United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant. No. 01 Civ. 2112 (WHP). May 8, 2001.
Answer
Defendant Metropolitan Life Insurance Company (“MetLife” or “defendant”) by and through its attorneys, Proskauer Rose LLP, states in answer to the Complaint:
1. Defendant denies the allegations contained in Paragraph 1 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
2. Defendant denies the allegations contained in Paragraph 2 of the Complaint, except admits that MetLife is a financial services provider that sells individual insurance, annuities, investment products, group insurance, and retirement and savings financial products and derives its revenues primarily from the sale of those financial products and that MetLife provides insurance to individuals and corporations and other institutions in the United States.
3. Defendant denies the allegations contained in Paragraph 3 of the Complaint, except admits the allegations contained in the first and fourth sentences and admits that the compensation for Account Representatives/Financial Services Representatives is based, in part, on commissions made through the sale of MetLife insurance and financial products and that MetLife employs Account Representatives/Financial Services Representatives, many of whom work in agency offices throughout the country.
4. Defendant denies the allegations contained in Paragraph 4 of the Complaint, except admits that there is a second-line management position between Managing Director and Account Representative entitled Agency Director; that Managing Directors typically report to a Regional Vice President; that Regional Vice Presidents are responsible for several agencies within the region; that Regional Vice Presidents report to one of three Zone Vice Presidents, who are responsible, among other things, for several regions; that there are three zones, Atlantic, Northern and Western, in North America; and that the Zone Vice Presidents report to an Executive Vice President of MetLife.
5. Defendant denies the allegations contained in Paragraph 5 of the Complaint.
6. Defendant denies the allegations contained in Paragraph 6 of the Complaint, except admits that, currently, the three Zone Vice Presidents and all of the Regional Vice Presidents are male.
7. Defendant denies the allegations contained in Paragraph 7 of the Complaint.
8. Defendant denies the allegations contained in Paragraph 8 of the Complaint, except admits that plaintiffs purport to

proceed as stated therein.
9. Defendant denies the allegations contained in Paragraph 9 of the Complaint, except admits that plaintiffs purport to bring this action pursuant to the jurisdictional references.
10. Defendant denies the allegations contained in Paragraph 10 of the Complaint, except admits that plaintiffs purport to establish venue as alleged.
11. Defendant denies the allegations contained in Paragraph 11 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether Mitchell filed a second supplemental affidavit with the Equal Employment Opportunity Commission (“EEOC”), when she filed her charge, amended charge and purported second supplemental affidavit with the EEOC, whether she requested a Notice of Right to Sue and the location of her residence and admits that Mitchell has been employed by MetLife since July 1987 and has held the positions of Account Representative, Associate General Manager and Managing Director and that she filed a charge of discrimination and a second charge of retaliation with the EEOC.
12. Defendant denies the allegations contained in Paragraph 12 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when Gee filed her charge with the EEOC, whether she requested a Notice of Right to Sue and the location of her residence and admits that Gee has been employed by MetLife since 1986 and has held the positions of Account Representative and Associate General Manager and that she filed a charge of discrimination with the EEOC.
13. Defendant denies the allegations contained in Paragraph 13 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when LaChance filed her charge and amended charge with the EEOC, whether she requested a Notice of Right to Sue and the location of her residence and admits that LaChance filed a charge of discrimination with the EEOC and that she amended her charge.
14. Defendant denies the allegations contained in Paragraph 14 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether Persaud filed a charge of discrimination with the EEOC, when she purportedly filed her charge with the EEOC, whether she requested a Notice of Right to Sue and the location of her residence and admits that Persaud was employed by MetLife from 1993 to February 2001 as an Account Representative.
15. Defendant denies the allegations contained in Paragraph 15 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when Ramsey filed her charge with the EEOC and when she received her Notice of Right to Sue and admits that Ramsey has been employed by MetLife since June 1983 and has held the positions of Account Representative, Branch Manager and Managing Director, that she filed a charge of discrimination with the EEOC, that the EEOC issued her a Notice of Right to Sue dated February 26, 2001 and that this action was filed within ninety days from the date on the Notice of Right to Sue.
16. Defendant admits the allegations contained in Paragraph 16 of the Complaint.
17. Defendant denies the allegations contained in Paragraph 17 of the Complaint.
18. Defendant denies the allegations contained in Paragraph 18 of the Complaint, except admits that plaintiffs purport

to proceed and define the “Class” as stated therein.
19. Defendant denies the allegations contained in Paragraph 19 of the Complaint, except admits that plaintiffs purport to proceed and define the “New York State Subclass” as stated therein.
20. Defendant denies the allegations contained in Paragraph 20 of the Complaint, except admits that plaintiffs purport to proceed and define the “New York City Subclass” as stated therein.
21. Defendant denies the allegations contained in Paragraph 21 of the Complaint.
22. Defendant denies the allegations contained in Paragraphs 22-24 of the Complaint and states that plaintiffs have not met the requirements of Rule 23, F.R.Civ.P.
23. Defendant denies the allegations contained in Paragraphs 25-26 of the Complaint and states that class certification is not appropriate pursuant to Rule 23(b), F.R.Civ.P.
24. Defendant admits the allegations contained in Paragraph 27 of the Complaint.
25. Defendant denies the allegations contained in Paragraph 28 of the Complaint, except admits that MetLife hired Mitchell in 1987 as an Account Representative, that she worked in the Broadway Agency located in New York, New York, that in 1994 she was promoted from Account Representative/Associate Branch Manager of the Broadway Agency to Branch Manager of the Regency Agency located in New York, New York, that in 1996 she became the Agency Director of the Riverside Agency located in New York, New York, that in 1998 she became the Managing Director of the Madison Square Agency located in New York, New York and that in October 2000 she became an Account Representative, the position she currently holds.
26. Defendant denies the allegations contained in Paragraph 29 of the Complaint.
27. Defendant denies the allegations contained in Paragraph 30 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning whether Mitchell received the “Regional Leader of Exceptional Achievement, Mideastern Territory, Superbowl Recruiting Campaign” in January of 1995 and admits that between 1994 and 1996, Mitchell served as Managing Director of the Regency Agency and that two Account Representatives in the Regency Agency qualified for the Leader's Conference.
28. Defendant denies the allegations contained in Paragraph 31 of the Complaint, except admits that in 1996 the Regency Agency was merged with the Riverside Agency, that Mitchell was made an Agency Director of the Riverside Agency and that a man remained Managing Director of the Riverside Agency.
29. Defendant denies the allegations contained in Paragraph 32 of the Complaint, except admits that Mitchell received a “Behemoth” award and that in or about May 1998 Mitchell was made the Managing Director of the Madison Square Agency.
30. Defendant denies the allegations contained in Paragraph 33 of the Complaint, except admits that on or about October

13, 2000 the Madison Square Agency was abolished, that Mitchell became an Account Representative and that the Atlantic Zone Vice President is a man.
31. Defendant denies the allegations contained in Paragraph 34 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning when Mitchell filed an EEOC charge of discrimination and admits that on or about September 18, 2000 Mitchell sent an email addressed to the Atlantic Zone Vice President stating that she had filed a charge of discrimination with the EEOC.
32. Defendant denies the allegations contained in Paragraph 35 of the Complaint and all of its subparts.
33. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 36 of the Complaint, except admits that Mitchell filed a charge of discrimination and a charge of retaliation with the EEOC and that copies are attached to the Complaint.
34. Defendant denies the allegations contained in Paragraph 37 of the Complaint, except admits that Gee is female, holds the title of Functional Manager and works at the MetLife Garden City Financial Group located in Garden City.
35. Defendant denies the allegations contained in Paragraph 38 of the Complaint, except admits that in 1986 Gee was hired to work as an Account Representative in the Mitchell Garden Office in Lake Success, New York, that in 1995 she became a Sales Manager, that in 1998 she began working at the Hudson Agency Group in Brooklyn, New York and that in 1999 she began working at the Flushing Financial Center Agency.
36. Defendant denies the allegations contained in Paragraph 39 of the Complaint, except admits that in 1999 Gee began working at the Flushing Financial Center Agency.
37. Defendant denies the allegations contained in Paragraph 40 of the Complaint, except admits that in December 2000, the Flushing Financial Center Agency was closed.
38. Defendant denies the allegations contained in Paragraph 41 of the Complaint, except admits that, at some point, Gee was a “manager-in-training.”
39. Defendant denies the allegations contained in Paragraph 42 of the Complaint and all of its subparts.
40. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 43 of the Complaint, except admits that Gee filed a charge of discrimination with the EEOC and that a copy is attached to the Complaint.
41. Defendant denies the allegations contained in Paragraph 44 of the Complaint, except admits that LaChance works in the Compensation Unit located in Tampa, Florida as a Senior Staff Associate and that she has worked for MetLife for more than thirty years.
42. Defendant denies the allegations contained in Paragraph 45 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations in the third sentence and admits that from March

1976 to May 1977 LaChance worked as an Account Representative, in 1994 LaChance became the Regional Administrator for the Atlantic Coast Region, that such position was abolished in May 1999, that in May 1999 she commenced a disability absence and that in September 1999 she began working as a Senior Staff Associate in the Compensation Unit, her current position.
43. Defendant denies the allegations contained in Paragraph 46 of the Complaint, except admits that from March 1976 to May 1977 LaChance worked as an Account Representative.
44. Defendant denies the allegations contained in Paragraph 47 of the Complaint.
45. Defendant denies the allegations contained in Paragraph 48 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether LaChance had conversations with an “employee in MetLife management,” the substance of those purported conversations and how many purported conversations they had and whether LaChance spoke with the “National Director of Women's Recruiting” and the substance of their purported communications.
46. Defendant denies the allegations contained in Paragraph 49 of the Complaint and all of its subparts.
47. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 50 of the Complaint, except admits that LaChance filed a charge and amended charge of discrimination with the EEOC and that copies are attached to the Complaint.
48. Defendant denies the allegations contained in Paragraph 51 of the Complaint, except admits that Persaud began working as an Account Representative for MetLife in April 1993 and that she was transferred to the Long Island Agency in Lake Success, New York.
49. Defendant denies the allegations contained in Paragraph 52 of the Complaint.
50. Defendant denies the allegations contained in Paragraph 53 of the Complaint, except admits that in 1999 Persaud acquired the designation of certified financial planner, that in 1999 she qualified for Leader's Conference and that she never held the title of Functional Manager.
51. Defendant denies the allegations contained in Paragraph 54 of the Complaint.
52. Defendant denies the allegations contained in Paragraph 55 of the Complaint, except admits that effective May 1, 2000 Persaud was transferred to the Lake Success Financial Group in Lake Success, New York where she was an Account Representative until she left MetLife and that on or about May 12, 2000 Persaud met with the then Atlantic Zone Vice President, a man.
53. Defendant denies the allegations contained in Paragraph 56 of the Complaint, except admits that Persaud was terminated effective February 8, 2001, that in the Fall 2000 she went on disability leave and that she was informed in January 2001 that she was being terminated.

54. Defendant denies the allegations contained in Paragraph 57 of the Complaint and all of its subparts.
55. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 58 of the Complaint.
56. Defendant denies the allegations contained in Paragraph 59 of the Complaint, except admits that Ramsey is a female and that she was employed by MetLife for more than seventeen years.
57. Defendant denies the allegations contained in Paragraph 60 of the Complaint, except admits that Ramsey began working for MetLife as an Account Representative in 1983 at the Durham Agency in Durham, North Carolina, that in 1986 she became an Agency Manager, that she became Managing Director of the Triangle Agency, that in January 2000 she became an Agency Director and that in January 2001 she became a Financial Planner.
58. Defendant denies the allegations contained in Paragraph 61 of the Complaint, except admits that Ramsey has achieved production or other awards at MetLife, including Leader's Conference and Management Leader's Conference.
59. Defendant denies the allegations contained in Paragraph 62 of the Complaint, except admits that in January 2000 Ramsey became an Agency Director when her agency merged with another.
60. Defendant denies the allegations contained in Paragraph 63 of the Complaint, except admits that in January 2001 Ramsey became a Financial Planner.
61. Defendant denies the allegations contained in Paragraph 64 of the Complaint and all of its subparts.
62. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 65 of the Complaint, except admits that Ramsey filed a charge of discrimination with the EEOC, that she filed a charge of retaliation with the EEOC, that the Complaint was filed within 90 days of February 27, 2001 and that copies of her charge of discrimination and charge of retaliation are attached to the Complaint.
63. Defendant denies the allegations contained in Paragraph 66 of the Complaint.
64. Defendant denies the allegations contained in Paragraph 67 of the Complaint.
65. Defendant denies the allegations contained in Paragraph 68 of the Complaint and all of its subparts.
66. Defendant denies the allegations contained in Paragraph 69 of the Complaint.
67. Defendant repeats each of its answers to Paragraphs 1 through 69 as if fully set forth herein.
68. Defendant denies the allegations contained in Paragraph 71 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.

69. Defendant denies the allegations contained in Paragraph 72 of the Complaint.
70. Defendant denies the allegations contained in Paragraph 73 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether Ramsey received a Notice of Right to Sue from the EEOC.
71. Defendant denies the allegations contained in Paragraph 74 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
72. Defendant repeats each of its answers to Paragraphs 1 through 74 as if fully set forth herein.
73. Defendant denies the allegations contained in Paragraph 76 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
74. Defendant denies the allegations contained in Paragraph 77 of the Complaint.
75. Defendant denies the allegations contained in Paragraph 78 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning whether plaintiffs have filed a complaint with the State Division of Human Rights.
76. Defendant denies the allegations contained in Paragraph 79 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
77. Defendant repeats each of its answers to Paragraphs 1 through 79 as if fully set forth herein.
78. Defendant denies the allegations contained in Paragraph 81 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
79. Defendant denies the allegations contained in Paragraph 82 of the Complaint.
80. Defendant denies the allegations contained in Paragraph 83 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
81. Defendant denies the allegations contained in Paragraph 84 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
82. Defendant denies the allegations contained in Paragraph 85 of the Complaint.
83. Defendant denies the allegations contained in Paragraph 86 of the Complaint.

84. Defendant denies the allegations contained in Paragraph 87 of the Complaint.
85. Defendant denies the allegations contained in Prayer for Relief of the Complaint.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
86. The Complaint, in whole or in part, fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
87. The Complaint, in whole or in part, fails to state a claim upon which an award of compensatory damages, punitive damages and attorney's fees can be granted.
THIRD AFFIRMATIVE DEFENSE
88. The Complaint is barred, in whole or in part, by the applicable statutes of limitations and/or filing periods and/or by the failure to satisfy the statutory and/or administrative prerequisites to the bringing of an action under Title VII, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, New York Executive Law § 290, et seq., and Title 8 of the Administrative Code of the City of New York.
FOURTH AFFIRMATIVE DEFENSE
89. Plaintiffs, (individually, and/or any purported member of any purported class (hereinafter, for identification purposes only, referred to as “Plaintiffs”)) are not entitled to recover punitive damages on their claims of discrimination and retaliation because at all relevant times, including prior to the allegations that form the basis of plaintiffs' claims, defendant has engaged in good faith efforts to comply with all laws prohibiting discrimination in employment.
FIFTH AFFIRMATIVE DEFENSE
90. Plaintiffs' claims and the purported class claims are barred, in whole or in part, because their claims are beyond the scope of their administrative charges.
SIXTH AFFIRMATIVE DEFENSE
91. Plaintiffs' claims for monetary relief are barred, in whole or in part, by their failure to mitigate damages.

SEVENTH AFFIRMATIVE DEFENSE
92. Plaintiffs' claims are barred, in whole or in part, as the plaintiffs have elected their remedies.
EIGHTH AFFIRMATIVE DEFENSE
93. To the extent that defendant's actions were motivated, in part, by unlawful reasons (which defendant denies), defendant would have taken the same actions with respect to plaintiffs for legitimate, non-discriminatory reasons.
NINTH AFFIRMATIVE DEFENSE
94. Plaintiffs' claim for the recovery of punitive damages is in contravention of defendant's rights under each of the following provisions: (a) the Commerce Clause of Article I, Section 8 of the United States Constitution; (b) the Contracts Clause of Article 1, Section 10 of the United States Constitution; (c) the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution; (d) the Equal Protection of the laws afforded by the Fourteenth Amendment to the United States Constitution; (e) the Constitutional prohibition against vague and overbroad laws; and (f) the corresponding state constitutional provisions.
TENTH AFFIRMATIVE DEFENSE
95. Defendant's liability and penalties, if any, should be mitigated by virtue of the factors set forth is Section 8-107(13)(d) and (e) of the New York City Human Rights Law.
ELEVENTH AFFIRMATIVE DEFENSE
96. The Complaint is barred, in whole or in part, to the extent plaintiffs (or any member of any purported class) agreed to resolve their claims through final and binding arbitration.
TWELFTH AFFIRMATIVE DEFENSE
97. Plaintiffs' claims are barred, in whole or in part, by the applicable statute of frauds.
Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant. No. 01 Civ. 2112 (WHP). July 20, 2001.
Memorandum of Law in Support of Defendant's Motion for Disqualification of Lieff, Cabraser, Heimann & Bernstein, LLP
TABLE OF CONTENTS
TABLE OF AUTHORITIES ... ii
PRELIMINARY STATEMENT ... 1
STATEMENT OF FACTS ... 4
I. Allegations in the Complaint ... 4
II. Plaintiffs' Counsel ... 5
III. Wendy Fleishman's Representation of MetLife ... 5
IV. Ms. Fleishman's Unsuccessful Efforts to Obtain A Waiver of Ethical Objections Arising from Her Joining Lieff Cabraser ... 9
V. Lieff Cabraser's Position with Respect to Potential Ethical Improprieties ... 10
ARGUMENT ... 11
I. LIEFF CABRASER MUST BE DISQUALIFIED FROM REPRESENTING PLAINTIFFS BECAUSE OF THE PAST REPRESENTATION OF METLIFE BY ITS NEWLY ACQUIRED PARTNER ... 11
A. Applicable Ethical Standards ... 11
B. Lieff Cabraser's Representation of Plaintiffs Violates Canons 4, 5 and 9 ... 14

C. Disqualification of Lieff Cabraser by Virtue of Wendy Fleishman's Prior Representation of MetLife Is Not Avoided by Screening Ms. Fleishman from the Attorneys Directly Involved in this Litigation ... 19 CONCLUSION ... 25
TABLE OF AUTHORITIES CASES: Adams v. Lehrer McGovern Bovis, Inc., 208 A.D.2d 377, 617 N.Y.S.2d 9 (1st Dep't 1994) ... 22 Alicea v. AngelinaBencivenga, 270 A.D.2d 125, 704 N.Y.S.2d 578 (1st Dep't 2000) ... 14 Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991) ... 11, 15-16 Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903, 101 S. Ct. 1338 (1981) ... 13, 20, 21 Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132 (S.D.N.Y. 1995) ... 19, 21, 24-25 Dornberger, et al. v. Metro. Life Ins. Co., 182 F.R.D. 72 (S.D.N.Y. 1998) ... 6 Evans v. Artek Sys. Corp., 715 F.2d 788 (2d Cir. 1983) ... 15 Fernandez v. City of New York, No. 99 Civ. 0777, 2000 U.S. Dist. LEXIS 3503 (S.D.N.Y. Mar. 21, 2000) ... 17 Fields-D'Arpino v. Restaurant Assoc., Inc., 39 F. Supp. 2d 412 (S.D.N.Y. 1999) ... 21, 24 Gov't of India v. Cook Indus., Inc., 569 F.2d 737 (2d Cir. 1978) ... 25 In re Manshul Constr. Corp., No. 97 Civ. 4295, 1998 WL 405039 (S.D.N.Y. July 20, 1998) ... 14 In the Matter of Walden Federal Savs. & Loan Assoc., 212 A.D.2d 718, 622 N.Y.S.2d 796 (2d Dep't 1995) ... 14 Kassis v. Teacher's Ins. & Annuity Assoc., 93 N.Y.2d 611, 695 N.Y.S.2d 515 (1999) ... 22

Loomis v. Consol. Stores, Corp., No. 98 Civ. 8735, 2000 U.S. Dist. LEXIS 12391 (S.D.N.Y. Aug. 29, 2000) ... 15 Marshall v. New York State Div. of Police, 952 F. Supp. 103 (N.D.N.Y. 1997) ... 13, 21 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) ... 18 NCK Organization, Ltd. v. Bregman, 542 F.2d 128 (2d Cir. 1976) ... 13 Pastor v. TWA, Inc., 951 F. Supp. 27 (S.D.N.Y. 1996) ... 19 Red Ball Interior Demolition Corp. v. Palmadessa, 908 F. Supp. 1226 (S.D.N.Y. 1995) ... 15, 16 Robinson v. Metro-North R.R., Nos. 94 Civ. 7374/95 Civ. 8594, 2000 U.S. Dist. LEXIS 14240 (S.D.N.Y. Sept. 27, 2000), appeal filed, No. 00-9417 (2d Cir. 2000) ... 23 Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987) ... 14 Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975) ... 20 Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 610 N.Y.S.2d 128 (1994) ... 19 Steel v. Gen. Motors Corp., 912 F. Supp. 724 (D.N.J. 1995), aff'd, sub. nom., Cardona v. GMC, 942 F. Supp. 968 (D.N.J. 1996) ... 22 Trustco Bank New York v. Melino, 164 Misc. 2d 999, 625 N.Y.S.2d 803 (N.Y. Sup. Ct. Albany County 1995) ... 19 Ulrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992) ... 13, 16 United States Football League v. National Football League, 605 F. Supp. 1448 (S.D.N.Y. 1985) ... 15 United States v. Uzzi, 549 F. Supp. 979 (S.D.N.Y. 1982) ... 21, 24 Van Jackson v. Check 'N Go of Ill., Inc., 114 F. Supp. 2d 731 (N.D. Ill. 2000) ... 22 Yaretsky v. Blum, 525 F. Supp. 24 (S.D.N.Y. 1981) ... 21 STATUTES:

N.Y. Jud. Law § DR 5-105(D) (McKinney 1992) ... 13
N.Y. Jud. Law § DR 5-108A (McKinney 1992) ... 12, 14
OTHER AUTHORITY:
Lee A. Pizzimenti, Screen Virite: Do Rules About Ethical Screens Reflect the Truth About Real-Life Law Firm Practice, 52 U. Miami L. Rev. 305 (1997) ... 20
Monroe Freedman, The Ethical Illusion of Screening, Legal Times, Nov. 20, 1995 ... 23
Tom Morgan, Screening the Disqualified Lawyer: The Wrong Solution to the Wrong Problem, 10 U. Ark. Little Rock L.J. 37 (1987) ... 20, 23
PRELIMINARY STATEMENT
Plaintiffs, five present or former employees of Metropolitan Life Insurance Company (“MetLife”), brought this lawsuit alleging individual and class claims of employment discrimination against MetLife arising from their employment within the MetLife Financial Services division (“MLFS”) -- the division of MetLife that is responsible for selling its financial products, through account representatives who work at its agencies throughout the country. MetLife now moves to disqualify one of the two law firms representing plaintiffs -- Lieff, Cabraser, Heimann & Bernstein, LLP -- because shortly before this lawsuit was commenced, the firm knowingly recruited as a partner in its New York office an attorney who, for most of the preceding two years, represented MetLife in the defense of a series of individual and class claims which specifically implicated the activities of MLFS employees. Lieff Cabraser's continued representation of plaintiffs under these circumstances would violate several Canons of the New York Code of Professional Responsibility (“Code”), and no remedy short of disqualification will remove the potential prejudice to MetLife, let alone the undeniable appearance of impropriety that results from these ethical violations.
The facts and circumstances giving rise to this motion did not occur by chance. Lieff Cabraser invited the attorney in question -- Wendy Fleishman -- to join its partnership notwithstanding its knowledge that (i) Ms. Fleishman had engaged in the prolonged and substantial representation of MetLife while employed as Counsel at Skadden, Arps, Slate, Meagher & Flom LLP; and (ii) the Lieff Cabraser firm intended to serve as co-counsel in the instant suit against MetLife. Recognizing this obvious dilemma, Ms. Fleishman sought to obtain a waiver of conflicts resulting from her prior representation of MetLife; Lieff Cabraser nonetheless proceeded to commence this lawsuit against MetLife notwithstanding the failure to secure such a waiver.
That Ms. Fleishman was engaged in the virtually full-time representation of MetLife (often as lead counsel) immediately prior to her joining Lieff Cabraser is undisputed. In the course of that representation, Ms. Fleishman gained an intimate knowledge of MLFS that extended to virtually every aspect of its operations and the policies and procedures applicable to the employees within it. Much of this acquired knowledge was obtained through representation of (and/or interviews with) managerial and other employees of MetLife, as well as attorneys within the MetLife Law Department. As detailed more fully below, Ms. Fleishman gained, over the course of a two year period, and in part through numerous privileged communications and the revelation of client confidences, an intimate knowledge of the workings of the very MetLife division whose practices are at issue in this case. In the course of her representation of MetLife, Ms. Fleishman interviewed and/or defended numerous MLFS employees and managers, in the process gaining frank and candid assessments of their activities that only a senior defense counsel can learn in the course of privileged dialogue. And, in

the course of her representation of MetLife, Ms. Fleishman gained a unique perspective -- a window into MetLife's litigation and settlement strategy, and decision making processes -- that only a senior defense counsel can possess. In sum, there can be no legitimate dispute that Ms. Fleishman was privy to precisely the types of core client confidences that the Code deems sacrosanct and the preservation of which the Code compels.
MetLife's understandable anxiety over Ms. Fleishman's sudden appearance as a member of the firm now litigating against it is not alleviated, as a matter of law or fact, by Lieff Cabraser's purported efforts to screen her from the attorneys directly handling the litigation. Mindful of the mandate of the ethical rules to prevent any conceivable harm from the inappropriate use of confidential information, as well as the appearance of impropriety, the federal and state courts in New York have consistently rejected screening as a remedy where the facts and circumstances present tangible risks of disclosure, however inadvertent. Those risks are clearly presented here, in that: (i) Lieff Cabraser is a small firm; (ii) the Lieff Cabraser New York office -- where Ms. Fleishman works -- has only twelve lawyers (three of whom are assigned to this case); (iii) Ms. Fleishman works closely with one of the attorneys assigned to this case; and (iv) Ms. Fleishman has collaborated with several of the attorneys assigned to this case on the preparation of an amicus brief in a similar class action employment discrimination lawsuit.
In this environment, there is no foolproof way to screen Ms. Fleishman from all the dialogue concerning Mitchell that will inevitably pervade Lieff Cabraser's New York office, not to mention the myriad of depositions, document productions, in person and telephone conferences, brief preparations and the like that can be anticipated in this sizeable litigation, and that will undoubtedly be taking place in very close range of her and her office. Nor is there any way to monitor whether there has been disclosure, however inadvertent. In weighing the relative risks to, and burdens on, the parties, we respectfully submit that MetLife should not, under these unique facts, be asked to assume the substantial risks presented here. Lieff Cabraser invited Ms. Fleishman to join its partnership with its eyes open -- it could have elected not to do so, or it could have elected to forego its participation in this suit. MetLife should not be asked to bear the risk of the choices made by the Lieff Cabraser firm.
In short, both common sense and applicable law dictate that, rather than compel MetLife to continue to endure the risk of its defense being undermined by its own former lawyer, this Court should disqualify Lieff Cabraser and require that plaintiffs continue the prosecution of this lawsuit through its other counsel -- Outten & Golden LLP -- or through new counsel of their own choosing.
STATEMENT OF FACTS[FN1]
FN1. Except where otherwise indicated, this Statement of Facts is based on the Complaint, the documents referenced therein, communications between plaintiffs' counsel and defendant's counsel concerning the conflict-of-interest issues giving rise to this motion, and the affidavits submitted herewith. In presenting the information contained in the affidavits, MetLife's counsel has endeavored to provide the Court with sufficient information to evaluate the disqualification motion without revealing privileged information in the process.
I. ALLEGATIONS IN THE COMPLAINT
The Complaint was filed on March 13, 2001, nearly two months after Ms. Fleishman joined Lieff Cabraser. In addition to alleging individual claims of employment discrimination and retaliation on behalf of the five named plaintiffs, it purports to state class claims of gender discrimination against MetLife with respect to hiring, promotions, working conditions, job assignments, compensation, and other terms and conditions of employment, and of retaliation in response to complaints of discrimination. The class claims are asserted under Title VII on behalf of a purported class consisting of similarly situated past, present, and future female employees who have been employed within MLFS, denied employment opportunities within MLFS or who were deterred from applying for positions within MLFS since August 27, 1999. (Fagin Aff., Exh., A, ¶¶ 1, 7, 18-20) They are also asserted under the New York State Human Rights Law and the Administrative Code of the City of New York for those plaintiffs and purported class members employed, denied

employment opportunities or deterred from applying for positions within MLFS since March 13, 1998, in New York State and/or New York City.
II. PLAINTIFFS' COUNSEL
The Complaint identifies the law firms of Lieff Cabraser and Outten & Golden as plaintiffs' counsel. Although it is unclear when Lieff Cabraser's representation of plaintiffs commenced, Outten & Golden has been representing plaintiffs at least since the time certain of the plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Fagin Aff., Exh., A)
According to published materials, Lieff Cabraser is a fifty-attorney law firm with four national offices located in San Francisco, Boston, New York, and Nashville. Two of the four attorneys of the Lieff Cabraser firm who are identified in the Complaint as counsel of record, Rachel Geman and Leila K. Helal, work in the firm's New York office, which consists of approximately twelve attorneys. Richard T. Seymour, a Lieff Cabraser partner in the firm's New York office, has also appeared as an attorney of record on this matter. The other two Lieff Cabraser attorneys identified in the Complaint as counsel of record, James M. Finberg and Kelly M. Dermody, work in the firm's San Francisco office. (Fagin Aff., Exhs., A, B)
III. WENDY FLEISHMAN'S REPRESENTATION OF METLIFE
In January 2001, Wendy Fleishman, a 1977 graduate of Temple University School of Law with extensive legal experience with employment and class action issues, became a partner in the Lieff Cabraser firm in its New York office. Immediately before joining the firm, Ms. Fleishman held the position of Counsel in Skadden's New York office, where, for two full years preceding her departure from that firm, she performed substantial work, at a senior-level, on matters for MetLife. Skadden's billing records reflect that in calendar year 1999, Ms. Fleishman spent over 1,800 client billable hours representing MetLife in connection with almost fifty matters; and, in calendar year 2000, Ms. Fleishman spent over 1,540 client billable hours representing MetLife in connection with almost forty matters. (Sullivan Aff., ¶5)
Ms. Fleishman's senior-level representation of MetLife related primarily to the defense of claims concerning the conduct of employees in the MLFS field force, the same group in which the plaintiffs and the putative class members worked or applied to work. During the period in question, MetLife was defending numerous lawsuits -- including class actions -arising from claims that employees within the MLFS field force had engaged in improper practices with respect to their sale of MetLife financial products. One such litigation, for which Ms. Fleishman had primary responsibility (as of the latter part of 1998), was Dornberger, et al. v. Metro. Life Ins. Co., 182 F.R.D. 72 (S.D.N.Y. 1998) (Sand, J.), which in 1998 was certified as a class action on behalf of a class of thousands of MetLife overseas policyholders (and former policyholders) who had purchased MetLife whole life insurance policies.[FN2] (Sullivan Aff., ¶ 7; Elberg Aff., ¶ 7) In addition, Ms. Fleishman was responsible for representing MetLife in numerous other sales practices lawsuits. (Sullivan Aff., ¶ 10; Elberg Aff., ¶ 6; Seltzer Aff., ¶ 2; Finnegan Aff., ¶ 2)
FN2. Skadden's representation of MetLife in Dornberger commenced in October 1998, when the firm entered into an agreement (which continues to date) to serve as MetLife's national coordinating counsel for sales practices litigation. Prior to then, MetLife had been represented in Dornberger by Proskauer Rose LLP (“Proskauer”). Proskauer had conducted an extensive fact investigation with respect to the Dornberger matter, including the preparation of various memoranda and analyses based on numerous interviews with account representatives, managers and other MetLife officials. Ms. Fleishman had access to the totality of this work product. (Sullivan Aff., ¶ 8)

In connection with her representational activities, Ms. Fleishman represented, defended at deposition, and interviewed various employees (or former employees) in MLFS, including account representatives, managers, and other officials. Their job titles included, among others: Territorial Vice President, Regional Vice President, Regional Administrator, General Manager, Sales Manager, Branch Administrator, Director of Marketing and Training, Director of Territorial Sales, and Account Representative. (Sullivan Aff., ¶ 10; Finnegan Aff., ¶ 5; Seltzer Aff., ¶¶ 4, 6; Elberg Aff., ¶ 4) Several of these individuals would be members of the putative class in this action, while others had decision-making authority over plaintiffs or other members of the putative class. By way of example, a manager who supervised one of the named plaintiffs in this case, who is clearly a key witness with respect to plaintiffs' claims (and is listed in Plaintiffs' Initial Disclosure as a witness), was interviewed by Ms. Fleishman in the course of her representation of MetLife. (Fagin Aff., Exh., C)
In the course of her representation of MetLife in these numerous matters, Ms. Fleishman obtained confidential and privileged information concerning the operations of, and various policies and procedures pertaining to, the MLFS field force, including the evaluation of the performance of field force employees, both generally and specifically in connection with their alleged sales practices improprieties. This acquired knowledge included, among other things, detailed information regarding: • the procedures for hiring MetLife account representatives; • the procedures for training account representatives (and the materials used in connection therewith); • the procedures for supervising account representatives; • the organizational structure of MetLife's field force and changes in its organizational structure; • the products sold by account representatives; • the sales techniques and methods utilized by account representatives; • the sales literature and sales materials used by account representatives; • the regulatory environment in which account representatives operate and MetLife policies and procedures for monitoring regulatory compliance; • the internal audit system used for branches within MetLife's field system; • MetLife's ombudsman program and corporate ethics and compliance systems; • the intake, processing, review and investigation of customer complaints about account representatives (including access to numerous customer complaint files); • MetLife's response to, and supervisory action plans regarding customer complaints about account representatives; • policies and procedures regarding the discipline and termination of MetLife account representatives and managers in the field force; • the nature and extent of misconduct by account representatives and managers found to warrant (or not warrant) disciplinary action and documentation regarding disciplinary actions taken with respect to various members of the field force; • policies and procedures regarding the demotion of MetLife account representatives and managers in the field force; • the consolidation of agency branches within the field system; • performance expectations and procedures for performance measurement of account representatives and managers within the field force; and • personnel files and other documents maintained with respect to field force personnel. (Sullivan Aff., ¶ 12; Finnegan Aff., ¶¶ 5, 7; Seltzer Aff., ¶¶ 4, 5)
Because this information was obtained under the cloak of the attorney-client privilege, it was far more extensive -- and conceivably far more revealing -- than the objective information that would be provided in discovery between adverse parties.
On a broader level, Ms. Fleishman was routinely privy to highly confidential and privileged written and oral communications -- such as internal MetLife Law Department memoranda and legal and factual analyses -- concerning, among other things: the merits of various litigations; the valuation of the potential range of recoverable damages; settlement strategy and settlement structure; and MetLife's attitude toward the settlement of individual and class litigation. (Sullivan Aff., ¶ 11; Finnegan Aff., ¶¶ 4, 8; Seltzer Aff., ¶¶ 5-7; Elberg Aff., ¶ 6)

In short, Ms. Fleishman was privy to substantial information - much of it highly sensitive, privileged, and confidential -- relating both to the core issues of hiring, compensation, promotion, and demotion that are, according to the Complaint, central to this lawsuit, and to the Company's overall litigation and settlement strategies.
IV. MS. FLEISHMAN'S UNSUCCESSFUL EFFORTS TO OBTAIN A WAIVER OF ETHICAL OBJECTIONS ARISING FROM HER JOINING LIEFF CABRASER
In or about early January 2001, Ms. Fleishman called Kaiper Wilson, an officer of MetLife and an Associate General Counsel, to inform Ms. Wilson that she would be leaving Skadden to join Lieff Cabraser. Ms. Fleishman revealed that the Lieff Cabraser firm had a matter (which she described as a discrimination case) against MetLife and asked for a waiver of conflict-of-interest objections. Ms. Wilson responded at the time that she did not have the authority to grant any such waiver, and no waiver has since been provided by MetLife. (Wilson Aff., ¶¶ 5-7)
V. LIEFF CABRASER'S POSITION WITH RESPECT TO POTENTIAL ETHICAL IMPROPRIETIES
On April 17, 2001, MetLife's counsel sent a letter to Lieff Cabraser expressing its concern over the apparent conflict of interest that was presented by Ms. Fleishman's prior work for MetLife and her new relationship with Lieff Cabraser. (Fagin Aff., Exh., D) By letter dated April 25, 2001, Lieff Cabraser expressed the view that any ethical issues arising from Ms. Fleishman's activities were resolved by virtue of the fact that Ms. Fleishman had been screened... from the Mitchell litigation since the time of her arrival at the firm. (Fagin Aff., Exh., E) In an effort to demonstrate that screening measures would be effective, the letter also asserted that the partners responsible for the litigation had no involvement with Ms. Fleishman at all, and that, even though she had elsewhere been described by Lieff Cabraser as having extensive employment law experience (Fagin Aff., Exh., B), she was not handling any employment discrimination matters for the firm. (Fagin Aff., Exh., E) MetLife's counsel is aware, however, (without the benefit of any discovery on this issue) of an amicus brief prepared by Lieff Cabraser in another class action employment discrimination lawsuit, authored by Ms. Fleishman, together with four of the Lieff Cabraser attorneys handling the Mitchell lawsuit: Richard T. Seymour (a partner in Lieff Cabraser's New York office); Kelly M. Dermody and James M. Finberg (both of whom are partners in Lieff Cabraser's San Francisco office); and Rachel Geman (an associate in Lieff Cabraser's New York office). (Fagin Aff., Exh., F) Furthermore, we have also learned that Ms. Fleishman is part of a team of lawyers working on litigation involving Sulzer hip implants; this team includes Leila K. Hilal, one of the Lieff Cabraser New York office lawyers working on the Mitchell case. (Fagin Aff., Exh., B)
ARGUMENT
I. LIEFF CABRASER MUST BE DISQUALIFIED FROM REPRESENTING PLAINTIFFS BECAUSE OF THE PAST REPRESENTATION OF METLIFE BY ITS NEWLY ACQUIRED PARTNER
In light of the prior representation of MetLife by a partner of the firm, Lieff Cabraser's representation of plaintiffs violates Canons 4, 5, and 9 of the Code. These Canons, and the Disciplinary Rules enacted thereunder, operate in conjunction to disqualify a law firm from representing a party to a litigation where, as here, one of the firm's partners or associates previously represented an adverse party in substantially related matters. Furthermore, disqualification cannot be avoided through the use of screening mechanisms if, as will be the case here, the tainted attorney will continue to work in close proximity with the attorneys handling the litigation, and thus there is a discernable risk that screening measures may not be 100% effective.
A. Applicable Ethical Standards

A district court is responsible for supervising the members of its bar. In performing this task, district courts within the Second Circuit consult the guidelines for professional conduct set forth in the Code. See e.g., Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800, 803 (S.D.N.Y. 1991) (Mukasey, J.) (“This Circuit has reviewed attorney disqualification motions under Canon 4 of the Model Code of Professional Responsibility.”). The Code contains Canons, Ethical Considerations, and Disciplinary Rules. The Canons are statements that generally express the standards of conduct expected of attorneys in their interactions with the public and involvement with the legal system. The Ethical Considerations represent the aspirations toward which all lawyers should strive. Finally, the Disciplinary Rules are pronouncements of the minimum level of conduct below which no attorney can practice without becoming subject to disciplinary action. See Code of Professional Responsibility, Preliminary Statement (29 McKinney 1992).
Ethical Canons 4 and 5 address the protection of client confidences. Canon 4 provides that “A lawyer should preserve the confidences and secrets of a client.” Canon 5 provides that “A lawyer should exercise independent professional judgment on behalf of a client.” A corresponding Disciplinary Rule provides, in pertinent part: [A] lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure: (1) Thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. (2) Use any confidences or secrets of the former client except as permitted by DR 4-101 (C) or when the confidence or secret has become generally known. N.Y. Jud. Law § DR 5-108A (McKinney 1992).
Generally, the rule against successive representation “concerns itself with the unfair advantage that a lawyer can take of his former client in using adversely to that client information communicated in confidence in the course of the representation,” including “knowing what to ask for in discovery, which witnesses to seek to depose, what questions to ask them, what lines of attack to abandon and what lines to pursue, what settlements to accept and what offers to reject.” Ulrich v. Hearst Corp., 809 F. Supp. 229, 236 (S.D.N.Y. 1992) (Leval, J.).
Representation of a client who is adverse to a former client may also violate Canon 9, which admonishes lawyers to avoid even the appearance of impropriety. Cheng v. GAF Corp., 631 F.2d 1052, 1055-1056, 1059 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903, 101 S. Ct. 1338 (1981); Marshall v. New York State Div. of Police, 952 F. Supp. 103, 112 (N.D.N.Y. 1997) (in addition to conflict of interest, facts also establish unacceptable appearance of impropriety under Canon 9).
The prohibition on representing a client adverse to the interests of a former client extends to the tainted attorney's entire law firm. DR 5-105(D) provides, in relevant part: While lawyers are associated in a law firm, none of them shall knowingly accept or continue employment when any one of them practicing alone would be prohibited from doing so under ... DR 5-108(A) ... except as otherwise provided therein.
N.Y. Jud. Law § DR 5-105(D) (McKinney 1992). Significantly, the Rule makes no allowance for avoiding disqualification through the use of screening measures.[FN3]
FN3. New York's rules are, in this regard, consistent with those of most other states, which similarly do not recognize screening as a cure for ethical objections when a lawyer moves from one firm to another. See Lee A. Pizzimenti, Screen Virite: Do Rules About Ethical Screens Reflect the Truth About Real-Life Law Firm Practice, 52 U. Miami L. Rev. 305, n.30 (1997) (stating that only four states have promulgated rules allowing for screening).
Courts in this Circuit have frequently disqualified both the attorney with the conflict and the law firm at which that

attorney works, upon finding a violation of Canons 4, 5 and/or 9. See e.g., NCK Organization, Ltd. v. Bregman, 542 F.2d 128, 129 (2d Cir. 1976) (affirming disqualification of counsel for ethical violations under Canons 4 and 9); In re Manshul Constr. Corp., No. 97 Civ. 4295, 1998 WL 405039, at *6 (S.D.N.Y. July 20, 1998) (Batts, J.) (disqualification warranted under Canon 9 based on possibility that attorney, in her new representation against former client, may improperly use confidences gained in her representation of former client to his detriment); Rosman v. Shapiro, 653 F. Supp. 1441, 1446 (S.D.N.Y. 1987) (Sprizzo, J.) (disqualification of attorney based on “appearance of impropriety is so great, the Court in the exercise of its supervisory powers cannot allow the situation to go uncorrected”); see also Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 309, 610 N.Y.S.2d 128, 131 (1994) (considering disqualification of attorney for violation of Code of Professional Responsibility DR 4-101, DR 5-108 and Canon 9); Alicea v. AngelinaBencivenga, 270 A.D.2d 125, 704 N.Y.S.2d 578 (1st Dep't 2000) (relying on New York Code of Professional Responsibility DR 5-108(A) to disqualify counsel); In the Matter of Walden Federal Sav. & Loan Assoc., 212 A.D.2d 718, 719, 622 N.Y.S.2d 796, 797 (2d Dep't 1995) (same).
In sum, consistent with the Code, New York courts have routinely resorted to disqualification as a means to insure that a party is not subjected to any unfair disadvantage when one of its former lawyers joins a firm representing an adversary.
B. Lieff Cabraser's Representation of Plaintiffs Violates Canons 4. 5, and 9
Lieff Cabraser's representation of plaintiffs falls squarely within the prohibitions of Canons 4, 5 and 9. Indeed, the Canons are intended to prevent precisely the scenario that is presented here; a party to a litigation facing the specter of its defense being compmised by an opposing counsel who was privy to privileged and confidential information learned in the course of a prior attorney-client relationship.
Consistent with DR 4-101(B), the courts in this Circuit have applied the following three-part test to determine whether representation of a client that is adverse to a former client violates Canon 4: (1) The moving party is a former client of the adverse party's counsel; (2) There is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issue in the present lawsuit; and (3) The attorney whose disqualification is sought has access to, or was likely to have access to, relevant privileged information in the course of his prior representation of the client.
See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983); Loomis v. Consol. Stores, Corp., No. 98 Civ. 8735, 2000 U.S. Dist. LEXIS 12391, at *6 (S.D.N.Y. Aug. 29, 2000) (Sweet, J.); Red Ball Interior Demolition Corp. v. Palmadessa, 908 F. Supp. 1226, 1239 (S.D.N.Y. 1995) (Sweet, J.); United States Football League v. National Football League, 605 F. Supp. 1448, 1452 (S.D.N.Y. 1985) (Leisure, J.). Since there is no question that Ms. Fleishman represented MetLife, and that she was privy to confidential and privileged communications in the course of that representation, the only question, for purposes of determining whether Canon 4 is implicated here, is whether there is a “substantial relationship” between the subject matter of Ms. Fleishman's prior representation of MetLife and the issues in the present lawsuit.
The courts are particularly inclined to find the “substantial relationship” test satisfied where, by virtue of the prior relationship, the attorney became privy to confidential information or knowledge which provides a litigation advantage that would not otherwise be available. See, e.g., Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800, 804 (S.D.N.Y. 1991) (Mukasey, J.) (matters are substantially related if the attorney gained an advantage from a prior relationship otherwise not available, even if the advantage only concerned background issues).
For example, in Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992), an attorney was disqualified from representing three former Hearst employees in their employment discrimination claims against the company, based on

the court's determination that the attorney's former representation of Hearst afforded him “continuous access” to confidential information that was closely linked to issues that were relevant to the current employment discrimination litigations. Id. at 233. Specifically, the court found that, even though the attorney did not handle any claims involving the three plaintiffs, he had extensive experience with Hearst's performance evaluation process, and thus had knowledge of general performance levels of other employees against whom plaintiffs would be measured. The court concluded that this experience presented a “clear likelihood that confidential information imparted to the attorney by the former client will be used against the interests of [the] former client,” and thus required disqualification. Id. at 236.
The Court in Red Ball Interior Demolition Corp., 908 F. Supp. at 1244, was similarly concerned with preventing the use of insights gained by counsel through his previous representation of an adverse party. In Red Ball, a civil action for breach of fiduciary duty, the attorney (Horwitz) was disqualified from representing defendant Palmadessa because he had previously represented plaintiff Red Ball in a criminal proceeding. Although the Court recognized that the questions of law and fact were different in the civil action and the criminal proceeding, it found disqualification was proper because the witnesses, testimony, and other evidence germane to each action were likely to overlap. Furthermore, the Court stated, “even taking [defendant's] contentions that Horowitz gained no knowledge during his past representation of Red Ball as true, the fact that Horowitz had at least some access to such facts and witnesses presents enough of an appearance of a conflict of interest to meet the successive representation test and to warrant disqualification.” Id. at 1245. See also Fernandez v. City of New York, No. 99 Civ. 0777, 2000 U.S. Dist. LEXIS 3503, at *3-4 (S.D.N.Y. Mar. 21, 2000) (Chin, J.) (law firm disqualified from representing plaintiff in false arrest and malicious prosecution case because there was a reasonable likelihood that firm's earlier representation of defendant in investigation by Internal Affairs Bureau of off-duty employment by defendant resulted in acquisition of confidential information and could be useful to plaintiff).
These decisions demonstrate that the substantial relationship test is readily satisfied here because, as a senior-level attorney for MetLife, Ms. Fleishman became intimately familiar with information that will have a direct bearing on the outcome of the individual and class claims. As discussed more fully above, in the course of over 3,300 hours spent representing MetLife in the two years immediately preceding her joining Lieff Cabraser, Ms. Fleishman became fully conversant with virtually all aspects of the operations of MLFS, including the procedures for hiring, compensating, training, evaluating, disciplining, and terminating account representatives and/or managers within MLFS. (Sullivan Aff., ¶ 12; Finnegan Aff., ¶ 5; Seltzer Aff., ¶¶ 4, 5) Having obtained information in the course of attorney-client privileged communications, her knowledge includes confidential information that would not otherwise be discoverable, and thus could significantly compromise MetLife's defense. To cite just one obvious example: Ms. Fleishman would be uniquely able to offer strategies for challenging the non-discriminatory reasons offered by MetLife for allegedly discriminatory employment practices.[FN4] Furthermore, having interviewed and defended at deposition several of the witnesses who might offer these explanations (including, among others, the former manager of one of the named plaintiffs (Fagin Aff., Exh., C)), Ms. Fleishman would be privy to confidential information that could serve to challenge credibility; to prepare cross-examination; and to otherwise seek to challenge explanations of management determinations that are at issue.
FN4. Under the three-part test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), upon a showing by plaintiff of a prima facie case of discrimination, the burden of production shifts to MetLife to articulate a nondiscriminatory reason for the challenged conduct. The burden then shifts to plaintiff to demonstrate pretext.
On a broader level, as a senior member of MetLife's defense team, Ms. Fleishman has had confidential and privileged exchanges with several of the principal decision makers within MetLife, during which she became privy to their strategic thinking on litigation issues such as settlement, discovery, and class actions. On the basis of those discussions, she can reach informal judgments, in advance, regarding the effectiveness of contemplated strategies and can anticipate MetLife's reactions thereto. This acquired knowledge thus likewise creates the risk of unfair advantage that Canons 4 and 5 were designed to prevent.
In short, the similarity and overlap between the issues confronted by Ms. Fleishman in her prior representation of MetLife

and those issues that will be, or likely will be, confronted in this lawsuit satisfy the “substantial relationship” test. Put simply, Ms. Fleishman possesses information about MLFS -- its employees; its managers; its operations; and its policies -- that an adversary has no right to know. Access to this information disqualifies her from representing plaintiffs in this action and, by virtue of DR 5-105(D), disqualifies her law firm as well.
C. Disqualification of Lieff Cabraser by Virtue of Wendy Fleishman's Prior Representation of MetLife Is Not Avoided by Screening Ms. Fleishman from the Attorneys Directly Involved in this Litigation
Lieff Cabraser's defense of its decision to proceed with the representation of plaintiffs, notwithstanding its recruitment of Ms. Fleishman as a partner prior to this suit being brought, ultimately rests on its assertion that any ethical improprieties are cured by screening measures that were adopted before Ms. Fleishman joined the firm. First, “screening” is never mentioned in the Code as an antidote for an otherwise permissible representation. Indeed, the only mention of screening in the Code relates to former government lawyers. New York Code of Professional Responsibility DR 9-101(B)(1). The absence of any mention of screening in other situations involving impermissible successive representations is telling and itself makes plain the clear stance of the Code with respect to this issue. Second, the applicable authorities in this Circuit, as well as in New York,[FN5] hold that such screening measures will not prevent disqualification, particularly where the facts and circumstances present a discernable risk that the screening will not serve its intended goal of eliminating any risk of ethical violations, the inappropriate use or disclosure of confidential information, and/or the appearance of impropriety.[FN6]
FN5. New York State authorities are particularly relevant since this disqualification motion ultimately turns on an evaluation of the Code. See Pastor v. Trans World Airlines, Inc., 951 F. Supp. 27, 30 (S.D.N.Y. 1996) (Glasser, J.); Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132, 136 n. 4, 140 n. 9-10 (S.D.N.Y. 1995)(Koeltl, J.). Furthermore, plaintiffs are proceeding with claims under the New York State and City Human Rights Law which, in the absence of Title VII claims, would be adjudicated in the New York state courts, where screening measures have consistently been met with skepticism and disapproval. See, e.g. Solow v. W.R Grace & Co., 83 N.Y.2d 303, 313, 610 N.Y.S.2d 128, 135 (1994) (“If an attorney has represented a client in an earlier matter and then attempts to represent another in a substantially related matter which is adverse to the interests of the former client, the presumption of disqualification is irrebuttable.”); Trustco Bank New York v. Melino, 164 Misc. 2d 999, 1004-1006, 625 N.Y.S.2d 803, 807-808 (N.Y. Sup. Ct. Albany County 1995) (“the impermeability of a Chinese Wall [is not] an attainable concept.”).
FN6. The scholarly authorities on the subject also state that screening should be rejected where, as here, the tainted attorney had an extensive relationship with the former client. See Lee A. Pizzimenti, Screen Virite: Do Rules About Ethical Screens Reflect the Truth About Real-Life Law Firm Practice, 52 U. Miami L. Rev. 305, 334 (1997) (stating that screens are particularly inappropriate where the tainted lawyers had a material role in representing their former client); Tom Morgan, Screening the Disqualified Lawyer: The Wrong Solution to the Wrong Problem, 10 U. Ark. (Little Rock) L.J. 37, 52-53 (1987) (concluding that screening was appropriate only if the tainted lawyer realistically did not receive significant confidential client information (an approach which was utilized by the Second Circuit in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975)).
The Second Circuit has recognized that, “[i]f after considering all of the precautions taken by the [ ] firm whose disqualification is sought this Court still harbors doubts as to the sufficiency of these preventive measures, then we can hardly expect [the former client] or members of the public to consider the attempted quarantine to be impenetrable.” Cheng v. GAF Corp., 631 F.2d 1052, 1058 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903, 101 S. Ct. 1338 (1981). Based on this reasoning, the Cheng Court ruled that disqualification was necessary to “guard against the inadvertent use of confidential information,” notwithstanding the fact that: a screen had been implemented preventing the tainted attorney from any involvement in litigation against that attorney's previous client; the tainted attorney worked in a department separate from the one in which the case at issue was being handled; and the firm had submitted affidavits

attesting that the tainted attorney had not worked on the matter and that he had not disclosed any confidential information or discussed the merits of the action with colleagues. Id. at 1057.
In concluding that disqualification was warranted, the Cheng Court was particularly influenced by the fact that the law firm in question was a thirty-five attorney firm, twenty-one of whom worked in the same office. Under those circumstances, the Court found that there was an unacceptable risk that the tainted attorney would unintentionally or inadvertently transmit information he gained through his prior representation of the former client. Id. at 1058. See also Fields-D'Arpino v. Restaurant Assoc., Inc., 39 F. Supp. 2d 412, 417 (S.D.N.Y. 1999) (Pauley, J.) (screening procedures must be examined closely and rejected if any doubt as to their efficacy remains); see also United States v. Uzzi, 549 F. Supp. 979, 984 (S.D.N.Y. 1982) (Sand, J.) (finding that “where the former client's secrets and confidences are threatened, the former client is entitled to the prophylactic protection of law firm disqualification”).
Relying on Cheng, in Decora v. DW Wallcovering, Inc., 899 F. Supp. 132, 140 (S.D.N.Y. 1995) (Koeltl, J.) the District Court disqualified counsel for defendants despite the firm's implementation of screening measures designed to isolate the tainted associate -- who had previously represented plaintiff in another action while with a different law firm -- from all communications relating to the case. The court reasoned that the relatively small size of the firm -- forty-four attorneys in total -- and the associate's close working relationship with other attorneys in the department, created an unreasonable risk of disclosure.[FN7] Id. at 140-141.
FN7. Although the Decora court considered the fact that screening measures had not been implemented from the outset of the litigation, the court's decision was clearly influenced by the above-referenced factors. Id. at 141.
Numerous other federal and state courts in New York similarly have been persuaded that disqualification was warranted because of the relatively small size of the firm in question. See Marshall v. State of New York Div. of Police, 952 F. Supp. 103, 112 (N.D.N.Y. 1997) (the size of the 15 lawyer firm “raises doubts that even the most stringent screening mechanisms could have been effective in this case”); Yaretsky v. Blum, 525 F. Supp. 24, 30 (S.D.N.Y. 1981) (Motley, J.) (court “very skeptical about the efficacy of any screening procedures” where tainted attorney is part of an office of fewer than 30 lawyers and interacts on a daily basis with the people from whom the tainted attorney is screened from disclosing confidences of his former client); Kassis v. Teacher's Ins. & Annuity Assoc., 93 N.Y.2d 611, 618, 695 N.Y.S.2d 515, 519 (1999) (26 attorney law firm disqualified despite the implementation of screening measures); Adams v. Lehrer McGovern Bovis, Inc., 208 A.D.2d 377, 617 N.Y.S.2d 9 (1st Dep't 1994) (“Regardless of the best efforts of the attorneys involved, the erection of an adequate internal barrier to prevent the possibility that confidential information concerning defendant could inadvertently flow from defendant's former counsel to the other attorneys at her new firm during the litigation of this ongoing matter is simply not possible, in light of the small size of the new firm, which employs only four attorneys.”); see also Van Jackson v. Check 'N Go of Ill., Inc., 114 F. Supp. 2d 731, 733 (N.D. Ill. 2000) (“The small size of the firm also weighs heavily against an effective screen. Although K&D does not explain the structure of the firm, it cannot have the formal divisions of large firms which often help facilitate a successful Chinese Wall. In such a small firm, it is questionable whether a screen can ever work.”); Steel v. Gen. Motors Corp., 912 F. Supp. 724, 744 (D.N.J. 1995) (“Often a law firm will attempt to use screening measures to obviate a conflict of interest. This is not appropriate in this case. First, the smaller the firm, the less likely such screening measures will be effective. In several cases, courts have disapproved of screening measures,” aff'd, sub. nom., Cardona v. GMC, 942 F. Supp. 968 (D.N.J. 1996) (citations omitted)).
Here as well, and for similar reasons, screening measures must be rejected as a means to avoid disqualification because they do not -- and cannot -- provide adequate assurances that conflict-of-interest concerns will be avoided. Even without taking any discovery on the issue, we know that Ms. Fleishman has already actively collaborated with the lawyers involved in the Mitchell case in a matter with direct relevance to this case, by participating in the drafting of an amicus brief in a significant class action, employment discrimination lawsuit (involving class action issues that will undoubtedly present themselves in this case). Robinson v. Metro-North Commuter R.R., Nos. 94 Civ. 7374/95 Civ. 8594, 2000 U.S.

Dist. LEXIS 14240 (S.D.N.Y. Sept. 27, 2000), appeal filed, No. 00-9417 (2d Cir. 2000). We also know, again without taking any discovery, that Ms. Fleishman is actively working with at least one of the Lieff Cabraser lawyers assigned to the Mitchell case on another extensive matter. (Fagin Aff., Exh., B) There is nothing surprising about this; given the size of the Lieff Cabraser firm generally (and its New York office in particular), Ms. Fleishman's experience and credentials as a class action litigator, and the large number of Lieff Cabraser lawyers working on the Mitchell case, there is every reason to believe that her contact with Lieff Cabraser lawyers working on the Mitchell case has extended -- and will extend -- beyond these two matters of which we have knowledge. In sum, there is simply no way to remove the risk that Ms. Fleishman will come into contact with one or more of the attorneys assigned to this litigation and the concomitant risk of disclosure -- inadvertent or otherwise -- of MetLife client confidences. Under these circumstances, it is patently unfair for MetLife to bear this enduring risk throughout the pendency of what may very well be a lengthy litigation.[FN8]
FN8. See Tom Morgan, Screening the Disqualified Lawyer: The Wrong Solution to the Wrong Problem, 10 U. Ark. (Little Rock) L.J. 37, 54 (1987) ( “The problem with [screening] ... is simply that a client can often never know for sure when or whether his confidence has been abused. That the trustworthy must suffer for the sins of the rest is unfortunate, but client confidence must be the key.”); Monroe Freedman, The Ethical Illusion of Screening, Legal Times, Nov. 20, 1995 (“The traditional conflict-of-interest rules on switching sides were designed to protect the former clients' confidences, even at the expense of reducing lawyers' employment [sic] mobility. The evasion of these rules through screening jeopardizes client confidences in order to increase lawyers' job opportunities. This, of course, makes a monkey of the claim that the law is a profession and not a business.... We can only hope that screening is an idea whose time has come to nothing.”).
The text of the Code, the policy interests underlying the ethical rules pertaining to client confidences and the appearance of impropriety, and the underlying equities, all compel the conclusion that, rather than causing MetLife to endure the risk that screening measures will not be 100% effective, responsibility should be placed with those who created the conflict situation in the first place. As discussed above, this conflict did not arise inadvertently, or after the fact. Before the lawsuit was commenced, Lieff Cabraser was on notice of the nature and extent of Ms. Fleishman's prior representation of MetLife. Lieff Cabraser must have been aware that Ms. Fleishman sought -- but failed to receive -- a waiver from MetLife of the obvious conflict. Accordingly, the Lieff Cabraser firm had the opportunity to reconsider its offer of partnership to Ms. Fleishman, and had the opportunity -- before this suit was brought -- to withdraw from this representation. They chose to do neither, to the detriment of their former client. Furthermore, disqualification is unlikely to materially prejudice plaintiffs since the litigation is at the earliest Stages,[FN9] and plaintiffs can continue to be represented by the Outten firm. See, e.g., Field-D'Arpino v. Restaurant Assoc., Inc., 39 F. Supp. 2d 412, 415 n.3 (S.D.N.Y. 1999) (Pauley, J.) (finding “that the disruption and delay attendant to displacing an attorney of record is mitigated here because discovery has not begun”); United States v. Uzzi, 549 F. Supp. 979, 984 (S.D.N.Y. 1982) (Sand, J.) (observing that “neither the defendant nor challenged counsel have a considerable investment in the retention in this proceeding”); Decora v. DW Wallcovering, Inc., 899 F. Supp. 132, 141-1422 (S.D.N.Y. 1995) (Koeltl, J.) (reasoning that because plaintiff moved for disqualification at the outset of the litigation, defendants did not lose the benefit of longtime counsel's specialized knowledge of its operations and did not incur an unduly burdensome loss of time and money in being compelled to retain new counsel (citing Gov't. of India v. Cook Indus., Inc., 569 F.2d 737, 739 n.11 (2d Cir. 1978)). Surely, whatever harm to plaintiffs would result from disqualification is outweighed by the risks posed to MetLife, the clear appearance of impropriety, and the infringement on the policies underlying the Code if disqualification were not ordered.
FN9. The discovery that has taken place thus far has been with the express understanding between counsel that it will not prejudice the arguments made in this motion.
CONCLUSION
For the foregoing reasons, MetLife's motion for the disqualification of Lieff, Cabraser, Heimann & Bernstein, LLP should be granted.

Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant. No. 01-CV-2112 (WHP). August 10, 2001.
Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Disqualification of Lieff, Cabraser, Heimann & Bernstein, LLP
TABLE OF CONTENTS
I. INTRODUCTION ... 1
II. PROCEDURAL BACKGROUND ... 1
III. FACTUAL BACKGROUND ... 2
A. The Issues Raised By Mitchell ... 2
B. Fleishman's Unrelated Work at Skadden, Arps ... 3
C. Lieff, Cabraser Firm Structure ... 6
D. Management and Staffing of the Mitchell Case ... 8
E. Fleishman's Lack of Involvement in Employment Matters at Lieff, Cabraser ... 8
F. Lieff, Cabraser Has Maintained A Thorough and Sophisticated Ethical Wall ... 9
IV. ARGUMENT ... 11
A. Motions to Disqualify Counsel Are Disfavored in the Second Circuit ... 11
B. Defendant Has Failed to Demonstrate That The Relationship Between The Prior and Current Representations Is “Substantially Similar” ... 12

C. Canon 9 is Inapplicable Because There is Neither Actual Nor Apparent Impropriety Here ... 21 D. In The Alternative, If the Court Determines that Wendy Fleishman Should Be Disqualified, it Would be Unnecessary to Disqualify the Entire Lieff, Cabraser Firm Due to the Firm's Comprehensive Screening Procedures mechanism ... 22 V. CONCLUSION ... 25
TABLE OF AUTHORITIES CASES Beck v. Bd. of Regents, 568 F. Supp. 1107 (D. Kan. 1983) ... 15, 16 Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991) ... 17, 18, 21 Cheng v. GAF Corp., 631 F.2d 1052 (2d. Cir. 1980), vacated, 450 U.S. 903 (1981) ... 22 Cohen v. Acorn Int'l, 921 F. Supp. 1062 (S.D.N.Y. 1995) ... 21 Cular v. Metropolitan Life Ins. Co., Case No. CV95-5250 ... 6, 19 Evans v. Artek Sys. Corp., 715 F.2d 788 (2d. Cir. 1983) ... 11, 13 Fernandez v. City of New York, 2000 WL 297175 (S.D.N.Y. March 21, 2000) ... 17, 18 Fields-D'Arpino v. Restaurant Assoc., Inc., 39 F. Supp. 2d. 412 (S.D.N.Y. 1999) ... 11, 23, 24 Government of India v. Cook Indus., Inc., 569 F.2d 737 (2d Cir. 1978) ... 11, 13 In re Manchul Constr. Corp., 1998 WL 405039 ... 22 Kassis v. Teacher's Ins. and Annuity Assoc., 93 N.Y.2d 611 N.Y.S.2d 515 (1999) ... 23 Matthews v. LeBoeuf, Lamb, Greene & MacRae, 902 F. Supp. 26 (S.D.N.Y. 1995) ... 15 NCK Org'n, Ltd. v. Bregman, 542 F.2d 128 (2d. Cir. 1976) ... 12, 22

Red Ball Interior Demolition Corp. v. Palmadessa, 908 F. Supp. 1226 (S.D.N.Y. 1995) ... 17
Renz v. Beeman, 1989 WL 16062, *8 (N.D.N.Y. Feb. 21, 1989) ... 13, 20
Robinson v. Metro-North Commuter Railroad Co., Docket No. 00-9417 (2d Cir.) ... 8
Rosewood Apartments Corp. v. Perpignano, 2000 WL 145982, * 3 (S.D.N.Y. Feb. 7, 2000) ... 11-13
Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987) ... 21, 22
Silver Chrysler Plymouth, Inc. v. Chrysler Motors Co., 518 F.2d 751 (2d. Cir. 1975), overruled on other grounds in Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980), vacated, 449 U.S. 1106 (1981) ... 13
Society for Good Will to Retarded Children, Inc. v. Carey, 466 F. Supp. 722 (E.D.N.Y. 1979) ... 21
Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992) ... 17
Vestron v. National Geographic Soc., 750 F. Supp. 586 (S.D.N.Y. 1990) ... 13, 14
I. INTRODUCTION
Plaintiffs submit this Memorandum and supporting papers[FN1] in opposition to defendant's motion to disqualify Lieff, Cabraser, Heimann & Bernstein (“Lieff, Cabraser”) from serving as plaintiffs' co-counsel in their gender discrimination class action against Metropolitan Life Insurance Company, Inc. (“MetLife” or “defendant”). As described below, the determination of this motion requires a fact-intensive analysis. However, in reviewing the facts, it is clear that defendant has failed to meet its high burden of demonstrating that this lawsuit is “substantially similar” to MetLife matters on which a current Lieff, Cabraser attorney, who is not assigned to the Mitchell matter, worked during her tenure with another firm. Accordingly, for the reasons described below, defendant's motion should be denied.
FN1. Filed together with this Memorandum of Law are Declarations from Kelly M. Dermody, Rachel Geman, Leila K. Hilal, Richard T. Seymour, Steven M. Tindall, and Charles W. Wolfram, and the Affirmation of Wendy R. Fleishman, referred to, respectively, as Dermody Decl., Geman Decl., Hilal Decl., Seymour Decl., Tindall Decl., Wolfram Decl., and Fleishman Aff.
II. PROCEDURAL BACKGROUND
On April 17, 2001, defendant contacted plaintiffs' counsel requesting information about attorney Wendy R. Fleishman (“Fleishman”) and the ethical screens utilized at Lieff, Cabraser. Dermody Decl., ¶ 11. Plaintiffs promptly responded, setting forth the details of the ethical screen employed by Lieff, Cabraser and noting that the Lieff, Cabraser conflicts attorneys have informed plaintiffs that “Ms. Fleishman has never represented MetLife in any employment discrimination matter, or in any manner substantially related to any employment discrimination matter.” Def. Br., Fagin Aff., Ex. E.[FN2]
FN2. The Memorandum of Law in Support of Defendant's Motion for Disqualification of Lieff, Cabraser,

Heimann & Bernstein, LLP is referred to as “Def. Br.”
Approximately one month later, the parties engaged in a pre-motion exchange of letters to this Court. Despite the information readily provided by Lieff, Cabraser in response to defendant's inquiry and letters, defendant continued to pursue its motion, to which plaintiffs herein respond.
III. FACTUAL BACKGROUND
The relevant facts for the purposes of this motion involve (1) the issues raised by Mitchell; (2) the work Fleishman performed at Skadden; (3) Fleishman's work at Lieff, Cabraser; (4) the Lieff, Cabraser firm structure and ethical wall separating Fleishman from MetLife matters; and (5) the staffing of Mitchell. This section sets forth the pertinent facts in each of these areas.
A. The Issues Raised By Mitchell.
Plaintiffs filed their class action complaint against MetLife on March 13, 2001. MetLife is one of the largest insurance and financial services companies in the United States, serving millions of consumers, businesses and other entities. The Mitchell complaint alleges that MetLife has engaged in a policy and practice of gender discrimination in, among other things, hiring, compensation, and promotions throughout the division of the company that sells insurance and financial services products.[FN3] Plaintiffs also contend that qualified male applicants are almost twice as likely to be hired as qualified female applicants; that MetLife discriminates against female employees by maintaining a gender-based glass ceiling on promotional opportunities; and that gender bias in the sales force causes differential compensation between male and female employees. See Complaint ¶¶ 5-7, 48, 67.
FN3. Plaintiffs have identified this division as the “Insurance and Financial Services Division.” However, defendant describes this division as the “MetLife Financial Services Division.”
The proof in this case will turn in considerable part on statistical analyses regarding utilization and compensation data across the account representative and management-level positions. This case will also examine MetLife's human resources and personnel systems and will evaluate how MetLife treats its female applicants and employees, including the named plaintiffs. This case will not address MetLife's insurance products, including the terms and conditions of those products; the content of MetLife's sales and marketing pitches to customers; MetLife's former workforce in Europe; general insurance regulations; or consumer protection laws.
B. Fleishman's Unrelated Work at Skadden, Arps.
Fleishman, a new Lieff, Cabraser attorney, represented MetLife in various mass tort and consumer litigation matters during her tenure as an attorney in the Mass Tort and Insurance Litigation Group at her former firm, Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”). In her eight-year tenure as an attorney with Skadden, Fleishman did not work on employment discrimination matters for MetLife, or for any other client, and was not a member of Skadden's Labor and Employment Law Group.[FN4] See Fleishman Aff., ¶ 23; Dermody Decl., Ex. A (excerpts from Skadden's website). In particular, Fleishman did not work on any matters involving gender discrimination, equal employment opportunity, or general human resources practices. Fleishman Aff., ¶ 6.
FN4. Indeed, although defendant reports that Fleishman worked on approximately 90 MetLife matters, they

have not identified even one that was remotely related to employment discrimination. Def. Br. at 6; see also Geman Decl., ¶¶ 6-14, Exs. D-O (none of the documents produced by defendants regarding Fleishman demonstrate a substantial relationship to Mitchell.
The matters on which Fleishman worked for MetLife concerned the sales and marketing of life insurance products and annuities. See Fleishman Aff., ¶ 7; see also id., ¶¶ 8-13, 15-22; Def. Br., Sullivan Aff., ¶ 4 (the “common thread running through virtually all of the MetLife litigation being handled by the Skadden/McCarter team was the allegation that [MetLife] had engaged in improper sales practices in connection with their sale of insurance (or other financial products) to MetLife customers”). The issues that arose in these cases implicated consumer protection statutes, common law tort and fraud claims, securities laws, and related fields such as trusts and estates and tax law. Fleishman Aff., ¶¶ 8-13, 15-22; Geman Decl., Exs. D-K (complaints produced by defendants in response to plaintiffs' requests for production of documents; plaintiffs' requests for production of documents).
In working on MetLife matters, Fleishman never had occasion to “seek or obtain any documents from human resources” nor to review “general compensation data for the sales force.” Fleishman Aff., ¶ 11. She never sought or obtained “any documents that concerned hiring, evaluations, promotions, demotions, or training other than specific training about MetLife products.” Id. Fleishman was “not privy to any information about hiring, training, supervision, or discipline of any member of the sales force in connection with anything other than the integrity and truthfulness of the representations made to customers in connection with the sales and marketing of MetLife products.” Id. (emphasis added).
As set forth fully in the Fleishman Affirmation and in defendant's affidavits, the Metlife cases on which Fleishman worked concerned the following specific issues:
• In re: Metropolitan Life Insurance Company Sales Practices Litig., MDL No. 1091: This case concerned alleged material misrepresentations in connection with the sale of insurance policies and annuities. See Fleishman Aff., ¶ 8; Geman Decl., Ex. D (complaint). Fleishman's role was limited to collecting documents and interviewing witnesses related to the sales and marketing of insurance products and annuities; training account representatives in connection with the sales and marketing of MetLife products; computer records regarding the sales and marketing of products; and complaints made to MetLife in connection with the sales and marketing of the products at issue in the Sales Practices litigation. See Fleishman Aff., ¶¶ 11-12. Fleishman reports that the “race, age, ethnic origin or gender of the sales forces was never a subject of inquiry or discussion, nor was there any discussion about gender discrimination.” Id., ¶ 11. In addition, “if any individual [she] interviewed had been promoted, demoted, passed over for a position, or not promoted, [she] was unaware of such facts because their personal employment ‘experience’ was never a subject of inquiry.” Id., ¶ 13.
• Heslin, et al. v. Metropolitan Life Ins. Co., et al., Case No. 2186-99. This case involved plaintiffs who opted out of the settlement class in the Sales Practices litigation and who alleged essentially identical claims involving a particular MetLife employee. See Fleishman Aff., ¶ 16; Def. Br., Finnegan Aff., ¶ 5; Geman Decl., Ex. E (complaints). Fleishman's role involved reviewing documents pertaining to the sales made to the plaintiffs and interviewing the employee and his supervisors regarding the alleged misrepresentations at issue in the case. Fleishman Aff., ¶ 16. To the extent any interview involved any information about training or supervision, “such information was limited to [the one employee] and the sale of the products.” Id.
• Middleton, et al. v. Metropolitan Life Ins. Co., et al., Case No. CV99-02189. This was also a sales practices case regarding alleged improper sales of insurance policies and financial products. See Fleishman Aff., ¶ 17; Def. Br., Finnegan Aff., ¶ 6; Geman Decl., Ex. F (complaint). Fleishman's role involved interviewing employees regarding the manner in which the sales were made to the plaintiffs, the materials used as part of the sales, and the training and supervision of the employees “solely in connection with those sales.” Fleishman Aff., ¶ 17. Fleishman did not explore “the treatment of account representatives generally; the assignment of customers; or promotions or demotions.” Id. To

the extent Fleishman participated in settlement discussions, Fleishman reports that “nothing was discussed or learned that would have any bearing on the Mitchell case before the Court.” Id.
• Whalen v. Metropolitan Life Ins. Co., et al., Case No. CV98-8405. This case concerned allegedly-improper sales of certain financial products to an elderly consumer. See Fleishman Aff., ¶ 18; Def. Br., Seltzer Aff., ¶ 6; Geman Decl., Ex. G (complaints). As with other sales practices matters, Fleishman interviewed MetLife employees “solely in connection with the investigation of the plaintiff's allegations.” Fleishman Aff., ¶ 18. To the extent Fleishman participated in settlement discussions, Fleishman reports that “nothing that arose in connection with the Whalen matter had anything to do with the Mitchell lawsuit that is currently before the Court.” Id.
• Moravec v. Metropolitan Life Ins. Co., Case No. CV99-04963845. This case involved allegedly-improper sales and “intricate issues of estate planning and tax consequences.” Fleishman Aff., ¶ 19; Def. Br., Seltzer Aff., ¶ 6; Geman Decl., Ex. H (complaint). Accordingly, Fleishman interviewed the MetLife employee who sold the annuities, the employee's supervisor, and a MetLife representative regarding the products at issue in the litigation. See Fleishman Aff., ¶ 19. This matter did not involve any employment issues whatsoever. Id.
• Dornberger, et al. v. Metropolitan Life Ins. Co., Case No. CV95-10374. This class action involved the allegedly-unauthorized sale of insurance products and annuities outside the United States during the period from 1957 until MetLife closed its European operations in 1994. See Fleishman Aff., ¶ 20; Def. Br., Elberg Aff., ¶¶ 5-6, Sullivan Aff., ¶¶ 7-9, Wilson Aff., ¶ 2, 5; Geman Decl., Ex. I (complaints). While Fleishman assisted Skadden partner Sheila Birnbaum in connection with settlement, she reports that “[n]othing in the Dornberger case has anything to do with the Mitchell case before this Court.” Id., ¶ 20.
• Cular v. Metropolitan Life Ins. Co., Case No. CV95-5250. This case arose out of and was linked to Dornberger because plaintiff Cular had been the European account representative who sold the challenged products in the Dornberger class action to the named plaintiff, Mrs. Dornberger. See Fleishman Aff., ¶ 21; Def. Br., Elberg Aff., ¶ 7; Geman Decl., Ex. J (complaints). While an employee Cular had also reportedly encouraged plaintiff Dornberger to pursue the class action; in Cular's subsequent lawsuit, plaintiff Cular claimed she had been improperly required to participate in MetLife's “scheme” of defrauding European customers and terminated her in connection with her assistance to the Dornberger litigation. See Fleishman Aff., ¶ 21; Geman Decl., Ex. J (amended complaint). The wrongful termination and breach of contract claims in this action thus had nothing to do with discrimination or gender bias. See Fleishman Aff., ¶ 21. Moreover, the case was defended by Skadden's Labor and Employment Group, with Fleishman's role limited to factual supervision arising out of her knowledge of Dornberger and settlement efforts. Id.
• Rabouin v. Metropolitan Life Ins. Co., et al., Case No. CV99-111355. This case involved alleged mismanagement of assets, including how asserts were tracked and managed by MetLife. See Fleishman Aff., ¶ 22; Def. Br., Finnegan Aff., ¶ 4; Geman Decl., Ex. K (complaints). Fleishman's role involved interviewing MetLife employees, reviewing accounting materials, and performing litigation activities “directed solely to defending MetLife in connection with the plaintiff's claims of mismanagement.” Fleishman Aff., ¶ 22.
Through the course of her representation of MetLife, Fleishman never spoke to any witness about gender discrimination issues. See Fleishman Aff., ¶ 14. Her interviews were limited to the sales practices and products at issue in each case, and did not involve any issues raised in Mitchell. Id. Finally, Fleishman does not recognize the names of the plaintiffs in this case, does not specifically recall whether she ever interviewed any person identified in Plaintiffs' Initial Disclosures about any topic, and, to her knowledge, never spoke with any person identified in Plaintiffs' Initial Disclosures about anything related to the plaintiffs. Id.
C. Lieff, Cabraser Firm Structure.

Lieff, Cabraser, a 54-lawyer national class action firm, is co-counsel to plaintiffs in this matter. See Dermody Decl., ¶ 5. Lieff, Cabraser has offices in San Francisco, New York, Boston, Nashville, and Washington, D.C.[FN5] Id. The firm brings cases on behalf of plaintiffs in at least seven broadly-defined practice areas, including environmental law, products liability, consumer protection, mass torts, and employment. Id. Lieff, Cabraser has clients in all fifty states and numerous foreign countries. Id., ¶ 6. In New York alone, the 12 attorneys in the New York office work on over 100 active cases or investigations in all of the practice areas. Id. It is not the practice of the firm to discuss all matters in litigation among all partners or attorneys, but rather such conversations occur within specific cases and practice groups. Id., ¶ 7. Each practice group meets separately, with practice group lawyers from the five offices participating in the meetings by conference call. Id. The volume and variety of Lieff, Cabraser's cases preclude the sort of highly-informal structure that characterizes many small firms whose practice involves limited subject areas or only one office or state. Seymour Decl., ¶ 14; see also Dermody Decl., ¶¶ 5-10.
FN5. The Washington, D.C. office, where Mr. Seymour has his office, opened on August 1, 2001. See Dermody Decl., ¶ 8.
The practice group prosecuting this action is the employment practice group. Dermody Decl., ¶ 8. The three partners in this group are Kelly M. Dermody (“Dermody”), James M. Finberg (“Finberg”), and Richard T. Seymour (“Seymour”). Id. Dermody and Finberg co-chair the group and are in the San Francisco office. Id. Seymour, a recently-hired partner, is the head of the recently-opened Washington, D.C. office.[FN6] Id.; Seymour Decl., ¶ 1.
FN6. Before opening the DC office, Mr. Seymour was loosely affiliated with the New York office. During the time of this affiliation (as of February 9, 2001), he spent approximately 12 days - less than two full weeks - in the New York office. See Seymour Decl., ¶ 2. Seymour had no voicemail or permanent office in New York. His primary office and files remained in Washington unless such files were on the road with him for cases or other professional matters. Id., ¶ 7.
The only New York lawyers in the employment group are Rachel Geman (“Geman”) and Leila K. Hilal (“Hilal”), both of whom participate in the meetings by phone from their respective offices. See Dermody Decl., ¶ 9; Geman Decl., ¶ 4; Hilal Decl., ¶ 4.
D. Management and Staffing of the Mitchell Case.
The management of Mitchell has been consistent with the management of other cases prosecuted by Lieff, Cabraser's employment group. Dermody and Finberg are the partners in charge of the case, in consultation with Seymour; no New York-based partner is involved at all. See Dermody Decl., ¶ 10. Geman and Hilal, also attorneys on the case, are associates with the firm. They report to the San Francisco partners on separately-scheduled Mitchell calls; there is no New York partner to whom they report on the Mitchell matter. See Geman Decl., ¶ 3; Hilal Decl., ¶ 3. Mr. Seymour, whose office is in Washington, D.C.,[FN7] has not to date been involved in the day-to-day management of the Mitchell matter. See Seymour Decl., ¶ 13.
FN7. See footnotes 5-6, supra. E. Fleishman's Lack of Involvement in Employment Matters at Lieff, Cabraser.
As addressed below, Wendy Fleishman is screened off the Mitchell matter. See Fleishman Decl., ¶¶ 24-25, 27; Tindall Decl., ¶¶ 3-5. In addition, she is not a member of the employment practice group, and none of her cases are employment

cases. See Dermody Decl., ¶ 13; Seymour Decl., ¶ 8. Fleishman's only involvement in any employment-related issue in the firm was her extremely-limited role in reviewing and filing a Second Circuit amicus brief that Lieff, Cabraser and a number of national civil rights organizations submitted in Robinson v. Metro-North Commuter Railroad Co., Docket No. 00-9417 (2d Cir.). See Seymour Decl., ¶¶ 3-8, 10. Lieff, Cabraser partner Rick Seymour was the principal drafter of the brief; Fleishman had no role in the drafting process. See id. In fact, Seymour was not in the New York office at any time during his research or drafting of this brief. Id., ¶ 6.
Because Seymour was not admitted to the Bar of the Second Circuit at the time the brief was to be filed, Fleishman and Lieff, Cabraser attorney John Low-Beer, both of whom are admitted to the Second Circuit, reviewed the brief on the day it was to be filed. See Seymour Decl., ¶ 10. Fleishman and Low-Beer made some minor stylistic changes to the brief, including changing the font size, which did not affect the substance of the brief. Id. Seymour's first conversation with Fleishman about the brief was on March 12, 2001, the date of its filing, when Fleishman told him that she wanted to make those stylistic changes. Id.
F. Lieff, Cabraser Has Maintained A Thorough and Sophisticated Ethical Wall.
Lieff, Cabraser has never been disqualified by a Court due to an ethical conflict, and has successfully litigated the propriety of its ethical screening procedures. See, e.g., Dermody Decl., Ex. B. (“Order Denying Defendants' Motion to Disqualify the Law Firm of Lieff, Cabraser, Heimann, & Bernstein and Granting Plaintiff's Motion Recognizing Propriety of Representation” in Barbanti v. W.R. Grace & Co.). Throughout Lieff, Cabraser's relationship with Fleishman, the firm has utilized these ethical screening procedures to ensure that even theoretically-confidential communications regarding MetLife could not be passed from Fleishman to any Lieff, Cabraser employee. See Fleishman Aff., ¶ 24; Tindall Decl., ¶ 3. For example, during the hiring process, Fleishman was informed that “if Lieff, Cabraser ever brought cases against [her former] clients, regardless of the subject matter, [she] would not be able to participate in those cases or, even, any discussions relating to such cases.”[FN8] Fleishman Aff., ¶ 24.
FN8. As an extra precaution, Fleishman also initially sought a waiver from MetLife in advance of joining Lieff, Cabraser. See Fleishman Aff., ¶ 26. At that time, Fleishman believed that Lieff, Cabraser had a class action pending against MetLife. Id. MetLife's in-house counsel informed Fleishman that no case had been filed; accordingly, a waiver was premature. Id.
Since joining the firm on January 17, 2001, Fleishman has not discussed MetLife with any Lieff, Cabraser employee with the exception of attorneys Steven M. Tindall and Hector D. Geribon of Lieff, Cabraser's Conflicts Resolution Department. See Fleishman Aff., ¶¶ 1, 25; see also Tindall Decl., ¶¶ 2-3, 6 (such conversations involved descriptions of cases and duties and did not involve information “relating to MetLife itself”). In advance of the filing of the Mitchell lawsuit, the Lieff, Cabraser Conflicts Resolution Department interviewed Fleishman and determined that her prior representation of MetLife was not substantially related to the gender discrimination class action to be filed against MetLife. See Tindall Decl., ¶ 3; Fleishman Aff., ¶ 26. Because of this determination, Lieff, Cabraser did not pursue a waiver upon the commencement of litigation. Fleishman Aff., ¶ 26.
In addition, Lieff, Cabraser's Conflicts Department created and maintained a stringent ethical wall between Fleishman and MetLife matters. See Tindall Decl., ¶¶ 3-5. Such wall has included: (1) written instructions to the firm's information services, records, and word processing departments to deny Fleishman access to any files, in either electronic or hard copy form, relating to MetLife; (2) written instructions to all of the firm's partners, associates, and paralegals not to communicate with Fleishman in any way about the Mitchell case or about MetLife itself; (3) written and oral instructions to Fleishman not to seek access to any files relating to this matter or MetLife; and (4) written and oral instructions to Fleishman that she is ineligible and will not participate if any fee is generated by this case. See Tindall Decl., ¶¶ 4-5, Exs. A-B; Fleishman Aff., ¶¶ 24-25, 27. Fleishman has signed a document indicating her understanding of the screen. Tindall Decl., ¶ 5; Fleishman Aff., ¶ 27. In addition, Fleishman has been assigned a liaison within the firm who is a different

individual from the attorney who erected the ethical wall. Tindall Decl., ¶¶ 4-5, Exs. A-B.
While Fleishman now works on a non-employment matter with Leila Hilal, an associate on the Mitchell case, the matter on which they work together, the Sulzer Hip and Knee Replacement Litigation, is a medical/pharmaceutical case involving claims of strict products liability, negligence, breach of warranty, misrepresentation, and fraud in connection with orthopedic hip and knee replacement devices. See Hilal Decl., ¶ 5. Sulzer does not involve employment discrimination issues or any claims set forth in Mitchell, and Fleishman and Hilal have never discussed employment discrimination cases generally, the Mitchell case, or Fleishman's work on behalf of MetLife. Id., ¶¶ 5-6.
IV. ARGUMENT
Disqualification is an extraordinary penalty, not to be utilized unless the moving party meets the very high burden of proof required by the Second Circuit. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d. Cir. 1983) (“A party seeking disqualification must meet a high standard of proof before disqualification will be granted.”). For the reasons set forth below, defendant has failed to meet this burden, and disqualification should not be ordered.
A. Motions to Disqualify Counsel Are Disfavored in the Second Circuit.
In the Second Circuit, “[m]otions to disqualify counsel are generally viewed with disfavor ... [and] Courts have been directed to take a restrained approach.” Fields-D'Arpino v. Restaurant Assoc., Inc., 39 F. Supp. 2d. 412, 514 (S.D.N.Y. 1999) (Pauley, J.) (citing cases). Because motions “are often interposed for tactical reasons, and ... even when made in the best of faith ... inevitably cause delay,” the Second Circuit has recognized the need for caution rather than rigid application of the Model Code. Rosewood Apartments Corp. v. Perpignano, 2000 WL 145982, * 3 (S.D.N.Y. Feb. 7, 2000) (citing cases). As the Second Circuit has explained, this caution is also justified because “in disqualification matters we must be solicitous of a client's right to freely choose his counsel....” Government of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir. 1978).
These policy considerations have particular resonance in this case. To date, the parties have expended considerable time and energy litigating disqualification, while to date there have been no documents produced (other than those relating to disqualification) and no depositions scheduled. See Dermody Decl., ¶ 12. In addition, while the Outten & Golden firm is a fine firm, with excellent lawyers skilled in handling employment disputes, plaintiffs selected Lieff, Cabraser as co-counsel with Outten & Golden because of the firm's experience with national class action litigation (including employment discrimination class actions), as well as its size and financial resources. An employment discrimination class action of this complexity and scope requires the experience, staffing and financial resources that Lieff, Cabraser is able to provide.
B. Defendant Has Failed to Demonstrate That The Relationship Between The Prior and Current Representations Is “Substantially Similar”.
The parties agree that the instant inquiry is governed by the Second Circuit's interpretation of Canons 4, 5, and 9 of the ABA's Model Code of Professional Responsibility and the corresponding Canons of the New York Code of Professional Responsibility. The applicable ethical canons “require, respectively, that an attorney protect the confidences of his client, refrain from acting in a manner injurious to the interests of his client and avoid appearances of impropriety.” Rosewood, 2000 WL 145982, *4; see also NCK Org'n, Ltd. v. Bregman, 542 F.2d 128, 130, n.2 (2d. Cir. 1976) (“The [ABA] Code is “recognized by both federal and state courts in this circuit as prescribing appropriate guidelines for the professional conduct of the bar.”).

