20/2011 06/06/2011

Set/Reset Deadlines as to 64 MOTION to Extend. Motion Hearing set for 4/8/2011 09:00 AM before Hon. Susan Illston. (ysS, COURT STAFF) (Filed on 3/18/2011) (Entered: 03/21/2011)
65 REPLY (re 64 MOTION, 61 MOTION Extend the Consent Decree ) Plaintiffs' Reply in Support of Motion to Extend the Consent Decree filed byWillis E. Brown, IV, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Declaration of Bill Lann Lee in Support of Plaintiff's Motion to Extend the Consent Decree, # 2 Exhibit 1 −To Declaration of Bill Lann Lee, # 3 Exhibit 2 −To Declaration of Bill Lann Lee, # 4 Exhibit 3 −To Declaration of Bill Lann Lee, # 5 Exhibit 4 −To Declaration of Bill Lann Lee)(Gochanour, Gregory) (Filed on 4/1/2011) (Entered: 04/01/2011)
66 Ex Parte Ex Parte Application to File Documents Under Seal filed by Willis E. Brown, IV, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order Granting Ex Parte Application to File Documents Under Seal)(Gochanour, Gregory) (Filed on 4/1/2011) (Entered: 04/01/2011)
67 ORDER granting (222) Ex Parte Application to file Declaration under seal in case 3:03−cv−02817−SI; granting (66) Ex Parte Application in case 3:04−cv−04731−SI; granting (56) Ex Parte Application in case 3:04−cv−04730−SI (COUNSEL E.FILE THE SEALED DOCUMENT AND PROVIDE CHAMBERS WITH A COURTESY COPY IMMEDIATELY) (tf, COURT STAFF) (Filed on 4/4/2011) (Entered: 04/04/2011)
68 ORDER Granting 66 Motion to File Under Seal (link sealed documents to this order) (tf, COURT STAFF) (Filed on 4/4/2011) Modified on 4/5/2011 (ys, COURT STAFF). (Entered: 04/04/2011)
69 DOCUMENT E−FILED UNDER SEAL re 68 Order Granting Motion to File Under Seal − Supplemental Declaration of Bill Lann Lee in Support of 44 , 61 Plaintiff's Motion to Extend the Consent Decree with Exhibits 1−4 by Willis E. Brown, IV, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 − to the Supplemental Declaration of Bill Lann Lee in Support of Plaintiff's Motion to Extend the Consent Decree, # 2 Errata 2 − to the Supplemental Declaration of Bill Lann Lee in Support of Plaintiff's Motion to Extend the Consent Decree, # 3 Exhibit 3 − to the Supplemenal Declaration of Bill Lann Lee in Support of Plaintiff's Motion to Extend the Consent Decree, # 4 Exhibit 4 − to the Supplemental Declaration of Bill Lann Lee in Support of Plaintiff's Motion to Extend the Consent Decree)(Gochanour, Gregory) (Filed on 4/5/2011) Modified on 4/6/2011 (ysS, COURT STAFF). (Entered: 04/05/2011)
70 ORDER granting in part and denying in part (61) Motion in case 3:04−cv−04731−SI; granting in part and denying in part (51) Motion in case 3:04−cv−04730−SI (tf, COURT STAFF) (Filed on 4/7/2011) (Entered: 04/07/2011)
71 MOTION To Modify Consent Decree and Partial Appeal of Special Master's Order filed by U.S. Equal Employment Opportunity Commission. Motion Hearing set for 6/3/2011 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (Attachments: # 1 Proposed Order)(Gochanour, Gregory) (Filed on 4/29/2011) (Entered: 04/29/2011)
72 Declaration of Bill Lann Lee in Support of 71 MOTION To Modify Consent Decree and Partial Appeal of Special Master's Order filed byU.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−11, # 2 Exhibit 12 Part 1 of 3, # 3 Exhibit 12 Part 2 of 3, # 4 Exhibit 12 Part 3 of 3)(Related document(s) 71 ) (Gochanour, Gregory) (Filed on 4/29/2011) (Entered: 04/29/2011)
73 REPLY (re 71 MOTION To Modify Consent Decree and Partial Appeal of Special Master's Order ) filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 5/20/2011) (Entered: 05/20/2011)
74 Minute Entry: Motion Hearing held on 6/3/2011 before Susan Illston (Date Filed: 6/6/2011) re (228 in 3:03−cv−02817−SI) MOTION To Modify Consent Decree and Partial Appeal of Special Master's Order filed by Patrice Douglass, Johan Montoya, Willis E. Brown, IV, Juancarlos Gomez−Montejano, Anthony Ocampo, Eduardo Gonzalez, Ivy Nguyen, Jennifer Lu, Carla Grubb, David Culpepper, Austin Chu, Angela Wu, Robair Sherrod, Encarnacion Gutierrez, Eric Fight, (71 in

Case: 3:04-cv-04731-SI As of: 02/24/2017 08:32 PM PST 9 of 9

06/23/2011 02/21/2012
02/27/2012 03/02/2012
03/05/2012 03/06/2012

3:04−cv−04731−SI) MOTION To Modify Consent Decree and Partial Appeal of Special Master's Order filed by U.S. Equal Employment Opportunity Commission. Matter submitted. The Court will issue a written order. (Court Reporter Kathy Wyatt.) (fj, COURT STAFF) (Date Filed: 6/6/2011) (Entered: 06/06/2011)
75 ORDER AFFIRMING SPECIAL MASTER'S DECISION (SI, COURT STAFF) (Filed on 6/23/2011) (Entered: 06/23/2011)
76 Administrative Motion to File Under Seal filed by A & F California, LLC, A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie & Fitch Stores, Inc.. (Attachments: # 1 Declaration of Scott Andrews, # 2 Declaration of Todd Corley, # 3 Proposed Order, # 4 Certificate/Proof of Service)(Andrews, Christopher) (Filed on 2/21/2012) (Entered: 02/21/2012)
77 ORDER by Judge Illston granting (235) Stipulation in case 3:03−cv−02817−SI (tfS, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
78 RESPONSE (re 76 Administrative Motion to File Under Seal ) Plaintiffs' Opposition to Defendants' Administrative Motion to File Under Seal filed byU.S. Equal Employment Opportunity Commission. (Gochanour, Gregory) (Filed on 3/2/2012) (Entered: 03/02/2012)
79 ORDER DENYING DEFENDANTS' ADMINISTRATIVE MOTION TO SEAL re 76 . (Illston, Susan) (Filed on 3/5/2012) Modified on 3/6/2012 (ysS, COURT STAFF). (Entered: 03/05/2012)
80 NOTICE by A & F California, LLC, A & F Management Co., Inc., A & F Ohio, Inc., Abercrombie & Fitch Stores, Inc. [NOTICE OF FILING EXPERT REPORT] (Attachments: # 1 Exhibit A)(Andrews, Christopher) (Filed on 3/6/2012) (Entered: 03/06/2012)