In the “former client” scenario presented here, there is no dispute that the Second Circuit has long established that an attorney may only be disqualified from representing a client in a particular case if: (1) the moving party is a former client of the adverse party's counsel; (2) there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have access to, relevant privileged information in the course of his prior representation of the client.
See, e.g., Evans, 715 F.2d at 791; Rosewood, 2000 WL 145982, * 3 (citing cases).
Defendant acknowledges that it needs to demonstrate that there is a “substantial relationship” between the two matters at issue. Def. Br. at 15. However, in the Second Circuit, where disqualification is explicitly disfavored, a finding of substantial relationship requires a “thorough” review of the facts. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Co., 518 F.2d 751, 753 (2d. Cir. 1975), overruled on other grounds in Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980), vacated, 449 U.S. 1106 (1981) ( “ethical problems cannot be solved in a vacuum .... [t]horough consideration of the facts ... is required”) (internal citations omitted); see also Renz v. Beeman, 1989 WL 16062, *8 (N.D.N.Y. Feb. 21, 1989) (“district courts deciding disqualification motions must consider the factual record in detail” and grant the motion “only if the facts present a real risk that the trial will be tainted”)(citations omitted). Moreover, this review of the facts must demonstrate that the relationship between issues is “patently clear” and that the “issues involved have been identical or [are] essentially the same.” Cook Indus., 569 F.2d at 737; Silver Chrysler, 518 F.2d at 754.
District courts in the Second Circuit have consistently interpreted the “substantial relationship” test to require a very close fit between the facts in the case at issue and any previous representations by the subject attorney. See, e.g., Vestron v. National Geographic Soc., 750 F. Supp. 586, 595 (S.D.N.Y. 1990); see also Wolfram Decl., ¶ 7, n. 1 (observing that “Courts in the Second Circuit ruling on conflict-based disqualification motions have invariably insisted that the movant satisfy a standard that is considerably more difficult to establish than the substantialrelationship test derived from the ethical rules”). For example, in Vestron, a case involving a breach of contract claim brought by a distributor of the National Geographic Society's videocassettes, the plaintiff's law firm had previously represented defendant National Geographic Society [“NGS”] in a trademark action involving the purported trade dress NGS used for its Traveler magazine. As MetLife alleges in this case, defendant NGS alleged there that a “substantial relationship” between the matters was established because the law firm at issue was familiar with NGS's views on settlement and “generally how National Geographic functioned during a protracted litigation.” Vestron, 750 F. Supp. at 595. In addition, NGS argued that, in both matters, “National Geographic's trademark is at issue once again.” Id.
Ironically, the law firm that was the subject of a disqualification motion in Vestron was Proskauer, Rose, the firm representing the moving party here. However, in Vestron, Proskauer argued that NGS could not satisfy the substantial relationship test because: All [NGS] can do is strain to find some way to tie the two litigations together by virtue of the fact that National Geographic owns a trademark. This assertion falls far short of the facts required for a substantial relationship. NGS also argues that Proskauer attorneys were exposed to in-house counsel's views “as to when settlement was appropriate, and when and on what basis the Society was prepared to litigate issues and generally how National Geographic functioned during a protracted litigation.” But this argument, even if true, proves too much, for it would apply in almost all prior representation situations and thereby swallow up the Second Circuit's substantial relationship test.
Geman Decl., Ex. P, p. 16 (Proskauer's Mem. in Opp'n to Def.'s Motion to Dismiss Complaint or Disqualify Pl.'s Counsel) (internal citations omitted). The court agreed with Proskauer, explaining: [The trademark argument] betrays the emptiness of the Society's argument [for disqualification]. This is not litigation over a trademark; it is a breach of contract case. Although the contract provides for trademark protection along with a host of other things, the trademark is not at issue here. Thus, there is no substantial relationship .... Furthermore... if insight into a former client's general ‘litigation thinking’ were to constitute ‘relevant privileged information’, then

disqualification would be mandated in virtually every instance of successive representation. That clearly is not the law....
Id. at 595 (emphasis added); see also Matthews v. LeBoeuf, Lamb, Greene & MacRae, 902 F. Supp. 26, 31 (S.D.N.Y. 1995) (knowledge of firm's “internal” or settlement practices, or financial reports insufficient for disqualification).
On similar facts to those presented here, the court in Beck v. Bd. of Regents, 568 F. Supp. 1107 (D. Kan. 1983), determined that disqualification was likewise unwarranted where the plaintiff's lawyer's prior representation of the defendant involved employment discrimination while the Beck matter involved medical malpractice and an alleged failure to provide adequate police protection in a hospital emergency room. See Beck, 568 F. Supp. at 1109-10. Making similar arguments to those defendant raises here, the defendant argued that disqualification was necessary because, among other things, “plaintiffs' counsel had access to confidential information regarding policy and administration of the Medical Center and access to [its] methods and patterns of decision-making .... [and] confidential information regarding the supervision of subordinate employees of the Medical Center.” Id. at 1110. The court denied the motion, observing that “the facts in each case involve totally different theories of liability.” Id. at 1113.
The same arguments that plaintiffs successfully made in Vestron and Beck apply here. Fleishman's prior representation of MetLife involved consumer sales practices litigation; it had nothing to do with employment discrimination, gender issues, equal employment opportunity, the named plaintiffs here, or any of the relevant issues in this litigation. See Section III (B), above. Like most large and sophisticated corporations, MetLife has itself preserved the divisions in litigation subject matters by using different law firms for different kinds of cases, thus separating such areas as employment discrimination and consumer practices litigation.[FN9] Neither Skadden in general, nor Fleishman in particular, operated as “general counsel” for MetLife. Moreover, far from having a “unique perspective,” as defendants maintain, see Def. Br. at 2, Fleishman was just one of many specialized attorneys from myriad firms who had discrete knowledge about a specialized type of litigation involving the financial products sold by MetLife. Every relevant fact in this case militates against disqualification.
FN9. In fact, in the scores of employment discrimination cases brought against MetLife during Fleishman's tenure at Skadden, neither Fleishman nor the Skadden firm appear once as counsel for MetLife, See Geman Decl., ¶ 5; see also Fleishman Aff., ¶ 15.
Defendant here argues that it is significant that at some point, among all the hours Fleishman purportedly worked for MetLife defending consumer cases, Fleishman spoke with one (unidentified) supervisor also listed on Plaintitffs' Initial Disclosures. See Def. Br. at 7. Notably, under similar facts, the party seeking disqualification in Beck asserted that disqualification was necessary because the same high-level individual who was named as a defendant in a previous employment action, then defended by opposing counsel, was also involved in Beck, a malpractice action, because that individual had operational responsibility for the medical center at issue. See Beck, 568 F. Supp. at 1112. The court rejected this argument, finding the “possibility that plaintiffs' counsel ... were privy to the confidences and innermost workings of the methods and patterns of decision-making at the Medical Center as related to the issues in the present actions, too remote to be deemed reasonable or substantial....”. Id. Similarly, here, Fleishman confirms that any conversation she may have had with any individual named in Plaintiffs' Initial Disclosures would have been limited to the specific and unrelated subject matter of the cases on which she worked. See Fleishman Aff., ¶ 14. Such interviews would not have included hiring, compensation, or promotional issues, nor any discussion of gender discrimination.[FN10] Id.
FN10. Further, Fleishman does not even recall “having spoken with or interviewing any person on the Witness List.” Fleishman Aff., ¶ 14.
Significantly, the four cases upon which defendant relies to argue that a substantial relationship exists here - Red Ball

Interior Demolition Corp. v. Palmadessa, 908 F. Supp. 1226 (S.D.N.Y. 1995); Fernandez v. City of New York, 2000 WL 297175 (S.D.N.Y. March 21, 2000); Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991); and Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992) - only underscore why this case is not even a close call. For example, in Red Ball, the court found a substantial relationship because the transaction at issue (illegal dumping at a site) was identical and the only difference was that one case involved criminal proceedings and the other involved administrative proceedings. See Red Ball, 908 F. Supp. at 1244-45. By contrast, the “transactions” here are entirely different: the decision not to hire or promote women, or even a named plaintiff, because of gender, has nothing to do with the work Fleishman performed for MetLife, such as defending cases challenging the sales, marketing and terms of MetLife products.
Similarly, in Fernandez, involving a claim for malicious prosecution against a police officer, the firm representing the plaintiff had previously represented the same officer in a criminal investigation examining serious charges of misconduct against the officer. This close overlap of the one central figure in both cases constituted a substantial relationship. See Fernandez, 2000 WL 297175 at * 2. Notably, there is no such overlap between the matters here.[FN11]
FN11. Red Ball and Fernandez would only be apposite if, for example, one of the prior MetLife matters on which Fleishman worked had been criminal (e.g., representing MetLife through an Attorney General investigation into MetLife's alleged sale of illegal vanishing premiums) and this action was a civil class action addressing the same subject of the criminal proceedings (e.g., brought on behalf of the consumers allegedly victimized by the vanishing premium practices). Such facts obviously do not exist here.
In Bennett Silvershein, the plaintiff sought to disqualify defendant's law firm because it had consulted with the firm on unrelated matters years before the litigation. On much closer facts than exist here, the court found that the substantial relationship test was not met because, in large part, there was not sufficient overlap between the matters at issue. See Bennett Silvershein, 776 F. Supp. at 804.
Likewise, in Ullrich, a consolidated proceeding involving disqualification motions made in one wrongful termination and two employment discrimination cases, the court recognized the high degree of overlap between matters necessary to support disqualification. The defendant there moved to disqualify because the plaintiff's lawyer in all three of the underlying cases had, for twenty years previously, “represented [defendant] Hearst in discrimination claims... handled numerous discrimination lawsuits ... [and] negotiated settlements of numerous settlements of employee discrimination claims and severance packages,” among other employment-related matters in his portfolio. Ullrich, 809 F. Supp. at 230. Given the extraordinary overlap in his prior employment defense of Hearst and the three plaintiffs' employment claims against Hearst in Ullrich, the court determined that the lawyer should be disqualified. See id. at 235-36.
There is simply no overlap in the facts in this case and Fleishman's previous representation of MetLife. See, e.g., In re: Metropolitan Life Insurance Company Sales Practices Litigation (class action concerning alleged material misrepresentations in connection with the sale of insurance policies and annuities); Heslin, et al. v. Metropolitan Life Ins. Co., et al. (optout plaintiffs from Sales Practices litigation brought essentially-identical individual consumer claims); Middleton, et al. v. Metropolitan Life Ins. Co., et al. (sales practices case regarding alleged improper sales of insurance policies and financial products); Whalen v. Metropolitan Life Ins. Co., et al. (concerning allegedly-improper sales of certain financial products to an elderly consumer); Moravec v. Metropolitan Life Ins. Co. (concerning allegedly-improper sales and intricate issues of estate planning and tax consequences); Dornberger, et al. v. Metropolitan Life Ins. Co. (class action concerning allegedly-unauthorized sale of insurance products and annuities in Europe between 1957 and 1994); Cular v. Metropolitan Life Ins. Co. (involving wrongful termination claims brought by former European employees who allegedly spearheaded the Dornberger consumer class action); Rabouin v. Metropolitan Life Ins. Co., et al. (concerning alleged mismanagement of assets, including how asserts were tracked and managed by MetLife).
Each of these lawsuits, which defendant identifies, involved complex and specific issues of the vastly-complicated and

heavily-regulated insurance industry. They had nothing to do with employment discrimination or any related issues pertinent to this case. There is not even a suggestion that Fleishman worked on general human resource issues, employee benefits issues, equal employment opportunity compliance, or any sort of issue that would make her privy to confidential information central to Mitchell.
Because defendant is unable to present facts supporting the requisite relatedness between Fleishman's “confidences” and those that will be relevant here, defendant instead merely lists generic topic areas about which Fleishman purportedly had some, unspecified knowledge. See Def. Br. at 7-9. Most of these topics are either facially irrelevant (e.g., “the products sold by account representatives”; “the sales literature and sales materials used by account representatives”), or extremely general (e.g., “the regulatory environment in which account representatives operate”; MetLife's “internal audit system”). With respect to any of the issues that could be relevant in this case, e.g., hiring, promotions or compensation issues, this list is impermissibly vague and does not provide the requisite nexus between her alleged knowledge in these areas and the way such topics relate to this case.[FN12]
FN12. Rather than focusing on defendant's list, what is telling is the examination of the issues actually at stake in Fleishman's lawsuits. For example, the case on which Fleishman worked that is most frequently referenced by defendant is Dornberger. A simple comparison of the common questions of law and fact in that case, versus those in the Mitchell Complaint, provides a context for defendant's list of topic areas and demonstrates the complete disjunction between these two cases. See Complaint, ¶ 26; Geman Decl., Ex. I (Dornberger complaint).
Defendant's sole argument regarding why Fleishman's prior work relates to Title VII employment discrimination issues is that she “would be uniquely able to offer strategies for challenging the non-discriminatory reasons offered by MetLife for allegedly discriminatory employment practices.” Def. Br. at 17-18 (citing the McDonnell Douglas Corp. v. Green threepart test, 411 U.S. 792, 93 S.Ct. 1817 (1973)). Given defendant's own descriptions of Fleishman's prior unrelated work and her lack of experience in employment defense, it is clear that Fleishman's theoretical ability to strategize on the McDonnell-Douglas defense would not provide sufficient advantage to experienced plaintiffs' employment discrimination lawyers to warrant disqualification. Indeed, it is clear that such a theoretical and attenuated risk does not “present a real risk that the trial will be tainted.” Renz, 1989 WL 16062, *8 (disqualification should be ordered “only if the facts present a real risk that the trial will be tainted”).
Defendant has not met its burden here. See Wolfram Decl., ¶¶ 2, 6-13 (opinion of ethics expert in which he states, “[I]t is my opinion that there is no evidence in the materials submitted by MetLife to support its position that there is the required ‘substantial relationship’ between the former representation of it and the present matter....”).[FN13]
FN13. See also Wolfram Decl., ¶ 14 (“In my view, based on the foregoing analysis, Lieff, Cabraser should not be disqualified even if Ms. Fleishman had been actively involved in representing Plaintiffs in this matter since she joined Lieff, Cabraser. There would thus be no occasion to consider the further question of firm-wide disqualification.”).
C. Canon 9 is Inapplicable Because There is Neither Actual Nor Apparent Impropriety Here.
In the absence of actual impropriety, defendant suggests that the Court disqualify Lieff, Cabraser on the grounds that the firm's representation of plaintiffs here presents an appearance of impropriety pursuant to Canon 9. However, in this Circuit, the overwhelming authority reflects that there can be no finding of a Canon 9 violation absent the finding of a substantial relationship between matters, in violation of Canon 4.[FN14] See Society for Good Will to Retarded Children, Inc. v. Carey, 466 F. Supp. 722, 724 (E.D.N.Y. 1979) (Weinstein, J.) (“The possibility that an attorney's representation in a given case may give rise to an ‘appearance of impropriety’ is not enough to disqualify”); Furman, 776 F. Supp. at 806 (recognizing that where the alleged violation of Canon 4 is “devoid of substance” it would be “downright perverse to hold that what has been held not to exist nonetheless ‘appears.’ ”).[FN15] Indeed, courts have admonished, “Canon 9

should not be used promiscuously as a convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules.” Furman, 776 F. Supp. at 806 (citing cases).
FN14. In National Geographic Society, supra, Proskauer similarly observed that “because there are no grounds for disqualification under Canon 4, disqualification under Canon 9 is also inappropriate.” Geman Decl., Ex. P, 17 (Proskauer opposition brief to defendant's disqualification motion) (citing cases).
FN15. Defendant cites to one case where a Canon 9 violation was purportedly sufficient to trigger a disqualification. See Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987) (Sprizzo, J.). Judge Sprizzo, noting the plethora of cases holding that disqualifications based on Canon 9 alone were inappropriate, stated that, on the other hand, the Second Circuit had not held that “disqualification may never be appropriate on Canon 9 grounds.” Id. at 1446 (emphasis in original). But see Cohen v. Acorn Int'l, 921 F. Supp. 1062, 1064, n.2 (S.D.N.Y. 1995) (Scheindlin, J.) (criticizing Judge Sprizzo's suggestion that a finding of disqualification under Canon 9 alone could ever be appropriate under Second Circuit authority). In any case, Rosman is distinguishable on the grounds that the law firm that was subject to the disqualification motion had previously been retained by the opposing party for a consultation regarding the very contract at issue in the Rosman breach of contract lawsuit. See 921 F. Supp. at 1445.
Regardless, there is no appearance of impropriety in Lieff, Cabraser's representation of plaintiffs in Mitchell. Not only is there no relationship between the matters, but there is also no risk of transmission of even irrelevant information within the scope of Fleishman's knowledge due to the Lieff, Cabraser firm structure (whereby cases are prosecuted by case teams and practice groups, not by office); the management and staffing of the Mitchell case (which is managed by San Francisco partners and does not, and has never, included Fleishman); Fleishman's lack of involvement in employment matters at Lieff, Cabraser (whereby Fleishman is not assigned to a single employment matter and has only had the limited experience of reviewing and filing a Second Circuit amicus brief in an unrelated employment case on the day it was to be filed); and Lieff, Cabraser's ethical wall (screening Fleishman from any MetLife discussions or documents). See Sections III (C)-(F), above.[FN16] The Lieff, Cabraser firm has not violated Canon 9.
FN16. By contrast, the cases on which defendant relies are inapposite. See, e.g., Cheng v. GAF Corp., 631 F.2d 1052 (2d. Cir. 1980), vacated, 450 U.S. 903 (1981) (involving successive representation in the identical matter; Canons 4 and 5 violated as well as Canon 9); NCK Org'n, 542 F.2d at 129 (substantial relationship between matters, implicating Canons 4 and 9); In re Manchul Constr. Corp., 1998 WL 405039 (impropriety where substantial relationship existed because identical transaction at issue in both matters and only difference was that one matter was a criminal proceeding and the other arose in bankruptcy); Rosman, supra, 653 F. Supp. 1441 (described in footnote 15, above). D. In The Alternative, If the Court Determines that Wendy Fleishman Should Be Disqualified, it Would be Unnecessary to Disqualify the Entire Lieff, Cabraser Firm Due to the Firm's Comprehensive Screening Procedures
mechanism.
Even if the facts were different and disqualification of Fleishman were appropriate, there would be no need to impute that disqualification to the Lieff, Cabraser firm. As explained by legal ethics expert Charles W. Wolfram: Even if, hypothetically, one were to reject the conclusion that Ms. Fleishman was not personally disqualified, there would remain the further question of whether her new firm's other lawyers are disqualified. While, of course, courts will generally impute a single lawyer's violation of DR 5-108(a) to all other lawyers in the personally-disqualified lawyer's firm, courts in the Southern District and in New York generally have recognized an exception to such a rule of imputed disqualification in an appropriate case in which the circumstances sufficiently indicate that screening of the personally-disqualified lawyer provides ample assurance that the conveyance of confidential information that the former-client rule seeks to prevent will not in fact occur. Courts in the Southern District have generally employed a “facts and circumstances” approach to screening, rather than any sort of flat rule (found in some other courts) that screening is always ineffective in privaterepresentation situations or that it is always ineffective in smaller law offices such as the

New York City office of Lieff, Cabraser.
Wolfram Decl., ¶ 14.
The New York Court of Appeals confirmed this view in recently holding that “where one attorney is disqualified as a result of having acquired confidential client information at a former law firm, the presumption that the entirety of the attorney's current firm must be disqualified may be rebutted.” Kassis v. Teacher's Ins. and Annuity Assoc., 93 N.Y.2d 611, 616, 695 N.Y.S.2d 515, 518 (1999). So long as the information acquired by the disqualified lawyer was unlikely to be significant or material in the litigation, the Kassis court held that “in that factual scenario, with the presumption rebutted, a ‘Chinese Wall’ around the disqualified lawyer would be sufficient to avoid firm disqualification.” Id.
Courts in the Second Circuit have similarly held that the presumption of firm disqualification is rebuttable. See, e.g., Fields-D'Arpino 39 F. Supp. 2d at 417 (firm in question “had not even attempted to implement screening procedures that would prevent [the sharing of] confidential information”); see also Wolfram Decl., ¶ 14. Thus, to the extent defendant suggests that screening is impermissible, it is simply incorrect.
In the alternative, defendant argues that the specific facts presented preclude the possibility of an effective screen. See Def. Br. at 20-23. Defendant then cites to cases where the small size or informal structure of the firm[FN17] or the untimely introduction of the screen[FN18] meant that the firm at issue had failed to ensure that information would not be transmitted, or where the type of case at issue was uncomplicated, undercutting concerns about plaintiff's choice of counsel.[FN19] In this case, unlike in the cases cited, the timely ethical wall at issue is sufficient to rebut any presumption of firm disqualification. The ethical wall complements the Lieff, Cabraser structure which, due to the breadth, complexity, size, and volume of the firm's cases, and its organization around practice groups, is more akin to a large firm. Because the screening procedures at Lieff-Cabraser - approved by another court[FN20] - cannot be “subject to any doubt,” they rebut any presumption of firm disqualification. See Fields-D'Arpino, 39 F. Supp. 2d at 417.
FN17. See, e.g., Adams v. Lehrer McGovern Bovis, Inc., 208 A.D. 377, 617 N.Y.S.2d 9 (1st Dep't 1994) (cited by defendant) (four attorney firm is small); Van Jackson v. Check'N Go of Ill., Inc., 114 F. Supp. 2d 731 (N.D. Ill. 2000) (cited by defendant) (four attorney firm is small).
FN18. See, e.g., Alicea v. Bencivenga, 270 A.D.2d 125, 704 N.Y.S.2d 578 (1st Dep't 2000) (cited by defendant).
FN19. See, e.g., Steel v. General Motors Corp., 912 F. Supp. 724, 744 (D.N.J. 1995) (cited by defendant) (focusing on the lack of complexity of individual lemon law cases and their short life span; noting that in other circumstances the use of ethical walls “as effective prophylactic mechanisms has been endorsed.”).
FN20. See Dermody Decl., Ex. B (order in Barbanti v. W.R. Grace & Co.) (discussed above in Section III(F)). The matters at issue here are substantially more attenuated than those identified by W.R. Grace in its motion. In that case, unlike here, similar issues were litigated in both matters, rendering appropriate the disqualification of the lawyer in question. Here, the issues raised in the various cases bear no relationship to the issues here, and an ethical wall has existed since the inception of the case.
Lieff, Cabraser's ethical screening procedures are illustrative of the firm's cautious practice in connection with all matters undertaken by the firm. Lieff, Cabraser strives to more than comply with applicable ethical Canons. By doing so, Lieff, Cabraser also manages to stave off the vast majority of tactical disqualification motions brought by defendants in

complex cases, thereby preventing such motions from impeding the progress of litigation, distracting plaintiffs' counsel from focusing on the merits, and delaying the administration of justice. Lieff, Cabraser has taken the appropriate prophylactic measures here, and it will continue to do so throughout this case.
In light of all of these measures, at most, disqualification of Fleishman alone should suffice to address any potential former-client conflict situation. See Wolfram Decl., ¶¶ 14-15.
V. CONCLUSION
Because defendant has failed to demonstrate that Fleishman's prior representation of MetLife and this gender discrimination class action are substantially related pursuant to Second Circuit authority, and because Lieff, Cabraser has taken appropriate steps to ensure that no eventheoretically confidential information in Ms. Fleishman's possession will be communicated to anyone in the firm, plaintiffs respectfully request that defendant's motion be denied.
Appendix not available.
Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01-Civ-2112 (WHP). June 13, 2002.
First Amended Class Action Complaint and Demand for Jury Trial
Individual and Representative Plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey (hereinafter “Plaintiffs”) on behalf of themselves and all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
PRELIMINARY STATEMENT
1. This is a class action brought by female employees within the Financial Services division of the Individual Business unit of Defendant Metropolitan Life Insurance Co., Inc., d/b/a MetLife (“MetLife”). MetLife has engaged in a continuing nationwide policy, pattern or practice of gender discrimination in promotional opportunities, job assignments, compensation, and other terms, conditions and privileges of employment, in violation of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a (“Title VII”), the New York State Human Rights Law, New York Executive Laws §§ 290 et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”).
2. MetLife is one of the largest insurance and financial services companies in the United States, selling individual insurance, annuity and investment products and group insurance and retirement and savings products and services. Individual insurance products and services are sold through the MetLife Financial Services division (“MLFS”) of MetLife's Individual Business unit. MetLife derives its revenues primarily from insurance premiums and fees for insurance products. MetLife is an insurance provider to millions of households, corporations, and other institutions in the United States.
3. The employees selling MetLife insurance and financial services products are called Financial Services Representatives (“Financial Service Reps”), also known as “Account Representatives.” The compensation for Financial Service Reps is based, in substantial part, on commissions made through the sale of MetLife insurance and financial products. Some Financial Service Reps also hold the title of Functional Manager, for which they receive additional compensation. MetLife presently employs over 5,500 Financial Service Reps within MLFS. They are located throughout the United States in approximately 223 business locations known as “local agencies.”
4. Each local agency is run by a Managing Director (also known as “Branch Manager,” “General Manager” “Agency Manager” or “First Line Manager”). Between the Managing Director and Financial Service Rep levels is a second-line management level position of Agency Director (also known as “Sales Manager,” “Director,” “Associate General Manager,” “Associate Manager” or “Second Line Manager”). This position typically requires more experience and is better compensated than the Financial Service Rep position. The Managing Director of each local agency typically reports to a Regional Vice-President. There are seventeen regions, with a corresponding number of Regional Vice-Presidents, within MetLife in North America. Each Regional Vice-President is responsible for a number of local agencies within his particular region. Regional Vice-Presidents report directly to one of three Zone Vice-Presidents, each of whom is responsible for a number of regions within a particular zone. There are three MetLife zones in North

America: Atlantic, Northern, and Western. The Zone Vice-Presidents report to an Executive Vice-President. The Executive Vice President reports to the head of MetLife's Individual Business unit who reports to MetLife's CEO.
5. Women are under-represented in sales and sales management positions within MLFS as a result of MetLife's continuing policy and/or pattern or practice of gender-based discriminatory treatment of its female employees. This discriminatory treatment is manifested by such policies and/or patterns or practices as denying female employees desirable job assignments, promotional and career advancement support, including assignment of desirable and lucrative leads and accounts, and compensation comparable to similarly-situated male employees. This illegal policy and/or pattern or practice of discrimination has been furthered by subjective decision-making by a predominately male supervisory and managerial workforce and MetLife's failure to consistently monitor the actions of such male supervisors and managers to ensure their compliance with fair employment laws and MetLife's own policies prohibiting gender discrimination and retaliation against those who oppose gender discrimination. As one indication of MetLife's pervasive subjective and gender-biased decision-making an internal MetLife study, conducted in 2000, revealed that qualified male applicants are almost twice as likely to be hired for the Financial Service Rep position as qualified female applicants.
6. With respect to promotions, MetLife consistently discriminates against women in making promotions to Functional Manager, Agency Director, Managing Director, and Regional Vice-President positions. MetLife has constructed and maintains a gender-based glass ceiling by reserving for male employees the support and opportunities necessary to achieve managementlevel positions and to advance within MLFS, failing to post promotional opportunities, and making promotion decisions through a “tap-on-the-shoulder” system that unlawfully favors men. While approximately 25% of MetLife Financial Service Reps are women, women held less than 4% of the approximately 260 MetLife Managing Directors as of the end of 2000. Moreover, the number of female Managing Directors has decreased from approximately 7% in 1998 to 4.3% in 1999, to 3.8% in 2000. Furthermore, no more than one of the eighteen (18) Regional Vice-Presidents is a woman, and all of the Zone Vice-Presidents, the Executive Vice President and the head of MLFS are men.
7. MetLife also discriminates against its female employees in compensation, working conditions, privileges, and other terms and conditions of employment. MetLife frequently pays women less than men in comparable positions. MetLife also frequently refers fewer and less desirable leads and accounts and provides less technical, financial and/or administrative support to women than it does to men.
8. This action seeks equitable and injunctive relief, including an end to these discriminatory practices, rightful place relief for all class members, and an award of back pay and front pay; compensatory and punitive damages; and reasonable costs and attorneys' fees.
JURISDICTION AND VENUE
9. The jurisdiction of this Court is invoked by Plaintiffs pursuant to 28 U.S.C. § 1331, which confers original jurisdiction upon this Court for actions arising under the laws of the United States, and pursuant to 28 U.S.C. §§ 1343(3) and 1343(4), which confer original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief under: (i) any Act of Congress providing for the protection of civil rights; (ii) the Declaratory Judgment Statute, 28 U.S.C. § 2201; and (iii) 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a. The Court's supplemental jurisdiction is invoked pursuant to 28 U.S.C. § 1367(a), which confers supplemental jurisdiction over all non-federal claims arising from a common nucleus of operative facts such that they form part of the same case or controversy under Article III of the United States Constitution.
10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), inasmuch as MetLife has offices, conducts business and can be found in the Southern District of New York, and much of the causes of action arose, and many of the acts and

omissions complained of occurred, within the Southern District of New York.
PARTIES
Plaintiffs
11. Plaintiff Stella Mitchell (“Mitchell”) is a resident of Springfield Gardens, New York. She has been employed by MetLife since July 1987 in the positions of Financial Service Rep, Associate General Manager (also known as Sales Manager) and Managing Director. Despite her outstanding qualifications and demonstrated managerial abilities, Mitchell has been denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Mitchell filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 15, 2000, an amended charge alleging discrimination and retaliation on October 25, 2000, and a second supplemental affidavit on December 7, 2000. Mitchell received a Notice of Right to Sue from the EEOC on May 10, 2001.
12. Plaintiff Hwa-Mei C. Gee (“Gee”) is a resident of Great Neck, New York. She has been employed by MetLife since May 1986, in the positions of Financial Service Rep, Associate General Manager, Market/Development Manager, and Managing Director. Despite her outstanding qualifications and demonstrated managerial skills, Gee has been denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Gee filed a charge of discrimination with the EEOC on January 17, 2001. Gee received a Notice of Right to Sue from the EEOC on or about May 7, 2001.
13. Plaintiff Barbara LaChance (“LaChance”) is a resident of Seminole, Florida. LaChance has been deterred from employment as a Financial Service Rep and has been denied promotional opportunities in MetLife's MLFS, while such positions and promotions are routinely offered to men with no greater, or fewer, qualifications. LaChance filed a charge of discrimination with the EEOC on or about October 19, 2000. LaChance amended her charge on or about March 2, 2001. LaChance received a Notice of Right to Sue from the EEOC on or about May 10, 2001.
14. Plaintiff Durpatty Persaud (“Persaud”) is a resident of Mount Vernon, New York. She was employed by MetLife from April 1993 until February 6, 2001, as a Financial Service Rep. Despite her outstanding qualifications and recognized achievement, Persaud was denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Persaud filed a charge of discrimination, charging discrimination and retaliation, with the EEOC on January 8, 2001, and updated such charge on or around March 9, 2001. Persaud received a Notice of Right to Sue from the EEOC on or about September 5, 2001.
15. Plaintiff Janet Ramsey (“Ramsey”) is a resident of Durham, North Carolina. She was employed by MetLife from June 1983 until April 6, 2001, in the positions of Financial Service Rep, Branch Manager (also known as Sales Manager), and Managing Director. Despite her outstanding qualifications and demonstrated managerial abilities, Ramsey has been denied job assignments, promotions, compensation, and professional support offered to similarlysituated men. Ramsey filed a charge of discrimination with the EEOC on June 20, 2000. She filed a charge of retaliation on or about March 13, 2001. The EEOC issued Ramsey a Notice of Right to Sue on her charge of discrimination on February 26, 2001, which Ramsey received on February 27, 2001. This action was filed within ninety days from Ramsey's receipt of such Notice. Ramsey received a Notice of Right to Sue from the EEOC on her charge of retaliation on or about October 29, 2001.
Defendant

16. Defendant Metropolitan Life Insurance Company, Inc., is incorporated under the laws of the State of New York. Its principal place of business is at One Madison Avenue, New York, New York. MetLife has multiple agency and office locations throughout the United States, including in this District.
17. Defendant Met Life has actively engaged in unlawful gender discrimination and knowingly encouraged and tolerated such discrimination by its officials, and failed to make a good-faith attempt to comply with applicable laws with respect to the practices alleged herein.
CLASS ALLEGATIONS
18. Plaintiffs bring this class action pursuant to Fed. R.Civ.P. 23(a), (b)(2), and (b)(3) on behalf of a Class of all female past, present, and future employees who have been employed within the Financial Services division of the Individual Business unit of MetLife (“MLFS”) or its successor group, if any, since August 27, 1999, or who will be so employed between the date of the filing of the Original Complaint and the date of judgment in this action (the “Class”).
19. Plaintiffs Mitchell, Gee, and Persaud bring this class action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female past, present, and future employees who have been employed within MLFS or its successor group, if any, in New York State since March 13, 1998, or who will be so employed between the date of the filing of the Original Complaint and the date of judgment in this action (the “New York State Subclass”).
20. Plaintiffs Mitchell, Gee, and Persaud also bring this class action pursuant to Fed. R.Civ.P. 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female past, present, and future employees who have been employed within the MLFS or its successor group, if any, in New York City since March 13, 1998, or who will be so employed between the date of the filing of the Original Complaint and the date of judgment in this action (the “New York City Subclass”).
21. Plaintiffs are members of the Class and Subclasses they seek to represent.
22. The members of the Class and Subclasses are so numerous that joinder of all members is impracticable. The number of Class and Subclass members is indeterminate at the present time but is larger than can be addressed practicably by joinder.
23. The claims of the named Plaintiffs are typical of the claims of the Class and Subclasses they represent.
24. The named Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class and Subclasses they represent. Plaintiffs have retained counsel competent and experienced in complex class actions and employment discrimination litigation.
25. Class certification is appropriate pursuant to Fed. R.Civ.P. 23(b)(2) because MetLife has acted and/or refused to act on grounds generally applicable to the Class and Subclasses, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class and Subclasses as a whole.
26. Class certification is also appropriate under Fed. R.Civ.P. 23(b)(3) because questions of law and fact common to the Class and Subclasses predominate over any questions affecting only individual members, including:

a. whether MetLife violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 198 a (“Title VII”), the New York State Human Rights Law, New York Executive Laws §§ 290, et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”) by its acts and omissions as alleged herein, including:
(1) maintaining a “glass ceiling” by denying promotional opportunities to female employees within MLFS in favor of less or equally qualified men, and by demoting female employees within MLFS, during agency mergers and closures while retaining positions of similarly-situated male employees;
(2) paying female employees within MLFS less compensation than similarly-situated men;
(3) denying female employees within MLFS job opportunities, leads and accounts, professional support and other terms, conditions and privileges of employment based on their gender; and
(4) discouraging or deterring female employees within MLFS from applying for, taking or remaining in MLFS sales and/or sales management positions based on their gender.
b. whether MetLife engages in a policy and/or pattern or practice of gender-based discrimination against its female employees within MLFS;
c. whether MetLife engages in acts that constitute systemic disparate treatment with respect to the named Plaintiffs and the members of the Class and Subclasses as alleged herein;
d. whether MetLife's employment policies and practices have a disparate impact upon female MFLS employees;
e. whether MetLife's personnel policies and practices are unlawfully discriminatory and should be reformed or eliminated, and, if so, the proper way to accomplish that goal;
f. whether the members of the Class and Subclasses are entitled to further affirmative relief;
g. whether the members of the Class and Subclasses are entitled to back pay and benefits and, if so, a determination of the proper measure of the relief;
h. whether the members of the Class and Subclasses are entitled to front pay and benefits until such time as they can be placed in the same position they would now have occupied if there had never been any gender discrimination against them, and, if so, a determination of the proper measure of the relief;
i. whether the members of the Class and Subclasses are entitled to compensatory damages and, if so, a determination of the proper measure of the relief;
j. whether the members of the Class and Subclasses are entitled to punitive damages and, if so, a determination of the proper measure of the relief;

k. whether the violations of law against the Class and Subclasses were continuing or serial violations;
l. whether the members of the Class and Subclasses are entitled to prejudgment interest on their relief.
CLAIMS OF NAMED PLAINTIFFS
Stella Mitchell
27. Plaintiff Stella Mitchell, a female, is currently employed by MetLife as a Financial Service Rep at the MetLife Garden City Financial Group Agency in Garden City, New York.
28. MetLife first hired Mitchell in 1987 as a Financial Service Rep in the Broadway Agency, located in New York, New York. In 1994, she became Managing Director of the Regency Agency, located in New York, New York. In 1996, she was demoted to Associate General Manager of the Riverside Agency, in New York, New York. In 1998, Mitchell once again assumed the position of Managing Director at the Madison Square Agency, in New York, New York. In October 2000, Mitchell was demoted to Financial Service Rep, the position she currently holds.
29. MetLife has continually denied Mitchell job assignments offered to similarlysituated male employees. Despite her outstanding qualifications and demonstrated managerial abilities, Mitchell was demoted from her position as Managing Director each time her agency was merged with another agency, while male Managing Directors with no greater qualifications were allowed to retain their positions.
30. Between 1994 and 1996, Mitchell served as Managing Director of MetLife's Regency Agency. As Managing Director of this new agency, Mitchell successfully built up a staff and eventually supervised and managed nine Financial Service Reps and two support staff. MetLife failed to provide Mitchell with the financial support normally given to Managing Directors of new agencies, such as agency development funds, books of business, transferred Financial Service Reps, and clerical staff. Despite this lack of support, two Financial Service Reps working under Mitchell qualified for the Leaders Conference Qualifications (awarded to the top ten percent of all national producers), and Mitchell received the Regional Leader of Exceptional Achievement, Mid-eastern Territory, Superbowl Recruiting Campaign in January 1995, for outstanding recruiting efforts.
31. In early 1996, MetLife merged the Regency Agency with another of its agencies, known as the Riverside Agency. Although these two agencies were equal in size, Mitchell was stripped of her Managing Director position. Instead, the Manager Director position was given to a man with much less experience as a Managing Director, and Mitchell was demoted to Associate General Manager of the newly-merged agency.
32. In approximately May 1998, Mitchell was transferred to another agency within MetLife, the Madison Square Agency, where she held the position of Managing Director. Mitchell was again successful in this position, including recruiting five new Financial Service Reps and receiving an award for Outstanding Recruiting (the Behemoth Award for the National Monster Recruiting Campaign). During her tenure as Managing Director of the Madison Square Agency, Mitchell became increasingly aware of MetLife's lack of support for female managers. While male managers received large compensation packages, books of business, and Financial Service Reps to staff their agencies, female managers were routinely demoted and denied opportunities to continue building successful agencies.

33. On February 2, 2000, the Zone Vice-President, a man, informed Mitchell that MetLife was abolishing the Madison Square Agency and that she would again be demoted. By September, 2000, Mitchell had been stripped of her staff and Financial Service Reps. On approximately October 13, 2000, MetLife formally abolished the Madison Square Agency and demoted Mitchell to the position of Financial Service Rep, her original position at MetLife when she began in 1987. Simultaneous with the decision to terminate her position as Managing Director, and despite her request for reinstatement to a comparable management position, MetLife hired two men to start a new agency in the same office space from which Mitchell's agency was abolished. MetLife hired both men for Managing Director positions although neither of them had any experience in the position at MetLife. Accordingly, Mitchell has been denied job assignments and promotional opportunities afforded similarly-situated men.
34. Mitchell filed an EEOC charge of discrimination on or about September 15, 2000, and informed MetLife of the filing on or about September 18, 2000. On the same day that Mitchell imparted this information, MetLife discharged her staff, sent her Financial Service Reps to another agency, and otherwise took retaliatory steps that day and shortly after that left her without the technical or personnel means to do her work. Mitchell had no means to do her work between this time and October 13, 2000, the date of the formal abolition of her agency.
35. Defendant MetLife has discriminated against Mitchell on account of her gender as follows:
a. By continually denying her job assignments offered to similarly-situated men, including denying her comparable Managing Director positions and demoting her from Managing Director to the less senior positions of Associate General Manager and Financial Service Rep when her agency was merged with another;
b. By failing and refusing to provide her with promotional opportunities on the same basis as men;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
e. By retaliating against her in response to her complaints of gender inequities; and
f. By promoting similarly-situated men more rapidly than her.
36. On or about September 15, 2000, Mitchell filed a charge of discrimination with the EEOC, and, on or about October 25, 2000, she filed an EEOC charge of retaliation. Mitchell filed a Second Supplemental Affidavit in support of her EEOC charges on or about December 7, 2000. Attached to this First Amended Complaint as Exhibit 1, and incorporated by reference, is a copy of the Right to Sue Notice the EEOC issued to Mitchell on May 10, 2001.
Hwa-Mei C. Gee
37. Plaintiff Hwa-Mei C. Gee, a female, is currently employed by MetLife in the position of Financial Service Rep and “Advance Market Manager,” or “Functional Manager,” at the MetLife Garden City Financial Group in Garden City, New York.

38. MetLife hired Gee in May 1986, to work as a Financial Service Rep in its Mitchell Garden Office in Lake Success, New York. In 1995, she was promoted to the position of Sales Manager. In 1998, she began working as the Market/Development Manager at MetLife's Hudson Agency Group in Brooklyn, New York. (A position that, upon information and belief, was roughly comparable to that of Agency Director in status and compensation.) In June 1999, she became the Managing Director at the Flushing Financial Center Agency in Flushing, New York. In December 2000, she was demoted to Financial Service Rep, the position she held when she began with the company fifteen years earlier.
39. Gee has been denied professional and financial support MetLife has extended to similarly-situated men. For example, in June 1999, Gee was recruited to become Managing Director of the Flushing Financial Center Agency, a new storefront agency. The Zone Manager, a male, promised that she would be financially supported in her business plan and compensated for two years. Although she was initially offered financial support to open the agency, this support was withdrawn without explanation approximately six months later, in early 2000. Her clerical support and technical capacity were also cut. In addition, Gee was never compensated for the recruits she hired. By contrast, male Managing Directors received compensation for growing their agencies (as much as $7,000 per new recruit), and received continued financial support.
40. On approximately December 29, 2000, MetLife closed Gee's agency and demoted her to Financial Service Rep and Functional Manager. Although MetLife failed to provide her with the same or a comparable position at another agency, the company did so for similarlysituated men.
41. Gee has also been denied promotional opportunities afforded similarly-situated men. For example, in 1991, although Gee was the only “manager-in-training” in her office, a younger, less-experienced man was hired for the position of Sales Manager over her.
42. In January 2002, Gee's Managing Director, a male, hired a less-qualified and lessexperienced man, for the position of Assistant Manager, even though Gee had several financial planning designations that the newly-hired Assistant Manager did not. Moreover, Gee had fifteen years experience with MetLife (including over five years within MetLife management).
43. Gee has also been retaliated against because of her complaints of gender discrimination and her filing of this lawsuit. In or about December 2001, a female member of the Asian Marketing Group in MetLife's home office recommended Gee for the position of Advisory Committee Member of the Chinese Market. Upon information and belief, a male Assistant Vice President refused to let Gee be nominated, stating to this female marketing group member that “Gee is suing the company.”
44. Defendant MetLife has discriminated against Gee on account of her gender and retaliated against her as follows:
a. By continually denying her job assignments offered similarly-situated men, including denying her comparable Managing Director positions and demoting her from Managing Director to the lower positions of Financial Service Rep and Functional Manager during agency closures or mergers;
b. By failing and refusing to provide her with promotional opportunities on the same basis as males;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force

to deny her promotional opportunities;
d. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
e. By promoting similarly-situated men more rapidly than her; and
f. By retaliating against her for her complaints of gender discrimination and the filing of this lawsuit.
45. Gee filed a charge of discrimination with the EEOC on or about January 17, 2000. Attached to the Original Complaint as Exhibit B and incorporated by reference, is a copy of that charge. Attached to this First Amended Complaint as Exhibit 2, and incorporated by reference, is a copy of the Notice of Right to Sue the EEOC issued to Gee on May 7, 2001.
Barbara LaChance
46. Plaintiff Barbara LaChance, a female, has been employed by MetLife for more than thirty years. She currently holds the position of Senior Compensation Associate in the MetLife Administrative Office in Tampa, Florida.
47. LaChance began her employment with MetLife in or about 1969, as a support staff clerk within the MLFS. In or about late 1975, she became a Financial Service Rep; however, in early 1977, she was steered back into the less prestigious, administrative position of senior clerk. In 1979, she was promoted to Regional Analyst and in 1981, to Territorial Senior Staff Analyst. In 1994, she sought the position of Territorial Administrator with the Southern Territorial Office in Tampa, Florida, but was instead offered the less senior position of Regional Administrator. LaChance held that position until May 1999, when it was abolished. At about that time, LaChance went on disability leave. She returned to MetLife in September of 1999, as a Senior Compensation Associate, her current position.
48. LaChance has been, and continues to be, deterred from advancing to higher status and better compensated positions as compared to similarly-situated men. In or about 1976, LaChance worked as a Financial Service Rep. However, after eighteen months as a Financial Service Rep, LaChance was steered into the position of senior clerk by her supervisor, a man, in order to service a new Financial Service Rep, also a man.
49. On or about February 4, 1994, LaChance sought the position of Territorial Administrator in her Southern Territorial Office in Tampa, Florida. LaChance was qualified for and already performing duties required of the Territorial Administrator. Despite her capacity to do the job, MetLife told her “she wasn't the man for the job”, and transferred a man with less relevant experience from another, regional office to fill the post. MetLife then offered her the less senior and less compensated position of Regional Administrator in the Regional Office in Charlotte, North Carolina.
50. Throughout 2000, LaChance had approximately 15 conversations with an employee in MetLife management who told her that MetLife fails to hire women as Financial Service Reps at the same rate as similarly-situated men; has a practice of not promoting women to management positions; and has committed other gender-based acts of discrimination. LaChance spoke in particular to the National Director of Women's Recruiting, a new position that was eliminated in 2000. The National Director of Women's Recruiting, a woman, informed LaChance that she had discovered that MetLife hires one out or every thirteen male applicants who pass the basic aptitude test to become Financial Service Reps, but only one out of every twenty-three females who pass this test. Being aware of MetLife's systematic failure to hire

qualified women for Financial Service Rep positions, LaChance was deterred from applying for a Financial Service Rep position, despite her interest in and qualifications for such a position.
51. Defendant MetLife has discriminated against LaChance on account of her gender as follows:
a. By steering her into administrative rather than sales positions because of her gender;
b. By deterring her from applying for or taking a sales position because of her gender; and
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotions to more highlycompensated positions for which she was qualified.
52. On or about October 19, 2000, LaChance filed a charge of discrimination with the EEOC. LaChance amended her charge on or about March 5, 2001. That charge is attached to the Original Complaint as Exhibit C, and incorporated by reference. Attached to this First Amended Complaint as Exhibit 3, and incorporated by reference, is a copy of the Notice of Right to Sue the EEOC issued to LaChance on May 10, 2001.
Durpatty Persaud
53. Plaintiff Durpatty Persaud, a female, was employed by MetLife as a Financial Service Rep since she began her employment with MetLife in the United Agency, in Queens, New York, in April 1993 until February 8, 2001.
54. In late 1995, Persaud was transferred to MetLife's Long Island Agency, in Lake Success, New York. In April of 2000, Persaud requested a transfer to MetLife's Lake Success Agency, also in Lake Success, New York, because of the gender discrimination she was experiencing, as described herein. In response to her complaints, MetLife retaliated against her by terminating her employment, effective on or about February 8, 2001.
55. During the time she worked at MetLife, Persaud was denied promotional opportunities offered to similarly-situated men. In 1999, Persaud acquired the designation of Certified Financial Planner, a distinguished qualification that no one else in the Long Island Agency held. Persaud was a top producer in her agency, earning a spot at the Leader's Conference and the Million Dollar Round Table, for outstanding sales production. Yet, in approximately 1999, MetLife promoted four males to Functional Manager positions in the Long Island Agency, where Persaud worked. All four of these men had lower sales production and substantially less experience than Persaud. Two of the men were promoted after being with MetLife for less than one year, and the other two had been with the Company for only three to five years. In contrast to Persaud, none of these men had achieved the Leader's Conference or the Million Dollar Round Table production levels in 1999. Although Persaud was asked to perform the duties of a Functional Manager-level employee, she was never given the title despite requesting it. Persaud protested to her supervisor, a man, who ignored her complaints.
56. Persaud was also denied business support that was provided to male Financial Service Reps. For example, although male Financial Service Reps who earned production awards, such as the Leader's Conference and Million Dollar Round Table, were given private offices, Persaud was denied an office, which impeded her ability to service clients effectively.
57. Because of these discriminatory actions, Persaud requested a transfer and was transferred to the Lake Success Agency in Lake Success, New York on or around May 1, 2000, where she remained an Account Rep until leaving the Company.

On May 12, 2000, Persaud met with the Zone Vice-President, a man, regarding the discriminatory actions that were taken against her. Persaud stated at this meeting that she had transferred because she was being discriminated against because of her gender. However, MetLife did not respond to her complaints. Instead, MetLife retaliated against her by denying her access to her client information, thereby impeding her ability to service her clients and to earn compensation.
58. MetLife then retaliated against Persuad a second time by terminating her employment. On October 10, 2000, Persaud went on disability leave for a degenerative disc condition in her back. On January 4, 2001, when she called in for her mail, Persaud was told that she was being terminated and that such termination would be effective the day she returned from disability leave. Persaud became eligible to work on February 6, 2001, the last date for which she was paid. Persaud's effective date of termination was on or about February 8, 2001.
59. Defendant MetLife has discriminated against Persaud on account of her gender as follows:
a. By failing and refusing to provide her with promotional opportunities on the same basis as men;
b. By failing to provide her with the benefits and professional support necessary to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By promoting similarly-situated men more rapidly than her;
e. By discouraging her from pursuing promotional opportunities; and
f. By terminating her employment in retaliation for her complaints of gender inequities.
60. On or about January 8, 2001, Persaud filed a charge of discrimination with the EEOC. Persaud amended her charge on or about March 9, 2001. Persaud's amended charge is attached to the Original Complaint as Exhibit D, and is incorporated by reference. Persaud received a Notice of Right to Sue from EEOC on September 5, 2001.
Janet Ramsey
61. Plaintiff Janet Ramsey, a female, was employed by MetLife for more nearly eighteen years.
62. Ramsey began her employment with MetLife in 1983, as a Financial Service Rep at the Durham Agency in Durham, North Carolina. In 1986, Ramsey was promoted to Branch Manager, and in 1995, she was made Managing Director of the Triangle Agency, which serviced the Northeast Region of North Carolina. Ramsey was demoted to Agency Director in January 2000. After complaining about discriminatory conduct and making numerous requests for reinstatement to a Managing Director position, she was demoted again in January, 2001, to Financial Planner, a position comparable to a Financial Service Rep in compensation and status, and constructively discharged effective April 6, 2001.

63. Ramsey has been denied promotional opportunities offered to similarly-situated men. In 1996, Ramsey sought the position of Regional Manager, a position which was open in Pennsylvania. However, she did not receive the job because, according to her Regional Manager, a male, the open region was a “rough position” and MetLife management did not think she could handle it “as a woman.” The position ultimately went to a man who had not achieved the same level of success within the company as Ramsey. As both a Financial Service Rep and Managing Director, Ramsey achieved many production awards, including Leader's Conference and Management Leader's Conference for outstanding sales and sales management. Ramsey has excelled at MetLife and never received any negative performance reviews.
64. Despite Ramsey's achievements, on January 10, 2000, after 14 years as Managing Director or Branch Manager of her agency, she was demoted to Agency Director, a second-level management position, when her agency was merged with another. By contrast, the man who was hired as Managing Director of this new agency, effectively replacing Ramsey, had no experience with, and had not achieved any recognition at, MetLife. In addition, men with either comparable or inferior qualifications and less seniority than Ramsey retained their Managing Director positions.
65. In January 2001, Ramsey was demoted again, to Financial Planner, in retaliation for her complaints regarding gender inequity and discrimination. Based on the foregoing, Ramsey was constructively discharged from her employment with MetLife effective on April 6, 2001.
66. Defendant MetLife has discriminated against Ramsey on account of her gender as follows:
a. By continually denying her job assignments offered to similarly-situated men, including denying her comparable Managing Director positions and demoting her from Managing Director when her agency was merged with another;
b. By failing and refusing to provide her with promotional opportunities on the same basis as men;
c. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
d. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities; and
e. By promoting similarly-situated men more rapidly than her; and
f. By retaliating against and constructively discharging her for her complaints regarding gender discrimination.
67. On or about June 20, 2000, Ramsey filed a charge of discrimination with the EEOC. Ramsey amended that charge on January 24, 2001. Ramsey subsequently filed a charge of retaliation on or about March 13, 2001. Attached to the Original Complaint as Exhibit E, and incorporated by reference, are copies of those charges. Ramsey received a Notice of Right to Sue from the EEOC on or about February 27, 2001. The Original Complaint was filed within 90 days of February 27, 2001. Ramsey received a Notice of Right to Sue from the EEOC for her charge of retaliation on or about October 29, 2001. Attached to this First Amended Complaint as Exhibit 4, and incorporated by reference, are copies of Notices of Right to Sue the EEOC issued to Ramsey on February 26, 2001 and October 26, 2001.
GENERAL PATTERNS OF DISCRIMINATION

68. The denials and abridgments of employment opportunities suffered by Plaintiffs are not isolated examples of MetLife's discriminatory employment practices. Rather, they are illustrative of the pervasive pattern or practice of gender discrimination in the terms and conditions of employment that has continually existed at MetLife.
69. The under-representation of women in MLFS is not random or coincidental, but results from a policy and/or pattern or practice of discrimination in promotional and career advancement opportunities, job and work assignments, demotions, job assistance and support, assignment of leads and accounts, compensation, and other terms, conditions and privileges of employment. MetLife has engaged in a serious policy and/or pattern or practice of underutilizing women in entry-level positions. In fact, MetLife's own internal study, conducted in 2000, found that the company hired one out of every thirteen qualified men, but only one out of every twenty-three qualified women. After disproportionately excluding qualified women from entry-level positions, the company has then failed to promote women to managerial positions. Moreover, the few women who do receive management positions are held to different standards than men, are denied the same level of support from management to succeed in their positions as men, and are disproportionately demoted without cause when the company closes or merges their agencies. In addition, when women bring their concerns about gender discrimination and inequities to the company's attention, they are subject to retaliation.
70. MetLife has pursued discriminatory policies and practices on a continuing basis that have had the effect of denying equal job opportunities to qualified women. Such discriminatory policies and practices include, without limitation:
a. Relying upon subjective, discriminatory criteria utilized by a nearly allmale managerial workforce in making job selections and promotional decisions;
b. Using of pretextual and shifting “qualifications” and requirements for job selections and opportunities which are different for males than for females, and which favor males over females;
c. Maintaining sex-segregation in administrative, sales and management positions;
d. Obstructing, deterring and discouraging female employees within the MLFS from applying for and assuming sales and sales management positions;
e. Failing and refusing to consider females for desirable job assignments or promotions on the same basis as males are considered;
f. Failing and refusing to provide females the necessary work support and assistance, including but not limited to assignment of leads and accounts, to enable them to succeed on the same basis as males are provided them;
g. Failing and refusing to promote females on the same basis as males are promoted;
h. Failing and refusing to find comparable positions for females affected by office mergers while routinely locating such positions for male employees;
i. Maintaining and fostering a reputation for discriminatory conduct which discourages and deters female employees

within the MLFS from pursuing employment, jobs and/or promotional opportunities with MetLife;
j. Establishing and maintaining discriminatory and subjective requirements for job and work assignments, and promotion and career advancement opportunities which have the effect of excluding qualified women and which have not been shown to have any significant relationship to job performance or to be necessary to the proper and efficient conduct of MetLife's business;
k. Compensating women less than similarly-situated males; and
l. Failing and refusing to take reasonable and adequate steps to eliminate the effects of MetLife's past discriminatory practices.
71. As a result of MetLife's continued policies and/or pattern or practice of intentional discrimination and pursuit of policies and practices that have an adverse impact upon women, women are hired in disproportionately-lower numbers at MetLife, and of those who are hired, only a small fraction have been allowed to advance to better positions, usually for only a temporary period.
FIRST CLAIM FOR RELIEF
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq., as amended, 42 U.S.C. § 1981a)
(Brought on behalf of all Plaintiffs and the Class)
72. Plaintiffs incorporate the foregoing paragraphs.
73. This claim is brought on behalf of all Plaintiffs and the Class they represent.
74. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a.
75. Plaintiffs have received Notices of Right to Sue from the EEOC. Plaintiffs, on behalf of themselves and all others similarly situated, have therefore exhausted their administrative remedies and fulfilled all conditions precedent to suit.
76. Plaintiffs request relief as set forth hereinafter.
SECOND CLAIM FOR RELIEF
(New York Executive Law § 296)
(Brought on behalf of Plaintiffs Stella Mitchell, Hwa-Mei Gee, and Durpatty Persaud, and all past, present and future

female employees who have worked or will work at MetLife facilities in New York state only)
77. Plaintiffs incorporate the foregoing paragraphs.
78. This claim is brought on behalf of Plaintiffs Mitchell, Gee, and Persaud and the New York State Subclass they represent.
79. The foregoing conduct violates the New York Executive Law § 296.
80. Plaintiffs have not filed a complaint with the State Division on Human Rights and elect to pursue their right to sue in court.
81. Plaintiffs request relief as set forth hereinafter.
THIRD CLAIM FOR RELIEF
(Title 8 of the Administrative Code of the City of New York)
(Brought on behalf of Plaintiffs Stella Mitchell, Hwa-Mei Gee, and Durpatty Persaud and all past, present and future female employees who have worked or will work at MetLife facilities in the City of New York only)
82. Plaintiffs incorporate the foregoing paragraphs.
83. This claim is brought on behalf of Plaintiffs Mitchell, Gee and Persaud, and the New York City Subclass they represent.
84. The foregoing conduct violates Title 8 of the Administrative Code of the City of New York.
85. Plaintiffs will satisfy notice requirements by serving this First Amended Complaint on the Corporation Counsel of the City of New York and the New York City Commission on Human Rights.
86. Plaintiffs request relief as set forth hereinafter.
RELIEF ALLEGATIONS
87. Plaintiffs and the Class and Subclasses they represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the Class and Subclasses they represent are now suffering and will continue to suffer irreparable injury from MetLife's discriminatory acts and omissions.

88. The actions on the part of MetLife have caused and continue to cause Plaintiffs and all Class and Subclass members substantial losses in earnings, promotional opportunities, and other employment benefits, and have caused Plaintiffs and all Class and Subclass members to suffer and continue to suffer humiliation, embarrassment, and anguish, all to their damage in an amount to be established according to proof.
89. MetLife committed the acts herein alleged with malice and reckless indifference and disregard to the Plaintiffs' and Class and Subclass members' federal, state and municipal rights. Plaintiffs and Class and Subclass members are thus entitled to recover punitive damages in an amount to be determined according to proof.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs and the Class and Subclasses pray for relief as follows:
1. Certification of the case as a class action on behalf of the proposed Class and Subclasses and designation of Plaintiffs as representatives of the Class and appropriate Subclasses, and their counsel of record as Class Counsel;
2. Preliminary and permanent injunctions against MetLife and its partners, officers, owners, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies, customs, and usages set forth herein;
3. A judgment declaring that the practices complained of herein are unlawful and violative of 42 U.S.C. §§ 2000e, et seq., Title VII of the Civil Rights Act of 1964; New York Executive Law § 296; and Title 8 of the Administrative Code of the City of New York;
4. An order assigning or restoring Class and Subclass members to those jobs they would now be occupying but for MetLife's discriminatory practices, or in lieu of reinstatement or in the event that Class and Subclass members cannot immediately be placed in their rightful positions, an order for front pay and benefits;
5. An adjustment of the wage rates, benefits, and seniority rights for Plaintiffs and the Class and Subclasses to that level which Plaintiffs and the Class and Subclasses would be enjoying but for MetLife's discriminatory practices;
6. All damages which individual Plaintiffs and the Class and Subclasses have sustained as a result of MetLife's conduct, including back pay, front pay, general and special damages for lost compensation and job benefits they would have received but for the discriminatory practices of MetLife, and for emotional distress, humiliation, embarrassment, and anguish, in an amount to be determined according to proof;
7. Exemplary and punitive damages in an amount commensurate with MetLife's ability to pay and sufficient to deter future conduct;
8. Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law; and
9. Pre-judgment and post-judgment interest, as provided by law.

DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial for all individual, Class and Subclass claims so triable.
Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01 Civ. 2112 (WHP). July 26, 2002.
Answer to First Amended Complaint
Defendant Metropolitan Life Insurance Company (“MetLife” or “defendant”) by and through its attorneys, Proskauer Rose LLP, states in answer to the First Amended Complaint (“Complaint”):
1. Defendant denies the allegations contained in Paragraph 1 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
2. Defendant denies the allegations contained in Paragraph 2 of the Complaint, except admits that MetLife is a financial services provider that sells individual insurance, annuities, investment products, group insurance, and retirement and savings financial products and derives its revenues primarily from the sale of those financial products, that individual insurance products are sold through the MetLife Financial Services division and that MetLife provides insurance to individuals and corporations and other institutions in the United States.
3. Defendant denies the allegations contained in Paragraph 3 of the Complaint, except admits the allegations contained in the first and fourth sentences and admits that the compensation for Financial Services Representatives is based, in part, on commissions made through the sale of MetLife insurance and financial products and that many Financial Services Representatives work in agency offices throughout the country.
4. Defendant denies the allegations contained in Paragraph 4 of the Complaint, except admits that there is a second-line management position between Managing Director and Financial Services Representative entitled Agency Director; that Regional Vice Presidents are typically responsible for a number of agencies within their region; and that the Zone Vice Presidents report to an Executive Vice President of MetLife.
5. Defendant denies the allegations contained in Paragraph 5 of the Complaint.
6. Defendant denies the allegations contained in Paragraph 6 of the Complaint, except admits that, currently, all of the Zone Vice Presidents and the head of MLFS are men.
7. Defendant denies the allegations contained in Paragraph 7 of the Complaint.
8. Defendant denies the allegations contained in Paragraph 8 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
9. Defendant denies the allegations contained in Paragraph 9 of the Complaint, except admits that plaintiffs purport to

bring this action pursuant to the jurisdictional references.
10. Defendant denies the allegations contained in Paragraph 10 of the Complaint, except admits that plaintiffs purport to establish venue as alleged.
11. Defendant denies the allegations contained in Paragraph 11 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when Mitchell filed her charge, second charge and second supplemental affidavit with the Equal Employment Opportunity Commission (“EEOC”), whether and when she received a Notice of Right to Sue and the location of her residence and admits that Mitchell has been employed by MetLife since July 1987 and has held the positions of Financial Services Representative, Associate General Manager and Managing Director and that she filed a charge of discrimination with the EEOC, a second charge of retaliation with the EEOC on October 25, 2000 and a second supplemental affidavit with the EEOC.
12. Defendant denies the allegations contained in Paragraph 12 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether and when Gee received a Notice of Right to Sue and the location of her residence and admits that Gee has been employed by MetLife since 1986 and has held the positions of Financial Services Representative and Associate General Manager and that she filed a charge of discrimination with the EEOC on January 17, 2001.
13. Defendant denies the allegations contained in Paragraph 13 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether and when LaChance received a Notice of Right to Sue and the location of her residence and admits that LaChance filed a charge of discrimination with the EEOC on October 19, 2000.
14. Defendant denies the allegations contained in Paragraph 14 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when Persaud filed her charge of discrimination with the EEOC, whether and when she received a Notice of Right to Sue and the location of her residence and admits that Persaud was employed by MetLife from 1993 to February 2001 as a Financial Services Representative and that she filed a charge of discrimination with the EEOC.
15. Defendant denies the allegations contained in Paragraph 15 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when Ramsey received a Notice of Right to Sue from the EEOC on her charge of discrimination, when Ramsey filed a charge of retaliation with the EEOC and the location of her residence and admits that Ramsey was employed by MetLife from June 1983 to April 6, 2001 and held the positions of Financial Services Representative, Branch Manager and Managing Director, that she filed a charge of discrimination with the EEOC on June 20, 2000, that she filed a charge of retaliation with the EEOC, that the EEOC issued her a Notice of Right to Sue on her charge of discrimination dated February 26, 2001 and that this action was filed within ninety days from the date on that Notice of Right to Sue.
16. Defendant admits the allegations contained in Paragraph 16 of the Complaint.
17. Defendant denies the allegations contained in Paragraph 17 of the Complaint.
18. Defendant denies the allegations contained in Paragraph 18 of the Complaint, except admits that plaintiffs purport to proceed and define the “Class” as stated therein.

19. Defendant denies the allegations contained in Paragraph 19 of the Complaint, except admits that plaintiffs purport to proceed and define the “New York State Subclass” as stated therein.
20. Defendant denies the allegations contained in Paragraph 20 of the Complaint, except admits that plaintiffs purport to proceed and define the “New York City Subclass” as stated therein.
21. Defendant denies the allegations contained in Paragraph 21 of the Complaint.
22. Defendant denies the allegations contained in Paragraphs 22-24 of the Complaint and states that plaintiffs have not met the requirements of Rule 23, F.R.Civ.P.
23. Defendant denies the allegations contained in Paragraphs 25-26 of the Complaint and all of its subparts and states that class certification is not appropriate pursuant to Rule 23(b), F.R.Civ.P.
24. Defendant denies the allegations contained in Paragraph 27 of the Complaint, except admits that Mitchell is a female and is currently employed by MetLife as a Financial Services Representative in Garden City, New York.
25. Defendant denies the allegations contained in Paragraph 28 of the Complaint, except admits that MetLife hired Mitchell in 1987 as a Financial Services Representative, that she worked in the Broadway Agency located in New York, New York, that in 1994 she was promoted from Account Representative/Associate Branch Manager of the Broadway Agency to Branch Manager of the Regency Agency located in New York, New York, that in 1996 she became the Agency Director of the Riverside Agency located in New York, New York, that in 1998 she became the Managing Director of the Madison Square Agency located in New York, New York and that in October 2000 she became a Financial Services Representative, the position she currently holds.
26. Defendant denies the allegations contained in Paragraph 29 of the Complaint.
27. Defendant denies the allegations contained in Paragraph 30 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning whether Mitchell received the “Regional Leader of Exceptional Achievement, Mideastern Territory, Superbowl Recruiting Campaign” in January of 1995 and admits that between 1994 and 1996, Mitchell served as Managing Director of the Regency Agency and that two Financial Services Representatives in the Regency Agency qualified for the Leader's Conference.
28. Defendant denies the allegations contained in Paragraph 31 of the Complaint, except admits that in 1996 the Regency Agency was merged with the Riverside Agency, that Mitchell was made an Agency Director of the Riverside Agency and that a man remained Managing Director of the Riverside Agency.
29. Defendant denies the allegations contained in Paragraph 32 of the Complaint, except admits that Mitchell received a “Behemoth” award and that in or about May 1998 Mitchell was made the Managing Director of the Madison Square Agency.
30. Defendant denies the allegations contained in Paragraph 33 of the Complaint, except admits that on or about October 13, 2000 the Madison Square Agency was abolished, that Mitchell became a Financial Services Representative and that Mitchell's Zone Vice President is a man.

31. Defendant denies the allegations contained in Paragraph 34 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning when Mitchell filed an EEOC charge of discrimination and admits that on or about September 18, 2000 Mitchell sent an email addressed to her Zone Vice President stating that she had filed a charge of discrimination with the EEOC.
32. Defendant denies the allegations contained in Paragraph 35 of the Complaint and all of its subparts.
33. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 36 of the Complaint, except admits that Mitchell filed a charge of discrimination, a second charge and a second supplemental affidavit with the EEOC and that a copy of the Notice of Right to Sue dated May 10, 2001 is attached to the First Amended Complaint as Exhibit 1.
34. Defendant denies the allegations contained in Paragraph 37 of the Complaint, except admits that Gee is a female, is employed by MetLife, is a Functional Manager and works in Garden City, New York.
35. Defendant denies the allegations contained in Paragraph 38 of the Complaint, except admits that in 1986 Gee was hired to work as a Financial Services Representative in the Mitchell Garden Office in Lake Success, New York, that in 1995 she became a Sales Manager, that in 1998 she began working at the Hudson Agency Group in Brooklyn, New York and that in 1999 she began working at the Flushing Financial Center Agency.
36. Defendant denies the allegations contained in Paragraph 39 of the Complaint, except admits that in 1999 Gee began working at the Flushing Financial Center Agency.
37. Defendant denies the allegations contained in Paragraph 40 of the Complaint, except admits that in December 2000, the Flushing Financial Center Agency was closed.
38. Defendant denies the allegations contained in Paragraph 41 of the Complaint, except admits that, at some point, Gee was a “manager-in-training.”
39. Defendant denies the allegations contained in Paragraph 42 of the Complaint.
40. Defendant denies the allegations contained in Paragraph 43 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning whether a female member of the Asian Marketing Group in MetLife's home office recommended Gee for the position of Advisory Committee Member of the Chinese Market.
41. Defendant denies the allegations contained in Paragraph 44 of the Complaint and all of its subparts.
42. Defendant denies the allegations contained in Paragraph 45 of the Complaint, except admits that Gee filed a charge of discrimination with the EEOC, that a copy of that charge was attached to the Original Complaint as Exhibit B and that a copy of the Notice of Right to Sue dated May 7, 2001 is attached to the First Amended Complaint as Exhibit 2.

43. Defendant denies the allegations contained in Paragraph 46 of the Complaint, except admits that LaChance works in the Compensation Unit located in Tampa, Florida as a Senior Staff Associate, that she is a female and that she has worked for MetLife for more than thirty years.
44. Defendant denies the allegations contained in Paragraph 47 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations in the third sentence and admits that from March 1976 to May 1977 LaChance worked as a Financial Services Representative, that in 1994 LaChance became the Regional Administrator for the Atlantic Coast Region, that such position was abolished in May 1999, that in May 1999 she commenced a disability leave of absence and that in September 1999 she began working as a Senior Staff Associate in the Compensation Unit, her current position.
45. Defendant denies the allegations contained in Paragraph 48 of the Complaint, except admits that from March 1976 to May 1977 LaChance worked as a Financial Services Representative.
46. Defendant denies the allegations contained in Paragraph 49 of the Complaint.
47. Defendant denies the allegations contained in Paragraph 50 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether LaChance had conversations with an “employee in MetLife management,” the substance of those purported conversations and how many purported conversations they had and whether LaChance spoke with the “National Director of Women's Recruiting” and the substance of their purported communications.
48. Defendant denies the allegations contained in Paragraph 51 of the Complaint and all of its subparts.
49. Defendant denies the allegations contained in Paragraph 52 of the Complaint, except admits that LaChance filed a charge of discrimination with the EEOC on October 19, 2000, that a copy of that charge was attached to the Original Complaint as Exhibit C and that a copy of the Notice of Right to Sue dated May 10, 2001 is attached to the First Amended Complaint as Exhibit 3.
50. Defendant denies the allegations contained in Paragraph 53 of the Complaint, except admits that Persaud is a female and that she was employed as a Financial Services Representative for MetLife from April 1993 to February 8, 2001.
51. Defendant denies the allegations contained in Paragraph 54 of the Complaint.
52. Defendant denies the allegations contained in Paragraph 55 of the Complaint, except admits that in 1999 Persaud acquired the designation of Certified Financial Planner, that in 1999 she qualified for Leader's Conference and that she never held the title of Functional Manager.
53. Defendant denies the allegations contained in Paragraph 56 of the Complaint.
54. Defendant denies the allegations contained in Paragraph 57 of the Complaint, except admits that effective May 1, 2000 Persaud was transferred to the Lake Success Financial Group in Lake Success, New York where she was a Financial Services Representative until she left MetLife and that on or about May 12, 2000 Persaud met with the then Atlantic Zone Vice President, a man.

55. Defendant denies the allegations contained in Paragraph 58 of the Complaint, except admits that Persaud was terminated effective February 8, 2001, that in the Fall 2000 she went on disability leave and that she was informed in January 2001 that she was being terminated.
56. Defendant denies the allegations contained in Paragraph 59 of the Complaint and all of its subparts.
57. Defendant denies the allegations contained in Paragraph 60 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether and when Persaud received a Notice of Right to Sue from the EEOC and when she filed a charge of discrimination with the EEOC and admits that Persaud filed a charge of discrimination with the EEOC and that a copy of the amended charge was attached to the Original Complaint as Exhibit D.
58. Defendant denies the allegations contained in Paragraph 61 of the Complaint, except admits that Ramsey is a female.
59. Defendant denies the allegations contained in Paragraph 62 of the Complaint, except admits that Ramsey began working for MetLife as a Financial Services Representative in 1983 at the Durham Agency in Durham, North Carolina, that in 1986 she became an Agency Manager, that she became Managing Director of the Triangle Agency, that in January 2000 she became an Agency Director and that in January 2001 she became a Financial Planner.
60. Defendant denies the allegations contained in Paragraph 63 of the Complaint, except admits that Ramsey has achieved production or other awards at MetLife, including Leader's Conference and Management Leader's Conference.
61. Defendant denies the allegations contained in Paragraph 64 of the Complaint, except admits that in January 2000 Ramsey became an Agency Director when her agency merged with another agency.
62. Defendant denies the allegations contained in Paragraph 65 of the Complaint, except admits that in January 2001 Ramsey became a Financial Planner.
63. Defendant denies the allegations contained in Paragraph 66 of the Complaint and all of its subparts.
64. Defendant denies the allegations contained in Paragraph 67 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning when Ramsey filed a charge of retaliation with the EEOC and whether and when she received the Notices of Right to Sue and admits that Ramsey filed a charge of discrimination with the EEOC on or about June 20, 2000, that she filed a charge of retaliation with the EEOC, that the June 20, 2000 charge was attached to the Original Complaint as Exhibit E, that the Original Complaint was filed within 90 days of February 27, 2001 and that copies of two Notices of Right to Sue dated February 26, 2001 and October 26, 2001, respectively, are attached to the First Amended Complaint as Exhibit 4.
65. Defendant denies the allegations contained in Paragraph 68 of the Complaint.
66. Defendant denies the allegations contained in Paragraph 69 of the Complaint.

67. Defendant denies the allegations contained in Paragraph 70 of the Complaint and all of its subparts.
68. Defendant denies the allegations contained in Paragraph 71 of the Complaint.
69. In response to the allegations contained in Paragraph 72, defendant repeats each of its answers to Paragraphs 1 through 71 as if fully set forth herein.
70. Defendant denies the allegations contained in Paragraph 73 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
71. Defendant denies the allegations contained in Paragraph 74 of the Complaint.
72. Defendant denies the allegations contained in Paragraph 75 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether plaintiffs received Notices of Right to Sue from the EEOC.
73. Defendant denies the allegations contained in Paragraph 76 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
74. In response to the allegations contained in Paragraph 77, defendant repeats each of its answers to Paragraphs 1 through 76 as if fully set forth herein.
75. Defendant denies the allegations contained in Paragraph 78 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
76. Defendant denies the allegations contained in Paragraph 79 of the Complaint.
77. Defendant denies the allegations contained in Paragraph 80 of the Complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegation concerning whether plaintiffs have filed a complaint with the State Division of Human Rights.
78. Defendant denies the allegations contained in Paragraph 81 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
79. In response to the allegations contained in Paragraph 82, defendant repeats each of its answers to Paragraphs 1 through 81 as if fully set forth herein.
80. Defendant denies the allegations contained in Paragraph 83 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
81. Defendant denies the allegations contained in Paragraph 84 of the Complaint.

82. Defendant denies the allegations contained in Paragraph 85 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
83. Defendant denies the allegations contained in Paragraph 86 of the Complaint, except admits that plaintiffs purport to proceed as stated therein.
84. Defendant denies the allegations contained in Paragraph 87 of the Complaint.
85. Defendant denies the allegations contained in Paragraph 88 of the Complaint.
86. Defendant denies the allegations contained in Paragraph 89 of the Complaint.
87. Defendant denies the allegations contained in the Prayer for Relief of the Complaint.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
88. The Complaint, in whole or in part, fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
89. The Complaint, in whole or in part, fails to state a claim upon which an award of compensatory damages, punitive damages and attorney's fees can be granted.
THIRD AFFIRMATIVE DEFENSE
90. The Complaint is barred, in whole or in part, by the applicable statutes of limitations and/or filing periods and/or by the failure to satisfy the statutory and/or administrative prerequisites to the bringing of an action under Title VII, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, New York Executive Law § 290, et seq., and Title 8 of the Administrative Code of the City of New York.
FOURTH AFFIRMATIVE DEFENSE
91. Plaintiffs, (individually, and/or any purported member of any purported class (hereinafter, for identification purposes only, referred to as “Plaintiffs”)) are not entitled to recover punitive damages on their claims of discrimination and retaliation because at all relevant times, including prior to the allegations that form the basis of plaintiffs' claims, defendant has engaged in good faith efforts to comply with all laws prohibiting discrimination in employment.

FIFTH AFFIRMATIVE DEFENSE
92. Plaintiffs' claims and the purported class claims are barred, in whole or in part, because their claims are beyond the scope of their administrative charges.
SIXTH AFFIRMATIVE DEFENSE
93. Plaintiffs' claims for monetary relief are barred, in whole or in part, by their failure to mitigate damages.
SEVENTH AFFIRMATIVE DEFENSE
94. Plaintiffs' claims are barred, in whole or in part, as the plaintiffs have elected their remedies.
EIGHTH AFFIRMATIVE DEFENSE
95. To the extent that defendant's actions were motivated, in part, by unlawful reasons (which defendant denies), defendant would have taken the same actions with respect to plaintiffs for legitimate, non-discriminatory reasons.
NINTH AFFIRMATIVE DEFENSE
96. Plaintiffs' claim for the recovery of punitive damages is in contravention of defendant's rights under each of the following provisions: (a) the Commerce Clause of Article I, Section 8 of the United States Constitution; (b) the Contract Clause of Article I, Section 10 of the United States Constitution; (c) the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution; (d) the Equal Protection of the laws afforded by the Fourteenth Amendment to the United States Constitution; (e) the Constitutional prohibition against vague and overbroad laws; and (f) the corresponding state constitutional provisions.
TENTH AFFIRMATIVE DEFENSE
97. Defendant's liability and penalties, if any, should be mitigated by virtue of the factors set forth in Sections 8-107(13)(d) and (e) of the New York City Human Rights Law.
ELEVENTH AFFIRMATIVE DEFENSE
98. The Complaint is barred, in whole or in part, to the extent plaintiffs (or any member of any purported class) agreed to resolve their claims through final and binding arbitration.
TWELFTH AFFIRMATIVE DEFENSE
99. Plaintiffs' claims are barred, in whole or in part, by the applicable statute of frauds.

Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly
situated, and Barbara LaChance, individually, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01-Civ-2112 (WHP). March 20, 2003.
Amended Memorandum of Law in Support of Plaintiffs' Motion for Class Certification
TABLE OF CONTENTS
I. INTRODUCTION ... 1
II. STATEMENT OF FACTS ... 3
A. The Corporate Structure and Organization of MetLife and MLFS Are Centralized and Standardized. ... 3
B. MLFS Operations Are Governed by a Centralized Personnel Management System and Uniform Personnel Policies and Practices ... 5
C. MetLife Gives MLFS Managers, Who Are Overwhelmingly Male, Broad Discretion to Select Agency Managers and Allocate Business Development Resources to FSRs and Agency Managers. ... 6
1. Selections for MLFS agency management positions are made at the discretion of MLFS managers who use highly subjective and gender-biased criteria. ... 6
2. MetLife affords MLFS managers unfettered discretion to allocate business development resources in a manner that negatively affects female FSRs' and agency managers' compensation ... 9
D. Opportunities for Agency Management Positions and Compensation in MLFS Flow Disproportionately to Male FSRs and Agency Managers by All Statistical Measures. ... 10
E. MetLife Had Ample Notice Of Systemic Barriers For Women In MLFS But Failed To Take Effective Measures To Address And Eliminate Such Barriers. ... 13
III. ARGUMENT ... 14
A. General Principles of Class Certification ... 14

B. Plaintiffs Meet Rule 23(a)'s Prerequisites of Numerosity, Commonality, Typicality, and Adequacy of Representation ... 15
1. The class is so numerous that joinder of all class members is impracticable. (Fed.R.Civ.P. 23(a)(1)). ... 15
2. MetLife's discriminatory policies and practices raise questions of law and fact common to the class. (Fed.R.Civ.P. 23(a)(2)). ... 16
a. Plaintiffs and the class have common claims that rely on the same evidence. ... 16
b. Multiple common questions of fact are present in this case. ... 17
c. Multiple common questions of law are present in this case. ... 17
d. Common issues of law arise from plaintiffs' reliance on both disparate impact and disparate treatment theories of gender discrimination ... 18
i. Disparate treatment. ... 18
ii. Disparate impact. ... 19
3. The claims of the representative plaintiffs are typical of the claims of the class members. (Fed.R.Civ.P. 23(a)(3)). ... 20
4. The representative plaintiffs and their counsel will fairly and adequately protect the interests of the class. (Fed.R.Civ.P. 23(a)(4)). ... 22
C. This Court Should Certify the Class as a Rule 23(b)(2) Action because Plaintiffs Satisfy the Requirements of that Rule. ... 22
1. Certification of this class under Rule 23(b)(2) is required by the Second Circuit's decision in Robinson v. MetroNorth Commuter Railroad. ... 23
2. In the alternative, the Court could bifurcate the action and grant class certification, pursuant to Rule 23(b)(2), limited to liability issues. ... 24
IV. CONCLUSION ... 24
TABLE OF AUTHORITIES
CASES

Butler v. Home Depot, Inc., 70 Fair Empl. Prac. Cas. 51 (BNA) (N.D. Cal. 1996) ... 24 Caridad v. Metro North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000) ... 15, 17, 18, 19, 20 Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) ... 15 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ... 15 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) ... 14 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ... 19 Hazelwood School Dist. v. United States, 433 U.S. 299 (1977) ... 12 Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000) ... 15 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ... 18, 19, 24 Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894 (7th Cir. 1999) ... 24 Latino Officers Ass'n v. City of New York, 209 F.R.D. 79 (S.D.N.Y. 2002) ... 16, 20, 23, 24 Lemon v. Int'l Union of Operating Eng., 216 F.3d 577 (7th Cir. 2000) ... 24 Marisol A by Forbes v. Guiliani, 126 F.3d 372 (2d Cir. 1997) ... 17 Robinson v. MetroNorth Commuter R.R., 267 F.3d 147 (2d Cir. 2001), cert. denied, 122 S.Ct. 1349 (2002) ... passim Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) ... 16, 18 Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656 (2d Cir. 1978) ... 15 Shores v. Publix Super Markets, Inc., 69 Empl. Prac. Dec. (CCH) P44,478 (M.D. Fla. 1996) ... 24 Smith v. Xerox, 196 F.3d 358 (2d Cir. 1999) ... 12

Stender v. Lucky Stores, 803 F. Supp. 258 (N.D. Cal. 1992) ... 24 Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193 (S.D.N.Y. 1992) ... 16 Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001), cert. denied, 122 S. Ct. 2382 (2002) ... 15 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ... 18, 19 DOCKETED CASES Molski v. Gleich, Nos. 00-57099, 01-55066, 01-55068, 2003 WL 255964 (9th Cir. 2003) ... 23 RULES AND STATUTES Federal Rules of Civil Procedure 23 ... 14, 15 23(a) ... 1, 3, 15 23(a)(1) ... 15 23(a)(2) ... 16 23(a)(3) ... 20 23(a)(4) ... 22 23(b) ... 15, 22 23(b)(2) ... passim 23(c)(4) ... 24 23(d)(2) ... 24

OTHER AUTHORITIES
Advisory Committee Notes, 39 F.R.D. 69 (1966) ... 14
1 Newberg On Class Actions 2d, (1985 ed.) § 3.05 ... 15
Ramona L. Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases §4.13 (West Group 1999) ... 12
I. INTRODUCTION
Representative plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey (“plaintiffs”)[FN1] seek certification, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), of a class defined as:
FN1. Plaintiff Barbara LaChance is proceeding in her individual capacity only and not as a representative of the class. Plaintiffs will file a motion seeking leave to file a Second Amended Complaint, reflecting this change in Ms. LaChance's status and dismissing her class claim, prior to the hearing on their Motion for Class Certification, which is scheduled for June 4, 2003. All female past, present and future sales representatives and sales agency managers employed within the Financial Services (“MLFS”) division of defendant Metropolitan Life Insurance Company (“MetLife”), or its successor group, if any, in any state outside New York State, or since August 27, 1999, or in New York State since March 13, 1998.
Plaintiffs allege class wide gender discrimination under both disparate treatment and disparate impact theories of Title VII and analogous state and local laws. Specifically, plaintiffs claim MetLife discriminates against them and members of the proposed class because of their gender in the following ways:
1. MetLife maintains a “glass ceiling” throughout MLFS by denying qualified female sales representatives and agency managers equal opportunities for promotion to or selection for agency management positions, and instead, predominantly male decision makers in MLFS favor less qualified men for such positions. As a result, men hold nearly 90% of MLFS agency level management positions and all MLFS management positions above the agency level.
2. MetLife compensates female sales representatives throughout MLFS less than similarly situated men by denying these women equal access to discretionary business development resources, including training, mentoring, and assignment of sales leads and books of business. As a result, female sales representatives in MLFS earn, on average, thousands of dollars less than their male counterparts each year. Stated another way, in 2001, female sales representatives earned, on average, 87% of what similarly situated males earned.
3. MetLife compensates female agency managers throughout MLFS less than similarly situated men by (a) denying these women equal access to discretionary business development resources such as training, mentoring, and discretionary funding, and (b) relying on subjective criteria, exercised with gender bias, to determine the allocation of agency profits among agency managers. As a result, the few female agency managers in MLFS earn, on average, tens of thousands of dollars less each year than their male counterparts. In 2001, female agency managers earned, on average, 54% of what similarly situated male managers earned.

4. MetLife failed to respond effectively to known gender inequities in MLFS. A February 1999 internal analysis, “The Women of MetLife Report,” analyzed the number of women in sales representative and manager positions in MLFS sales agencies and concluded that “MetLife does not place high value on the promotion of women to management positions in our [sales] organization.... Men are several times more likely to be chosen for management positions [than women].” Women of MetLife, p. 77 at Appendix (“App.”) I, Declaration of Lisa Dungan (“Dungan Dec.”),[FN2] Ex. 2. Despite this knowledge, MetLife chose to ignore the Report and took few, if any, effective steps to address systemic barriers that disadvantage women in MLFS.
FN2. Documents, deposition testimony and expert reports cited herein are appended to the Declaration of Lisa Dungan. Plaintiffs rely on the following evidence to support their motion for class certification: (1) 31 declarations and 72 administrative charges, court complaints and internal complaints from class members and female witnesses alleging gender discrimination in sales agencies in 21 states throughout MLFS; (2) declarations from male managers who observed gender discriminatory conduct in MLFS; (3) MetLife documents and the testimony of 18 MetLife managers[FN3] that establish that MetLife's personnel practices are highly discretionary, based on subjective decision making and uniform throughout MLFS; and (4) reports of expert witnesses Richard Drogin, Ph.D., a statistician, and William T. Bielby, Ph.D, a sociologist, describing, respectively, the statistical indicia and mechanisms of MetLife's discriminatory practices.
FN3. A chart identifying the 18 MetLife managers by name, title and office location is attached to the Declaration of Lisa Dungan as Ex. 1. The class wide nature of plaintiffs' claims, the factual questions and legal issues they raise, and the evidence supporting them meet the requirements of Rules 23(a) and (b)(2) for class certification under Robinson v. MetroNorth Commuter R.R., 267 F.3d 147 (2d Cir. 2001), cert. denied, 122 S.Ct. 1349 (2002), which controls here. Accordingly, this Court should certify a Rule 23(b)(2) class.
II. STATEMENT OF FACTS
MetLife is a financial services company that sells individual and group insurance, annuities, investment products, and retirement and savings financial products and services throughout the United States. See App. I, Dungan Dec., Ex. 3. The plaintiffs and the proposed class members have been employed as sales representatives and agency managers in MLFS, the division of MetLife responsible for selling insurance and financial services products to individuals and small businesses. See id.
A. The Corporate Structure and Organization of MetLife and MLFS Are Centralized and Standardized.
MLFS sales operations are uniform across the country. MLFS sales operations in the United States are carried out through approximately 138 sales agencies. See App. I, Dungan Dec., Ex. 4. MLFS' hierarchy and job titles are the same in all agencies and for managers above the agency level. See Dungan Dec., Ex. 5. Although the precise staffing of an agency can be affected by its size, managers and sales representatives must fulfill the same functions in all agencies. See App. I, Dungan Dec., Ex. 6.
MLFS sales operations are dominated by men. Nearly 90% of the agency managers and 80% of FSRs were men as of the end of 2001. See Declaration of Dr. Richard Drogin (“Drogin”), Tbbl. 1 at App. I, Dungan Dec., Ex. 7; App. V, Declaration of Scott Grimes (“Grimes Dec.”), ¶ 3. In 1998, the beginning of the liability period, 93.4% of agency managers and 77.6% of FSRs were male. See id. MLFS agencies are run by first line managers called Managing Directors (“MDs”). MDs are responsible for the overall management of their agencies, including sales, marketing, finance, recruiting, training, administration, and compliance functions. See App. I, Dungan Dec., Ex. 8. The average compensation for MDs was $272,261 in 2001.[FN4]

FN4. The statistics cited are for 2001, because that is the most recent year for which MetLife produced full year employee data to plaintiffs.
Agency Directors (“ADs”) are the second line agency managers who report to MDs. ADs' responsibilities include recruiting, training, and developing their agencies' sales forces. See App. I, Dungan Dec., Ex. 9. The average compensation for ADs in 2001 was $106,798. See App. V, Grimes Dec., ¶ 4. Next in line are the Financial Service Representatives (“FSRs”) who sell MetLife's individual insurance and financial services products. See App. I, Dungan Dec., Ex. 10. Average FSRs' compensation in 2001 was $69,937. See App. V, Grimes Dec., ¶ 4. Some FSRs also hold the title of Functional Manager (“FM”) and are assigned recruiting or training responsibilities for which they receive additional compensation. See App. I, Dungan Dec., Ex. 11. The average pay for FMs in 2001 was $117,727. See App. V, Grimes Dec., ¶ 4.
Prior to 1998, MetLife organized MLFS sales agencies geographically into regions, regions into territories, and territories into zones. MDs reported to Regional Vice Presidents (“RVPs”), who reported to Territorial Vice Presidents (“TVPs”), who in turn, reported to Zone Vice Presidents (“ZVPs”). See App. I, Dungan Dec., Ex. 12. In 1998, MetLife implemented a systemic initiative, called “segmentation,” to reorganize MLFS sales operations. MetLife eliminated the territories and the TVP position and is phasing out the regions and the RVP position, so that eventually every MD will report directly to a ZVP. See App. I, Dungan Dec., Ex. 13. There currently are five geographic zones in MLFS - Northeastern, North Atlantic, South Atlantic, Central, and Western - each headed by a male ZVP, who reports to MetLife's President of North American Sales, who is male, and who in turn reports to MetLife's President and Chief Executive Officer, who is male. See App. I, Dungan Dec., Ex. 14. As a result of segmentation, the number of agencies, MDs, FMs and FSRs in MLFS decreased. See App. I, Dungan Dec., Ex. 15.
B. MLFS Operations Are Governed by a Centralized Personnel Management System and Uniform Personnel Policies and Practices.
Sales agencies throughout MLFS operate under a uniform and highly integrated system of personnel policies and practices. MetLife's Human Resource (“HR”) Department assigns HR generalists, who report to MetLife's Assistant Vice President for Human Resources, to each MLFS zone. They assist MLFS agency managers with performance management and employee relations. See App. I, Dungan Dec., Ex. 16. The HR generalists also provide training regarding MetLife's personnel policies and procedures, and investigate MLFS employee complaints, including complaints of discrimination and harassment. See id. HR generalists meet with each other periodically to ensure uniform implementation of MetLife's personnel policies and practices across MLFS zones. See id.
MetLife has comprehensive and detailed policies and procedures governing equal employment opportunity, workplace behavior, office procedures, recruitment and selection of FSRs, training, performance management, and compensation. MetLife, through its HR, Training, and Compensation Departments, formulates, distributes and enforces these policies and procedures throughout MLFS. See App. I, Dungan Dec., Ex. 17. MetLife ensures uniform personnel management policies and practices by promulgating and distributing policies, procedures and instruction manuals that are applicable throughout MLFS.[FN5]
FN5. Examples of the comprehensive policy and procedure and instruction manuals include: (1) “InForm Ready Reference Manual for Representatives - General Responsibilities,” a six volume reference resource containing information on MetLife products, policies, procedures and business conduct guidelines; (2) “A Manager's Guide to HR Policies and Procedures,” a selfdescribed “place to go when [managers] need timely, up-to-date information about [MetLife's] current HR and related policies;” (3) “Manual of Instructions for Sales Management,” a 500page guide on managing an MLFS agency, that includes copies of MetLife's personnel policies and procedures; (4) “Leading Change by Managing Performance” and the companion “Performance Management” website, which provide information and instructions for conducting staff and manager performance evaluations; (5) annually issued FSR compensation plan manuals, which describe MLFS' uniform and company wide FSR compensation formula; and (6) annually issued MLFS agency management compensation plans, which describe MLFS' uniform and company wide agency management

compensation formula. See App. I, Dungan Dec., Ex. 18-23.
MetLife also provides training on these personnel policies and procedures to MLFS ADs, MDs, RVPs and ZVPs to ensure the policies and procedures are implemented uniformly throughout MLFS. See App. II, Dungan Dec., Ex. 24. Additionally, ZVPs and RVPs meet regularly with each other and with the MDs who report to them to discuss staffing, performance, productivity, recruiting, training, and other agency personnel issues to ensure MLFS wide compliance with company policies and practices. See App. II, Dungan Dec., Ex. 25.
C. MetLife Gives MLFS Managers, Who Are Overwhelmingly Male, Broad Discretion to Select Agency Managers and Allocate Business Development Resources to FSRs and Agency Managers.
1. Selections for MLFS agency management positions are made at the discretion of MLFS managers who use highly subjective and gender-biased criteria.
MetLife delegates nearly unfettered discretion to MLFS managers, who are overwhelmingly male, to select individuals for agency management positions. See Report of William T. Bielby, Ph.D. (“Bielby”), p. 22 at App. II, Dungan Dec., Ex. 26. This highly discretionary and male-dominated decision making operates both at the initial selection and approval levels. RVPs and ZVPs, who are all men, select MDs and often approve the MDs' selections of lower level managers for their agencies. See App. II, Dungan Dec., Ex. 27. MDs, nearly 94% of whom are male, select individuals for AD and FM positions. See App. II, Dungan Dec., Ex. 28; App. V, Grimes Dec., ¶ 5.
MetLife does not have formal, written procedures for selecting MLFS agency management personnel. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 29. There is no uniform application process or effective system for interested candidates to apply or express interest in MLFS agency management positions. See id. Although MetLife has had a computerized job posting system since 2001, MetLife does not require MD and AD positions to be posted on the system. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 30. Thus, MLFS managers are free to decide for themselves whether to post available positions. Few managers see the value in posting such positions. See App. II, Dungan Dec., Ex. 31. Consequently, MD and AD positions are posted inconsistently. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 32. Additionally, FM positions are never posted. See App. II, Dungan Dec., Ex. 33. In the absence of formal application and selection procedures, MLFS managers at the MD, RVP and ZVP levels use an informal and highly discretionary “tap on the shoulder” system to identify and select candidates for MD, AD and FM positions. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 34.
MLFS managers use highly subjective criteria to make selections for agency management positions. MetLife does not provide MLFS managers with written criteria or standards to guide them in exercising their discretion to select individuals for MD, AD, and FM positions. See Bielby, pp. 20-22 at App. II, Dungan Dec., Ex. 26, 35. Selecting managers thus rely on a range of selection criteria, many of which are highly subjective and/or vague. ZVPs, RVPs, and MDs testified that the criteria they use to select individuals for agency manager positions include such subjective factors as: “overall success,” “leadership,” “affinity” or the “ability to fit in the marketplace [and/or] with the FSRs in the agency” where there is an opening, “vision,” “management style,” and “integrity”. See Bielby, p. 21 at App. II, Dungan Dec., Ex. 26, 36. MetLife has offered no evidence to show that the selection criteria used by MLFS managers has been validated or determined to be job related.
MetLife fails to provide oversight of MLFS manager selections, thereby allowing decisions to be made based on gender stereotypes. MetLife has “[n]o policies or procedures in place to ensure that [MLFS managers'] assessment of subjective factors is done in a systematic, reliable and valid manner.” See Bielby, p. 22 at App. II, Dungan Dec., Ex. 26, 37. MetLife provides no oversight or systematic analysis of MLFS manager selection decisions or their gender impact. Moreover, a MetLife senior HR manager testified that he does not believe such monitoring is necessary. See Bielby, pp. 20-22 at App. II, Dungan Dec., Ex. 26, 38. These deficiencies are especially consequential in workplaces like MLFS where “the highly discretionary and subjective

system for making selection decisions ... is set in a historically male-dominated work context where men predominate in positions of status and authority ... [t]hat is the kind of decision-making context that is vulnerable to gender stereotyping and gender bias.” Bielby, p. 22 at App. II, Dungan Dec., Ex. 26.
The record is replete with testimony from many witnesses demonstrating that MDs, RVPs, and ZVPs, unrestrained by formalized selection procedures or articulated criteria, make agency manager selections based on gender stereotypes. Testimony from both male and female witnesses depicts the gender biased attitudes and conduct of male managers in MLFS. For example, one male AD testified that RVP Edward Garger routinely made discriminatory selection decisions and sexist remarks, once saying he would “never make [a female FSR] a manager. She would get married, have a kid, and then I'm screwed.” Declaration of May Rafanan (“Rafanan Dec.”), Ex. 22.[FN6] Katherine Fredericks-Bowen, who served temporarily as an acting RVP, was told by ZVP Richard Tartre, who refused to place her in the position permanently, that he would never make a woman an RVP. See App. II, Dungan Dec., Ex. 39. Declarant Jana Pierce testified that MD David Mansfield responded to her inquiry about why there were so few female managers in his agency by stating “[w]hy should I make a woman manager when I have ten men who are qualified?” See App. IV, Rafanan Dec., Ex. 31. All of the plaintiffs and 28 class members and witnesses have alleged they were not selected for agency management positions for which lesser qualified men were selected due to an informal “good old boy network” in MLFS that disadvantages women. See App. IV, Rafanan Dec., Ex. 1, 16, 28, 31.
FN6. Information regarding incidents of discriminatory conduct cited herein, which was obtained from declarations, administrative charges of discrimination, court complaints, and internal MetLife complaints are summarized in and appended to the Declaration of May Rafanan. 2. MetLife affords MLFS managers unfettered discretion to allocate business development resources in a manner that
negatively affects female FSRs' and agency managers' compensation.
FSR compensation is, in large part, determined by a formula, based almost entirely on commissions on an FSR's personal sales production, that applies uniformly to all FSRs in MLFS. See App. II, Dungan Dec., Ex. 40. However, MDs and ADs provide FSRs with business development resources and assistance, such as informal training and mentoring, assignment of sales leads and books of business, and partnering with managers and/or more experienced FSRs, that impact FSRs' sales and income. See Bielby, pp. 19-20, 22 at App. II, Dungan Dec., Ex. 26, 41. MetLife gives its male MDs and ADs broad discretion to allocate these business development resources to FSRs. MetLife does not give managers written guidelines or criteria on how to allocate these business development resources. See Bielby, pp. 19-20, 22 at App. II, Dungan Dec., Ex. 26, 42. As a result, managers allocate such resources using subjective criteria and gender biased stereotypes that disadvantage female FSRs. Class members and witnesses repeatedly alleged the unequal and gender biased distribution of these resources. Plaintiff Persaud and 55 FSR class members and witnesses allege they were denied resources and opportunities, which affected their compensation, that similarly situated men in their agencies received. See App. IV, Rafanan Dec., Ex. 1.
MLFS agency manager compensation is largely determined by a common performance based compensation plan (“PBC”) that considers the agency's FSR production, recruiting, retention, sales growth, profitability, ethics, and compliance. The PBC formula applies uniformly to all agencies. See App. III, Dungan Dec., Ex. 43. However, MetLife affords RVPs and ZVPs, all of whom are male, broad discretion to make decisions that impact agency management compensation to the detriment of female MDs and ADs. These decisions encompass allocation of resources, such as training, mentoring and discretionary funds that can increase MDs' and ADs' compensation. See App. III, Dungan Dec., Ex. 44. Plaintiffs and former MDs Mitchell, Gee, and Ramsey, and class member and former MD Carol Rollero all testified that MLFS senior managers denied them discretionary funding and/or other business development support for their agencies that similarly situated male MDs received. See App. IV, Rafanan Dec., Ex. 1. Additionally, MetLife delegates uncontrolled authority to MDs, 90% of whom are male, to determine the ADs' PCB compensation. See App. III, Dungan Dec., Ex. 45.
MetLife does not provide MLFS managers written criteria or guidelines on how to distribute discretionary business development resources to FSRs and agency managers or for determining ADs' share of the PCB, nor does it monitor these unguided decisions. Bielby, pp. 19-20, 22 at App. II, Dungan Dec., Ex. 26; App. III, Dungan Dec., 42, 44, 46. Consequently, MLFS managers have

unfettered discretion to allocate these resources relying on subjective and gender-biased criteria to the detriment of women. See Section II.D below. MetLife does not provide any oversight or systematic gender specific analyses of these compensation-affecting decisions. For example, MetLife does not monitor the gender distribution of sales leads and books of business to FSRs. Nor does MetLife review FSRs' or agency managers' compensation for gender based disparities. See App. III, Dungan Dec., Ex. 47.

D. Opportunities for Agency Management Positions and Compensation in MLFS Flow Disproportionately to Male FSRs and Agency Managers by All Statistical Measures.

MetLife maintains a gender-stratified workforce in MLFS. The staffing and compensation patterns in the MLFS sales organization form a pyramid. Location on the pyramid is dictated by gender. The greatest concentration of women has been at the bottom of the pyramid, in FSR positions. There are far fewer women at the middle of the pyramid in higher paying MD, AD, and FM positions. The smallest number of women is found in the influential MD position, whose incumbents - almost all male - exercise the most significant decision making authority at the agency level and who earn far more than lower level managers (AD's and FM's) and FSRs. Women are completely absent at the top of the pyramid in the RVP and ZVP positions. See Drogin, App. 2A, 2B at App. I, Dungan Dec., Ex. 7; Bielby, pp.11-12 at App. II, Dungan Dec., Ex. 26; App. III, Dungan Dec., Ex. 48.

The chart below graphically depicts this persistent pattern of gender stratification in the MLFS sales agencies over time. See App. V, Grimes Dec., ¶ 5; App. III, Dungan Dec., Ex. 48.

YEAR
1996 1997 1998 1999 2000 2001

FSRs

FMs

ADs

MDs

RVPs ZVPs

Total # % Total# 6C Total# % Total# %

#

#

Female

Female

Female

Female Female Female

7,287 21.5% 0

0 315 7.9% 415 4.9% 0

0

6,691 22% 113 8.8% 226 9.3% 380 3.7% 0

0

6,295 22.4% 287 8.4% 234 9.8% 372 3.2% 0

0

6,422 22% 375 10.7% 243 17.3% 318 3.8% 0

0

6,077 21.4% 377 9.3% 275 21.5% 250 3.6% 0

0

5,767 20.2% 286 9.8% 356 21.9% 197 5.6% 0

0

Female FSRs move into MD, AD, and FM positions at significantly lower rates than similarly situated males as a result of MetLife's discretionary and subjective selection policies and practices. Female FSRs are less likely to move into agency management positions (MD, AD, FM) than similarly situated males. Plaintiffs' statistical expert Dr. Drogin found that, between August 1999 and September 2002, women received 40 fewer job moves into these positions than expected. See Drogin, pp. 6-7 at App. I, Dungan Dec., Ex. 7. The gender disparities in promotions to agency management positions are statistically significant. The “Z-value” is -4.9. See id. This reflects a gap between male and female selection rates of almost five standard deviations,[FN7] meaning they are virtually certain not to have occurred by chance, but rather from some causal relationship, see Drogin, p. 5 at App. I, Dungan Dec., Ex. 7, such as gender discrimination. Moreover, the disparities are common across MLFS zones and over the entire liability period. See Drogin, pp. 6-7 at App. I, Dungan Dec., Ex. 7. In fact, this pattern of gender disparity antedates the liability period. Between January 1996 and August 1999, the female selection “shortfall” was 45 agency management jobs for a cumulative shortfall of 85 agency management jobs from 1996 through 2002, having a Z-value of -7.27. See id.

FN7. A probability value of Z<2 means that the observed disparity is highly unlikely (.05 probability) to reflect chance variations. A value of Z<5 means that the likelihood that random factors or chance can explain the disparity is very remote (one in 1,700,000). (See Drogin, p. 5 at App. I, Dungan Dec., Ex. 7.) Adverse impact of greater than two or three standard deviations “undercut [[s] the hypothesis that decision were being made randomly with respect to [[gender].” Hazelwood School Dist. v. United States, 433 U.S. 299, 311 n. 17 (1977). See also Smith v. Xerox, 196 F.3d 358, 366 (2d Cir. 1999) (“If an obtained result varies from the expected result by two standard deviations... Courts generally consider this level of significance sufficient to warrant an inference of discrimination.”) See generally, Ramona L.

Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases §4.13 (West Group 1999).

Female FSRs, ADs, and MDs also receive significantly less compensation than similarly situated men. Female FSRs earned between 7.7% and 13.1% less than their male counterparts in each year during the liability period. These disparities are statistically significant. See Drogin, pp. 8-10 at App. I, Dungan Dec., Ex. 7. Similarly, female MDs and ADs together earned between 33% and 46.2% less than similarly situated males during the same period. Average earnings for female MDs and ADs were less than for males in those positions in 1999, 2000 and 2001, respectively. These disparities also are statistically significant. See Drogin, pp. 10-12 at App. I, Dungan Dec., Ex. 7.

The chart below shows average earning shortfalls for female FSRs, ADs and MDs (compared to men) in 1999, 2000 and 2001. See Drogin, pp. 10-11 at App. I, Dungan Dec., Ex. 7.

Average Earnings

Shortfalls Of

Female FSRs and

MDs/ADs

YEAR

FSRs

Earnings Shortfall

1999 2000 2001

$3,425 $5,134 $7,002

Z-value
-4.57 -5.36 -6.91

MANAGERS Earnings Shortfall
$37,707 $50,392 $59,185

Z-value
-5.48 -7.08 -9.05

E. MetLife Had Ample Notice Of Systemic Barriers For Women In MLFS But Failed To Take Effective Measures To Address And Eliminate Such Barriers.

In February 1999, the internally produced report, “The Women of MetLife,” revealed a paucity of women in MLFS management positions and found “there does not appear to be a level playing field [in selections for MLFS management positions]. Men are several times more likely to be selected than women in each of the [sales] management positions.” See Women of MetLife, p. 7 at App. I, Dungan Dec., Ex. 2. The Report's finding of an unlevel playing field for women within MLFS has been echoed repeatedly in formal complaints brought by numerous female MLFS employees. See App. IV, Rafanan Dec., Ex. 43.

MetLife's response to notice of systemic gender bias within MLFS has been to ignore that information and “kill the messenger.” MetLife distributed the Women of MetLife Report only to a very few senior executives in MetLife. Almost immediately after the Report was issued, MetLife reduced the author's job duties and, ultimately, eliminated her position as MetLife's National Director for Women's Recruiting. See App. III, Dungan Dec., Ex. 49. Plaintiff Janet Ramsey was similarly victimized when she complained to MetLife's HR Department that she had been discriminatorily removed from her MD position because of her gender and further that “MetLife has not had a stellar record when it comes to promoting, supporting and developing females at the level of Managing Directors ... [and] are pushing out some of the few women managers they did have at that level.” See App. III, Dungan Dec., Ex. 50. MetLife failed to investigate Ms. Ramsey's complaint of systemic gender discrimination and demoted her to an FSR position. See App. IV, Rafanan Dec., Ex. 6. Additionally, 17 class members and female witnesses alleged they were subjected to retaliation by MLFS managers after complaining about discriminatory treatment. See App. IV, Rafanan Dec., Ex. 1.

Findings from focus groups MetLife conducted as recently as February 2002 reiterate long-standing complaints of systemic career barriers women face within MLFS. The focus group participants, who included female current and former FSRs and agency managers, reported that: (1) women are bypassed for MLFS agency management positions in favor of less qualified men; (2) male

agency managers favor male FSRs in distributing sales leads; (3) male managers and FSRs treat female MLFS FSRs and agency managers disrespectfully; and (4) female agency managers earn less than male managers. See App. III, Dungan Dec., Ex. 51.
Despite such notice, MetLife has failed to take adequate steps to eliminate systemic barriers that limit female FSRs' and agency managers' career advancement and compensation opportunities within MLFS, or to ensure that MLFS managers are held accountable for providing these women equal employment opportunities. See Bielby, pp. 22-30 at App. II, Dungan Dec., Ex. 26; App. III, Dungan Dec., Ex. 52. This indifference reflects MetLife's ratification of the practices that have resulted in the significant MLFS wide gender disparities summarized above.
III. ARGUMENT
A. General Principles of Class Certification.
This is the type of case for which the class action procedure was designed. Gender discrimination, no less than race discrimination, “is by definition class discrimination.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982). One of the primary purposes of Federal Rule of Civil Procedure 23 was to facilitate litigation of civil rights claims - like those presented here challenging systemic practices. Fed.R.Civ.P. 23(b)(2), Advisory Committee Notes, 39 F.R.D. 69, 102 (1966). The Second Circuit Court of Appeals' controlling decision in Robinson v. MetroNorth Commuter R.R., 267 F.3d 147 (2d Cir. 2001), cert. denied, 122 S.Ct. 1349 (2002), construed Rule 23 correctly and ordered certification of a Rule 23(b)(2) class in an employment discrimination case that, like this one, sought both equitable and compensatory damages.
Plaintiffs must demonstrate they meet the four prerequisites of Rule 23(a) and one of the requirements of Rule 23(b) to proceed as a class action. See Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132-33 (2d Cir. 2001), cert. denied, 122 S. Ct. 2382 (2002). Plaintiffs do not have to demonstrate that they will prevail on the merits at this stage of the litigation. See Caridad v. MetroNorth Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) (“Such a weighing of evidence is not appropriate at this stage of the litigation.”), cert. denied, 120 S. Ct. 1959 (2000), citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). Rather, the Court should consider the allegations in the complaint as true and examine the evidence only to determine whether the requirements of Rule 23 are met. See Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D.N.Y. 2000), citing, Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978). In making this determination, it is appropriate for the Court to consider evidence submitted outside of the pleadings, such as deposition testimony, declarations, and expert reports. Hirschfeld, 193 F.R.D. at 182, citing Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982).
B. Plaintiffs Meet Rule 23(a)'s Prerequisites of Numerosity, Commonality, Typicality, and Adequacy of Representation.
Plaintiffs satisfy the four prerequisites of Rule 23(a) - numerosity, commonality, typicality, and adequacy of representation.
1. The class is so numerous that joinder of all class members is impracticable. (Fed.R.Civ.P. 23(a)(1)).
Plaintiffs easily meet Rule 23's numerosity requirement because joinder of all class members is impracticable. There are potentially thousands of women in the proposed class. In 2001 alone, 1,387 women were employed in FSR and agency management positions in MLFS, and more women were employed in these positions over the entire liability period. See Drogin, App. 2A at App. I, Dungan Dec., Ex. 7. These numbers are more than sufficient to establish numerosity, which “is presumed at a level of 40 [class] members” in this Circuit. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995), citing, 1 Newberg On Class Actions 2d, (1985 ed.) § 3.05.

2. MetLife's discriminatory policies and practices raise questions of law and fact common to the class. (Fed.R.Civ.P. 23(a)(2)).
Rule 23(a)(2) requires the existence of questions of law or fact that are common to the class. The commonality test is to be liberally applied and is satisfied if there is at least one common issue of fact or law that affects all class members. See Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992). Plaintiffs satisfy the commonality requirement because this case raises multiple common legal claims based on patterns of conduct by MetLife that are common to the class.
a. Plaintiffs and the class have common claims that rely on the same evidence.
Plaintiffs and the class have common complaints about MetLife's selection and compensation practices and their effect on women. MLFS has uniform job titles and functions. MLFS uses uniform personnel policies and practices to delegate agency manager selection and resource allocation decisions to predominantly male managers. These managers rely on highly discretionary and subjective criteria with little oversight or review. MetLife's delegation of unfettered discretion to ZVPs, RVPs, and MDs to select agency managers and allocate resources constitutes a policy or practice sufficient to satisfy the commonality requirement. See Latino Officers Ass'n v. City of New York, 209 F.R.D. 79, 88 (S.D.N.Y. 2002) (“The delegation of discretionary authority to supervisors constitutes a policy or practice sufficient to satisfy the commonality requirement.”) Consistent application of subjective decision making throughout MLFS also raises common questions of fact and is a well recognized basis for finding commonality. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598-99 (2d Cir. 1986).
The claims of plaintiffs and the class rest on a foundation of common evidence: MLFS wide statistical data; expert reports analyzing MLFS wide data and practices; and documents and deposition testimony, mostly from MetLife's own managers, describing uniform MLFS policies and practices for selecting agency managers and allocating resources that impact compensation. Plaintiffs' statistical evidence establishes that women are unrepresented in MLFS senior level manager positions, under-selected for agency management positions, and earn less than similarly situated male MLFS employees. See Section II.D above. Statistical evidence is particularly relevant where decision making is subjective, as it is in MLFS. See Caridad, 191 F.3d at 292. Plaintiffs also present extensive anecdotal evidence to show how MetLife's managers make selection and resource allocation decisions in MLFS. See Section II.C above. Plaintiffs' statistical and anecdotal evidence shows that MetLife's actions are not “isolated or discrete instances but, rather, form a pattern of behavior that commonly affects all of the proposed class members.” Marisol A by Forbes v. Guiliani, 126 F.3d 372, 377 (2d Cir. 1997).
b. Multiple common questions of fact are present in this case.
Plaintiffs' claims and evidence raise the following questions of fact that are common to the entire class: (1) Whether, in making agency manager selections and resource allocations in MLFS, MetLife uses criteria that are vague, subjective and lend themselves to discriminatory and gender-stereotyped application by MLFS managers; (2) Whether women are systematically excluded from or disproportionately denied access to higher level and better paying MLFS agency management positions; (3) Whether female FSRs and agency managers are paid less than similarly situated males; (4) Whether female FSRs are treated less favorably than similarly situated males in the assignment of sales leads, books of business, and other resources; (5) Whether female agency managers are treated less favorably than similarly situated males in the allocation of agency discretionary funding and other resources; and (6) Whether MetLife perpetuates limitations on opportunities for women within MLFS by failing to post agency manager positions, develop articulated criteria for selection of agency managers and distribution of sales leads, books of business, and other resources, or implement accountability measures to prevent MLFS managers from making gender-biased selection and resource allocation decisions.
c. Multiple common questions of law are present in this case.

The overarching common questions of law raised in this case are whether MetLife discriminated against plaintiffs and the class in violation of Title VII and applicable New York State and New York City laws against employment discrimination. Additional questions of law include: (1) What is the significance and legal effect of plaintiffs' statistical evidence of gender-stratified staffing patterns and gender disparities in selections for agency management positions? See Robinson, 267 F.3d at 158-59, 160; (2) What is the significance and legal effect of plaintiffs' statistical evidence of gender disparities in FSR and agency manager compensation? See id.; (3) What is the significance and legal effect of the discretionary and subjective decision making MetLife affords MLFS managers in light of the statistical disparities in selection and compensation outcomes? See Caridad, 191 F.3d at 291-92; (4) What is the significance and legal effect of MetLife's failure to provide written selection and resource allocation procedures and criteria or to monitor MLFS managers' exercise of discretion in making selection and resource allocation decisions? See id.; and (5) Can MLFS' practices be justified by “business necessity” or can they be replaced by less discriminatory alternatives? See Robinson, 267 F.3d at 161. A host of subsidiary common questions of law also could be easily articulated.
d. Common issues of law arise from plaintiffs' reliance on both disparate impact and disparate treatment theories of gender discrimination.
Plaintiffs' disparate treatment and disparate impact theories of discrimination both raise numerous common class wide issues of law.
i. Disparate treatment.
To prevail under a theory of class wide disparate treatment, plaintiffs must establish that intentional discrimination against female FSRs and agency managers was MetLife's standard operating procedure. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 349 (1977); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-87 (1988). The focus of the proof in a disparate treatment class action is on the class as a whole and not on the treatment of individual plaintiffs or class members. See Robinson, 267 F.3d at 158 & n.5. Whether plaintiffs' proof establishes their disparate treatment claim raises common legal issues. See Rossini, 798 F.2d at 599 (“discriminatory intent clearly was a major issue of law and fact shared in common”). The most important evidence from which a pattern of intentional discrimination may be inferred is class wide statistical evidence. See Teamsters, 431 U.S. at 339; Robinson, 267 F.3d at 158 n.5, (statistical evidence is the core of plaintiffs' pattern or practice disparate treatment case). Plaintiffs present such class wide statistical evidence in Dr. Drogin's report. His analysis shows the existence of statistically significant gender disparities in compensation for FSRs and agency managers and in selections for agency management positions. See Drogin, pp. 5-12 at App. I, Dungan Dec., Ex. 7.
Plaintiffs also rely on anecdotal evidence from MetLife managers, class members, and other MLFS employees to show systemic discrimination against plaintiffs and the class. See Section II.C above. The importance of anecdotal evidence, which brings “the cold numbers convincingly to life,” Teamsters, 431 U.S. at 339, is to assist the court in drawing inferences from class wide statistical evidence. See Robinson, 267 F.3d at 168 (anecdotal evidence at the liability stage “simply provides ‘texture’ to the statistics”). The inferences that can be drawn from plaintiffs' statistical and anecdotal evidence raise common legal issues.
ii. Disparate impact.
To prevail under a theory of disparate impact, plaintiffs must prove that employment practices that appear facially neutral have a discriminatory effect. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); Watson, 487 U.S. at 986-87. Evidence of discriminatory intent is not necessary. See Griggs, 401 U.S. at 431; Watson, 487 U.S. at 986. Disparate impact analysis may be applied to an employer's undisciplined system of subjective decision making. See Watson, 487 U.S. at 990; Caridad, 191 F.3d at 292. This analysis raises common questions of law as to the validity of such a system when it has class wide disparate impact.

Class wide statistical evidence is also crucial to proving a disparate impact claim. See id.; Robinson, 267 F.3d at 160 (statistical proof occupies “center stage” in a disparate impact claim). Plaintiffs' statistical evidence establishes that MetLife's employment practices have an adverse impact on female FSRs' and agency managers' compensation and selections of women for agency management positions. See Drogin, pp. 5-12 at App. I, Dungan Dec., Ex. 7. This evidence applies to MLFS as a whole and raises common questions of law as to whether MetLife can rebut the prima facie case established by plaintiffs' showing of adverse impact. Additional common legal and factual issues will arise if MetLife asserts a “business necessity” defense. See Robinson, 267 F.3d at 161.
3. The claims of the representative plaintiffs are typical of the claims of the class members. (Fed.R.Civ.P. 23(a)(3)).
Rule 23(a)(3) requires that the claims of the representative plaintiffs be typical of those of the class.[FN8] Typicality requires that disputed issues of law or fact “occupy essentially the same degree of centrality to the named plaintiff's claims as to that of the other members of the proposed class.” Caridad, 191 F.3d at 293, citing, Krueger v. New York Tel. Co., 163 F.R.D. at 442. Plaintiffs' and the class' claims are typical because they are based on the same class allegations, legal theories and conduct by MetLife. See Latino Officers Ass'n, 209 F.R.D. at 90. Plaintiffs allege that MLFS managers, who are almost all male, exercise discretionary authority using subjective criteria to deny them equal opportunities for agency management positions, resources, and compensation in favor of similarly situated males. The experiences of the plaintiffs, who worked in different MLFS agencies, are strikingly similar.
FN8. The commonality and typicality requirements “tend to merge” and “both serve as guideposts for determining whether ... the named plaintiff's claim and the class claims are so inter-related that the interests of the class members will be fairly and adequately protected in their absence.” Caridad, 191 F.3d at 291, citing, Falcon, 477 U.S. at 157 n.13. The factors cited by plaintiffs regarding commonality therefore also support a finding of typicality.
Plaintiff Stella Mitchell began her career with MetLife in 1987 as an FSR. She was promoted twice, in 1994 and 1998, to positions as the MD of start up agencies. In each of these positions, Ms. Mitchell was denied business development resources and financial support, such as agency development funds, books of business, transferred FSRs, and adequate clerical support, which similarly situated men received. Ms. Mitchell was demoted to AD in 1996 and again to FSR in 2000. Additionally, she was not selected in 2000 for either of two MD positions for which MetLife selected men with less qualifications and tenure with MetLife. See App. IV, Rafanan Dec., Ex. 2.
Plaintiff Hwa-Mei C. Gee began her employment with MetLife in 1986 as an FSR. In 1995, Ms. Gee was promoted to AD and, in 1999, she was promoted to MD of a start up agency. Ms. Gee was denied access to business development resources and financial support she needed to grow and develop the new agency, which MetLife provided to similarly situated men. In 2000, Ms. Gee was demoted to FSR. In 2002, MetLife selected a less qualified man over Ms. Gee for an AD position. See App. IV, Rafanan Dec., Ex. 3.
Plaintiff Durpatty Persaud began her career at MetLife in 1993 as an FSR and quickly became a top producer in her agency. Ms. Persaud was denied multiple promotions to FM in 1999 in favor of less qualified men. She also was denied business development resources that MetLife provided to similarly situated male FSRs. See App. IV, Rafanan Dec., Ex. 5.
Plaintiff Janet Ramsey was hired by MetLife as an FSR in 1983. She was promoted to MD in 1986 and was assigned to a larger, multi-office agency in 1995. MetLife refused to provide Ms. Ramsey business development resources and financial support that it provided to similarly situated men. MetLife refused to select Ms. Ramsey for an MD position for which she was well qualified and instead demoted Ms. Ramsey to AD in 2000. In 2001, after she complained about discriminatory treatment, MetLife demoted Ms. Ramsey to FSR. See App. IV, Rafanan Dec., Ex. 6.

The plaintiffs' experiences are typical and illustrative of those of the class. For example, 28 female witnesses and class members complain they were passed over for agency management positions in favor of less qualified men. Another 55 allege that as FSRs they were not provided comparable sales leads, books of business, and other business development resources as similarly situated men received, resulting in lower compensation. Another 11 allege that as agency managers they were denied business development resources and support that similarly situated men received, resulting in lower compensation. See App. IV, Rafanan Dec., Ex. 1. This evidence establishes a systematic pattern or practice of discrimination against women by MetLife, demonstrates that the plaintiffs' experiences are not unique and satisfies the typicality requirement.
4. The representative plaintiffs and their counsel will fairly and adequately protect the interests of the class. (Fed.R.Civ.P. 23(a)(4)).
Rule 23(a)(4) requires plaintiffs and their counsel to demonstrate they will adequately protect the class' interests. Plaintiffs must meet two tests to satisfy this requirement: (1) absence of conflict and (2) assurance of vigorous prosecution. See Robinson, 267 F.3d at 170-71.
There are no conflicts of interest here. Plaintiffs' interests are aligned with those of the class. Plaintiffs and the class have the same complaints that discriminatory practices in MLFS disadvantage female FSRs and agency managers by denying them equal opportunities for compensation and agency management positions. Plaintiffs and the class are seeking to end the discriminatory practices and compensation for their losses. Plaintiffs have actively participated in the prosecution of the case by producing documents, providing written discovery responses, giving depositions, and assisting counsel in the development of the case. See App. V, Declaration of David Borgen (“Borgen Dec.”), ¶ 11; App. V, Declaration of Adam Klein (“Klein Dec.”), ¶ 13.
There can be no legitimate contention that plaintiffs' counsel are not adequate to prosecute this case. Outten & Golden and Goldstein, Demchak, Baller, Borgen & Dardarian have been appointed class counsel in other employment discrimination cases and have substantial experience successfully prosecuting complex employment discrimination and wage and hour class actions. See App. V, Borgen Dec., ¶ 7; App. V, Klein Dec., ¶ 10. The Court should thus find that plaintiffs and their counsel will adequately represent the class.
C. This Court Should Certify the Class as a Rule 23(b)(2) Action because Plaintiffs Satisfy the Requirements of that Rule.
Plaintiffs also must satisfy one of the subparts of Rule 23(b) to proceed as a class action. This class should be certified under Rule 23(b)(2) because MetLife “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).
1. Certification of this class under Rule 23(b)(2) is required by the Second Circuit's decision in Robinson v. MetroNorth Commuter Railroad.
A Rule 23(b)(2) class action is intended for cases, such as this one, where broad, class wide injunctive or declaratory relief is necessary to redress a group wide injury. See Robinson, 267 F.3d at 163. This case meets the standards for Rule 23(b)(2) certification enunciated by the Second Circuit in Robinson because the value of the equitable relief sought is significant and predominates over the compensatory and punitive damages sought. See id. at 164. Rule 23(b)(2) certification was appropriate for a class of African American employees alleging denial of promotions and disparate discipline and seeking both equitable relief and non-incidental damages in Robinson. See id. at 167. The same Rule applies to the gender discrimination claims here.[FN9]
FN9. See also Molski v. Gleich, Nos. 00-57099, 01-55066, 01-55068, 2003 WL 255964 (9th Cir. 2003) (relying on

Robinson and finding certification under Rule 23(b)(2) appropriate for a class of mobility impaired persons alleging denial of access to gasoline stations, and seeking injunctive relief and non-incidental damages).
The value and importance of the equitable relief sought by plaintiffs are predominant and outweigh the compensatory and punitive damages also demanded. Plaintiffs seek comprehensive changes to MetLife's agency management selection and business resource allocation practices and systemic oversight or monitoring of these practices. Given the number of the positions at issue here, and the potential earnings in those positions, the value of equitable relief that will increase women's career opportunities and compensation over time will greatly exceed any monetary award that may be obtained. The class wide remedies plaintiffs seek are more important than the individual relief that may also accrue to any particular class member. See Latino Officers Ass'n, 209 F.R.D. at 93 (finding that the value of the declaratory and injunctive relief sought to remedy discriminatory disciplinary practices was predominant).
Class treatment is appropriate here because the class is manageable and such treatment is efficient and will achieve judicial economy. See Robinson, 267 F.3d at 164. Class certification will eliminate the need for hundreds of separate duplicative lawsuits that could yield inconsistent results and/or not result in any meaningful changes to MetLife's discriminatory practices. Moreover, the Court possesses broad powers under Rules 23(c)(4) and 23(d)(2) to manage class actions in order to accomplish these goals. See Robinson, 267 F.3d at 166-167.
2. In the alternative, the Court could bifurcate the action and grant class certification, pursuant to Rule 23(b)(2), limited to liability issues.
Alternatively, the Court could bifurcate the action by initially certifying the liability stage of the pattern or practice claims for class treatment under Rule 23(b)(2) and reserving the remaining claims and issues for subsequent proceedings. See Robinson, 267 F.3d at 168 (“[L]itigating the pattern or practice liability phase for the class as a whole would both reduce the range of issues in dispute and promote judicial economy.”); see also Teamsters, 431 U.S. at 430 (setting standards for bifurcating trial of employment discrimination class actions into two stages). Numerous district courts have followed this bifurcated approach in certification of employment discrimination class actions. See e.g. Latino Officers Ass'n, 209 F.R.D. at 92; Butler v. Home Depot, Inc., 70 Fair Empl. Prac. Cas. 51 (BNA) (N.D. Cal. 1996); Shores v. Publix Super Markets, Inc., 69 Empl. Prac. Dec. (CCH) P44, 478 (M.D. Fla. 1996); and Stender v. Lucky Stores, 803 F. Supp. 258 (N.D. Cal. 1992); see also Lemon v. Int'l Union of Operating Eng., 216 F.3d 577, 581 (7th Cir. 2000) (holding that district court can bifurcate proceedings and certify a Rule 23(b)(2) class for equitable relief); Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894, 898 (7th Cir. 1999) (same).
IV. CONCLUSION
For the reasons set out above, the Court should (1) grant plaintiffs' motion for class certification and allow this case to proceed as a Rule 23(b)(2) class action, (2) certify Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud and Janet Ramsey as representatives of the class, and (3) appoint Outten & Golden and Goldstein, Demchak, Baller, Borgen & Dardarian as Class Counsel.
Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.
S

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others
similarly situated, and Barbara LaChance, individually, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., d/b/a Metlife, Defendant. No. 01 CV 2112 (WHP). April 30, 2003.
Memorandum of Law in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification
TABLE OF CONTENTS
TABLE OF AUTHORITIES ... iv
PRELIMINARY STATEMENT ... 1
STATEMENT OF FACTS ... 2
1. FSRs ... 2
2. Functional Managers ... 2
3. First-Line Managers ... 3
4. Second-Line Managers ... 3
ARGUMENT ... 4
I. LEGAL STANDARDS FOR CLASS CERTIFICATION ... 4
II. PLAINTIFFS HAVE FAILED TO SATISFY THE REQUIREMENTS OF RULE 23(a) WITH RESPECT TO THEIR CLASS CLAIMS OF DISCRIMINATORY COMPENSATION PRACTICES ... 5
A. FSRs ... 5
1. Plaintiffs Have Failed To Demonstrated Commonality On Their FSR Compensation Claim ... 5
a. Introduction ... 5

b. Plaintiffs Conflate Alleged Disparities In Compensation With A Showing Of A Common Practice Of Disparate Allocation Of Business Resources To FSRs ... 7 c. Plaintiffs Cannot Demonstrate Any Common Practice Of Disparate Resource Allocation ... 9 (i) Leads ... 10 (ii) Orphan Books Of Business ... 13 (iii) Informal Training, Mentoring And Partnering ... 14 d. Neither Plaintiffs' Statistical Analysis Nor Anecdotal Evidence Demonstrates A Common Claim With Respect To The Allocation Of Resources ... 18 (i) Plaintiffs' Statistical Analysis Sheds No Light Whatsoever On Alleged Disparities In Resource Allocation ... 18 (ii) Plaintiffs' Anecdotal Evidence Is Neither Quantitatively Nor Qualitatively Sufficient to Demonstrate Commonality ... 21 2. Plaintiffs Have Failed To Demonstrate Typicality On Their FSR Compensation Claim ... 25 B. Functional Managers ... 26 1. Commonality ... 26 2. Typicality ... 26 C. First-Line And Second-Line Managers ... 26 1. First-Line Managers ... 27 a. Commonality ... 27 b. Numerosity ... 28 2. Second-Line Managers ... 29 a. Commonality ... 29

b. Typicality ... 31
III. PLAINTIFFS HAVE FAILED TO SATISFY THE REQUIREMENTS OF RULE 23(a) WITH RESPECT TO THEIR CLASS CLAIMS OF DISCRIMINATORY PROMOTION PRACTICES ... 31
A. Plaintiffs' Claim Is Limited To A Single Promotion Category ... 33
B. Movements From FSR To Functional Manager Are Inherently Unsuited To Class Treatment ... 34
C. Plaintiffs' Statistical Analysis Is Not Probative Of Class-Wide Disparities In Movement Of FSRs To Functional Manager ... 35
IV. PLAINTIFFS HAVE FAILED TO DEMONSTRATE A BASIS FOR CERTIFYING A CLASS BASED ON A CLAIM OF DISPARATE IMPACT ... 36
V. PLAINTIFFS HAVE FAILED TO SATISFY THE REQUIREMENTS OF RULE 23(b)(2) ... 38
CONCLUSION ... 40
TABLE OF AUTHORITIES
CASES:
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ... 38
Avagliano v. Sumitomo Shoji Am., Inc., 103 F.R.D. 562 (S.D.N.Y. 1984) ... 31
Bishop v. N.Y. City Dep't of Hous. Pres. & Dev., 141 F.R.D. 229 (S.D.N.Y. 1992) ... 22
Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 120 S. Ct. 1959 (2000), vacated on other grounds, 267 F.3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002) ... passim
Churchill v. IBM, Inc., 759 F. Supp. 1089 (D.N.J. 1991) ... 22
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir.), cert. denied, 515 U.S. 1122, 115 S. Ct. 2277 (1995) ... 28

Cruz v. Coach Stores, Inc., No. 96 Civ. 8099, 1998 U.S. Dist. LEXIS 18051 (S.D.N.Y. Nov. 17, 1998), aff'd in part, vacated in part on other grounds, 202 F.3d 560 (2d Cir. 2000) ... 18 Daniels v. City of N.Y., 198 F.R.D. 409 (S.D.N.Y. 2001) ... 24 Donaldson v. Microsoft Corp., 205 F.R.D. 558 (W.D. Wash. 2001) ... 4, 34, 36 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 102 S. Ct. 2364 (1982) ... 4, 7, 24 In re Livent, Inc. Noteholders Sec. Litig., 211 F.R.D. 219 (S.D.N.Y. 2002) ... 24 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843 (1977) ... 16 Latino Officers Ass'n City of N.Y. v. City of N.Y., 209 F.R.D. 79 (S.D.N.Y. 2002) ... 6 Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) ... 6, 25 Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002) ... passim Rodriguez v. Am. Friends of Hebrew Univ., Inc., No. 96 Civ. 0204, 2000 WL 1877061 (S.D.N.Y. Dec. 26, 2000) ... 10, 37 Ross v. Nikko Sec. Co. Int'l, Inc., 133 F.R.D. 96 (S.D.N.Y. 1990) ... 4, 22 Selzer v. Bd. of Educ. of N.Y., 112 F.R.D. 176 (S.D.N.Y. 1986) ... 4 Sheehan v. Purolator, Inc., 103 F.R.D. 641 (E.D.N.Y. 1984) ... 15 Sheehan v. Purolator, Inc., 839 F.2d 99 (2d Cir.), cert. denied, 488 U.S. 891, 109 S. Ct. 226 (1988) ... 4 Tolliver v. Xerox Corp., 918 F.2d 1052 (2d Cir. 1990), cert. denied, 499 U.S. 983, 111 S. Ct. 1641 (1991) ... 31 United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885 (1977) ... 22 Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989) ... 36 STATUTES:

42 U.S.C. § 2000e-2(k) ... 37
Fed. R. Civ. P. 23(a) ... 5, 28, 31
Fed. R. Civ. P. 23(b)(2) ... 37
PRELIMINARY STATEMENT
This lawsuit was originally commenced by five named plaintiffs -- current and former employees of MetLife Financial Services (“MLFS”)[FN1] -- who alleged that MetLife engaged in a pattern and practice of gender discrimination in hiring, promotional opportunities, demotions, job assignments, and compensation, and of retaliation in response to complaints of discrimination, in violation of Title VII and the New York State and City Human Rights Laws. (Declaration of Jennifer Gray (hereinafter referred to as “Gray Decl.”), Ex. A, ¶¶1, 26, 67). On the basis of these claims, plaintiffs sought to represent a nationwide (as well as a New York State and City) class of all past, present and future female employees of MLFS since August 27, 1999 (the alleged “class period”) and all female applicants for MLFS positions “who have been, continue to be, or in the future may be, denied employment opportunities or were deterred from applying for those positions” during the class period. (Gray Decl., Ex. A, ¶19).
FN1. MLFS is an operating division of Metropolitan Life Insurance Company, Inc. (“MetLife”). MLFS is a retail sales organization, engaged in direct sales of financial products (i.e., whole life insurance, term life insurance, variable life insurance, annuities, mutual funds, long-term care insurance, etc.) to individual customers. (Declaration of Anne N. Smith (hereinafter referred to as “Smith Decl.”), Ex. A, ¶2). By virtue of their subsequent amendments of the complaint, plaintiffs have abandoned their class claims of: (i) retaliation; (ii) discriminatory hiring; (iii) discriminatory deterrence of applicants; and (iv) discriminatory demotions.[FN2] (See generally Gray Decl., Ex. A, F, G). What remains, therefore, are plaintiffs' class claims of alleged gender discrimination in compensation and promotions.[FN3] Even as so pared down, plaintiffs cannot satisfy the Rule 23 requirements for certification of a class on either of these claims.
FN2. It is hardly surprising that plaintiffs dropped their demotion claim. Plaintiffs' statistical expert, Dr. Richard Drogin, did not examine demotions at all (either in his initial report or his supplemental report). (See generally Gray Decl., Ex. B; Ex. C). Defendants statistical expert, Dr. David Evans, found no statistically significant differences in the rates at which men and women were demoted from any position during the class period, except that, with respect to second-line managers, men were demoted at a statistically significantly higher rate than women. (Gray Decl., Ex. D at 4; Ex. E; Ex. Y at 1).
FN3. Despite the fact that plaintiffs have clearly limited their class claims to these two issues -- promotion and compensation -- they continue to report obviously irrelevant allegations of: (i) retaliation; (ii) inappropriate sexual remarks and conduct; and (iii) “other disparate treatment” (including discipline and termination) in their Summary of Class Member and Female Witness Allegations Regarding Discriminatory Conduct in MLFS. (Pl. App. IV, Part 1, Ex. 1). These anecdotal “reports” have nothing to do with the only two remaining claims as to which plaintiffs seek class certification.
STATEMENT OF FACTS
The MLFS field force is comprised of FSRs, functional managers, second-line managers, and first-line managers. Compensation for -- and promotion into -- each position is determined pursuant to unique policies and practices.

1. FSRs FSRs are responsible for selling MetLife's financial products, and are hired to work in particular sales offices.[FN4] (Gray Decl., Ex. H at ML 001414; Ex. I, ¶3). An FSR's commission-based compensation is determined based on his or her sales of financial products pursuant to prescribed formulas set forth in a written compensation plan. (Gray Decl., Ex. I, ¶3). No discretion is exercised by MLFS management in determining an FSR's commission compensation.[FN5] So long as FSRs meet the MLFS-wide minimum production requirements for continued employment, they can decide how much effort they want to expend in generating sales, and ultimately how much income they earn. (Gray Decl., Ex. P; Ex. I, ¶10; Smith Decl., Ex. A, ¶5; Ex. B, ¶4; Ex. G, ¶12; Ex. I, ¶12; Ex. L, ¶2).[FN6]
FN4. The MLFS sales offices are currently distributed among five geographic Zones, each of which is headed by a Zone Vice President. When this lawsuit was commenced, there were three Zones (Atlantic, Central and Western). Certain of the sales offices report directly to a Zone Vice President, while others are part of Regions. A Region is a combination of several sales offices, and is headed by a Regional Vice President who reports to a Zone Vice President. (Gray Decl., Ex. H).
FN5. (See, e.g., Gray Decl., Ex. J; see also Gray Decl., Ex. I, ¶3). FSRs joining MetLife are entitled to receive certain non-commission payments, depending upon: (i) whether they come to MetLife with prior insurance industry experience; (ii) the extent of that experience; and (iii) their prior earnings histories. (Gray Decl., Ex. K-O; Ex. I, ¶¶6-9). Plaintiffs do not allege -- and have adduced no evidence -- that these noncommission components of newly-hired FSR compensation are established or implemented in a discriminatory manner.
FN6. Defendant has submitted the declarations of 27 members of the MLFS field force in opposition to class certification. These declarations, which demonstrate the absence of commonality with respect to plaintiffs' claims of discriminatory compensation and promotion, are annexed to the accompanying Declaration of Anne N. Smith.
2. Functional Managers Functional managers are FSRs who assume an additional task (such as training, recruiting, or marketing) while continuing to sell MetLife products. (See infra at 34). Functional managers are typically selected by the first-line managers in their sales office. (Gray Decl., Ex. Q). The compensation of functional managers mirrors their two different roles: a limited fixed salary[FN7] for the specific managerial task they perform; and commissions from their personal sales production based on the FSR compensation plan. (See, e.g., Gray Decl., Ex. S; see also Gray Decl., Ex. I, ¶11).
FN7. As of 2000, the functional manager salary cannot exceed $750/week; it could not exceed $500/week before then. (Gray Decl., Ex. R; Ex. I, ¶12).
3. First-Line Managers First-line managers (currently known as managing directors) are responsible for the overall operation and management of the sales offices. (Gray Decl., Ex. T). They are typically selected by Regional Vice Presidents and/or Zone Vice Presidents. (Gray Decl., Ex. U). First-line managers are compensated under a uniformly applied formula called Performance Based Compensation (“PBC”). (Gray Decl., Ex. I, ¶13). PBC is based primarily on objective factors relating to the sales, growth and profitability of the particular sales office. (See, e.g., Gray Decl., Ex. V; see also Gray Decl., Ex. I, ¶¶13-14).
4. Second-Line Managers Second-line managers are typically selected by and report to their first-line managers. (Gray Decl., Ex. W). Second-line managers perform a wide variety of functions within the sales office. For example, some second-line managers are not licensed to sell MetLife financial products and only handle administrative tasks, such as recruiting or marketing. Other second-line managers are licensed to sell MetLife financial products and are responsible

for training FSRs and/or supervising the sales activity of groups of FSRs. (See infra at 29-30).
No fixed compensation scheme exists for second-line managers. (Gray Decl., Ex. I, 116). A second-line manager's compensation is typically established by the first-line manager(s), and generally reflects the types of duties he/she is responsible for performing. (Gray Decl., Ex. I, ¶16). For example, some second-line managers receive a percentage of the sales office's PBC; some receive straight salary; some receive a salary and variable pay based on the attainment of specific business objectives (e.g., a bonus payment for each new FSR recruited); and some are compensated through some combination of these methods. (Gray Decl., Ex. X; Ex. I, ¶16).
ARGUMENT
I. LEGAL STANDARDS FOR CLASS CERTIFICATION
Plaintiffs' entire argument proceeds from the mistaken premise that they can sustain a motion for class certification with any statistical evidence -- however attenuated or isolated -- that purports to depict disparities between women and men in connection with compensation or promotion. The Caridad v. Metro-North Commuter Railroad decision, 191 F.3d 283 (2d Cir. 1999), cert. denied, 529 U.S. 1107,120 S. Ct. 1959 (2000), vacated on other grounds; 267 F.3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951,122 S. Ct. 1349 (2002), however, did not alter plaintiffs' burden to offer substantial and credible evidentiary support, both statistically and anecdotally, demonstrating that the Rule 23(a) requirements are satisfied, particularly when the challenged employment practices are decentralized. To the contrary, Caridad explicitly recognized that plaintiffs must demonstrate with statistical and anecdotal evidence that “the challenged practice is causally related to a pattern of disparate treatment or has a disparate impact.” Id. at 292; see also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157-58, 162-63, 102 S. Ct. 2364, 2370-71, 2373 (1982) (holding that the plaintiffs failed to establish commonality where their statistics revealed no statistically significant disparity in the hiring of Mexican-Americans).
Furthermore, Caridad, like previous authorities in this Circuit and elsewhere, recognized that, in order to sustain their evidentiary burden, plaintiffs cannot rely on aggregate data, but rather must demonstrate that the Rule 23 criteria are satisfied for each position at each issue.[FN8] See Caridad at 292; see also Sheehan v. Purolator, Inc., 839 F.2d 99, 102 (2d Cir.), cert. denied, 488 U.S. 891, 109 S. Ct. 226 (1988); Ross v. Nikko Sec. Co. Int'l. Inc., 133 F.R.D. 96, 97 (S.D.N.Y. 1990); Selzer v. Bd. of Educ. of the City of N.Y., 112 F.R.D. 176, 179-80 (S.D.N.Y. 1986); Donaldson v. Microsoft Corp., 205 F.R.D. 558, 567 (W.D. Wash. 2001). This holding is particularly relevant here since the four MLFS positions at issue (i.e., FSR, functional manager, second-line manager, and first-line manager) have substantially different job responsibilities, are compensated in fundamentally different ways and are subject to different promotion criteria and processes.
FN8. For that reason, the Caridad Court ruled that, even though plaintiffs' expert had offered statistical evidence of a company-wide racial disparity in the administration of discipline, a class was appropriately certified only for those positions for which this statistical disparity was manifested. Id. at 292.
Application of these principles leads to the conclusion that certification is not appropriate because, for both of the remaining claims (compensation and promotion) and for each of the positions at issue, plaintiffs have failed to: (i) provide sufficient (or, in several instances, any) statistical or anecdotal evidence of disparity; (ii) demonstrate that the challenged decision-making has sufficient uniformity to give rise to pattern and practice claims; (iii) demonstrate a causal nexus between the challenged decision-making and the alleged statistical disparities; and/or (iv) account for non-discriminatory factors that would logically explain the alleged disparities.

II. PLAINTIFFS HAVE FAILED TO SATISFY THE REQUIREMENTS OF RULE 23(a) WITH RESPECT TO THEIR CLASS CLAIMS OF DISCRIMINATORY COMPENSATION PRACTICES
A. FSRs
1. Plaintiffs Have Failed To Demonstrate Commonality On Their FSR Compensation Claim
a. Introduction
While plaintiffs purport to pursue a claim of disparate compensation on behalf of female FSRs, it is clear that their real claim of discrimination has nothing to do with MetLife's FSR compensation system at all. Plaintiffs concede - as they must -- that any particular FSR's compensation is not set by MetLife, but rather is based on a fixed commission schedule (determined by the sales of particular financial services products) that applies, without exception, to all FSRs - males and females alike.[FN9] (Pl. Br. at 9). Simply put, defendant does not control the compensation of FSRs; rather, their compensation depends on the products they sell and the quantum of such sales. (Gray Decl., Ex. I, ¶3; Smith Decl., Ex. A, ¶5; Ex. I, ¶12; Ex. L, ¶12).
FN9. Indeed, as we demonstrate below, there are no statistically significant gender disparities in the commission income received by any female FSRs in any year within the class period. (See infra at 18-21).
Plaintiffs purport to address this inherent flaw in their legal theory by contending that MetLife is engaged in a “pattern and practice” of gender discrimination with respect to the provision of “business development resources” that may lead to increased sales: the distribution of “leads”; the distribution of “books of business”; the provision of informal training and mentoring; and the establishment of partnering relationships with managers and/or more experienced FSRs.
Plaintiffs cannot demonstrate that their “grievances share a common question of law or of fact.” Latino Officers Ass'n City of N.Y. v. City of N.Y., 209 F.R.D. 79,88 (S.D.N.Y. 2002) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)). To the contrary, plaintiffs do nothing to demonstrate that their vague assortment of claims are class-wide. First, plaintiffs fail to offer a shred of statistical evidence supporting their theory that “business development resources” are disparately allocated by gender, as they must in order to establish commonality. The absence of such evidence is alone fatal to their certification motion.[FN10]
FN10. “[S]ignificant statistical disparities are relevant to determining whether the challenged employment practice has a class-wide impact” and, in fact, presents a common question among class members. Caridad, 191 F.3d at 292-93.
Second, plaintiffs fail to demonstrate that resources are allocated in any common fashion; their moving brief fails to even: (i) explain what a lead is or how various types of leads are distributed; (ii) explain the various types of leads programs or how they are administered; (iii) explain what an orphan “book of business” is, how a book becomes orphaned, or how orphan books are assigned; and (iv) explain what they mean by “informal training and mentoring” and “partnering with a manager and/or more experienced FSRs.” (Pl. Br. at 9). This failure is telling; once these missing explanations are provided, they make plain the absence -- indeed, the impossibility - of commonality with respect to plaintiffs' FSR compensation claim. To the contrary, practices with respect to the distribution of certain leads and books of business, for example, vary from sales office to sales office, and depend upon a number of nondiscriminatory factors; and those practices that do not vary from sales office to sales office are not subject to managerial discretion.

Third, plaintiffs fail to demonstrate any quantitative nexus between these resources and FSR compensation. Because plaintiffs have not demonstrated a direct causal link between the receipt of these resources and compensation, their statistical evidence of alleged disparities in compensation (even if credited) is meaningless for purposes of establishing commonality. Finally, plaintiffs' own statistical analyses of FSR compensation demonstrate that with respect to the vast majority of FSRs, when adjusted for the most basic experience and qualification variables (which plaintiffs concede are valid), there are no statistically significant gender disparities in compensation - again, demonstrating the absence of any common compensation claim.
b. Plaintiffs Conflate Alleged Disparities In Compensation With A Showing Of A Common Practice Of Disparate Allocation Of Business Resources To FSRs
Plaintiffs do not challenge as discriminatory MetLife's commission-based FSR compensation system; rather, plaintiffs contend that MetLife is engaged in a pattern and practice of discrimination in connection with the distribution of business development resources -- a claim that none of the named plaintiffs individually asserts. Although plaintiffs proceed on this theory, they have offered no statistical support whatsoever for the assertion that there are class-wide disparities in the distribution of these resources.[FN11] (See generally Gray Decl., Ex. B; Ex. C). Instead, plaintiffs attempt to bridge the “wide gap” between their allegation that business development resources are allocated disparately and “the existence of a class of persons who have suffered the same injury,” see Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157-58, 162-63, 102 S. Ct. 2364, 2370-71, 2373 (1982), with a statistical analysis of FSR compensation data.[FN12] In essence, plaintiffs conclusorily allege -- but never demonstrate statistically - that “resources” are disparately allocated; they then attempt to use alleged compensation differences to prove the class-wide disparities in the distribution of resources that they are otherwise unable to demonstrate. Since, as plaintiffs concede, FSR compensation is based on commissions derived from the sale of financial products and that the same commission structure applies uniformly to all FSRs in MLFS regardless of their gender, their argument is entirely circular. (Pl. Br. at 9).
FN11. This failure is fatal to plaintiffs' class claims. As the Robinson Court observed, “[t]he heavy reliance on statistical evidence in a pattern-or-practice disparate treatment claim distinguishes such a claim from an individual disparate treatment claim .... Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 158 n.5 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002).
FN12. This defect in plaintiffs' offer of proof distinguishes this case from Caridad. In Caridad the Second Circuit ultimately recognized class claims of discriminatory discipline and promotion based on plaintiffs' theory that Metro-North engaged in class-wide “overdelegation” of decision-making responsibility, which allegedly enabled individual managers to make discriminatory decisions. The statistical evidence offered by plaintiffs directly supported this claim insofar as it depicted race-based disparities in the challenged discipline and promotion decisions. 191 F.3d 283, 288 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 120 S. Ct. 1959 (2000), vacated on other grounds, 267 F.3d 147 (2d Cir. 2001) cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002). Here, in contrast, plaintiffs concede that they are challenging decision-making concerning the distribution of business resources, yet they provide no statistical evidence of disparities among women and men with regard to those decisions. (See generally Gray Decl., Ex. B; Ex. C).
Unlike the salary-based (or salary plus bonus based) pay structures encountered in much of corporate America, and which are based on the exercise of managerial discretion, the FSR compensation system is a meritocracy in the truest sense of the word - the more an FSR sells, the more money the FSR makes. (Smith Decl., Ex. A, ¶5; Ex. I, ¶12; Ex. L, ¶12). In sum, FSR compensation is determined neither by objective nor subjective managerial judgment, but instead by the magnitude of an FSR's sales; the possession of requisite licenses to sell the full range of MetLife's financial services products (including various forms of life insurance, annuities and mutual funds); the mix of products sold; the skill, experience and product knowledge of each individual FSR; and, of particular importance, his or her intensity of sales effort. (Smith Decl., Ex A, ¶5; Ex. I, ¶12; Ex. L, ¶12). Thus, for example, so long as FSRs meet the company's minimum production requirements for continued employment, they (and they alone) decide how much effort they want to expend

in generating sales, and consequently how much commission income they ultimately earn. Named plaintiff Hwa-Mei Gee's deposition testimony is illustrative: Q: How much have you earned in compensation from your personal production this year? A: So far? Q: Yes. A: Let's see. How much is my income total earnings? Let's see. I probably in total earning about 70-some-thousand by now year to date, the gross. So if you minus, I maybe earned about 60,000, roughly, on my personal production. Q: Are you on target to qualify for a conference?[FN13]
FN13. Conference qualification is determined by reaching certain designated levels of sales. (See, e.g., Gray Decl., Ex. Z).
A: I'm not interested in conference. Q: You're not interested -A: No, I'm not interested in conferences. I don't have my goal set for any conferences myself. Q: How many hours a week do you work on personal production? A: Well, so far I spent a lot of time this year to complete my master's degree, so I wouldn't say I spent that much time on production. (Gray Decl., Ex. AA).
Declarant Kleopatra Kazakias, an FSR, testified at deposition about the balance she tried to strike between time at work and time with her family: Q: Given your desire to spend time with your family, what was your expectation about how much you would be working as a rep for MetLife on a weekly basis? A: This is also hard to put in a specific definition because I would work, if it was necessary and if I had appointments, one week I might put 40 hours but the next week put only 20 hours. It's hard to say so many hours a day. Depending on the appointments, depending on the time of the year, depending -(Gray Decl., Ex. AB).
Plaintiffs' unproven presumption that an FSR's compensation is directly related to the business development resources he/she receives (and that any disparities in compensation are the direct consequence of disparities in the distribution of such resources) flies in the face of MetLife's formulaic commission system which permits FSRs to control their own earnings, and ignores the most obvious factors that determine FSR compensation: effort, expertise, experience and quantity and mix of products sold. (Smith Decl., Ex. A, ¶5; Ex. I, ¶12; Ex. L, ¶12).
c. Plaintiffs Cannot Demonstrate Any Common Practice Of Disparate Resource Allocation
Plaintiffs have not - and cannot -- demonstrate that “resources” are allocated in any common fashion, or that there is any direct correlation between the resources plaintiffs identify and commission income actually earned by FSRs.[FN14] Since plaintiffs' papers say precious little about the “resources” they complain about, the following factual description may help illustrate the flaws in plaintiffs' commonality argument.
FN14. Plaintiffs' claim of discrimination in business resource allocation is inherently inconsistent with the financial incentives of the managers allegedly allocating these resources. First-line managers have strong financial incentives to allocate resources in a manner that maximizes their revenue. First-line management compensation - PBC - is directly dependent upon the sales and retention of the agency's FSRs. (Gray Decl., Ex. I, ¶¶13-14). If FSRs - male or female - are successful in their sales efforts, first-line managers are directly rewarded. (Gray Decl., Ex. I, ¶¶3-14; Smith Decl., Ex. A, ¶15). Correlatively, if FSRs -- male or female -- leave

the company because they have not met minimum production requirements (or because they are dissatisfied with their sales results), first-line managers are directly penalized economically. (Gray Decl., Ex. I, ¶14; Ex. V at ML 0110578). Plaintiffs' theory is also incompatible with overall MLFS sales office operations. Indeed, the same managers who are accused of discriminating against female FSRs hired those FSRs in the first place. (Gray Decl., Ex. AC). See Rodriguez v. Am. Friends of Hebrew Univ., Inc., No. 96 Civ. 0204, 2000 WL 1877061, at *5 (S.D.N.Y. Dec. 26, 2000) (“As the Second Circuit has noted, it is difficult to impute bias against plaintiff's protected class(es) where the person who made the adverse employment decision also made a recent favorable employment decision regarding plaintiff.”).
(i) Leads Plaintiffs claim that MetLife managers discriminate on the basis of gender in the allocation of “leads.” Curiously, plaintiffs never define what they mean by a “lead”; in fact, a lead is nothing more than a piece of information about a MetLife customer or potential customer that provides a basis for contact between that person and an FSR. (Smith Decl., Ex. A, ¶6). Regardless of the method by which it is distributed, a lead is not a sale.[FN15] And, in the vast majority of situations, a lead will never result in a sale. (Smith Decl., Ex. A, ¶16; Ex. H, ¶6; Ex. I, ¶7; Ex. L, ¶8; Ex. M, ¶8, Ex. O, ¶6; Ex. U, ¶9). It is for this reason that many FSRs, such as named plaintiff Persaud, have no interest in obtaining “leads,” preferring instead to build their business by prospecting in a niche market, and receiving referrals from existing satisfied clients.
FN15. For example, “leads” can include the most simple requests for service on a policy; a policyholder calling MetLife's service center to request an address change for a beneficiary generates a “lead.” That call holds little promise of a sale; indeed, innumerable variables separate a “lead” from a sale, including: the nature of the “lead”; the relative interest (or lack of interest) of the policyholder in a further purchase; the financial means of the policyholder or prospective policyholder; what other coverage the policyholder has; the “relationship” between the FSR and the policyholder; the FSR's skill, product knowledge and sales ability; and the availability of (and access to) competitive companies and products. (Smith Decl., Ex. A, ¶¶7-8; Ex. I, ¶5; Ex. L, ¶6; Ex. M, ¶6, Ex. P, ¶7).
For example, female FSR Evangeline Cook explained in her declaration that she -- as a successful FSR -- prefers to develop her own leads and service her own book of business, and that she believes that to be a better use of her time than “wasting time” on the leads given out by MetLife. (Smith Decl., Ex. E, ¶5). Similarly, female FSRs Abigail Kerr and Mee Kim explained that they do not want to receive leads that are not from their own book of business because they do not find them to be a productive use of their time. (Smith Decl., Ex. H, ¶4; Ex. I, ¶¶4-6; see also Smith Decl., Ex. A, ¶14; Ex. R, ¶9; Ex. Y, ¶4). Female second-line manager Patricia Mathias believes that “based on [her] many years of working with and developing FSRs, that an FSR does not succeed based on the business leads provided by the Company. Generally, the more successful FSRs are those who think like a business owner and take responsibility and initiative for developing, cultivating and investing in their own markets.” (Smith Decl., Ex. K, ¶9). Mary Zheng -- another female FSR -- agrees. According to Zheng, “I have worked hard to reach this level of success and do not owe it to the leads or books of business that MetLife has given me. The majority of my business has come from my own networking and client referrals and my own hard work.” (Smith Decl., Ex. Y, ¶7). In short, the desire to obtain leads is hardly “common” to the class. (Gray Decl., Ex. AD).
Further, the distribution of most leads does not implicate the exercise of managerial discretion. (Smith Decl., Ex. A, ¶¶6-13). Indeed, many leads are forwarded directly to the FSR who sold the policy to which the lead relates. (Smith Decl., Ex. A, ¶6; Ex. B, ¶5; Ex. D, ¶6; Ex. P, ¶7; Ex. S, ¶9; Gray Decl., Ex. AE). Other leads are obtained directly by individual FSRs as a result of their expenditure of their own funds; others result from similar agency expenditures and are allocated to any FSRs interested in them on a pro rata basis.[FN16] (Smith Decl., Ex. A, ¶¶7-8; Ex. I, ¶5; Ex. L, ¶6; Ex. M, ¶6; Ex. P, ¶7; Ex. U, ¶7). And some FSRs participate in various target market lead generation programs. (Smith Decl., Ex. A, ¶9; Ex. Q, ¶5). To cite just one example: named plaintiff Persaud participated in a program together with the American Association of Physicians of Indian Origin whereby she paid a fee in order to attend, and have a booth at, national conferences of Indian and Pakistani physicians. (Gray Decl., Ex. AF). In order to encourage the physicians to

stop by the MetLife booth (operated by FSRs -- including Persaud), the company would run raffle contests. The names of the raffle contestants were treated as leads for the participating FSRs. (Gray Decl., Ex. AF). There are scores of similar leads programs, all of which have their own individualized characteristics -- their own participation criteria; distribution mechanisms; target market; geographic scope; and level of specialization. (Smith Decl., Ex. A, ¶9).
FN16. For example, an individual FSR (or a sales office) can purchase mailing lists (such as occupational or other niche group lists) and do targeted mailings to those lists. The returns from such mailings - a category of “leads” -- are provided to the FSR who purchased the list or, in the case of a sales office expenditure, distributed on a pro-rata basis. (Smith Decl., Ex. A, ¶¶7-8; Ex. I, ¶5; Ex. L, ¶6; Ex. M, ¶6; Ex. P, ¶7; Ex. U, ¶7).
Many other leads are distributed through several MLFS-wide leads programs, entry to which is governed by objective written criteria. For example, in order to be eligible to participate in MetAdvice (a program through which current and former employees of MetLife's institutional (business) customers are approached as potential retail customers), FSRs must have at least five years of experience in the insurance industry; production at 50% of the Leaders Conference production requirement; hold life and health licenses and NASD Series 6 or 7 registrations; have no negative feedback from clients or sales management; and have compliance clearance. (Smith Decl., Ex. A, ¶10). To be eligible to participate in another significant leads program, Deliver the Promise (a program through which the proceeds of insurance policies are personally delivered to the beneficiaries of a deceased policyholder), FSRs must have at least five years of experience; have their NASD Series 6 and be working towards their Series 7; have no more than a 10% first year lapse rate; qualify for Leader's Conference; have no more than two customer complaints within a year; and have prior experience handling death claims. (Smith Decl., Ex. A, ¶10). With respect to these leads programs, managers likewise are not engaged in the exercise of discretion in the assignment of leads; rather, such leads are distributed to program participants on a rotating basis. (Smith Decl., Ex. A, ¶10).
Still other leads involve call-ins or walk-ins to a particular branch; often these leads are distributed to FSRs on a rotating basis based on a voluntary “rep of the day” schedule open to all FSRs who choose to participate. (Smith Decl., Ex. L, ¶5; Ex. N, 114; Ex. P, ¶7; Ex. U, ¶5).
Lost amidst the conclusory allegations of subjective decision-making, repeated in plaintiffs' papers in a Caridad-inspired mantra -- and which deliberately lump together the literally scores of different ways FSRs can and do receive “leads” that do not implicate any managerial discretion or involve the application of purely objective standards -- are two simple facts: (i) plaintiffs have never made any showing that there is a common mechanism of leads distribution to FSRs[FN17]; and (ii) plaintiffs have never made any quantitative showing that there exists a common leads distribution mechanism which discriminates against (or disparately affects) female FSRs.
FN17. Plaintiffs' own testimony confirms that there is no common practice regarding the distribution of leads that could give rise to a class claim. For example, Ramsey testified that when she was a first-line manager, leads were distributed on a “round-robin” basis among her FSRs or to the “Rep of the Day” when that system was in place. (Gray Decl., Ex. AG at 211, 216-217). At other times, Ramsey gave leads to high-producing FSRs as a “perk” for their higher production, and at still other times she considered geography, trying to match potential clients with FSRs who lived near them. (Gray Decl., Ex. AG at 211-213, 216). Ramsey also testified that she probably gave leads to FSRs to help them validate (i.e., meet their minimum production requirements for continued employment). (Gray Decl., Ex. AG at 218). In contrast, Gee testified that when she was a firstline manager, FSRs took turns receiving leads, but that she also tried to match the language spoken by the FSR with that spoken by the client (a concern that was particular to Gee's Flushing office, which served an ethnic market). (Gray Decl., Ex. AH). Mitchell testified that when she was a manager, she considered the FSR's work ethic, geography and language spoken by the client. (Gray Decl., Ex. Al at 280-281). She also testified that walk-in leads were given to whomever was in the office at the time. (Gray Decl., Ex. Al at 275; see also Smith Decl., Ex. A, ¶11; Ex. I, ¶4). Not only is there no commonality with respect to how leads are distributed, there is also no commonality with

respect to who distributes them. Plaintiffs' theory of discrimination is premised on their belief that male managers use gender biased stereotypes in the allocation of business development resources. (Pl. Br. at 10). Here again, plaintiffs have blindly ignored the record on this subject. In many sales offices, leads are distributed by second-line managers or clerical and administrative staff, many of whom are female. (Gray Decl., Ex. AJ; Smith Decl., Ex. A, ¶17; Ex. D, ¶6; Ex. G, ¶5; Ex. M, ¶7; Ex. W, ¶7).
(ii) Orphan Books Of Business Orphan books of business -- which consist of policies sold by an FSR who has left MetLife - are not assigned based on any common policy or practice. Nor does their assignment guarantee any additional compensation to an FSR; unless a new sale is made, the FSR receives no sales commissions from an assigned book of business. Indeed, since assigned books can be a burden to an FSR who is obligated to service the book of business with no necessarily corresponding financial benefit, many FSRs don't want them (Smith Decl., Ex. A, ¶17; Ex. E, ¶7; Ex. I, ¶6; Ex. V, ¶6; Ex. Y, ¶6; Ex. Z, ¶4) and several sales offices do not distribute them. (Smith Decl., Ex. D, ¶7; Ex. L, ¶7; Ex. U, ¶9).
There are various and dissimilar criteria used by MetLife managers in determining how to distribute orphan books of business. Some managers assign books of business to new FSRs to train them or get them started (Gray Decl., Ex. AK; Smith Decl., Ex. L, ¶7; Ex. O, ¶7; Ex. U, ¶8); other managers assign books of business to FSRs after they have acquired some experience (Gray Decl., Ex. AL); still others distribute them based on other factors such as market, geography, work ethic, and the level of service they believe the FSR will provide. (Gray Decl., Ex. AM). Illustrating the highly individualized nature of the distribution process, named plaintiff Mitchell testified that, as a first-line manager, in order to determine who among her FSRs should be assigned a book of business, she needed to know and consider the profile of each FSR -- what the FSR's market was; where the FSR lived; what products the FSR sold; whether the FSR had customer complaints; whether the FSR had a high lapse rate; whether the FSR was ethical; and how the FSR sold products. (Gray Decl., Ex. AN).
Further, many FSRs are not interested in having books of business assigned to them at all. (Smith Decl., Ex. A, ¶17; Ex. E, ¶7; Ex. I, ¶6; Ex. J, ¶5; Ex. V, ¶6; Ex. Y, ¶6). Pursuant to MetLife's compensation plan, FSRs are not compensated with respect to books of business assigned after January 1, 2001.[FN18] (Gray Decl., Ex. AO; Smith Decl., Ex. A, ¶17; Ex. D, ¶7). Thus, the service work on orphan books of business can be quite burdensome, with no offsetting financial benefit, unless these existing policyholders seek to purchase additional financial products that earn additional commissions. For this reason, many FSRs don't seek -- and are not interested in receiving -- books of business.[FN19] (Smith Decl., Ex. A, ¶17; Ex. D, ¶7).
FN18. Although FSRs could receive commissions on books assigned to them before January 1, 2001; their compensation could also be negatively impacted by those books if the assigned policies had poor persistency (i.e., high lapse rates). (Gray Decl., Ex. AO). Accordingly, even when service commissions were paid on assigned books, it would require a case-by-case inquiry to determine if an FSR's compensation was positively or negatively affected on a net basis.
FN19. Here again, in many sales offices, books of business are distributed by second-line managers or clerical or administrative staff, many of whom are female. (Smith Decl., Ex. A, ¶17; Ex. D, ¶16; Ex. M, ¶7; Ex. W, ¶7).
In sum, where, as here: (i) no showing of disparate allocation has been made by plaintiffs; (ii) books of business are not distributed pursuant to any common plan or practice; and (iii) many members of the purported class are not even interested in receiving the “business resource” alleged to have been discriminatorily allocated - plaintiffs' proof of commonality is non-existent.
(iii) Informal Training, Mentoring And Partnering Plaintiffs' ill-defined claim that females, as a group, were denied

informal training, mentoring and partnering relationships is, by definition, uncommon.[FN20] Concededly, such “informal” training exists solely at the branch level, and is provided by hundreds of managers under circumstances unique to each branch, to each manager and to each FSR. How much informal training and mentoring an FSR receives depends upon numerous factors, including: (1) the FSR's sales experience, skill, and product knowledge; (2) the degree of managerial resources available in the branch; (3) the level of FSR interest in joint sales calls; and (4) the number and commitment of experienced FSRs in a particular branch. (Smith Decl., Ex. D, ¶8; Ex. E, ¶9; Ex. F ¶¶5-6; Ex. K, ¶¶4-6; Ex. L, ¶¶9-10; Ex. U, ¶11; Ex. V, ¶7; Ex. W, ¶9; Ex. X, ¶7). For example, with respect to the more experienced FSRs, Ramsey testified that when she was a manager, she did not go on sales calls with FSRs in her agency who were successful. (Gray Decl., Ex. AQ). In fact, some FSRs do not want their managers to go on sales calls with them. (Smith Decl., Ex. V, ¶7). Mitchell likewise admitted at deposition that she concentrated her efforts in terms of attending sales calls on those FSRs who, in her view, needed more work on sales technique. (Gray Decl., Ex. AR). Gee testified that when she was a manager, she met with new FSRs once a week and experienced FSRs once every 2-3 weeks. (Gray Decl., Ex. AS). Many FSRs choose not to attend regular meetings with their managers. (Smith Decl., Ex. L, ¶9; Ex. O, ¶8) Declarant Rollero testified that she does not mentor or train FSRs who, in her view, do not need it. (Gray Decl., Ex. AT).[FN21] Indeed, many FSRs, such as named plaintiff Mitchell, do not seek training or mentoring from their managers and do not even come to the sales office regularly. (Gray Decl., Ex. AW; Smith Decl., Ex. A, ¶11; Ex. U, 111). As declarant Kazakias stated in her declaration, the FSR career promises the opportunity for someone to operate independently and “be [your] own boss.” (Pl. App. IV, Part 1, Ex. 21, ¶3). In short, there is nothing common at all about the need for or an FSR's desire to receive -- “informal training or mentoring.”
FN20. Plaintiffs' claim concerning the disparate allocation of informal training and mentoring ignores the numerous formal training and sales assistance programs that are available to all FSRs regardless of gender, and the existence of the MLFS formal mentorship program. (Smith Decl., Ex. C; ¶4; Ex. D, ¶8; Ex. K, ¶¶4-5, 7; Ex. L, ¶10; Ex. U, ¶10; Ex. W, ¶10; Gray Decl., Ex. AP).
FN21. It is impossible to discuss these facts without observing the antithetical interests of female managers who allocate certain business development resources and make promotional decisions and the female FSRs, functional managers and second-line managers that are impacted by them. See Sheehan v. Purolator, Inc., 103 F.R.D. 641, 655 n.12 (E.D.N.Y. 1984 (named plaintiff who was responsible for approving promotion decisions and setting salaries could not adequately represent those who claimed that they were adversely affected by the implementation of these practices). This actual tension is illustrated acutely by the contradictory viewpoints of named plaintiff Hwa-Mei Gee and plaintiffs' declarant Carol Rollero. Gee claims that in 2002, “MetLife selected a less qualified man over [her] for an AD position.” (Pl. Br. 21). Ms. Rollero -- who is Gee's manager -- holds an entirely different view on this subject. Indeed, at deposition, Ms. Rollero testified as follows with respect to the appointment of Anthony Sciraggi, the male identified by Gee: Q: What was your reaction [to having Sciraggi join your office]? A: Well, my reaction was positive... Q: Why couldn't you do that with Mai Gee? A: I didn't think Mai Gee or I shouldn't say I don't think. Jay and I did not think Mai Gee wanted to become a manager again. Q: Was that what she told you? A: I guess just not really telling me. Just by manner of action and what we needed in -- another thing that we needed in Garden City was somebody that was really willing to run with the reps, go out on appointments, work with the new people more. (Gray Decl., Ex. AU). It is clear that Rollero did not, in her judgment, view Gee as a viable candidate for the role assumed by the male who was actually appointed. Ms. Rollero also made decisions about the allocation of resources to named plaintiffs Mitchell and Gee. When asked at deposition whether she had mentored Mitchell or Gee, Ms. Rollero replied that she did not need to mentor them. (Gray Decl., Ex. AV). Indeed, Ms. Rollero testified that there were a number of FSRs in her agency who did not need help from her and did not ask to be mentored. (Gray Decl., Ex. AV at 517-518). Even among FSRs, there are bound to be conflicts about the allocation of resources. Some managers' allocation systems favor new, inexperienced FSRs, while others favor senior, experienced FSRs. See supra at 13-14.

Given all the competing individualized interests unique to this case, it is impossible for the named plaintiffs who held managerial positions (Gee, Ramsey and Mitchell) to satisfy the adequacy of representation requirement for class certification.
Once again, plaintiffs have offered no quantitative or statistical showing that informal training, mentoring or partnering is provided on a disparate basis. Instead, their purported showing is entirely anecdotal - and, as demonstrated infra at 21-24 - hardly of the quality or quantity to sustain a showing of commonality. In order to succeed on a pattern-or-practice claim, plaintiffs “must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant's ‘standard operating procedure.’ ” Robinson v. Metro-North Commuter R.R., 267 F.3d 147,158 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002), (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S. Ct. 1843, 1855 (1977)). While the liability phase should be “largely preoccupied with class-wide statistical evidence directed at establishing” the alleged pattern-or-practice (see Robinson, 267 F.3d at 168), here plaintiffs have proffered no statistics concerning the distribution bf any of the “resources” they identify.
In sum, because the practices pursuant to which each of the business development resources that plaintiffs allege is discriminatorily distributed are so varied in nature, an evaluation of whether there is a pattern of discrimination could not be made based on the adjudication of the claims of a handful of FSRs who themselves have completely different experiences with respect to the availability, interest in, receipt and use of these resources. Rather, to determine liability on a class-wide basis, the distribution of every book of business in every branch would have to be examined; every leads program would need to be separately reviewed to see if it implicates management discretion at all and, if so, whether the distribution mechanism is objective or subjective (or both). Ultimately, the individualized practices of every branch would need to be examined to see how leads are actually distributed (category-by-category) within each branch, and why; and ultimately each lead assignment would need to be examined to determine how it was assigned, to whom it was assigned, and why. Absent such an evidentiary showing, there would be no basis to determine whether any differences in the distribution of resources are common to the class.
Since plaintiffs allege that there are significant gender differences in FSR compensation because of the disparate allocation of resources, a whole different set of triable issues would be implicated: the relationship, if any, between the receipt (or non-receipt) of a “lead” or “book of business” and the actual receipt of commission income. How will this issue be tried (other than on a case-by-case basis) when, concededly, there is only the most attenuated relationship between the receipt of a lead (or a book of business) and the consummation of a sale?[FN22] As a result, none of these claims reflect a sufficient (indeed, any) degree of commonality to justify class treatment.
FN22. See Smith Decl., Ex. A, ¶16; Ex. H, ¶6; Ex. L, ¶8; Ex. M, ¶8; Ex. O, ¶6; Ex. U, ¶9. d. Neither Plaintiffs' Statistical Analysis Nor Anecdotal Evidence Demonstrates A Common Claim With Respect To
The Allocation Of Resources
(i) Plaintiffs' Statistical Analysis Sheds No Light Whatsoever On Alleged Disparities In Resource Allocation
There is no dispute that plaintiffs have offered no statistical analysis whatsoever of gender disparities in resource allocation. The Second Circuit has made clear that “class certification would not be warranted absent some showing that the challenged practice is causally related to a pattern of disparate treatment or has a disparate impact ....” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 120 S. Ct. 1959 (2000), vacated on other grounds, 267 F.3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951, (2000) 122 S. Ct. 1349 (2002). Where, as here, the decision-making process at issue is alleged to be based on subjective determinations, significant statistical disparities are relevant to determining whether the challenged employment practice has a class-wide impact. Id. Plaintiffs have proffered no such statistical disparities; instead, plaintiffs infer the existence of sex-based disparities in the distribution of business development resources from alleged statistical disparities in compensation between male and female FSRs. This inferential leap is justified neither by logic nor the facts.

Moreover, even plaintiffs' statistical analysis of FSR compensation is so fundamentally flawed as to permit no finding of class-wide gender disparity sufficient to justify certification of a class on the FSR compensation claim. Dr. Drogin's first statistical analysis of FSR compensation is insufficient as a matter of law to justify a pattern or practice of gender discrimination because he did not “control[] for various factors that one would expect to be relevant to the likelihood of [increased compensation]” as required by the Caridad Court. Id. at 293.[FN23] Indeed, Dr. Drogin did not consider FSR qualifications or experience in any respect in his initial report. (Gray Decl., Ex. B at 8-10). Instead, he lumped together FSRs with and without prior insurance industry sales experience and those who hold and do not hold relevant insurance licenses, without any regard to the statistically significant impact that these factors have on compensation.[FN24] (Gray Decl., Ex. B at 8-10).
FN23. See also Cruz v. Coach Stores, Inc., No. 96 Civ. 8099, 1998 U.S. Dist. LEXIS 18051, at *13 n.3 (S.D.N.Y. Nov. 17 1998), aff'd in art, vacated in part on other grounds, 202 F.3d 560, 573 (2d Cir. 2000) district court found plaintiff's expert analysis was fatally flawed because it made “no distinctions for education, prior job history or job level.”) (citation omitted).
FN24. In a commission-based compensation system in which an FSR's compensation is directly attributable to the amount of his or her sales, both licensing and prior experience are obviously controlling factors since: (i) the range of products an FSR can sell is limited by what licenses he or she holds; and (ii) knowledge of insurance products and previous experience selling such products directly impacts on the magnitude of an FSR's sales. (Smith Decl., Ex. A, ¶5; Ex. I, ¶12; Ex. L, ¶12; Ex. Y, ¶7).
In contrast, the analysis performed by defendant's expert, Dr. Evans, which controls for the possession of requisite licenses,[FN25] prior industry sales experience, and other qualifications, demonstrates the deficiencies in Dr. Drogin's initial approach and the statistical significance of these non-discriminatory, business-related factors that Dr. Drogin ignored.[FN26] (Gray Decl., Ex. D at 25-31, Tables 4a-4d). When these concededly significant qualification and experience variables are included in the analysis, the difference between total compensation for male and female FSRs employed in that position for a full year is statistically insignificant in each year of the class period. (Gray Decl., Ex. D at 25-31, Tables 4a-4d).
FN25. A variable life license (or a variable annuity license) is required to sell variable life insurance products, variable annuities and mutual funds. (Smith Decl., Ex.A, ¶5). Thus, the small group of FSRs (approximately 6 percent of the total) who do not hold such licenses have distinctly different compensation prospects than those who do hold such licenses. (Gray Decl., Ex. D at 30).
FN26. As explained above (supra at n.5) and in the Declaration of Thomas J. Regan (annexed as Gray Decl., Ex. I) certain FSRs come to MetLife with considerable insurance sales experience, while others come to MetLife with no prior insurance sales experience whatsoever. (Gray Decl., Ex. I at ¶¶6-9). Clearly, the earnings prospects of these two groups are fundamentally different.
Faced with clear evidence that there were no statistically significant gender differences in the compensation of male and female full-year FSRs once the most basic qualification variables were factored in, plaintiffs felt compelled to submit a supplemental report from Dr. Drogin.[FN27] In his supplemental report, Dr. Drogin found that the variables used by Dr. Evans were, in fact, statistically significantly related to FSR compensation. The only modification to the Evans model that Dr. Drogin made was to expand the FSR group being analyzed; Dr. Evans had analyzed FSRs who held that position for a full year only; Dr. Drogin added FSRs who worked less than a full year (but a minimum of 13 weeks) and who were active as of year-end. In so doing, however, Dr. Drogin excluded: (i) FSRs who were hired in a particular year (and worked a minimum of 13 weeks) but were inactive at the end of that year; and (ii) FSRs who were employed in a

particular year (and worked a minimum of 13 weeks) but were inactive at the end of that year. Thus, in this gerry-rigged sample, which purported to include part-year FSRs, Dr. Drogin in fact excluded between 55 and 62 percent of them! (Gray Decl., Ex. Y at 7-9).
FN27. Defendant has included Dr. Drogin's supplemental report as an exhibit to its opposition papers (as Gray Decl., Ex. C) because it was prepared and provided to defendant after plaintiffs filed their moving papers. Plaintiffs have indicated to defendant that they intend to submit it as part of their reply submission; it is addressed in the supplemental report of Dr. Evans, which is likewise submitted herewith. (Gray Decl., Ex. Y).
It is clear that the experts do not “duel” on the following propositions:[FN28]
FN28. The analyses in Dr. Evans' supplemental report utilize the exact model found in Appendix 4 of Dr. Drogin's supplemental report. (Gray Decl., Ex. Y at 9).
• There are a number of variables (including possession of requisite insurance licenses and prior industry sales experience) which significantly affect FSR compensation; these variables were omitted from the analytical model presented by Dr. Drogin in his first report. • There is no statistically significant gender difference in the compensation of FSRs employed for a full year with respect to any year during the class period. • There is no statistically significant gender difference in the compensation of part-year FSRs (who worked a minimum of 13 weeks, but who were not active at the end of the year). • The full-year FSRs and the part-year FSRs not active at year-end together represent approximately 80% of the total FSR group during the class period. (Gray Decl., Ex. Y at 7-9).
It is simply inconceivable that plaintiffs could contend that there exists a “common” pattern of FSR compensation discrimination, when there are no significant gender disparities during the class period with respect to FSRs who have worked a full year. Nor can plaintiffs demonstrate a “common” pattern of compensation discrimination by selectively including only certain part-year FSRs in their analysis, when it is clear that there are no such disparities with respect to the substantial majority of part-year FSRs. Indeed, to argue a “pattern” of discrimination from such a showing would require an absurd theory of discrimination which disfavors female FSRs -- but only in their first year of employment and only if they remained active at the end of that year.
Finally, plaintiffs' theory of FSR compensation discrimination rests on the contention that female FSRs have received unequal “business development resources.” Such an assertion, however, would manifest itself only in an FSR's commission compensation (and not in the non-commission components of pay). Accordingly, Dr. Evans isolated and analyzed FSR commission income to see if there were gender based disparities in such income. Dr. Evans (using Dr. Drogin's precise model and running it on Dr. Drogin's own data set) found that there are no statistically significant gender disparities in FSR commission earnings for any full year within the class period (i.e., 1999-2001).[FN29] (Gray Decl., Ex. Y at 10-12).
FN29. Even if the part-year FSRs excluded by Dr. Drogin were added into the analysis, there are still no statistically significant gender differences in commission income for any years within the class period. (Gray Decl., Ex. Y at 12). Further, if one isolates the group that Dr. Drogin added to his Appendix 4 regression (new hires active at year end), there are no statistically significant gender differences for any year within the class period; in one of the four years, women earned more than men. (Gray Decl., Ex. Y at 12). (ii) Plaintiffs' Anecdotal Evidence Is Neither Quantitatively Nor Qualitatively Sufficient To Demonstrate
Commonality

In the absence of any statistical showing demonstrating a common claim with respect to the allocation of business development resources, the isolated complaints of a few FSRs who contend that their compensation suffered from the manner in which business resources were distributed comes nowhere near what is required, either quantitatively or qualitatively, to sustain the Rule 23(a) commonality requirement. Even though there are almost 3,000 female FSRs in the purported class (Gray Decl., Ex. D at 9, 10 n.5), plaintiffs, by their own accounting, have identified only 56 FSR class members who they contend were denied business development resources on the basis of gender. (Pl. Br. at 9). Of these 56, only 30 supplied this Court with declarations. (Pl. App. IV, Part 1, Ex. 1). For the other 26, plaintiffs rely on internal complaints (i.e., complaints submitted to MetLife's Human Resources Department) and/or external complaints (i.e., EEOC or litigation complaints), most of which only deal tangentially with the distribution of resources. (Pl. App. IV, Part 1, Ex. 1).
Together, the 56 statements offered (regardless of their source, or substance) represent less than 2.0% of the aggrieved class of FSRs, a percentage that falls well below the acceptable benchmark for anecdotal evidence under any of the relevant authorities.[FN30] This already inadequate sample is significantly eroded upon removing: (i) the 16 submissions that contain allegations that fall well outside the class period (Declaration of Jonathan E. Sachs (hereinafter referred to as “Sachs Decl.”), ¶2);[FN31] and (ii) the vast majority of declarations that were impeached, or proven baseless or wholly conclusory at deposition.[FN32]
FN30. In Ross v. Nikko Securities Co. International, Inc., where plaintiffs sought to certify a class comprised of nearly 200 women, Judge Patterson found that the submission of four affidavits (2%) was insufficient to satisfy commonality. 133 F.R.D. 96, 98 (S.D.N.Y. 1990); see also Bishop v. N.Y. City Dep't of Hous. Pres. & Dev., 141 F.R.D. 229, 237 (S.D.N.Y. 1992) (holding affidavits from 12.5% of the class statistically significant and sufficient to establish an aggrieved class); Churchill v. IBM, Inc., 759 F. Supp. 1089, 1103 (D.N.J. 1991) (holding testimonial proof from 2.14% of the proposed class insufficient to establish an aggrieved class).
FN31. Because claims outside the class period are not actionable, see United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889 (1977), the Court should not consider them in determining whether -- in the absence of a statistical showing -- plaintiffs have mustered sufficient anecdotal support to demonstrate commonality. If the Court does consider such claims in determining commonality, then the sample against which the number of anecdotal witnesses must be compared is much larger than 3,000 members.
FN32. In the exhibits annexed to the accompanying Declaration of Jonathan E. Sachs we identify various allegations included in plaintiffs' declarations that were impeached, or proven baseless or conclusory at deposition. Each exhibit contains the following: (i) a summary of the declarant's allegation with respect to the business resource at issue and her deposition testimony; (2) a table comparing the declarant's allegation with respect to the business resource at issue and her excerpted deposition testimony on that specific subject; (3) the portion of the declaration from which the declarant's allegation was excerpted (which has been underlined); and (4) the page(s) of the deposition transcript from which the declarant's testimony was excerpted. Focusing on the particular types of “resources” that plaintiffs claim FSRs were deprived of: at most 24 -- or less than 1% of the purported class - allege they were deprived any particular resource (in this case, leads). Further, of the 24 declarants who claim they were denied leads, the allegations of 10 were impeached or proven wholly conclusory (Sachs Decl., ¶4; Ex. A-J) and another 4 were time-barred (Sachs Decl., ¶5); of the 22 declarants who claim they were denied orphan books of business, the allegations of 16 were impeached or proven wholly conclusory (Sachs Decl., ¶7; Ex. K-Z) and another 3 were time-barred (Sachs Decl., ¶8); of the 6 declarants who claim they were denied partnering relationships, the allegations of 3 were impeached or proven wholly conclusory (Sachs Decl., ¶10; Ex. AA-AC) and another 2 were time-barred (Sachs Decl., ¶11); and of the 9 declarants who claim they were denied training, the allegations of 2 were impeached or proven wholly conclusory (Sachs Decl., ¶13; Ex. AD-AE) and another 2 were time-barred. (Sachs Decl., ¶14).
Due to space limitations, we cannot summarize here each of the liberties plaintiffs have taken with the record, in

attempting to demonstrate anecdotally that FSRs were denied “resources” on a sufficiently broad basis to meet their burden of demonstrating commonality. Instead, we summarize these in the exhibits annexed to the Declaration of Jonathan E. Sachs, and simply offer here the following illustrative examples:
• Declarant Diana Malec swore in her declaration that “[men] received all of the sales leads. As much as 80% of their income was generated from these leads.” (Pl. App. IV, Part 1, Ex. 25, ¶35). At deposition, she demonstrated that her assertion was a complete fabrication: Q: Do you know whether these reps make any sales off these leads? Have they made any sales off these leads? A: I have no idea. Q: Do you know how much compensation they have earned off these leads? A: I have no idea. (Sachs Decl., Ex. F). Declarant Candice Hearn swore in her declaration that “after my hire, I was given only nonlucrative, stagnant accounts or ‘books of business.’ In contrast, it is my understanding that new male Account Reps were routinely given the most lucrative books of business and leads to accounts that increased their compensation and ability to succeed.” (Pl. App. IV, Part 1, Ex. 15, ¶5). At deposition, Hearn, demonstrated that her allegations concerning the impact leads and books of business had on the compensation of male FSRs were entirely conclusory: Q: Do you know if other financial services reps in the agency were assigned books of business? A: Do I know if other, yes, I do. Q: Do you know the number of policyholders in any of the other reps' books of business? A: No, I do not.
Q: Do you know if other account reps in the agency were able to make sales off of their policyholders? A: I do not know. (Sachs Decl., Ex. Q). Declarant Elizabeth Schaudel swore in her declaration that “[f]rom the time I began at MetLife, I have been denied the business support that other male Account Reps were given. For example, one function of a Managing Director is to encourage and train new Account Reps in sales techniques by accompanying them on sales calls. Mr. Rossi never accompanied me, or any other female Account Reps, to these visits with potential clients, or ‘XL5s.’ However, Mr. Rossi did accompany male Account Reps, such as C.G. Wattamwar, on their XL5s.” (Pl. App. IV, Part 1, Ex. 36, ¶4). Yet, Schaudel testified at deposition that she: (i) did not know whether or not Mr. Rossi went on any sales calls with other female FSRs; (ii) did not know of any male FSRs other than C.G. Wattamwar who went on a sales call with Mr. Rossi; (iii) knew of only one instance in which Mr. Rossi accompanied C.G. Wattamwar on a sales call; and (iv) had no information whatsoever, concerning how it came to be that Mr. Rossi attended that one sales call with C.G. Wattamwar. (Sachs Decl., Ex. AC). Declarant Judy Insinga swore in her declaration that “[a]lthough I know that business leads do come into the office, I have never been given any....” (Pl. App. IV, Part 1, Ex. 18, ¶7). At deposition, Insinga provided the following contradictory testimony: Q: You are currently participating in a new lead program with the Samis P&C office, is that correct? A: Correct.
Q: Okay. And you have received leads from this program, is that correct? A: Yes. Q: Approximately how many leads have you received? A: To date, approximately 800. Q: How many sales have you made from any of these leads? A: Six. (Sachs Decl., Ex. D).[FN33]
FN33. In fairness to plaintiffs, Insinga did not begin to participate in the Samis P&C lead program until after her declaration was signed. Plaintiffs, however, never withdrew or amended the declaration, even after Insinga's

deposition.
MetLife recognizes that this motion is not an occasion for the Court to evaluate the merits of plaintiffs' claims. At the same time, the Court is obliged to take a sufficiently critical view of the evidence to determine whether the challenged practice satisfies the commonality requirement. See Caridad at 292; see also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 159 n.15, 102 S. Ct. 2364, 2371 (1982); In re Livent, Inc. Noteholders Sec. Litig., 211 F.R.D. 219, 222 (S.D.N.Y. 2002); Daniels v. City of N.Y., 198 F.R.D. 409, 413 n.5 (S.D.N.Y. 2001). When measured by this standard, it is clear that plaintiffs' anecdotal evidence is quantitatively and qualitatively inadequate, and cannot serve as a basis for finding commonality.[FN34]
FN34. The report of plaintiffs' sociological expert, Dr. Willaim T. Bielby, likewise does nothing to advance plaintiffs' certification motion. Dr. Bielby does not find that discriminatory practices have, in fact, occurred within MLFS. Rather, he opines that the subjective elements of certain decision-making processes in MLFS with respect to the allocation of certain resources and promotion decisions leave room for the exercise of discretion and gender stereotyping (Pl. App. II, Ex. 26 at 6), thus ignoring (among other things) the fact that the compensation systems for FSRs and first-line managers (and most resource distribution mechanisms) are not subjective at all. (See supra at 2-3, 8-9; infra at 26-27). For this reason, and the other reasons set forth in the report of Dr. Christopher Winship (Gray Decl., Ex. AX), which reviews Dr. Bielby's methodology and analysis, Dr. Bielby's report should be disregarded.
In sum, plaintiffs have provided no statistical, and wholly insufficient anecdotal, evidence to support their claim that alleged disparities in FSR compensation are attributable to a pattern and practice of discrimination in the distribution of business resources. Accordingly, no class should be certified in respect of such claim.
2. Plaintiffs Have Failed To Demonstrate Typicality On Their FSR Compensation Claim
The Second Circuit has defined the typicality requirement to be “satisfied when each class member's claims arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (emphasis added); see also Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002). Although plaintiffs try to mask their typicality deficiency by lumping together all four MLFS positions, the simple -- and undisputed -- fact is that none of the three named plaintiffs who held an FSR position during the class period (Ramsey, Mitchell and Persaud)[FN35] claims that she was discriminatorily denied “informal training and mentoring, assignment of sales leads and books of business, and partnering with managers and/or more experienced FSRs.” (Pl. App. IV, Part 1, Ex. 2, 5, 6). Ramsey testified that she was not the subject of any discrimination during the time (within the class period) that she was an FSR. (Gray Decl., Ex. AY). Mitchell testified that she was not discriminatorily denied any of these resources. (Gray Decl., Ex. AZ). Persaud explicitly admitted in her deposition that, not only did she never ask for leads, she did not even want to receive them. (Gray Decl., Ex. BA). Persaud likewise admitted that she was never denied any training that she requested; to the contrary, she attributed her 1999 successes to the training and support she received from MetLife's Financial Planning Unit. (Gray Decl., Ex. BB).[FN36]
FN35. Only three of the named plaintiffs (Ramsey, Mitchell and Persaud) held an FSR position during the class period. (Gray Decl., Ex. G, ¶¶27-60).
FN36. The only complaint that Persaud makes with respect to her status as an FSR during the class period is that she was denied a private office during a four month period in her agency, which she believed she was entitled to because she had achieved a certain level of sales production. (Pl. App. IV, Part 1, Ex. 5, ¶¶4-5).

In short, the absence of a representative plaintiff whose claim “arise[s] from the same course of events” alleged in support of the FSR compensation claim proves fatal to plaintiffs' assertion of typicality.
B. Functional Managers
1. Commonality Plaintiffs fail to satisfy the commonality requirement with respect to their functional manager compensation claim because they have not submitted any statistical evidence whatsoever concerning the allocation of business development resources to -- or the compensation of -- functional managers. To the contrary, both Dr. Drogin and Dr. Evans agree that there are no statistically significant gender disparities in the compensation of functional managers in any year since the position was created in 1997. (Gray Decl., Ex. D at 33-37, Table 7a-7d; Ex. Y at 14). To the contrary, in 1998 and 2000 female functional managers, on average, earned more than males. (Gray Decl., Ex. C, App. 8).
2. Typicality Plaintiffs cannot satisfy the typicality requirement with respect to their functional manager compensation claim because there is no named plaintiff with a representative claim. (See supra at 25). The only named plaintiff who has held the position of functional manager -- Gee -- does not assert any disparate compensation claim with respect to this position. (Gray Decl., Ex. G, ¶¶37-45).
For the foregoing reasons, no class should be certified with respect to plaintiffs' functional manager compensation claim.
C. First-Line and Second-Line Managers
In addition to suffering from the flaws identified below, plaintiffs' compensation claim with respect to first-line and second-line managers fails to satisfy Rule 23(a)'s requirements because it is premised on a statistical analysis that amalgamates the data for the two groups. The compensation data cannot be lumped together in this fashion because the two positions are compensated in fundamentally different ways. (Gray Decl., Ex. I, ¶¶13-16).
As previously noted, MetLife does not directly determine the compensation of first-line managers within MLFS. Rather, first-line managers are compensated based on Performance Based Compensation (“PBC”) -- an elaborate and complex formula which considers a variety of objective measures of branch performance, including headcount, retention of FSRs, FSR productivity and agency expenses. (Gray Decl., Ex. I, ¶¶13-14). In contrast, second-line managers are compensated by a variety of methods: some are paid a straight salary; some receive variable pay (in essence, bonuses) based on designated responsibilities within the branch, such as recruiting; some are paid a pre-determined percentage of branch PBC; and some are compensated based on a combination of these methodologies. (Gray Decl., Ex. I, ¶16; Ex. X). Accordingly, plaintiffs' insistence on lumping together both positions in carrying out their compensation analysis alone defeats any showing of commonality.
1. First-Line Managers
a. Commonality As with their FSR compensation claim, plaintiffs do not attack as discriminatory the compensation system for first-line managers, which they admit “is largely determined by a common performance based compensation plan (‘PBC’) that considers the agency's FSR production, recruiting, retention, sales growth, profitability, ethics, and compliance.” (Pl. Br. at 10). Instead, plaintiffs contend - in the vaguest and most conclusory terms -- that MetLife has discriminated against female first-line managers in the allocation of “training, mentoring and discretionary funds.” (Pl. Br. at 10). Plaintiffs, however, fail to specify: (i) what they mean by “training, mentoring and discretionary funds” as these terms relate to first line managers; or (ii) how these resources are allocated (or, more precisely, misallocated). Most

importantly, plaintiffs have not provided the Court with any statistical evidence that these resources have been disparately allocated on the basis of gender.[FN37] Thus, they have not established commonality under the rigors of Caridad. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 120 S. Ct. 1959 (2000), vacated on other grounds, 267 F.3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002).
FN37. The anecdotal evidence supplied by plaintiffs does not support a finding of commonality either. Although plaintiffs claim that “11 [female witnesses and class members] allege that as agency managers they were denied business development resources and support that similarly situated men received, resulting in lower compensation,” (Pl. Br. at 21) plaintiffs' Summary of Class Member and Female Witness Allegations Regarding Discriminatory Conduct in MLFS (Pl. App. IV, Part 1, Ex. 1) demonstrates that only three of these women held managing director (i.e., first-line manager) positions (Jackie Brinson, Judy Insinga and Carol Rollero); the others held lower level managerial positions. Of the three referenced women who held first-line manager positions, only one (Rollero) held a first-line manager position during the class period and she is the only one who alleges “unfair distribution of business resources” as a first-line manager. (Pl. App. IV, Part 1, Ex. 12, ¶ ¶11-12, 17-19; Ex. 18, ¶¶5, 7; Ex. 34, ¶¶18-24). Thus, plaintiffs' meager (indeed, virtually nonexistent) “anecdotal” showing hardly compensates for the total absence of any statistical evidence of gender based disparities in the allocation of resources to first-line managers or gender based disparities in first-line manager compensation.
Even assuming that evidence of disparities in earned compensation could substitute for evidence of disparities in the distribution of certain resources, plaintiffs (based on their own expert's submissions) still have failed to satisfy the commonality requirement because they have shown no gender disparities at all! It is undisputed that, with respect to first-line managers, there is no statistically significant gender disparity in compensation for any full year within the class period - i.e., 1999, 2000, or 2001.[FN38] (Gray Decl., Ex. D at 31-32, Table 5; Ex. Y at 14). Indeed, in 1997, 1998, 2000 and 2001 female first-line managers earned, on average, more than their male counterparts. (Gray Decl., Ex. C, App. 8). Thus, the statistical evidence offered by plaintiffs: (i) makes plain that no claim of compensation discrimination can be certified with respect to the firstline managers; and (ii) substantially undermines plaintiffs' theory of a discriminatory pattern or practice of gender discrimination with respect to managerial compensation.
FN38. Conclusions cannot be drawn for 2002 since the 2002 data are part year only and do not include year-end reconciliations of PBC. (Gray Decl., Ex. D at 31).
b. Numerosity Numerosity requires a determination that the potential “class is so numerous that joinder of all members is impracticable.” Fed. R.Civ.P. 23(a)(1); see also Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 482-83 (2d Cir.), cert. denied, 515 U.S. 1122, 115 S. Ct. 2277 (1995). Plaintiffs correctly observe that in the Second Circuit, numerosity “is presumed at a level of 40 [class] members.” Id. at 483; Pl. Br. at 15. Measured by this standard, numerosity is not satisfied for first-line managers; during the class period 25 women - fewer than 40 -- held a first-line manager position. (Gray Decl., Ex. I, ¶17). For the foregoing reasons, no class should be certified with respect to plaintiffs' first-line manager compensation claim.
2. Second-Line Managers
a. Commonality Plaintiffs' argument with respect to second-line manager compensation appears to be that MetLife compensates female second-line managers less than their male counterparts by denying them training and mentoring and “relying on subjective criteria, exercised with gender bias, to determine the allocation of agency profits among agency managers.” (Pl. Br. at 2). Plaintiffs, however, have offered virtually no evidence to support this claim. First, plaintiffs have provided no statistical support whatsoever for finding system-wide disparities with respect to the allocation of any “resources” to second-line managers. Second, plaintiffs nowhere identify exactly what “training” or “mentoring” female second-line managers have been denied; let alone how such -- as yet unspecified -- “denials” have been discriminatory

on the basis of gender. A demonstration of commonality cannot rest on such a bare showing.[FN39]
FN39. Similarly, plaintiffs nowhere explain, let alone document, how second-line managers receive a discriminatory “allocation of agency profits.” As noted above, many second-line managers are paid a salary (or salary plus bonus). (See supra at 3, 26-27). How such compensation is, in any respect, disparately paid to male and female second-line managers performing similar functions is never explained in plaintiffs' moving papers.
Furthermore, the notion that plaintiffs can group together, in a single statistical analysis, compensation data for all second-line managers across MLFS is plainly inconsistent with the undisputed evidence regarding the heterogeneity of functions performed by the various incumbents in the second-line manager position. For example, some second-line managers run smaller detached offices (Gray Decl., Ex. BC; Smith Decl., Ex. W, ¶2); some are sales managers, responsible for units of FSRs (Gray Decl., Ex. BD); other second-line managers do not supervise FSRs at all, and are instead responsible for certain functional or administrative duties within the sales office such as financial planning, training, marketing or recruiting (Gray Decl., Ex. BE; Smith Decl., Ex. C, ¶2; Ex. T, ¶2; Ex. AA, ¶¶2-3).
The dramatic differences in the functions performed by the various categories of second-line managers is evident from the wide range of their compensation. In order to eliminate any issue of alleged gender bias, we note the differentials in the compensation of male second-line managers only: in 2000, for example, approximately 32% of male second-line managers earned less than $75,000; approximately 27% earned between $100,000-$150,000; and approximately 13% earned in excess of $150,000. (Gray Decl., Ex. D at 20). These wide compensation ranges alone demonstrate that there is no logical basis for lumping together, for analytical purposes, the compensation of such a diverse group merely because they hold the same generic title, under the faulty assumption that they should all be earning essentially the same thing. Indeed, the only common thread uniting the incumbents performing these various functions is that they each hold the secondline manager designation. There is, in short, no basis in fact or logic for their compensation -- or the methods by which they are compensated -- to be similar; and there is equally no basis in fact or logic to analyze their compensation as if they all performed a unitary function. (See, e.g., Smith Decl., Ex. M, ¶¶3-5; Ex. T, ¶4; Ex. W, ¶6; Ex. AA, ¶¶3-4). Yet, that is precisely what plaintiffs do.[FN40]
FN40. Indeed, as noted above, plaintiffs further compound this error by lumping first-line and second-line managers together in performing their compensation analysis. (Gray Decl., Ex. B at 11, Table 8; Ex. C at 5).
Finally, even when the compensation of male and female second-line managers is analyzed collectively (and as noted above, erroneously so), plaintiffs' own statistical analysis demonstrates that in 1996 and 1997 female second-line managers earned, on average, over $12,000 more than their male counterparts and that, in 1998 and 1999, there was no statistically significant gender disparity with respect to second-line manager compensation. (Gray Decl., Ex. C at 5-6, App. 6, 8). From plaintiffs' perspective, only in 2000 and 2001 are there statistically significant compensation disparities between male and female second-line managers.[FN41] (Gray Decl., Ex. C at 5-6, App. 6, 8). These findings, as they apply to such a functionally diverse group, do not support a finding of commonality.
FN41. Because a number of second-line managers receive compensation that is based on annual PBC, or receive annual bonuses, partial-year data for 2002 provides no meaningful basis for analysis. See supra n.38. Dr. Evans' analysis of second-line manager compensation was limited to those holding the position for a full year. He found no statistically significant gender disparity in compensation for second-line managers in 2000; (Gray Decl., Ex. D at 32). Dr. Drogin's supplemental report does not dispute this finding.
b. Typicality Not only have plaintiffs failed to demonstrate commonality with respect to their second-line manager compensation claim, they have failed to demonstrate typicality as well. Although three of the named plaintiffs -- Gee, Ramsey and Mitchell -- were each second-line managers at some point during their tenure with MetLife, none asserts

a timely compensation claim, or the type of compensation claim that would be typical of the potential class they seek to represent. Gee asserts no claim of compensation discrimination at all, even though she held a second-line management position from 1995 until June 1999. (Gray Decl., Ex. G, ¶38; Ex. BF). Mitchell's claim is untimely because she ceased being a second-line manager in May 1998 -- well before the commencement of the class period. (Gray Decl., Ex. BG). Furthermore, she too makes no allegations supporting a claim of second-line management compensation discrimination.[FN42]
FN42. Mitchell alleges that there was a large disparity in management compensation between her, as a second-line manager, and her first-line manager, Sam Kashanchi (Gray Decl., Ex. BH). Even if true, Mitchell's allegation would not support a claim of discriminatory treatment of second-line managers.
Ramsey's claim is also atypical. Her only complaint regarding compensation for the period during which she was a second-line manager was that she had not received a written compensation plan from her first-line manager. (Gray Decl., Ex. BI). This claim -- even if it can be classified as a compensation claim at all - is hardly typical of the class-wide second-line manager compensation claims that plaintiffs assert. In sum, no class should be certified with respect to plaintiffs' second-line manager compensation claim.
III. PLAINTIFFS HAVE FAILED TO SATISFY THE REQUIREMENTS OF RULE 23(a) WITH RESPECT TO THEIR CLASS CLAIMS OF DISCRIMINATORY PROMOTION PRACTICES[FN43]
FN43. A federal class may only include persons who are challenging acts that occurred within 300 days prior to the earliest date that a class representative filed a timely charge related to the claim at issue. See Avagliano v. Sumitomo Shoji Am., Inc., 103 F.R.D. 562, 578 (S.D.N.Y. 1984); see also Tolliver v. Xerox Corp., 918 F.2d 1052, 1058 (2d Cir. 1990), cert. denied, 499 U.S. 983, 111 S. Ct. 1641 (1991). In this case, plaintiffs' promotion claim was not encompassed within the first timely-filed charge. The first named plaintiff to file a charge of discrimination relating to promotion was Stella Mitchell. (Pl. App. IV, Part 1, Ex. 2, 3, 5, 6). Mitchell's initial charge alleging discrimination in promotion was filed on September 14, 2000. (Pl. App. IV, Part 1, Ex. 2). As such, plaintiffs federal promotion claim should date back to no earlier than November 21, 1999.
The deficiencies in plaintiffs' motion with respect to their promotion claim are different than the deficiencies identified with respect to their compensation claims, but equally fatal. With respect to their compensation claims, plaintiffs fail to demonstrate the existence of any common practice or policy that disparately affected women; instead, they rely on alleged statistical disparities that are irrelevant because they have no demonstrated nexus to the challenged decisions. With respect to promotions, though plaintiffs broadly claim that MetLife maintains a “glass ceiling” across MLFS by denying FSRs and agency managers equal opportunity for promotion (Pl. Br. at 1, 20), plaintiffs' own statistical expert has identified virtually no gender based promotion disparities at all.[FN44] First, Dr. Drogin failed (in either his initial report, or his supplemental report) to analyze the rates of promotion (or gender disparities in the rates of promotion) from any MLFS position other than FSR.[FN45] (Gray Decl., Ex. B at 5-8; Ex. C at 1-3; Ex. D at 4; Ex. Y at 3). Thus, plaintiffs do not allege any discriminatory failure to promote functional managers, second-line managers or first-line managers.[FN46]
FN44. It should be noted that plaintiffs' selective references to “The Women of MetLife Report” (Pl. Br. at 2, 13) distort the purpose of the report as well as the conclusions stated therein. According to its author, Karen Christensen, the report was not intended as a means of investigating possible gender issues as plaintiffs appear to suggest; rather, it was an effort to record gender data within MLFS as a matter of first impression. (Gray Decl., Ex. BJ; Ex. BK). Ms. Christensen (who is no longer employed by MetLife) made clear, upon questioning by plaintiffs at her deposition, that her purpose was to report the data available to her, not to draw conclusions from such data about possible discrimination. (Gray Decl., Ex. BK).

FN45. Accordingly, at a minimum, any promotion class should exclude individuals who did not hold an FSR position during the class period.
FN46. Although plaintiffs allege that MetLife discriminates against women in promotions to Regional Vice President positions (Gray Decl., Ex. G, ¶6), it is undisputed that: (i) the number of Regional Vice Presidents (a position that is, over time, being eliminated from the MLFS field organization) has dropped from 26 as of January 1999 (Pl. App. I, Ex. 2 at 7) to 7 as of December 2002 (Gray Decl., Ex. BL); (ii) no one -- either male or female -- has been appointed or promoted to a Regional Vice President position during the class period (Gray Decl., Ex. D at 7); (ii) plaintiffs' statistical expert offers no findings whatsoever regarding promotion to the Regional Vice President position (see generally Gray Decl., Ex. B; Ex. C); (iv) the Regional Vice President position will be completely eliminated in 2003 (Gray Decl., Ex. BM); and accordingly, no class should (or can) be certified with respect to promotions to this position.
Second, even with respect to promotions from the FSR position, Dr. Drogin found no statistically significant gender disparities in promotions to either first-line manager (managing director) or second-line manager (agency director) during the class period.[FN47] Dr. Evans' analysis confirmed this conclusion.[FN48] (Gray Decl., Ex. D at 10; Ex. Y at 2-3). Thus, on the undisputed facts, plaintiffs cannot possibly sustain a class claim with respect to promotion discrimination across the entire MLFS organization; to the contrary, their promotion claim is -- by their own admission -- limited to promotions from a single position (FSR) to a single position (functional manager).[FN49] See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999) (certifying discipline claim only “with respect to those African-American employees who were disciplined while working in one of the 48 positions in which African-Americans are more likely to be disciplined than Whites”), cert. denied, 529 U.S. 1107, 120 S. Ct. 1959 (2000), vacated on other grounds, 267 F. 3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951,122 S. Ct. 1349 (2002).
FN47. Plaintiffs' contention that “[f]emale FSRs are less likely to move into agency management positions (MD, AD, FM) than similarly situated males” and that, during the class period, “women received 40 fewer job moves into these positions than expected,” (Pl. Br. at 11), is a gross distortion of the record; their expert found no such thing. It is clear from Dr. Drogin's initial report (Gray Decl., Ex. B at 7, Table 4) that there were no statistically significant gender differences in promotion rates for FSRs into first-line or second-line managerial positions during the class period. Indeed, Dr. Drogin's own analysis found that more female FSRs than expected were in fact promoted to second-line manager during the class period. (Gray Decl., Ex. BN). Dr. Drogin's supplemental report does not challenge this conclusion; to the contrary, his entire promotion discussion is limited to promotions from FSR to functional manager. (Gray Decl., Ex. C at 1-3).
FN48. Significantly, during this period, the percentage of female second-line managers has increased from 9.8% to 22.9%. Of the second-line managers hired during this period, over 41% have been female. (Gray Decl., Ex. D at 8, Table 2). It is, therefore, hardly surprising hat plaintiffs' own expert finds that the percentage of women moving into the second-line manger position is identical to the percentage of women in the relevant feeder pool. (Gray Decl., Ex. B at 7, Table 4; Ex. D at 10).
FN49. Dr. Drogin's statistical findings with respect to promotions prove the unscientific conjectures of plaintiffs' “sociological” expert - Dr. Bielby - to be all the more ludicrous. Contrary to Dr. Bielby's suggestion Pl. Br. at 8), Dr. Drogin's reports make plain that there is no pattern of gender disparities in promotions across the MLFS organization during the class period. (See generally Gray Decl., Ex. B; Ex. C).
Third, even with respect to the single promotion as to which plaintiff claim a statistically significant gender disparity promotion from FSR to functional manager -- Dr. Drogin's analysis is entirely unpersuasive in supporting a common claim of discrimination for the reasons set forth below.

A. Plaintiffs' Claim Is Limited To A Single Promotion Category
As discussed above, the Second Circuit will certify a class only with respect to positions for which there is at least a facial showing of statistical disparity. See Caridad at 292. Here, plaintiffs' statistician found an alleged statistical disparity only with respect to promotions from FSR into a single title -- functional manager.[FN50] A disparity with respect to movements from the FSR position into one position only (and the lowest level of the non-FSR positions at that) hardly justifies plaintiffs' claim of a pattern and practice of promotion discrimination. See, e.g., Donaldson v. Microsoft Corp., 205 F.R.D. 558, 567 (W.D. Wash. 2001) (no commonality due to absence of a “class-wide pattern of discrimination” where disparate compensation for women found in only 5 of 24 job categories).
FN50. Even with respect to promotions from the FSR position to functional manager, the data fail to demonstrate commonality. Virtually all (i.e., over 99%) observed moves from the FSR position to functional manager were within the same sales office, and 47% of female FSRs active during the class period worked in sales offices where no one (male or female) moved from FSR to functional manager. (Gray Decl., Ex. D at 14; n.14; Ex. BO). Thus, a substantial proportion of female FSRs have no “promotion” claim to assert (and should not be part of any class asserting such a claim), even with respect to movements to the functional manager position.
B. Movements From FSR To Functional Manager Are Inherently Unsuited To Class Treatment
Plaintiffs' effort to group together, in a single statistical analysis, nationwide data regarding promotions from FSR to functional manager is wholly inconsistent with the undisputed evidence regarding the diversity of the functional manager position and the decentralized appointment process. The appointment of functional managers is made at the sales office (district) level by first-line managers. (Gray Decl., Ex. Q). Whether any functional managers will be appointed (as noted supra at n.50, almost half of female FSRs during the class period worked in sales offices in which no functional managers, either male or female, were appointed); and the type of functional support required of functional managers in a particular sales office (and hence the skill and experience levels required) is dictated at the sales office level and varies widely based upon each office's unique needs. For example, a sales office may appoint a functional manager to perform training; joint fieldwork; or recruiting. Some sales offices need functional managers who are product specialists, or who can assist with marketing, financial planning or estate planning, or to handle special projects. (Gray Decl., Ex. BP-BR). Given the heterogeneity of functionality, it is hardly surprising that the skill sets and experience of FSRs appointed to functional manager positions will vary widely. This alone renders plaintiffs' functional manager promotion claim unsuited to class treatment. See Caridad at 292; Donaldson at 567-68.
C. Plaintiffs' Statistical Analysis Is Not Probative Of Class-Wide Disparities In Movement Of FSRs To Functional Manager
Apart from the inherent lack of commonality in functional manager appointments, the statistical analysis on which plaintiffs' motion for class certification relies cannot serve as a basis for certifying a functional manager promotion class. Even if fully credited, Dr. Drogin's supplemental report makes plain that a maximum of 30 female FSR's - out of a total of 3127 putative class members -- could have suffered a discriminatory denial of assignment to functional manager during the entire class period. (Gray Decl., Ex. C, ¶8; Ex. D at 9). By plaintiffs' own account, this amounts to approximately 7 promotions per year during the class period and involves less than 1% of the putative class -- hardly a showing from which a common practice of promotion discrimination can be divined.[FN51]
FN51. Dr. Evans found an even smaller disparity. Dr. Evans divided the FSR group into two segments: (i) those who were hired by MetLife with prior insurance industry sales experience or who held an MLFS management position prior to becoming an FSR; and (ii) those FSRs without such pre-MetLife insurance sales experience or prior MLFS management experience. This differentiation was clearly warranted: FSRs hired with prior insurance industry sales experience are over three times more likely to move to a functional manager position

than those without such experience. (And since computerized data on pre-MetLife sales experience has been kept only since the end of 1998, the differences are likely substantially higher.) FSRs who were former managers in MLFS were more than eleven times more likely to move to functional manager than those without such managerial experience. FSRs with previous insurance industry sales experience or prior MetLife managerial experience received nearly 75 percent of job moves from FSR to functional manager during the class period. (Gray Decl., Ex. D at 13). Dr. Evans found that, for the “experienced” group of FSRs (which accounted for approximately 75 percent of job moves from FSR to functional manager during the class period), there was no statistically significant difference between the expected and actual number of job moves by women to the functional manager position. (Gray Decl., Ex. D at 17, App. C at 39). For the “inexperienced group”, the difference in the likelihood of movement to functional manager between males and females was one-half of one percent; while this difference for the inexperienced FSR group is statistically significant due to the large sample size, it would have taken only seven more female job moves to reduce even this slight difference to zero -- approximately two-tenths of one percent of female FSRs in the putative class! (Gray Decl., Ex. D at 17-18, App. C at 40). In his supplemental report, Dr. Evans redid this analysis, this time utilizing the same data set and the same statistical model (including interaction terms) utilized by Dr. Drogin in his supplemental report. Dr. Evans again found that there was no statistically significant gender difference in the likelihood of promotion of experienced FSRs to functional manager. Since, according to Dr. Drogin's own data, experienced FSRs are 3.5 times more likely to be promoted to functional manager than inexperienced FSRs, and since 75 percent of FSR promotions to functional manager came from the experienced group, it is simply impossible to contend that MetLife engaged in a pattern and practice of gender discrimination in promotions even with respect to job moves from FSR to functional manager. (Gray Decl., Ex. Y at 4-5).
In sum, because: (i) Dr. Drogin reports no gender disparities during the class period in promotions from functional manager, second-line manager or first-line manager into any other MLFS position; (ii) there are no gender disparities during the class period in promotion from FSR to first-line manager; (iii) there are no gender disparities during the class period in promotions from FSR to second-line manager; (iv) almost half the putative class members were in branches in which there were no promotions to functional manager at all; and (v) the alleged “shortfall” in promotions of female FSRs to functional manager amounts -- on the evidence most favorable to plaintiffs - to less than 30 promotions during the entire class period, there is no basis for finding a “pattern and practice” of gender discrimination. Plaintiffs' motion to certify a promotion claim should, therefore, be denied. See Donaldson at 567-68.
IV. PLAINTIFFS HAVE FAILED TO DEMONSTRATE A BASIS FOR CERTIFYING A CLASS BASED ON A CLAIM OF DISPARATE IMPACT
The deficiencies in plaintiffs' statistical evidence that preclude class certification of their disparate treatment claims are likewise fatal to their disparate impact claims. In order to make out a prima facie showing of disparate impact, a plaintiff must: “(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.” Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 160 (2d Cir. 2001), cert. denied, 535 U.S. 951,122 S. Ct. 1349 (2002).
First, as previously noted (see supra at 7-17, 27-30) plaintiffs have offered no statistical showing that the distribution of business development resources has disparately impacted women; nor have they demonstrated any causal connection between the allocation of those resources and FSR compensation. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657; 109 S. Ct. 2115, 2125 (1989); see supra at 7-17. As Robinson makes plain, “the statistics must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity.” 267 F.2d at 160. As plaintiffs concede, such statistical evidence is “crucial,” as it occupies “center stage” in a disparate impact claim. See Pl. Br. 19, citing Robinson, 267 F.3d at 160. Allegations which contend only that there is a bottom line imbalance are insufficient. This shortcoming is fatal to plaintiffs' disparate impact claim with respect to compensation.

Second, with respect to their compensation discrimination claim, plaintiffs have not identified a “particular employment practice” that they contend is facially neutral yet has a discriminatory impact on women. 42 U.S.C. § 2000e-2(k).[FN52]
FN52. To the extent that plaintiffs argue that their compensation claim is derived from the discriminatory distribution of business development resources, they have likewise failed to identify the facially neutral policy they are challenging. For example, although plaintiffs suggest that females in MLFS are deprived of “informal training and mentoring,” they do not identify what facially neutral policy governing the distribution of such informal training and mentoring disparately impacts women. Indeed, plaintiffs' own description of the claim (as involving informal training) suggests the absence of any policy.
Finally, sheer logic dictates that the isolated “disparities” alleged in this case (i.e., second-line manager compensation and promotion from FSR to functional manager) are not indicative of the systemic impact required to sustain a disparate impact claim. See Robinson, 267 F.3d at 160. For example: how is it that MLFS first-line managers are alleged to discriminate against women in the appointment of functional managers (which is only a part-time managerial position with limited managerial compensation (see supra at 2-3)), when these same managers are not - concededly discriminating in the promotion of women to the full-time secondline management position (for which the average female earnings exceeds $75,000 during every year in the class period), and when these same allegedly biased, overwhelmingly male managers are demoting men at a higher rate than women? See supra, n.2. Why would first-line managers allegedly discriminate against women in the allocation of second-line manager compensation, but not functional manager compensation? Why would first-line managers allegedly refuse to allocate resources to female FSRs when they hired these FSRs in the first instance; when their own compensation is based on the success of all FSRs; and where they are financially penalized if FSRs - both male and female -- do not succeed? (Gray Decl., Ex. I, ¶¶13-14; Ex. H at ML 001414). In short, based on the totality of the record, the incidental and unpatterned promotion and compensation “disparities” plaintiffs allege cannot possibly serve as an evidentiary basis for a class-wide disparate impact claim. See Rodriguez supra at n.14.
V. PLAINTIFFS HAVE FAILED TO SATISFY THE REQUIREMENTS OF RULE 23(b)(2)
Plaintiffs seek certification of the proposed class under Rule 23(b)(2), which provides that a class action may be maintained where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief... with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). Robinson v. Metro-North Commuter Railroad, 267 F.3d 147 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S. Ct. 1349 (2002)[FN53] holds that, when presented with a motion for (b)(2) class certification of a claim that seeks both injunctive relief and non-incidental monetary damages, a district court must assess the “relative importance of the remedies sought, given all of the facts and circumstances of the case,” id. at 164, (citation omitted) and determine whether: (1) the positive weight or value of the injunctive or declaratory relief sought is predominant, even though compensatory or punitive damages are also claimed; and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy. Id. (emphasis added).[FN54]
FN53. Contrary to plaintiffs' assertion (Pl. Br. at 23), the Second Circuit in Robinson did not reverse the district court for having denied certification under (b)(2) with respect to the disparate treatment claim, but rather vacated and remanded the case for reconsideration in light of its newly-created standards. Id. at 172.
FN54. Defendant respectfully submits that the Second Circuit was incorrect in declining to follow the analysis of Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) and wishes to respectfully reserve the right to raise this contention in the event that the issue is addressed by the Supreme Court during the pendency of this litigation.

With respect to the first consideration, Robinson clarified that an evaluation of predominance requires ad hoc balancing that will vary from case to case, and that (b)(2) certification should not be granted unless the court determines that reasonable plaintiffs would have brought suit to obtain the injunctive or declaratory relief sought, even in the absence of a possible monetary recovery. Id. Applying these considerations here, there are several factors demonstrating that this case is primarily driven by monetary incentives, rather than a desire to obtain injunctive relief. First, approximately 60 percent of the putative class -- as well as named plaintiffs Persaud and Ramsey - are former MetLife employees (Gray Decl., Ex. D at 9; Pl. Br. at 11) and, as such, have no personal stake in the pursuit of injunctive relief. Exclusively monetary relief is clearly of primary importance to them, and to the overwhelming number of purported class members.
Second, for the reasons set forth in the sections of this brief addressing commonality with respect to the compensation and promotion claims, class treatment in this case would not be “efficient and manageable.” See supra at 5-17, 26-30, 34-36. Plaintiffs' proposed solution to this problem-- bifurcation and certification of a liability phase -- is really no solution at all. (Pl. Br. at 24). Robinson's foundation for the partial certification framework was the fact that the “liability phase [was] largely preoccupied with class-wide statistical evidence,” and that the anecdotal evidence merely provided “texture” to those statistics. Robinson, 267 F.3d at 168. Here, however, plaintiffs' proof concerning their distribution of business resources claim (the claim that masquerades as an FSR discriminatory compensation claim) is based exclusively on anecdotal evidence. The parade of anecdotal witnesses that would necessarily be involved in determining liability on this claim alone would severely undermine the manageability of the action and would result in a lengthy series of individualized mini-liability trials under the guise of a single trial -- exactly the result the Robinson Court intended to avoid.[FN55] Id. The same would be true with respect to the second-line manager compensation claim and the functional manager promotion claim: each would require, at a minimum, case by case determinations of the nature of the duties and responsibilities being performed (in the case of the second-line manager compensation claim); and the nature of the duties to be performed, and the relevant skills and experience of potential candidates (in the case of the functional manager promotion claim).
FN55. In order to test the efficiency and manageability of the distribution of business resources claim, we respectfully submit that plaintiffs should be asked to provide a detailed trial plan, specifying precisely how they would propose to try the liability phase of such a claim.
CONCLUSION
For the foregoing reasons, plaintiffs' motion for class certification should be denied.
Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., d/b/a Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others
similarly situated, and Barbara LaChance, individually, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01-Civ-2112 (WHP). July 30, 2003.
Plaintiffs' Memorandum of Law in Support of Motion for Certification of Settlement Class, Preliminary Approval of Consent Decree and Award of Attorneys' Fees and Costs, and Approval of Class Notice
TABLE OF CONTENTS
I. PRELIMINARY STATEMENT ... 1
II. FACTUAL BACKGROUND ... 2
III. LEGAL STANDARD ... 4
IV. THE SETTLEMENT SATISFIES THE REQUIREMENT FOR PRELIMINARY APPROVAL ... 5
A. The Settlement Falls Within the Range of Possible Approval ... 5
1. Injunctive Relief ... 5
a. Monitoring Compliance ... 6
b. Increase in Human Resource Support and Internal Complaint Procedure ... 6
c. Benchmarks ... 7
d. Job Analyses ... 7
e. Training/ Evaluation ... 7
f. Recruitment ... 8
g. Management Development Program ... 8

h. Assignments of Business and Development Funds ... 8 i. Reporting and Recordkeeping ... 8 2. Monetary Relief ... 8 3. Attorney's Fees and Costs ... 9 B. The Settlement is the Product of Arm's Length Negotiations by Experienced, Qualified Attorneys ... 9 C. The Consent Decree Treats All Class Members Fairly ... 10 D. Attorney's Fees do Not Come Out OF the Class Recovery and Are Fair and Reasonable ... 11 V. CERTIFICATION OF THE SETTLEMENT CLASS PURSUANT TO FED. R. CIV. P. 23(A) AND (B)(2) IS PROPER ... 13 A. Fed. R. Civ. P. 23(a) ... 14 1. Numerosity ... 14 2. Commonality ... 14 3. Typicality ... 15 4. Adequacy if Representation ... 15 B. Rule 23(b)(2) ... 16 VI. THE CLASS ACTION SETTLEMENT NOTICE PROCEEDURE ... 17 VII. CONCLUSION ... 18
TABLE OF AUTHORITIES CASES

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). ... 4, 10, 13, 14, 15 Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001). ... 15-16 Butler v. Home Depot, 1996 WL 421436 (N.D. Cal. 1996). ... 16 Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999). ... 15 Cromer Finance Ltd. v. Berger, 205 F.R.D. 113 (S.D.N.Y. 2001). ... 15 In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000). ... 5 In re Ivan F. Boesky Secs. Litig., 948 F.2d 1358 (2d Cir.1991). ... 4 In re Michael Milken & Assocs. Secs. Litig., 150 F.R.D. 46 (S.D.N.Y. 1993). ... 4 In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99 (S.D.N.Y. 1997). ... 5 In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001). ... 14, 15 M.A.R. Oil, S.A. v. Morrissey, 982 F.2d 830 (2d Cir. 1993) ... 13 Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996). ... 16 Marshall v. State of New York Div. of State Police, 31 F. Supp. 2d 100 (N.D.N.Y. 1998). ... 13 Martens v. Smith Barney, Inc., 1998 WL 1661385 (S.D.N.Y. July 28, 1998). ... 11 Newman v. Stein, 464 F.2d 689 (2d Cir. 1972). ... 4 Parker v. Time Warner Entm't Co., 331 F.3d 13 (2d Cir. 2003). ... 16 Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982). ... 11 Polar Intern. Brokerage Corp. v. Reeve, 187 F.R.D. 108 (S.D.N.Y. 1999). ... 13

Roberts v. Texaco, 979 F. Supp. 185 (S.D.N.Y. 1997). ... 11, 12 Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001). ... 14, 15, 16, 17 Selzer v. Board of Educ. of New York, 1993 WL 42787 (S.D.N.Y. Feb. 16, 1993). ... 11 Sheppard v. Consolidated Edison Co. of New York, Inc., 2002 WL 2003206 (E.D.N.Y. Aug. 1, 2002). ... 11 Shores v. Publix Super Markets Inc., 1996 WL 407850 (M.D. Fla. Mar. 12, 1996). ... 16 Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini, 258 F. Supp. 2d 254 (S.D.N.Y. 2003). ... 4 Wright v. Stern, 2003 WL 21543539 (S.D.N.Y. Jul. 9, 2003). ... 16, 17 FEDERAL STATUES 42 U.S.C. § 1981a et seq. ... 1 42 U.S.C. § 2000e et. seq. ... 1 FEDERAL RULES OF CIVIL PROCEDURE Rule 23(a) ... 14 Rule 23(a)(1) ... 14 Rule 23(a)(2) ... 14 Rule 23(a)(3) ... 15 Rule 23(a)(4) ... 15 Rule 23(b)(2) ... 2, 5, 13, 16, 18 Rule 23(d) ... 13 Rule 23(e) ... 2, 10

STATE STATUTES
New York Executive Laws §§ 290 et seq. ... 1
Title 8 of the Administrative Code of the City of New York ... 1
TREATISES
2 Newberg on Class Actions (3d ed. 1992 and 1996 Cumm. Supp.) § 11.43 ... 10
Manual For Complex Litigation, Third (Federal Judicial Center 1995)
MCL 3d § 30.41 ... 4, 5
MCL 3d § 30.41-43 ... 10
I. PRELIMINARY STATEMENT
Plaintiffs seek certification of a settlement class and preliminary approval of a $13.4 million settlement on behalf of female employees of defendant Metropolitan Life Insurance Co., Inc.'s (“MetLife”) financial services division (MLFS) as to their allegations that MetLife engaged in a nationwide policy, pattern, or practice of gender discrimination in promotions and other career advancement and business development opportunities, compensation, and other terms, conditions and privileges of employment, in violation of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, 42 U.S.C. § 1981a (“Title VII”), the New York State Human Rights Law, New York Executive Laws §§ 290 et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”).
Counsel for the parties have executed the proposed Consent Decree submitted concurrently with this motion (provided herewith as Appendix to Memorandum of Law, Exhibit 1) as a full and complete settlement of the action. The proposed Consent Decree identifies the class as: All women who have been employed in a Sales Position or Sales Management Position in MLFS at any time on or after August 27, 1999, through the Preliminary Approval Date.[FN1]
FN1. “Sales” and “Sales Management” positions are specifically defined in the Consent Decree. See App. Exh. 1 at II(A)&(T). The proposed Consent Decree provides for substantial injunctive relief including: increasing Human Resources staff; requiring diversity and sales management training; increasing recruitment of women for sales and sales management positions; establishing benchmarks for increasing the number of women in sales management positions; developing objective job descriptions and selection criteria for sales management positions, and developing objective criteria for the distribution of sales leads and other business development resources within MLFS; and providing for monitoring of Decree compliance during the three (3) year term. Under the Consent Decree, MetLife expressly dedicates $5 million to implement these injunctive relief provisions. In addition, the Decree provides for an additional $5 million to pay the claims of the named plaintiffs and to be distributed to class members pursuant to a claims procedure, and up to $3.4 million in current and future attorneys' fees and expenses.

The Consent Decree is the product of arm's length negotiations, treats all class members fairly, awards a reasonable amount in attorneys' fees and expenses, and easily falls within the range of possible approval. Therefore, Class Counsel respectfully requests that the Court preliminarily approve the Consent Decree, including payment of plaintiffs' attorneys' fees and costs, pursuant to Fed. R. Civ. P. 23(e), certify a settlement class pursuant to Fed. R. Civ. P. 23 (b)(2), approve the proposed notice, and set a fairness hearing for the week of November 2, 2003.
II. FACTUAL BACKGROUND
On March 13, 2001, five female current and former MLFS employees filed a complaint on behalf of themselves individually and other similarly situated female MLFS employees alleging that MetLife engaged in a nationwide policy, pattern, or practice of gender discrimination in promotions, compensation, and other terms, conditions and privileges of employment, in violation of Title VII, the NYSHRL, and Title 8. Plaintiffs filed a First Amended Complaint on June 13, 2002, and a Second Amended Complaint on April 2, 2003. Plaintiffs and the proposed class members were or are employed by MetLife's MLFS division as Financial Services Representatives (“FSR”) and/or one of three MLFS agency manager positions, Functional Manager, Agency Directory, and/or Managing Director (together referred to as “Agency Managers”).
On March 20, 2002, the Court, upon MetLife's motion, disqualified the law firm of Lieff, Cabraser, Heimann & Bernstein LLP from continuing to represent the plaintiffs and putative class. In April 2002, the law firm of Goldstein, Demchak, Baller, Borgen & Dardarian appeared on behalf of plaintiffs and the putative class as co-counsel with plaintiffs' original counsel, Outten & Golden LLP.
The parties engaged in extensive discovery during 2002 and early 2003. Plaintiffs deposed twenty-three (23) MetLife managers, human resources personnel, and company officers. Declaration of David Borgen (hereafter “Borgen Decl.”, ¶ 7); Declaration of Adam T. Klein (hereafter “Klein Decl.”, ¶ 5). MetLife deposed all of the named plaintiffs and thirty (30) current or former MetLife employees who had submitted declarations in support of class certification. See Borgen Decl. ¶ 7; Klein Decl. ¶ 5. Additionally, the parties deposed each other's statistical and sociological expert witnesses. See Borgen Decl. ¶ 6, 8; Klein Decl. ¶ 6, 7. MetLife produced computerized work history, demographic, and earnings data regarding the MLFS workforce and approximately 130,000 pages of documents in response to plaintiffs' discovery requests. See Borgen Decl. ¶ 4; Klein Decl. ¶ 4. Likewise, the named plaintiffs produced documents in response to MetLife's discovery requests. See Klein Decl. ¶ 4.
Plaintiffs filed their motion for class certification on February 28, 2003. Plaintiffs supported their motion with declarations of thirty-one (31) putative class members and other witnesses, excerpts of deposition testimony of MetLife managers and other personnel, documents obtained from MetLife during discovery, the reports of plaintiffs' statistical and sociological experts, and other evidence. MetLife filed its opposition to plaintiffs' class certification motion on April 30, 2003.
The parties initiated preliminary settlement discussions in November 2002, and continued their discussions while simultaneously litigating the case. The parties reached a tentative settlement in May 2003, at which time they advised the Court of the preliminary agreement and requested the Court postpone the deadline for plaintiffs' reply to MetLife's opposition to the class certification motion and the hearing on the motion. Thereafter, the parties continued to meet to work out the final details of the proposed Consent Decree. Class Counsel also met with named plaintiffs to discuss settlement options on several occasions during the spring of 2003. See Borgen Decl. ¶ 14. Class Counsel recommended the settlement to the named plaintiffs as a fair and reasonable resolution of all claims. Four of the five named plaintiffs agreed that the settlement terms are fair. As of the date of this memorandum, named plaintiff Stella Mitchell had not yet decided whether to participate in the proposed settlement. See Borgen Decl. ¶ 19.

As stated in the proposed Consent Decree, the parties agree that the extensive formal discovery conducted in this action, including the depositions taken by both sides, and the documents, statistical and other information produced or exchanged during the litigation and settlement discussions, is sufficient to assess the merits of the respective parties' positions and to compromise the issues on a fair and reasonable basis.
III. LEGAL STANDARD
Courts review proposed settlements in light of the strong judicial and public policies that favor extrajudicial resolution of cases. Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini, 258 F. Supp. 2d 254, 257 (S.D.N.Y. 2003) (citing In re Ivan F. Boesky Secs. Litig., 948 F.2d 1358, 1368 (2d Cir.1991); Newman v. Stein, 464 F.2d 689, 692 (2d Cir.1972); In re Michael Milken & Assocs. Secs. Litig., 150 F.R.D. 46, 53 (S.D.N.Y. 1993)). In the class action context, settlement has become a “stock device,” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 618 (1997), where efficiency and certainty are given weighty consideration. The proposed Consent Decree furthers these goals. Class members will receive fair and adequate compensation for their claims, including both monetary and extensive injunctive relief.
The Manual for Complex Litigation, Third (Federal Judicial Center 1995) (“MCL 3d”)§ 30.41 describes the procedure for judicial review and approval of proposed class action settlements as follows: Approval of class action settlements involves a two-step process. First, counsel submit the proposed terms of settlement and the court makes a preliminary fairness evaluation. In some cases this initial evaluation can be made on the basis of information already known to the court, supplemented as necessary by briefs, motions, or informal presentations by the settling parties..... If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for attorneys, and appears to fall within the range of possible approval, the court should direct that notice under Rule 23(e) be given to the class members of a formal fairness hearing, at which arguments and evidence may be presented in support of and in opposition to the settlement. For economy, courts have in appropriate cases permitted the notice under Rule 23(c)(2) to be combined with the Rule 23(e) notice.
This two step process outlined in the MCL 3d has been cited with approval by courts in this circuit. See, e.g., In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000); In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997).
At the first stage of the process, the Court does not determine, as a final matter, whether the Consent Decree should be approved. Input from the class, further submissions by the settling parties, and a duly noticed formal fairness hearing are generally completed before the final decision is made. Neither formal notice nor a hearing is required for preliminary approval, which may be made upon an informal application by the settling parties, and conducted either in court or in chambers, in the Court's discretion. See MCL 3d § 30.41.[FN2]
FN2. The Court has previously ordered a telephone hearing to consider preliminary approval to be heard on August 12, 2003, at 4:45 p.m., after submission of the Consent Decree on July 25, 2003.
Plaintiffs request that the Court initiate the settlement approval process recommended in MCL § 30.41 by granting preliminary approval of the proposed Consent Decree, including payment of plaintiffs' attorneys' fees and costs; certifying a voluntary settlement class for injunctive and monetary relief pursuant to Fed. R. Civ. P. 23(b)(2); approving and authorizing provision of the notice submitted by the parties; and setting a formal fairness hearing for the week of November 3, 2003.

IV. THE SETTLEMENT SATISFIES THE REQUIREMENTS FOR PRELIMINARY APPROVAL
A. The Settlement Falls Within the Range of Possible Approval.
The proposed Consent Decree provides extensive injunctive and monetary relief that is fair and reasonable, and supports the Court's preliminarily approval of the proposed Consent Decree.
1. Iniunctive Relief.
The proposed Consent Decree contains extensive injunctive relief, targeted at ending policies and procedures alleged to be responsible for gender disparities in MetLife's MLFS sales force. Below, plaintiffs summarize the major remedial components of the proposed Decree in the order in which they appear in the Decree.
a. Monitoring Compliance.
The Consent Decree requires MetLife to designate a Decree Monitor who will have overall responsibility for overseeing and monitoring MetLife's implementation and compliance with the terms of the Decree. The Decree Monitor will report on MetLife's implementation and compliance with the Decree to MetLife's Executive Vice President and Zone Vice Presidents on a semi-annual basis, and to Class Counsel on a semi-annual basis during the first year of the Decree and then annually during the next two years.
The Decree also provides for the appointment of a Special Master (Michael Young, Esq.) who is experienced with respect to the resolution of employment law disputes to resolve any disputes regarding interpretation, implementation or compliance that arise under the Decree (see resume provided herewith as Appendix to Memorandum of Law, Exhibit 2). The Decree provides for the Court to retain jurisdiction of the case until the expiration of the Decree.
b. Increase in Human Resource Support and Internal Complaint Procedure.
The Decree requires MetLife to hire at least six (6) additional Human Resource Generalists to provide human resources support and assistance to MLFS and to ensure proper investigation of gender discrimination complaints of MLFS employees. The Decree requires MetLife to maintain a written internal complaint procedure for resolving such complaints promptly and through face-to-face interviews with significant fact witnesses where the complaint involves significant credibility determinations or allegations of egregious conduct. The Decree also requires MetLife to continue to publish and enforce through appropriate corrective action, its anti-discrimination and anti-harassment policies.
c. Benchmarks.
The Decree requires MetLife to use “best efforts” to increase the representation of women in Agency Manager positions in each year the Decree is in effect, i.e. 2003-2006.[FN3] The Decree establishes “Benchmarks” for the representation of women in these positions.
FN3. “Best Efforts” is defined in the Consent Decree, see App. Exh. 1 at II(D). d. Job Analyses.

The Decree requires MetLife to conduct analyses of the skills, knowledge, abilities, and personal characteristics necessary for MLFS Agency Manager positions and to use these analyses to develop and distribute to MLFS employees written job descriptions and selection criteria for these positions.
e. Training/Evaluation.
The Decree requires MetLife to complete diversity training of all incumbent FSRs, Agency Managers, Regional and Zone Vice Presidents in MLFS by December 31, 2005, and to provide such training to newly hired/appointed FSRs, Agency Managers and Regional and Zone Vice Presidents within six months of their hire or appointment.
The Decree also requires MetLife to provide uniform live “Roadmap for Inexperienced FSR Training” to all incumbent Agency Managers responsible for training inexperienced FSRs by July 1, 2005. The “Roadmap for Inexperienced FSR Training” will include modules on technical and soft skills, sales presentations, activity monitoring, setting expectations and coaching techniques.
The Decree also requires MetLife to implement a performance evaluation instrument that assesses the performance of first and second line managers against uniform job-related criteria. Annual performance evaluations of Zone Vice Presidents, Managing Directors, and Agency Directors will include an assessment of the managers' efforts to promote diversity in the workforce and commitment to MetLife's equal employment opportunity goals and policies, including adherence to anti-discrimination and anti-harassment policies.
f. Recruitment.
The Decree requires MetLife to continue to actively seek female recruits for FSR and Agency Manager positions through such means as placing recruiting advertisements in publications geared toward professional women in the financial services industry, developing ongoing partnerships with women's organizations which provide access to potential recruits, use of outside search firms, and conducting career seminars.
g. Management Development Program.
The Decree requires MetLife to establish a management development program for high potential sales personnel with an interest in a management career. The program will include training in setting objectives, evaluation of performance, coaching, conflict resolution, and compliance monitoring. The Decree requires MetLife to utilize “best efforts” to achieve a 30% representation of women in this development program.
h. Assignments of Business and Development Funds.
The Decree, requires MetLife to promulgate and distribute to MLFS managers written criteria for the distribution of business resources and assistance, including sales leads, books of business, and sales office development funds.
i. Reporting and Recordkeeping.

The Decree also requires MetLife to track and report to Class Counsel on a periodic basis during the term of the Decree the total number and the compensation by gender of FSRs and first and second line managers.
2. Monetary Relief.
Under the Consent Decree, MetLife will pay $5 million into a Qualified Settlement Fund to be used to compensate class members pursuant to a claims procedure. Class members, who do not opt out, will have the right to submit claims to a third party Claims Administrator that has been jointly selected by the parties (Rosenthal & Co., Novato, California). Each qualified claimant will receive a minimum payment of one thousand dollars ($1,000) and will also be assigned points based on the claimant's years of employment in an MLFS FSR and/or Agency Manager position, the position(s) she held and the time and effort she spent in participating in pre-class certification discovery. Monetary relief will be allocated to each claimant based on her pro rata share of the total points of all claimants. Protections are included in the Decree to prevent windfall payments in the event of low claims participation (below 60% of the eligible class members). Once all claims are paid in full, any residual funds not claimed will be distributed to a non-profit organization to be designated by the parties and subject to Court approval.
3. Attorneys' Fees and Costs
The proposed Decree provides that plaintiffs will move for approval of an award, not to exceed $3,400,000, for payment of the attorneys' fees, costs and litigation-related expenses incurred by all counsel for plaintiffs and class in this matter. MetLife agrees that it will not oppose the motion. Of this amount, $3,250,000 represents payment for fees, costs and expenses incurred to date and to be incurred through final distribution of the class monetary settlement fund. The remaining $150,000 represents payment, at the rate of $50,000 per year, for Class Counsel's attorneys' fees, costs and expenses for monitoring MetLife's compliance with the Decree over the Decree's three year term.
B. The Settlement is the Product of Arm's Length Negotiations by Experienced, Qualified Attorneys.
The proposed Consent Decree is the result of extensive, informed, arm's length negotiations between attorneys with substantial litigation and trial experience, who are fully familiar with the legal and factual issues of this case, and who have experience in litigation and settlement of complex and/or class action employment discrimination cases. See Borgen Decl. ¶ 22-31; Klein Decl. ¶ 8-16. Class Counsel (Outten & Golden LLP, who have been attorneys for plaintiffs during the entire span of the litigation, and Goldstein, Demchak, Baller, Borgen, & Dardarian, who have been attorneys for plaintiffs since April 2002) will continue to represent the class during the three year term of the Consent Decree. Both firms have substantial experience and success in complex and class action litigation, and have successfully prosecuted, tried, and/or settled major employment class actions. See Borgen Decl. ¶ 28; Klein Decl. ¶ 15.
C. The Consent Decree Treats All Class Members Fairly.
Preliminary and final approval of proposed class action settlements in federal courts utilizing Rule 23(e) hinges on the fairness, adequacy, and reasonableness of the settlement with respect to all members of the class. See 2 Newberg on Class Actions (3d ed. 1992 and 1996 Cumm. Supp.) § 11.43; MCL 3d, § 30.41-43. As the Supreme Court stressed in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), a settlement must fairly provide some benefit or compensation as consideration for the release of class members' claims.
Here, the proposed Consent Decree treats all class members fairly. The injunctive relief, outlined above, provides substantial and comprehensive benefits equally to all current employee class members. Moreover, each member of the

class is entitled to participate in the monetary relief claims procedure, which provides a mechanism for recovery for all class members, including both current and former MLFS employees.
Under the proposed Decree, the five named plaintiffs will share a liquidated sum of $235,000, in settlement of their individual claims, recognition of the efforts they have undertaken and the risk they incurred on behalf of the class, and in exchange for a broader release of their individual claims than that given by other class members.[FN4] The named plaintiffs' efforts on behalf of the class include: filing class discrimination charges with the U.S. Equal Employment Opportunity Commission; actively participating and assisting Class Counsel in the investigation and prosecution of the class claims; preparing for and providing lengthy depositions; and producing documents and other information in response to MetLife's discovery requests. Further, four of the named plaintiffs were current employees of MetLife during the course of the litigation and ran the risk of retaliation and all of the named plaintiffs incurred the risk of being stigmatized as a result of their participation as class representatives in the litigation. Given the named plaintiffs' commitment and active participation throughout the litigation, such payment is proper and routine. See, e.g., Plummer v. Chemical Bank, 668 F.2d 654, 660-61 (2d Cir. 1982); Roberts v. Texaco, 979 F. Supp. 185, 200 (S.D.N.Y. 1997) (accepting a Special Master's recommendation to approve incentive awards based on the time and effort expended by the class representatives in assisting in the prosecution of the litigation); Sheppard v. Consolidated Edison Co. of New York, Inc., 2002 WL 2003206, *6-7 (E.D.N.Y. Aug. 1, 2002) (approving aggregate incentive payment of $119,167 for six named plaintiffs in a race discrimination class action); Martens v. Smith Barney, Inc., 1998 WL 1661385, *3 (S.D.N.Y. July 28, 1998) (approving aggregate incentive payment of $1.9 million for 22 named plaintiffs in gender discrimination class action); Selzer v. Board of Educ. of New York, 1993 WL 42787, *4 (S.D.N.Y. Feb. 16, 1993) (approving incentive payments to named plaintiffs in part because of the tremendous amount of time and effort extended by them in prosecuting gender discrimination class).
FN4. Each named plaintiff has been allocated $45,000, with the exception of Stella Mitchell, who has been allocated $55,000, in recognition of her efforts and leadership in initiating the investigation and administrative charges that led to the litigation.
D. Attorneys' Fees Do Not Come Out Of the Class Recovery and Are Fair and Reasonable.
The proposed Decree provides that Class Counsel may be paid attorneys' fees and costs in a total amount not to exceed $3.4 million ($3,400,000), upon motion approved by the Court. This sum is less than the approximately $4 million ($4,000,000) in combined attorneys' fees and out-of-pocket and indirect costs and expenses incurred by all Counsel for plaintiffs in litigating this action to date. The $3.4 million also includes payment of all fees and costs plaintiffs will incur through final distribution of monetary payments to the class. Finally, the $3.4 million includes the $150,000 for fees and expenses for future work Class Counsel will perform in monitoring MetLife's implementation and compliance with the Decree. The $150,000 will be paid in annual installments of $50,000 in each of the three years of the Consent Decree. The attorneys' fees, costs and expenses will be paid apart from, and in addition to, the class monetary recovery, so that no funds will be taken from the class or any class member to pay Class Counsel's fees.
The attorneys' fees agreed to by the parties are fair and reasonable, based on the lodestar for services performed and the substantial injunctive and monetary relief obtained for the class. See Roberts, 979 F. Supp. at 197. Class Counsel undertook an extensive investigation of the class claims, interviewing close to a hundred putative class members and other witnesses with information relevant to the claims. See Klein Decl. ¶ 4. Class counsel conducted lengthy and complex discovery, which included obtaining and reviewing many thousands of pages of documents, conducting and defending over fifty depositions throughout the country, and interviewing class members and other witnesses. See Borgen Decl. ¶ 4-11; Klein Decl., ¶ 4-7. Additionally, Class Counsel retained two expert witnesses to analyze MetLife's statistical workforce data and personnel policies and procedures and provide written opinions. Class Counsel worked with these experts closely to obtain the information necessary for their analyses and then to prepare them for and defend their depositions. Similarly, MetLife designated two rebuttal expert witnesses who produced extensive reports that Class Counsel and their experts reviewed closely and responded to in deposition and/or written form. Class Counsel took the depositions of each of MetLife's expert witnesses as well numerous MetLife managers, officers, and other personnel. See Borgen Decl. ¶ 7-9; Klein Decl. ¶ 5-7. Class Counsel produced a motion for class certification that was supported by

extensive evidence that had to be culled from the voluminous record in the case. MetLife responded to the motion with an equally substantially supported opposition. Class Counsel were in the process of completing their detailed response to MetLife's opposition when the parties reached agreement in principle on the settlement.
Furthermore, the case proceeded on two tracks - both litigation and settlement negotiations - for over six months. In order to meet the needs and demands of both tracks, Class Counsel dedicated additional personnel and other resources to the case. Moreover, the settlement negotiations were both intensive and exhaustive, in that considerable time was devoted to discussing and reaching compromise on both the general agreement itself and myriad details on each component of the agreement.
Given the foregoing, the amount in payment for Class Counsel's attorneys' fees and costs agreed to by the parties is fair and reasonable compensation for the substantial work Class Counsel already has performed for the class, and will continue to perform during the term of the Consent Decree.[FN5]
FN5. As part of plaintiffs' motion for final approval of the class settlement, Class Counsel will provide a full accounting of all legal fees and expenses in connection with counsel's prosecution of this litigation for review by this Court. The requested award includes payment to the Lieff, Cabraser firm for work performed and costs incurred prior to its disqualification in March 2002. See Borgen Decl. ¶ 37-39. See also Marshall v. State of New York Div. of State Police, 31 F. Supp. 2d 100 (N.D.N.Y. 1998) (disqualified law firm in civil rights action based on conflict of interest could recover attorneys' fees); M.A.R. Oil, S.A. v. Morrissey, 982 F.2d 830, 840 (2d Cir. 1993) (“Under New York law, attorneys may be entitled to recover for their services, even if they have breached their fiduciary obligations.”). V. CERTIFICATION OF THE SETTLEMENT CLASS PURSUANT TO FED. R. CIV. P. 23(A) AND (B)(2) IS
PROPER.
The Consent Decree provides for certification of a settlement class pursuant to Fed. R. Civ. P. 23(b)(2). Certification of a settlement only class is routine and proper in circumstances such as these. See, e.g., Polar Intern. Brokerage Corp. v. Reeve, 187 F.R.D. 108, 112 - 113 (S.D.N.Y. 1999) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) (“the ‘settlement only’ class has become a stock device”)). In addition, the Decree provides for notice to the class and the right of class members to opt out of the action. See App. Exh. 1 at XII(C) & (D). The Court has discretionary authority to provide such notice and opt out procedures in a Rule 23(b)(2) class action pursuant to Rule 23(d). The proposed Decree contemplates that class members who opt out will still be bound by the class injunctive relief provisions of the Decree, but will not be eligible to participate in the class monetary relief procedure.
A. Fed. R. Civ. P. 23(a).
In determining if class certification is appropriate, a court must first look to Rule 23(a) of the Federal Rules of Civil Procedure. The putative class in question easily meets the standards set forth in Rule 23(a).
1. Numerosity.
Under Rule 23(a)(1), the class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1); see Amchem, 521 U.S. at 607 n. 8.
Here, the proposed class includes all females who have been employed in a Sales Position or Sales Management Position in MLFS on or after August 27, 1999, through the date of this Court's preliminary approval of the Consent Decree. The

parties estimate the number of potential class members exceeds 3,000. Thus, the proposed class meets the numerosity requirement, as joinder would be impracticable.
2. Commonality.
Under Rule 23(a)(2), there must be questions of law or fact common to the class. See Fed. R. Civ. P. 23(a)(2); Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir. 2001).
Here, plaintiffs claim that MetLife engaged in a continuing policy and/or pattern or practice of gender-based discriminatory treatment of female MLFS employees as to promotions and career advancement and business development opportunities, including assignment of desirable and lucrative leads and accounts, and other compensation. Plaintiffs contend that this discrimination has been furthered by subjective decision-making by a predominately male supervisory and managerial workforce and MetLife's failure to monitor and ensure equal employment opportunities in MLFS. In this preliminary stage, courts consider whether the statistical evidence demonstrates a class-wide basis for plaintiffs' claims. See In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 135 (2d Cir. 2001). Plaintiffs' claims do not depend on the terms of employment of individual class members. Rather, plaintiffs rely on statistical evidence supporting their class allegations. Thus, the commonality requirement is satisfied here.
3. Typicality.
Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). See Amchem, 521 U.S. at 607 n. 11. The typicality requirement “is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.” Robinson, 267 F.3d at 155 (internal quotation omitted).
There is no requirement that “the factual background of each named plaintiff's claim be identical to that of all class members.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) (internal quotations omitted). Here, the class representatives are all female current or former sales representatives and managers within MLFS who allege that because of MetLife's subjective decision making system they have suffered discrimination in compensation and promotional opportunities as compared to their male counterparts. While the factual circumstances of the class representatives' claims differ slightly, their allegations of disparate treatment and disparate impact based on MetLife's subjective decision making system are typical of the class' claims.
4. Adequacy of Representation.
The adequacy of representation requirement of Rule 23(a)(4) mandates that courts look to whether “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To establish adequacy of representation, plaintiffs must show that (1) plaintiffs' counsel are competent to handle the case and (2) there are no conflict of interest among class members. See Cromer, 205 F.R.D. at 123.
Class Counsel are competent to represent the class in this case. As acknowledged by other courts in this district, Outten & Golden LLP has extensive experience in representing plaintiffs in both individuals and class employment cases. See Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81, 87 (S.D.N.Y. 2001). Likewise, Goldstein, Demchak, Baller, Borgen & Dardarian has extensive complex and class action litigation experience and has been acknowledged as competent and well qualified class counsel by numerous courts. See Shores v. Publix Super Markets Inc., 1996 WL 407850, *8 (M.D. Fla. Mar. 12, 1996); Butler v. Home Depot, 1996 WL 421436, *3 (N.D. Cal. 1996). Moreover, no

conflict of interest can be found to exist among the class members. Accordingly, the Court should find that plaintiffs have satisfied the requirements of Rule 23(a).
B. Rule 23(b)(2).
The proposed settlement class may be certified under Rule 23(b)(2), which provides for certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Because Rule 23(b)(2) was intended to assist litigants seeking wide-spread institutional reform through injunctive relief, courts within this circuit have found that the Rule is satisfied in cases where injunctive relief is sought and would benefit the entire class. See Marisol A. v. Giuliani, 929 F. Supp. 662, 692 (S.D.N.Y. 1996) (citing Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994)), aff'd, 126 F.3d 372 (2d Cir. 1997) (per curiam).
Where plaintiffs seek monetary damages as well as injunctive relief, certification is appropriate when the equitable relief sought predominates over the claims for monetary relief. See Parker v. Time Warner Entm't Co., 331 F.3d 13, 20 (2d Cir. 2003) (citing Robinson, 267 F.3d at 164); Wright v. Stem, 2003 WL 21543539, *8 (S.D.N.Y. Jul. 9, 2003).
Here, the injunctive relief is comprehensive, thorough and far-reaching. The injunctive relief provisions address each of the practices plaintiffs allege are responsible for gender disparities in promotions and compensation within MLFS' sales operations, and accordingly, the relief obtained advances the interests of the entire class. Moreover, the notice and opt out procedures contemplated by the Consent Decree will adequately protect the interests of any class member who wishes to pursue her individual discrimination claims in a forum of her choosing.[FN6] Therefore, the fact that plaintiffs also seek monetary damages for the class does not preclude class certification under Rule 23(b)(2). See Robinson, 267 F.3d at 164-65; Wright, 2003 WL 21543539 at *8.
FN6. The Decree includes a standard “blow-up” provision that permits MetLife to void the settlement agreement in the event that 30 or more class members opt out. See App. Exh. 1 at XII(D)(3)(a).
VI. THE CLASS ACTION SETTLEMENT NOTICE PROCEDURE.
The notice procedure proposed by the parties provides for the Claims Administrator to mail the notice, in the form attached as Exhibit G to the Decree, to all class members via first class U.S. Mail to their last known addresses as obtained from MetLife's personnel records and as updated using the National Change of Address System.[FN7]
FN7. Should any notices be returned as undeliverable, the Claims Administrator will utilize a computer database to search for a more current address, and will remail the notice to any additional address found.
The proposed notice identifies the settlement class, sets forth a summary of the terms of the Consent Decree, including the procedures for filing a claim for monetary relief, informs class members of their right to be heard regarding the settlement, including the right to object to the settlement and/or to opt-out of the monetary relief provisions of the settlement and the deadlines and procedure for objecting or opting-out, identifies the date, time and location of the final approval hearing, provides the names and addresses of counsel for the parties, provides a toll-free 800 telephone line so that class members may ask any questions they may have, and invites class members to contact Class Counsel with any questions regarding the settlement.

In sum, the notice provisions more than adequately meet due process requirements and should be approved by the Court.
VII. CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that this Court grant plaintiffs' motion for preliminary approval of the Consent Decree, including an award of plaintiffs' attorneys' fees and costs in the amount of $3.4 million, certify a settlement class for injunctive and monetary relief pursuant to Fed. R. Civ. P. 23(b)(2), approve the proposed notice for mailing to the class, and set a fairness hearing, as the Court's calendar permits, for the week of November 3, 2003.
Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant. No. 01 Civ. 2112 (WHP). 2001.
Reply Memorandum of Law in Support of Defendant's Motion for Disqualification of Lieff, Cabraser, Heimann & Bernstein, LLP
TABLE OF CONTENTS
TABLE OF AUTHORITIES ... ii
I. WENDY FLEISHMAN'S PRIOR AND EXTENSIVE REPRESENTATION OF METLIFE IS SUBSTANTIALLY RELATED TO THE PRESENT LITIGATION ... 1
A. The Substantial Relationship Test is Satisfied Where Confidential Information Learned in the Prior Representation is Relevant to the Present Litigation ... 1
B. The Confidential Information Learned by Ms. Fleishman in Her Prior Representation of MetLife Bears a Direct Relationship to the Pending Litigation ... 2
C. The Class Action Nature of the Claims Underscores the Need for Disqualification ... 6
II. THE SCREENING MEASURES UTILIZED BY LIEFF CABRASER ARE INADEQUATE TO AVOID DISQUALIFICATION ... 8
CONCLUSION ... 10
TABLE OF AUTHORITIES
CASES:
Beck v. Bd. of Regents, 568 F. Supp. 1107 (D. Kan. 1983) ... 1
Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, sub. nom., Metro-North Commuter R..R. v. Norris, 529 U.S. 1107 (2000) ... 7

Dillon v. Coles, 746 F.2d 998 (3d Cir. 1984) ... 7
Kassis v. Teacher's Ins. & Annuity Ass'n, 93 N.Y.2d 611, 695 N.Y.S.2d 515 (1999) ... 9
Sheehan v. Purolator, Inc., 839 F.2d 99 (2d Cir. 1983) ... 7
Silver Chrysler Plymouth, Inc. v. Chrysler Motors Co., 518 F.2d 751 (2d Cir. 1975), overruled on other grounds, sub. nom., Armstrong v. McAlphin, 625 F.2d 433 (2d Cir. 1980), vacated, 499 U.S. 1106 (1981) ... 2
Vestron, Inc. v. Nat'l Geographic Soc'y, 750 F. Supp. 586 (S.D.N.Y. 1990) ... 1
I. WENDY FLEISHMAN'S PRIOR AND EXTENSIVE REPRESENTATION OF METLIFE IS SUBSTANTIALLY RELATED TO THE PRESENT LITIGATION
A. The Substantial Relationship Test is Satisfied Where Confidential Information Learned in the Prior Representation is Relevant to the Present Litigation
Plaintiffs do not dispute that the first two requirements for disqualification of Lieff Cabraser have been satisfied: a prior representation of an adverse party and the receipt by Ms. Fleishman of confidential and privileged information. They seek to avoid disqualification by arguing the absence of a substantial relationship between Ms. Fleishman's prior representation of MetLife and the present lawsuit -- an argument bottomed on plaintiffs' repeated and mistaken focus on the dissimilarity between the causes of action alleged in the prior lawsuits and the present litigation (see e.g., Pl. Mem. at 3-6 and n.2, 18-19), and the legal issues involved. However, as plaintiffs' expert, Professor Charles W. Wolfram, himself recognized, the applicable cases hold that the focus of inquiry should not be on the claims themselves (or even the issues presented by the pleadings), but rather on the nature of the confidential information obtained by the attorney in question and the relevance of that information to the pending litigation. (See Wolfram Decl., ¶ 8; see also Liebernan Decl., ¶ 16)[FN1]
FN1. In several of the leading disqualification cases in this Circuit, the court determined that the substantial relationship test was satisfied even though the underlying claims in the two cases differed. (MetLife Mem. at 15-17) In each of these cases cited in defendant's moving brief, the court found the substantial relationship test was met because the attorney learned confidential information that was relevant to the subsequent litigation. The cases cited by plaintiffs do not hold otherwise. In fact, in Beck v. Bd. of Regents, 568 F. Supp. 1107 (D. Kan. 1983), one of the principal cases relied on by plaintiffs, the court specifically rejected the motion to disqualify because of the movant's effort to establish a substantial relationship based on the types of claims asserted in the present and former representation, rather than the relevance of any confidential information learned in the prior litigation. Id. at 1112. Similarly, in Vestron, Inc. v. Nat'l Geographic Soc'y, 750 F. Supp. 586 (S.D.N.Y. 1990), the motion to disqualify was denied, not merely because of the dissimilarity of the claims alleged in the two lawsuits, but also because of the failure to identify confidential information that was learned in the prior litigation that was relevant to the subsequent litigation.
Indeed, Professor Wolfram has advocated an in-depth, three-step approach to determining the relevance of the confidential information learned in the course of the prior representation: First, the court reconstructs the scope of the facts involved in the former representation and projects the scope of the facts that will be involved in the second representation. Second, the court assumes that the lawyer obtained confidential client information about all facts within the scope of the former representation. Third, the court then determines whether any factual matter in the former representation is so similar to any material factual matter in the latter representation that a

lawyer would consider it useful in advancing the interests of the client in the latter representation. That approach, while more painstaking than more general tests, is preferable.
Modern Legal Ethics, at 370; see also Silver Chrysler Plymouth, Inc. v. Chrysler Motors Co., 518 F.2d 751, 753 (2d Cir. 1975), overruled on other grounds, sub. nom. Armstrong v. McAlphin, 625 F.2d 433 (2d Cir. 1980), vacated, 449 U.S. 1106 (1981) (cited in Pl. Mem. at 13 for proposition that “[t]horough consideration of the facts is ... required” ).
In putting the relevant facts before the Court to assist it in performing the foregoing analysis, MetLife cannot be expected to disclose privileged information. See Modern Legal Ethics, at 368-69 (“if a client were required to offer evidence on the contents of confidential communications in order to have the client's former lawyer disqualified, the confidentiality of the information would be lost in the very process of attempting to protect it.”).[FN2]
FN2. For this reason courts are forced to draw inferences from generalized information in evaluating whether the substantial relationship test is satisfied. This explains why some courts appear to have focused on the similarity of the claims asserted, even though the ultimate goal is to determine the relevance of the information learned. And, because MetLife is circumscribed in the information it can present, it hardly enjoys “a substantial theoretical advantage” as Professor Wolfram asserts. (Wolfram Decl., ¶ 9) B. The Confidential Information Learned by Ms. Fleishman in Her Prior Representation of MetLife Bears a Direct
Relationship to the Pending Litigation
Notwithstanding the efforts by Ms. Fleishman and Lieff Cabraser to minimize the substance and scope of the information learned by Ms. Fleishman in her representation of MetLife[FN3], there is an obvious and substantial relationship between the confidential information learned by her to the pending lawsuit. This becomes apparent once the analysis of the prior relationship advances beyond the general observation that Ms. Fleishman's efforts were directed at the defense of sales practices claims, and focuses instead on the type of information that she obtained in defending MetLife in those cases.
FN3. Plaintiffs' characterization of Ms. Fleishman's role is, at best, disingenuous. For example, plaintiffs' comprehensive assertion that Ms. Fleishman was “not privy to any information about hiring, training, supervision, or discipline of any member of the sales force in connection with anything other than the integrity and truthfulness of the representations made to customers in connection with the sales and marketing of MetLife products” (Pl. Mem. at 4 (quoting Fleishman Affirm., ¶ 11)), is an artful formulation that is belied by the comprehensive knowledge she acquired. (See e.g., Murphy Aff., ¶¶ 5-7) It is also a deliberate manipulation of the record as Ms. Fleishman only made this assertion in connection with her work on the MDL. As set forth more fully below, Ms. Fleishman, who (while at Skadden) stated under oath that she was “intimately familiar with the operations of MetLife,” (see Regan Aff., Exh. D) indeed was privy to a wide array of information regarding MLFS. Moreover, Ms. Fleishman's repeated, but wholly conclusory, statements that nothing she learned or discussed in connection with her prior representation of MetLife has anything to do with this lawsuit (Fleishman Affirm., ¶¶ 16-20) is mystifying. Either Ms. Fleishman has adopted a totally simplistic and legally unfounded test for determining whether a substantial relationship exists, which rests exclusively on the type of case litigated (a test which she herself advocated against in her motion to disqualify plaintiff's counsel in the Whalen case (see Regan Aff, Exh. A)) or she claims to possess a substantive, in-depth understanding of this case -- going well beyond the four corners of the Complaint -- which only could have been gained in violation of Lieff Cabraser's purported screen.
First, there is no dispute that Ms. Fleishman, during her thousands of hours of work defending MetLife in dozens of litigated matters, interviewed numerous MetLife employees -- including many individuals employed in what is now MLFS, the MetLife Division at issue in this case.[FN4] It is equally undisputed that, in the course of these interviews, Ms. Fleishnan obtained substantial confidential and privileged information.[FN5] (Sullivan Aff., ¶¶ 9, 11, 12; Regan Aff., ¶ 4; Elberg Aff., ¶¶ 5-7; Finnegan Aff., ¶ 4-8; Seltzer Aff., ¶¶ 5-7; Murphy Aff., ¶¶ 5-6)

FN4. Among the titles of individuals interviewed by Ms. Fleishman were: Regional Administrator; Regional Vice President; Territorial Vice President for the Southern Territory; Territorial Administrator for the Southern Territory; Assistant Vice President, Field Management Training; General Manager; Vice-President and Actuary; Director of Marketing and Training, Mid-Eastern Territory; Account Representative; Director of Territorial Sales; Regional Manager; Branch Administrator; Director of Marketing and Training Services; and National Director, Individual Sales - Advanced Markets. (Regan Aff., ¶ 3; Sullivan Aff. ¶ 10; Finnegan Aff., ¶¶ 4, 6; Elberg Aff., ¶2; Seltzer Aff., ¶ 4)
FN5. Contrary to the assertions of plaintiffs and Professor Wolfram - who understandably may not be sufficiently informed of the nature and extent of Ms. Fleishman's prior representational activities disqualification is not being advocated here merely because Ms. Fleishman was in contact with employees whom MetLife may choose to call as witnesses. Many of these employees are necessary witnesses, either because they are knowledgeable of the employment practices that are at issue here, or because they have personal knowledge regarding the conduct of, or employment decisions concerning, employees in MLFS.
Second, and although it would be virtually impossible to identify -- let alone learn the substance of-- all the confidential communications to which Ms. Fleishman was privy, a review of the general subject matter of the information Ms. Fleishman obtained from individuals she interviewed within MLFS, from attorneys in MetLife's Law Department, from confidential documents she reviewed and was privy to, and otherwise, make plain the significance and relevance of the information she learned to the present litigation. Among other things, Ms. Fleishman obtained comprehensive knowledge of (Regan Aff., ¶¶ 4, 6; Sullivan Aff., ¶ 12; Finnegan Aff., ¶ 5; Seltzer Aff., ¶¶ 4, 5; Seltzer Reply Decl., ¶¶ 2, 3; Murphy Aff., ¶¶ 5-7): • the evaluation of the conduct and performance of account representatives by branch managers (which plaintiffs contend is entirely subjective and a principal cause of unequal treatment accorded to women (See Fagin Aff., Exh. A, ¶ 26))[FN6];
FN6. Attacking MetLife's methods of evaluating performance, plaintiffs allege in the Complaint that MetLife has established “discriminatory and subjective requirements for hiring, job assignment, and promotion which have the effect of excluding qualified women and which have not been shown to have any significant relationship to job performance...” (Fagin Aff., Exh. A, ¶ 68(k))
• the evaluation of the conduct and performance of branches (which is at issue here because plaintiffs allege that MetLife maintained a “glass ceiling” and failed to promote women into management (See Fagin Aff., Exh. A, ¶¶ 6, 26)); • the evaluation of regional management by territorial management (which is similarly at issue due to plaintiffs' allegation of a “glass ceiling,” id.); • disciplinary actions taken with respect to particular branch managers and account representatives (including changes in staffing in certain agencies and regions), and the identity of the decision makers who may or may not be involved in such actions; • production requirements and methods for measuring the performance of account representatives (defendant contends, for example, that the legitimate, nondiscriminatory business reason for terminating Durpatty Persaud was her failure to meet production requirements); • the handling of “orphaned” policies (which is relevant because plaintiffs claim that female employees receive less investment than male employees, resulting in lower compensation (See Fagin Aff., Exh. A, ¶ 26)); • the extent and nature of training provided to account representatives (which plaintiffs contend is a source of the allegedly unequal treatment accorded to women (See Fagin Aff., Exh. A))[FN7];
FN7. For example, in her Amended Charge of Discrimination, plaintiff Barbara LaChance claims that when she was hired as an account representative, “MetLife did not provide any training for this position” and that she “could not succeed as an Account Rep without meaningful training or leads that were only given to men.” (Fagin Aff., Exh. A, LaChance Amended Charge of Discrimination ¶¶ 5, 6)

• the impact of sales practices compliance on management compensation (which is relevant as plaintiffs claim disparate compensation based on gender (See Fagin Aff., Exh. A, ¶ 26)); • the hiring process for account representatives; • compensation policies for the field force, as well as compensation to and commissions earned by individual account representatives (which is relevant as plaintiffs claim disparate compensation based on gender (See Fagin Aff., Exh. A, ¶¶ 26, 68(1))). (Regan Aff., ¶¶ 4, 6; Sullivan Aff., ¶ 12; Finnegan Aff., ¶ 5; Seltzer Aff., ¶¶ 4, 5; Seltzer Reply Decl., ¶¶ 2, 3; Murphy Aff., ¶¶ 5-7)
he fact that the information revealed to Ms. Fleishman may, in the first instance, have been obtained in furtherance of MetLife's defense of sales practices claims, does not, as plaintiffs appear to suggest, diminish its relevance to this case. As MetLife pointed out in its moving brief, and as plaintiffs apparently concede, a significant component of any claim of discrimination is the evaluation of the nondiscriminatory reason or reasons offered for a challenged employment decision. (MetLife Mem. at 17-18) Information concerning such nondiscriminatory reasons is relevant regardless of the context in which it is learned. Moreover, in light of the numerous litigations spawned by the alleged sales practices improprieties, and the very significant attention that these litigations received at MetLife, it is not surprising that information concerning the treatment of MLFS employees accused of sales practices violations would be highly relevant to an understanding of employment-related policies and practices within MLFS and employment decisions made by MLFS managers, and hence to the defense of employment claims directed at MLFS.
Furthermore, and quite apart from her detailed knowledge of employment practices and policies impacting MLFS, and of the treatment accorded particular employees within MLFS, Ms. Fleishman learned, on a more global level, how decisions concerning employees in MLFS were made; how their performance was measured; how they were supervised; how they were trained; how they were rewarded; what conduct was acceptable and what was unacceptable; how and when they were disciplined; and the strategy pursuant to which claims arising from the alleged misconduct of employees were litigated or settled. (Sullivan Aff., ¶¶ 9, 11; Seltzer Aff., ¶¶ 5-7; Finnegan Aff., ¶¶ 4, 7, 8; Elberg Aff., ¶ 6) As Mr. Lieberman concluded: “[t]his is highly valuable institutional information that has obvious relevance to the current action involving an institutional attack on MetLife's ... practices and policies.” (Lieberman Decl., ¶ 19) (emphasis added).
In short, MetLife is not seeking “to devise a hitherto unrecognized rule that prior representation of a client in litigation precludes later representation of an adversary in all other litigated matters,” as Professor Wolfram asserts. (Wolfram Decl., ¶ 12) To the contrary, MetLife seeks to implement the established rules encompassed by the substantial relationship test, as enunciated in the Code, which require disqualification here because the confidential information learned by Ms. Fleishman is uniquely relevant to the pending litigation, and thus presents the risk of an unfair litigation advantage that the ethical rules were specifically designed to prevent.
C. The Class Action Nature of the Claims Underscores the Need for Disqualification
Any doubts as to whether Ms. Fleishman's acquired knowledge satisfies the substantial relationship test are resolved by consideration of the impact of the class claims asserted in this case. Although plaintiffs vaguely suggest that their class claims will turn largely on an evaluation of statistical evidence (Pl. Mem. at 2), the case law concerning the adjudication of class action claims reveals that this case may well require the evaluation of the individual claims of an as yet unknown number of MLFS employees or former employees.[FN8]
FN8. Plaintiffs have purportedly brought this class action on behalf of a “Class of all female past, present, and future employees who have been employed within the Insurance and Financial Services Division of MetLife or its successor group, if any, since August 27, 1999 ... and all female applicants for those positions with MetLife who have been, continue to be, or in the future may be, denied employment opportunities or were deterred from applying for those positions during this same time period...” (Fagin Aff., Exh. A, ¶ 18) Plaintiffs' New York State and City law claims date back to March 13, 1998. (Fagin Aff., Exh. A, ¶¶ 19, 20) Plaintiffs estimate that there are approximately 6,000 current account representatives alone, 25% of whom are women.

(Fagin Aff., Exh. A, ¶ 6)
The need for evaluation of individual claims may arise in at least four distinct contexts as this litigation unfolds. First, in order to establish their right to class certification under Rule 23(a), plaintiffs may offer anecdotal evidence from various class members. See e.g., Sheehan v. Purolator, Inc., 839 F.2d 99, 103 (2d Cir. 1988). Second, in support of their class claim of a pattern and practice of discrimination, plaintiffs will likely offer anecdotal evidence to support, or provide context for, whatever statistical showing they are contemplating. See e.g., Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 286, 293 (2d Cir. 1999). Third, regardless of whatever evidentiary showing plaintiffs may offer, MetLife is certainly free to offer anecdotal evidence of the nondiscriminatory reasons for alleged adverse employment actions. Fourth, and perhaps most importantly, if a class is certified and upon a finding of class discrimination, the court is required to conduct a second phase of litigation, in which each individual class member's claim is evaluated separately, and any inference of discriminatory conduct can be rebutted based on a showing by the employer of individual facts and circumstances that explain the adverse treatment received by any particular employee. See e.g., Dillon v. Coles, 746 F.2d 998, 1004 (3d Cir. 1984).
Given the myriad opportunities for the Court to be confronted with evidence concerning individual allegations of discrimination, not only against the named plaintiffs, but against other as yet unidentified class members, and the remarkably broad sweep of the Complaint (alleging discrimination in virtually every aspect of the employment relationship), there is simply no way to anticipate in advance the full extent to which the vast stores of information acquired by Ms. Fleishman could become relevant. Given the harm that would be posed to the putative class if its attorney were disqualified in the late stages of the litigation process, the Court should be loath to bear any risk that Ms. Fleishman's knowledge will one day surface as an impediment to a fair trial, and thus require disqualification. The correct course, mandated by both the spirit and letter of the Code, is to avoid the risk of disclosure now, at the earliest opportunity, by ordering disqualification.[FN9]
FN9. Ironically, plaintiffs overlook this serious risk of substantial delay in the prosecution of this case on their behalf as well as the large class they purport to represent, and instead make unfounded accusations about delays resulting from MetLife's decision to file this motion. As plaintiffs are well aware, MetLife has fully cooperated in discovery, notwithstanding the pendency of this motion. Defendant has served its responses to plaintiffs' initial discovery requests, has repeatedly indicated its willingness to proceed with depositions, and is prepared to produce over 80,000 pages of documents upon the execution of a Confidentiality Order. II. THE SCREENING MEASURES UTILIZED BY LIEFF CABRASER ARE INADEQUATE TO AVOID
DISQUALIFICATION
Plaintiffs' relatively cursory alternative argument in response to MetLife's motion to disqualify-- that even if Ms. Fleishman should be disqualified, Lieff Cabraser's screening measures prevent disqualification of the firm -- is based on the arguments that: (i) the firm's screening measures were once found to be sufficient to prevent disqualification of the firm (Pl. Mem. at 9 (citing Barbanti v. W.R.Grace))[FN10]; (ii) some cases in New York appear to recognize that, in appropriate circumstances, screening may prevent disqualification of a law firm where one of its attorneys is tainted by a conflict (Pl. Mem. at 22); and (iii) the Lieff Cabraser firm is structured in such a way as to reduce or eliminate the risk of confidential information being leaked. (Pl. Mem. at 7-9) Each of these contentions is either erroneous or unavailing.
FN10. The ruling in Barbanti v. W.R. Grace has no bearing on the present motion because the ethical code applied in that case -- the Washington Rules of Professional Conduct -- explicitly endorses the use of screens, and the court's determination that the law firm would not be disqualified was premised on its finding that the explicit criteria set forth in that code had been satisfied. New York, like most jurisdictions, does not sanction screening measures as a means to avoid disqualification. (See Lieberman Decl., ¶ 20)
First, neither the New York Code nor the ABA Model Rules recognizes the use of screening procedures, except in cases involving former government lawyers or judges; indeed, just weeks ago the ABA House of Delegates voted to reject a

proposal to permit screening to avoid disqualification. (Lieberman Decl., ¶ 20).
Second, “screens are not authorized in New York to avoid firm-wide disqualification except (if at all) in narrowly circumscribed situations where the laterally transferring lawyer has not acquired any significant or material information about her former client...” (Lieberman Decl., ¶ 21) As set forth above, this is hardly the case here.[FN11]
FN11. The recent New York Court of Appeals decision on which Professor Wolfram relies, Kassis v. Teacher's Ins. & Annuity Ass'n, 93 N.Y.2d 611,617, 695 N.Y.S.2d 515, 519 (1999), makes plain the Court's inclination to consider screening only where the “information acquired by the disqualified lawyer is unlikely to be significant or material in the litigation.” Id. at 617, 695 N.Y.S.2d at 519 (emphasis added). As Professor Wolfram himself observes, “few decisions have approved the screening technique as substitute therapy for the more radical imputed-disqualification quarantine.” Modern Legal Ethics, at 401. “Judicial acceptance of screens, to the limited extent it has occurred, has been grudging and guarded.” Wolfram, Screening, at 143.
Third, courts in New York that have permitted screening require objective evidence that the screening will be foolproof, such as: where the conflict is traceable to an attorney in a particular department that has no contact with the department conducting the litigation, which typically occurs only in the context of a large law firm; and where screening measures have been established from the first possible moment. (Lieberman Decl., ¶¶ 20-25) Neither condition has been satisfied here. As set forth in detail in the Lieberman Declaration (¶ ¶ 23-27), no screen was put into place until almost two months after Ms. Fleishman joined Lieff Cabraser. Further, as discussed in MetLife's moving brief (at 23), Lieff Cabraser is a small firm with an even smaller New York office,[FN12] and Ms. Fleishman works in close proximity with several of the attorneys responsible for this case.
FN12. It is beyond dispute that this case has a New York center of gravity: the case was commenced here; two of the Lieff Cabraser attorneys assigned to the matter are in its New York office; plaintiffs' co-counsel, Outten & Golden, is located here; MetLife is headquartered here; and many of the witnesses identified in plaintiffs' initial disclosures work here (see Fagin Aff., Exh. C). It is unavoidable that a substantial portion of the litigation activities in this case will take place within Lieff Cabraser's New York office.
Moreover, and of critical significance, it is undisputed that Ms. Fleishman has (in her first seven months at Lieff Cabraser) already come into direct and ongoing professional contact with each of the attorneys handling the Mitchell matter. There is no reason to believe (and certainly nothing in any of the Lieff Cabraser affidavits to suggest) that she will not continue to do so.[FN13] In short, Ms. Fleishman has had, and will continue to have, significant professional interaction with the lawyers assigned to this case. As such, the opportunity for even inadvertent disclosure is considerable. As Professor Wolfram has noted:
FN13. Lieff Cabraser is organized into a number of interrelated and overlapping practice teams. Thus, Ms. Fleishman, Mr. Finberg and Ms. Geman are each members of the “Products Defects” team. Both Ms. Fleishman and Ms. Hilal are members of the “Medical Devices/Pharmaceutical Products” team. Ms. Fleishman has already worked with Mr. Seymour, Mr. Finberg and Ms. Dermody on at least one matter; with Ms. Geman on two already commenced litigations; and with Ms. Hilal on at least six already commenced litigations. (Regan Aff., Exh. C)
In the end there is little but the self-serving assurance of the screening-lawyer foxes that they will carefully guard the screened-lawyer chickens. Whether the screen is breached will be virtually impossible to ascertain from outside the firm. On the inside, lawyers whose interests would all be served by creating leaks in the screen and not revealing the leaks would not regularly be chosen as guardians by anyone truly interested in assuring that leaks did not occur. Modern Legal Ethics, at 402.

The objective facts and circumstances demonstrate the real risks of an even inadvertent disclosure of confidential information that could compromise MetLife's litigation efforts. Clearly. if the purpose of the ethical rules is to establish “freedom from apprehension,” as plaintiffs' expert acknowledges (Modern Legal Ethics, at 361) then screening cannot be accepted here as a means to avoid disqualification.
CONCLUSION
For the foregoing reasons, and the reasons set forth in MetLife's moving brief, MetLife's motion for the disqualification of Lieff, Cabraser, Heimann & Bernstein, LLP should be granted.
Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly
situated, and Barbara LaChance, individually, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01-Civ-2112 (WHP). February 28, 2003.
Memorandum of Law in Support of Plaintiffs' Motion for Class Certification
TABLE OF CONTENTS
I. INTRODUCTION ... 1
II. STATEMENT OF FACTS ... 3
A. The Corporate Structure and Organization of MetLife and MLFS Are Centralized and Standardized. ... 3
B. MLFS Operations Are Governed by a Centralized Personnel Management System and Uniform Personnel Policies and Practices ... 5
C. MetLife Gives MLFS Managers, Who Are Overwhelmingly Male, Broad Discretion to Select Agency Managers and Allocate Business Development Resources to FSRs and Agency Managers. ... 6
1. Selections for MLFS agency management positions are made at the discretion of MLFS managers who use highly subjective and gender-biased criteria. ... 6
2. MetLife affords MLFS managers unfettered discretion to allocate business development resources in a manner that negatively affects female FSRs' and agency managers' compensation ... 9
D. Opportunities for Agency Management Positions and Compensation in MLFS Flow Disproportionately to Male FSRs and Agency Managers by All Statistical Measures. ... 10
E. MetLife Had Ample Notice Of Systemic Barriers For Women In MLFS But Failed To Take Effective Measures To Address And Eliminate Such Barriers ... 13
III. ARGUMENT ... 14

A. General Principles of Class Certification ... 14
B. Plaintiffs Meet Rule 23(a)'s Prerequisites of Numerosity, Commonality, Typicality, and Adequacy of Representation. ... 15
1. The class is so numerous that joinder of all class members is impracticable. (Fed.R.Civ.P. 23(a)(1)). ... 15
2. MetLife's discriminatory policies and practices raise questions of law and fact common to the class. (Fed.R.Civ.P. 23(a)(2)). ... 16
a. Plaintiffs and the class have common claims that rely on the same evidence. ... 16
b. Multiple common questions of fact are present in this case. ... 17
c. Multiple common questions of law are present in this case. ... 17
d. Common issues of law arise from plaintiffs' reliance on both disparate impact and disparate treatment theories of gender discrimination ... 18
i. Disparate treatment. ... 18
ii. Disparate impact. ... 19
3. The claims of the representative plaintiffs are typical of the claims of the class members. (Fed.R.Civ.P. 23(a)(3)). ... 20
4. The representative plaintiffs and their counsel will fairly and adequately protect the interests of the class. (Fed.R.Civ.P. 23(a)(4)). ... 22
C. This Court Should Certify the Class as a Rule 23(b)(2) Action because Plaintiffs Satisfy the Requirements of that Rule. ... 22
1. Certification of this class under Rule 23(b)(2) is required by the Second Circuit's decision in Robinson v. MetroNorth Commuter Railroad. ... 23
2. In the alternative, the Court could bifurcate the action and grant class certification, pursuant to Rule 23(b)(2), limited to liability issues. ... 24
IV. CONCLUSION ... 24

TABLE OF AUTHORITIES CASES Butler v. Home Depot, Inc., 70 Fair Empl. Prac. Cas. 51 (BNA) (N.D. Cal. 1996) ... 24 Caridad v. Metro North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000) ... 15, 17, 18, 19, 20 Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) ... 15 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ... 15 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) ... 14 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ... 19 Hazelwood School Dist. v. United States, 433 U.S. 299 (1977) ... 12 Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000) ... 15 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ... 18, 19, 24 Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894 (7th Cir. 1999) ... 24 Latino Officers Ass'n v. City of New York, 209 F.R.D. 79 (S.D.N.Y. 2002) ... 16, 20, 23, 24 Lemon v. Int'l Union of Operating Eng., 216 F.3d 577 (7th Cir. 2000) ... 24 Marisol A by Forbes v. Guiliani, 126 F.3d 372 ... 17 Robinson v. MetroNorth Commuter R.R., 267 F.3d 147 (2d Cir. 2001), cert. denied, 122 S.Ct. 1349 (2002) ... passim Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) ... 16, 18 Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656 (2d Cir. 1978) ... 15

Shores v. Publix Super Markets, Inc., 69 Empl. Prac. Dec. (CCH) P44,478 (M.D. Fla. 1996) ... 24 Smith v. Xerox, 196 F.3d 358 (2d Cir. 1999) ... 12 Stender v. Lucky Stores, 803 F. Supp. 258 (N.D. Cal. 1992) ... 24 Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193 (S.D.N.Y. 1992) ... 16 Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001), cert. denied, 122 S. Ct. 2382 (2002) ... 15 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ... 18, 19 DOCKETED CASES Molski v. Gleich, Nos. 00-57099, 01-55066, 01-55068, 2003 WL 255964 (9th Cir. 2003) ... 23 RULES AND STATUTES Federal Rules of Civil Procedure 23 ... 14, 15 23(a) ... 1, 3, 15 23(a)(1) ... 15 23(a)(2) ... 16 23(a)(3) ... 20 23(a)(4) ... 22 23(b) ... 15, 22 23(b)(2) ... passim

23(c)(4) ... 24
23(d)(2) ... 24
OTHER AUTHORITIES
Advisory Committee Notes, 39 F.R.D. 69 (1966) ... 14
1 Newberg On Class Actions 2d, (1985 ed.) § 3.05 ... 15
Ramona L. Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases §4.13 (West Group 1999) ... 12
I. INTRODUCTION
Representative plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey (“plaintiffs”)[FN1] seek certification, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), of a class defined as:
FN1. Plaintiff Barbara LaChance is proceeding in her individual capacity only and not as a representative of the class. Plaintiffs will file a motion seeking leave to file a Second Amended Complaint, reflecting this change in Ms. LaChance's status and dismissing her class claim, prior to the hearing on their Motion for Class Certification, which is scheduled for June 4, 2003. All female past, present and future sales representatives and sales agency managers employed within the Financial Services (“MLFS”) division of defendant Metropolitan Life Insurance Company (“MetLife”), or its successor group, if any, in any state outside New York State, or since August 27, 1999, in New York State since March 13, 1998.
Plaintiffs allege class wide gender discrimination under both disparate treatment and disparate impact theories of Title VII and analogous state and local laws. Specifically, plaintiffs claim MetLife discriminates against them and members of the proposed class because of their gender in the following ways:
1. MetLife maintains a “glass ceiling” throughout MLFS by denying qualified female sales representatives and agency managers equal opportunities for promotion to or selection for agency management positions, and instead, predominantly male decision makers in MLFS favor less qualified men for such positions. As a result, men hold nearly 90% of MLFS agency level management positions and all MLFS management positions above the agency level.
2. MetLife compensates female sales representatives throughout MLFS less than similarly situated men by denying these women equal access to discretionary business development resources, including training, mentoring, and assignment of sales leads and books of business. As a result, female sales representatives in MLFS earn, on average, thousands of dollars less than their male counterparts each year. Stated another way, in 2001, female sales representatives earned, on average, 87% of what similarly situated males earned.
3. MetLife compensates female agency managers throughout MLFS less than similarly situated men by (a) denying these women

equal access to discretionary business development resources such as training, mentoring, and discretionary funding, and (b) relying on subjective criteria, exercised with gender bias, to determine the allocation of agency profits among agency managers. As a result, the few female agency managers in MLFS earn, on average, tens of thousands of dollars less each year than their male counterparts. In 2001, female agency managers earned, on average, 54% of what similarly situated male managers earned.
4. MetLife failed to respond effectively to known gender inequities in MLFS. A February 1999 internal analysis, “The Women of MetLife Report,” analyzed the number of women in sales representative and manager positions in MLFS sales agencies and concluded that “MetLife does not place high value on the promotion of women to management positions in our [sales] organization.... Men are several times more likely to be chosen for management positions [than women].” Women of MetLife, p. 77 at Appendix (“App.”) I, Declaration of Lisa Dungan (“Dungan Dec.”),[FN2] Ex. 2. Despite this knowledge, MetLife chose to ignore the Report and took few, if any, effective steps to address systemic barriers that disadvantage women in MLFS.
FN2. Documents, deposition testimony and expert reports cited herein are appended to the Declaration of Lisa Dungan. Plaintiffs rely on the following evidence to support their motion for class certification: (1) 31 declarations and 72 administrative charges, court complaints and internal complaints from class members and female witnesses alleging gender discrimination in sales agencies in 21 states throughout MLFS; (2) declarations from male managers who observed gender discriminatory conduct in MLFS; (3) MetLife documents and the testimony of 18 MetLife managers[FN3] that establish that MetLife's personnel practices are highly discretionary, based on subjective decision making and uniform throughout MLFS; and (4) reports of expert witnesses Richard Drogin, Ph.D., a statistician, and William T. Bielby, Ph.D, a sociologist, describing, respectively, the statistical indicia and mechanisms of MetLife's discriminatory practices.
FN3. A chart identifying the 18 MetLife managers by name, title and office location is attached to the Declaration of Lisa Dungan as Ex. 1. The class wide nature of plaintiffs' claims, the factual questions and legal issues they raise, and the evidence supporting them meet the requirements of Rules 23(a) and (b)(2) for class certification under Robinson v. MetroNorth Commuter R.R., 267 F.3d 147 (2d Cir: 2001), cert. denied, 122 S.Ct. 1349 (2002), which controls here. Accordingly, this Court should certify a Rule 23(b)(2) class.
II. STATEMENT OF FACTS
MetLife is a financial services company that sells individual and group insurance, annuities, investment products, and retirement and savings financial products and services throughout the United States. See App. I, Dungan Dec., Ex. 3. The plaintiffs and the proposed class members have been employed as sales representatives and agency managers in MLFS, the division of MetLife responsible for selling insurance and financial services products to individuals and small businesses. See id.
A. The Corporate Structure and Organization of MetLife and MLFS Are Centralized and Standardized.
MLFS sales operations are uniform across the country. MLFS sales operations in the United States are carried out through approximately 138 sales agencies. See App. I, Dungan Dec., Ex. 4. MLFS' hierarchy and job titles are the same in all agencies and for managers above the agency level. See Dungan Dec., Ex. 5. Although the precise staffing of an agency can be affected by its size, managers and sales representatives must fulfill the same functions in all agencies. See App. I, Dungan Dec., Ex. 6.
MLFS sales operations are dominated by men. Nearly 90% of the agency managers and 80% of FSRs were men as of the end of 2001. See Declaration of Dr. Richard Drogin (“Drogin”), Tbl. 1 at App. I, Dungan Dec., Ex. 7; App. V, Declaration of Scott Grimes (“Grimes Dec.”), ¶ 3. In 1998, the beginning of the liability period, 93.4% of agency managers and 77.6% of FSRs were male. See id. MLFS agencies are run by first line managers called Managing Directors (“MDs”). MDs are responsible for the

overall management of their agencies, including sales, marketing, finance, recruiting, training, administration, and compliance functions. See App. I, Dungan Dec., Ex. 8. The average compensation for MDs was $272,261 in 2001.[FN4]
FN4. The statistics cited are for 2001, because that is the most recent year for which MetLife produced full year employee data to plaintiffs.
Agency Directors (“ADs”) are the second line agency managers who report to MDs. ADs' responsibilities include recruiting, training, and developing their agencies' sales forces. See App. I, Dungan Dec., Ex. 9. The average compensation for ADs in 2001 was $106,798. See App. V, Grimes Dec., ¶ 4. Next in line are the Financial Service Representatives (“FSRs”) who sell MetLife's individual insurance and financial services products. See App. I, Dungan Dec., Ex. 10. Average FSRs' compensation in 2001 was $69,937. See App. V, Grimes Dec., ¶ 4. Some FSRs also hold the title of Functional Manager (“FM”) and are assigned recruiting or training responsibilities for which they receive additional compensation. See App. I, Dungan Dec., Ex. 11. The average pay for FMs in 2001 was $117,727. See App. V, Grimes Dec., ¶ 4.
Prior to 1998, MetLife organized MLFS sales agencies geographically into regions, regions into territories, and territories into zones. MDs reported to Regional Vice Presidents (“RVPs”), who reported to Territorial Vice Presidents (“TVPs”), who in turn, reported to Zone Vice Presidents (“ZVPs”). See App. I, Dungan Dec., Ex. 12. In 1998, MetLife implemented a systemic initiative, called “segmentation,” to reorganize MLFS sales operations. MetLife eliminated the territories and the TVP position and is phasing out the regions and the RVP position, so that eventually every MD will report directly to a ZVP. See App. I, Dungan Dec., Ex. 13. There currently are five geographic zones in MLFS - Northeastern, North Atlantic, South Atlantic, Central, and Western - each headed by a male ZVP, who reports to MetLife's President of North American Sales, who is male, and who in turn reports to MetLife's President and Chief Executive Officer, who is male. See App. I, Dungan Dec., Ex. 14. As a result of segmentation, the number of agencies, MDs, FMs and FSRs in MLFS decreased. See App. I, Dungan Dec., Ex. 15.
B. MLFS Operations Are Governed by a Centralized Personnel Management System and Uniform Personnel Policies and Practices.
Sales agencies throughout MLFS operate under a uniform and highly integrated system of personnel policies and practices. MetLife's Human Resource (“HR”) Department assigns HR generalists, who report to MetLife's Assistant Vice President for Human Resources, to each MLFS zone. They assist MLFS agency managers with performance management and employee relations. See App. I, Dungan Dec., Ex. 16. The HR generalists also provide training regarding MetLife's personnel policies and procedures, and investigate MLFS employee complaints, including complaints of discrimination and harassment. See id. HR generalists meet with each other periodically to ensure uniform implementation of MetLife's personnel policies and practices across MLFS zones. See id.
MetLife has comprehensive and detailed policies and procedures governing equal employment opportunity, workplace behavior, office procedures, recruitment and selection of FSRs, training, performance management, and compensation. MetLife, through its HR, Training, and Compensation Departments, formulates, distributes and enforces these policies and procedures throughout MLFS. See App. I, Dungan Dec., Ex. 17. MetLife ensures uniform personnel management policies and practices by promulgating and distributing policies, procedures and instruction manuals that are applicable throughout MLFS.[FN5]
FN5. Examples of the comprehensive policy and procedure and instruction manuals include: (1) “InForm Ready Reference Manual for Representatives - General Responsibilities,” a six volume reference resource containing information on MetLife products, policies, procedures and business conduct guidelines; (2) “A Manager's Guide to HR Policies and Procedures,” a self-described “place to go when [managers] need timely, up-to-date information about [MetLife's] current HR and related policies;” (3) “Manual of Instructions for Sales Management,” a 500-page guide on managing an MLFS agency, that includes copies of MetLife's personnel policies and procedures; (4) “Leading Change

by Managing Performance” and the companion “Performance Management” website, which provide information and instructions for conducting staff and manager performance evaluations; (5) annually issued FSR compensation plan manuals, which describe MLFS' uniform and company wide FSR compensation formula; and (6) annually issued MLFS agency management compensation plans, which describe MLFS' uniform and company wide agency management compensation formula. See App. I, Dungan Dec., Ex. 18-23.
MetLife also provides training on these personnel policies and procedures to MLFS ADs, MDs, RVPs and ZVPs to ensure the policies and procedures are implemented uniformly throughout MLFS. See App. II, Dungan Dec., Ex. 24. Additionally, ZVPs and RVPs meet regularly with each other and with the MDs who report to them to discuss staffing, performance, productivity, recruiting, training, and other agency personnel issues to ensure MLFS wide compliance with company policies and practices. See App. II, Dungan Dec., Ex. 25.
C. MetLife Gives MLFS Managers, Who Are Overwhelmingly Male, Broad Discretion to Select Agency Managers and Allocate Business Development Resources to FSRs and Agency Managers.
1. Selections for MLFS agency management positions are made at the discretion of MLFS managers who use highly subjective and gender-biased criteria.
MetLife delegates nearly unfettered discretion to MLFS managers, who are overwhelmingly male, to select individuals for agency management positions. See Report of William T. Bielby, Ph.D. (“Bielby”), p. 22 at App. II, Dungan Dec., Ex. 26. This highly discretionary and male-dominated decision making operates both at the initial selection and approval levels. RVPs and ZVPs, who are all men, select MDs and often approve the MDs' selections of lower level managers for their agencies. See App. II, Dungan Dec., Ex. 27. MDs, nearly 94% of whom are male, select individuals for AD and FM positions. See App. II, Dungan Dec., Ex. 28; App. V, Grimes Dec., ¶ 5.
MetLife does not have formal, written procedures for selecting MLFS agency management personnel. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 29. There is no uniform application process or effective system for interested candidates to apply or express interest in MLFS agency management positions. See id. Although MetLife has had a computerized job posting system since 2001, MetLife does not require MD and AD positions to be posted on the system. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 30. Thus, MLFS managers are free to decide for themselves whether to post available positions. Few managers see the value in posting such positions. See App. II, Dungan Dec., Ex. 31. Consequently, MD and AD positions are posted inconsistently. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 32. Additionally, FM positions are never posted. See App. II, Dungan Dec., Ex. 33. In the absence of formal application and selection procedures, MLFS managers at the MD, RVP and ZVP levels use an informal and highly discretionary “tap on the shoulder” system to identify and select candidates for MD, AD and FM positions. See Bielby, pp. 20-21 at App. II, Dungan Dec., Ex. 26, 34.
MLFS managers use highly subjective criteria to make selections for agency management positions. MetLife does not provide MLFS managers with written criteria or standards to guide them in exercising their discretion to select individuals for MD, AD, and FM positions. See Bielby, pp. 20-22 at App. II, Dungan Dec., Ex. 26, 35. Selecting managers thus rely on a range of selection criteria, many of which are highly subjective and/or vague. ZVPs, RVPs, and MDs testified that the criteria they use to select individuals for agency manager positions include such subjective factors as: “overall success,” “leadership,” “affinity” or the “ability to fit in the marketplace [and/or] with the FSRs in the agency” where there is an opening, “vision,” “management style,” and “integrity”. See Bielby, p. 21 at App. II, Dungan Dec., Ex. 26, 36. MetLife has offered no evidence to show that the selection criteria used by MLFS managers has been validated or determined to be job related.
MetLife fails to provide oversight of MLFS manager selections, thereby allowing decisions to be made based on gender stereotypes. MetLife has “[n]o policies or procedures in place to ensure that [MLFS managers'] assessment of subjective factors

is done in a systematic, reliable and valid manner.” See Bielby, p. 22 at App. II, Dungan Dec., Ex. 26, 37. MetLife provides no oversight or systematic analysis of MLFS manager selection decisions or their gender impact. Moreover, a MetLife senior HR manager testified that he does not believe such monitoring is necessary. See Bielby, pp. 20-22 at App. II, Dungan Dec., Ex. 26, 38. These deficiencies are especially consequential in workplaces like MLFS where “the highly discretionary and subjective system for making selection decisions ... is set in a historically male-dominated work context where men predominate in positions of status and authority ... [t]hat is the kind of decision-making context that is vulnerable to gender stereotyping and gender bias.” Bielby, p. 22 at App. II, Dungan Dec., Ex. 26.
The record is replete with testimony from many witnesses demonstrating that MDs, RVPs, and ZVPs, unrestrained by formalized selection procedures or articulated criteria, make agency manager selections based on gender stereotypes. Testimony from both male and female witnesses depicts the gender biased attitudes and conduct of male managers in MLFS. For example, one male AD testified that RVP Edward Garger routinely made discriminatory selection decisions and sexist remarks, once saying he would “never make [a female FSR] a manager. She would get married, have a kid, and then I'm screwed.” Declaration of May Rafanan (“Rafanan Dec.”), Ex. 22.[FN6] Katherine Fredericks-Bowen, who served temporarily as an acting RVP, was told by ZVP Richard Tartre, who refused to place her in the position permanently, that he would never make a woman an RVP. See App. II, Dungan Dec., Ex. 39. Declarant Jana Pierce testified that MD David Mansfield responded to her inquiry about why there were so few female managers in his agency by stating “[w]hy should I make a woman manager when I have ten men who are qualified?” See App. IV, Rafanan Dec., Ex. 31. All of the plaintiffs and 28 class members and witnesses have alleged they were not selected for agency management positions for which lesser qualified men were selected due to an informal “good old boy network” in MLFS that disadvantages women. See App. IV, Rafanan Dec., Ex. 1, 16, 28, 31.
FN6. Information regarding incidents of discriminatory conduct cited herein, which was obtained from declarations, administrative charges of discrimination, court complaints, and internal MetLife complaints are summarized in and appended to the Declaration of May Rafanan. 2. MetLife affords MLFS managers unfettered discretion to allocate business development resources in a manner that
negatively affects female FSRs' and agency managers' compensation.
FSR compensation is, in large part, determined by a formula, based almost entirely on commissions on an FSR's personal sales production, that applies uniformly to all FSRs in MLFS. See App. II, Dungan Dec., Ex. 40. However, MDs and ADs provide FSRs with business development resources and assistance, such as informal training and mentoring, assignment of sales leads and books of business, and partnering with managers and/or more experienced FSRs, that impact FSRs' sales and income. See Bielby, pp. 19-20, 22 at App. II, Dungan Dec., Ex. 26, 41. MetLife gives its male MDs and ADs broad discretion to allocate these business development resources to FSRs. MetLife does not give managers written guidelines or criteria on how to allocate these business development resources. See Bielby, pp. 19-20, 22 at App. II, Dungan Dec., Ex. 26, 42. As a result, managers allocate such resources using subjective criteria and gender biased stereotypes that disadvantage female FSRs. Class members and witnesses repeatedly alleged the unequal and gender biased distribution of these resources. Plaintiff Persaud and 55 FSR class members and witnesses allege they were denied resources and opportunities, which affected their compensation, that similarly situated men in their agencies received. See App. IV, Rafanan Dec., Ex. 1.
MLFS agency manager compensation is largely determined by a common performance based compensation plan (“PBC”) that considers the agency's FSR production, recruiting, retention, sales growth, profitability, ethics, and compliance. The PBC formula applies uniformly to all agencies. See App. III, Dungan Dec., Ex. 43. However, MetLife affords RVPs and ZVPs, all of whom are male, broad discretion to make decisions that impact agency management compensation to the detriment of female MDs and ADs. These decisions encompass allocation of resources, such as training, mentoring and discretionary funds that can increase MDs' and ADs' compensation. See App. III, Dungan Dec., Ex. 44. Plaintiffs and former MDs Mitchell, Gee, and Ramsey, and class member and former MD Carol Rollero all testified that MLFS senior managers denied them discretionary funding and/or other business development support for their agencies that similarly situated male MDs received. See App. IV, Rafanan Dec., Ex. 1. Additionally, MetLife delegates uncontrolled authority to MDs, 90% of whom are male, to determine the ADs' PCB compensation. See App. III, Dungan Dec., Ex. 45.

MetLife does not provide MLFS managers written criteria or guidelines on how to distribute discretionary business development resources to FSRs and agency managers or for determining ADs' share of the PCB, nor does it monitor these unguided decisions. Bielby, pp. 19-20, 22 at App. II, Dungan Dec., Ex. 26; App. III, Dungan Dec., 42, 44, 46. Consequently, MLFS managers have unfettered discretion to allocate these resources relying on subjective and gender-biased criteria to the detriment of women. See Section II.D below. MetLife does not provide any oversight or systematic gender specific analyses of these compensation-affecting decisions. For example, MetLife does not monitor the gender distribution of sales leads and books of business to FSRs. Nor does MetLife review FSRs' or agency managers' compensation for gender based disparities. See App. III, Dungan Dec., Ex. 47.

D. Opportunities for Agency Management Positions and Compensation in MLFS Flow Disproportionately to Male FSRs and Agency Managers by All Statistical Measures.

MetLife maintains a gender-stratified workforce in MLFS. The staffing and compensation patterns in the MLFS sales organization form a pyramid. Location on the pyramid is dictated by gender. The greatest concentration of women has been at the bottom of the pyramid, in FSR positions. There are far fewer women at the middle of the pyramid in higher paying MD, AD, and FM positions. The smallest number of women is found in the influential MD position, whose incumbents - almost all male - exercise the most significant decision making authority at the agency level and who earn far more than lower level managers (AD's and FM's) and FSRs. Women are completely absent at the top of the pyramid in the RVP and ZVP positions. See Drogin, App. 2A, 2B at App. I, Dungan Dec., Ex. 7; Bielby, pp.11-12 at App. II, Dungan Dec., Ex. 26; App. III, Dungan Dec., Ex. 48.

The chart below graphically depicts this persistent pattern of gender stratification in the MLFS sales agencies over time. See App. V, Grimes Dec., ¶ 5; App. III, Dungan Dec., Ex. 48.

YEAR
1996 1997 1998 1999 2000 2001

FSRs

FMs

ADs

MDs

RVPs ZVPs

Total # % Total # % Total # % Total # % Total # Total #

Female

Female

Female

Female

7,287 21.5% 0

0 315 7.9% 415 4.9% 0

0

6,691 22% 113 8.8% 226 9.3% 380 3.7% 0

0

6,295 22.4% 287 8.4% 234 9.8% 372 3.2% 0

0

6,422 22% 375 10.7% 243 17.3% 318 3.8% 0

0

6,077 21.4% 377 9.3% 275 21.5% 250 3.6% 0

0

5,767 20.2% 286 9.8% 356 21.9% 197 5.6% 0

0

Female FSRs move into MD, AD, and FM positions at significantly lower rates than similarly situated males as a result of MetLife's discretionary and subjective selection policies and practices. Female FSRs are less likely to move into agency management positions (MD, AD, FM) than similarly situated males. Plaintiffs' statistical expert Dr. Drogin found that, between August 1999 and September 2002, women received 40 fewer job moves into these positions than expected. See Drogin, pp. 6-7 at App. I, Dungan Dec., Ex. 7. The gender disparities in promotions to agency management positions are statistically significant. The “Z-value” is -4.9. See id. This reflects a gap between male and female selection rates of almost five standard deviations,[FN7] meaning they are virtually certain not to have occurred by chance, but rather from some casual relationship, see Drogin, p. 5 at App. I, Dungan Dec., Ex. 7, such as gender discrimination. Moreover, the disparities are common across MLFS zones and over the entire liability period. See Drogin, pp. 6-7 at App. I, Dungan Dec., Ex. 7. In fact, this pattern of gender disparity antedates the liability period. Between January 1996 and August 1999, the female selection “shortfall” was 45 agency management jobs for a cumulative shortfall of 85 agency management jobs from 1996 through 2002, having a Z-value of -7.27. See id.

FN7. A probability value of Z>2 means that the observed disparity is highly unlikely (.05 probability) to reflect chance variations. A value of Z>5 means that the likelihood that random factors or chance can explain the disparity is very remote (one in 1,700,000). (See Drogin, p. 5 at App. I, Dungan Dec., Ex. 7.) Adverse impact of greater than two or three standard deviations “undercut [[s] the hypothesis that decision were being made randomly with respect to [[gender].”

Hazelwood School Dist. v. United States, 433 U.S. 299, 311 n.17 (1977). See also Smith v. Xerox, 196 F.3d 358, 366 (2d Cir. 1999) (“If an obtained result varies from the expected result by two standard deviations... Courts generally consider this level of significance sufficient to warrant an inference of discrimination.”) See generally, Ramona L. Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases §4.13 (West Group 1999).

Female FSRs, ADs, and MDs also receive significantly less compensation than similarly situated men. Female FSRs earned between 7.7% and 13.1% less than their male counterparts in each year during the liability period. These disparities are statistically significant. See Drogin, pp. 8-10 at App. I, Dungan Dec., Ex. 7. Similarly, female MDs and ADs together earned between 33% and 46.2% less than similarly situated males during the same period. Average earnings for female MDs and ADs were less than for males in those positions in 1999, 2000 and 2001, respectively. These disparities also are statistically significant. See Drogin, pp. 10-12 at App. I, Dungan Dec., Ex. 7.

The chart below shows average earning shortfalls for female FSRs, ADs and MDs (compared to men) in 1999, 2000 and 2001. See Drogin, pp. 10-11 at App. I, Dungan Dec., Ex. 7.

Average Earnings

Shortfalls Of

Female FSRs and

MDs/ADs

YAR

FSRs

Earnings Shortfall

1999 2000 2001

$3,425 $5,134 $7,002

Z-value
-4.57 -5.36 -6.91

MANAGERS Earnings Slortfall
$37,707 $50,392 $59,185

Z-value
-5.48 -7.08 -9.05

E. MetLife Had Ample Notice Of Systemic Barriers For Women In MLFS But Failed To Take Effective Measures To Address And Eliminate Such Barriers.

In February 1999, the internally produced report, “The Women of MetLife,” revealed a paucity of women in MLFS management positions and found “there does not appear to be a level playing field [in selections for MLFS management positions]. Men are several times more likely to be selected than women in each of the [sales] management positions.” See Women of MetLife, p. 7 at App. I, Dungan Dec., Ex. 2. The Report's finding of an unlevel playing field for women within MLFS has been echoed repeatedly in formal complaints brought by numerous female MLFS employees. See App. IV, Rafanan Dec., Ex. 43.

MetLife's response to notice of systemic gender bias within MLFS has been to ignore that information and “kill the messenger.” MetLife distributed the Women of MetLife Report only to a very few senior executives in MetLife. Almost immediately after the Report was issued, MetLife reduced the author's job duties and, ultimately, eliminated her position as MetLife's National Director for Women's Recruiting. See App. III, Dungan Dec., Ex. 49. Plaintiff Janet Ramsey was similarly victimized when she complained to MetLife's HR Department that she had been discriminatorily removed from her MD position because of her gender and further that “MetLife has not had a stellar record when it comes to promoting, supporting and developing females at the level of Managing Directors ... [and] are pushing out some of the few women managers they did have at that level.” See App. III, Dungan Dec., Ex. 50. MetLife failed to investigate Ms. Ramsey's complaint of systemic gender discrimination and demoted her to an FSR position. See App. IV, Rafanan Dec., Ex. 6. Additionally, 17 class members and female witnesses alleged they were subjected to retaliation by MLFS managers after complaining about discriminatory treatment. See App. IV, Rafanan Dec., Ex. 1.

Findings from focus groups MetLife conducted as recently as February 2002 reiterate long-standing complaints of systemic career

barriers women face within MLFS. The focus group participants, who included female current and former FSRs and agency managers, reported that: (1) women are bypassed for MLFS agency management positions in favor of less qualified men; (2) male agency managers favor male FSRs in distributing sales leads; (3) male managers and FSRs treat female MLFS FSRs and agency managers disrespectfully; and (4) female agency managers earn less than male managers. See App. III, Dungan Dec., Ex. 51.
Despite such notice, MetLife has failed to take adequate steps to eliminate systemic barriers that limit female FSRs' and agency managers' career advancement and compensation opportunities within MLFS, or to ensure that MLFS managers are held accountable for providing these women equal employment opportunities. See Bielby, pp. 22-30 at App. II, Dungan Dec., Ex. 26; App. III, Dungan Dec., Ex. 52. This indifference reflects MetLife's ratification of the practices that have resulted in the significant MLFS wide gender disparities summarized above.
III. ARGUMENT
A. General Principles of Class Certification.
This is the type of case for which the class action procedure was designed. Gender discrimination, no less than race discrimination, “is by definition class discrimination.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982). One of the primary purposes of Federal Rule of Civil Procedure 23 was to facilitate litigation of civil rights claims - like those presented here challenging systemic practices. Fed.R.Civ.P. 23(b)(2), Advisory Committee Notes, 39 F.R.D. 69, 102 (1966). The Second Circuit Court of Appeals' controlling decision in Robinson v. MetroNorth Commuter R.R., 267 F.3d 147 (2d Cir. 2001), cert. denied, 122 S.Ct. 1349 (2002), construed Rule 23 correctly and ordered certification of a Rule 23(b)(2) class in an employment discrimination case that, like this one, sought both equitable and compensatory damages.
Plaintiffs must demonstrate they meet the four prerequisites of Rule 23(a) and one of the requirements of Rule 23(b) to proceed as a class action. See Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132-33 (2d Cir. 2001), cert. denied, 122 S. Ct. 2382 (2002). Plaintiffs do not have to demonstrate that they will prevail on the merits at this stage of the litigation. See Caridad v. MetroNorth Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) (“Such a weighing of evidence is not appropriate at this stage of the litigation.”), cert. denied, 120 S. Ct. 1959 (2000), citing, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). Rather, the Court should consider the allegations in the complaint as true and examine the evidence only to determine whether the requirements of Rule 23 are met. See Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D.N.Y. 2000), citing, Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978). In making this determination, it is appropriate for the Court to consider evidence submitted outside of the pleadings, such as deposition testimony, declarations, and expert reports. Hirschfeld, 193 F.R.D. at 182, citing Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982).
B. Plaintiffs Meet Rule 23(a)'s Prerequisites of Numerosity, Commonality, Typicality, and Adequacy of Representation.
Plaintiffs satisfy the four prerequisites of Rule 23(a) - numerosity, commonality, typicality, and adequacy of representation.
1. The class is so numerous that joinder of all class members is impracticable. (Fed.R.Civ.P. 23(a)(1)).
Plaintiffs easily meet Rule 23's numerosity requirement because joinder of all class members is impracticable. There are potentially thousands of women in the proposed class. In 2001 alone, 1,387 women were employed in FSR and agency management positions in MLFS, and more women were employed in these positions over the entire liability period. See Drogin, App. 2A at App. I, Dungan Dec., Ex. 7. These numbers are more than sufficient to establish numerosity, which “is presumed at a level of 40 [class] members” in this Circuit. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995), citing, 1 Newberg On Class

Actions 2d, (1985 ed.) § 3.05.
2. MetLife's discriminatory policies and practices raise questions of law and fact common to the class. (Fed.R.Civ.P. 23(a)(2)).
Rule 23(a)(2) requires the existence of questions of law or fact that are common to the class. The commonality test is to be liberally applied and is satisfied if there is at least one common issue of fact or law that affects all class members. See Triefv. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992). Plaintiffs satisfy the commonality requirement because this case raises multiple common legal claims based on patterns of conduct by MetLife that are common to the class.
a. Plaintiffs and the class have common claims that rely on the same evidence.
Plaintiffs and the class have common complaints about MetLife's selection and compensation practices and their effect on women. MLFS has uniform job titles and functions. MLFS uses uniform personnel policies and practices to delegate agency manager selection and resource allocation decisions to predominantly male managers. These managers rely on highly discretionary and subjective criteria with little oversight or review. MetLife's delegation of unfettered discretion to ZVPs, RVPs, and MDs to select agency managers and allocate resources constitutes a policy or practice sufficient to satisfy the commonality requirement. See Latino Officers Ass'n v. City of New York, 209 F.R.D. 79, 88 (S.D.N.Y. 2002) (“The delegation of discretionary authority to supervisors constitutes a policy or practice sufficient to satisfy the commonality requirement.”) Consistent application of subjective decision making throughout MLFS also raises common questions of fact and is a well recognized basis for finding commonality. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598-99 (2d Cir. 1986).
The claims of plaintiffs and the class rest on a foundation of common evidence: MLFS wide statistical data; expert reports analyzing MLFS wide data and practices; and documents and deposition testimony, mostly from MetLife's own managers, describing uniform MLFS policies and practices for selecting agency managers and allocating resources that impact compensation. Plaintiffs' statistical evidence establishes that women are unrepresented in MLFS senior level manager positions, under-selected for agency management positions, and earn less than similarly situated male MLFS employees. See Section II.D above. Statistical evidence is particularly relevant where decision making is subjective, as it is in MLFS. See Caridad, 191 F.3d at 292. Plaintiffs also present extensive anecdotal evidence to show how MetLife's managers make selection and resource allocation decisions in MLFS. See Section II.C above. Plaintiffs' statistical and anecdotal evidence shows that MetLife's actions are not “isolated or discrete instances but, rather, form a pattern of behavior that commonly affects all of the proposed class members.” Marisol A by Forbes v. Guiliani, 126 F.3d 372, 377 (2d Cir. 1997).
b. Multiple common questions of fact are present in this case.
Plaintiffs' claims and evidence raise the following questions of fact that are common to the entire class: (1) Whether, in making agency manager selections and resource allocations in MLFS, MetLife uses criteria that are vague, subjective and lend themselves to discriminatory and gender-stereotyped application by MLFS managers; (2) Whether women are systematically excluded from or disproportionately denied access to higher level and better paying MLFS agency management positions; (3) Whether female FSRs and agency managers are paid less than similarly situated males; (4) Whether female FSRs are treated less favorably than similarly situated males in the assignment of sales leads, books of business, and other resources; (5) Whether female agency managers are treated less favorably than similarly situated males in the allocation of agency discretionary funding and other resources; and (6) Whether MetLife perpetuates limitations on opportunities for women within MLFS by failing to post agency manager positions, develop articulated criteria for selection of agency managers and distribution of sales leads, books of business, and other resources, or implement accountability measures to prevent MLFS managers from making gender-biased selection and resource allocation decisions.

c. Multiple common questions of law are present in this case.
The overarching common questions of law raised in this case are whether MetLife discriminated against plaintiffs and the class in violation of Title VII and applicable New York State and New York City laws against employment discrimination. Additional questions of law include: (1) What is the significance and legal effect of plaintiffs' statistical evidence of gender-stratified staffing patterns and gender disparities in selections for agency management positions? See Robinson, 267 F.3d at 158-59, 160; (2) What is the significance and legal effect of plaintiffs' statistical evidence of gender disparities in FSR and agency manager compensation? See id.; (3) What is the significance and legal effect of the discretionary and subjective decision making MetLife affords MLFS managers in light of the statistical disparities in selection and compensation outcomes? See Caridad, 191 F.3d at 291-92; (4) What is the significance and legal effect of MetLife's failure to provide written selection and resource allocation procedures and criteria or to monitor MLFS managers' exercise of discretion in making selection and resource allocation decisions? See id.; and (5) Can MLFS' practices be justified by “business necessity” or can they be replaced by less discriminatory alternatives? See Robinson, 267 F.3d at 161. A host of subsidiary common questions of law also could be easily articulated.
d. Common issues of law arise from plaintiffs' reliance on both disparate impact and disparate treatment theories of gender discrimination.
Plaintiffs' disparate treatment and disparate impact theories of discrimination both raise numerous common class wide issues of law.
i. Disparate treatment.
To prevail under a theory of class wide disparate treatment, plaintiffs must establish that intentional discrimination against female FSRs and agency managers was MetLife's standard operating procedure. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 349 (1977); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-87 (1988). The focus of the proof in a disparate treatment class action is on the class as a whole and not on the treatment of individual plaintiffs or class members. See Robinson, 267 F.3d at 158 & n.5. Whether plaintiffs' proof establishes their disparate treatment claim raises common legal issues. See Rossini, 798 F.2d at 599 (“discriminatory intent clearly was a major issue of law and fact shared in common”). The most important evidence from which a pattern of intentional discrimination may be inferred is class wide statistical evidence. See Teamsters, 431 U.S. at 339; Robinson, 267 F.3d at 158 n.5, (statistical evidence is the core of plaintiffs' pattern or practice disparate treatment case). Plaintiffs present such class wide statistical evidence in Dr. Drogin's report. His analysis shows the existence of statistically significant gender disparities in compensation for FSRs and agency managers and in selections for agency management positions. See Drogin, pp. 5-12 at App. I, Dungan Dec., Ex. 7.
Plaintiffs also rely on anecdotal evidence from MetLife managers, class members, and other MLFS employees to show systemic discrimination against plaintiffs and the class. See Section II.C above. The importance of anecdotal evidence, which brings “the cold numbers convincingly to life,” Teamsters, 431 U.S. at 339, is to assist the court in drawing inferences from class wide statistical evidence. See Robinson, 267 F.3d at 168 (anecdotal evidence at the liability stage “simply provides ‘texture’ to the statistics”). The inferences that can be drawn from plaintiffs' statistical and anecdotal evidence raise common legal issues.
ii. Disparate impact.
To prevail under a theory of disparate impact, plaintiffs must prove that employment practices that appear facially neutral have a discriminatory effect. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); Watson, 487 U.S. at 986-87. Evidence of discriminatory intent is not necessary. See Griggs, 401 U.S. at 431; Watson, 487 U.S. at 986. Disparate impact analysis may be applied to an employer's undisciplined system of subjective decision making. See Watson, 487 U.S. at 990; Caridad, 191 F.3d

at 292. This analysis raises common questions of law as to the validity of such a system when it has class wide disparate impact.
Class wide statistical evidence is also crucial to proving a disparate impact claim. See id.; Robinson, 267 F.3d at 160 (statistical proof occupies “center stage” in a disparate impact claim). Plaintiffs' statistical evidence establishes that MetLife's employment practices have an adverse impact on female FSRs' and agency managers' compensation and selections of women for agency management positions. See Drogin, pp. 5-12 at App. I, Dungan Dec., Ex. 7. This evidence applies to MLFS as a whole and raises common questions of law as to whether MetLife can rebut the prima facie case established by plaintiffs' showing of adverse impact. Additional common legal and factual issues will arise if MetLife asserts a “business necessity” defense. See Robinson, 267 F.3d at 161.
3. The claims of the representative plaintiffs are typical of the claims of the class members. (Fed.R.Civ.P. 23(a)(3)).
Rule 23(a)(3) requires that the claims of the representative plaintiffs be typical of those of the class.[FN8] Typicality requires that disputed issues of law or fact “occupy essentially the same degree of centrality to the named plaintiff's claims as to that of the other members of the proposed class.” Caridad, 191 F.3d at 293, citing, Krueger v. New York Tel. Co., 163 F.R.D. at 442. Plaintiffs' and the class' claims are typical because they are based on the same class allegations, legal theories and conduct by MetLife. See Latino Officers Ass'n, 209 F.R.D. at 90. Plaintiffs allege that MLFS managers, who are almost all male, exercise discretionary authority using subjective criteria to deny them equal opportunities for agency management positions, resources, and compensation in favor of similarly situated males. The experiences of the plaintiffs, who worked in different MLFS agencies, are strikingly similar.
FN8. The commonality and typicality requirements “tend to merge” and “both serve as guideposts for determining whether ... the named plaintiff's claim and the class claims are so inter-related that the interests of the class members will be fairly and adequately protected in their absence.” Caridad, 191 F.3d at 291, citing, Falcon, 477 U.S. at 157 n.13. The factors cited by plaintiffs regarding commonality therefore also support a finding of typicality.
Plaintiff Stella Mitchell began her career with MetLife in 1987 as an FSR. She was promoted twice, in 1994 and 1998, to positions as the MD of start up agencies. In each of these positions, Ms. Mitchell was denied business development resources and financial support, such as agency development funds, books of business, transferred FSRs, and adequate clerical support, which similarly situated men received. Ms. Mitchell was demoted to AD in 1996 and again to FSR in 2000. Additionally, she was not selected in 2000 for either of two MD positions for which MetLife selected men with less qualifications and tenure with MetLife. See App. IV, Rafanan Dec., Ex. 2.
Plaintiff Hwa-Mei C. Gee began her employment with MetLife in 1986 as an FSR. In 1995, Ms. Gee was promoted to AD and, in 1999, she was promoted to MD of a start up agency. Ms. Gee was denied access to business development resources and financial support she needed to grow and develop the new agency, which MetLife provided to similarly situated men. In 2000, Ms. Gee was demoted to FSR. In 2002, MetLife selected a less qualified man over Ms. Gee for an AD position. See App. IV, Rafanan Dec., Ex. 3.
Plaintiff Durpatty Persaud began her career at MetLife in 1993 as an FSR and quickly became a top producer in her agency. Ms. Persaud was denied multiple promotions to FM in 1999 in favor of less qualified men. She also was denied business development resources that MetLife provided to similarly situated male FSRs. See App. IV, Rafanan Dec., Ex. 5.
Plaintiff Janet Ramsey was hired by MetLife as an FSR in 1983. She was promoted to MD in 1986 and was assigned to a larger, multi-office agency in 1995. MetLife refused to provide Ms. Ramsey business development resources and financial support that it provided to similarly situated men. MetLife refused to select Ms. Ramsey for an MD position for which she was well qualified

and instead demoted Ms. Ramsey to AD in 2000. In 2001, after she complained about discriminatory treatment, MetLife demoted Ms. Ramsey to FSR. See App. IV, Rafanan Dec., Ex. 6.
The plaintiffs' experiences are typical and illustrative of those of the class. For example, 28 female witnesses and class members complain they were passed over for agency management positions in favor of less qualified men. Another 55 allege that as FSRs they were not provided comparable sales leads, books of business, and other business development resources as similarly situated men received, resulting in lower compensation. Another 11 allege that as agency managers they were denied business development resources and support that similarly situated men received, resulting in lower compensation. See App. IV, Rafanan Dec., Ex. 1. This evidence establishes a systematic pattern or practice of discrimination against women by MetLife, demonstrates that the plaintiffs' experiences are not unique and satisfies the typicality requirement.
4. The representative plaintiffs and their counsel will fairly and adequately protect the interests of the class. (Fed.R.Civ.P. 23(a)(4)).
Rule 23(a)(4) requires plaintiffs and their counsel to demonstrate they will adequately protect the class' interests. Plaintiffs must meet two tests to satisfy this requirement: (1) absence of conflict and (2) assurance of vigorous prosecution. See Robinson, 267 F.3d at 170-71.
There are no conflicts of interest here. Plaintiffs' interests are aligned with those of the class. Plaintiffs and the class have the same complaints that discriminatory practices in MLFS disadvantage female FSRs and agency managers by denying them equal opportunities for compensation and agency management positions. Plaintiffs and the class are seeking to end the discriminatory practices and compensation for their losses. Plaintiffs have actively participated in the prosecution of the case by producing documents, providing written discovery responses, giving depositions, and assisting counsel in the development of the case. See App. V, Declaration of David Borgen (“Borgen Dec.”), 11; App. V, Declaration of Adam Klein (“Klein Dec.”), ¶ 13.
There can be no legitimate contention that plaintiffs' counsel are not adequate to prosecute this case. Outten & Golden and Goldstein, Demchak, Baller, Borgen & Dardarian have been appointed class counsel in other employment discrimination cases and have substantial experience successfully prosecuting complex employment discrimination and wage and hour class actions. See App. V, Borgen Dec., 11 7; App. V, Klein Dec., ¶ 10. The Court should thus find that plaintiffs and their counsel will adequately represent the class.
C. This Court Should Certify the Class as a Rule 23(b)(2) Action because Plaintiffs Satisfy the Requirements of that Rule.
Plaintiffs also must satisfy one of the subparts of Rule 23(b) to proceed as a class action. This class should be certified under Rule 23(b)(2) because MetLife “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).
1. Certification of this class under Rule 23(b)(2) is required by the Second Circuit's decision in Robinson v. MetroNorth Commuter Railroad.
A Rule 23(b)(2) class action is intended for cases, such as this one, where broad, class wide injunctive or declaratory relief is necessary to redress a group wide injury. See Robinson, 267 F.3d at 163. This case meets the standards for Rule 23(b)(2) certification enunciated by the Second Circuit in Robinson because the value of the equitable relief sought is significant and predominates over the compensatory and punitive damages sought. See id. at 164. Rule 23(b)(2) certification was appropriate for a class of African American employees alleging denial of promotions and disparate discipline and seeking both equitable relief

and non-incidental damages in Robinson. See id. at 167. The same Rule applies to the gender discrimination claims here.[FN9]
FN9. See also Molski v. Gleich, Nos. 00-57099, 01-55066, 01-55068, 2003 WL 255964 (9th Cir. 2003) (relying on Robinson and finding certification under Rule 23(b)(2) appropriate for a class of mobility impaired persons alleging denial of access to gasoline stations, and seeking injunctive relief and non-incidental damages).
The value and importance of the equitable relief sought by plaintiffs are predominant and outweigh the compensatory and punitive damages also demanded. Plaintiffs seek comprehensive changes to MetLife's agency management selection and business resource allocation practices and systemic oversight or monitoring of these practices. Given the number of the positions at issue here, and the potential earnings in those positions, the value of equitable relief that will increase women's career opportunities and compensation over time will greatly exceed any monetary award that may be obtained. The class wide remedies plaintiffs seek are more important than the individual relief that may also accrue to any particular class member. See Latino Officers Ass'n, 209 F.R.D. at 93 (finding that the value of the declaratory and injunctive relief sought to remedy discriminatory disciplinary practices was predominant).
Class treatment is appropriate here because the class is manageable and such treatment is efficient and will achieve judicial economy. See Robinson, 267 F.3d at 164. Class certification will eliminate the need for hundreds of separate duplicative lawsuits that could yield inconsistent results and/or not result in any meaningful changes to MetLife's discriminatory practices. Moreover, the Court possesses broad powers under Rules 23(c)(4) and 23(d)(2) to manage class actions in order to accomplish these goals. See Robinson, 267 F.3d at 166-167.
2. In the alternative, the Court could bifurcate the action and grant class certification, pursuant to Rule 23(b)(2), limited to liability issues.
Alternatively, the Court could bifurcate the action by initially certifying the liability stage of the pattern or practice claims for class treatment under Rule 23(b)(2) and reserving the remaining claims and issues for subsequent proceedings. See Robinson, 267 F.3d at 168 (“[L]itigating the pattern or practice liability phase for the class as a whole would both reduce the range of issues in dispute and promote judicial economy.”); see also Teamsters, 431 U.S. at 430 (setting standards for bifurcating trial of employment discrimination class actions into two stages). Numerous district courts have followed this bifurcated approach in certification of employment discrimination class actions. See e.g. Latino Officers Ass'n, 209 F.R.D. at 92; Butler v. Home Depot, Inc., 70 Fair Empl. Prac. Cas. 51 (BNA) (N.D. Cal. 1996); Shores v. Publix Super Markets, Inc., 69 Empl. Prac. Dec. (CCH) P44, 478 (M.D. Fla. 1996); and Stender v. Lucky Stores, 803 F. Supp. 258 (N.D. Cal. 1992); see also Lemon v. Int'l Union of Operating Eng., 216 F.3d 577, ____ (7th Cir. 2000) (holding that district court can bifurcate proceedings and certify a Rule 23(b)(2) class for equitable relief); Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894, 898 (7th Cir. 1999) (same).
IV. CONCLUSION
For the reasons set out above, the Court should (1) grant plaintiffs' motion for class certification and allow this case to proceed as a Rule 23(b)(2) class action, (2) certify Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud and Janet Ramsey as representatives of the class, and (3) appoint Outten & Golden and Goldstein, Demchak, Baller, Borgen & Dardarian as Class Counsel.
Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others
similarly situated, and Barbara LaChance, individually., Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01-Civ-2112 (WHP). April 2, 2003.
Second Amended Class Action Complaint and Demand for Jury Trial
Individual and Representative Plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey (hereinafter “Plaintiffs”) on behalf of themselves and all others similarly situated, and Barbara LaChance individually, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
PRELIMINARY STATEMENT
1. This is a class action brought by female current and former employees within the Financial Services division of Defendant Metropolitan Life Insurance Co., Inc., d/b/a MetLife (“MetLife”). MetLife has engaged in a continuing nationwide policy, pattern or practice of gender discrimination in promotional opportunities, job assignments, compensation, and other terms, conditions and privileges of employment, in violation of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a (“Title VII”), the New York State Human Rights Law, New York Executive Laws §§ 290 et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”).
2. MetLife is one of the largest insurance and financial services companies in the United States, selling individual insurance, annuity and investment products and group insurance and retirement and savings products and services. Individual insurance products and services are sold through the MetLife Financial Services division (“MLFS”) of MetLife's Individual Business unit. MetLife derives its revenues primarily from insurance premiums and fees for insurance products. MetLife is an insurance provider to millions of households, corporations, and other institutions in the United States.
3. The employees selling MetLife insurance and financial services products are called Financial Services Representatives (“Financial Service Reps”), also known as “Account Representatives.” The compensation for Financial Service Reps is based, in substantial part, on commissions made through the sale of MetLife insurance and financial products. Some Financial Service Reps also hold the title of Functional Manager, for which they receive additional compensation. MetLife presently employs over 5,500 Financial Service Reps within MLFS. They are located throughout the United States in approximately 150 business locations known as “agencies.”
4. Each agency is run by a Managing Director (also known as “Branch Manager,” “General Manager” “Agency Manager” or “First Line Manager”). Between the Managing Director and Financial Service Rep levels is a second-line management level position of Agency Director (also known as “Sales Manager,” “Associate General Manager,” “Associate Manager” or “Second Line Manager”). This position typically requires more experience and is better compensated than the Financial Service Rep position. The Managing Director of each local agency typically reports to a Regional Vice-President or a Zone Vice President. Regional Vice-Presidents report directly to one of five Zone Vice-Presidents, each of whom is responsible for a number of regions within their zone. There are five MetLife zones

in North America: Northeastern, North Atlantic, South Atlantic, Northern, and Western. The Zone Vice-Presidents report to a MetLife President, who reports to MetLife's CEO.
5. Women are under-represented in sales and sales management positions within MLFS as a result of MetLife's continuing policy and/or pattern or practice of gender-based discriminatory treatment of its female employees. This discriminatory treatment is manifested by such policies and/or patterns or practices as denying female employees desirable job assignments, promotional and career advancement support, including assignment of desirable and lucrative leads and accounts, and compensation comparable to similarly situated male employees. This illegal policy and/or pattern or practice of discrimination has been furthered by subjective decision-making by a predominately male managerial workforce and MetLife's failure to consistently monitor the actions of such male managers to ensure their compliance with fair employment laws and MetLife's own policies prohibiting gender discrimination and retaliation against those who oppose gender discrimination.
6. With respect to promotions, MetLife consistently discriminates against women in making promotions to Functional Manager, Agency Director, Managing Director, and Regional Vice-President positions. MetLife has constructed and maintains a gender-based glass ceiling by reserving for male employees the support and opportunities necessary to achieve managementlevel positions and to advance within MLFS, failing to post promotional opportunities, and making promotion decisions through a “tap-on-the-shoulder” system that unlawfully favors men. While approximately 20% of MetLife Financial Service Reps are women, women held less than 4% of the approximately 250 MetLife Managing Director positions as of the end of 2000. Moreover, the number of female Managing Directors has decreased from approximately 7% in 1998 to 4.3% in 1999, to 3.8% in 2000. Furthermore, all MLFS managers above the agency level are men.
7. MetLife also discriminates against its female employees in compensation, working conditions, privileges, and other terms and conditions of employment. MetLife frequently pays women less than men in comparable positions. MetLife also frequently refers fewer and less desirable leads and accounts and provides less technical, financial and/or administrative support to women than it does to similarly situated men.
8. This action seeks equitable and injunctive relief, including an end to these discriminatory practices, rightful place relief for all class members, and an award of back pay and front pay; compensatory and punitive damages; and reasonable costs and attorneys' fees.
JURISDICTION AND VENUE
9. The jurisdiction of this Court is invoked by Plaintiffs pursuant to 28 U.S.C. § 1331, which confers original jurisdiction upon this Court for actions arising under the laws of the United States, and pursuant to 28 U.S.C. §§ 1343(3) and 1343(4), which confer original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief under: (i) any Act of Congress providing for the protection of civil rights; (ii) the Declaratory Judgment Statute, 28 U.S.C. § 2201; and (iii) 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a. The Court's supplemental jurisdiction is invoked pursuant to 28 U.S.C. § 1367(a), which confers supplemental jurisdiction over all non-federal claims arising from a common nucleus of operative facts such that they form part of the same case or controversy under Article III of the United States Constitution.
10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), inasmuch as MetLife has offices, conducts business and can be found in the Southern District of New York, and much of the causes of action arose, and many of the acts and omissions complained of occurred, within the Southern District of New York.

PARTIES
Plaintiffs
11. Plaintiff and Class Representative Stella Mitchell (“Mitchell”) is a resident of Springfield Gardens, New York. She has been employed by MetLife since July 1987 in the positions of Financial Service Rep, Associate General Manager (also known as Sales Manager) and Managing Director. Despite her outstanding qualifications and demonstrated managerial abilities, Mitchell has been denied job assignments, promotions, compensation, and professional support offered to similarly situated men. Mitchell filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 15, 2000, an amended charge alleging discrimination and retaliation on October 25, 2000, and a second supplemental affidavit on December 7, 2000. Mitchell received a Notice of Right to Sue from the EEOC on May 10, 2001.
12. Plaintiff and Class Representative Hwa-Mei C. Gee (“Gee”) is a resident of Great Neck, New York. She has been employed by MetLife since May 1986, in the positions of Financial Service Rep, Associate General Manager, Market Development Manager, and Managing Director. Despite her outstanding qualifications and demonstrated managerial skills, Gee has been denied job assignments, promotions, compensation, and professional support offered to similarly situated men. Gee filed a charge of discrimination with the EEOC on January 17, 2001. Gee received a Notice of Right to Sue from the EEOC on or about May 7, 2001.
13. Plaintiff and Class Representative Durpatty Persaud (“Persaud”) is a resident of Mount Vernon, New York. She was employed by MetLife from April 1993 until February 6, 2001, as a Financial Service Rep. Despite her outstanding qualifications and recognized achievement, Persaud was denied job assignments, promotions, compensation, and professional support offered to similarly situated men. Persaud filed a charge of discrimination, charging discrimination and retaliation, with the EEOC on January 8, 2001, and updated such charge on or around March 9, 2001. Persaud received a Notice of Right to Sue from the EEOC on or about September 5, 2001.
14. Plaintiff and Class Representative Janet Ramsey (“Ramsey”) is a resident of Durham, North Carolina. She was employed by MetLife from June 1983 until April 6, 2001, in the positions of Financial Service Rep, Branch Manager (also known as Sales Manager), and Managing Director. Despite her outstanding qualifications and demonstrated managerial abilities, Ramsey has been denied job assignments, promotions, compensation, and professional support offered to similarly situated men. Ramsey filed a charge of discrimination with the EEOC on June 20, 2000. She filed a charge of retaliation on or about March 13, 2001. The EEOC issued Ramsey a Notice of Right to Sue on her charge of discrimination on February 26, 2001, which Ramsey received on February 27, 2001. This action was filed within ninety days from Ramsey's receipt of such Notice. Ramsey received a Notice of Right to Sue from the EEOC on her charge of retaliation on or about October 29, 2001.
15. Individual Plaintiff Barbara LaChance (“LaChance”) is a resident of Seminole, Florida. LaChance has been deterred from employment as a Financial Service Rep and has been denied promotional opportunities in MetLife's MLFS, while such promotions are routinely offered to men with no greater, or fewer, qualifications. LaChance filed a charge of discrimination with the EEOC on or about October 19, 2000. LaChance amended her charge on or about March 2, 2001. LaChance received a Notice of Right to Sue from the EEOC on or about May 10, 2001.
Defendant
16. Defendant Metropolitan Life Insurance Company, Inc., is incorporated under the laws of the State of New York. Its principal place of business is at One Madison Avenue, New York, New York. MetLife has multiple agency and office

locations throughout the United States, including in this District.
17. Defendant Met Life has actively engaged in unlawful gender discrimination and knowingly encouraged and tolerated such discrimination by its officials, and failed to make a good-faith attempt to comply with applicable laws with respect to the practices alleged herein.
CLASS ALLEGATIONS
18. Plaintiffs Mitchell, Gee, Persaud and Ramsey (“Representative Plaintiffs”) bring this class action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of a Class of all female past, present, and future employees who have been employed within MLFS or its successor group, if any, since August 27, 1999, or who will be so employed between the date of the filing of the Original Complaint and the date of judgment in this action (the “Class”).
19. Plaintiffs Mitchell, Gee, and Persaud bring this class action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female past, present, and future employees who have been employed within MLFS or its successor group, if any, in New York State since March 13, 1998, or who will be so employed between the date of the filing of the Original Complaint and the date of judgment in this action (the “New York State Subclass”).
20. Plaintiffs Mitchell, Gee, and Persaud also bring this class action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female past, present, and future employees who have been employed within the MLFS or its successor group, if any, in New York City since March 13, 1998, or who will be so employed between the date of the filing of the Original Complaint and the date of judgment in this action (the “New York City Subclass”).
21. Representative Plaintiffs are members of the Class and Subclasses they seek to represent.
22. The members of the Class and Subclasses are so numerous that joinder of all members is impracticable. The number of Class and Subclass members is indeterminate at the present time but is larger than can be addressed practicably by joinder.
23. The claims of the Representative Plaintiffs are typical of the claims of the Class and Subclasses they represent.
24. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class and Subclasses they represent. Plaintiffs have retained counsel competent and experienced in complex class actions and employment discrimination litigation.
25. Class certification is appropriate pursuant to Fed. R.Civ.P. 23(b)(2) because MetLife has acted and/or refused to act on grounds generally applicable to the Class and Subclasses, making appropriate declaratory and injunctive relief with respect to Representative Plaintiffs and the Class and Subclasses as a whole.
26. Class certification is also appropriate under Fed. R.Civ.P. 23(b)(3) because questions of law and fact common to the Class and Subclasses predominate over any questions affecting only individual members, including:
a. whether MetLife violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a

(“Title VII”), the New York State Human Rights Law, New York Executive Laws §§ 290, et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”) by its acts and omissions as alleged herein, including:
(1) maintaining a “glass ceiling” by denying promotional opportunities to female sales and sales management employees within MLFS in favor of less or equally qualified men;
(2) paying female sales and sales management employees within MLFS less compensation than similarly situated men; and
(3) denying female sales and sales management employees within MLFS job opportunities, leads and accounts, professional support and other terms, conditions and privileges of employment based on their gender.
b. whether MetLife engages in a policy and/or pattern or practice of genderbased discrimination against its female sales and sales management employees within MLFS;
c. whether MetLife engages in acts that constitute systemic disparate treatment with respect to the named Plaintiffs and the members of the Class and Subclasses as alleged herein;
d. whether MetLife's employment policies and practices have a disparate impact upon MLFS female sales and sales management employees;
e. whether MetLife's personnel policies and practices are unlawfully discriminatory and should be reformed or eliminated, and, if so, the proper way to accomplish that goal;
f. whether the members of the Class and Subclasses are entitled to further affirmative relief;
g. whether the members of the Class and Subclasses are entitled to back pay and benefits and, if so, a determination of the proper measure of the relief;
h. whether the members of the Class and Subclasses are entitled to front pay and benefits until such time as they can be placed in the same position they would now have occupied if there had never been any gender discrimination against them, and, if so, a determination of the proper measure of the relief;
i. whether the members of the Class and Subclasses are entitled to compensatory damages and, if so, a determination of the proper measure of the relief;
j. whether the members of the Class and Subclasses are entitled to punitive damages and, if so, a determination of the proper measure of the relief;
k. whether the violations of law against the Class and Subclasses were continuing or serial violations;

l. whether the members of the Class and Subclasses are entitled to prejudgment interest on their relief.
CLAIMS OF NAMED AND REPRESENTATIVE PLAINTIFFS
Stella Mitchell
27. Representative Plaintiff Stella Mitchell, a female, is currently employed by MetLife as a Financial Service Rep at the MetLife Garden City Financial Group Agency in Garden City, New York.
28. MetLife first hired Mitchell in 1987 as a Financial Service Rep in the Broadway Agency, located in New York, New York. In 1994, she became Managing Director of the Regency Agency, located in New York, New York. In 1996, she was demoted to Associate General Manager of the Riverside Agency, in New York, New York. In 1998, Mitchell once again assumed the position of Managing Director at the Madison Square Agency, in New York, New York. In October 2000, Mitchell was demoted to Financial Service Rep, the position she currently holds.
29. MetLife has continually denied Mitchell job assignments offered to similarly situated male employees. Despite her outstanding qualifications and demonstrated managerial abilities, Mitchell was demoted from her position as Managing Director each time her agency was merged with another agency, while male Managing Directors with no greater qualifications were allowed to retain their positions.
30. Between 1994 and 1996, Mitchell served as Managing Director of MetLife's Regency Agency. As Managing Director of this new agency, Mitchell successfully built up a staff and eventually supervised and managed nine Financial Service Reps and two support staff. MetLife failed to provide Mitchell with the financial support normally given to Managing Directors of new agencies, such as agency development funds, books of business, transferred Financial Service Reps, and clerical staff. Despite this lack of support, two Financial Service Reps working under Mitchell qualified for the Leaders Conference Qualifications (awarded to the top ten percent of all national producers), and Mitchell received the Regional Leader of Exceptional Achievement, Mid-eastern Territory, Superbowl Recruiting Campaign in January 1995, for outstanding recruiting efforts.
31. In early 1996, MetLife merged the Regency Agency with another of its agencies, known as the Riverside Agency. Although these two agencies were equal in size, Mitchell was stripped of her Managing Director position. Instead, the Manager Director position was given to a man with much less experience as a Managing Director, and Mitchell was demoted to Associate General Manager of the newly-merged agency.
32. In approximately May 1998, Mitchell was transferred to another agency within MetLife, the Madison Square Agency, where she held the position of Managing Director. Mitchell was again successful in this position, including recruiting five new Financial Service Reps and receiving an award for Outstanding Recruiting (the Behemoth Award for the National Monster Recruiting Campaign). During her tenure as Managing Director of the Madison Square Agency, Mitchell became increasingly aware of MetLife's lack of support for female managers. While male managers received large compensation packages, books of business, and Financial Service Reps to staff their agencies, female managers were routinely demoted and denied opportunities to continue building successful agencies.
33. On February 2, 2000, the Zone Vice-President, a man, informed Mitchell that MetLife was abolishing the Madison Square Agency and that she would again be demoted. By September, 2000, Mitchell had been stripped of her staff and Financial Service Reps. On approximately October 13, 2000, MetLife formally abolished the Madison Square Agency and demoted Mitchell to the position of Financial Service Rep, her original position at MetLife when she began in 1987.

Simultaneous with the decision to terminate her position as Managing Director, and despite her request for reinstatement to a comparable management position, MetLife hired two men to start a new agency in the same office space from which Mitchell's agency was abolished. MetLife hired both men for Managing Director positions although neither of them had any experience in the position at MetLife. Accordingly, Mitchell has been denied job assignments and promotional opportunities afforded similarly situated men.
34. Mitchell filed an EEOC charge of discrimination on or about September 15, 2000, and informed MetLife of the filing on or about September 18, 2000. On the same day that Mitchell imparted this information, MetLife discharged her staff, sent her Financial Service Reps to another agency, and otherwise took retaliatory steps that day and shortly after that left her without the technical or personnel means to do her work. Mitchell had no means to do her work between this time and October 13, 2000, the date of the formal abolition of her agency.
35. Defendant MetLife has discriminated against Mitchell on account of her gender as follows:
a. By continually denying her job assignments offered to similarly situated men, including denying her comparable Managing Director positions and demoting her from Managing Director to the less senior positions of Associate General Manager and Financial Service Rep when her agency was merged with another;
b. By failing and refusing to provide her with promotional opportunities on the same basis as men;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
e. By retaliating against her in response to her complaints of gender inequities; and
f. By promoting similarly situated men more rapidly than her.
36. On or about September 15, 2000, Mitchell filed a charge of discrimination with the EEOC, and, on or about October 25, 2000, she filed an EEOC charge of retaliation. Mitchell filed a Second Supplemental Affidavit in support of her EEOC charges on or about December 7, 2000. Attached to this First Amended Complaint as Exhibit 1, and incorporated by reference, is a copy of the Right to Sue Notice the EEOC issued to Mitchell on May 10, 2001.
Hwa-Mei C. Gee
37. Representative Plaintiff Hwa-Mei C. Gee, a female, is currently employed by MetLife in the position of Financial Service Rep and “Advance Market Manager,” or “Functional Manager,” at the MetLife Garden City Financial Group in Garden City, New York.
38. MetLife hired Gee in May 1986, to work as a Financial Service Rep in its Mitchell Garden Office in Lake Success, New York. In 1995, she was promoted to the position of Sales Manager. In 1998, she began working as the

Market/Development Manager at MetLife's Hudson Agency Group in Brooklyn, New York. (A position that, upon information and belief, was roughly comparable to that of Agency Director in status and compensation.) In June 1999, she became the Managing Director at the Flushing Financial Center Agency in Flushing, New York. In December 2000, she was demoted to Financial Service Rep, the position she held when she began with the company fifteen years earlier.
39. Gee has been denied professional and financial support MetLife has extended to similarly situated men. For example, in June 1999, Gee was recruited to become Managing Director of the Flushing Financial Center Agency, a new storefront agency. The Zone Manager, a male, promised that she would be financially supported in her business plan and compensated for two years. Although she was initially offered financial support to open the agency, this support was withdrawn without explanation approximately six months later, in early 2000. Her clerical support and technical capacity were also cut. In addition, Gee was never compensated for the recruits she hired. By contrast, male Managing Directors received compensation for growing their agencies (as much as $7,000 per new recruit), and received continued financial support.
40. On approximately December 29, 2000, MetLife closed Gee's agency and demoted her to Financial Service Rep and Functional Manager. Although MetLife failed to provide her with the same or a comparable position at another agency, the company did so for similarly situated men.
41. Gee has also been denied promotional opportunities afforded similarly situated men. For example, in 1991, although Gee was the only “manager-in-training” in her office, a younger, less-experienced man was hired for the position of Sales Manager over her.
42. In January 2002, Gee's Managing Director, a male, hired a less-qualified and lessexperienced man, for the position of Assistant Manager, even though Gee had several financial planning designations that the newly-hired Assistant Manager did not. Moreover, Gee had fifteen years experience with MetLife (including over five years within MetLife management).
43. Gee has also been retaliated against because of her complaints of gender discrimination and her filing of this lawsuit. In or about December 2001, a female member of the Asian Marketing Group in MetLife's home office recommended Gee for the position of Advisory Committee Member of the Chinese Market. Upon information and belief, a male Assistant Vice President refused to let Gee be nominated, stating to this female marketing group member that “Gee is suing the company.”
44. Defendant MetLife has discriminated against Gee on account of her gender and retaliated against her as follows:
a. By continually denying her job assignments offered similarly situated men, including denying her comparable Managing Director positions and demoting her from Managing Director to the lower positions of Financial Service Rep and Functional Manager during agency closures or mergers;
b. By failing and refusing to provide her with promotional opportunities on the same basis as males;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By failing to provide her with the benefits and professional support to qualify her for increased wages and

compensation on the same basis as such benefits are provided to men;
e. By promoting similarly situated men more rapidly than her; and
f. By retaliating against her for her complaints of gender discrimination and the filing of this lawsuit.
45. Gee filed a charge of discrimination with the EEOC on or about January 17, 2000. Attached to the Original Complaint as Exhibit B and incorporated by reference, is a copy of that charge. Attached to this First Amended Complaint as Exhibit 2, and incorporated by reference, is a copy of the Notice of Right to Sue the EEOC issued to Gee on May 7, 2001.
Durpatty Persaud
46. Representative Plaintiff Durpatty Persaud, a female, was employed by MetLife as a Financial Service Rep since she began her employment with MetLife in the United Agency, in Queens, New York, in April 1993 until February 8, 2001.
47. In late 1995, Persaud was transferred to MetLife's Long Island Agency, in Lake Success, New York. In April of 2000, Persaud requested a transfer to MetLife's Lake Success Agency, also in Lake Success, New York, because of the gender discrimination she was experiencing, as described herein. In response to her complaints, MetLife retaliated against her by terminating her employment, effective on or about February 8, 2001.
48. During the time she worked at MetLife, Persaud was denied promotional opportunities offered to similarly situated men. In 1999, Persaud acquired the designation of Certified Financial Planner, a distinguished qualification that no one else in the Long Island Agency held. Persaud was a top producer in her agency, earning a spot at the Leader's Conference and the Million Dollar Round Table, for outstanding sales production. Yet, in approximately 1999, MetLife promoted four males to Functional Manager positions in the Long Island Agency, where Persaud worked. All four of these men had lower sales production and substantially less experience than Persaud. Two of the men were promoted after being with MetLife for less than one year, and the other two had been with the Company for only three to five years. In contrast to Persaud, none of these men had achieved the Leader's Conference or the Million Dollar Round Table production levels in 1999. Although Persaud was asked to perform the duties of a Functional Manager-level employee, she was never given the title despite requesting it. Persaud protested to her supervisor, a man, who ignored her complaints.
49. Persaud was also denied business support that was provided to male Financial Service Reps. For example, although male Financial Service Reps who earned production awards, such as the Leader's Conference and Million Dollar Round Table, were given private offices, Persaud was denied an office, which impeded her ability to service clients effectively.
50. Because of these discriminatory actions, Persaud requested a transfer and was transferred to the Lake Success Agency in Lake Success, New York on or around May 1, 2000, where she remained an Account Rep until leaving the Company. On May 12, 2000, Persaud met with the Zone Vice-President, a man, regarding the discriminatory actions that were taken against her. Persaud stated at this meeting that she had transferred because she was being discriminated against because of her gender. However, MetLife did not respond to her complaints. Instead, MetLife retaliated against her by denying her access to her client information, thereby impeding her ability to service her clients and to earn compensation.
51. MetLife then retaliated against Persaud a second time by terminating her employment. On October 10, 2000, Persaud went on disability leave for a degenerative disc condition in her back. On January 4, 2001, when she called in for her

mail, Persaud was told that she was being terminated and that such termination would be effective the day she returned from disability leave. Persaud became eligible to work on February 6, 2001, the last date for which she was paid. Persaud's effective date of termination was on or about February 8, 2001.
52. Defendant MetLife has discriminated against Persaud on account of her gender as follows:
a. By failing and refusing to provide her with promotional opportunities on the same basis as men;
b. By failing to provide her with the benefits and professional support necessary to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By promoting similarly situated men more rapidly than her;
e. By discouraging her from pursuing promotional opportunities; and
f. By terminating her employment in retaliation for her complaints of gender inequities.
53. On or about January 8, 2001, Persaud filed a charge of discrimination with the EEOC. Persaud amended her charge on or about March 9, 2001. Persaud's amended charge is attached to the Original Complaint as Exhibit D, and is incorporated by reference. Persaud received a Notice of Right to Sue from EEOC on September 5, 2001.
Janet Ramsey
54. Representative Plaintiff Janet Ramsey, a female, was employed by MetLife for more nearly eighteen years.
55. Ramsey began her employment with MetLife in 1983, as a Financial Service Rep at the Durham Agency in Durham, North Carolina. In 1986, Ramsey was promoted to Branch Manager, and in 1995, she was made Managing Director of the Triangle Agency, which serviced the Northeast Region of North Carolina. Ramsey was demoted to Agency Director in January 2000. After complaining about discriminatory conduct and making numerous requests for reinstatement to a Managing Director position, she was demoted again in January, 2001, to Financial Planner, a position comparable to a Financial Service Rep in compensation and status, and constructively discharged effective April 6, 2001.
56. Ramsey has been denied promotional opportunities offered to similarly situated men. In 1996, Ramsey sought the position of Regional Manager, a position which was open in Pennsylvania. However, she did not receive the job because, according to her Regional Manager, a male, the open region was a “rough position” and MetLife management did not think she could handle it “as a woman.” The position ultimately went to a man who had not achieved the same level of success within the company as Ramsey. As both a Financial Service Rep and Managing Director, Ramsey achieved many production awards, including Leader's Conference and Management Leader's Conference for outstanding sales and sales management. Ramsey has excelled at MetLife and never received any negative performance reviews.

57. Despite Ramsey's achievements, on January 10, 2000, after 14 years as Managing Director or Branch Manager of her agency, she was demoted to Agency Director, a second-level management position, when her agency was merged with another. By contrast, the man who was hired as Managing Director of this new agency, effectively replacing Ramsey, had no experience with, and had not achieved any recognition at, MetLife. In addition, men with either comparable or inferior qualifications and less seniority than Ramsey retained their Managing Director positions.
58. In January 2001, Ramsey was demoted again, to Financial Planner, in retaliation for her complaints regarding gender inequity and discrimination. Based on the foregoing, Ramsey was constructively discharged from her employment with MetLife effective on April 6, 2001.
59. Defendant MetLife has discriminated against Ramsey on account of her gender as follows:
a. By continually denying her job assignments offered to similarly situated men, including denying her comparable Managing Director positions and demoting her from Managing Director when her agency was merged with another;
b. By failing and refusing to provide her with promotional opportunities on the same basis as men;
c. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
d. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities; and
e. By promoting similarly situated men more rapidly than her; and
f. By retaliating against and constructively discharging her for her complaints regarding gender discrimination.
60. On or about June 20, 2000, Ramsey filed a charge of discrimination with the EEOC. Ramsey amended that charge on January 24, 2001. Ramsey subsequently filed a charge of retaliation on or about March 13, 2001. Attached to the Original Complaint as Exhibit E, and incorporated by reference, are copies of those charges. Ramsey received a Notice of Right to Sue from the EEOC on or about February 27, 2001. The Original Complaint was filed within 90 days of February 27, 2001. Ramsey received a Notice of Right to Sue from the EEOC for her charge of retaliation on or about October 29, 2001. Attached to this First Amended Complaint as Exhibit 4, and incorporated by reference, are copies of Notices of Right to Sue the EEOC issued to Ramsey on February 26, 2001 and October 26, 2001.
Barbara LaChance
61. Individual Plaintiff Barbara LaChance, a female, has been employed by MetLife for more than thirty years. She currently holds the position of Senior Compensation Associate in the MetLife Administrative Office in Tampa, Florida.
62. LaChance began her employment with MetLife in or about 1969, as a support staff clerk within the MLFS. In or about late 1975, she became a Financial Service Rep; however, in early 1977, she was steered back into the less prestigious, administrative position of senior clerk. In 1979, she was promoted to Regional Analyst and in 1981, to

Territorial Senior Staff Analyst. In 1994, she sought the position of Territorial Administrator with the Southern Territorial Office in Tampa, Florida, but was instead offered the less senior position of Regional Administrator.
63. LaChance held the position of Regional Administrator until she was terminated in May of 1999. At that time, LaChance went on disability leave as a direct result of the anxiety she experienced from the termination. Despite her supervisor's assurances that she was being terminated due to “downsizing,” in October of 1999, LaChance's position was resurrected and filled by a younger, less-qualified man. LaChance returned to MetLife in September of 1999, in a lesser capacity, as a Senior Compensation Associate, which is her current position.
64. LaChance has been, and continues to be, deterred from advancing to higher status and better compensated positions as compared to similarly situated men. In or about 1976, LaChance worked as a Financial Service Rep. However, after eighteen months as a Financial Service Rep, LaChance was steered into the position of senior clerk by her supervisor, a man, in order to service a new Financial Service Rep, also a man.
65. On or about February 4, 1994, LaChance sought the position of Territorial Administrator in her Southern Territorial Office in Tampa, Florida. LaChance was qualified for and already performing duties required of the Territorial Administrator. Despite her capacity to do the job, MetLife told her “she wasn't the man for the job”, and transferred a man with less relevant experience from another, regional office to fill the post. MetLife then offered her the less senior and less compensated position of Regional Administrator in the Regional Office in Charlotte, North Carolina.
66. Throughout 2000, LaChance had approximately 15 conversations with an employee in MetLife management who told her that MetLife fails to hire women as Financial Service Reps at the same rate as similarly situated men; has a practice of not promoting women to management positions; and has committed other gender-based acts of discrimination. LaChance spoke in particular to the National Director of Women's Recruiting, a new position that was eliminated in 2000. The National Director of Women's Recruiting, a woman, informed LaChance that she had discovered that MetLife hires one out or every thirteen male applicants who pass the basic aptitude test to become Financial Service Reps, but only one out of every twenty-three females who pass this test. Being aware of MetLife's systematic failure to hire qualified women for Financial Service Rep positions, LaChance was deterred from applying for a Financial Service Rep position, despite her interest in and qualifications for such a position.
67. Defendant MetLife has discriminated against LaChance on account of her gender as follows:
a. By steering her into administrative rather than sales positions because of her gender;
b. By deterring her from applying for or taking a sales position because of her gender; and
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotions to more highlycompensated positions for which she was qualified.
68. On or about October 19, 2000, LaChance filed a charge of discrimination with the EEOC. LaChance amended her charge on or about March 5, 2001. That charge is attached to the Original Complaint as Exhibit C, and incorporated by reference. Attached to this First Amended Complaint as Exhibit 3, and incorporated by reference, is a copy of the Notice of Right to Sue the EEOC issued to LaChance on May 10, 2001.
GENERAL PATTERNS OF DISCRIMINATION

69. The denials and abridgments of employment opportunities suffered by Representative Plaintiffs are not isolated examples of MetLife's discriminatory employment practices. Rather, they are illustrative of the pervasive pattern or practice of gender discrimination in the terms and conditions of employment that has continually existed at MetLife.
70. The under-representation of women in MLFS sales and sales management positions is not random or coincidental, but results from a policy and/or pattern or practice of discrimination in promotional and career advancement opportunities, job and work assignments, job assistance and support, assignment of leads and accounts, compensation, and other terms, conditions and privileges of employment. MetLife has engaged in a serious policy and/or pattern or practice of under-utilizing women in entry-level positions. In fact, MetLife's own internal study, conducted in 2000, found that the company hired one out of every thirteen qualified men, but only one out of every twenty-three qualified women. After disproportionately excluding qualified women from entry-level positions, the company has then failed to promote women to managerial positions. Moreover, the few women who do receive management positions are held to different standards than men, are denied the same level of support from management to succeed in their positions as men, and are disproportionately demoted without cause when the company closes or merges their agencies. In addition, when women bring their concerns about gender discrimination and inequities to the company's attention, they are subject to retaliation.
71. MetLife has pursued discriminatory policies and practices on a continuing basis that have had the effect of denying equal job opportunities to qualified women. Such discriminatory policies and practices include, without limitation:
a. Relying upon subjective, discriminatory criteria utilized by a nearly allmale managerial workforce in making job selections and promotional decisions;
b. Using of pretextual and shifting “qualifications” and requirements for job selections and opportunities which are different for males than for females, and which favor males over females;
c. Maintaining sex-segregation in administrative, sales and management positions;
d. Failing and refusing to consider females for desirable job assignments or promotions on the same basis as males are considered;
e. Failing and refusing to provide females the necessary work support and assistance, including but not limited to assignment of leads and accounts, to enable them to succeed on the same basis as males are provided them;
f. Failing and refusing to promote females on the same basis as males are promoted;
g. Establishing and maintaining discriminatory and subjective requirements for job and work assignments, and promotion and career advancement opportunities which have the effect of excluding qualified women and which have not been shown to have any significant relationship to job performance or to be necessary to the proper and efficient conduct of MetLife's business;
h. Compensating women less than similarly situated males; and

i. Failing and refusing to take reasonable and adequate steps to eliminate the effects of MetLife's past discriminatory practices.
72. As a result of MetLife's continued policies and/or pattern or practice of intentional discrimination and pursuit of policies and practices that have an adverse impact upon women, women are hired in disproportionately-lower numbers at MetLife, and of those who are hired, only a small fraction have been allowed to advance to higher positions, usually for only a temporary period.
FIRST CLAIM FOR RELIEF
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq., as amended, 42 U.S.C. § 1981a) (Brought on behalf of all Representative Plaintiffs and the Class and Plaintiff Barbara LaChance Individually)
73. Representative Plaintiffs incorporate the foregoing paragraphs.
74. This claim is brought on behalf of all Representative Plaintiffs and the Class they represent and Plaintiff Barbara LaChance, individually.
75. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a.
76. Plaintiffs have received Notices of Right to Sue from the EEOC. Plaintiffs, on behalf of themselves and all others similarly situated, have therefore exhausted their administrative remedies and fulfilled all conditions precedent to suit.
77. Plaintiffs request relief as set forth hereinafter.
SECOND CLAIM FOR RELIEF
(New York Executive Law § 296) (Brought on behalf of Plaintiffs Stella Mitchell, Hwa-Mei Gee, and Durpatty Persaud, and all past, present and future female employees who have worked or will work at MetLife facilities in
New York state only)
78. Plaintiffs incorporate the foregoing paragraphs.
79. This claim is brought on behalf of Plaintiffs Mitchell, Gee, and Persaud and the New York State Subclass they represent.
80. The foregoing conduct violates the New York Executive Law § 296.
81. Plaintiffs have not filed a complaint with the State Division on Human Rights and elect to pursue their right to sue in court.

82. Plaintiffs request relief as set forth hereinafter.
THIRD CLAIM FOR RELIEF
(Title 8 of the Administrative Code of the City of New York) (Brought on behalf of Plaintiffs Stella Mitchell, Hwa-Mei Gee, and Durpatty Persaud and all past, present and future female employees who have worked or will
work at MetLife facilities in the City of New York only)
83. Plaintiffs incorporate the foregoing paragraphs.
84. This claim is brought on behalf of Plaintiffs Mitchell, Gee and Persaud, and the New York City Subclass they represent.
85. The foregoing conduct violates Title 8 of the Administrative Code of the City of New York.
86. Plaintiffs will satisfy notice requirements by serving this First Amended Complaint on the Corporation Counsel of the City of New York and the New York City Commission on Human Rights.
87. Plaintiffs request relief as set forth hereinafter.
RELIEF ALLEGATIONS
88. Representative Plaintiffs and the Class and Subclasses they represent and Individual Plaintiff La Chance have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Representative Plaintiffs and the Class and Subclasses they represent and Individual Plaintiff, are now suffering and will continue to suffer irreparable injury from MetLife's discriminatory acts and omissions.
89. The actions on the part of MetLife have caused and continue to cause Representative Plaintiffs and all Class and Subclass members and Individual Plaintiff substantial losses in earnings, promotional opportunities, and other employment benefits, and have caused Representative Plaintiffs and all Class and Subclass members, and Individual Plaintiff to suffer and continue to suffer humiliation, embarrassment, and anguish, all to their damage in an amount to be established according to proof.
90. MetLife committed the acts herein alleged with malice and reckless indifference and disregard to the Plaintiffs' and Class and Subclass members' and Individual Plaintiff's federal, state and municipal rights. Representative Plaintiffs and Class and Subclass members and Individual Plaintiff are thus entitled to recover punitive damages in an amount to be determined according to proof.
PRAYER FOR RELIEF

WHEREFORE, Representative and Individual Plaintiffs and the Class and Subclasses pray for relief as follows:
1. Certification of the case as a class action on behalf of the proposed Class and Subclasses and designation of Representative Plaintiffs as representatives of the Class and appropriate Subclasses, and their counsel of record as Class Counsel;
2. Preliminary and permanent injunctions against MetLife and its partners, officers, owners, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies, customs, and usages set forth herein;
3. A judgment declaring that the practices complained of herein are unlawful and violative of 42 U.S.C. §§ 2000e, et seq., Title VII of the Civil Rights Act of 1964; New York Executive Law § 296; and Title 8 of the Administrative Code of the City of New York;
4. An order assigning or restoring Class and Subclass members to those jobs they would now be occupying but for MetLife's discriminatory practices, or in lieu of reinstatement or in the event that Class and Subclass members cannot immediately be placed in their rightful positions, an order for front pay and benefits;
5. An adjustment of the wage rates, benefits, and seniority rights for Representative and Individual Plaintiffs and the Class and Subclasses to that level which Plaintiffs and the Class and Subclasses would be enjoying but for MetLife's discriminatory practices;
6. All damages which individual Representative and Individual Plaintiffs and the Class and Subclasses have sustained as a result of MetLife's conduct, including back pay, front pay, general and special damages for lost compensation and job benefits they would have received but for the discriminatory practices of MetLife, and for emotional distress, humiliation, embarrassment, and anguish, in an amount to be determined according to proof;
7. Exemplary and punitive damages in an amount commensurate with MetLife's ability to pay and sufficient to deter future conduct;
8. Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law; and
9. Pre-judgment and post-judgment interest, as provided by law.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial for all individual, Class and Subclass claims so triable.
Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually., Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STELLA MITCHELL, HWA-MEl C. GEE, DURPATTY PERSAUD, and JANET RAMSEY, on behalfofthemselves and all
others similarly situated, and BARBARA
LaCHANCE, individually
Plaintiffs,

CASE NO. oI-CIV-2 11 2 (WHP)
CONSENT DECREE

v.

METROPOLITAN LIFE INSURANCE COMPANY, INC., dba METLIFE,

Defendant.

EXHIBIT A

TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 1 II. DEFINITIONS .................................................................................................................... 1 III. LITIGATION BACKGROUND .............................,.......................................................... 4 IV. JURISDICTION ................................................................................................................. 6 V, EFFECTIVE DATES AND DURATION OF CONSENT DECREE ................................ 6 VI. SETTLEMENT CLASS ..................................................................................................... 7 VII. RELEASE OF CLAIMS ..................................................................................................... 9 VIII. MISCELLANEOUS PROVISIONS .............................................................................:... II IX. INJUNCTIVE RELIEF PROVISIONS ............................................................................ 20 X. INJUNTIVE RELIEF EXPENDITURES ......................................................................... 42 XI. REPORTING AND RECORDKEEPING ........................................................................ 42 XII. CLASS AND INDIVIDUAL PLAINTIFF MONETARY RELIEF ................................ 43 XIII. ATTORNEYS' FEES, COSTS AND EXPENSES ..............................................,........... 65 XIV. FINAL APPROVAL, AND FINAL JUDGMENT AND ORDER
APPROVING SETTLEMENT......................................................................................... 66 XV. MUTUAL NON-DISPARAGEMENT AND PUBLICITy ............................................. 68 XVI. REFERENCE INQUIRIES ............................................................................................... 70 XVII. CONFIDENTIALITY/RETURN OF DOCUMENTS ..................................................... 70 XVIII. NOTIFICATION .............................................................................................................. 72

I. INTRODUCTION A. This Consent Decree ("Decree") sets forth the full and final terms by which the
Class Representatives, on behalf of themselves and the other Settlement Class members, as defined below in Section VI(B), as well as Named Plaintiff Barbara LaChance and Defendant, Metropolitan Life Insurance Company, Inc., d/b/a MetLife (hereinafter "MetLife") have settled and resolved all claims that were or could have been raised in the Initial Complaint, First Amended Complaint, or Second Amended Complaint in the Mitchell Action.
B. The Class Counsel and MetLife have entered into this Decree voluntarily, and have submitted this Decree to the United States District Court for the Southem District of New York for approval.
II. DEFINITIONS The following terms when used in this Decree shall have the following meanings:
A. "Agency Management Position" or "Sales Management Position" or "Benchmark Position" means Managing Director (First-line manager), Agency Director (Second-line manager), and Functional Manager, or equivalent positions in the event these positions are reorganized, changed, modified, or eliminated during the Term of this Decree.
B. "Agency Managers" means individuals holding "Agency Management Positions."
C. "Approval Date" means the date upon which the Court signs the Decree after determining that it is fair, adequate and reasonable.

D. "Best Efforts" means reasonable steps consistent with prudent business practices to realize or comply with the specific objective to which the Best Efforts are directed. Where no time frame is otherwise specified in this Decree, Best Efforts shall be utilized within a reasonable time period. Best Efforts shall not require the taking of steps that would result in unreasonable burden or expense to MLFS or MetLife.

E. "Claims Administrator" means Rosenthal & Company LLC and any of its employees.

F. "Class Counsel" means the Law Offices of Outten & Golden of New York, New York and Goldstein, Demchak, Baller, Borgen & Dardarian of Oakland, California.

G. "Class Representatives" means Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, who have been designated as class representatives for the Settlement Class members in this Decree.

H. York.

"Court" means the United States District Court for the Southern District of New

1. "Effective Date" is the date following Final Approval of this Decree on which the later of the following has occurred: (1) the time for appeal from Final Approval of this Decree has run without an appeal being filed; (2) if a timely appeal is filed, the final resolution ofthat appeal (including any requests for rehearing and/or petitions for a writ of certiorari), andlor the expiration of any time period for any further appeal, resulting in final judicial approval of the Decree; or (3) the date on which.no further appeals, requests for rehearing andlor petitions for a writ of certiorari can be filed in connection with the Decree.

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J. "Final Approval" means the entry of this Decree on the Approval Date by the Court, and entry by the Court of the Final Judgment and Order.

K. "Final Approval Hearing" means the fairness hearing held by the Court at which any challenges to this Decree are heard.

L. "First Amended Complaint" means the amended complaint filed in the Mitchell Action on June 13, 2002.

M. "Gender Discrimination" or "Discriminating on the Basis of Gender" means unlawful discrimination against employees on the basis of their sex or gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.

N. 13,2001.

"Initial Complaint" means the complaint filed in the Mitchell Action on March

O. "Liability Period" means the period between August 27, 1999 and the Preliminary Approval Date.

P. "Mitchell Action" means the action captioned Stella Mitchell, et al. v. Metropolitan Life Insurance Company, Inc. dba MetLife, 01 Civ. 2112 (WHP), brought in the United States District Court for the Southern District of New York.

Q. "MLFS" means the MetLife Financial Services Division of MetLife, or the equivalent organization or organizational unit in the event this Division is reorganized, changed, modified, or eliminated during the Term of this Decree.

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R. "Named Plaintiffs" means the Class Representatives and Barbara LaChance in their capacity as the party plaintiffs in the Mitchell Action.
S. "Preliminary Approval Date" means the date upon which the Court enters an Order preliminarily approving this Decree; conditionally certifying the Settlement Class; and establishing the procedures for class notice and Final Approval ofthis Decree.
T. "Sales Position" means a Financial Services Representative ("FSR") position within MLFS.
U. "Second Amended Complaint" means the complaint filed in the Mitchell Action on April 2, 2003.
V. "Settlement Class" is defined in Section VI(B).
W. "Term of the Decree" is the period from the Effective Date until the expiration of the Decree pursuant to Section V(B) on December 31, 2006.
III. LITIGATION BACKGROUND On March 13,2001, five female current or fom1er employees of MetLife, Stella Mitchell,
Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, filed a complaint (the "Initial Complaint") on behalfof themselves as individuals and on behalf of other similarly situated female employees ofMLFS pursuant to the Civil Rights Act of 1964,42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a ("Title VII"), the New York State Human Rights Law, New York Executive Law §§ 290 et seq. ("NYSHRL"), and Title 8 of the Administrative Code of the City of New York ("Title 8"). The Initial Complaint, captioned· Mitchell, et al. v. Metropolitan Life Insurance Co., Inc., dba MetLife, Case No. 01 Civ. 2112
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(WHP), filed in the United States District Court for the Southern District of New York, raised various allegations of employment discrimination on the basis of gender. Plaintiffs filed a First Amended Complaint on June 13, 2002, and a Second Amended Complaint on April 2, 2003.
MetLife categorically denies that it has engaged in any act, policy, pattern or practice of gender discrimination against Plaintiffs or any other female current or formerMLFS employees, and maintains that its female MLFS employees are accorded the same terms and conditions of employment as similarly situated male employees. MetLife further contends that it is in compliance with all applicable federal, state and local fair employment laws and regulations.
On March 20, 2002, the Court, upon MetLife's motion, disqualified the law firm of Lieff, Cabraser, Heimann & Bernstein from continuing to represent the Plaintiffs and the putative class. In late April 2002, the law finn of Goldstein, Demchak, Baller, Borgen & Dardarian appeared on behalf of Plaintiffs and the putative class as co-counsel with Plaintiffs' original counsel, Outten & Golden.
Commencing in 2002 and continuing through early 2003, the parties to the Mitchell Action engaged in extensive discovery. Plaintiffs deposed twenty-four (24) MetLife managers and other personnel. MetLife deposed all of the Named Plaintiffs and thirty (30) current or former MetLife employees who had submitted declarations in support of certification of the class. Additionally, the parties to the Mitchell Action deposed each other's statistical and sociological experts. MetLife produced approximately 130,000 pages of documents in response to the Plaintiffs' discovery requests. MetLife also produced voluminous computerized work history, demographic, and earnings data regarding the MLFS workforce.
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Plaintiffs filed amotion for class certification on February 28,2003. Plaintiffs supported that motion with declarations of putative class members, excerpts from the deposition testimony of MetLife managers and other personnel, documents obtained from MetLife during discovery, the reports of Plaintiffs' statistical and sociological experts, and other evidence. MetLife filed its opposition to Plaintiffs' class'certification motion and supporting documentation and reports on April 30, 2003.
MetLife and Class Counsel agree that the formal discovery conducted in this action, the depositions taken by both sides, and the documents, statistical and other information produced or exchanged during the litigation and settlement discussions, are sufficient to assess the merits of the respective Mitchell Action parties' positions and to compromise the issues on a fair and reasonable basis. This Decree shall constitute a resolution of all claims that were or could have been asserted in Plaintiffs' Initial Complaint, First Amended Complaint and Second Amended Complaint. As indicated by the signature of counsel at the end of this document, Class Counsel and MetLife have consented to the entry of this Decree.
IV. JURISDICTION
This Court has jurisdiction over the Mitchell Action parties and the subject matter of this action. Venue is proper in this District. This Court shall retain jurisdiction of this action during the Term of the Decree solely for the purpose of entering any orders authorized hereunder.
V. EFFECTIVE DATES AND DURATION OF CONSENT DECREE A. This Decree shall become effective immediately upon the Effective Date, as
defined in Section lI(I).
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B. The provisions of this Decree and the agreements contained herein shall remain in effect during the Term of the Decree. Unless earlier terminated pursuant to Section XII(D)(3), this Decree will automatically expire at the conclusion of the Term of the Decree without further Order ofthe Court.
VI. SETTLEMENT CLASS A. The Settlement Class may be certified pursuant to Federal Rule of Civil Procedure
23(b)(2) for purposes of the monetary and injunctive relief provided in this Decree.
B. The Settlement Class consists of all women who have been employed in a Sales Position or Sales Management Position in MLFS at any time on or after August 27, 1999 through the Preliminary Approval Date.
C. The Settlement Class closes on the Preliminary Approval Date. All women hired or appointed by MetLife into a Sales Position or Sales Management Position after the Preliminary Approval Date may avail themselves of the equitable relief provided in this Decree, but are not entitled'to any portion of the monetary relief provided for herein.
D, Settlement Class members who have filed a timely request to opt out of the monetary relief provisions of the Decree in accordance with the provisions of Section XII(D)(J)(c) shall not be held to release their claims, if any, for individual monetary relief. All Settlement Class members who have not timely opted out, shall be bound by the provisions of the Decree, including the release of claims as provided for in Section VII(A)(2).
E. Settlement Class members whose claims against MetLife for alleged Gender Discrimination were adjudicated or settled and who, following such adjudication or settlement,
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were not employed by MLFS in a Sales Position or Sales Management Position, are ineligible to receive any monetary relief under this Decree. Annexed as Exhibit A is a list of Settlement Class members covered by this provision. All other Settlement Class members shall be referred to as "eligible Settlement Class members."
F. If this Decree is not approved by the Court, fails to become effective in accordance with its terms, or if, following approval by the Court, such approval is reversed or modified:
1. The Mitchell Action parties shall be restored to their respective positions in this action as of June 1,2003 and this Decree shall have no force or effect;
2. This Decree shall not be admissible in any judicial, administrative or arbitral proceeding for any purpose or with respect to any issue, substantive or procedural, including, but not limited to, any issue concerning the class certification requirements of Fed. R. Civ. P. 23 or the satisfaction thereof;
3. None of the Mitchell Action parties will be deemed to have waived any claims, objections, defenses or arguments with respect to the issue of class certification; and
4. The conditional and preliminary certification of the Settlement Class shall automatically become null and void and the fact of such preliminary certification shall not be admissible in any judicial, administrative or arbitral proceeding for any purpose or with respect to any issue; substantive or procedural, including, but not limited to, any issue concerning the class certification requirements of Fed. R. Civ. P. 23 or the satisfaction thereof.
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VII. RELEASE OF CLAIMS A. Release 1. Named Plaintiffs a. Following the Effective Date of the Decree and before payment to
them of the sums provided for in Section XII(A)(I)(c) of this Decree, each Named Plaintiff shall execute a general release in the fonn annexed hereto as Exhibit B.
b. In the event that any Class Representative fails or refuses to execute a general release as provided for in this Section, such Class Representative (i) shall not be entitled to receive any payment under this Decree pursuant to Section XII(F); and (ii) shall be deemed to have released all claims as a Settlement Class member in accordance with Section VII(A)(2) of the Decree.
2. Settlement Class Members
a. In consideration of the provisions of this Decree, each member of the Settlement Class releases and waives all claims that were or could have been asserted in the Initial Complaint, the First Amended Complaint, and the Second Amended Complaint and all claims concerning acts, omissions, nondisclosures, or oral or written statements or representations in connection with or directly or indirectly relating to the Decree or the settlement of the Mitchell Action against MetLife and any of its past, present or future parent entities, partners, subsidiaries, affiliates, divisions, employee benefit and/or pension plans or funds, successors and assigns and any of its or their past, present or future directors, officers,
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attorneys, agents, trustees, administrators, employees, or assigns (whether acting as agents for MetLife or in their individual capacities).
b. Each member of the Settlement Class who is a resident of California expressly waives the protection of Section 1542 ofthe Civil Code ofthe State of California, which states that:
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. Each member of the Settlement Class who is a resident of any other state or jurisdiction with a similar state, local or other legal provision expressly waives the protection of such provision.
c. With respect to the assertion of claims against MetLife that are not released under this Decree, there has been no tolling of any relevant statute of limitations by virtue of the filing or pendency of the Mitchell Action or any charges filed by the Named Plaintiffs' with the Equal Employment Opportunity Commission ("EEOC"), or any other state or local agency.
B. No Bar to Future Claims Nothing in this Decree shall be construed to bar any claims by members of the Settlement Class or the Named Plaintiffs that may arise after the Effective Date of this Decree.
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VIII. MISCELLANEOUS PROVISIONS A. Calculation of Time
In calculating any period oftilne prescribed or allowed by the Decree, unless otherwise stated, such computation or calculation shall be made in the manner provided by Federal Rule of Civil Procedure 6(a), as it may be modified from time to time.
B. No Admission of Liability
I. Neither this Decree nor any of its terms constitute any admission on the part of MetLife of any previous or present violation of law or any liability whatsoever to the Named Plaintiffs or the Settlement Class. This Decree does not and will not be deemed to constitute an admission by any party to the Mitchell Action as to the validity or accuracy of any of the allegations, assertions, or claims made in the Mitchell Action. No findings of any kind have been made or issued by the Court conceming the merit or lack of merit of any of the allegations made by Mitchell Action Plaintiffs and this Decree does not constitute any such finding.
2. MetLife has maintained throughout this litigation, and continues to maintain, that it is and has been in full and complete compliance with the provisions of Title VII, the New York State Executive Law, the New York City Administrative Code, the common law of any jurisdiction, and all other federal, state, or local laws, statutes, ordinances, regulations, rules or executive orders prohibiting discrimination in employment. MetLife has agreed to settle the claims asserted by the Named Plaintiffs on behalf of themselves and the Settlement Class solely in order to avoid the expense, burdens, and distractions that would be involved in continued litigation.
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C. Modification of the Consent Decree

I. Class Counsel and MetLife will have the sole and exclusive right to seek modification ofthe Decree from the Court. MetLife and Class Counsel shall engage in the "Meet and Confer" Process set forth in Section VIII(H)(I) concerning any desired modifications to the Decree before moving the Court for modification. Any modifications sought by either MetLife or Class Counsel, including but not limited to modifications shortening the Tenn of the Decree, shall not be subject to the Special Master review procedures set forth in Section VIIl(H)(3).

2. Upon completion of the "Meet and Confer" Process set forth in Section VIII(H)(l), Class Counsel and/or MetLife may move the Court to modify the teons of the Decree if:

a.

There is a change in the operations of MetLife covered by this

Decree that materially impairs the purposes of the Decree or MetLife's ability to comply with

one or more provisions of the Decree;

b. Changed circumstances relating to MetLife's business operations or the competitive environment will create, or can reasonably be expected to create, an additional and unreasonable burden on MetLife with regard to continued compliance with any provision of the Decree.

3. On application for a modification ofthe Decree, the movant shall bear the burden of proving by clear and convincing evidence that circumstances make such modification necessary, after an opportunity for the other party to be heard on the motion.

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4. Class Counsel and MetLife shall bear their own attorney's fees and costs in seeking or opposing modification of the Decree.
D. Duty To Support and Defend the Decree 1. The Class Representatives, Class Counsel and MetLife each agree to use
their Best Efforts to defend the Decree from any legal challenge, whether by appeal or collateral attack.
E. Effecti ve Date
I. The Effective Date is defined in Section H(r).
2. Upon the occurrence of the events that determine the Effective Date, as set forth in Section H(r), Class Counsel and MetLife shall agree in writing upon a specific date that wiIl thereafter be deemed the Effective Date for the purposes of this Decree.
F. Deadlines
Class Counsel and MetLife recognize that from time to time unforeseen events, including, but not limited to, exigent business circumstances and personnel issues, may cause delays in complying with the provisions of this Decree, no matter how well intentioned and diligent they may be. Accordingly, with regard to the provisions of this Decree that require certain acts to be taken within specified time periods, MetLife and Class Counsel understand and agree that in the event either determines that an action required by this Decree cannot be taken within the specified time period, that either MetLife or Class Counsel, as the case may be, shall: (i) promptly notify the other party that it anticipates a delay; (ii) provide, in writing, the reasons
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for the delay; and (iii) suggest a proposed alternative deadline. MetLife and Class Counsel shall endeavor to cooperate in reasonably rescheduling such deadlines; however, if they are unable to agree, the matter shall be resolved in accordance with the Dispute Resolution Procedures set forth in Section VIII(H) of this Decree.
G. Review and Comment
Except where specifically provided otherwise, the following standards shall apply to any provision of this Decree (including Sections IX(B), (D), (F), (G), (1), (1), (L)-(O» that requires MetLife to undertake a specified task and to produce the work product developed pursuant to that task to Class Counsel before MetLife implements such work product.
1. MetLife shall produce a copy of the work product to Class Counsel at least thirty (30) days before MetLife intends to implement the work product.
2. Class Counsel shall have the right to review and provide comments to MetLife on the work product. Class Counsel shall provide their comments to MetLife within fourteen (14) days of Class Counsel's receipt of the work product.
3. MetLife shall not be required to modify its work product to incorporate Class Counsel's comments before it implements the work product. However, MetLife shall not implement the work product until it has received Class Counsel's comments (provided such comments are timely provided) and MetLife shall give good faith consideration to Class Counsel's comments.
4. Class Counsel shall not initiate the Dispute Resolution Procedures described in Section VIII(H) of this Decree based on Class Counsel's review of MetLife's work
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product unless Class Counsel believes and can demonstrate that, in developing the subject work product, MetLife failed to utilize professional standards and/or methodologies generally accepted· in the relevant field(s) of expertise applicable to the subject work product.
5. Should it become necessary for MetLife and/or Class Counsel to utilize the Dispute Resolution Procedures described in Section VIII(H) of this Decree to resolve a dispute regarding MetLife's compliance with any obligation covered by this Section, the Special Master's review shall be limited to determining whether, in developing the subject work product, MetLife failed to utilize professional standards and/or methodologies generally accepted in the relevant field(s) of expertise applicable to the subject work product. Class Counsel shall bear the burden of demonstrating MetLife's failure to comply with this Section. If either party appeals the decision of the Special Master, the Court's standard of review will be the same as the Special Master's standard of review as set forth in this Section.
6. If, during the term of this Decree, MetLife materially revises or modifies the work product it developed and implemented under any provision of this Decree, MetLife shall provide a copy of the revised work product to Class Counsel at least fifteen (15) days before MetLife intends to implement the revised work product. Class Counsel shall have the right to review and comment on the revised work product, in accordance with the standards and procedures set forth in paragraphs 2-5, above.
H. Dispute Resolution Procedures
1. "Meet and Confer" Process
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a.

At the request of Class Counselor MetLife, Class Counsel and

MetLife shall confer as necessary, and MetLife and Class Counsel shall use their Best Efforts to

resolve promptly any disputes regarding the interpretation or implementation of the Decree,

including MetLife's compliance with any of its provisions.

b. Except where specifically provided otherwise, the procedure for resolution of any dispute regarding compliance with any provisions of the Decree shall be as follows:

(i) If Class Counsel or MetLife has good reason to believe that a legitimate dispute exists, the initiating party shall promptly give written notice to the other party, which shall include: (a) a reference to the specific provision(s) of the Decree that is (are) involved; (b) a statement of the issues; (c) a statement of the remedial action sought by the initiating party; and (d) a brief statement of the specific facts, circumstances and any other arguments supporting the position of the initiating party;

(ii) Within fourteen (14) days after receiving sllch notice, the non-initiating party shall respond in writing to the statement of facts and arguments set forth in the notice and shall provide its written position, including the facts and arguments upon which it relies in support of its position;

(iii) Class Counsel and MetLife shall thereafter undertake goodfaith negotiations, which should include a meeting by telephone or in person and the exchange of relevant documents and/or other information, to attempt to resolve the issue(s) in dispute.

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2. Special Master
a. MetLife and Class Counsel agree to the appointment of Michael D. Young, Esq., as Special Master in connection with the Dispute Resolution Procedures contained in this Section. The Special Master may be replaced or removed (i) at the joint written request of Class Counsel and MetLife; or (ii) by order of the Court upon motion of either MetLife or Class Counsel demonstrating that good cause exists for the removal of the Special Master.
b. In the event that the Special Master or his successor ceases to function as Special Master due to death, disability, voluntary resignation, the joint written request of Class Counsel and MetLife, or an order of the Court, Class Counsel and MetLife shall make a good faith effort to select a new Special Master by mutual agreement.
c. If Class Counsel and MetLife are unable to reach agreement as to a successor Special Master within forty-five (45) days following the date the designated Special Master ceases to function in that capacity, the Court, upon motion of either Class Counselor MetLife, shaH appoint a successor Special Master. Class Counselor MetLife may nominate to the Court persons for consideration as successor Special Master. Both Class Counsel and MetLife shall have the right to interview any nominated person and to present argument and evidence to the Court regarding the selection of a successor Special Master.
3. Referral to a Special Master
a. If Class Counsel and MetLife fail to resolve any differences or disputes regarding the interpretation or implementation of the Decree pursuant to the Meet and Confer Process, Class Counselor MetLife may file a motion with the Special Master, with a
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supporting brief, requesting resolution of the dispute or the issue of non-compliance, provided, however, (i) that prior to the filing of such motion, the initiating party has served a written notice of "impasse" upon the other party, and (ii) that such motion shall be limited to the dispute(s) and/or issue(s) as to which the Meet and Confer Process was exhausted;

b. any such motion; and

The non-moving party will have fourteen (14) days to respond to

c. The Special Master shall attempt, within fourteen (14) days after filing of the final brief, to resolve the dispute and may schedule a telephonic or in-person hearing or other proceeding to resolve the matter. The Special Master shall issue a written decision, which shall state: (i) the issue to be determined; (ii) the resolution of the Special Master; and (iii) a summary of the facts and Decree provisions relied on. The Special Master's jurisdiction and authority shall be limited to the enforcement of the terms of the Decree; the Special Master shall not add to, detract from, or othelwise modify the terms of the Decree. The Special Master shall not have the authority to issue penalties or sanctions against either MetLife (or its counsel) or Class Counsel.

4. Either Class Counselor MetLife may appeal a decision of the Special Master to the Court provided that such an appeal is filed within fourteen (14) days of the decision by the Special Master. Any such appeal shall be brought by motion pursuant to the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the Special Master shall be affirmed unless the Court finds that the Special Master abused his discretion or disregarded the law or the terms of this Decree.

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5. The provisions of this Section shaH not preclude Class Counselor MetLife from bringing a dispute directly before the Court for resolution when immediate Court action is required to prevent a material violation of the terms of this Decree with respect to which the Meet and Confer Process could not provide a meaningful remedy. The moving papers shaH explain the facts and circumstances that aHegedly necessitate immediate action by the Court, and the opposing patty shaH be provided with appropriate actual notice of no less than twenty-four (24) hours, and an opportunity to be heard in opposition to the motion. The Court in its discretion may set such procedures for emergency consideration as are appropriate and reasonable to the particular facts or circumstances, but no such matter may be conducted on an ex parte basis.

6. MetLife agrees to pay up to $50,000 (Fifty Thousand Dollars) for the fees and expenses of the Special Master during the Term of this Decree. In the event that such fees and expenses are less than $50,000 (Fifty Thousand Dollars), the balance of such amount shall be spent by MetLife on the Recruitment Efforts identified in Section IX(K).

7. Except as provided for in Section XIII, Class Counsel and MetLife shall bear their own attorney's fees and costs in utilizing the Dispute Resolution Procedures.

1.

No Third Party Beneficiaries

1. The Named Plaintiffs and Settlement Class members are not third party beneficiaries of this Decree, and they shall have no right to bring any action for any alleged violation of this Decree. Only Class Counsel, on behalf of the Settlement Class and the Named Plaintiffs, and MetLife, shaH have authority to bring an action to enforce this Decree.

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J. Use of the Decree

1. MetLife, the Named Plaintiffs, the Settlement Class and Class Counsel agree that (i) this Decree shall not be used for any purpose whatsoever, except as required by law or regulation, other than in connection with satisfying and determining the obligations and terms set forth in this Decree; and (ii) this Decree shall not be offered or admitted as evidence in any action or proceeding not provided for by this Decree, except as may otherwise be required by law or regulation.

IX. INJUNCTIVE RELIEF PROVISIONS A. Decree Monitor

I. Selection of Decree Monitor

a. Following Final Approval, and prior to the Effective Date, MetLife shall designate a Decree Monitor. The Decree Monitor shall have overall responsibility for overseeing and monitoring MetLife's implementation and compliance with the terms of the Decree.

b. In the event the Decree Monitor ceases to function in that role, MetLife shall designate a replacement Decree Monitor as soon as practicable but no later than thirty (30) days after the Decree Monitor ceases to function in that role.

c. following procedures:

In selecting a successor Decree Monitor, MetLife shall follow the

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(i) MetLife shall use its Best Efforts to designate an individual who is qualified to perfonn the duties and responsibilities set forth in Section IX(A)(2).
(ii) MetLife shall notify Class Counsel of the identity of any successor Decree Monitor and shall provide Class Counsel with infonnation on. the background, education, experience and qualifications of the designated successor at least twenty-one (21) days in advance of the appointment.
(iii) Class Counsel shall infonn MetLife of their views on the designee's qualifications and suitability for the Decree Monitor position as soon as practicable, but no later than fourteen (14) days after MetLife notifies Class Counsel of its intent to appoint a successor Decree Monitor.
(iv) Except as specifically set forth, nothing herein shall limit MetLife's discretion in selecting and appointing a Decree Monitor.
2. Duties of Decree Monitor a. The Decree Monitor shall be responsible for overseeing MetLife's
implementation of the Decree and shall have the following responsibilities:
(i) Monitoring the establishment, implementation, and review of the Benchmarks created pursuant to Section IX(H);
(ii) Reviewing complaints of Gender Discrimination brought by women in Sales Positions and Sales Management Positions, and received by the Human Resources Department or the Law Department, for the purpose of detennining patterns or trends;
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(iii) Meeting with the Senior Vice President, MetLife Distribution and the Zone Vice Presidents on a semi-annual basis to report on MetLife's implementation of the Decree, including but not limited to MetLife's achievement of the Benchmarks defined in Sections IX(H)(5)-(6) and other measurable outcomes of the company's performance, and making recommendations to these officers on Decree implementation or other issues the Decree Monitor identifies.
(iv) Meeting with Class Counsel on a semi-annual basis during the first year of the Decree, and then annually during the remaining two years of the Decree, to repOll on MetLife's implementation ofthe Decree.
(v) Submitting to Class Counsel progress reports and other monitoring and reporting documents and information as provided for in Sections IX and XI.
(vi) Performing any other tasks which the Decree specifies shall be perfolllled by the Decree Monitor.
3. MetLife shall provide sllch support staff, funds and other resources to the Decree Monitor as may be reasonably necessary to discharge MetLife's obligations under the Decree. MetLife anticipates that it will expend approximately $750,000 (Seven Hundred Fifty Thousand Dollars) in direct and indirect compensation of the Decree Monitor during the Term of the Decree.
B. Internal Complaint Procedure
I. MetLife shall maintain a written internal complaint procedure for the purpose of resolving "Covered Complaints" within MLFS. "Covered Complaint" shall mean
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any complaint by a woman holding a Sales Position or Sales Management Position within MLFS asserting that she has been the subject of Gender Discrimination during the Tenn of the Decree. MetLife will produce a copy of its written internal complaint procedure to Class Counsel for review and comment pursuant to Section VIII(G) within ten (10) business days of the Effective Date and shall implement the written internal complaint procedure no later than sixty (60) days following the Effective Date.
2. At its election, MetLife may extend the operation of the internal complaint procedure to other employees and/or other types of complaints without broadening its obligations hereunder, which are strictly limited to complaints of Gender Discrimination by a woman holding a Sales Position or Sales Management Position within MLFS.
3. MetLife's intemal complaint procedure will pennit an employee to initiate a Covered Complaint by submitting a complaint in hard copy or electronic format (i.e., e-mail) to a Human Resources Generalist ("HR Generalist") whose responsibility shall be to receive and investigate sllch complaints.
4. HR Generalists will utilize their Best Efforts to conduct face-to-face interviews of significant fact witnesses when investigating Covered Complaints that involve significant credibility detenninations or allegations of egregious behavior.
5. No individual who is the subject of a Covered Complaint shall playa role in the decision-making process with respect to the resolution of such Covered Complaint.
6. An HR Generalist (or hislher designee) shaH retain in a central location copies of all written Covered Complaints made by MLFS employees during the Term of the
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Decree and the written findings of the investigation. An HR Generalist (or his/her designee) also shall prepare a quarterly report on all such complaints, that will include the name, gender, job position and sales office location of the complainant; a brief summary ofthe nature of the complaint; the names, gender, job positions, and office locations ofthe sUbject(s) of the complaint; a brief summary of the status and nature of the investigation conducted; the final disposition of the investigation, and what, if any, corrective action was taken.
7. The HR Generalists will provide a copy of the quarterly report referenced in this Section to the Decree Monitor, the Senior HR Generalist for MLFS, and a report of the complaints arising in each Zone to the Zone Vice President of that Zone.
8. The internal complaint procedure established by this Section is not intended to alter the right of any employee to file a charge or complaint of discrimination or retaliation under any applicable local, state, or federal law, and shaI1 not be interpreted to (i) alter any applicable time limitations for the filing of any such charge or complaint, or (ii) add to, detract from, or otherwise modify any defenses thereto.
C. HR Generalists
I. MetLife will hire a minimum of six (6) additional HR Generalists to support MetLife Financial Services. MetLife will use its Best Efforts to have such HR Generalists in place by no later than ninety (90) days following the Effective Date.
2. MetLife shall not permit any of the newly hired HR Generalists to investigate Covered Complaints until he or she has received at least eight (8) hours of professional training in fair employment laws and complaint investigations.
24

3. MetLife estimates that a minimum of$900,000 (Nine Hundred Thousand Dollars) will be spent or incurred in connection with the hiring of additional HR Generalists during the first full year of the Decree. The Decree Monitor shall provide Class Counsel with a year-end break-down for 2004 of the actual direct and indirect costs of such HR Generalists.
D. Equal Employment Opportunity Policies 1. The Decree Monitor will provide a copy of MetLife's written anti-
discrimination and anti-harassment policy to Class Counsel for review and comment pursuant to Section VIII(G) within ten (10) business days following the Effective Date. MetLife's antidiscrimination and anti-harassment policy shall provide, inter alia, that upon a finding of a violation of the policy, MetLife shall take appropriate corrective action, up to and including tern1ination, with respect to anyone found to have violated the policy.
2. MetLife will distribute its anti-discrimination and anti-harassment policy and internal complaint procedure to all MLFS employees by electronic means during the second quarter of2004 and on an annual basis thereafter during the Tenm of the Decree. No later than sixty (60) days after the Effective Date, MetLife shall post its anti-discrimination and antiharassment policy and internal complaint procedure on an intranet site accessible to all MLFS employees, and shall maintain such posting during the Tenm of the Decree.
E. Communication of Consent Decree Requirements
No later than ten (10) days after the Effective Date, MetLife shall provide to each of its Zone Vice Presidents and Managing Directors (First-line managers) in MLFS a copy ofthe
25

Summary of Consent Decree, which is attached hereto as Exhibit C, explaining the basic obligations under the Decree.
F. Diversity Training
1. MetLife will complete its roll-out of diversity training to all incumbent MLFS FSRs, Agency Managers, Regional Vice Presidents, and Zone Vice Presidents who have not yet attended that training by December 31,2005. Such training shall be mandatory. MetLife shaH use its Best Efforts to provide the training to all newly hired MLFS FSRs and newly hired and/or newly appointed Agency Managers, and Zone Vice Presidents within six (6) months of their hire or appointment date.
2. MetLife shaH provide this diversity training in a live fonnat.
3. The Decree Monitor shaH be responsible for ensuring that procedures are in place to verify that all MLFS FSRs, Agency Managers, and Zone Vice Presidents receive this diversity training.
4. At a minimum, this diversity training shall include topics that address the dimensions of diversity, including gender; conditioning and socialization around differences in the workplace; and insights into behavioral styles, including gender differences, in workplace situations. MetLife shall provide the proposed curriculum incorporating these topics to Class Counsel for review and comment pursuant to Section VIII(G) no later than sixty (60) days after the Effective Date.
5. MetLife estimates that a minimum of $1 ,600,000 (One Million Six Hundred Thousand Dollars) in direct and indirect costs will be spent or incurred in implementing
26

this diversity training. The Decree Monitor shall provide Class Counsel with a year-end breakdown for 2004 and 2005 of the amounts spent or costs incurred in respect of such training.
G. Job Analyses and Descriptions
I. MetLife will conduct ajob analysis of the Functional Manager, Agency Director (Second-line manager) and Managing Director (First-line manager) positions, which will be completed no later than six (6) months after the Effective Date. Such job analyses will be conducted either by MetLife employees with professional experience in conducting job analyses or by outside consultants with such expertise. The Decree Monitor will provide a copy of the resumes of the employees or outside consultants who will be responsible for conducting the job analyses to Class Counsel no later than thirty (30) days after the Effective Date.
2. Based on the results of the job analyses to be conducted pursuant to Section IX(G)(l) above, MetLife will develop written job descriptions and selection criteria for the Functional Manager, Agency Director (Second-line manager) and Managing Director (Firstline manager) positions. The Decree Monitor will provide copies of such job descriptions and selection criteria to Class Counsel for review and comment pursuant to Section VIII(G) no later than eight (8) months after the Effective Date. MetLife and Class Counsel recognize that there will be flexibility in the application of the selection criteria developed depending upon the needs of the particular sales office making a selection.
3. No later than ten (10) months after the Effective Date, MetLife will distribute such job descriptions and selection criteria to all MLFS employees electronically and shall post such job descriptions and selection criteria on an intranet site accessible to all MLFS employees during the Term of the Decree.
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H. Benchmarks 1. In an effort to increase the percentage of women in the ~unctional
Manager, Agency Director (Second-line manager) and Managing Director (First-line manager) positions ("Benchmark positions") MetLife will establish certain Benchmarks and will use its Best Efforts to achieve those Benchmarks.
2. It is understood and agreed that these Benchmarks are not quotas; but rather reflect objectives which appear, at the time that they are established, to be reasonably attainable through good faith efforts by MetLife in hiring and promoting the most qualified candidates for the designated positions.
3. The purpose of the Benchmarks is to provide Class Counsel with a general indication as to whether MetLife is making selection decisions for Benchmark Positions in such a way as to afford equal employment opportunity.
4. Failure to Achieve Benchmarks a. In attempting to meet the Benchmarks set forth below, MetLife
shall not be required to: (i) select anyone for a Benchmark Position who is not the most qualified candidate; (ii) displace any incumbent employee from his or her position; or (iii) create new or additional positions.
b. Failure to achieve a Benchmark by a fraction of a person shall not be deemed to constitute a failure to achieve a Benchmark under this Decree.
28

c. MetLife's failure to achieve a Benchmark for a particular period will not be considered a violation of this Decree unless MetLife has failed to use its Best Efforts to meet the Benchmark. Should MetLife demonstrate that: (i) the proportion of good faith offers made to women to the total selections made for a particular Benchmark Position during a particular year was at least as high as the Benchmark percentage; or (ii) significant differences in the relative experience, skill or other qualifications of those selected to fill Benchmarkpositions and those not selected explain the failure to achieve the Benchmark (provided that such experience, skill or other qualifications are job-related for the job position in question and consistent with business necessity); or (iii) there were an insufficient number of openings to achieve a Benchmark, such demonstration will conclusively establish that Best Efforts were used. Nothing in this Section shall be interpreted to imply that Best Efforts could not also be shown by other appropriate evidence.
d. MetUfe's failure to achieve a Benchmark for any particular position(s) in any particular period will not, by itself, constitute a violation of the Decree. If Class Counsel, after a good faith investigation, reasonably believes that MetLife did not use its Best Efforts to attain a Benchmark, then it may initiate the "Meet and Confer" Process set forth in Section VIll(H)(l).
e. If the "Meet and Confer" Process does not resolve the issues raised by Class Counsel, Class Counsel may file a motion with the Special Master for a determination by the Special Master as to whether Best Efforts to attain a Benchmark were used. MetLife will have fourteen (14) days to respond to any such motion.
29

f.

The Special Master shall attempt within fourteen (14) days after

filing of MetLife' s response to resolve the dispute and may schedule a telephonic or in-person

hearing or other proceeding to resolve the matter.

g. At any Special Master proceeding, MetLife will have the right to demonstrate, and shall bear the burden of going forward with evidence, that it used Best Efforts to attain the Benchmark.

h. In determining whether MetLife exercised Best Efforts, the Special Master will consider all the surrounding facts and circumstances, including, but not limited to:

(i) The actual representation of women ("representation") in the Benchmark Position in the prior year;

(ii) Industry representation data and trends with respect to the Benchmark Position (or positions similar to the Benchmark Positions);

(iii) Changes in (i) the organizational design ofMLFS; (ii) the size and/or distribution of the MLFS sales force; (iii) business direction or policies of MLFS; and (iv) licensing and compliance requirements in MLFS;

Position within MLFS;

(iv) Historical levels of representation in the Benchmark

(v) MLFS and MetLife financial perfonnance during the Benchmark year (or prior thereto);

30

(vi) Efforts expended in recruitment and promotion of women for the Benchmark Position during the Benchmark year or in prior year(s); and

Decree were served.

(vii) Whether the purposes of the Benchmark process and the

1.

If the Special Master finds that MetLife utilized Best Efforts in

attaining the Benchmark, then no further action will be taken. If the Special Master finds that

MetLife did not utilize Best Efforts in attaining the Benchmark, then he shall detennine, upon

the recommendation of Class Counsel and MetLife, appropriate remedial relief consistent with

this Decree. In no event, however, shall the Special Master direct that MetLife take any action

that is not reasonably achievable in light of the foregoing criteria and the exercise of Best

Efforts. The Special Master's detennination shall not be subject to appeal to the Court.

5. 2004 Benclunarks

a. By December 31, 2004, the percentage of women Managing Directors (First-line managers) shall increase by at least 1% over the percentage of women Managing Directors (First-line managers) employed as of December 31,2003;

b. By December 31, 2004, the percentage of women Agency Directors (Second-line managers) shall be at least 24.5%;

c. By December 31, 2004, the percentage of women Functional Managers shall be at least 10%.

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d. In June 2004 Class Counsel and MetLife shall meet and confer (by telephone or in person) conceming the 2004 Benchmarks to discuss whether any of the Benchmarks should, by mutual agreement, be modified. In the absence of mutual agreement, there shall be no change in 2004 Benchmarks, and Class Counsel shall not have recourse to the dispute resolution mechanism provided for in Section VIII(H), or any appeal to the Court.

6. 2005 and 2006 Benchmarks

a. In order to establish Benchmarks for Benchmark Positions for 2005, Class Counsel and MetLife agree to meet and confer (by telephone or in person) at mutually agreeable dates between December 1,2004 and January 31,2005.

b. In order to establish Benchmarks for Benchmark Positions for 2006, Class Counsel and MetLife agree to meet and confer (by telephone or in person) at mutually agreeable dates between December 1,2005 and January 31, 2006.

c. In establishing Benchmarks for 2005 and 2006, Class Counsel and MetLife shall consider several factors, including, but not limited to:

prior year(s);

(i) The actual representation in the Benchmark Position in the

(ii) Industry representation data and trends with respect to the Benchmark Position (or positions similar to the Benchmark Positions);

32

(iii) Changes in (i) the organizational design ofMLFS; (ii) the size and/or distribution of the MLFS sales force; (iii) business direction or policies of MLFS; and (iv) licensing and compliance requirements in MLFS;

Position within MLFS;

(iv) Historical levels of representation in the Benchmark

year(s);

(v) MLFS and MetLife financial performance during the prior

(vi) Efforts expended in recruitment and promotion of women for the Benchmark Position in the prior year(s); and

Decree are being served.

(vii). Whether the purposes of the Benchmark process and the

d. If Class Counsel and MetLife are unable to agree on Benchmarks by January 31 of the relevant year, then the dispute shall be referred to the Special Master who shall render a recommendation as to Benchmarks for Benchmark Positions that shall, unless otherwise appealed pursuant to Section VIII(H)(4), be binding on MetLife and Class Counsel.

e. In resolving any dispute over 2005 or 2006 Benchmarks, the Special Master will take the following factors into consideration:

prior years;

(i) Actual representation in the Benchmark Position(s) in the

33

(ii) Industry representation data and trends with respect to the Benchmark Position (or positions similar to the Benchmark Positions);

(iii) Changes in (i) the organizational design ofMLFS; (ii) the size and/or distribution of the MLFS sales force; (iii) business direction or policies ofMLFS; and (iv) licensing and compliance requirements in MLFS;

Position(s);

(iv) Historical levels of representation in the Benchmark

year(s);

(v) MLFS and MetLife financial perfoDl1ance during the prior

(vi) Efforts expended in recruitment and promotion of women for the Benchmark Position in the prior year(s); and

Decree are being seryed.

(vii) Whether the purposes of the Benchmark process and the

f.

The Special Master shall not recommend Benchmarks that are not

reasonably achievable in light of the foregoing criteria and the exercise of Best Efforts by

MetLife. In no event shall the Special Master recommend more than a 2% increase in the

Benchmark for any Benchmark Position in any year. Nothing herein shall be construed to

suggest that a 2% increase in any Benchmark, for any particular year is appropriate; the Special

Master shall only recommend a Benchmark increase for any Benchmark Position if, for any

particular year, such an increase is reasonably achievable in light of the foregoing criteria and the

exercise of Best Efforts by MetLife.

34

g. Should Class Counselor MetLife choose to appeal the Benchmark recommendation of the Special Master, the following terms will apply.
(i) Any motion appealing the decision of the Special Master shall be filed within twenty (20) days of receipt of the Special Master's written decision. Any opposition submission to the appeal motion shall be filed within fifteen (15) days of receipt of the appeal motion. Any reply submission by the appealing party shall be filed within ten (10) days of receipt of the opposition submission.
(ii) The Court's standard of review of the Special Master's recommendation shall be whether the Special Master abused his discretion. The Court, in making such a detennination, shall consider the factors set forth in Section IX(H)(G)(e).
(iii) In no event shall the Court direct more than a 2% increase in the Benchmark for any Benchmark Position, for any year. Nothing herein shall be construed to suggest that a 2% increase in any Benchmark, for any particular year is appropriate; the Court shall only recommend a Benchmark increase for any Benchmark Position if, for any particular year, such an increase is reasonably achievable in light of the factors set forth in Section IX(H)(G)(e) and the exercise of Best Efforts by MetLife.
7. Except as provided in Section XIII, Class Counsel and MetLife shall bear their own attol11ey's fees and costs with respect to the resolution of any Benchmark disputes.
8. MetLife recognizes the desirability and importance of having qualified women occupying management positions above the agency level, including the Zone Vice
35

President position. Consistent with that principle, MetLife agrees to give full and careful consideration to promoting or selecting qualified females to such positions.

L Manager Evaluations

1. MetLife shall implement a performance assessment instrument that assesses the perfomlance of Managing Directors (First-line managers) and Agency Directors (Second-line managers') against uniform job-related criteria. MetLife shall provide a copy of the perf0I111anCe assessment instrument to Class Counsel for review and comment pursuant to Section VIII(G) within thirty (30) days following the Effective Date and shall implement the perf0I111anCe assessment instrument no later than sixty (60) days following the Effective Date.

2. MetLife will include as a factor in its annual perfolmance evaluation of Zone Vice Presidents, Managing Directors (First-line managers), and Agency Directors (Secondline managers) efforts to promote diversity in the workforce and commitment to MetLife's equal employment 0ppoliunity goals and policies, including adherence to MetLife's antidiscrimination and anti-harassment policies.

J.

Management Training

1. All Agency Managers responsible for training inexperienced FSRs will be trained on a "Roadmap for Inexperienced FSR Training," which will include modules on technical and soft skills, sales presentations, activity monitoring, setting expectations, and coaching techniques.

36

2. The Decree Monitor shall provide the proposed curriculum for such Agency Manager training to Class Counsel for review and comment pursuant to Section Vrn(G) no later than thirty (30) days prior to the implementation of the training program.
3. The Agency Manager training provided for in this Section shaH be conducted by MetLife's Recruiting, Selection and Training Department and shaH be provided in a live, in-person fonnat.
4. MetLife shall provide this training to incumbent Agency Managers responsible for training inexperienced FSRs by July \,2005.
5. MetLife estimates that a minimum of$600,000 (Six Hundred Thousand Dollars) in diredt and indirect costs will be expended or incun'ed in connection with the development and implementation of the Agency Management training program. The Decree Monitor shall provide Class Counsel with a year-end break-down of such direct and indirect costs for 2004, 2005 and 2006.
K. Recruitment
I. MLFS shall continue to actively seek women recruits for FSR and Agency Manager positions in each of its Zones through such means as: recruiting advertisements in publications geared toward professional women in the financial services industry; partnerships with women's organizations which provide access to potential recruits; utilization of outside search firms; and career seminars.
2. MetLife will spend a minimum of $600,000 (Six Hundred Thousand Dollars) in direct and indirect costs on these recruitment efforts during the Tenn ofthe Decree.
37

3. The Decree Monitor shall provide Class Counsel with a year-end breakdown, by Zone, for 2004, 2005 and 2006, of such direct and indirect costs, together with a narrative of the initiatives that were undertaken and the results of such initiatives in terms of women hired.

L. Management Development Program

1. MLFS shall offer a management development program for high potential sales personnel with interest in a management career. The program shall include training on various aspects of the duties of Managing Directors (First-line managers) and Agency Directors (Second-line managers), including: skills in setting objectives; evaluation ofperfonllance; coaching; conflict resolution; compliance monitoring; expense management; and employee relations.

2. MetLife shall develop written criteria for participation in the management deve\opmentprogram. The Decree Monitor shall provide such written criteria for participation in the management development program to Class Counsel for review and comment pursuant to Seetion VIIl(G) no later than thirty (30) days prior to the implementation of the program.

2005.

3. MetLife shall commence the implementation of this program by July I,

4. MetLife will make Best Efforts to ensure that thirty (30) percent of the participants in the management development program are women. It is understood that such percentage is not a quota; rather, it reflects an objective which currently appears, based on the percentage of women holding FSR and Second-line managerial positions, to be reasonably

38

attainable through Best Efforts by MetLife. The purpose of this provision is to provide Class Counsel with a general indication as to whether MetLife is selecting participants in the management development program in such a way as to afford equal employment opportunity.
5. MetLife estimates that a minimum of $350,000 (Three Hundred Fifty Thousand Dollars) in direct and indirect costs will be spent or incurred on this management development program during the Term of the Decree. No more than fifty (50) percent of the cost of developing and implementing the management development program shall be credited against this amount.
6. The Decree Monitor shall provide Class Counsel with a year-end breakdown of direct and indirect costs of this program for 2004,2005 and 2006; a roster of the program participants by gender for 2004,2005 and 2006; and a narrative description of the program.
M. Sales Office Development Funds
1. MetLife will promulgate written criteria for the distribution of Sales Office Development Funds no later than thirty (30) days following the Effective Date. MetLife and Class Counsel recognize and agree that these criteria may change from year to year, depending on business needs.
2. The Decree Monitor shall provide such written criteria to Class Counsel for review and comment pursuant to Section VIII(G) no later than thirty (30) days following the Effective Date.
39

3. The written criteria will be disseminated electronically to MLFS Zone Vice Presidents and Managing Directors (First-line managers) following the review and comment period.
4. The Decree Monitor shall provide Class Counsel with a year-end breakdown of Sales Office Development Fund distributions, by sales office and gender of such sales office's Managing Director(s) (First-line manager(s)), for 2004,2005 and 2006. For any sales offices that receive Sales Office Development Funds in any year, the Decree Monitor shall provide infonnation to Class Counsel indicating whether that sales office received such funds in the two (2) years preceding the allocation, and the amount, if any, previously received.
5. Nothing in this Section shall require: (i) that MetLife continue to distribute Sales Office Development Funds; or (ii) that Sales Office Development Funds be provided in any particular amount to any sales office.
N. Inforce Blocks of Business
I. MetLife will promulgate written criteria for the distribution ofInforce Blocks of Business (colloquially known as "orphan books of business") no later than thirty (30) days following the Effective Date. MetLife and Class Counsel recognize and agree that different distribution criteria may apply depending on the business needs of particular sales offices and the particular circumstances.
2. The Decree Monitor shall provide such written criteria to Class Counsel for review and comment pursuant to Section VIII(G) no later than thirty (30) days following the Effective Date.
40

3. The written criteria will be disseminated electronically to the Zone Vice Presidents, Managing Directors (First-line managers) and Agency Directors (Second-line managers) following the review and comment period.
o. Business Leads
1. MetLife will promulgate written criteria for the distribution of leads and shall provide the written criteria to Class Counsel for review and comment pursuant to Section VIII(G) no later than thirty (30) days following the Effective Date. MetLife and Class Counsel recognize and agree that different distribution criteria may apply depending on: (i) the nature and extent of particular leads programs; (ii) the business needs of particular sales offices; and (iii) other business needs. relating to sales experience and ability; particular markets; and other similar business circumstances.
2. The written criteria will be disseminated electronically to all MLFS employees following the review and comment period. Dissemination of such written criteria will be accompanied by a statement that MLFS employees having questions about the application of the leads distribution criteria should, in the first instance, direct those inquiries to the Marketing Director or the Managing Director (First-line manager) of their sales office.
3. The Decree Monitor shall provide Class Counsel with a year-end roster of the participants in the "Deliver the Promise" and "MetAdvice" leads programs, broken-down by gender and Zone, for 2004, 2005 and 2006, together with their dates of participation in such programs during each such year. The Decree Monitor shall also provide Class Counsel with a year-end report identifying the allocation ofleads distributed through those programs, brokendown by gender and Zone, for 2004, 2005 and 2006.
41

4. Nothing in this Section shall obligate MetUfe to maintain, or prevent MetLife from modifying, the "Deliver the Promise," "MetAdvice," or any other leads distribution program.
X. INJUNTIVE RELIEF EXPENDITURES A. MetLife estimates in good faith that it will spend or incur a minimum of
$5,000,000 (Five Million Dollars) in connection with the various obligations undertaken in Sections VIII(H)(6), IX and XII(B) of this Decree.
B. In the event that MetLife does not expend the anticipated amounts as set forth in Sections VIII(H)(6), IX(A), (C), (F), (1), and (L) and XII(B), the amounts that are not spent will be added to the expenditures that MetUfe has agreed to make in Section IX(K) for Recruitment.
XI. REPORTING AND RECORD KEEPING A. Following the Effective Date, MetLife shall track the headcount of FSRs,
Functional Managers, Agency Directors (Second-line managers) and Managing Directors (Firstline managers) by gender on a qualierly basis. The Decree Monitor shall provide these qUaJierly tracking repOlis to Class Counsel within thirty (30) days of the close of each calendar quarter.
B. Following the Effective Date, MetUfe shall track the total annual compensation ofFSRs, Functional Managers, Agency Directors (Second-line managers) and Managing Directors (First-line managers) by gender. The Decree Monitor shall provide Class Counsel with reports identifying the average annual compensation by gender for these positions for 2004 (by April 30, 2005); for 2005 (by April 30, 2006); and for 2006 (by April 30, 2007).
42

XII. CLASS AND INDIVIDUAL PLAINTIFF MONETARY RELIEF A. Monetary Relief. Notice And Claims Procedure

1. Monetary Settlement Fund

a. Allocation: No later than fourteen (I 4) days after the Effective Date, MetLife shall deposit the sum of$5,000,000 (Five Million Dollars) into a Qualified Settlement Fund (in accordance with Internal Revenue Code Section 468B) (the "Monetary Settlement Fund") to satisfy and in full settlement of all claims of the Named Plaintiffs and other eligible Settlement Class members in accordance with the provisions of this Section.

b. Apportionment: The MonetarySettlemcnt Fund shall be apportioned as follows: (a) payments to Named Plaintiffs, in accordance with subparagraph I(c) below; (b) payments to eligible Settlement Class members, in accordance with subparagraph I(e) below; and (c) a Reserve Fund, in accordance with subparagraph I(d) below.

c.

Payments to Named Plaintiffs: $235,000 (Two Hundred Thirty-

Five Thousand Dollars) from the Monetary Settlement Fund shall be allocated to pay the claims

of Class Representative Plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, and Janet

Ramsey, and Individual Plaintiff Barbara LaChance, in full settlement of their claims in the

Mitchell Action and as provided for in Section VII(A)(I)(a) as follows:

Stella Mitchell shall receive the gross amount of$55,000 (Fifty-five Thousand Dollars) less applicable withholdings;

Hwa-Mei Gee shall receive the gross amount of$45,000 (Forty-five Thousand Dollars) less applicable withholdings;

43

Durpatty Persaud shall receive the gross amount of$45,000 (Forty-five Thousand Dollars) less applicable withholdings; Janet Ramsey shall receive the gross amount of $45,000 (Forty-five Thousand Dollars) less applicable withholdings; and Barbara LaChance shall receive the gross amount of$45,000 (Forty-five Thousand Dollars) less applicable withholdings.
The Claims Administrator shall pay such amounts to the Named Plaintiffs (less applicable withholding deductions) on the later of (i) twenty (20) days after the Effective Date, or (ii) the effective date of the general release signed by the Named Plaintiff in the fOlln annexed as Exhibit B referenced in Section VII(A)(I)(a), provided that they have abided by the tenns of Section XV and provided that they have not opted out pursuant to Section XII(D). If a Named Plaintiff fails to execute the general release in the f01111 annexed as Exhibit B, fails to abide by the tenns of Section XV, or opts out pursuant to Section XII(D), then the $5,000,000 (Five Million Dollar) deposit by MetLife provided for in Section XII(A)(I}(a), above, shall be reduced by the amount of money allocated to that Named Plaintiff in this paragraph.
d. Reserve Fund: $25,000 (Twenty-five Thousand Dollars) from the Monetary Settlement Fund shall be set aside as a "Reserve Fund" to be used to pay any otherwise valid claims that are inadvertently excluded from the final list of qualifled claimants, as set forth in Section XII(H)(I)(a), below, through error or omission of Class Counsel, the Claims Administrator, or MetLife.
44

e. Class Monetary Fund: The remainder of the Monetary Settlement Fund, less the amounts specified in subparagraphs I(c) and I (d) above, shall be allocated to the "Class Monetary Fund" and used to pay eligible Settlement Class members, who are Qualified Claimants, as provided for in this Section XII, below.
B. Claims Administrator
I. Class Counsel and MetLife jointly have selected Rosenthal & Company LLC to serve as the Claims Administrator. As more fully set fO!ih in the Memorandum of Understanding annexed as Exhibit D, the Claims Administrator will be responsible for: (i) preparing and mailing notices and claim forms to Settlement Class members, (ii); receiving, processing and serving on Class Counsel, MetLife and the Court Settlement Class member objections, opt-out statements, Withdrawal of Objections and Rescissions of Opt-Out Statements and filing such documents with the Court; (iii) receiving, processing and determining the timeliness and completeness of claim forms; (iv) deteI111ining point allocations with respect to eligible Settlement Class members' claims; (v) preparing a list of Qualified Claimants; (vi) preparing, processing and mailing all payments to Qualified Claimants; (vii) preparing, processing and mailing all tax withholding documents; (viii) preparing, processing and filing all applicable tax returns on behalf of the Qualified Settlement Fund; (ix) remitting all taxes and other payments due in respect of disbursements from the Monetary Settlement Fund; and (x) carrying out other related tasks in accordance with the provisions of this Decree.
2. The Claims Administrator shall establish a toll-free 800 line and be available to respond to questions or requests for assistance from Settlement Class members
45

regarding the claims procedure. The Claims Administrator also shall establish a website on which it shall post all pleadings and notices relevant to this settlement and claims procedure.
3. All fees and expenses incurred by the Claims Administrator shall be paid by MetLife. Any fees and expenses of the Claims Administrator in excess of $150,000 (One Hundred Fifty Thousand Dollars) shall reduce MetLife's economic obligation for Recruitment expenditures pursuant to Section IX(K). In the event the fees and expenses of the Claims Administrator are less than $150,000 (One Hundred Fifty Thousand Dollars), the difference shall be added to the amount to be spent by MetLife on the Recruitment efforts identified in Section X(B).
4. MetLife shall provide a year-end report to Class Counsel identifying all fees and expenses paid to the Claims Administrator until the point in time when the Claims Administrator is relieved of its duties and responsibilities under this Decree, upon final distribution of all Residual Funds pursuant to Section XII(K)(3).
C. Class Action Settlement Notice
1. No later than five (5) business days following the Preliminary Approval Date, MetLife shall prepare and deliver to the Claims Administrator a computer disk containing the following information from its computerized personnel records with respect to all Settlement Class members: name; social security number; birth date; last-known address; last-known telephone number; stali and end date of employment with MetLife; and all titles (and dates such titles were held) for all MLFS positions held during the Class Period. Within the same time period, Class Counsel shall provide to the Claims Administrator any similar infom1ation
46

regarding Settlement Class members that is in the possession, custody or control of Class Counsel.
2. The Claims Administrator shall update the infonnation provided by MetLife and Class Counsel with any new addresses for such Settlement Class members it may obtain from the National Change of Address System to create a "Class Notice List." The Claims Administrator also shall detem1ine each eligible Settlement Class member's point assignment pursuant to the fonnula described in Section XII(F), below and prepare a claim form, in the [om1 attached hereto as Exhibit E, for each "eligible Settlement Class member" (as defined in Section VI(E)) reflecting the points assigned to her.
3. Within fourteen (14) days following the Preliminary Approval Date, the Claims Administrator shall mail, via first class United States Mail, postage prepaid, notice of the class settlement in the form attached hereto as Exhibit F, to each Settlement Class member and a claim fon11 and instnIctions to each eligible Settlement Class member on the Class Notice List.
4. If a notice and claim fonn are retumed as "undeliverable," the Claims Administrator shall anange for a database search for such class member through IRSC or a comparable service within seven (7) days of receipt of the retumed notice, and the Claims Administrator shall re-mail the notice and claim fom1 to any additional address obtained.
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D. Objections and Exclusions
1. Objections
a. Settlement Class members who wish to present objections to the proposed settlement must do so in writing. Written objections shall state with specificity the provision(s) of the Decree to which the Settlement Class member objects. Written objections shall be mailed to the Claims Administrator at Mitchell v. MetLife Insural1ce Co. Claims Administrator, clo Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177 and must be received by the Claims Administrator on or before a date to be detel111ined by the Court.
b. The Claims Administrator shall: (i) date stamp the original of any objections it receives, (ii) serve copies on Class Counsel and MetLife's counsel no later than two (2) business days after the Claims Administrator receives the objections or immediately if received within five (5) business days ofthe Final Approval Hearing date, and (iii) file the datestamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Final Approval Hearing or immediately upon the Claims Administrator's receipt of the objections if they are received less than five (5) business days prior to the date of the Final Approval Hearing. The Claims Administrator shall retain copies of all written objections until the Claims Administrator is relieved of its duties and responsibilities under this Decree, upon final distribution of all Residual Funds pursuant to Section XII(K)(3).
c. Settlement Class members who wish to exclude themselves from the Settlement Class for purposes of participation in the monetary portion of the settlement must do so in writing by filing a signed and dated "opt-out" statement with the Claims Administrator. Written opt-out statements shall be mailed to the Claims Administrator at Mitchell v. MetLife
48

Insurance Co. Claims Administrator, c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177 and must be received by the Claims Administrator on or before a date to be determined by the Court. Opt-out statements shall, at a minimum, contain the eligible Settlement Class member's full name, address, Social Security number, and day and evening telephone numbers and the following language:
"I understand that by requesting to be excluded from the class monetary settlement, I will receive no money from the settlement fund created by MetLife under the Mitchell Consent Decree. 1 understand that ifI am excluded from the class monetary settlement, 1 may bring a separate lawsuit against MetLife seeking damages; however, I understand that in such a separate lawsuit: (i) 1 may receive nothing or less than 1 would have received if! had filed a claim under the class monetary settlement procedure; and (ii) MetLife may assert all applicable defenses to any claims asselied by me. 1 also understand that 1 may not seek exclusion from the class for equitable and injunctive (non-monetary) relief, and that 1 am bound by the equitable and injunctive provisions of the Mitchell Consent Decree."
d. The Claims Administrator shall: (i) date stamp the original opt out statements it receives, (ii) serve copies on Class Counsel and MetLife's counsel no later than two (2) business days after the Claims Administrator receives the opt-out statements, or immediately if received within five (5) business days of the Final Approval Hearing date, and (iii) file the date-stamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Final Approval Hearing or immediately upon the Claims Administrator's receipt of the opt out statements if they are received less than five (5) business days prior to the date of
49

the Final Approval Hearing. The Claims Administrator shall retain copies of all opt-out statements until the Claims Administrator is relieved of its duties and responsibilities under this Decree, upon final distribution of all Residual Funds pursuant to Section XII(K)(3).
2. Rescissions of Opt-Outs and Withdrawals of Objections
a. MetLife and Class Counsel recognize that some Settlement Class members who initially submit objections to this Decree or request to be excluded from the monetary provisions of the Decree may, upon further reflection, consultation or the receipt of additional info1111ation regarding this Decree, wish to withdraw such objections or rescind such opt-out statements. MetLife and Class Counsel agree that Settlement Class members shall be pe1111itted to withdraw such objections and/or rescind such opt-out statements by submitting a Withdrawal of Objection in the fonn attached as Exhibit G, or a Rescission of Opt-Out Statement in the fonn attached as Exhibit H, to be received by the Claims Administrator no later than one (I) business day before the date of the Final Approval Hearing.
b. The Claims Administrator shall: (i) date stamp the original Withdrawal of Objections and Rescission of Opt-Out Statements it receives, (ii) serve copies of them on Class Counsel and MetLife no later than two (2) business days after it receives the Withdrawal of Objection or Rescission of Opt-Out Statements, or immediately if received within five (5) business days of the Final Approval Hearing date, and (iii) file the date-stamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Final Approval Hearing or immediately upon the Claims Administrator's receipt of the Withdrawal of Objection or Rescission of Opt-Out Statements up to one (I) day before the Final Approval Hearing, whichever is later. The Claims Administrator shall retain copies of all
50

Withdrawal of Objections and Rescission of Opt-Out Statements until the Claims Administrator is relieved of its duties and responsibilities under this Decree, upon final distribution of all Residual Funds pursuant to Section XII(K)(3).
3. Excessive Number of Opt-Outs
a. In the event that thirty (30) or more Settlement Class members elect to opt out of the Settlement Class for purposes of participation in the monetary relief portion of the settlement, MetLife may, in its sole and absolnte discretion, void this Decree.
b. For purposes of this provision, Settlement Class members who: (i) as of the Preliminary Approval Date, have a pending administrative agency charge or complaint in a federal or state court alleging gender discrimination in employment against MetLife, and who elect to exclude themselves from the Settlement Class or (ii) file an opt-out statement and subsequently rescind it in writing pursuant to Section XII(D)(2), shall not be counted against the threshold thi11y (30) Settlement Class member opt-outs required before MetLife can elect to void the Decree.
4. MetLife shall notify Class Counsel of its decision to void this Decree prior to the date set for the Final Approval Hearing. In the event MetLife elects to void this Decree, the Decree shall be deemed null and void and MetLife shall have no further obligations under the Decree, in which event the Mitchell Action parties will be restored to the respective position each was in as ofJune 1,2003, and Class Counsel and MetLife's stipulation regarding the conditional certification of the Settlement Class shall be null and void. In the event that MetLife elects to void this Decree pursuant to this Section: (i) neither party shall be deemed to have waived any claims, defenses or arguments with respect to the appropriateness of class
51

certification in this Mitchell Action; and (ii) plaintiffs shall not contend, directly or indirectly, that class certification is appropriate by virtue of submission of this Decree for preliminary approval by the Court.
E. Procedure for Filing a Claim for an Award from the Class Monetary Fund
I. To qualify for a payment from the Class Monetary Fund, an eligible Settlement Class member must sign under penalty of perjury and return a claim fonn (in the forn1 annexed hereto as Exhibit E) postmarked no later than a date to be detern1ined by the Court to Mitchell v. Me/Life Insurance Co. Claims Administrator, c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177
2. Claims for payment from the Class Monetary Fund made on behalf of a deceased eligible Settlement Class member must be filed by the administrator or legal representative of the deceased eligible Settlement Class member's estate and must be accompanied by a certified copy of the deceased eligible Settlement Class member's death certificate.
3. In addition to mailing claim fonns as provided in Section XJI(C)(3) above, the Claims Administrator also shall make claim fonns available to eligible Settlement Class members who make a written or oral request for a claim fonn.
a. The Claims Administrator shall promptly, but no more than two (2) business days after receiving a request, calculate the eligible Settlement Class member's point allocation and mail a claim fonn that includes the eligible Settlement Class member's point allocation and instructions for completing the fonn (in the fonn annexed as Exhibit E) via first
52

class United States Mail, postage prepaid or via facsimile or email, to the eligible Settlement Class member requesting the form.
b. If an eligible Settlement Class member requests a claim form from Class Counsel, or from MetLife or its counsel, the eligible Settlement Class member shall be referred to the Claims Administrator and/or the Claims Administrator's website. The Claims Administrator shall retain documentation of all requests for claim forms it receives and the date of the request until the Claims Administrator is relieved of its duties under this Decree, upon final distribution of all Residual Funds pursuant to SectionXII(K)(3).
F. Class Monetary Fund Distribution FomlUla
I. Each Qualified Claimant, as defined in Section XII(G)(I), shall be entitled to a minimum payment 0[$1,000 (One Thousand Dollars).
2. In addition, each Qualified Claimant shall be entitled to a pro rata share of the Class Monetary Fund, as provided for in this Decree, based on an assignment of points, as set forth below, reflecting: (i) her total combined tenure as an FSR or MLFS Agency Manager, (ii) the MLFS position(s) she held during the Class Period, and (iii) the time and effort she spent in participating in pre-class certification discovery.
a. Tenure Points: Information regarding a Qualified Claimant's total combined tenure in an FSR and/or Agency Manager position with MLFS will be obtained from or verified by documentation MetLife will provide to the Claims Administrator in accordance with the provisions of Section XU(C)(I). Points will be allocated based on tenure in the following manner:
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TENURE POINTS
Employment in an FSR or MLFS Agency Manager position for less than one year Employment in an FSR or MLFS Agency Manager position for one to up to two years Employment in an FSR or MLFS Agency Manager position for two to five years Employment in an FSR or MLFS Agency Manager position for more than five years

5 points 10 points IS points 20 points

FUl1her, each Qualified Claimant who is no longer employed by MetLife as of the Preliminary Approval Date shall be entitled to an additional ten (10) points in recognition of the fact that she will not participate in nor benefit from the prospective injunctive relief provided by this Decree.

b. Points for Position(s) Held: Infonnation regarding the FSR and/or Agency Manager positions an eligible Settlement Class member held during the Class Period will be obtained from or verified by documentation MetLife will provide to the Claims Administrator in accordance with the provisions of Section XII(C)(I). Points will be allocated based on positions held during the Class Period in the following manner:

MLFS POSITION POINTS

Financial Service Representative (FSR) Functional Manager Second-line Manager First-line Manager

5 points 10 points IS points 20 points

A Qualified Claimant who held more than one MLFS position during the Class Period shall be entitled to points only for the highest position held. For example, a Qualified Claimant

54

who was both an FSR and a Second-line Manager shall be entitled to fifteen (15) MLFS Position Points.
c. Points for Time and Effort Participating in Pre-Class Certification Discovery: Each Qualified Claimaut, exclusive of the Named Plaintiffs, who provided deposition testimony in this case ("Class Member Deponents") shall be entitled, in addition to her MLFS tenure and position points, to an additional ten (10) points, in recognition of the time and effort spent in participating in pre-class certification discovery. Each Qualified Claimant, exclusive of the Named Plaintiffs, who provided a sworn declaration filed with the COUlt (but who did not provide deposition testimony in this case) ("Class Member Declarants") shall be entitled, in addition to her MLFS tenure and position points, to an additional five (5) points, in recognition of the time and effort spent in participating in pre"class certification discovery.
d. The points for all Qualified Claimants will be aggregated. Each Qualified Claimant's proportionate share of the total aggregated points will be detennined. A Qualified Claimant shall be allocated her proportionate share of the Class Monetary Fund available for distribution after deduction of (i) the employer's share of FICA and any other employer's share of payroll payments with respect to all payments to the Named Plaintiffs and all payments to be made to Qualified Claimants from the Class Monetary Fund; and (ii) the minimum per claimant awards to be made pursuant to Section XII(F)(I).
G. Processing of Claim Forms, Claimant Challenges to Point Allocations
I. The Claims Administrator shall process and review for timeliness, completeness and validity each claim form it receives. Claims that are untimely, incomplete (e.g., not signed by the claimant) or otherwise invalid shall be rejected. Each eligible Settlement
55

Class member who has not timely opted out of the Settlement Class for purposes of participation in the monetary portion of the settlement and who submits a claim form determined by the Claims Administrator to be timely, complete and otherwise valid shall be deemed a "Qualified Claimant. "
a. If the Claims Administrator determines that a claim is untimely, incomplete or otherwise invalid, the Claims Administrator shall, no later than thirty (30) days after the expiration of the claim filing deadline or five (5) days after the Claims Administrator's receipt of a claim fonn postmarked after the claim filing deadline, whichever is later, mail, via first class United States Mail, postage prepaid or via email, a notice to each such claimant advising her that her claim is denied and the reason for the denial.
2. Challenges to Assigned Points
a. Any eligible Settlement Class member wishing to challenge the points assigned to her on her claim fonn must do so in writing postmarked no later than a date to be detennined by the Court, and the claim fonn shall state the date by which a challenge to the point assignment must be postmarked. An eligible Settlement Class member challenging the points assigned to her must provide documentation supporting her challenge (e.g., a W-2 foml indicating the eligible Settlement Class member was employed by MetLife in an FSR or MLFS Agency Manager position for a period longer than that reflected by the eligible Settlement Class member's assigned tenure points). The Claims Administrator may confer with Class Counsel in its detemlination of the adequacy of the documentation an eligible Settlement Class member provides in support of her challenge to her assigned points. The Claims Administrator also may request additional infonnation from MetLife reasonably related to detennining whether a claim
56

is valid and/or the assignment of points to an eligible Settlement Class member. The Claims Administrator shall notify each eligible Settlement Class member who challenges her assigned points of the Claims Administrator's detennination ofthe challenge and the eligible Settlement Class member's reassigned points, ifany, no later than thirty (30) days after the Claims Administrator's receipt ofthe written challenge to assigned points.
b. Where an eligible Settlement Class member is able to provide such adequate documentation, her points will be recalculated and her individual award will be based on the reassigned points. The points assigned to Qualified Claimants who submit timely, complete and otherwise valid claims and who do not challenge their point assignments (or who challenge their point assignment but are unable to provide adequate documentation to support their challenge to the assigned points) shall be deemed conclusive and shall be used in calculating the Qualified Claimants' individual awards.
H. Claim Detemlination Process and Notification of Final Claim Determination and Point Allocation
I. The Claims Administrator shall complete its review and detemlination of all claims, point assignments and challenges no later than ninety (90) days following the expiration of the claim filing deadline.
a. No later than one hundred twenty (120) days after the expiration of the claim filing deadline, the Claims Administrator shall prepare and submit to Class Counsel and MetLife for their review a final list (the "Qualified Claimant List") containing the following infonnation: (i) the names and current addresses of all Qualified Claimants; (ii) the aggregate points allocated to all such Qualified Claimants; (iii) the pro-rata percentage of the aggregate
57

points for each Qualified Claimant; and (iv) the gross amount to be paid to each Qualified Claimant, which shall be the sum of(I) the minimum payment of$I,OOO (One Thousand Dollars) to be paid to each claimant pursuant to Section XII(F)(1); and (2) such Qualified Claimant's pro rata share of the Class Monetary Fund available for distribution in accordance with Section XII(F)(2); and (v) the net amount to be paid to each Qualified Claimant, and an itemization of the amounts withheld from the gross payment to each Qualified Claimant.
b. No later than one hundred twenty (120) days after the expiration of the claim filing deadline, the Claims Administrator shall prepare and submit to Class Counsel and MetLife for their review a reconciliation of all payments to be made from the Monetary Settlement Fund including (i) aggregate gross and net payments to the Named Plaintiffs in accordance with Section XII(A)(I)(c); (ii) aggregate gross and net payments to Qualified Claimants in accordance with Section XlI(F); (iii) aggregate tax withholdings to be remitted to each applicable federal, state and local taxing authority; (iv) the amount to be paid from the Monetary Settlement Fund in respect of the employer's share of FICA and any other employer's share of payroll payments on all distributions from the Monetary Settlement Fund; and (v) the amount of the Reserve Fund, pursuant to Section XlI(A)(I)(d), which will remain.
c. Upon receipt of the Qualified Claimant List and the reconciliation, Class Counselor MetLife shall promptly (but in no event later than ten (IO) business days after receipt of the Qualified Claimant List and reconciliation) notify the Claims Administrator and the other party of any errors in the List or reconciliation, and provide any supporting documentation. Where appropriate, the Claims Administrator shall modify the Qualified Claimant List and/or reconciliation and shall, no later than two (2) business days after receipt of
58

the notification provided for in this subparagraph c, submit to Class Counsel and MetLife a revised Qualified Claimant List and reconciliation.

d. No later than one hundred twenty (120) days after the expiration of the claim filing deadline, the Claims Administrator shall provide Class Counsel and MetLife with a copy of any returned and/or undeliverable mailings to the Settlement Class members.

e. At the request of Class Counselor MetLife, the Claims Administrator shall provide copies of any documents in its possession related to the Mitchell Action settlement.

f.

Upon final distribution of all Residual Funds pursuant to Section

XII(K)(3), the Claims Administrator shall provide to Class Counsel and MetLife all documents

in its possession related to the Mitchell Action settlement.

r. Insufficient Number of Claims

I. In the event that fewer than sixty (60) percent of the eligible Settlement Class members submit claims, upon exhaustion of the notice and claims procedures set forth in Section XII(C) and in the Memorandum of Understanding annexed as Exhibit D, MetLife and Class Counsel shall meet and confer concerning what, if any, additional efforts should be made in order to contact eligible Settlement Class members who have not submitted claim fonus. During this forty-five (45) day period and until the earlier of (i) sixty (60) percent or more of the eligible Settlement Class members submit claim fonus, or (ii) six (6) months from exhaustion of the notice and claims procedures set forth in Section Xn(C) and the Memorandum of

59

Understanding annexed as Exhibit D (the "Stay Period"), the obligation to make payments under this Decree to Qualified Claimants will be stayed.
2. If, following the Stay Period, sixty (60) percent or more ofthe eligible Settlement Class members have not submitted claim forms, then all Qualified Claimants shall forthwith be paid the minimum payment amount of$I,OOO (One Thousand Dollars) set forth in Section XII(F)(l) and MetLife and Class Counsel will meet and confer conceming how the remainder of the Class Monetary Fund should be expended.
3. If, after a forly-five (45) day meet and confer period, beginning on the day that the above minimum payments are made to the Qualified Claimants, MetLife and Class Counsel have not reached agreement as to how the remaining Class Monetary Fund should be expended, then they will each submit proposals on this subject, within thirty (30) days thereafter, to the Special Master.
4. The Special Master shall render a recommendation as to how the remaining Class Monetary Fund should be expended within thirlY (30) days of receipt of MetLife's and Class Counsel's proposals on this subject. The Special Master's recommendation, unless otherwise appealed pursuant to Section VIII(H)(4), shall be binding on MetLife and Class Counsel.
5. In making his recommendation, the Special Master will take into consideration the purposes of the Decree; and whether any Qualified Claimant would be receiving a windfall payment not contemplated by the Decree.
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6. In no event shall the Special Master recommend that any Qualified Claimant receive, inclusive of the minimum payment, more than one hundred fifty (I 50) percent of what such individual would have received had sixty (60) percent of the eligible Settlement Class members filed claims (based on the assumption that such sixty (60) percent of the eligible Settlement Class members would have been entitled to sixty (60) percent ofthe total points allocated to all eligible Settlement Class members).
7. In the event that the decision of the Special Master is appealed to the Court as set forth in Section VIII(H)(4), the Court's standard of review shall be whether the Special Master abused his discretion. The Court, in making such a detennination, shall consider the factors set forth in paragraph 5 of this Section, and in no event shall the COUIi recommend that any Qualified Claimant receive more than the maximum amount specified in paragraph 6 of this Section.
J. Tax Treatment o[Distributions [rom Monetary Settlement Fund
1. Class Counsel, MetLife and the Claims Administrator named in Section XII(B)(I) intend that the Monetary Settlement Fund be treated as a "qualified settlement fund" within the meaning of Treas. Reg. Section I.468B- I. In addition, the Claims Administrator and, as required, MetLife, shall jointly and timely make the "relation-back election" (as provided for in Treas. Reg. Section 1.468B-I(j)(2» back to the earliest pennitted date. Such election shall be made in compliance with the procedures and requirements contained in such treasury regulations. It shall be the responsibility of the Claims Administrator to timely and properly prepare and deliver the necessary documentation for signature by all necessary parties, and thereafter to cause the appropriate filing to occur.
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2. For the purposes of Section 468B of the Intemal Revenue Code ofl986, and Treas. Reg. Section 1.468B-2(k)(3), the "administrator" shall be the Claims Administrator. The Claims Administrator shall timely and properly file all informational and other tax retums necessary or advisable with respect to the Monetary Settlement Fund (including, without limitation, the retums described in Treas. Reg. Section 1.468B-2(k)(l) and Treas. Reg. Section 1.468B-2(1». Such returns (as well as the election described in paragraph I) shall be consistent with this paragraph 2.
3. All monetary distributions from the Monetary Settlement Fund to Named Plaintiffs and Qualified Claimants shall be characterized as wages for purposes of tax treatment. The Claims Administrator shall calculate and deduct from the Class Monetary Fund the employer's share of FICA taxes with respect to all payments to be made to the Named Plaintiffs and to Qualified Claimants from the Monetary Settlement Fund. The Claims Administrator shall calculate and withhold from each gross payment to a Named Plaintiff or Qualified Claimant the amounts due for applicable federal, state and local taxes; the amount of tile employee's share of FICA; and any other applicable tax withholdings. The Claims Administrator shall distribute to each Named Plaintiff and Qualified Claimant who receives a payment from the Monetary Settlement Fund her respective W-2 tax reporting foml and any other applicable reporting forms and shall make all applicable tax reporting to the IRS or other appropriate federal, state or local agencies.
4. Named Plaintiffs and Qualified Claimants shall be responsible for payment of any income taxes owed to any governmental authority on distributions from the Monetary Settlement Fund. Neither the Claims Administrator, Class Counsel, nor MetLife or its attorneys will provide advice to the Named Plaintiffs or Qualified Claimants concerning what
62

taxes are owed. Named Plaintiffs and Qualified Claimants should consult with a tax advisor if they have questions concerning their tax liabilities on distributions from the Monetary Settlement Fund.
5. Except as otherwise specifically stated herein, MetLife shall bear no other responsibility in connection with (i) the performance by the Claims Administrator of its duties under the Decree; (ii) any detenninations of the ClaiIi1s Administrator with respect to distributions from the Monetary Settlement Fund (induding eligibility and point allocation detem1inations); (iii) the tax treatment of such distributions; or (iv) the apportionment, allocation or distribution of the Monetary Settlement Fund.
K. Class Monetary Fund Distributions
I. Mailing of Claim Award Checks: No later than twenty-one (21) days after the later of (i) the Effective Date; or (ii) the date the Claims Administrator submits the Quali fied Claimant List (or revised Qualified Claimant List) to Class Counsel and MetLife, the Claims Administrator shall mail via first class United States Mail, postage prepaid, checks in the gross amounts specified on the Qualified Claimant List (or revised Qualified Claimant List) less applicable withholdings as detelmined in accordance with the provisions of Section XII(J)(3), to each Qualified Claimant. The checks shall be accompanied by a cover letter that explains the basis on which the monetary award and deductions were calculated and the individual class member's W-2 tax reporting form. All checks shall be negotiable for not more than six (6) months from the date of mailing, and each check and accompanying cover letter shall so indicate. The envelope in which each check is mailed shall have on it the Claims Administrator's address as the retum address.
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2. Returned Checks: In the event a check is returned to the Claims Administrator as "undeliverable," the Claims Administrator shall, not later than seven (7) days after receipt of the returned check, attempt to locate the Qualified Claimant by conducting an IRSC or comparable database search. If the Claims Administrator is able to locate the Qualified Claimant through the database search, it shall re-issue the check to the Qualified Claimant at the new address. Such reissued checks shall be issued within thirty (30) days of the mailing ofthe initial checks, and negotiable for not more than six (6) months from the date of remailing. All returned checks to Qualified Claimants for whom the Claims Administrator is unable to find a new address or that are returned again after mailing to a second address, shall be held by the Claims Administrator for not more than six (6) months. If the Qualified Claimants whose checks are being held by the Claims Administrator do not claim the checks within that time period, the funds shall be considered Residual Funds and distributed in accordance with Section XII(K)(3) of this Decree.
3. Residual Funds
a. Any funds remaining in the Monetary Claim Fund (including the Reserve Fund established pursuant to Section XII(A)(l)(d)) one year after initial distribution of settlement checks to Qualified Claimants, Named Plaintiffs and other distributions provided for in this Decree, including all unclaimed funds, shall be deemed Residual Funds.
b. Class Counsel and MetLife shall meet and confer concerning what organization should be designated as the recipient of the Residual Funds, and shall jointly direct the Claims Administrator, in writing, to disburse such Residual Funds to the designated recipient. Following such disbursement, the Claims Administrator shall notify Class Counsel and MetLife,
64

in writing, that such disbursement has been made. Upon final distribution of all Residual Funds pursuant to this Section, the Claims Administrator shall be relieved of its duties.

c.

In the event that MetLife and Class Counsel cannot agree on the

recipient of the Residual Funds, such dispute shall be governed by the Dispute Resolution

Procedures set forth in Section VIII(H).

XIII. ATTORNEYS' FEES, COSTS AND EXPENSES
A. Plaintiffs will file a motion for an award, not to exceed $3,400,000 (Three Million Four Hundred Thollsand Dollars), for payment of the attorneys' fees, costs and litigation-related expenses incurred by all counsel for Plaintiffs and the Settlement Class in this matter. MetLife agrees that it will not oppose the Motion. Of the $3,400,000 (Three Million Four Hundred Thousand Dollars), $3,250,000 (Three Million Two Hundred Fifty Thousand Dollars) represents complete payment for fees, costs and expenses incurred to date and to be incun'ed through Final Approval of this Decree and final distribution of the Monetary Settlement Fund provided [or in this Decree. The remaining $150,000 (One Hundred Fifty Thousand Dollars) represents payment, at the rate of$50,000 (Fifty Thousand Dollars) per year for the three years of this Decree, for Class Counsel's attomeys' fees, costs and expenses for monitoring MetLife's compliance with the Decree.

B. MetLife shall pay to Class Counsel the amount awarded by the Court for attomeys' fees, costs and expenses within seven (7) days of the Effective Date, and shall issue a Foml (or Fonns) 1099 to Class Counsel for such fees, costs and expenses pursuant to the Court's order.

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C. The Court's award of fees, costs and expenses under this Section is in full and complete satisfaction of all fees, costs and expenses incurred with respect to all claims that were or could have been asserted by the Named Plaintiffs and the Settlement Class in the Mitchell Action including, without limitation (i) all fees, costs and expenses incurred by all Class Counsel and Lieff, Cabraser, Heimann & Bernstein; and (ii) any statutory award of attorneys' fees to Class Counselor to Lieff, Cabraser, Heimann & Bernstein pursuant to the Civil Rights Act of 1964,42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 198Ia("Title VII") and 42 U.S.C. § 1988.

D.

Class Counsel represent that (i) up to the date of Preliminary Approval they are

not aware of any other attorneys other than themselves and Lieff, Cabraser, Heimann &

Bernstein who have represented the Named Plaintiffs or the Settlement Class in connection with

the Mitchell Action; and (ii) they will indemnify MetLife in connectioIl with any claims by Lieff,

Cabraser, HeimanIl & Bemstein to recover fees, costs or expenses, including the cost of

defending against such claims.

XIV. FINAL APPROVAL, AND FINAL JUDGMENT AND ORDER APPROVING SETTLEMENT
A. After the Final Approval Hearing, and upon the Court's approval of this Consent Decree, MetLife and Class Counsel shall seek and obtain from the Court a Final Judgment and Order Approving Settlement, which shall, among other things:

I. approve this Consent Decree and the proposed settlement as fair, reasonable and adequate, consistent and in compliance with all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Rules of the Court and any other applicable law, and in the best interests of each of
66

the Named Plaintiffs and the members of the Settlement Class; direct MetLife and Class Counsel to implement and consummate this Consent Decree according to its terms and provisions; and declare this Consent Decree to be binding on - and, as to all claims and issues that have or could have been asserted in the Initial Complaint, the First Amended Complaint or the Second Amended Complaint, to have res judicata and other preclusive effect in all pending and future lawsuits or other proceedings encompassed by the Releases as set forth in Section VII, maintained by or on behalf of - Named Plaintiffs and all other members of the Settlement Class, as well as their heirs, executors and administrators, successors and assigns;
2. finally certify the Settlement Class for settlement purposes;
3. dismiss the Mitchell Action on the merits and with prejudice, without fees or costs except as provided in this Consent Decree;
4. incorporate the Releases set fOlth above in Section VI!, make the Releases effective as of the date of the Effective Date of the Consent Decree, and forever discharge the Releasees from any claims or liabilities arising from or related to the matters encompassed by the Releases;
5. pennanently bar and enjoin <ill members of the Settlement Class who have not been timely excluded from the Settlement Class from filing, commencing, prosecuting, maintaining, intervening in, participating in (whether individually, as class members or otherwise), or receiving any benefits or other relief from any other lawsuit or proceeding, or receiving any individual benefits from any administrative, regulatory or other proceeding or order, in any jurisdiction, based on or relating to the claims and causes of action, or the facts and
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circumstances relating thereto, in the Mitchell Action and/or the EEOC charges filed by the Named Plaintiffs;

6. pennanently bar and enjoin any persons from asserting or maintaining any claims, pursuing any discovery from MetLife or any third party, presenting evidence, or claiming any damages, including compensatory or punitive damages, based on or encompassing, in whole or in part, any claims that were or could have been asserted in the Initial Complaint, the First Amended Complaint, and the Second Amended Complaint; provided however, that members of the Settlement Class who have timely excluded themselves from the Settlement Class shall not be enjoined from (a) proceeding with their individual actions; or (b) seeking discovery solely in connection with and related to their individual actions; and

7. appropriate bond.

require anyone seeking to appeal from the Court's rulings to post an

XV. MUTUAL NON-DISPARAGEMENT AND PUBLICITY A. Mutual Non-Disparagement Provision

MetLife and the Named Plaintiffs, in exchange for the monetary payments and releases provided under this settlement, agree to the following mutual non-disparagement provisions:

1. No corporate officer of MetLife or any MLFS manager at the Managing Director (First-Line manager) level or above ("MLFS managers bound by this provision") shall . disparage a Named Plaintiff in any statement made outside the company, except as may be required by law, regulation, the rules of any self-regulatory body or agency, or in response to a

68

validly issued subpoena. MetLife shaH advise its corporate officers and all MLFS managers bound by this provision that the case has been settled and that none of them shaH disparage any Named Plaintiff for having participated in the Mitchell Action or this settlement, and that such officers and managers shall not encourage or participate in any disparagement of any Named Plaintiff by any other MetLife employee. A Named Plaintiff may bring appropriate enforcement, injunctive, or other proceedings (including contempt proceedings) against any MetLife officer or MLFS manager bound by this provision who knowingly breaches this provision. In the event an employee of MetLife, other than a corporate officer of MetLife or an MLFS manager bound by this provision, is found to have disparaged a Named Plaintiff for her participation in the Mitchell Action or this settlement, such event will not be attributable to MetLife or its officers or MLFS managers bound by this provision unless a MetLife officer or MLFS manager bound by this provision is found to have knowingly participated in or encouraged such disparagement.
2, Each of the Named Plaintiffs agrees to refrain from publicly or in the media (a) disparaging MetLife, its products or services, and (b) taking any action designed to hann the public perception of MetLife, its products or services, except as may be required by law, MetLife may bring appropriate enforcement, injunctive, or other proceedings (including contempt proceedings) against any Named Plaintiff who breaches this provision.
B. Publicity
1. The Named Plaintiffs, the Settlement Class members, Class Counsel and MetLife agree that they will not issue or cause to be issued any press release in cOlmection with this Mitchell Action; the claims asserted therein; the settlement of this Mitchell Action; and/or this Decree (hereinafter the "covered subjects"), They further agree that they will not initiate, or
69

cause to be initiated, any contact with the media (or any member thereof) with respect to the covered subjects.
XVI. REFERENCE INQUIRIES A. Reference Ing uiries
I. It is agreed and understood that the Named Plaintiffs will direct all inquiries from prospective employers to the MetLife Human Resource Service Center which may be contacted at telephone number (877) 843-4772. In response to such inquiries, MetLife will, pursuant to CUlTent MetLife policy, only confinn the last position held by, and the dates of employment of, a Named Plaintiff. It is also agreed and understood that MetLife, in response to such inquiries from prospective employers, shall not provide any infonnation about the fact that a Named Plaintiff brought a charge of discrimination against MetLife, or pmiicipated in tbe Mitchell Action or this settlement.
XVII. CONFIDENTIALITY/RETURN OF DOCUMENTS A. Class Counsel acknowledges that during the course of this Mitchell Action, they
have received, and will continue to receive, confidential information regarding MetLife and its persOimel, including, but not limited to, personnel files, intemalmemoranda, personnel plans, programs, policies and procedures, computerized data, intemal complaints and investigation materials, and other information. Class Counsel and the Named Plaintiffs agree that they continue to be bound by the Confidentiality Order entered by the Court on September 4, 200 I, which will remain in full force and effect and govem all confidentiality issues with respect to such documents and infonnation for the TelTll of the Decree.
70

B. Class Counsel agrees that any reports and or records to be fumished or maintained by MetLife as required by this Decree, constitute confidential information and shall not be disclosed by Class Counsel to any other person or entity other than (i) to the Named Plaintiffs and only to the extent necessary to reasonably carry out their Decree monitoring functions (and who shall in no event receive any information concerning the salaries paid to particular individuals or other personnel-related information unique to particular individuals, or other nonpublic confidential business information, and who shall be barred from any further disclosure of such confidential infom1ation to any other person or entity); or (ii) to the Court in connection with a proceeding arising under this Decree. Class Counsel further agrees that any infonl1ation or reports received by them shall be used solely for the purpose of assessing compliance with this Decree, and for no other purpose (including, without limitation, in any judicial, administrative or arbitral proceeding).
C. Class Counsel agrees that upon the expiration of the statute of limitations for any malpractice action related to this Mitchell Action, they shall either (i) destroy any and all confidential infonl1ation referenced in paragraphs A. and B. of this Section and provide a certification to MetLife of the destruction of all such confidential inf01111ation; or (ii) return any and all confidential inforn1ation to MetLife, who shall be responsible for storing it at its own expense.
D. Notwithstanding anything to the contrary, Class Counsel, MetLife, the Settlement Class members and the Named Plaintiffs (and any employees, agents or representatives thereof) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this settlement and all materials of any kind (including tax opinions and/or analyses) that are provided to them related to such tax treatment or tax structure.
71

XVIII. NOTIFICATION A. Any notice hereunder shall be deemed sufficiently given if in writing and
addressed as follows (or at such other address as MetLife and Class Counsel may subsequently designate):
1. For MetLife: Allen I. Fagin, Esq., Proskauer Rose LLP, 1585 Broadway, New York, New York 10036.
2. For Class Counsel: Teresa Demchak:, Esq. or David Borgen, Esq., Goldstein, Demchak, Baller, Borgen & Dardarian, 300 Lakeside Drive, Suite 1000, Oakland, California 95612.
APPROVED BY COUNSEL FOR PLAINTIFFS
GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN
/~D~@
David Borgen (DB-3441) Teresa Demchak (TD-3441) 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417
OUTTEN & GOLDEN LLP
Adam T. Klein (AK-3293) 3 Park Avenue New York, NY 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
72

APPROVED BY COUNSEL FOR DEFENDANT PR..,,,,.fV\ Allen . Fagin ( F-4694) Amy B. Regan (AR-0317) 1585 Broadway
New York, NY 10036
Telephone: (212) 969-3030 Facsimile: (212) 969-2900
73

CLASS NOTICE
Lire Mitchell v. Metropolitan Insurance Co., Case No. 01 Civ. 2112 (WHP)
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND CONSENT DECREE
TO: ALL WOMEN WHO ARE OR WERE EMPLOYED BY METLIFE IN ITS· METLIFE FINANCIAL SERVICES DIVISION AS A FINANCIAL SERVICES REPRESENTATIVE, FUNCTIONAL MANAGER OR FIRST OR SECOND LINE MANAGER FROM AUGUST 27, 1999 THROUGH [PRELIMINARY APPROVAL DATE).
Metropolitan Life Insurance Co. ("MetLife") has agreed to settle a gender discrimination class action lawsuit now pending in the United States District Court in New York, New York. The lawsuit was brought by Plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, Janet Ramsey, and Barbara LaChance all of whom were or are employed in the MetLife Financial Services Division. Plaintiffs brought this suit on behalf of themselves and all similarly situated female Financial Services Representatives ("FSRs"), Functional Managers, Second Line Managers and/or First Line Managers (collectively referred to as "Agency Managers"). The Plaintiffs claimed that MetLife discriminated against female FSRs and Agency Managers by denying them equal employment opportunities in promotions, compensation and other tenus and conditions of employment. MeILife has denied these claims.
THE PURPOSE OF THIS NOTICE IS TO INFORM YOU OF:
• THE STATUS OF THE LAWSUIT, INCLUDING A STATEMENT OF YOUR RIGHTS WITH RESPECT TO A PROPOSED SETTLEMENT OF THE CASE;
• THE OPPORTUNITY TO FILE A CLAIM FOR A MONETARY AWARD;
• THE OPPORTUNITY TO FILE WITH THE COURT ANY OBJECTIONS YOU MAY HAVB TO THE SETTLEMENT; AND
• THE OPPORTUNITY TO EXCLUDE YOURSELF FROM THE MONETARY PORTION OF THE PROPOSED SETTLEMENT BY "OPTING OUT."
1. The Affected Class. The Settlement Class is defined as:
All females employed as Financial Services Representatives, or Functional Managers, First Line Managers or Second Line Managers (collectively referred to as "Agency Managers") by Metropolitan Life Insurance Co. in its MetLife Financial Services Division (formerly known as "MLFS") on or after August 27, 1999 through [the Preliminary Approval Date).
If you are included in the Settlement Class defined above, the proposed settlement may affect your rights. Additionally, you may be entitled to receive the benefits of the proposed settlement, including an individual monetary award.
2. Terms of Proposed Settlement. Subject to final Court approval, the Plaintiffs and MetLife have agreed to the entry of a Consent Decree that requires MetLife to implement the following injunctive relief provisions: (1) appoint a Decree Monitor to monitor and report to MetLife's management and Class Counsel on the Company's implementation of the Decree; (2) hire at least six additional HR Generalists to support MLFS; (3) continue its internal employee complaint procedures; (4) continue to publish its anti-discrimination and anti-harassment policies; (5) provide diversity training to all incumbent FSRs, Agency Managers, and Regional and Zone Vice Presidents by December 31, 2005 and provide such training to newly hired/appointed FSRs, Agency Managers and Regional and Zone Vice Presidents within six months of their hire or appointment; (6) conduct job analyses of the skills, knowledge, abilities and personal characteristics necessary for Agency Manager positions and develop and distribute to all MLFS employees written job deSCriptions and selection criteria for these positions based on the job analyses; (8) use best efforts to increase the representation of women in Agency Manager positions annually based upon "Benchmarks" established under the Decree; (9) implement a performance assessment instrument that assesses the performance of First and Second line managers against uniform job-related criteria and include in the annual evaluations of Zone Vice Presidents, First Line Managers, and Second Line Managers an assessment of their efforts to promote diversity in the workforce and commitment to MetLife's equal employment opportunity goals and policies; (10) provide to all incumbent Agency Managers responsible for training inexpelienced FSRs by July 1,2005, live "Roadmap for Inexperienced FSR Training" that will include modules on technical and soft skills, sales presentations, activity monitoring, setting expectations and coaching techniques; (11) continue to actively seek female recruits for FSR and Agency Manager positions; (12) offer a management development program for sales personnel with high potential and a stated interest in a management career beginning by July 1, 2005; (13) develop and distribute to MLFS Zone Vice Presidents and First Line Managers written criteria for the distribution of Sales Office Development Funds, inforce blocks
A

of business and sales leads, and track and report the distribution of Sales Office Development Funds and participation in the "Deliver the Promise" and "MetAdvice" leads programs by gender; and (16) maintain records and report on its implementation of each of the components to Class Counsel on a periodic basis during the three year term of the Consent Decree, and establishes a class monetary fund. This relief will be in final settlement of all claims of the Plaintiffs and Settlement Class members against MetLife for alleged employment discrimination on the basis of gender that were raised or could have beeu raised in this case. The very brief and general summary of the proposed Consent Decree in this Notice does not include all the terms and conditions of the proposed settlement. The only complete statement of the terms of the proposed settlement is found in the actual Consent Decree that the Court has provisionally approved. Copies of the proposed Consent Decree are available for inspection or copying at your expense at the Office of the Clerk of the United States District Court for the Southern District of New York at the address shown in paragraph 9 below, or at [website address].
3. Reasons for Settlement. After extensive discovery and negotiations, Class Counsel have concluded that the terms and conditions of the settlement are fair, reasonable, and adequate, and in the best interests of the Settlement Class. In reaching this conclusion, Class Counsel has analyzed the benefits of the settlement, the risk of an unfavorable outcome in the litigation in this case, as well as the expense and length of continued proceedings necessary to prosecute this action through a trial and possible appeals. MetLife does not admit any wrongdoing or liability by entering into this settlement, and has agreed to these settlement terms because it wishes to avoid further costly, disruptive, and time-consuming litigation and
desires to obtain complete and final settlement of the claims of the Plaintiffs and the Settlement Class members.
4. Monetary Payments. MetLife has agreed to establish a Monetary Claim Fund of Five Million Dollars ($5,000,000.00) to pay the claims of the Plaintiffs and "eligible Settlement Class members." Settlement Class members whose claims against MetLife for alleged gender discrimination were adjudicated or settled and who, following such adjudication or settlement, were not employed by MLFS in a Sales Position Or Sales Management Position, are ineligible to receive any monetary payment and are not "eligible Settlement Class members." Two Hundred Thirty-Five Thousand Dollars ($235,000) from the Monetary Claim Fund will be allocated to pay the claims of Representative Plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, and Individual Plaiutiff Barbara LaChance, in full settlement of their claims in this Action. The remainder of the Monetary Claim Fund (less a $25,000.00 Reserve Fund) will be used to pay the claims of eligible Settlement Class members who have not timely opted out of the Settlement Class for purposes of participation in the monetary portion of the settlement and who submit a claim form determined by the Claims Administrator to be timely, complete and otherwise valid (hereinafter "Qualified Claimants") and applicable taxes. Each Qualified Claimant who files a timely claim executed under penalty of perjury is entitled to a minimum payment of One Thousand Dollars ($1000.00) from the Monetary Claim Fund. In addition, each Qualified Claimant (in accordance with the tenns of the Consent Decree) who files a timely claim executed under penalty of perjury is entitled to a pro rata share of the remaining Monetary Claim Fund based on an assignment of points for: (i) her total combined tenure as an FSR or Agency Manager, (ii) the positions she held during the Class Period, (iii) in recognition of the time and effort she spent participating in pre-certification discovery and (iv) status as a fonner MetLife employee. The exact individual monetary award for each Qualified Claimant will be determined by the claims procedure, eligibility requirements, and other limitations set forth in the Consent Decree. For eligible Settlement Class members, a claim form and instructions are included with this Notice.
5. Attorneys' Fees and Litigation Costs and Expenses. Class Counsel have applied to the Court for an award in an amount not to exceed Three Million Four Hundred Thousand Dollars ($3,400,000.00) for all attorneys' fees, costs and litigation related expenses incurred in the litigation to date, and for future work to be perfonned by Class Counsel through final approval of the Decree, to oversee the claims procedure and to monitor MetLife's implementation and compliance over tl,e three years of the Decree. MetLife does not oppose Class Counsel's application.
6. Filing a Claim for a Monetary Award. If you wish to be considered for a monetary award in this case, you must complete the enclosed claim form, sign and date it under penalty of perjury, and return it to Mitchell v. Metropolitan Lifo Insurance Co. Claims Administrator, c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177, 1-800207-0343 postmarked no later than [date]. If you do not file a claim by [date] you will not be eligible to receive any monetary payment from the Monetary Claim Fund.
7. Binding Effect. The proposed Consent Decree, if finally approved by the Court, will be binding on all members of the Settlement Class and will bar any person who is a member of the Settlement Class from seeking relief from MetLife, other than relief provided for in the Consent Decree, for all claims that were or could have been asserted in the Initial Complaint, the First Amended Complaint, and the Second Amended Complaint against MetLife and any of its past, present or future parent entities, partners, subsidiaries, affiliates, divisions, employee benefit andior pension plans or funds, successors and assigns and any of its or their past, present or future directors, officers, attorneys, agents, trustees, administrators, employees, or assigns (whether acting as agents for MetLife or in their individual capacities), unless she excludes herself from or opts out of the monetary portion of the settlement pursuant to the procedures specified in paragraph 8, below.

8. Opt-Out Procedure. If you wish to exclude yourself from the monetary portion of the settlement, you must file a written Opt-Out Statement with Mitchell v.. Metropolitan Life Insurance Co. Claims Administrator, c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177. Your Opt-Out Statement must be received by the Claims Administrator on or before [date). You should write the name of the case, Mitchell v. Metropolitan Lite Insurance Co., Case No. 01 Civ. 2112 (WHP), on your Opt-Out Statement.

If you opt out of this lawsuit: (a) you will have no right to file a claim for a monetary award or to receive any monetary award under the settlement of this case; (b) you will not be bound by the monetary relief portions of the settlement in this lawsuit; and (c) you may bring a separate individual lawsuit against MetLife. If you opt out of this lawsuit and bring a separate individual lawsuit, you may lose your case and receive nothing, or you may obtain less money than you can get under this settlement, even if you prevail in your separate lawsuit, and it may take several years to obtain any such money.

To opt out of this lawsuit, you must submit your full name, address, Social Security number, day and evening telephone numbers, and a signed and dated copy of the following statement in writing:

"I understand that by requesting to be excluded from the class monetary settlement, I will receive no money from the settlement fund created by MetLife under the Mitchell Consent Decree. I understand that if I am excluded from the class monetary settlement, I may bring a separate lawsuit against MetLife seeking damages; however, I understand that in such a separate lawsuit: (i) I may receive nothing or less than I would have received if I had filed a claim under the class monetary settlement procedure; and (ii) MetLife may assert all applicable defenses to any claims asserted by me. I also understand that I may not seek exclusion from the class for equitable and injunctive (non-monetary) relief, and that I am bound by the equitable and injunctive provisions of the Mitchell Consent Decree."

9. Objections to the Consent Decree. If you believe that the proposed Consent Decree should not be finally approved by the Court for any reason, you may object to the proposed Decree. If you want to object to the proposed Consent Decree, you must file a written objection stating the basis of your objection and the specific provision(s) of the settlement to which you object with Mitchell v. Metropolitan Life Insurance Co. Claims Administrator, c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177, on or before [date). You also may appear at the hearing to be held on [date) at [time) at the United States District Court for the Southern District of New York, United States Courthouse, 500 Pearl Street, New York, New York 10007 to have your objection heard by the Court, but objections not previously filed in writing will not be considered. Any attorney who will represent an individual objecting to the Consent Decree must file a notice of appearance with the Court and serve counsel for all parties (see names and addresses in paragraph 11 below) on or before [date). All
Lite objections or other correspondence must state the uame and number of the case, which is Mitchell v. Metropolitan
Insurance Co., Case No. 01 Civ. 2112 (WHP).

10. Further Information. If you have any questions about the settlement, including the process for filing a claim for a monetary award, you may call or write Mitchell v. Metropolitan Life Insurance Co. Claims Administrator, clo Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177,1-800-207-0343.

II. Class Counsel and Counsel for Defendant.

Counsel for the parties are:

CLASS COUNSEL:

Adam Klein Nantiya Ruan Outten & Golden 3 Park Avenue NewYork,NY 10016

Teresa K. Demchak David Borgen Roberta Steele Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612

COUNSEL FOR DEFENDANT, METLlFE:

Allen l. Fagin Amy B. Regan Proskauer Rose LLP 1585 Broadway New York, New York 10036-8299

12. Obtaining Copies of the Consent Decree. YOU MAY OBTAIN A COPY OF THE CONSENT DECREE AT YOUR EXPENSE, BY CONTACTING THE OFFICE OF THE U.S. DlSTRlCT COURT CLERK AT THE ADDRESS SET FORTH IN PARAGRAPH 9 ABOVE, OR BY DOWNLOADING A COPY FROM [website address].

13. If the Consent Decree Is Not Approved. If the Consent Decree is not finally approved by the Court, the conditional settlement will be voided, no money will be paid, and litigation of the case will continue. However, if that happens there is no assurance: (a) that a class will be certified; (b) that the litigation would result in a judgment favorable to the class; (c) that a favorable judgment, if any, would be as favorable to the class as this settlement; or (d) that any such favorable judgment would be upheld on appeal.
14. Address Changes. It is your responsibility to keep Rosenthal & Company LLC updated with your address. If you do not inform Rosenthal & Company LLC of any address corrections or changes, any potential entitlement you may have to receive a monetary award may be forfeited Please sign and mail or email any change of address along with your Social Security number, date of birth, former address and new address to: Mitchell v. Metropolitan Life Insurance Co. Claims
Administrator, clo Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177 or [insert email address).

Dated this _ _ _ _ day of _ _ _ _ _, 2003.

Clerk of Court, United States District Court Southern District of New York

Burley, Maria Catanzaro, Kristen Dorafshar, Faranak Frederick, Kathleen B. Hansen, Dorian Hansen, Marianne Kiel, Cyndy Marcum, Karen Martin, Mary Ong, Anita Poke, Joanna Reph, Susan T. Sweeney, Kathleen Trivedi, Mrubula Trivisonno, Laura Westbrook, Vicky K. Young, Renee Zappulla, Paula

Summary of Consent Decree in Mitchell v. Metropolitan Life Insurance Co., Inc.

MetLife and the plaintiffs in Mitchell v. Metropolitan Life Insurance Co., Inc., a class action br01,lght on behalf of female current and former Financial Service Representatives ("FSRs"), Functional Managers and First and Second line agency managers ("Agency Managers") in MetLife's MLFS division have entered into a Consent Decree to settle the case. The Consent Decree was given final approval by the Court on _ _ _---,----:. In entering into the Decree, MetLife denies that it has engaged in any unlawful discrimination against female FSRs, Functional Managers or Agency Managers in promotions, compensation or any other terms or conditions of employment. MetLife entered into the settlement to avoid the distraction, inconvenience and expense of further litigation and to underscore its commitment to providing equal employment opportunities to all employees.

This summary describes the major programmatic components and MetLife's basic obligations in the Consent Decree. If you would like to review the Consent Decree in its entirety, you may access it at [website address].

1. Appointment of Decree Monitor.

MetLife has appointed

to serve as the Decree Monitor.

_ _ _ _'s duties as Decree Monitor include monitoring and reporting to MetLife's

management and to Mitchell Class Counsel on the Company's implementation of the

Decree.

2. Increase in HR Generalists.

MetLife will hire at least six (6) additional HR Generalists to sllpport MLFS.

3. Changes to Internal Employer Complaint Procedures.

MetLife will continue its internal employee complaint procedures and will investigate such complaints promptly and through face-to-face interviews with significant fact witnesses where the complaint involves significant credibility deternlinations or allegations of egregious conduct.

4. Continued Publication and Enforcement of MetLife's Equal Emplovment Opportunity Policies.

MetLi fe will continue to publish and enforce through appropriate corrective action, up to and including termination, its anti-discrimination and anti-harassment policies.

5. Diversity Training.

MetLife will complete its roll-out of diversity training to all incumbent FSRs, Functional Managers, Agency Managers, Regional and Zone Vice-l'restdentS'by

December 31,2005. Newly hired/appointed FSRs, Functional Managers, Agency Managers and Regional and Zone Vice Presidents will receive such training within six months of their hire or appointment.
6. Job Analyses.
MetUfe will conduct job analyses of the Functional Manager and Agency Manager positions and will develop and distribute to all MLFS employees, via the Company's intranet, writtenjob descriptions and selection criteria for these positions based on the job analyses.
7. Increase of Female Agency Managers.
MetLife will use its best efforts to increase the representation of women in Agency Manager positions in 2004-2006. The Decree establishes "Benchmarks" for the representation of women in these positions.
8. Manager Evaluations.
Met Life will implement a perfonnance assessment instrument that assesses the performance of Agency Managers against unifonnjob-related criteria. Annual evaluations of Zone Vice Presidents and Agency Managers will include an evaluation of the managers' efforts to promote diversity in the workforce and commitment to MetUfe's equal employment opportunity goals and policies, including adherence to antidiscrimination and anti-harassment policies.
9. Management Training.
MetLife will provide training to all incumbent Agency Managers responsible for training inexperienced FSRs by July 1, 2005. This training will include modules on technical and soft skills, sales presentations, activity monitoring, setting expectations and coaching techniques.
10. Recruitment of Female FSRs and Agency Managers.
MetLife will continue to actively seek female recruits for FSR, Functional Manager and Agency Manager positions in all of its Zones through such means as placing recruiting advertisements in publications geared toward professional women in the financial services industry, developing ongoing partnerships with women's organizations which provide access to potential recruits, use of outside search firms, and conducting career seminars.
II. Management Development Program.
MLFS will offer a management development program for sales personnel with high potential and a stated interest in a management career beginning by July I, :1.005. The program will include training on various aspects of the duties of Agency Managers including skills. in setting objectives, evaluation ofp.erfonnance, coaching,. c.onflict
2

resolution, compliance monitoring, expense management and employee relations. MetLife will use its best efforts to have 30% female representation in the management development program.
12. Sales Office Development Funds. MetLife will develop and distribute to MLFS Zone Vice Presidents and First Line Managers written criteria for the distribution of Sales Office Development Funds. MetLife also will track and monitor the distribution of such funds to ensure that they are distributed in a gender neutral fashion. 13. Distribution of Inforce Blocks of Business. MetLife will develop and distribute to MLFS Zone Vice Presidents and Agency Managers written criteria for the distribution of inforce blocks of business (i.e. "orphan books of business"). 14. Distribution of Leads. MetLife will develop and distribute to MLFS Zone Vice Presidents and Agency Managers written criteria for the distribution ofleads. MetLife also will advise FSRs to direct questions regarding lead distribution criteria to the Marketing Director or Managing Director of their agency. MetLife will also track and monitor participants in the "Deliver the Promise" and "MetAdvice" leads programs to ensure that women are not excluded from such programs. IS. Recordkeeping and Reporting. MetLife will maintain records regarding its implementation of each of these programmatic components and will report on its implementation of each of the components to plaintiffs' counsel on a periodic basis during the three year tenn of the Consent Decree.
3

MEMORANDUM OF UNDERSTANDING
This document will serve as a Memorandum of Understanding between Rosenthal & Company ("Rosenthal"), Metropolitan Life Insurance Company, Inc. ("MetLife") and Goldstein, Demchak, BaUer, Borgen & Dardarian and Outten &Golden LLP (collectively referred to as Class Counsel), covering the responsibilities and work that will be performed by Rosenthal in the execution of its duties as Claims Administrator of the Mitchell v. MetLife (the "Mitchell Action") settlement.
Terms of the Consent Decree:
Rosenthal has fully read and reviewed the Consent Decree ("Decree") in the Mitchell Action. Rosenthal understands and agrees to perform any and all responsibilities, obligations and/or undertakings of the Claims Administrator as set forth in the Decree, including the timeframes in which those responsibilities, obligations or undertakings must be performed. Rosenthal agrees that it will take no actions inconsistent with the terms of the Decree, including without limitation, Section XII of the Decree.
To the extent that there is an inconsistency between a term of the Decree and a term in this Memorandum of Understanding, the term of the Decree will controL
Cost:
Annexed is a budget estimating the projected cost of the responsibilities, obligations and/or undertakings of the Claims Administrator as set forth in the Decree and herein. Where estimated costs for staff time are shown, Rosenthal will bill at the rate of $75 per hour. Other costs will be billed at the unit costs shown in the estimated budget. All invoices will be issued on a monthly basis to MetLife, with a copy to Class Counsel, in accordance with the notification provision set forth in Section XVII of the Decree and will be payable when invoiced.
Database Setup:
Rosenthal will translate the class member list into the Rosenthal claims management software. Rosenthal will pre-assign a unique sequential control number to each class member, and these control numbers will be used throughout the administration process. Prior to mailing, the addresses will be updated using the National Change of Address System ("NCOA "), which updates addresses for everyone who has moved in the past three years and has filed a change of address card with the post office.
Printing/Mailing the Notice and Claim Form:
Rosenthal will format the Class Notice, Claim Form and Instructions, Rescission of Opt Out Statement, and Withdrawal of Objection, and all proofs of such documents will be submitted to MetLife and Class Counsel for approval prior to printing.
The Notice will be printed on both sides of an 8 Ih" x 14" sheet. The Claim Form will be printed as a "double postcard" (Le., printed on an8 W' x 7.3" card stock folded in half) and

the Instructions will be printed on two sides of an 8 lj," x 11" sheet. The Claim Form will be pre-printed with all information relevant to the claim: claim number (and barcode), name, address, employment dates, positions, points, and total points.
A letter size window envelope will be used for the out-going mail and a return envelope will be provided. The estimate includes the cost for Business Reply Mail postage.
The mailing will be by first class postage.
Rosenthal will track all returned undelivered mail. Rosenthal will then conduct address searches using credit bureau information for all returned mail that does not have a forwarding address, and re-mail to the class members whose new addresses are found.
Rosenthal will enter the new addresses into the class member list and re-mail all notice packets that are returned by the post office with a forwarding address.
Reminder Mailings:
To help maximize the number of claims filed, there may be, at the joint request of MetLife and Class Counsel, additional reminder mailings of a cover letter, the claim form and abbreviated instructions. These will be mailed to all class members who have not filed a claim as of the specified date(s).
In the event that fewer than the sixty (60) percent of the eligible Settlement Class members submit claim forms, additional measures may be taken at the joint request of MetLife and Class Counsel to increase the number of claims filed, including but not limited to additional reminder mailings to eligible Settlement Class members and telephone contact with eligible Settlement Class members.
Staff Organization and Training:
The Rosenthal administration team will be comprised of the Case Manager and Case Coordinator, as well as the entire call center staff. Rosenthal will train the team in the details of the administration, Claim Forms processing and telephone support. Telephone support training will include the development of questions and answers to be used as a guideline, as well as role-playing the handling of calls before going "live".
Telephone Snpport:
Toll-free live operator telephone support will be provided to answer questions from class members. The purpose of the telephone support is to provide answers regarding filling out the Claim Forms, not to provide legal advice. The names and phone numbers of class members who call for legal advice will be forwarded to whoever is jointly designated by MetLife and Class Counsel.
Opt-outs Processing:
Rosenthal will track all Opt-out requests filed, and provide the parties with copies of all 2

requests. Rosenthal will also provide the Court with copies or the originals, along with its Declaration, prior to the final approval hearing.
Claim Forms Processing:
When the forms are received they will be opened and sorted according to categories that will be determined by the information required by the form.
Claim Forms will be processed as received, and Notices of Deficiency will be mailed to class members with incomplete or unsigned Claim Forms. Rosenthal will establish a plan for handling claims with disputes regarding the data or information on the Claim Form.
When the processing work is completed, Rosenthal will provide the appropriate parties with the lists of names and addresses of valid Claim Forms received, including the distribution calculations for each claim. Claimants with rejected claims will be sent a Notice of Rejected Claim.
Payment of Claims:
Rosenthal will obtain a Taxpayer ID number for the Monetary Settlement Fund, which will be treated as a "qualified settlement fund" within the meaning of Treas. Reg. Section 1.468B-I, and open a non-interest bearing checking account at the Bank of America North Coast Commercial Banking Office in Santa Rosa, California for this Fund. In accordance with the terms of the Decree, MetLife will make a payment into the Monetary Settlement Fund. Disbursements from the Monetary Settlement Fund will be made by Rosenthal in accordance with the terms of the Decree. Rosenthal agrees that no disbursements shall be made from the Monetary Settlement Fund other than those specified in the Decree and in accordance with the provisions thereof.
Rosenthal will reconcile the distribution account on a weekly basis. It will also track returned undeliverable checks, conduct address searches and re-mailfreissue checks as necessary.
Rosenthal will withhold and remit all withholdings (including the employer's share of FICA and all other employer's share of payroll taxes), and will issue appropriate Forms W-2 to all payees, and all other appropriate forms to all taxing authorities.
Damasco & Associates of San Francisco is a CPA firm that specializes in Settlement Fund taxation. Rosenthal will retain Damasco to prepare all quarterly estimate and year-end tax returns for the Settlement Fund as needed.
This Memorandum of Understanding is agreed to by and between Rosenthal, MetLife and Class Counsel.
3

Rosenthal & Company

Metrop lit Life Insurance Company, Inc.

Daniel Rosenthal
Date: -------------
Goldstein, Demchak, Baller, Borgen & Dardarian
Name: _ _ _ _ _ _ _ _ _ _ ___ Date: ________________
Outten &Golden LLP
Name: - - - - - - - - - - - - -
Date: --------------

Name: AI/e(l T. !=~i f) Date: 1130 1c)'3

4

. ·
Rosenthal & Company

Metropolitan Life Insurance Company, Inc.

Daniel Rosenthal Date: _ _ _ _ _ _ _ __

Goldstein, Demchak, Baller, Borgen & Dardarian
---~~D: .~ .
Name: J Vf1' ~ \

Date:

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I

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Name: AJ.. ro. J.</ci{l
Date: 1/30/,,-;

Name:- - - - - - - - -
Date: _ _ _ _ _ _ _ __

5392148476·203 NYLlBl11660772 v1
4

712312003.9:34:34 AM (25169)

Rosenthal & Company

Metropolitan Life Insurance Company. Inc.

Daniel Rosenthal Date:
Goldstein, Demchak, Baller, Borgen & Dardarian
Name:_ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ __
Outten &Golden LLP
Name: _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ __

Name:_ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ __

5392148476·203 NYLl81/1660772 v1
4

7/23/2003 9:34:34 AM (25169)

Rosenthal & Company LLC Mitchell v Met Life Class Action Settlement Notice and Claims Administration Cost Estimate lile: Est030729 7/29/03

Number of Class Members

3,100

Data & Forms Setup Translate Data Files, Set up Claims Mgt System, Format Documents NCOA Address Updates Sub tota! Data & Forms Setup

30 hrs

PrintfMail Notice & Claim Form

3,100

4 pg Notice, 1 pg Inst., Dbl Postcard CF, #10 env

1st class postage

Returned Mail Handling

Remails

2%

62

Returned Undeliverable Mail

10% 310

Undeliverable Handling

10 hrs

Sub total Print/Mail Notice and Claim FOflT"!

$75,00
$2,75 $2,75 $75,00

Staff Training 3 Staff Members @ 2 hours

6 hrs $75,00

Address Searches/Remaiis # of searches # new addresses found Remails Stall time Sub total Address Searches/Remails

90%

310 279 279
5 hrs

$3,50
$3.25 $75,00

Reminder Mailings Reminder #1 Letter and Claim Formilnsts/Ret. En Reminder #2 Letter and Claim Form/lnsts/Ret En Sub Total Reminder Mailings

50% 1,550 30% 930

$ 1.75 $ 1.75

Telephone Support Projected # of calls (15% of class) Staff time (incl. Supervision & Follow"up)

465 100 hrs $75,00

Opt~out Processing Staff Hours handling Opt"out forms

3 hrs $75,00

Claims Processing Projected Claims as % of Class Projected # of Claims Business Reply Mail Processing Staff time per claim Staff Hours Processing Claims Deficiencies Mail Deficiency Notices Process Deficiency Notice Responses Staff hours processing deficiency resps. Disputes Processing Distribution Calculations Reports/DeclaratJons Follow"up with late claims Sub total processing Claims

90%,

2,790 2,790

$ OAO

B mins

372 hrs $75,00

5% 140

140

$1.50

5 mins

12 hrs . $75,00

20 hrs $75,00

5 hrs $75,00

5 hrs $75,00

1 hrs $75,00

Overnight Deliveries

Distribution Funds Management, Obtain Tax 10 States Setup for 40 States Issue checks, Reconcile Account issue forms W2 File with IRS & States Settlement Fund Tax Reporting Follow-up with returned mail/reissues Sub total Distribution
Total Estimated Notice and Administration Costs

10 hrs 400 hrs 2,790 2,790

$75,00 $ 75.00
$7,00 $5,00

1 yr $2,500 30 hrs $75,00

$2,250

$B,525

$ 2,500

171
$1,OB5 907 375
$ 2,713 1,62B

9,446 450
2,367
4,340 7,500
225

$ 1,116
27,900
209
900 1,500
375 375
75

32,450 250

$ 750 30,000 19,530 13,950 2,500 2,500 2,250

71,4BO
$ 131,008

Mitchell v. Metropolitan Life Insurance Co. Claims Administrator clo Rosenthal & Company LLC P.O. Box 6177 Novato, CA 94948-6177 1-800-207-0343
CLAIM FORM

1111111111111111111111111111111 Claim #: MET-999999-9 123 First 1 Last I
Address I Address2
City, ST ZIP

(

)------------------

Area Code Daytime Telephone Number

NamelAddress Changes (if any):

(

Area

Code

)--~-=~--------
Evening Telephone Number

Social Security Number
IMPORTANT: Your Claim Form must be POSTMARKED on or before [date).
You should review the information contained on this Claim Form carefully, provide all information requested and make any necessary corrections. If you are challenging the points assigned to you, you must provide adequate documentation to support your challenge (see enclosed Instructions).

I. MetUfe MLFS Tenure: MetLife's records indicate

you were employed in an FSR andlor MLFS Functional

Manager, Second Line Manager or First Line

Manager (collectively referred to as "Agency Manager")

position from

<Start Date> to <End Date>

for a total of <Points> points.

2. MLFS Positions Held: MetUfe's records indicate that during the Class Period (i.e. [dates]) you held the following FSR or MLFS Agency Manager positions:

<Position#l> <Position#2>

for a total of <Points> points.

3. Participation in Pre-certification Discovery: Class Counsel's records indicate that you ["provided a sworn declaration to Class Counsel" or "provided a sworn declaration to Class Counsel and gave a deposition" or "did not participate in pre-certification discovery")

for a total of <Points> points.

4. MetLife Employee Status: MetLife's records indicate that you [arelare not] a former MetLife employee

for a total of <Points> points.

5. Total Points:

<TotaIPoints>

DECLARATION

I, .,-.,-_ _-,-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _' state under penalty of perjury, that: (print name)

I am a member of the Settlement Class in this case in that I am a female who is or was employed by MetLife's MLFS division as a Financial Services Representatives ("FSRs") andlor Functional Manager, First or Second Line Manager between August 27, 1999 and [Preliminary Approval Date].

I have reviewed the information contained in paragraphs I through 5 above. The information is true and accurate.

Date: _ _ _ _ _ _ _ _ _ _ _ __

(sign name)

E

IMPORTANT: THIS CLAIM FORM MUST BE MAILED, POSTMARKED BY [date] TO: Mitchell v, Metropolitan Life Insurance Co. Claims Administrator c/o Rosenthal & Company LLC P.O. Box 6177 Novato, CA 94948-6177 1-800-207-0343
[A self-addressed return envelope is enclosed for your convenience. Be sure to place the proper postage on it.]
2

Mitchell v. Metropolitan Life Insurance Co. Claims Administrator

CLAIM FORM INSTRUCTIONS

INSTRUCTIONS FOR FILING A CLAIM FOR MONETARY AWARD

IMPORTANT NOTICE: IN ORDER FOR YOUR CLAIM FOR A MONETARY AWARD TO BE CONSIDERED, YOU MUST MAIL YOUR CLAIM FORM TO ROSENTHAL & COMPANY LLC, AND IT MUST BE POSTMARKED ON OR BEFORE [DATE].
I. You are eligible to file the enclosed Claim Form ONLY IF you are an "eligible member of the Settlement Class." The Settlement Class includes all women employed as Financial Services Representatives, or Functional Managers, Second Line Managers and/or First Line Managers (collectively referred to as "Agency Managers") by Metropolitan Life Insurance Co. in its MetLife Financial Services Division (formerly known as "MLFS") on or after August 27,1999 through [the Preliminary Approval Date] (the "Class Period"). Settlement Class members whose claims against MetLife for alleged gender discrimination were adjudicated or settled and who, following such adjudication or settlement, were not employed by MLFS in a Financial Services Representative or Agency Manager position, are not "eligible members of the Settlement Class" and are not eligible to receive any monetary relief under the terms of this settlement.
2. Under the terms of the settlement, each eligible Settlement Class member who files a timely claim executed under penalty of perjury is entitled to a minimum payment of One Thousand Dollars ($1000.00) from the Monetary Claim Fund established by MetLife in settlement of this case.
3. In addition, each eligible Settlement Class member who files a timely .claim executed under penalty of perjury is entitled to a pro rata share of the remaining Monetary Claim Fund (in accordance with the terms of the Consent Decree) based on an assignment of points for: (i) her total combined tenure as an FSR or MLFS Agency Manager, (ii) the MLFS positions she held during the Class Period, (iii) recognition for the time and effort she spent participating in pre-certification discovery, and (iv) status as a former MetLife employee. The assignment of points is as follows:
a. Tenure Points

TENURE POINTS
Employment in an FSR or MLFS . Agency Manager position for less than one year Employment in an FSR or MLFS Agency Manager position for one to up to two years Employment in an FSR or MLFS Agency Manager position for two to five years Employment in an FSR or MLFS Agency Manager position for more than five years

5 points 10 points 15 points 20 points

b. MLFS Position Points

MLFS POSITION POINTS
Financial Service Representative (FSR) Functional Manager Second Line Manager First Line Manager

5 points 10 points 15 points 20 points

An eligible Settlement Class member who held more than one MLFS position during the Class Period shall be entitled to points only for the highest position held.

r c. Pom. ts ~or 1me and Effort Participating in Pre-certification Discoverv

TIME AND EFFORT PARTICIPATING IN PRE-

CERTIFICATION DISCOVERY POINTS

Provided sworn declaration to Class Counsel

5 points

Provided sworn declaration to Class Counsel and was deposed by MetLife's counsel

10 points

d. Points for Former MetUfe Employee Status

FORMER METLIFE EMPLOYEE POINTS Former MetLife emolovee

I 10 points

These points are in recognition that former employees will not participate in the programmatic relief that MetLife will implement under the Consent Decree.

4. The enclosed claim form and point assignment were prepared with inforn1ation obtained from MetLife's records. Please review the claim form and point assignment carefully. If the information, including point assignment, is accurate, and you wish to file a claim for a monetary payment, you must complete, sign and date the form and return it to Rosenthal & Company LLC postmarked on or before [date).
5. Eligible Settlement Class members wishing to challenge the points assigned to her must do so in writing postmarked no later than [the claim filing deadline). An eligible Settlement Class member challenging the points assigned to her must provide documentation supporting her challenge (e.g., a W-2 form indicating the Settlement Class member was employed by MetUfe in an FSR or MLFS Agency Manager position for a period longer than that reflected by the eligible Settlement Class member's assigned tenure points). The Claims Administrator shall notify each eligible Settlement Class member who challenges her assigned points of the Claims Administrator's determination of the challenge and the eligible Settlement Class member's reassigned points, if any, no later than thirty (30) days after the Claims Administrator's receipt of the written challenge to assigned points.
6. You must provide your Social Security number on your Claim Form to be considered.
7. You must sign and date your ClaimForm under penalty of perjury.
8. You should use the self-addressed envelope to mail your Claim Form to: Mitchell v. Metropolitan Life Insurance Co. Claims Administrator c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177.
9. Your Claim Form must be postmarked by [date). You must put the proper postage on your Claim Form envelope.
10. It is your responsibility to keep the Claims Administrator updated with your address. If you do not inform the Claims Administrator of any address change or correction, any potential entitlement you may have to receive a monetary award may be forfeited. Please sign and mail or email any change of address along with your Social Security Number, date of birth, former address and new address to: Mitchell v. Metropolitan Life Insurance Co. Claims Administrator, clo Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177 or [insert email address).
II. The Claims Administrator will notify eligible Settlement Class members who file timely claims of their pro rata share of the Class Monetary Fund.
2

12. The law prohibits retaliation against any person who files a claim for a monetary award. If you would like further information regarding the settlement you may consult with the Claims Administrator free of charge by calling 1-800207-0343. Do NOT contact MetLife or the Court for any information regarding this Claim Form. REMEMBER -IN ORDER FOR YOUR CLAIM TO BE CONSIDERED YOU MUST SIGN AND DATE THE CLAIM FORM UNDER PENALTY OF PERJURY AND YOU MUST MAIL IT, POSTMARKED ON OR BEFORE [date], TO:
Mitchell v. Metropolitan Life Insurance Co. Claims Administrator c/o Rosenthal & Company LLC P.O. Box 6177 Novato, CA 94948-61.77
3

If you are a female who is or was employed by MetLife in its MetLife Financial Services Division as a:
Financial Services Representative, Functional Manager, or First or Second Line Agency Manager
from August 27, 1999 through Month dd, yyyy,
• You could receive at least $1,000 by filing the enclosed claim form, and • You could receive additional money. But you must file the claim form contained in this packet, postmarked by XXXX XX, 2003, to be eligible for the $1,000 and any additional money.
The materials contained in this packet describe a proposed $5 million monetary settlement and consent decree in a lawsuit entitled:
Mitchell v. Metropolitan Life Insurance Co.
The lawsuit alleges discrimination against a certain group of females at MetLife.
You have been identified as a woman who is a member of this group. You are therefore eligible to receive money from this settlement if the settlement is approved.
The materials in this packet also describe the procedures you must follow to opt out of this settlement or object to it.
If you have any questions about this settlement or the authenticity of these materials you may call Rosenthal & Company LLC, the court-appointed claims administrator, toll-free at 1800-207-0343.

WITHDRAWAL OF OBJECTION Mitchell v. Metropolitan Life Insurance Co., Case No. 01 Civ. 2112 (WHP)

I,

, am a class member in the case of Mitchell v. Metropolitan

Life Insurance Co., Case No. 01 Civ. 2112 (WHP) now pending before the United States District Court

for the Southern District of New York.

I previously submitted an objection to the proposed Consent Decree in the Mitchell class action.

I now wish to withdraw my objection to the proposed Consent Decree.

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND ACCURATE.

Date: _ _ _ _ _ _ _ __

Signature

Print Your Full Name

Street Address Or P.O. Box

City, State, Zip

Day ( )
TELEPHONE

NUMBERS,

fNCLUDE

AE"'vReE:('-":-A)-'-=C-:::O-:::D~E-------

SOCIAL SECURITY NUMBER

NOTE: In order to have this WITHDRAWAL OF OBJECTION considered by the COllit, it must be mailed and postmarked ON or BEFORE (Date) to:

Mitchell v. Metropolitan Life Insurance Co. Claims Administrator c/o Rosenthal & Company LLC P.O. Box 6177 Novato, CA 94948-6177

RESCISSION OF OPT OUT STATEMENT Mitchell v. Metropolitan Life Insurance Co., Case No. 01 Civ. 2112 (WHP)

I,

, am a class member in the case of Mitchell v. Metropolitan

Life Insurance Co., Case No. 01 Civ. 2112 (WHP) now pending before the United States District Court

for the Southern District of New York.

I previously submitted a request to opt out of the proposed monetary class action settlement in the case.

I now wish to rescind my request to opt out of the class action settlement.

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND ACCURATE.

Date: _ _ _ _ _ _ _ __

Signature

Print Your Full Name

Street Address Or P.O. Box

City, State, Zip

Day( )

~E~ve~(~~)_ _ _ _ _ ___

TELEPHONE NUMBERS, INCLUDE AREA CODE

SOCIAL SECURITY NUMBER

NOTE: In order to have this RESCISSION OF OPT OUT STATEMENT considered by the Court, it must be mailed and postmarked ON or BEFORE (date) to:

Mitchell v. Metropolitan Life Insurance Co. Claims Administrator c/o Rosenthal & Company LLC P.O. Box 6177 Novato, CA 94948-6177

H

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara Lachance, Durpatty Persaud and Janet Ramsey, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., d/b/a METLIFE, Defendant. No. 01 CIV. 2112(WHP).
March 21, 2002.

representatives located nationwide, markets and sells the company's financial and insurance products. The complaint, filed on March 13, 2001, alleges that MetLife has engaged in a continuing policy and practice of gender discrimination in hiring, promotions, job assignments, compensation and other terms and privileges of employment. The complaint alleges that women are underrepresented in each level of MLFS and that the company maintains a gender-based “glass ceiling” by reserving for male employees the support and opportunities for advancing within MLFS. The complaint further alleges that the company engaged in retaliation in response to complaints of gender inequality. Plaintiffs bring this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York State and City antidiscrimination statutes.

Adam T. Klein, Esq., Outten & Golden LLP, New York, for Plaintiffs.
James M. Finberg, Esq., Kelly M. Dermody, Esq., Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, for Plaintiffs.
Allen I. Fagin, Esq., Amy B. Regan, Esq., Proskauer Rose LLP, New York, for Defendant.
MEMORANDUM AND ORDER
PAULEY, District J.

Two law firms presently represent plaintiffs, the Lieff Cabraser firm and Outten & Golden LLP. In January 2001, about two months prior to the filing of the complaint in this action, attorney Wendy Fleishman left her position as counsel with Skadden and joined Lieff Cabraser's New York office as a partner. Lieff Cabraser, a 54-lawyer firm based in San Francisco, California, employs approximately twelve attorneys in its New York office. At the time Fleishman was set to change firms, she informed a MetLife officer that the Lieff Cabraser firm had a matter against MetLife and requested a waiver of conflicts on account of her prior representation of the company. The MetLife officer was unable to locate any action brought against the company by Lieff Cabraser, presumably because the action had yet to be filed. No waiver was provided and Fleishman did not pursue the matter further.

*1 Defendant Metropolitan Life Insurance Company (“MetLife”) moves to disqualify Lieff, Cabraser, Heimann & Bernstein, LLP (“Lieff Cabraser”), one of the two law firms representing plaintiffs. MetLife seeks disqualification on the ground that Wendy R. Fleishman, now a Lieff Cabraser partner, defended MetLife in a number of lawsuits while employed by her former firm, Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”). For the reasons stated below, the motion is granted.
Background

Lieff Cabraser maintains that, upon Fleishman's arrival at the firm, it erected screening measures to ensure that confidential information regarding MetLife could not pass to any Lieff Cabraser employee. The record reflects, however, that Lieff Cabraser's conflicts attorney did not circulate any memorandum formally establishing screening procedures until March 9, 2001, some two months after Fleishman joined the firm. (Affirmation of Wendy Fleishman dated Aug. 8, 2001 (“Fleishman Aff.”) ¶ 27; Declaration of Steven M. Tindall dated Aug. 4, 2001 ¶¶ 4-5.)

Plaintiffs, five current or former MetLife employees, assert individual and class claims of gender discrimination arising out of their employment within the MetLife Financial Services (“MLFS”) division of the company. The MLFS division of MetLife, through its account

*2 Before her departure in January 2001, Fleishman had worked at Skadden since 1993 as counsel in its products liability department. In the fall of 1998, Skadden (together with another law firm) was selected as national coordinating counsel for sales practices related lawsuits brought against MetLife. In the sales practices lawsuits,

Skadden defended MetLife against claims relating to the conduct of employees in the MLFS field force, the same group that employed the plaintiffs in this action. Fleishman was part of the team assembled by Skadden to defend those lawsuits. Prior to its retention as national coordinating counsel, Skadden represented MetLife in a number of matters where Fleishman also had senior-level involvement.
More specifically, the affidavits submitted on behalf of MetLife by its in-house and outside legal counsel reveal that from the fall of 1998 through her resignation from Skadden in January 2001, Fleishman devoted a substantial portion of her professional time to the defense of MetLife matters. Skadden's billing records from 1999 reflect that Fleishman spent over 1,800 client billable hours representing MetLife in almost fifty matters. In 2000, Fleishman accrued over 1,540 client billable hours representing the company in almost forty matters. In many of those matters, Fleishman, as a senior-level attorney, had the primary day-to-day responsibilities as lead outside counsel.
Although none of her work directly related to employment discrimination, Fleishman's defense of MetLife enabled her to become conversant with detailed confidential information regarding the internal operations, policies and procedures of MLFS in general and with specific connection to the alleged sales practices charges. Fleishman became privy to information regarding the procedures for hiring, training, supervising, compensating and disciplining account representatives, the organizational structure of the MLFS field force and changes to that structure, as well as performance expectations and procedures for measuring the performance of account representatives and managers within the field force. Fleishman primarily learned of this information under the cloak of attorney-client privilege in discussions with the company's employees, managers, and in-house corporate legal staff.
In addition, Fleishman represented, defended at depositions, and interviewed various MetLife employees (or former employees), including account representatives, managers and other officials. Many of the employees interviewed by Fleishman worked in the MLFS division. Indeed, several of the employees she interviewed may qualify as members of the putative class in this action, while others had decision-making authority over certain of the named plaintiffs or other members of the putative class. For example, Fleishman interviewed the manager who supervised one of the named plaintiffs in this action,

Hwa-Mei Gee; this manager is listed in plaintiffs' initial disclosures as a potential witness. Moreover, Fleishman interviewed the territorial vice president and the territorial administrator for the southern territory; two named plaintiffs, Barbara LaChance and Janet Ramsey, worked within that territory. In fact, plaintiff LaChance alleges that she discriminatorily was denied the position of territorial administrator, a position occupied by the very same person Fleishman interviewed. Fleishman also interviewed branch administrators and directors of marketing and training.
*3 During the course of her representations, Fleishman also was privy to privileged communications concerning MetLife's settlement strategy. She learned of the company's approach to structuring and valuing proposed settlements as well as its attitude toward settlement of individual suits and class actions.
From these facts, MetLife argues that Fleishman became intimately familiar with confidential MetLife policies and information that are substantially related to the subjects that are at issue in this employment discrimination lawsuit. Therefore, as MetLife contends, Fleishman is subject to a personal conflict of interest under Canons 4, 5 and 9 of the Code of Professional Responsibility and disciplinary rules promulgated thereunder. MetLife further contends that since Fleishman personally must be disqualified, this disqualification is imputed to the Lieff Cabraser firm. In this regard, MetLife submits that the screening procedures implemented by Lieff Cabraser are insufficient to insulate the firm from disqualification in this action.
In response, Lieff Cabraser argues that there is no substantial relationship between this employment discrimination action and the sales practices related litigations in which Fleishman represented MetLife. Still, in her affirmation submitted to the Court, Fleishman does not materially dispute the nature and extent of the information she gained in her prior representations of MetLife. While she attempts to deflect through artful formulations her knowledge about the hiring, training, supervising and disciplining of MLFS employees, such assertions only are made in the context of a specific lawsuit. (See Fleishman Aff. ¶ 11.) No broad disclaimer of knowledge of those areas is made. Notably, Fleishman's affidavit is peppered with bald statements to the effect that nothing she learned would have any bearing on the present action. (See Fleishman Aff. ¶¶ 17-20.) Such statements, however, seem to be misplaced given Lieff Cabraser's claimed efforts to screen Fleishman from any participation in this action. In any event, Lieff Cabraser argues that

even if Fleishman should be disqualified, the taint does not extend to the entire firm because Fleishman has been effectively screened from any involvement in this case.

Andersen & Co., 567 F.2d 225, 235 (2d Cir.1977). As a result, Disciplinary Rule 5-108 of the Code of Professional Responsibility provides that without consent of a former client,

Discussion
In this circuit, the American Bar Association Code of Professional Responsibility prescribes the appropriate guidelines for the professional conduct of the bar. NCK Org. Ltd. v. Bregman, 542 F.2d 128, 130 n. 2 (2d Cir.1976); Hull v. Celanese Corp., 513 F.2d 568, 571 n. 12 (2d Cir.1975); see also Local Civil Rule 1.5 (grounds for attorney discipline include conduct violative of the New York State Lawyer's Code of Professional Responsibility as adopted from time to time by the Appellate Divisions of the State of New York).
The Court of Appeals has cautioned that motions to disqualify counsel are not to be granted indiscriminately because they interfere with a party's right freely to choose counsel and may be interposed for tactical reasons. See Board of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); Government of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.1978). Thus, the moving party must meet a “high standard of proof” before a lawyer is disqualified. Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir.1983); Government of India, 569 F.2d at 739; Bennett Silvershein Assocs. v. Furman, 776 F.Supp. 800, 802 (S.D.N.Y.1991). Any doubts, however, should be resolved in favor of disqualification. Hull, 513 F.2d at 571.
*4 Under the restrained approach adopted by the Second Circuit, relief will be granted only when the facts concerning the lawyer's conduct poses a significant risk of trial taint. Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir.1981); Nyquist, 590 F.2d at 1246. This risk is commonly encountered “where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation ..., thus giving his present client an unfair advantage.” Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir.1980) (quoting Nyquist, 590 F.2d at 1246), vacated on other grounds and remanded, 449 U.S. 1106 (1981).
Ordinarily a lawyer may not knowingly reveal a confidence of his client or use that confidence if it would work to the client's disadvantage. 22 N.Y.C.R.R. § 1200.19 (McKinney Supp.2002) (codifying DR 4-101); Evans, 715 F.2d at 791; Fund of Funds, Ltd. v. Arthur

a lawyer who has represented a client in a matter shall not ... [t]hereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client.
22 N.Y.C.R.R. § 1200.27(A)(1). The rule against successive representations “concerns itself with the unfair advantage that a lawyer can take of his former client in using adversely to that client information communicated in confidence in the course of the representation,” such as “knowing what to ask for in discovery, which witnesses to seek to depose, what questions to ask them, what lines of attack to abandon and what lines to pursue, what settlements to accept and what offers to reject, and innumerable other uses.” Ullrich v. Hearst Corp., 809 F.Supp. 229, 236 (S.D.N.Y.1992) (Leval, J.). Disciplinary Rule 5-105(D) creates a rebuttable presumption that a lawyer's personal conflict of interest is imputed to her current firm. 22 N.Y.C.R.R. § 1200.24(D); Kassis v. Teacher's Ins. & Annuity Assoc., 93 N.Y.2d 611, 616-17, 695 N.Y .S.2d 515, 518-19 (1999).
Disqualification of a lawyer or firm on the basis of a prior representation of an adverse party typically requires a showing of a substantial relationship between the subject matter of the prior representation and the issues in the present litigation. Evans, 715 F.2d at 791; Red Ball Interior Demolition Corp. v. Palmadessa, 908 F.Supp. 1226, 1239 (S.D.N.Y.1995); T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268-69 (S.D.N.Y.1953) (Weinfeld, J.). As it has refined the standard, the Second Circuit has determined that as a practical matter, motions to disqualify should be granted only when “the relationship between issues in the prior and present cases is ‘patently clear” ’ or that the issues involved are “identical” or “essentially the same.” Government of India, 569 F.2d at 739-40. After a thorough examination of the leading successive representation cases, Judge Leisure of this court articulated the relevant standard as follows: “if the facts giving rise to an issue which is material in both the former and the present litigations are as a practical matter the same, then there is a ‘substantial relationship’ between the representations for purposes of a disqualification.” United States Football League v. National Football League, 605 F.Supp. 1448, 1459 (S.D.N.Y.1985).

*5 The substantial relationship test serves an important function. It permits a court to “assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation.” Cheng v. GAF Corp., 631 F.2d 1052, 1056 (2d Cir.1980) (quoting T.C. Theatre, 113 F.Supp. at 268), vacated on other grounds and remanded, 450 U.S. 903 (1981). As the Second Circuit has held, “a court should not require proof that an attorney actually had access to or received privileged information while representing the client in a prior case .” Government of India, 569 F.2d at 740. To require such proof would “put the former client to the Hobson's choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.” Government of India, 569 F.2d at 740; see also T.C. Theatre, 113 F.Supp. at 269. All that must be shown is that the attorney whose disqualification is sought was likely to have access to relevant privileged information in the course of his prior representation of the client. Evans, 715 F.2d at 791; Cheng, 631 F.2d at 1056-57.
While admitting that Fleishman acquired “general background information” about MetLife (Transcript of Oral Argument dated Sept. 5, 2001 (“Tr.”) at 25), Lieff Cabraser contends that the nature and subject matter of client confidences revealed to Fleishman are insufficient to justify disqualification under the substantial relationship test. This Court disagrees.
Unlike the cases cited by Lieff Cabraser, this is not a case where a lawyer previously represented a client in a narrowly-defined, single-issue lawsuit or may have simply assisted a client in settlement discussions in a small number of cases. See Matthews v. LeBoeuf, Lamb, Greene & MacRae, 902 F.Supp. 26, 31 (S .D.N.Y.1995) (motion to disqualify denied where plaintiff's lawyers, formerly associated with defendant law firm, did not possess confidential information about the subject matter of the lawsuit and only participated in two or three settlement discussions unrelated to the current lawsuit); Vestron, Inc. v. National Geographic Soc'y, 750 F.Supp. 586, 595 (S.D.N.Y.1990) (motion to disqualify denied where in a prior representation plaintiff's law firm only acquired confidences about defendant's “general litigation posture in trademark suits,” a matter not relevant to the current breach of contract suit); Beck v. Board of Regents, 568 F.Supp. 1107, 1112 (D.Kan.1983) (motion to disqualify denied where the only evidence of substantial relationship offered by the movant was type of claim asserted in two

disparate actions, a prior employment discrimination action and a current medical negligence and premises liability action, and no effort was made to show the relevance to the pending action of any confidential information communicated during the prior representation).
*6 Rather, here, MetLife has demonstrated that Fleishman, as a result of her prolonged and extensive prior representations of the company, acquired or was privy to confidential institutional information about MetLife, its MLFS division and MLFS personnel and that this information is relevant to this pending action in which plaintiffs, on an institutional level, attack the company's employment policies and practices. Fleishman's role in defending MetLife in sales practices related litigation afforded her access to confidential information pertaining to how account representatives and managers within MLFS were hired, trained, supervised, compensated and disciplined; how general performance levels of MLFS employees and managers were evaluated and would be measured against their colleagues; and how MetLife's management and corporate legal department assess exposure to suits of this magnitude and approach litigating or settling such cases. Plainly, this knowledge is substantially related to disputed factual issues material to the resolution of the present action.
For example, as already indicated, Fleishman would have become fully familiar with the process by which MLFS branch managers evaluated the conduct and performance of account representatives. In this case, plaintiffs contend that this process is entirely subjective and a principal cause of gender inequality of MetLife. Specifically, in challenging MetLife's methods of evaluating performance, the complaint alleges that MetLife established “discriminatory and subjective requirements for hiring, job assignment, and promotion which have the effect of excluding qualified women and which have not been shown to have any significant relationship to job performance or to be necessary to the proper and efficient conduct of MetLife's business.” (Compl.¶ 68(k).)
There are further, more direct examples of substantial relationship. One of the named plaintiffs, Barbara LaChance, claimed in her amended charge of discrimination that she could not succeed as an account representative because, as a result of her gender, she received insufficient training and was denied opportunities to develop client and other business relationships. Certainly, with the benefit of confidential information acquired from MetLife about the extent and nature of

training provided to account representatives, Fleishman would be positioned to offer strategies for challenging any non-discriminatory reasons proffered by MetLife to rebut those charges. The requirement that a plaintiff show pretext in response to management's purported non-discriminatory explanation for its conduct is a burden imposed by the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). In a similar vein, Fleishman learned about production requirements and the methods for measuring the performance of account representatives. This information would be useful to rebut MetLife's proffered explanation that the company terminated plaintiff Durpatty Persaud because of her failure to meet such production requirements.
*7 Perhaps dispositive of the matter, Fleishman personally interviewed managers who had decision-making authority over certain named plaintiffs and who, at least in one documented instance, have been identified as potential witnesses. Fleishman would be privy to confidential information that could serve to challenge credibility, to prepare cross-examinations, and to otherwise contest their proffered justifications for the adverse employment decisions challenged by plaintiffs. Taken together, these circumstances establish a sufficiently close factual nexus between Fleishman's previous representations of MetLife and the matters fairly raised in the current employment discrimination action to pose a significant risk of trial taint to the disadvantage of MetLife. It is no surprise, then, that Fleishman sought a waiver of conflicts from MetLife on account of her prior representations in advance of joining the Lieff Cabraser firm.

F.Supp. at 1459. Then, in considering the particular facts of the case before him, Judge Leisure determined that
knowledge of a former client's financial and business background is not in itself a basis for disqualification if the client's background is not in issue in the later litigation.
If, however, the litigation must deal with questions of the movant's market behavior, then the challenged attorney's knowledge of the business plans, economic organization, prospective market position and other such background information about the movant becomes relevant. This is particularly true in antitrust cases. The more wide-ranging the allegations of the complaint, the more likely it is that background legal work will be relevant to the instant litigation.
USFL, 605 F.Supp. at 1460; see also Fernandez v. City of New York, No. 99 Civ. 777(DC), 2000 WL 297175, at *1 (S.D.N.Y. Mar. 21, 2000) (motion to disqualify plaintiff's law firm granted in false arrest and malicious prosecution action because a “reasonable likelihood” existed that the law firm's prior representation of defendant police officer in an internal affairs bureau investigation of off-duty employment resulted in access to confidential information potentially “useful” to plaintiff); Red Ball, 908 F.Supp. at 1244-45 (motion to disqualify defendant's attorney granted where, even though “the questions of law and fact were somewhat different” in the attorney's prior representation of plaintiff in a criminal action, “the witnesses, testimony and other evidence” overlapped with the present action).

Courts in this district have ordered disqualification in comparable contexts, such as where an attorney or law firm gained extensive or highly confidential knowledge about a client through a prior, broad-based representation and that knowledge pertained to a subsequent lawsuit to the disadvantage of the client. In United States Football League v. National Football League, 605 F.Supp. 1448 (S.D.N.Y.1985), a newly formed football league and its members brought an antitrust action against an established football league and its members. Judge Leisure granted the new league's motion to disqualify the established league's law firm because it advised the new league on a variety of corporate matters concerning the league's formation and financing, but which nonetheless related to the far-reaching acts of anticompetitive conduct alleged in the complaint. In broad terms, Judge Leisure concluded that “[m]ore general legal representation can be relevant to a later litigation, but only if the later litigation fairly puts in issue the entire background of the movant.” USFL, 605

*8 Lieff Cabraser is being overly formalistic in their approach to disqualification, as the relevant inquiry is not limited to whether there are common legal claims or theories between the representations, but extends to whether there are common factual issues that are material to the adjudication of the prior and current representations. And, on its motion, MetLife has made a strong showing that the confidential information received by Fleishman concerning charges that MLFS employees engaged in sales practices improprieties is substantially related to an understanding of employment-related polices within MLFS and employment decisions made by MLFS managers and therefore relevant to plaintiffs' employment discrimination claims.
Saliently, Lieff Cabraser's approach is undercut by the published writings of its expert, Professor Charles

Wolfram, a prominent legal ethicist. In discussing the substantial relationship test and the threat derived from acquisition of confidential information from a former client, Professor Wolfram wrote:

FN1. Because a conflict has been found on the basis of Canons 4 and 5, this Court need not reach MetLife's argument that disqualification is warranted to avoid an appearance of impropriety under Canon 9.

In that respect let me turn to the playbook problem. There have been cases suggesting that if you know something about the way the client's head works you know something that's relevant for purposes of applying the substantial relationship test. I think those cases often are misguided, sometimes they're correct. I think if re-examined under what I hope is the sharper lens of the factual-reconstruction test, it will turn out that some of them indeed are cases of substantial relationship, but some of them have not been. Those cases that are cases of substantial relationship would be cases where what you probably learn about the client's inclination, the client's willingness to settle, the client's unwillingness ever to be deposed is both relevant and unknown to others in the second litigation. That is to say it's still a secret. It was a secret obviously when you obtained it but it's still a secret that others don't know it.
Charles W. Wolfram, The Vaporous And The Real In Former-Client Conflicts, 1 J. Inst. for Study of Legal Ethics 133, 138 (1996) (quoted in Declaration of Hal R. Lieberman dated Aug. 12, 2001 (“Lieberman Decl.”) ¶ 16.) As Lieff Cabraser conceded at oral argument, Fleishman was privy to highly privileged communications originating with MetLife's corporate law department regarding settlement strategies in class action litigations. (Tr. at 34.)
Accordingly, upon examination of the issues in Fleishman's prior representations of MetLife and in the present action, this Court is constrained to conclude that she suffers from a disabling conflict of interest under the rules of conduct prescribed in Canons 4 and 5 of the Code of Professional Responsibility.FN1 Client confidences are not so inert as to limit their usefulness to defined legal disciplines or practice areas. They are fungible, and once disclosed can be applied by an experienced lawyer in ways too numerous to anticipate at this stage of the proceeding. As the Second Circuit observed, “[t]he dynamics of litigation are far too subtle, the attorney's role in that process is far too critical, and the public's interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer's representation in a given case.” Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir.1973).

*9 Given Fleishman's personal conflict of interest, operation of DR 5-105(D) compels the result that the conflict be imputed to the Lieff Cabraser firm as well. See Cheng, 631 F.2d at 1057.FN2 Nothing presented by Lieff Cabraser persuades this Court that the screening measures implemented by the firm suffice to prevent its disqualification.
FN2. Although Cheng was vacated on jurisdictional grounds, its substantive holding was reaffirmed by the Second Circuit in Cheng v. GAF Corp., 747 F.2d 97, 98 (2d Cir.1984), vacated on other grounds, 472 U.S. 1023 (1985). See Baird v. Hilton Hotel Corp., 771 F.Supp. 24, 27 n. 1 (E.D.N.Y.1991) (“it is abundantly clear that the Second Circuit considers its first Cheng decision to be sound”).
The Second Circuit has expressed consistent skepticism about screening as a remedy for conflicts of interest and declared that such procedures ultimately must be rejected if they are subject to doubt. See Cheng, 631 F.2d at 1058; Fund of Funds, 567 F.2d at 229 n. 10. Indeed, the New York Code of Professional Responsibility does not recognize the use of screening devices except in cases involving former government lawyers or judges, see 22 N.Y.C.R.R. § 1200.45(B)(codifying DR 9-101(B)), and recently the ABA House of Delegates voted to reject a proposal to permit screening to avoid disqualification. (Lieberman Decl. ¶ 20.) Courts have only approved screening procedures in the limited circumstances where a conflicted attorney possesses information unlikely to be material to the current action and has no contact with the department conducting the current litigation, which typically occurs only in the context of a large firm. Compare In re Del-Val Fin. Corp. Sec. Litig., 158 F.R.D. 270, 274-75 (S.D.N.Y.1994) (imputed disqualification rebutted by screening procedures where conflicted attorney joined a 400-lawyer firm and was involved in the prior representation only in a peripheral manner) and Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 307-08, 314, 610 N.Y.S.2d 128, 130, 133-34 (1994) (imputed disqualification rebutted because the conflicted attorneys transferred to a 350-plus lawyer firm, their involvement in the prior representation had been negligible, and the principle attorneys responsible for the matter left the firm

before the current representation) with Decora Inc. v. DW Wallcovering, Inc., 899 F.Supp. 132, 141 (S.D.N.Y.1995) (implied disqualification not rebutted by screening procedures because conflicted attorney joined a small firm of 44 lawyers and did not work in a department separate from the one handling the current action) and Yaretsky v. Blum, 525 F.Supp. 24, 29-30 (S.D.N.Y.1981) (implied disqualification not rebutted by screening procedures because conflicted attorney joined a firm with about 30 lawyers in its New York office and worked in the department handling the case) and Kassis, 93 N.Y.2d at 618, 695 N.Y.S.2d at 519 (implied disqualification not rebutted by screening procedures because conflicted attorney joined a firm with about 26 lawyers and acquired confidential information likely to be material in the litigation). In addition, to rebut the presumption, the screening measures must have been established from the first moment the conflicted attorney transferred to the firm or, at a minimum, when the firm first received actual notice of the conflict. See Marshall v. State of New York Div. of State Police, 952 F.Supp. 103, 111 (N.D.N.Y.1997) (“a screening device implemented only after a disqualified lawyer has been with a firm will not provide adequate protection of confidences”); Del-Val Financial, 158 F.R.D. at 274-75 (presumption rebutted partly on ground that the screening device was implemented immediately upon discovery of the conflict).
*10 In this case, the screening measures put in place by Lieff Cabraser do not suffice to avoid disqualification. Fleishman had extensive exposure to relevant confidential information in the course of her representations of MetLife. Although Fleishman personally is not involved in prosecuting this action, she works in the 12-lawyer New York office of a relatively small firm. Two of the attorneys in the New York office are assigned to this case, and Fleishman is working directly with one of them on another significant class action suit. Given that Fleishman works in close proximity to attorneys responsible for this action, and regularly interacts with at least one of them, there exists a continuing danger that Fleishman may inadvertently transmit information gained through her prior representations of MetLife. See Cheng, 631 F.2d at 1058.
Parenthetically, Professor Wolfram's writings again impeach the position taken by Lieff Cabraser. In his treatise on legal ethics, Professor Wolfram observes:

breached will be virtually impossible to ascertain from outside the firm. On the inside, lawyers whose interests would all be served by creating leaks in the screen and not revealing the leaks would not regularly be chosen as guardians by anyone truly interested in assuring that leaks do not occur.
Charles W. Wolfram, Modern Legal Ethics § 7.6.4, at 402 (West 1986).
Timing also militates against upholding the efficacy of the screening measures adopted by Lieff Cabraser. The record shows that the firm did not formally implement the screen until March 9, 2001, almost two months after Fleishman joined the firm and well after the time the firm had actual notice of the conflict. A screening device implemented only after a disqualified lawyer has joined the firm, in an instance where the firm knew of the problem at the time of her arrival, further diminishes the possibility that screening remedies the conflict present this case. See Decora, 899 F.Supp. at 141.
Under the circumstances arising in this case, the potential of inadvertent disclosure would lurk constantly in the background. As a result, this Court finds that the presumption of shared confidences has been not been rebutted. This Court notes that disqualification is unlikely to prejudice plaintiffs in any material way since MetLife interposed its motion at the outset of the litigation and plaintiffs can continue to be represented by the Outten firm. See Fields-D'Arpino v. Restaurant Assocs., Inc., 39 F.Supp.2d 412, 415 n. 3 (S.D.N.Y.1999); Decora, 899 F.Supp. at 141-42. Thus, the Lieff Cabraser firm must be disqualified.
Conclusion
Accordingly, based on the record established by the parties, this Court reluctantly grants defendant MetLife's motion to disqualify the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP from representing plaintiffs in this action. While not calling into question the good faith of the Lieff Cabraser firm in dealing with this sensitive issue, disqualification is necessary to prevent the real possibility of trial taint in this matter of importance to all parties.

In the end there is little but the self-serving assurance of the screening-lawyer foxes that they will carefully guard the screened-lawyer chickens. Whether the screen is

*11 This Court will permit plaintiffs four weeks to retain additional counsel, if they so desire. Thereupon, counsel

are directed to appear for a status conference on April 26, 2002 at 11:00 a.m. in Courtroom 11D, United States Courthouse, 500 Pearl Street, New York, New York.
SO ORDERED:

 
 United States District Court, S.D. New York.
Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba MetLife, Defendant. No. 01-CIV-2112 WHP.
Nov. 6, 2003.
ORDER GRANTING PLAINTIFFS' APPLICATION FOR AWARD OF ATTORNEYS' FEES AND COSTS
PAULEY, J.

REASONABLENESS OF ATTORNEYS' FEES AND COSTS
A. Plaintiff Are the Prevalling Parties.
The Court finds that plaintiffs are the prevailing parties in this litigation entitled to recover their reasonable attorneys' fees and costs, pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k). Plaintiffs are the provailing parties because they successfully secured a Consent Decree, which has been approved by the Court, providing for a $10 million settlement, exclusive of costs and attorneys fees, that includes substantial injunctive relief for the class and $5 million in cash payments to plaintiffs and class. The relief provided by the Consent Decree is extensive and multi-faceted, and offers the potential to increase significantly the employment opportunities of currently employed class members and other present and future female employees at MetLife. MetLife does not contest that plaintiffs are the provailing parties entitled to recovery of their attorneys fees and costs.

*1 This matter is before the Court upon Plaintiffs' Application for Award of Attorneys' Fees and Costs. Plaintiffs' request that this Court approve an award to Class Counsel-Goldstein Demchak, Baller, Borgen & Dardarian and Ouiten & Golden-of $3.4 million in attorneys' fees and costs pursuant to agreement of the parties, which is set forth in the Consent Decree. The $3.4 million will be allocated as follows: $3.25 million will compensate Class Counsel for all fees and costs incurred through the final approval hearing and distribution of the class settlement fund $150,000 will compensate Class Counsel for future monitoring of MetLife's compliance with the terms of the Consent Decree, which will be paid at the rate of $50,000 per year over the three year term of the Decree. Plaintiffs' Consent Decree, including payment by MetLife of attorneys' fees and costs not to exceed $3.4 million, was preliminarily approved by this Court on August 18, 2003. This Court granted final approval of the Consent Decree on November 6, 2003.
Having considered the Consent Decree; the Memorandum of Law Supporting Plaintiffs' Application for Award of Attorneys' Fees and Costs; the evidence filed in support thereof, including the Declarations of David Borgen, Adam T. Klein, Daniel Rosenthal, Kelly M. Dermody, Joseph M. Sellers, and Laura B. Hoguet; and the evidence and argument received by the Court at the hearing held November 6, 2003; the Court will enter an order approving plaintiffs, request for award of attorneys' fees and costs in the amount of $3.4 million to Class Counsel.
FINDINGS AND CONCLUSIONS REGARDING

B. Plaintiffs Request for an Award of Attorneys' Fees Is Justified under the Lodestar Appreach.
The Court finds that the use of a lodestar approach, which is calculated by multiplying counsel's hours reasonably incurred by reasonable hourly billing rates, to determine reasonable attorneys fees is appropriate in this case. The Court further finds that plaintiffs' request for attorneys' fees is reasonable because their hours were incurred properly, efficiently and nescessarily to prosecute this large and complex class action, and because their requested hourly rates with the market for legal services of this type, as found below. The reasonableness of the amount specified in the settlement for attorneys' fees is confirmed by the fact that after reimbursement for out of pocket costs incurred, Class Counsel will recover fees equal to approximately 20% less than Class Counsel's lodestar for time incurred through December 30, 2003, which does not include any time spent on final approval of the Consent Decree of distribution of the settlement fund. MetLife has agreed to pay $3.4 million in attorneys' fees and costs. No class member has objected to the payment of attorneys' fees and costs to Counsel in this amount.
C. Class Counsel's Requested Hourly Rates Are Reasonable.
*2 The Court finds that Class Counsel's hourly rates for the attorneys and paralegals in their firms, as identified on the attached Exhibit A, are reasonable because they are consistent with the market rates of lawyers with comparable skills,

experience and reputations in this community, the Southern District of New York, and nationally among lawyers who litigate complex class action employment cases throughout the country. The Court further finds that the use of 2003 hourly billing rates for all hours expended during this litigation, rather than historic rates, is appropriate. In making these findings, the Court has considered and relies upon the declarations of Laura Hoguet and Joseph M. Sellers, which Class Counsel have submitted in support of their requested award, and the declaration of Kelly M. Dermody, formerly one of the attorneys for plaintiffs and the class, which has also been submitted, as well as its own review of the Application and its knowledge of this case and practices in this legal community.

F. The Request for Attorneys' Fees and Costs for Future Monitoring Are Reasonable.
The Court finds that plaintiffs' request to include $150,000 in attorneys' fees and costs for Class Counsel's future monitoring of MetLife's compliance with the provisions of the Consent Decree over its three-year term, as part of the $3.4 million award, is reasonable and will be necessarily incurred to perform the compliance monitoring services required by the terms of the Decree.
CONCLUSION

D. The Hours Expended by Class Counsel to Prosecute this Case Were Reasonable.
The Court finds that Class Counsel maintained contemporaneous time records throughout the litigation of this case, which are reliable and have been submitted to the Court for review. The Court further finds that the number of hours expended to prosecute this case were reasonable and not excessive or redundant, given the magnitude and complexity of the litigation and its inherent risks. Additionally, the quality of the representation by Class Counsel was excellent, which is reflected in the substantial monetary and injunctive relief obtained for the plaintiffs and the class by the Consent Decree. In making these findings, the Court has considered and relies upon the declaration of lead Class Counsel David Borgen and Adam Klein, as well as the declaration of Ms. Dermody, and the supporting declaration of Joseph M. Sellers, an attorney who specializes in litigation of employment discrimination class actions like this case.

*3 Based on the foregoing findings and conclusions, the Court finds that the plaintiffs' request for attorneys' fees and cost in the amount of $3.4 million is reasonable. Plaintiffs' application for attorneys' fees and costs is therefore granted, and the provisions of the Consent Decree in this regard will be approved.
IT IS SO ORDERED.
EXHIBIT A
The hourly rates for the atterneys and other personnel at Class Counsel's firms who worked 50 hours or more on the MetLife case are identified below:

E. The Costs Incurred by Class Counsel Were Necessary.

The Court finds that Class Counsel's litigation expenses for court reporting, travel, long distance telephone, facsimile, postage, expedited mail service and document reproduction, which are fully documented in counsel's business records and have been summarized and made available to the Court, are customary and were necessarily incurred in this litigation. The Court further finds that Class Counsel's expenditures for consulting and testifying expert fees also were necessarily incurred to prosecute this complex class action employment discrimination case. In making these findings, the Court relies on the declarations of Mr. Borgen, Mr. Klein, Ms. Dermody, and Mr. Sellers, as well as its own knowledge of the record in this case and practices in this legal community.

Gaidstein Demchak Teresa K. Demchak Morris J. Baller David A. Borgen Roberis L. Steels Darel B. Burrell Joshua G. Konecky Holly K. Herndon Lisa M. Dungan May G. Rafman Wendy E. Whilt Janet Zahtpleri Natasha Gurtner Galton & Golden Adam Klein Sean Farhang Scott Moss Nantiya Ruan Linda Neilan Lana Wortman Samantha Abeysekana

Title Partner Partner Partner Attorney Attorney Attorney Attorney Sr. Paralegal Paralegal Paralegal Paralegal Paralegal
Partner Attorney Attorney Attorney Attorney Paralegal Law Student

Law School Grat Yr. 1976 1970 1981 1993 1995 1995 1998
1990 1993 1998 1999 2001

Hourly Rate 475.00 500.00 425.00 315.00 295.00 295.00 260.00 160.00 140.00 120.00 120.00 120.00
425.00 320.00 270.00 225.00 180.00 135.00 135.00

 
 United States District Court, S.D. New York.
Stella MITCHELL, Plaintiff, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., Defendant.
No. 03 Civ.10294(WHP).
Nov. 2, 2004.
Marc A. Stadtmauer, Eckhaus & Olson, New York, NY, William H. Kaiser, Kaiser Saurborn & Mair P.C., New York, NY, for Plaintiff.

men in its sales force and paid women less than similarly situated male employees company-wide. (Pl. Letter Ex. D.)
Plaintiff need not prove her case at this stage of the proceedings. Plaintiff's burden is to show that the evidence sought is “relevant” or that it “may lead to the discovery of admissible evidence.” See Fed R. Civ. P. 26(1). The documents sought by plaintiff appear to bear on the issues of whether Met Life exercised reasonable diligence to prevent and remedy discriminatory practices and whether women were paid less than similarly situated male employees. At this juncture, they “may lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(1). Admissibility is not a prerequisite to discoverability.

Amy B. Regan, Proskauer Rose LLP, New York, NY, for Defendant.
ORDER
PAULEY, J.
*1 The parties present two discovery disputes for resolution. In the first one, plaintiff Stella Mitchell (“MItchell”) seeks an order directing Defendant Metropolitan Life Insurance Company, Inc. (“Met Life”) to produce documents relied on by experts in a now closed class action titled Mitchell v. Met Life Ins. Co., Inc., 01 Civ. 2112(WHP) (the “Class Action”). Mitchell opted out of the Class Action. In the second dispute, Met Life seeks an order directing that certain categories of documents produced to plaintiff remain confidential pursuant to a Protective Order issued by this Court on August 26, 2004. For the following reasons, both applications are granted in part and denied in part.

While the documents underlying the experts' reports deal with company-wide patterns of discrimination, such evidence may reveal discrimination against a particular group of employees and therefore be relevant to individual disparate treatment claims. See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990); Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir.1991) ( “It is well settled that information concerning an employer's general employment practices is relevant to a Title VII individual disparate treatment claim.”); Berk v. Bates Adver. USA, Inc., No. 94 Civ. 9140(CSH), 1995 WL 559397, at *2 (S.D.N.Y. Sept. 19, 1995) (same).
Met Life argues that the consent decree in the Class Action precludes production of the documents since it bars discovery of any claims that could have been asserted in that case. (See Def. Letter Ex. A.) That argument is unavailing because plaintiff opted out of the Class Action and is not bound by the consent decree. See Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C. Cir1993) (class members who opt out “escape[ ] the binding effect of the class settlement”); Green v. Wolf Corp., 406 F.2d 291, 297-98 (2d Cir.1968) (judgment in class action not binding on class members who affirmatively opt out).

I. Documents Relied on by Experts in the Class Action
Plaintiff seeks documents relied on by two experts for plaintiffs in the Class Action: Dr. Richard Bielby and Dr. Richard Drogan. Met Life has produced copies of those experts' reports to plaintiff pursuant to an earlier Order of this Court. The Bielby report concluded that Met Life's anti-discrimination program was inadequate and counter-productive. (Pl. Letter Ex. C.) The Drogan report concluded that defendant promoted fewer women than

*2 Met Life asserts that thousands of documents underlie the experts' reports and that most of them bear no relation to plaintiff's individual claims of discrimination. Given the volume of documents underlying the experts' reports and the fact that those reports pertain to Met Life's company-wide sales force, this Court may place reasonable limits on the scope of defendant's document production.

Accordingly, defendant is directed to produce the documents underlying the expert reports that pertain to the Met Life region and zone where plaintiff has been employed. That production may be limited to the time period relevant to the claimed discrimination, namely, January 1, 1996 through the date the expert reports were produced.

otherwise confidential information from documents it has produced, Met Life's application to keep those redacted documents confidential is denied. (See Pl. Letter, Ex. D.)

II. Confidentiality of Certain Met Life Documents

Met Life seeks to maintain the confidentiality of the following categories of documents under the August 26, 2004 Protective Order: (1) personnel files of Met Life employees; (2) earnings and expense analyses for Met Life sales offices; and (3) business plans. Plaintiff opposes the application on the grounds that Met Life has not shown good cause for keeping the information confidential.

Personnel files of Met Life employees containing personal identifying information of non-parties are to remain confidential. To the extent that Met Life has not redacted those files, they contain sensitive data entitled to protection, such as social security numbers, disciplinary records and information relating to personal circumstances (e.g., disability and martial status). See United States v. Amodeo, 71 F.3d 1044, 1050-51 (2d Cir.1995) (stating that the “privacy interests of innocent third parties” should weigh heavily in a court's decision of whether to hold information confidential); see also Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y.2002) (protective order warranted for “medical, educational, and other inherently private information concerning individual employees of the City”).

With respect to the second category (earnings and expense analyses) and the third category (business plans), the documents also are to remain confidential. They contain internal financial analyses, business plans and other sensitive company information that Met Life is entitled to protect from competitors' view. See Houbigant v. Dev. Specialists, Inc., No. 01 Civ. 7388(LTS) (GWG), 2003 WL 21688243, at *2 (S.D.N.Y. Jul. 21, 2003) (Rule 26(c) “specifically allows the issuance of a protective order to require that a trade secret or other commercial research, development, or commercial information not be revealed or be revealed only in a designated way”).

This Order applies only to documents that fit clearly into one of the three identified categories. Moreover, to the extent that Met Life has redacted personal identifying or

 
 CLOSED
U.S. District Court United States District Court for the Southern District of New York (Foley
Square) CIVIL DOCKET FOR CASE #: 1:01−cv−02112−WHP

Mitchell, et al v. Metropolitan Life Assigned to: Judge William H. Pauley, III Demand: $0 Related Cases: 1:03−cv−10294−WHP
1:03−cv−10294−WHP Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 03/13/2001 Date Terminated: 11/06/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Stella Mitchell on behalf of themselves and all others similarly situated

represented by Adam T Klein Outten &Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York , NY 10016 212 245−1000 Fax: 212 977−4005 Email: atk@outtengolden.com LEAD ATTORNEY

Daniel Jordan Kaiser Kaiser Saurborn &Mair, P.C. 20 Exchange Place New York , NY 10005 (212) 338−9100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E. Burrell Saperstein, Goldstein, Demchak &Baller 300 Lakeside Drive Suite 1000 Oakland , CA 94612 (510) 763−9800 LEAD ATTORNEY

Holly K. Herndon Saperstein, Goldstein, Demchak &Baller 300 Lakeside Drive Suite 1000 Oakland , CA 94612 (510) 763−9800 LEAD ATTORNEY

James M. Finberg Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco , CA 94108 (415)−421−7151 Fax: (415)−362−8064 Email: jfinberg@altber.com TERMINATED: 03/21/2002 LEAD ATTORNEY PRO HAC VICE

Joshua Konecky Saperstein, Goldstein, Demchak &Baller 300 Lakeside Drive Suite 1000

Plaintiff

Oakland , CA 94612 (510) 763−9800 LEAD ATTORNEY
Kelly Dermody Lieff Cabraser Heimann &Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco , CA 94111−3339 415 956 1000 Fax: 415 956 1008 Email: kdermody@lchb.com TERMINATED: 03/21/2002 LEAD ATTORNEY
Leila K. Hilal Lieff, Cabraser, Heimann &Bernstein, L.L.P. 780 Third Avenue 48th Floor New York , NY 10017−2024 (212) 355−9500 TERMINATED: 03/21/2002 LEAD ATTORNEY
Nantiya Ruan Outten &Golden, L.L.P. 1740 Broadway 25th Floor New York , NY 10019 (212) 245−1000 LEAD ATTORNEY
Rachel Geman Lieff Cabraser Heimann &Bernstein, LLP 250 Hudson Street 8th Floor New York , NY 10013−1413 (212) 355−9500 Fax: (212)−355−9592 Email: rgeman@lchb.com TERMINATED: 03/21/2002 LEAD ATTORNEY
Scott A. Moss Outten &Golden, L.L.P. 1740 Broadway 25th Floor New York , NY 10019 (212) 245−1000 LEAD ATTORNEY
William Heywood Kaiser Kaiser Saurborn &Mair, P.C. 111 Broadway 18th Floor New York , NY 10006 212−338−9100 Fax: 212−338−9088 Email: kaiserw@ksmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hwa−Mei C. Gee on behalf of herself and all others similarly situated
Plaintiff Barbara LaChance on behalf of herself and all others similarly situated

represented by Adam T Klein (See above for address) LEAD ATTORNEY
Darci E. Burrell (See above for address) LEAD ATTORNEY
Holly K. Herndon (See above for address) LEAD ATTORNEY
James M. Finberg (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY PRO HAC VICE
Joshua Konecky (See above for address) LEAD ATTORNEY
Kelly Dermody (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Leila K. Hilal (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Nantiya Ruan (See above for address) LEAD ATTORNEY
Rachel Geman (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Scott A. Moss (See above for address) LEAD ATTORNEY
represented by Adam T Klein (See above for address) LEAD ATTORNEY
Darci E. Burrell (See above for address) LEAD ATTORNEY
Holly K. Herndon (See above for address) LEAD ATTORNEY
James M. Finberg (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY PRO HAC VICE

Plaintiff
Durpatty Persaud on behalf of herself and all others similarly situated

Joshua Konecky (See above for address) LEAD ATTORNEY
Kelly Dermody (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Leila K. Hilal (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Nantiya Ruan (See above for address) LEAD ATTORNEY
Rachel Geman (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Scott A. Moss (See above for address) LEAD ATTORNEY
represented by Adam T Klein (See above for address) LEAD ATTORNEY
Darci E. Burrell (See above for address) LEAD ATTORNEY
Holly K. Herndon (See above for address) LEAD ATTORNEY
James M. Finberg (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY PRO HAC VICE
Joshua Konecky (See above for address) LEAD ATTORNEY
Kelly Dermody (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Leila K. Hilal (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Nantiya Ruan (See above for address) LEAD ATTORNEY

Plaintiff Janet Ramsey on behalf of herself and all others similarly situated
V. Defendant Metropolitan Life Insurance Company, Inc. doing business as MetLife

Rachel Geman (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Scott A. Moss (See above for address) LEAD ATTORNEY
represented by Adam T Klein (See above for address) LEAD ATTORNEY
Darci E. Burrell (See above for address) LEAD ATTORNEY
Holly K. Herndon (See above for address) LEAD ATTORNEY
James M. Finberg (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY PRO HAC VICE
Joshua Konecky (See above for address) LEAD ATTORNEY
Kelly Dermody (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Leila K. Hilal (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Nantiya Ruan (See above for address) LEAD ATTORNEY
Rachel Geman (See above for address) TERMINATED: 03/21/2002 LEAD ATTORNEY
Scott A. Moss (See above for address) LEAD ATTORNEY
represented by Allen I. Fagin Proskauer Rose LLP 1585 Broadway New York , NY 10036 (212) 969−3030

Email: afagin@proskauer.com LEAD ATTORNEY
Allen I. Fagin Proskauer Rose LLP 1585 Broadway New York , NY 10036−8299 (212) 969−3683 Email: afagin@proskauer.com LEAD ATTORNEY

Date Filed 03/13/2001 03/13/2001 03/28/2001
04/17/2001 05/08/2001 05/08/2001 05/24/2001
06/14/2001
07/11/2001 07/13/2001 07/18/2001
07/20/2001
07/24/2001
07/25/2001

# Docket Text
1 CLASS ACTION COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 399690. (tp) (Entered: 03/14/2001)
Magistrate Judge Ronald L. Ellis is so designated. (tp) (Entered: 03/14/2001)
2 ORDER FOR INITIAL PRETRIAL CONFERENCE; counsel are directed to appear in Courtroom 618 at the U.S. Courthouse, 40 Foley Sq., 40 Centre Street on 6/22/01 at 11:00 a.m. for an initial pretrial conferene. ( signed by Judge William H. Pauley III ) (sac) (Entered: 03/28/2001)
3 STIPULATION and ORDER, extending time for deft to answer to the complaint ; reset answer to the complaint due for 4/30/01 for Metropolitan Life Insurance Co. ( signed by Judge William H. Pauley III ) (kg) (Entered: 04/18/2001)
4 RULE 1.9 CERTIFICATE filed by Metropolitan Life . (pl) (Entered: 05/10/2001)
5 ANSWER to Complaint by Metropolitan Life (Attorney Allen I. Fagin from the Firm: Proskauer, Ross LLP) . (pl) (Entered: 05/10/2001)
6 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey for an order, purs. to Rule 1.3 of the General Rules of the Sadmitting James M. Finberg and Kelly M. Dermody of Lieff, Cabraser, Heimann &Bernstein, LLP to appear pro hac vice ; Return date not indicated. Declaration(s) in support attached. (sac) (Entered: 05/29/2001)
7 Memo−Endorsement on letter addressed to Judge Pauley from Kelly M. Dermody and Allen T., dated 06/11/01; initial pre−trial conference adjourned to 07/13/01 at 3:00 p.m. ; ( signed by Judge William H. Pauley III ); Copies mailed. (djc) (Entered: 06/18/2001)
8 Joint Case Management Statement filed. (kkc) (Entered: 07/12/2001)
Pretrial Conference held before Judge William H. Pauley III. (kkc) (Entered: 07/24/2001)
9 ORDER, Defendant shall serve and file its motion to disqualify counsel by 7/20/01; plaintiffs shall serve and file their opposition papers by 8/3/01; reply papers, if any, shall be served and filed by 8/10/01; oral argument is set for 9/5/01 at 2:30 p.m. . ( signed by Judge William H. Pauley III ); Copies mailed. (ae) (Entered: 07/18/2001)
11 MEMORANDUM OF LAW by Metropolitan Life in support of [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in this action. (docmt received in night dep. on 07/20/01 at 10:34 p.m.) (djc) (Entered: 07/24/2001)
10 NOTICE OF MOTION by Metropolitan Life; for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in this action ; Return date 9/5/01. Attached are affidavits of Wilbert, Finnegan, Seltzer, Sullivan, Wilson and Fagan. (docmt received in night dep. on 07/20/01 at 10:32 p.m.) (djc) Modified on 07/24/2001 (Entered: 07/24/2001)
12 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey for James M. Finberg and Kelly M. Dermody to appear pro hac vice ; Return date 8/2/01. Attached are Declarations of Adam T. Klein and James M. Finberg. (djc) (Entered: 07/26/2001)

07/31/2001 08/09/2001
08/14/2001 08/14/2001 08/14/2001 08/14/2001 08/14/2001 08/14/2001 08/14/2001 08/14/2001 08/14/2001 08/22/2001 08/22/2001 08/29/2001 08/30/2001 09/05/2001

13 ORDER, granting [12−1] motion for James M. Finberg and Kelly M. Dermody to appear pro hac vice on behalf of plaintiffs. ( signed by Judge William H. Pauley III ); Copies mailed. (Orig. doc. sent to the Attorney Admissions Clerk) (ae) Modified on 07/31/2001 (Entered: 07/31/2001)
14 STIPULATION and ORDER, pltffs to serve and file their opposition papers with respect to defts [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in action is extended to 8/10/01 ; Deft's Reply to Response to Motion reset to 8/22/01 [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in action . ( signed by Judge William H. Pauley III ) (kg) (Entered: 08/10/2001)
15 MEMORANDUM OF LAW by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in opposition to [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in this action. (sac) (Entered: 08/21/2001)
16 DECLARATION of Kelly M. Dermody by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support Re: [15−1] opposition memorandum. (sac) (Entered: 08/21/2001)
17 DECLARATION of Charles W. Wolfram by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: based on personal knowledge. (sac) (Entered: 08/21/2001)
18 DECLARATION of Steven M. Tindall by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: based on personal knowledge. (sac) (Entered: 08/21/2001)
19 DECLARATION of Richard T. Seymour by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: based on personal knowledge. (sac) (Entered: 08/21/2001)
20 DECLARATION of Leila K. Hilal by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: based on personal knowledge. (sac) (Entered: 08/21/2001)
21 AFFIRMATION of Wendy R. Fleishman by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: based on personal knowledge. (sac) (Entered: 08/21/2001)
22 DECLARATION of Rachel Geman by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: based on personal knowledge. (sac) (Entered: 08/21/2001)
Pretrial Conference held before Judge William H. Pauley III. (kw) (Entered: 08/29/2001)
23 AFFIDAVIT of Sheila Murphy; declaration of Steven P. Seltzer; declaration of Hal R. Lieberman; and affidavit of Amy B. Regan by Metropolitan Life. (Received in the night deposit box on 8/22/01). (kw) (Entered: 08/23/2001)
24 REPLY MEMORANDUM by Metropolitan Life in support of re: [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in this action. (Received in the night deposit box on 8/22/01). (kw) (Entered: 08/23/2001)
26 DECLARATION of Steven P. Seltzer by Metropolitan Life in support of: [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in this action. (kkc) (Entered: 08/31/2001)
25 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 7/13/01. (moc) (Entered: 08/30/2001)
27 CONFIDENTIALITY ORDER, regarding prodcedures that will govern the handling of confidential information ( signed by Judge William H. Pauley III ); Copies mailed. (cd) (Entered: 09/06/2001)

09/05/2001 11/02/2001 11/30/2001
01/08/2002 02/15/2002
03/13/2002 03/21/2002 04/16/2002
04/24/2002
04/26/2002 04/30/2002 05/01/2002

Oral argument held and concluded before Judge William H. Pauley III. (bai) (Entered: 09/26/2001)
28 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 9/5/01 @12:05 p.m. (kg) (Entered: 11/02/2001)
29 Memo−Endorsement on letter addressed to Judge Pauley from Kelly M. Dermody, dated 11/28/01; granting counsel for pltffs' request for permission for pltffs' attorney James M. Finberg, to appear telephonically at the discovery conference set for 10:15 AM on 11/30/01. Mr. Finberg shall call Chambers at (212) 805−6387 . ( signed by Judge William H. Pauley III ); Copies mailed. (sn) (Entered: 12/04/2001)
30 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 11/30/01. (cd) (Entered: 01/08/2002)
31 ORDER RE: DICOVERY CONFERENCE, plaintiffs' application for the production of documents relating to defendant's hiring practices is denied set forth in this document. Plaintiffs' application for documents relating to sexual harassment issues within the MLFS field force, with respect to the period 1/1/98 to the present is granted ; plaintiffs' application for the complete, unredacted versions of the "Women in MetLife" Report and the "Productivity of Women Representatives" Report is granted ; defendant's motion to compel discovery relating to the Named Plaintiffs' individual damages is granted as set forth in this document ; defendant's application for discovery with respect to experts whose opinions will be offered in connection with the anticipated class certfication motion is granted as forth in this document . ( signed by Judge William H. Pauley III ); Copies mailed. (kw) (Entered: 02/20/2002)
32 Memo−Endorsement on letter addressed to Judge Pauley from Allen I. Fagin, dated 03/08/02; defendant's time to serve and file its opposition leter is extended to 03/18/02 ; signed by Judge William H. Pauley III ); Copies mailed. (djc) (Entered: 03/18/2002)
33 MEMORANDUM AND ORDER granting [10−1] motion for an order disqualifying Lieff, Cabraser, Heimann &Bernstein LLP from representing plaintiffs in this action ( signed by Judge William H. Pauley III ); Copies mailed. (cd) (Entered: 03/25/2002)
34 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, for Barry Goldstein to appear pro hac vice ; for Teresa Demchak to appear pro hac vice ; for David Borgen to appear pro hac vice ; for Linda M. Dardarian to appear pro hac vice ; for Roberta Steele to appear pro hac vice . Declaration of Adam T. Klein in support is attached. Declaration of David Borgen in support is attached. No return date. (kw) (Entered: 04/22/2002)
35 ORDER; granting [34−1] motion for Barry Goldstein to appear pro hac vice, granting [34−2] motion for Teresa Demchak to appear pro hac vice, granting [34−3] motion for David Borgen to appear pro hac vice, granting [34−4] motion for Linda M. Dardarian to appear pro hac vice, granting [34−5] motion for Roberta Steele to appear pro hac vice . ( signed by Judge William H. Pauley III ); Copies mailed. (docmt forwarded to atty admissions clerk) (djc) (Entered: 04/25/2002)
PRETRIAL CONFERENCE held and concluded on 4/26/02 before Judge William H. Pauley III . (sb) (Entered: 05/02/2002)
37 Memorandum to Docket Clerk: Pretrial conference held and concluded on 4/26/02 before Judge Pauley. (sb) (Entered: 05/02/2002)
36 ORDER; that (1) plaintiffs shall submit a letter to the Court by 5/29/02 advising the Court of their intentions with respect to the amendment of their complaint as proposed by plaintiffs' former counsel; (2) any disputes regarding the transfer of documents from plaintiffs' former counsel, Lieff Cabraser Heimann &Bernstein, LLP to plaintiffs' new counsel, Saperstein Goldstein Demchak &Baller shall be submitted to the Court in letter memoranda by each party by 5/13/02; (3) any responses to the letter memoranda are due by 5/17/02; (4) a joint letter submitting a proposed case management schedule is due by 6/21/02. If the parties cannot agree on an issue then the letter shall set forth each party's position, including citations to caselaw where appropriate ; a status conference is scheduled for 7/16/02 at 10:30 a.m . ( signed by Judge William H. Pauley III ); Copies mailed. (kkc) (Entered: 05/01/2002)

06/11/2002 06/21/2002 06/21/2002 06/21/2002 07/17/2002 07/17/2002 07/26/2002 07/30/2002
07/30/2002 09/03/2002 12/03/2002
12/03/2002
12/03/2002
12/03/2002

38 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 4/26/02. (tr) (Entered: 06/11/2002)
39 STIPULATION and ORDER, plaintiffs may file the attached first amended complaint. Any and all applicable statutes of limitations as to Forman's individual claims against defendant shall be tolled as of 3/6/02, until sixty days following entry of this Order . ( signed by Judge William H. Pauley III ) (kw) (Entered: 06/25/2002)
40 AMENDED COMPLAINT by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey (Answer due 7/5/02 for Metropolitan Life ) amending [1−1] complaint; jury trial demanded. (kw) (Entered: 06/25/2002)
40 DEMAND for jury trial by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey. (kw) (Entered: 06/25/2002)
41 Memorandum to Docket Clerk:, for a status conference . (dle) (Entered: 07/18/2002)
Status Conference held on 7/16/02 before Judge William H. Pauley III (dle) (Entered: 07/18/2002)
42 ANSWER by Metropolitan Life to Fir st Aended [1−1] complaint . (Attorney Allen I. Fagin from the Firm: Proskauer Rose LLP). (djc) (Entered: 07/31/2002)
43 STIPULATION and ORDER, final day for amendment of pleadings: 6/28/02; date by which plaintiffs must identify any additional named plaintiffs: 7/31/02; last date for plaintiffs to identify anecdotal witnesses and provide defendant with any non−expert affidavits plaintiffs intend to submit with their class certification motion: 11/1/02; date by which plaintiffs must provide defendant with expert report(s) for their class certification experts: 11/29/02; date by which non−expert depositions must be completed by 12/20/02; date by which plaintiffs' class certification expert(s) must be deposed: 12/20/02; date by which defendant must provide plaintiffs with expert report(s) for its class certification expert(s): 1/17/03; date by which defendant's class certification expert(s) must be deposed: 2/7/03; plaintiffs shall file and serve their motion for class certification: 2/28/03; defendant shal file and serve its opposition to class certification: 4/18/02; plaintiffs shall file and serve their reply in support of class certification: 5/9/03; hearing on Class Certification Motion: 6/4/03 at 10:30 a.m. ( signed by Judge William H. Pauley III ) (kw) (Entered: 08/01/2002)
Deadlines: final date for amendment of pleadings: 6/28/02; plaintiff's motion for class certification: 2/28/03; opposition by 4/18/02; reply by 5/9/03 ; hearing on class certification motion is set for 6/4/03 at 10:30 a.m. (kw) (Entered: 08/01/2002)
44 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of July 16, 2002. (jw) (Entered: 09/03/2002)
45 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey; for an order purs. to Rule 1.3 of the General Rules of the S.D.N.Y. for Darci E. Burrell, Holly K. Herndon, Joshua Konecky of Saperstein, Goldstein, Demchak, &Baller to appear pro hac vice . No Return Date. (ae) (Entered: 12/11/2002)
46 DECLARATION of Adam T. Klein by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support Re: [45−1] motion for an order purs. to Rule 1.3 of the General Rules of the S.D.N.Y. for Darci E. Burrell, Holly K. Herndon, Joshua Konecky of Saperstein, Goldstein, Demchak, &Baller to appear pro hac vice . (ae) (Entered: 12/11/2002)
47 DECLARATION of Darci E. Burrell by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support Re: [45−1] motion for an order purs. to Rule 1.3 of the General Rules of the S.D.N.Y. for Darci E. Burrell, Holly K. Herndon, Joshua Konecky of Saperstein, Goldstein, Demchak, &Baller to appear pro hac vice . (ae) (Entered: 12/11/2002)
48 DECLARATION of Holly K. Herndon by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support Re: [45−1] motion for an order purs. to Rule 1.3 of the General Rules of the S.D.N.Y. for Darci E. Burrell, Holly K. Herndon, Joshua Konecky of Saperstein, Goldstein, Demchak, &Baller to appear pro hac vice . (ae) (Entered: 12/11/2002)

12/03/2002
12/16/2002
02/11/2003 02/11/2003 02/11/2003 02/11/2003 02/28/2003 02/28/2003 02/28/2003 03/20/2003 03/20/2003 03/31/2003 04/02/2003 04/02/2003 04/10/2003

49 DECLARATION of Joshua Konecky by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support Re: [45−1] motion for an order purs. to Rule 1.3 of the General Rules of the S.D.N.Y. for Darci E. Burrell, Holly K. Herndon, Joshua Konecky of Saperstein, Goldstein, Demchak, &Baller to appear pro hac vice . (ae) (Entered: 12/11/2002)
50 ORDER granting [45−1] motion for an order purs. to Rule 1.3 of the General Rules of the S.D.N.Y. for Darci E. Burrell, Holly K. Herndon, Joshua Konecky of Saperstein, Goldstein, Demchak, &Baller to appear pro hac vice on behalf of plaintiffs in this matter. ( signed by Judge William H. Pauley III ); Document forwarded to attorney admissions clerk. (dle) Modified on 12/18/2002 (Entered: 12/18/2002)
51 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey for Adam T. Klein to appear pro hac vice for pltff's . Proposed Order attached. No Return Date indicated. (db) Modified on 02/19/2003 (Entered: 02/19/2003)
52 DECLARATION of Morris J. Baller by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support motion to appear pro hac vice. (db) (Entered: 02/19/2003)
53 DECLARATION of Adam T. Klein by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support Re: [51−1] motion for Adam T. Klein to appear pro hac vice for pltff's . (db) (Entered: 02/19/2003)
54 Order admitting attorney Morris J. Baller pro hac vice on behalf of the plaintiffs. ( signed by Judge William H. Pauley III ); FORWARDED DOCUMENT TO ATTORNEY ADMISSIONS CLERK. (tp) (Entered: 02/26/2003)
55 DECLARATION of Lisa M. Dungan by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey Re: and Index of Evidence in Support of Plaintiffs' Motion for Class Certification. (djc) (Entered: 03/04/2003)
56 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey to certify class action ; Return Date 6/4/03 at 9:30. (cd) (Entered: 03/04/2003)
57 MEMORANDUM OF LAW by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [56−1] motion to certify class action; accompanied with Volumes of Exhibits (cd) (Entered: 03/04/2003)
58 AMENDED MEMORANDUM OF LAW by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [56−1] motion to certify class action . (yv) (Entered: 03/27/2003)
59 AMENDED EXHIBIT 1 by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey to declaration of May Rafanan in support of plaintiffs' motion for class certification (yv) (Entered: 03/27/2003)
60 STIPULATION and ORDER; Plaintiffs may file the Second Amended Complaint ; ( signed by Judge William H. Pauley III ); (complaint not attached) (djc) Modified on 04/02/2003 (Entered: 04/01/2003)
61 SECOND AMENDED COMPLAINT by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey (Answer due 4/14/03 for Metropolitan Life ) amending [1−1] complaint Summons issued. (cd) (Entered: 04/03/2003)
61 DEMAND for jury trial by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey . (cd) (Entered: 04/03/2003)
62 Memo−Endorsement on letter addressed to Judge Pauley from Teresa Demchak, dated 4/4/093. Re: parties request that dft be permitted to serve and file its submission in opposition to [56−1] class certification on 4/30/03 , and that pltffs be permitted to serve and file their reply submission in support of [56−1] class certification on 5/14/03 , and dft also requests permission to exceed the page limits of aforementioned submissions; a 40 page memorandum of laaw in opposition to [56−1] motion. Pltffs consent, so long they are permitted to submit a 20 page reply memorandum in support of [56−1] motion. All applications granted. Oral argument is rescheduled for 6/12/03 at 2:30 p.m. . ( signed by Judge William H. Pauley III ) (db) (Entered: 04/11/2003)

04/10/2003 04/30/2003 04/30/2003 04/30/2003 04/30/2003 04/30/2003 05/12/2003
06/12/2003 06/12/2003 06/18/2003 07/29/2003 07/30/2003
07/30/2003
07/30/2003
07/30/2003
08/12/2003

Deadline(s) updated: oral argument rescheduled for 6/12/03 at 2:30 p.m. as per Doc # 62, endorsement . (db) (Entered: 04/11/2003)
63 MEMORANDUM OF LAW by Metropolitan Life in support of dfts opposition to pltffs motion to class certification. (db) (Entered: 05/05/2003)
64 DECLARATION of Jennifer Gray (PART 1) by Metropolitan Life in opposition Re: [56−1] motion to certify class action . (db) (Entered: 05/05/2003)
65 DECLARATION of Jennifer Gray (PART 2) by Metropolitan Life in opposition Re: [56−1] motion to certify class action . (db) (Entered: 05/05/2003)
66 DECLARATION of Anne M. Smith by Metropolitan Life in opposition Re: [56−1] motion to certify class action . (db) (Entered: 05/05/2003)
67 DECLARATION of Jonathan E. Sachs by Metropolitan Life in opposition Re: [56−1] motion to certify class action . (db) (Entered: 05/05/2003)
68 Memo−Endorsement on letter addressed to Judge Pauley from David Borgen, dated 05/09/03; granting counsel's request that the briefing schedule and the oral argument with respect to plaintiffs' class certification motion be vacated. The remaining briefing schedule and oral argument are adjourned indefinitely ; reset status conference for 2:30 p.m. on 6/12/03 ; Plaiintiff's counsel is directed to serve this order on all parties ; ( signed by Judge William H. Pauley III ); (djc) (Entered: 05/13/2003)
69 Memorandum to Docket Clerk: Status conference held and concluded 6/12/03. (ja) (Entered: 06/18/2003)
Status Conference held before Judge William H. Pauley III . (ja) (Entered: 06/18/2003)
70 ORDER; The parties shall submit their proposed consent decree and settlement documents to the Court by July 25, 2003 ; a telephone conference is scheduled for 4:45 p.m. on 8/12/03, to discuss further scheduling issues . ( signed by Judge William H. Pauley III ); Copies mailed by Chambers. (jco) (Entered: 06/18/2003)
71 Memo−Endorsement on letter addressed to Judge Pauley from David Borgen/Allen I. Fagin, dated 7/24/03 reset motion filing deadline for 7/30/03 for plntfs consent decree and motion for preliminary approval of the settlement ( signed by Judge William H. Pauley III ); (cd) (Entered: 07/31/2003)
72 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey, Metropolitan Life for an order of class certification of the settlement class , for an order for preliminary approval of the Consent Decree , for an order for an award of attorneys' fees , and for an order for approval of class notice . No Return Date. Proposed order attached. (sb) (Entered: 08/01/2003)
73 MEMORANDUM OF LAW by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [72−1] motion for an order of class certification of the settlement class, [72−2] motion for an order for preliminary approval of the Consent Decree, [72−3] motion for an order for an award of attorneys' fees, [72−4] motion for an order for approval of class notice. Appendix to Memorandum attached. (sb) Modified on 08/01/2003 (Entered: 08/01/2003)
74 DECLARATION of David Borgen by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [72−1] motion for an order of class certification of the settlement class, [72−2] motion for an order for preliminary approval of the Consent Decree, [72−3] motion for an order for an award of attorneys' fees, [72−4] motion for an order for approval of class notice . (sb) (Entered: 08/01/2003)
75 DECLARATION of Adam T. Klein by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [72−1] motion for an order of class certification of the settlement class, [72−2] motion for an order for preliminary approval of the Consent Decree, [72−3] motion for an order for an award of attorneys' fees, [72−4] motion for an order for approval of class notice. (sb) (Entered: 08/01/2003)
Telephone Conference held before Judge William H. Pauley III . (cd) (Entered: 08/18/2003)

08/12/2003 08/20/2003
10/15/2003 10/27/2003 10/27/2003 10/27/2003 10/27/2003 11/04/2003 11/06/2003 11/06/2003
11/06/2003 12/11/2003 03/17/2004 04/20/2004

76 Memorandum to Docket Clerk: telephone conference held 8/12/03 (cd) (Entered: 08/18/2003)
77 ORDER Granting Conditional Certification of a Settlement Class, and Preliminary approval of Proposed Consent Decree and Award of Attorneys' fees and Costs, and Authorizing Class Notice; the Court finds that certification purs to FRCP 23(b)(2) of the following class for settlement purposes only is appropriate as set forth in this Order ; the Court approves the Notice presented by the parties ; the Court hereby sets a Hearing on 11/06/03 at 2:15 p.m. (the "Fairness Hearing") to determine whether the Consent Decree shall be given final approval ; if the court for any reason does not grant final approval of the consent Decree, all evidence and proceedings held in connection with this setlement approval process shall be without prejudice to the rights of the parties and the parties to this case will be returned to the positions they were in prior to the submission of the Proposed Consent Decree, as more specifically set forth in the Consent Decree ; ( signed by Judge William H. Pauley III ); (djc) (Entered: 08/20/2003)
78 NOTICE of Intent to Opt out of settlement by Stella Mitchell. (jco) (Entered: 10/22/2003)
79 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey to approve settlement class and consent decree ; Return Date 11/6/03 at 2:15. (cd) (Entered: 10/29/2003)
80 MEMORANDUM OF LAW by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [79−1] motion to approve settlement class and consent decree; accompanied with 2 volumes of Appendix (cd) (Entered: 10/29/2003)
81 NOTICE OF MOTION by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey for attorney fees and costs ; Return Date 11/6/03 at 2:15. (cd) (Entered: 10/29/2003)
82 MEMORANDUM OF LAW by Stella Mitchell, Hwa−Mei C. Gee, Barbara LaChance, Durpatty Persaud, Janet Ramsey in support of [81−1] motion for attorney fees and costs; accompanied with 2 Volumes of Appendix (cd) (Entered: 10/29/2003)
85 Letter filed by Metropolitan Life addressed to Judge Pauley from Allen I. Fagin, dated 11/04/03, re: advising Your Honor that they do not oppose Plaintiff's motion for final approval of settlement class and consent decree or plaintiffs' application for award of attorneys' fees and costs; (djc) (Entered: 11/12/2003)
83 ORDER, that for the reasons set forth, the Court is granting plaintiffs' [81−1] motion for attorney fees and costs in the amount of$3.4 million. ( signed by Judge William H. Pauley III ). (tp) (Entered: 11/06/2003)
84 ORDER, that for the reasons set forth, the Court is granting plaintiffs' [72−1] motion for an order of class certification of the settlement class; granting [72−2] motion for an order for preliminary approval of the Consent Decree; granting [72−3] motion for an order for an award of attorneys' fees. The Court dismisses the Mitchell Action on the merits and with prejudice, without fees or costs except as provided in the Consent Decree, and except as to the individual claims of opt−out Stella Mitchell . ( signed by Judge William H. Pauley III ). (tp) (Entered: 11/06/2003)
Case closed. (tp) (Entered: 11/06/2003)
86 TRANSCRIPT of proceedings held on 11/6/2003 before Judge William H. Pauley.(pr, ) (Entered: 12/11/2003)
87 STIPULATION AND ORDER that the claim forms of the class members listed in the attached exihibt A shall be deemd timely and these class memvers may participate in the class settlement fund (Signed by Judge William H. Pauley III on 3/11/2004) (jsa, ) (Entered: 03/19/2004)
88 STIPULATION AND ORDER that class member Eliza Cohn shall be permitted to rescind her opt−out statement and participate in the class settlement. So Ordered. (Signed by Judge William H. Pauley III on 4/19/04) (jco, ) (Entered: 04/21/2004)

06/09/2004 10/22/2004

89 STIPULATION AND ORDER, that the claim forms of class members Julie A. Deliso−Pollicino, Patricia E Reid, Marie Mauricio−Ortiz and Cynthia M. Maggiolli shall be deemed timely and thsese class members may participate in the class settlement fund. (Signed by Judge William H. Pauley III on 6/7/04) (tp, ) (Entered: 06/10/2004)
90 NOTICE of Appearance by Daniel J. Kaiser, William H. Kaiser on behalf of Stella Mitchell (pa, ) (Entered: 10/25/2004)

 
 CLOSED, RELATED
U.S. District Court United States District Court for the Southern District of New York (Foley
Square) CIVIL DOCKET FOR CASE #: 1:03−cv−10294−WHP

Mitchell v. Metropolitan Life Insurance Company, Inc. Assigned to: Judge William H. Pauley, III Demand: $1,300,000 Related Cases: 1:01−cv−02112−WHP
1:01−cv−02112−WHP Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 12/31/2003 Date Terminated: 01/24/2005 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Stella Mitchell

represented by Daniel Jordan Kaiser Kaiser Saurborn &Mair, P.C. 111 Broadway 18th Floor New York , NY 10006 (212) 338−9100 Fax: (212) 338−9088 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc Andrew Stadtmauer Eckaus and Olson 230 Park Ave NY , NY 10169 212−986−6200 Fax: 212−661−2153 Email: mas@stadtmauer.com TERMINATED: 11/18/2004

Marc Andrew Stadtmauer (See above for address) TERMINATED: 11/18/2004 ATTORNEY TO BE NOTICED

V.
Defendant
Metropolitan Life Insurance Company, Inc. doing business as MetLife

represented by Allen Ian Fagin Proskauer Rose LLP (New York) 1585 Broadway New York , NY 10036 (212)969−3030 Email: afagin@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Beth Regan Proskauer Rose LLP (New York) 1585 Broadway New York , NY 10036 (212) 969−3962 Email: aregan@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

12/31/2003 12/31/2003 12/31/2003 01/29/2004
01/30/2004 01/30/2004 01/30/2004 02/02/2004 02/24/2004 02/24/2004 04/05/2004
07/07/2004
07/23/2004
08/12/2004
08/26/2004 08/27/2004 09/30/2004

1 COMPLAINT against Metropolitan Life Insurance Company, Inc.. (Filing Fee $ 150.00, Receipt Number 495363)Document filed by Stella Mitchell.(dg, ) (Entered: 01/06/2004)
SUMMONS ISSUED as to Metropolitan Life Insurance Company, Inc.. (dg, ) (Entered: 01/06/2004)
CASE REFERRED TO Judge William H. Pauley III as possibly related to 1:01 cv 2112. (dg, ) (Entered: 01/06/2004)
3 ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE:... If such a consent order is not filed within the time provided,... Initial Conference set for 4/2/2004 10:30 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley III on 1/27/2004) Copies mailed by Chambers.(jsa, ) (Entered: 02/04/2004)
CASE ACCEPTED AS RELATED TO 1:01−cv−2112. Notice of Assignment to follow. (laq, ) (Entered: 02/02/2004)
2 NOTICE OF CASE ASSIGNMENT to Judge William H. Pauley. Judge Unassigned no longer assigned to the case. (laq, ) (Entered: 02/02/2004)
Magistrate Judge Ronald Ellis is so designated. (laq, ) (Entered: 02/02/2004)
Mailed notice to the attorney(s) of record. (laq, ) (Entered: 02/02/2004)
4 RULE 7.1 DISCLOSURE STATEMENT. Document filed by Metropolitan Life Insurance Company, Inc. (kkc, ) (Entered: 02/25/2004)
5 ANSWER to Complaint. Document filed by Metropolitan Life Insurance Company, Inc. (kkc, ) (Entered: 02/25/2004)
6 SCHEDULING ORDER: Fact discovery due by 6/30/04; Expert discovery due by 9/3/2004; Final Pretrial Conference set for 10/1/2004 at 10:30 AM before Judge William H. Pauley III; Joint Pretrial Order due by 9/24/2004. (Signed by Judge William H. Pauley III on 4/2/04) Copies mailed By Chambers.(tp, ) (Entered: 04/06/2004)
7 SCHEDULING ORDER: Discovery due by 9/30/2004. Final Pretrial Conference set for 1/7/2005 10:15 AM before Judge William H. Pauley III. Status Conference set for 7/22/2004 02:30 PM before Judge William H. Pauley III. Pretrial Order due by 12/22/2004. (Signed by Judge William H. Pauley III on 7/1/2004) (jp, ) (Entered: 07/08/2004)
8 SCHEDULING ORDER: Pursuant to discovery conference held on 7/22/2004; plaintiff shall submit her letter on the issue of her entitlement to documents by 8/12/2004; Responses due by 8/19/2004 Replies due by 8/26/2004. (Signed by Judge William H. Pauley III on 7/22/2004) Copies mailed by Chambers.(jsa, ) (Entered: 07/26/2004)
9 MOTION for Disclosure of Documents Underlying Expert Reports. Document filed by Stella Mitchell. (Attachments: # 1 Exhibit A−Complaint# 2 Exhibit B−Answer# 3 Exhibit C−Bielby Expert Report# 4 Exhibit D−Drogin Expert Report# 5 Exhibit E−Order Approving Consent Decree# 6 Exhibit F−"Secrets Kill" Report)(Stadtmauer, Marc) (Entered: 08/12/2004)
10 REPLY to Response to Motion re: 9 MOTION for Disclosure of Documents Underlying Expert Reports.. Document filed by Stella Mitchell. (Attachments: # 1 Exhibit A−Women of Met Life Excerpt)(Stadtmauer, Marc) (Entered: 08/26/2004)
11 ORDER regarding procedures to be followed that shall govern the handling of "confidential information". (Signed by Judge William H. Pauley III on 8/26/04) (jco, ) (Entered: 08/30/2004)
12 ENDORSED LETTER addressed to Judge William H. Pauley from Marc Stadtmauer dated 9/22/04 re: counsel for plaintiff requests a 90 day extension of the deadlines in this court's scheduling order no.2. Application granted in part. The schedule is extended by 60 days. Fact discovery shall be completed by 11/30/04; expert discovery shall be completed by 2/4/05; the parties shall submit a joint pretrial order by 2/25/04; the parties shall appear for a final pretrial conference on 3/11/05 at 10:15 a.m.. (Signed

09/30/2004 10/28/2004 10/28/2004 10/28/2004 10/28/2004 10/28/2004 11/03/2004
11/10/2004 11/18/2004 11/23/2004 12/20/2004 01/24/2005
02/23/2005

by Judge William H. Pauley III on 9/29/04) Copies faxed by chambers.(dle, ) (Entered: 10/07/2004)
Set/Reset Scheduling Order Deadlines: Discovery due by 2/4/2005. Final Pretrial Conference set for 3/11/2005 10:15 AM before Judge William H. Pauley III. Pretrial Order due by 2/25/2004. (dle, ) (Entered: 10/07/2004)
13 LETTER addressed to Judge Pauley from Amy Regan dated 8/19/04: that the Court should rejct plntf's effort ot obtain what is essentially all the discovery provided by MetLIfe. Document filed by Metropolitan Life Insurance Company, Inc..(cd, ) (Entered: 11/04/2004)
15 LETTER addressed to Judge Pauley from Marc Stadmaurer dated 8/12/04: re two expert reports submitted submitted by plntfs' counsel. Document filed by Stella Mitchell.(cd, ) (Entered: 11/04/2004)
16 LETTER addressed to Judge Pauley from Marc Stadmaurer dated 8/26/04: plntf's request for deft to produce the two expert reports. Document filed by Stella Mitchell.(cd, ) (Entered: 11/04/2004)
17 LETTER addressed to Judge Pauley from Amy Regan dated 9/20/04: that certain documents produced to plntf remain confidential. Document filed by Metropolitan Life Insurance Company, Inc. (cd, ) (Entered: 11/04/2004)
18 LETTER addressed to Judge Pauley from Marc Stadmaurer dated 9/23/04: re confidentiality of documents. Document filed by Stella Mitchell.(cd, ) (Entered: 11/04/2004)
14 ORDER; The parties pesent two discovery disputes for resolution. In the first one, plaintiff Stella Mitchell seeks an order directing Defendant Metropolitan Life Ins. Co., Inc to produce documents relied on by experts in a now closed class action titled...; In the second dispute, Met Life seeks an order directing that certain categories of documents produed by plaintiff remain confidential purs to a Protective Order issued by this Court on August 26, 2004. For the following reasons as set forth in this Order, both applications are gratned in part and denied in part. (Signed by Judge William H. Pauley III on 11/2/04) copies mailed by Chambers.(djc, ) (Entered: 11/04/2004)
19 LETTER addressed to Judge William H. Pauley III from Stella Mitchell dated 9/10/04 re: dfts writes to the Court to briefly respond to the letter of plaintiff's counsel, Marc A. Stadtmauer, dated 8/26/04. Document filed by Metropolitan Life Insurance Company, Inc..(pl, ) (Entered: 11/16/2004)
21 CONSENT ORDER SUBSTITUTING COUNSEL, that Kaiser Saurborn &Mair, P.C. be substituted as attorneys of record for the undersigned party in this entitled action in place and stead of the undersigned law firm as of the date hereof. (Signed by Judge William H. Pauley III on 11/16/04) (tp, ) (Entered: 11/23/2004)
20 LETTER addressed to Judge Pauley from Amy Regan dated 10/7/2004 re: a response to pltffs counsels letter of 9/23/2004. Document filed by Metropolitan Life Insurance Company, Inc..(jp, ) (Entered: 11/23/2004)
22 ENDORSED LETTER addressed to Judge Pauley from William Kaiser dated 12/14/2004 re: granting counsels request as follows: Status Conference set for 1/21/2005 10:00 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley III on 12/16/2004) (jp, ) (Entered: 12/22/2004)
23 ORDER OF DISCONTINUANCE, It having been reported to this Court that this action has been or will be settled, it is hereby ORDERED that this action be discontinued without costs to any party, and without prejudice to restoring the action to this Court's calendar if the application to restore the action is made within thirty (30) days of the date of this Order. The Clerk of the Court is directed to mark this case closed. (Signed by Judge William H. Pauley III on 1/20/05) (dt, ) (Entered: 01/27/2005)
24 ENDORSED LETTER addressed to Judge Pauley from William H. Kaiser dated 02/15/05 re: Counsel requests a pre−motion conference; the parties are directed to appear for a conference on 03/04/05 at 10:30 a.m.. (Signed by Judge William H. Pauley III on 2/18/05) (djc, ) (Entered: 02/24/2005)

03/01/2005 04/29/2005

25 ENDORSED LETTER addressed to Judge William H. Pauley from Amy Regan dated 2/23/05 re: counsel for dft Metropolitan Life Insurance Company requests the court's permission to file a motion for summary judgment dismissing plaintiff's claims in their entirety. The parties are directed to appear for a conference on 3/8/05 at 2:00 p.m. (Signed by Judge William H. Pauley III on 2/25/05) (dle, ) (Entered: 03/03/2005)
26 STIPULATION AND ORDER OF DISMISSAL, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel for the parties herein, that this action is dismissed with prejudice and without costs or attorneys' fees to any party. (Signed by Judge William H. Pauley III on 4/20/05) (dt, ) (Entered: 05/02/2005)

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant. No. 01 Civ.2112. March 13, 2001.
Class Action Complaint and Demand for Jury Trial
Judge Pauley. Individual and Representative Plaintiffs Stella Mitchell, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey (hereinafter “Plaintiffs”) on behalf of themselves and all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
PRELIMINARY STATEMENT
1. This is a class action brought by female employees within the Insurance and Financial Services Division of Defendant Metropolitan Life Insurance Co. Inc., d/b/a MetLife (“MetLife”). MetLife has engaged in a continuing policy and practice of gender discrimination in hiring, promotional opportunities, job assignments, compensation, and other terms, conditions and privileges of employment nationwide, and of retaliation in response to complaints of discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, 42 U.S.C. § 1981a (“Title VII”), the New York State Human Rights Law, New York Executive Law § 290 et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”).
2. MetLife is one of the largest insurance and financial services companies in the United States, selling individual insurance, annuity and investment products and group insurance and retirement and savings products and services. Insurance products and services are sold through MetLife's Insurance and Financial Services Division (“IFSD”). MetLife derives its revenues primarily from insurance premiums and fees for insurance products. MetLife is an insurance provider to millions of households, corporations, and other institutions in the United States.
3. The employees selling MetLife insurance and financial services products are called Account Representatives (“Account Reps”), also known as “Financial Services Representatives.” The compensation for Account Reps is based, in substantial part, on commissions made through the sale of MetLife insurance and financial products. Some Account Reps also receive additional compensation for receiving the title of Functional Manager. MetLife presently employs approximately 6,000 Account Reps within the IFSD. They are located throughout the United States in approximately 183 business locations known as local agencies.
4. Each local agency is run by a Managing Director (also known as “Branch Manager,” “General Manager” or “Agency Manager”). Between the Managing Director and Account Rep levels is a second-line management level position of Agency Director (also known as “Sales Manager,” “Director,” “Associate General Manager,” or “Associate Manager”). This position typically requires more experience and is better compensated than the Account Rep position. The Managing Director of each agency typically reports to a Regional Vice-President. There are seventeen regions, with a corresponding number of Regional Vice-Presidents, within MetLife in North America. Each Regional Vice-President is responsible for a number of agencies within his particular region. Regional Vice-Presidents report directly to one of three Zone Vice-Presidents, each of whom is responsible for a number of regions within a particular zone. There are three MetLife zones in North America: Atlantic, Northern, and Western. The Zone Vice-Presidents report to the Executive

Vice-President of MetLife.
5. Each level in MetLife's IFSD reflects an under-representation of women caused by MetLife's discriminatory subjective hiring, promotion, and compensation practices. With respect to hiring, MetLife discriminates against women in connection with hiring into entry-level sales positions. An internal MetLife study in 2000 revealed that qualified male applicants are almost twice as likely to be hired as qualified female applicants for the Account Rep position.
6. With respect to promotions, MetLife consistently discriminates against women in connection with promotions to Functional Manager, Managing Director, and Regional Vice-President positions. MetLife has constructed and maintains a gender-based glass ceiling by reserving for male employees the support necessary to achieve management-level positions and to advance within the IFSD, failing to post promotional opportunities, and making promotion decisions through a “tap-on-the-shoulder” system that unlawfully favors men. While approximately 25% of the 6,000 MetLife Account Reps are female, only 7% of the 183 MetLife Managing Directors are female. All of the seventeen Regional Vice-Presidents and three Zone Vice-Presidents are male.
7. MetLife also discriminates against its female employees in compensation, working conditions, privileges, and other terms and conditions of employment. MetLife frequently pays women less than men in comparable positions. MetLife also frequently refers less business and provides less technical, financial and/or administrative support to women than it does to men.
8. This action seeks equitable and injunctive relief, including an end to these discriminatory practices, rightful place relief for all class members, and an award of back pay and front pay; compensatory and punitive damages; and reasonable costs and attorneys' fees.
JURISDICTION AND VENUE
9. The jurisdiction of this Court is invoked by Plaintiffs pursuant to 28 U.S.C. § 1331, which confers original jurisdiction upon this Court for actions arising under the laws of the United States, and pursuant to 28 U.S.C. §§ 1343(3) and 1343(4), which confer original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief (i) under any Act of Congress providing for the protection of civil rights; (ii) under the Declaratory Judgment Statute, 28 U.S.C. § 2201; and (iii) under 42 U.S.C. §§ 2000e, et seq., as amended, 42 U.S.C. § 1981a. The Court's supplemental jurisdiction is invoked pursuant to 28 U.S.C. 1367(a), which confers supplemental jurisdiction over all non-federal claims arising from a common nucleus of operative facts such that they form part of the same case or controversy under Article III of the United States Constitution.
10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), inasmuch as MetLife has offices, conducts business and can be found in the Southern District of New York, and much of the causes of action arose, and many of the acts and omissions complained of occurred, within the Southern District of New York.
PARTIES
Plaintiffs
11. Plaintiff Stella Mitchell (“Mitchell”) is a resident of Springfield Gardens, New York. She has been employed by MetLife since July 1987 in the positions of Account Rep, Associate General Manager (also known as Sales Manager),

and Managing Director. Despite her outstanding qualifications and demonstrated managerial abilities, Mitchell has been denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Mitchell filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 15, 2000, an amended charge alleging discrimination and retaliation on October 25, 2000, and a second supplemental affidavit on December 7, 2000. Mitchell has requested a Notice of Right to Sue from the EEOC.
12. Plaintiff Hwa-Mei C. Gee (“Gee”) is a resident of Great Neck, New York. She has been employed by MetLife since May 1986 in the positions of Account Rep, Associate General Manager, Market/Development Manager, and Managing Director. Despite her outstanding qualifications and demonstrated managerial skills, Gee has been denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Gee filed a charge of discrimination with the EEOC on January 17, 2001. Gee has requested a Notice of Right to Sue from the EEOC.
13. Plaintiff Barbara LaChance (“LeChance”) is a resident of Seminole, Florida. LaChance has been deterred from employment as an Account Rep and has been denied promotional opportunities in MetLife's IFSD, while such positions and promotions are routinely offered to men with no greater, or fewer, qualifications. LaChance filed a charge of discrimination with the EEOC on or about October 19, 2000. LaChance amended her charge on or about March 2, 2001. LaChance has requested a Notice of Right to Sue from the EEOC.
14. Plaintiff Durpatty Persaud (“Persaud”) is a resident of Mount Vernon, New York. She was employed by MetLife from April 1993 until February 6, 2001, as an Account Rep. Despite her outstanding qualifications and recognized achievement, Persaud was denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Persaud filed a charge of discrimination, charging discrimination and retaliation, with the EEOC on January 8, 2001, as updated on or around March 9, 2001. Persaud has requested a Notice of Right to Sue from the EEOC.
15. Plaintiff Janet Ramsey (“Ramsey”) is a resident of Durham, North Carolina. She has been employed by MetLife since June of 1983, in the positions of Account Rep, Branch Manager (also known as Sales Manager), and Managing Director. Despite her outstanding qualifications and demonstrated managerial abilities, Ramsey has been denied job assignments, promotions, compensation, and professional support offered to similarly-situated men. Ramsey filed a charge of discrimination with the EEOC on June 20, 2000. She filed a charge of retaliation on or about March 13, 2001. In response to her charge of discrimination, the EEOC issued Ramsey a Notice of Right to Sue from the EEOC on February 26, 2001. She received such notice on February 27, 2001. This action was filed within ninety days from her receipt of the Notice.
Defendants
16. Defendant Metropolitan Life Insurance Company, Inc., is incorporated under the laws of New York. Its principal place of business is at One Madison Avenue, New York, New York. MetLife has multiple agency and office locations throughout the United States, including in this District.
17. Defendant Met Life has actively engaged in unlawful gender discrimination and knowingly encouraged and tolerated such discrimination by its officials, failing to make a good-faith attempt to comply with the law with respect to the practices alleged herein.
CLASS ALLEGATIONS

18. Plaintiffs bring this class action pursuant to Fed.Civ.P. 23(a), (b)(2), and (b)(3) on behalf of a Class of all female past, present, and future employees who have been employed within the Insurance and Financial Services Division of MetLife or its successor group, if any, since August 27, 1999, or who will be so employed between the date of the filing of this complaint and the date of judgment in this action, and all female applicants for those positions with MetLife who have been, continue to be, or in the future may be, denied employment opportunities or were deterred from applying for those positions during this same time period (the “Class”).
19. Plaintiffs Mitchell, Gee, and Persaud bring this class action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female past, present, and future employees who have been employed within the Insurance and Financial Services Division of MetLife or its successor group, if any, in New York State since March 13, 1998, or who will be so employed between the date of the filing of this complaint and the date of judgment in this action, and all female applicants for those positions with MetLife who have been, continue to be, or in the future may be, denied employment opportunities or were deterred from applying for those positions during this same time period (the “New York State Subclass”).
20. Plaintiffs Mitchell, Gee, and Persaud bring this class action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female past, present, and future employees who have been employed within the Insurance and Financial Services Division of MetLife or its successor group, if any, in New York City since March 13, 1998, or who will be so employed between the date of the filing of this complaint and the date of judgment in this action, and all female applicants for those positions with MetLife who have been, continue to be, or in the future may be, denied employment opportunities or were deterred from applying for those positions during this same time period (the “New York City Subclass”).
21. Plaintiffs are members of the Class and Subclasses they seek to represent.
22. The members of the Class and Subclasses are so numerous that joinder of all members is impracticable. The number of Class and Subclass members is indeterminate at the present time but is larger than can be addressed by joinder.
23. The claims of the named Plaintiffs are typical of the claims of the Class and Subclasses they represent.
24. The named Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class and Subclasses they represent. Plaintiffs have retained counsel competent and experienced in complex class actions and employment discrimination litigation.
25. Class certification is appropriate pursuant to Fed. R.Civ.P. 23(b)(2) because MetLife has acted and/or refused to act on grounds generally applicable to the Class and Subclasses, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class and Subclasses as a whole.
26. Class certification is also appropriate under Fed. R.Civ.P. 23(b)(3) because questions of law and fact common to the Class and Subclasses predominate over any questions affecting only individual members, including:
a. whether MetLife violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), the New York State Human Rights Law, New York Executive Laws §§ 290, et seq. (“NYSHRL”), and Title 8 of the Administrative Code of the City of New York (“Title 8”) by its acts and omissions as alleged herein, including:

(1) denying employment opportunities to female applicants for positions within the IFSD based on gender;
(2) maintaining a “glass ceiling” by denying promotional opportunities to female employees within the IFSD, and by demoting them, during agency mergers and closures while positions of similarly-situated male employees are retained;
(3) paying female employees within the IFSD less compensation than similarly-situated men; and
(4) denying female employees within the IFSD job opportunities, professional support and other terms, conditions and privileges of employment based on their gender.
b. whether MetLife engages in a pattern of gender-based discriminatory policies and practices against its female employees and applicants within MetLife's IFSD;
c. whether MetLife engages in acts that constitute systemic disparate treatment with respect to the named Plaintiffs and the members of the Class and Subclasses as alleged herein;
d. whether MetLife's employment policies and practices have a disparate impact upon female employees and applicants within MetLife's IFSD;
e. whether MetLife's personnel policies and practices are unlawfully discriminatory and should be reformed or eliminated, and, if so, is the proper way to accomplish that goal;
f. whether the members of the Class and Subclasses are entitled to further affirmative relief;
g. whether the members of the Class and Subclasses are entitled to back pay and benefits and, if so, a determination of the proper measure of the relief;
h. whether the members of the Class and Subclasses are entitled to compensatory damages and, if so, a determination of the proper measure of the relief; and
i. whether the members of the Class and Subclasses are entitled to punitive damages and, if so, a determination of the proper measure of the relief;
j. whether the violations of law against the Class and Subclasses was a continuing or serial violation;
k. whether the members of the Class and Subclasses are entitled to prejudgment interest on their relief; and
l. whether the members of the Class and Subclasses are entitled to front pay until such time as they can be placed in the same positions they would now have occupied if there had never been any gender discrimination against them.

CLAIMS OF NAMED PLAINTIFFS
Stella Mitchell
27. Plaintiff Stella Mitchell, a female, is currently employed by Metropolitan Life Insurance Company as an Account Rep at the MetLife Garden City Financial Group Agency in Garden City, New York.
28. MetLife first hired Mitchell in 1987 as an Account Rep in the Broadway Agency, located in New York, New York. In 1994 she became Managing Director of the Regency Agency, located in New York, New York. In 1996, she was demoted to Associate General Manager of the Riverside Agency, in New York, New York. In 1998, Mitchell once again assumed the position of Managing Director at the Madison Square Agency, in New York, New York. In October 2000, Mitchell was demoted to Account Rep, the position she currently holds.
29. MetLife has continually denied Mitchell job assignments offered to similarly-situated male employees. Despite her outstanding qualifications and demonstrated managerial abilities, Mitchell was demoted from her position as Managing Director each time her agency was merged with another, while male Managing Directors with no greater qualifications were allowed to retain their positions.
30. Between 1994 and 1996, Mitchell served as Managing Director of MetLife's Regency Agency. As Managing Director of this new agency, Mitchell successfully built up a staff and eventually supervised and managed nine Account Reps and two support staff. MetLife failed to provide Mitchell with the financial support normally given to Managing Directors of new agencies, such as agency development funds, books of business, transferred Account Reps, and clerical staff. Despite this lack of support, two Account Reps working under Mitchell qualified for the Leaders Conference Qualifications (awarded to the top ten percent of all national producers), and Mitchell received the Regional Leader of Exceptional Achievement, Mid-eastern Territory, Superbowl Recruiting Campaign in January of 1995, for outstanding recruiting efforts.
31. In early 1996, MetLife merged the Regency Agency with another of its agencies, known as the Riverside Agency. Although these two agencies were equal in size, Mitchell was stripped of her Managing Director position. Instead, the Manager Director position was given to a man with much less experience as a Managing Director, and Mitchell was then demoted to Associate General Manager of the newly-merged agency.
32. In approximately May 1998, Mitchell was transferred to another agency within MetLife, the Madison Square Agency, where she held the position of Managing Director. Mitchell was again successful in this position, including recruiting five new Account Reps and receiving an award for Outstanding Recruiting (the Behemoth Award for the National Monster Recruiting Campaign). During her tenure as Managing Director of the Madison Square Agency, Mitchell became increasingly aware of MetLife's lack of support for female managers. While male managers received large compensation packages, books of business, and Account Reps to staff their agencies, female managers were routinely demoted and denied opportunities to continue building successful agencies.
33. On February 2, 2000, the Zone Vice-President, a man, informed Mitchell that MetLife was abolishing the Madison Square Agency and that she would again be demoted. By September, 2000, Mitchell had been stripped of her staff and Account Reps. On approximately October 13, 2000, MetLife formally abolished the Madison Square Agency and demoted Mitchell to the position of Account Rep, her original position at MetLife when she began in 1987. Simultaneous with the decision to terminate her position as Managing Director, and despite her request for reinstatement to a comparable management position, MetLife hired two men to start a new agency in the same office space from which Mitchell's agency was abolished. MetLife hired both men for Managing Director positions although neither of them had

any experience in the position at MetLife. Accordingly, Mitchell has been denied job assignments and promotional opportunities afforded similarly-situated men.
34. Mitchell filed an EEOC charge of discrimination on or about September 15, 2000, and informed MetLife of this action on or about September 18, 2000. On the same day that Mitchell imparted this information, MetLife discharged her staff, sent her Agency Reps to another agency, and otherwise took retaliatory steps that day and shortly after that left her without the technical or personnel means to do her work. Mitchell had no means to do her work between this time and October 13, 2000, the date of the formal abolition of her agency.
35. Defendant MetLife has discriminated against Mitchell on account of her gender as follows:
a. By continually denying her job assignments offered to similarly-situated men, including denying her comparable Managing Director positions and demoting her from Managing Director to the less senior positions of Associate General Manager and Account Rep when her agency was merged with another;
b. By failing and refusing to provide her with promotional opportunities on the same basis as men;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
e. By retaliating against her in response to her complaints of gender inequities; and
f. By promoting similarly-situated men more rapidly than her.
36. On or about September 15, 2000, Ms. Mitchell filed a charge of discrimination with the EEOC, and, on or about October 25, 2000, 2000, she filed an EEOC charge of retaliation. Mitchell filed a Second Supplemental Affidavit on or about December 7, 2000 in support of her EEOC charges. Attached to this Complaint as Exhibit A, and incorporated by reference, are copies of those charges.
Hwa-Mei C. Gee
37. Plaintiff Hwa-Mei C. Gee, a female, is currently employed by MetLife in the position of Account Rep and “Functional Manager” at the MetLife Garden City Financial Group in Garden City, New York.
38. MetLife hired Gee in May of 1986 to work as an Account Rep in its Mitchell Garden Office in Lake Success, New York. In 1995, she was promoted to the position of Sales Manager. In 1998, she began working as the Market/Development Manager at MetLife's Hudson Agency Group in Brooklyn, New York. (A position that, upon information and belief, was roughly comparable to that of Agency Director in status and compensation.) In June of 1999 she became the Managing Director at the Flushing Financial Center Agency in Flushing, New York. In December 2000, she was demoted to Account Rep, the position she held when she began with the company fifteen years earlier.

39. Gee has been denied professional and financial support extended to similarly-situated men. For example, in June of 1999 she was recruited to become Managing Director of the Flushing Financial Center Agency, a new storefront agency. The Zone Manager, a male, promised that she would be financially supported in her business plan and compensated for two years. Although she was initially offered financial support to open the agency, this support was withdrawn without explanation approximately six months later, in early 2000. Her clerical support and technical capacity were also cut. In addition, Gee was never compensated for the recruits she hired. By contrast, male managing directors received compensation for growing their agencies (as much as $7,000 per new recruit), and received continued financial support.
40. On approximately December 29, 2000, MetLife closed Gee's agency and demoted her to Account Rep. Although MetLife failed to provide her with the same or a comparable position at another agency, the company did so for similarly-situated men.
41. Gee has also been denied promotional opportunities afforded similarlysituated men. For example, in 1991, although Gee was the only “manager-in-training” in her office, a younger, less-experienced man was hired for the position of Sales Manager over her.
42. Defendant MetLife has discriminated against Gee on account of her gender as follows:
a. By continually denying her job assignments offered similarly-situated men, including denying her comparable Managing Director positions and demoting her from Managing Director to the lower positions of Account Rep and Functional Manager during agency closures or mergers;
b. By failing and refusing to provide her with promotional opportunities on the same basis as males;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men; and
e. By promoting similarly-situated men more rapidly than her.
43. On or about January 17, 2000, Gee filed a charge of discrimination with the EEOC. Attached to the Complaint as Exhibit B and incorporated by reference, is a copy of that charge.
Barbara LaChance
44. Plaintiff Barbara LaChance, a female, has been employed by MetLife for more than thirty years. She currently holds the position of Senior Compensation Associate in the MetLife Administrative Office in Tampa, Florida.
45. LaChance began her employment with MetLife in or about 1969 as a support staff clerk within the IFSD. In or about

late 1975, she became an Account Rep; however, in early 1977 she was steered back into the less prestigious, administrative position of senior clerk. In 1979 she was promoted to Regional Analyst and in 1981 to Territorial Senior Staff Analyst. In 1994 she sought the position of Territorial Administrator with the Southern Territorial Office in Tampa, Florida, but was instead offered the less senior position of Regional Administrator. LaChance held that position until May 1999, when it was abolished. At about that time, LaChance went on disability leave. She returned to MetLife in September of 1999 as a Senior Compensation Associate, her current position.
46. LaChance has been, and continues to be, deterred from advancing to higher status and better compensated positions as compared to similarly-situated men. In or about 1976, LaChance worked as an Account Rep. However, after eighteen months as an Account Rep, LaChance was steered into the position of senior clerk by her supervisor, a man, in order to service a new Account Rep, also a man.
47. On or about February 4, 1994, LaChance sought the position of Territorial Administrator in her Southern Territorial Office in Tampa, Florida. LaChance was qualified for and already performing duties required of the Territorial Administrator. Despite her capacity to do the job, MetLife told her “she wasn't the man for the job”, and transferred a man with less relevant experience from another, regional office to fill the post. MetLife then offered her the less senior and less compensated position of Regional Administrator in the Regional Office in Charlotte, North Carolina.
48. Throughout 2000, LaChance had approximately 15 conversations with an employee in MetLife management who told her that MetLife fails to hire women as Account Reps at the same rate as similarly-situated men; has a practice of not promoting women to management positions; and has committed other gender-based acts of discrimination. LaChance spoke in particular to the National Director of Women's Recruiting, a new position that was eliminated in 2000. The National Director of Women's Recruiting, a woman, informed LaChance that she had discovered that MetLife hires one out or every thirteen male applicants who pass the basic aptitude test to become Account Reps, but only one out of every twenty-three females who pass this test. Being aware of MetLife's systematic failure to hire qualified women for Account Rep positions, LaChance was deterred from applying for an Account Rep position, despite her interest in and qualifications for such a position.
49. Defendant MetLife has discriminated against LaChance on account of her gender as follows:
a. By steering her into administrative rather than sales positions because of her gender;
b. By deterring her from applying for or taking a sales position because of her gender; and
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotions to more highlycompensated positions for which she was qualified.
50. On or about October 19, 2000, LaChance filed a charge of discrimination with the EEOC. LaChance amended her charge on or about March 5, 2001. That charge is attached to this Complaint as Exhibit C, and incorporated herein by reference.
Durpatty Persaud
51. Plaintiff Durpatty Persaud, a female, has been employed by MetLife as an Account Rep since she began her employment with MetLife in the United Agency, in Queens, New York, in April 1993. In late 1995, Persaud was

transferred to MetLife's Long Island Agency, in Lake Success, New York.
52. In April of 2000, Persaud requested a transfer to MetLife's Lake Success Agency, also in Lake Success, New York, because of the gender discrimination she was experiencing as described herein. In response to her complaints, MetLife retaliated against her by terminating her employment, effective on February 8, 2001.
53. During the time she worked at MetLife, Persaud was denied promotional opportunities offered to similarly-situated men. In 1999, Persaud acquired the designation of certified financial planner, a distinguished qualification that no one else in the Long Island Agency held. Persaud was a top producer in her agency, earning a spot at the Leader's Conference and the Million Dollar Round Table, for outstanding sales production. Yet, in approximately 1999, MetLife promoted four males to Functional Manager positions in the Long Island Agency, where Persaud worked. All four of these men had lower sales production and substantially less experience than Persaud. Two of the men were promoted after being with MetLife for less than one year, and the other two had been with the company for only three to five years. In contrast to Persaud, none of these men had achieved the Leader's Conference or the Million Dollar Round Table production levels in 1999. Although Persaud was asked to perform the duties of a Functional Manager-level employee, she was never given the title despite requesting it. Persaud protested to her supervisor, a man, who ignored her complaints.
54. Persaud was also denied business support that was available to male Account Reps. For example, although male Account Reps who earned production awards, such as the Leader's Conference and Million Dollar Round Table, were given private offices, Persaud was denied an office, which impeded her ability to service clients effectively.
55. Because of these discriminatory actions, Persaud requested a transfer-and was transferred to the Lake Success Agency in Lake Success, New York on or around May 1, 2000, where she remained an Account Rep until leaving the Company. On May 12, 2000, Persaud met with the Zone Vice-President, a man, regarding the discriminatory actions that were taken against her. Persaud stated at this meeting that she had transferred because she was being discriminated against because she was a woman. However, MetLife did not respond to her complaints. Instead, MetLife retaliated against her by denying her access to her client information, thereby impeding her ability to service her clients and to earn compensation.
56. MetLife then retaliated against her a second time by terminating her employment. On October 10, 2000, Persaud went on disability leave for a degenerative disc condition in her back. On January 4, 2001, when she called in for her mail, Persaud was told that she was being terminated and that such termination would be effective the day she returned from disability leave. Persaud became eligible to work on February 6, 2001, the last date for which she was paid. Persaud's effective date of termination was terminated on or about February 8, 2001.
57. Defendant MetLife has discriminated against Persaud on account of her gender as follows:
a. By failing and refusing to provide her with promotional opportunities on the same basis as men;
b. By failing to provide her with the benefits and professional support necessary to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
c. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities;
d. By promoting similarly-situated men more rapidly than her;

e. By discouraging her from pursuing promotional opportunities; and
f. By terminating her employment in retaliation for her complaints of gender inequities.
58. On or about January 8; 2001, Persaud filed a charge of discrimination with the EEOC. Persaud amended that charge on or about March 9, 2001. That charge is attached to this Complaint as Exhibit D, and incorporated herein by reference.
Janet Ramsey
59. Plaintiff Janet Ramsey, a female, has been employed by MetLife for more than seventeen years. She is currently a Financial Planner in the Fulcrum Financial Group, in Durham, North Carolina.
60. Ramsey began her employment with MetLife in 1983 as an Account Rep at the Durham Agency in Durham, North Carolina. In 1986, Ramsey was promoted to Branch Manager, and in 1995, she was made Managing Director of the Triangle Agency, which serviced the Northeast Region of North Carolina. Ramsey was demoted to Agency Director in January 2000. After complaining about discriminatory conduct and making numerous requests for reinstatement to a Managing Director position, she was demoted again in January, 2001, to Financial Planner, a position comparable to an Account Rep in compensation and status.
61. Ramsey has been denied promotional opportunities offered to similarly-situated men. In 1996, Ramsey sought the position of Regional Manager, a position which was open in Pennsylvania. However, she did not receive the job because, according to her Regional Manager, a male, the open region was a “rough position” and MetLife management did not think she could handle it “as a woman.” The position ultimately went to a man who had not achieved the same level of success within the company as Ramsey. As both an Account Rep and Managing Director, Ramsey achieved many production awards, including Leader's Conference and Management Leader's Conference for outstanding sales and sales management. Ramsey has excelled at MetLife and never received any negative performance reviews.
62. Despite Ramsey's achievements, on January 10, 2000, after 14 years as Managing Director or Branch Manager of her agency, she was demoted to Agency Director, a second-level management position, when her agency was merged with another. By contrast, the man who was hired as Managing Director of this new agency, effectively replacing Ramsey, had no experience with, and had not achieved any recognition at, MetLife. In addition, men with either comparable or inferior qualifications and less seniority than Ramsey retained their Managing Director positions.
63. In January 2001, Ramsey was demoted again, to Financial Planner, in retaliation for her complaints regarding gender inequity and discrimination.
64. Defendant MetLife has discriminated against Ramsey on account of her gender as follows:
a. By continually denying her job assignments offered similarly-situated men, including denying her comparable Managing Director positions and demoting her from Managing Director when her agency was merged with another;
b. By failing and refusing to provide her with promotional opportunities on the same basis as men;

c. By failing to provide her with the benefits and professional support to qualify her for increased wages and compensation on the same basis as such benefits are provided to men;
d. By relying on discriminatory selection criteria and subjective decision making by a nearly all-male managerial force to deny her promotional opportunities; and
e. By promoting similarly-situated men more rapidly than her.
65. On or about June 20, 2000, Ramsey filed a charge of discrimination with the EEOC. Ramsey amended that charge on January 24, 2001. Ramsey subsequently filed a charge of retaliation on or about March 13, 2001. Attached to this Complaint as Exhibit E, and incorporated by reference, are copies of those charges. Ramsey received her Notice of Right to Sue from the EEOC on February 27, 2001. This Complaint has been filed within 90 days of February 27, 2001.
GENERAL PATTERNS OF DISCRIMINATION
66. The denials and abridgments of employment opportunities suffered by Plaintiffs are not isolated examples of MetLife's employment practices. Rather, they are illustrative of the pervasive pattern of sex discrimination in the terms and conditions of employment that has continually existed at MetLife.
67. The under-representation of women in MetLife's Insurance and Financial Services Division is not random or coincidental but results from a practice of discrimination in hiring and promotional opportunities, job assignments and demotions, job assistance and support, compensation, and other terms, conditions and privileges of employment. MetLife has engaged in a serious pattern of under-utilizing women in entry-level positions. In fact, MetLife's own internal study, conducted in 2000, found that the company hired one out of every thirteen qualified men, but only one out of twenty-three qualified women. After disproportionately excluding qualified women from entry-level positions, the company has then failed to promote women to managerial positions. Moreover, the few women who do receive management positions are held to different standards than men, are denied the same level of support from management to succeed in their positions as men, and are disproportionally demoted without cause when the company closes or merges their agencies. In addition, when women bring their concerns about gender discrimination and inequities to the company's attention, they are subject to retaliation.
68. MetLife has pursued discriminatory policies and practices on a continuing basis that have had the effect of denying equal job opportunities to qualified women. Such discriminatory policies and practices include, without limitation:
a. Reliance upon subjective, discriminatory criteria utilized by a nearly all-male managerial workforce in making job selections and promotional decisions;
b. Use of pretextual and shifting “qualifications” and requirements for job selections and opportunities which are different for males than for females, and which favor males over females;
c. Refusing to hire qualified female applicants;

d. Maintenance of sex-segregation in management positions;
e. Obstructing and discouraging females from applying for and assuming management positions;
f. Failing and refusing to consider females for desirable job assignments or promotions on the same basis as males are considered;
g. Failing and refusing to provide females the necessary work support and assistance to enable them to succeed on the same basis as males are provided them;
h. Failing and refusing to promote females on the same basis as males are promoted;
i. Failing and refusing to find comparable positions for females affected by office mergers while such positions are routinely located for male employees;
j. Maintaining and fostering a reputation for discriminatory conduct which deters females from pursuing employment, jobs and/or promotional opportunities with MetLife;
k. Establishing and maintaining discriminatory and subjective requirements for hiring, job assignment, and promotion which have the effect of excluding qualified women and which have not been shown to have any significant relationship to job performance or to be necessary to the proper and efficient conduct of MetLife's business;
l. Compensating women less than similarly-situated males;
m. Failing and refusing to take reasonable and adequate steps to eliminate the effects of MetLife's past discriminatory practices; and
n. Retaliating against female employees who complain about gender discrimination and inequities in the treatment of women at MetLife.
69. As a result of MetLife's continued policies and practices of intentional discrimination and pursuit of policies and practices with an adverse impact upon women, women are hired in disproportionately-lower numbers at MetLife, and of those who are hired, only a fraction have been allowed to advance to better positions, usually for only a temporary period.
FIRST CLAIM FOR RELIEF
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq., as amended, 42 U.S.C. § 1981a) (Brought on behalf of all Plaintiffs and the Class)
70. Plaintiffs incorporate the foregoing paragraphs.

71. This claim is brought on behalf of all Plaintiffs and the Class they represent.
72. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq., and 42 U.S.C. § 1981a.
73. Plaintiff Janet Ramsey has received a Notice of Right to Sue from the EEOC. Ramsey, on behalf of herself and all others similarly situated, has therefore exhausted her administrative remedies and fulfilled all conditions precedent to suit.
74. Plaintiffs request relief as set forth hereinafter.
SECOND CLAIM FOR RELIEF
(New York Executive Law § 296) (Brought on behalf of Plaintiffs Stella Mitchell, Hwa-Mei Gee, and Durpatty Persaud, and all current and former female employees who have worked at MetLife facilities in New York state only)
75. Plaintiffs incorporate the foregoing paragraphs.
76. This claim is brought on behalf of Plaintiffs Mitchell, Gee, and Persaud and the New York State Subclass they represent.
77. The foregoing conduct violates the New York Executive Law § 296.
78. Plaintiffs have not filed a complaint with the State Division on Human Rights and elect to pursue their right to sue in court.
79. Plaintiffs request relief as set forth hereinafter.
THIRD CLAIM FOR RELIEF
(Title 8 of the Administrative Code of the City of New York) (Brought on behalf of Plaintiffs Stella Mitchell, Hwa-Mei Gee, and Durpatty Persaud and all current and former female employees who have worked at MetLife
facilities in the City of New York only)
80. Plaintiffs incorporate the foregoing paragraphs.
81. This claim is brought on behalf of Plaintiffs Mitchell, Gee, and Persaud, and the New York City Subclass they represent.

82. The foregoing conduct violates Title 8 of the Administrative Code of the City of New York.
83. Plaintiffs will satisfy notice requirements by serving this complaint on the Corporation Counsel of the City of New York and the New York City Commission on Human Rights.
84. Plaintiffs request relief as set forth hereinafter.
RELIEF ALLEGATIONS
85. Plaintiffs and the Class and Subclasses they represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the Class and Subclasses they represent are now suffering and will continue to suffer irreparable injury from MetLife's discriminatory acts and omissions.
86. The actions on the part of MetLife have caused and continue to cause Plaintiffs and all Class and Subclass members substantial losses in earnings, promotional opportunities, and other employment benefits, and have caused Plaintiffs and all Class and Subclass members to suffer and continue to suffer humiliation, embarrassment, and anguish, all to their damage in an amount according to proof.
87. MetLife committed the acts herein alleged with malice and reckless indifference and disregard to the Plaintiffs' and Class and Subclass members' federal, state and municipal rights. Plaintiffs and Class and Subclass members are thus entitled to recover punitive damages in an amount according to proof.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs and the Class and Subclasses pray for relief as follows:
1. Certification of the case as a class action on behalf of the proposed Class and Subclasses and designation of Plaintiffs as representatives of the Class and appropriate Subclasses, and their counsel of record as Class Counsel;
2. Preliminary and permanent injunctions against MetLife and its partners, officers, owners, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies, customs, and usages set forth herein;
3. A judgment declaring that the practices complained of herein are unlawful and violative of 42 U.S.C. §§ 2000(e), et seq., Title VII of the Civil Rights Act of 1964; 29 U.S.C. §§ 621, et seq.; New York Executive Law § 296; and Title 8 of the Administrative Code of the City of New York;
4. An order restoring Class and Subclass members to their rightful positions at MetLife, or in lieu of reinstatements, or in the event that Class and Subclass members cannot immediately be placed in their rightful positions, an order for front pay and benefits;

5. An assignment of Plaintiffs and the Class and Subclasses to those jobs they would now be occupying but for MetLife's discriminatory practices;
6. An adjustment of the wage rates, benefits, and seniority rights for Plaintiffs and the Class and Subclasses to that level which Plaintiffs and the Class and Subclasses would be enjoying but for MetLife's discriminatory practices;
7. All damages which individual Plaintiffs and the Class and Subclasses have sustained as a result of MetLife's conduct, including back pay, front pay, general and special damages for lost compensation and job benefits they would have received but for the discriminatory practices of MetLife, and for emotional distress, humiliation, embarrassment, and anguish, according to proof;
8. Front pay to Plaintiffs and Class and Subclass members until such time as they can be placed in the same positions they would now have occupied if there had never been any gender discrimination against them;
9. Exemplary and punitive damages in an amount commensurate with MetLife's ability to pay and so as to deter future conduct;
10. Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law; and
11. Pre-judgment and post-judgment interest, as provided by law.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial for all individual, Class and Subclass claims so triable.
Stella MITCHELL, Hwa-Mei C. Gee, Barbara LaChance, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC. d/b/a Metlife, Defendant.

 
 United States District Court, S.D. New York. Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others
similarly situated, and Barbara LaChance, individually, Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant. No. 01-Civ-2112 (WHP). October 24, 2003.
Memorandum of Law in Support of Plaintiffs' Motion for Final Approval of the Settlement Class and Consent Decree
TABLE OF CONTENTS
I. PRELIMINARY STATEMENT ... 1
II. FACTUAL BACKGROUND ... 1
III. THE NOTICE PROCEDURES REQUIRED BY THE PRELIMINARY APPROVAL ORDER HAVE BEEN CARRIED OUT, AND THE RESULTS OF THAT PROCEDURE INDICATE THAT THE CLASS MEMBERS SUPPORT THE SETTLEMENT TERMS. ... 3
IV. THE CONSENT DECREE SATISFIES THE CRITERIA FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENTS UNDER F.R.C.P. 23(E) ... 6
A. Procedural Fairness. ... 7
B. Substantive Fairness. ... 8
1. The complexity, expense, and likely duration of the litigation. ... 8
2. The reaction of the class to the settlement ... 10
3. The stage of the proceedings and the amount of discovery completed. ... 10
4. The risks of establishing liability and damages, as well as maintaining the class action through trial ... 10
5. The adequacy of injunctive relief and its benefits to currently employed class members. ... 11
6. The reasonableness of the settlement fund for monetary relief in light of the best possible recovery and the attendant risks of litigation. ... 12

7. Advantages of the settlement ... 14 V. CONCLUSION ... 15
TABLE OF AUTHORITIES FEDERAL CASES Alexander v. Gardner-Denver Co. 415 U.S. 36 (1974) ... 14 Amchem Products v. Windsor 521 U.S. 591 (1997) ... 6 City of Detroit v. Grinnell Corp. 495 F.2d 448 (2d Cir. 1974) ... 6, 7 County of Suffolk v. Long Island Lighting Co. 907 F.2d 1295 (2d Cir. 1990) ... 7 D'Amato v. Deutsche Bank 236 F.3d 78 (2d Cir. 2001) ... 5, 10 Grant v. Bethlehem Steel Corp. 823 F.2d 20 (2d Cir. 1987) ... 7 In re Holocaust Victim Assets Litigation 105 F. Supp. 2d 139 (E.D.N.Y. 2000) ... 6 In re Ivan F. Boesky Securities Litigation 948 F.2d 1358 (2d Cir. 1991) ... 6 Joel A. v. Giuliani 218 F.3d 132 (2d Cir. 2000) ... 6 Marisol v. Giuliani 185 F.R.D. 152 (S.D.N.Y. 1999) ... 5, 10 Martens v. Smith Barney, Inc. 181 F.R.D. 243 (S.D.N.Y. 1998) ... 5 Maywalt v. Parker & Parsley Petroleum Co. 67 F.3d 1072 (2d Cir. 1995) ... 5 In re Michael Milken & Associates Sec. Litig. 150 F.R.D. 46 (S.D.N.Y. 1993) ... 6 Newman v. Stein 464 F.2d 689 (2d Cir. 1972) ... 6

Robertson v. National Basketball Ass'n. 556 F.2d 682 (2d Cir. 1977) ... 7
Saylor v. Lindsley 456 F.2d 896 (2d Cir. 1972) ... 5
Sheppard v. Consolidated Edison Co. of New York, Inc. 2002 WL. 2003206 (E.D.N.Y. Aug. 1, 2002) ... 6
Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini 258 F. Supp. 2d 254 (S.D.N.Y. 2003) ... 6
In re Warner Communications Securities Litigation 618 F. Supp. 735 (S.D.N.Y. 1985) ... 5, 10
Watson v. Fort Worth Bank & Trust 487 U.S. 977 (1988) ... 9
Wrenn v. Secretary, Department of Veterans Affairs 918 F.2d 1073 (2d Cir. 1990) ... 14
FEDERAL STATUTES
Federal Rules of Civil Procedure Rule 23 ... 6
Federal Rules of Civil Procedure 23(e) ... 6, 15
Federal Rules of Civil Procedure 23(f) ... 9
I. PRELIMINARY STATEMENT
Plaintiffs submit this Memorandum in Support of their motion for Final Approval of the $13.4 million class action settlement between them and Metropolitan Life Insurance Co., Inc. (“MetLife”), which was preliminarily approved by the Court on August 18, 2003. The Consent Decree is fair, adequate, and just, and the Court should grant final approval based on its terms and the parties' carrying out of the Order of Preliminary Approval entered on August 18, 2003. The results of the Notice and Claims forms sent to class members, and the class members' response to that Notice, provide further evidence that the settlement merits final approval.
The applicable standards and evidence which support approval of the Consent Decree were thoroughly set out in Plaintiffs' Memorandum in Support of its Motion for Certification of the Settlement Class, Preliminary Approval of Consent Decree and Award of Attorneys' Fees and Costs and Approval of Class Notice (“Plaintiffs' Preliminary Approval Motion”), filed July 30, 2003 (attached hereto for the Court's convenience as Exhibit 12 in the Appendix of Documents In Support of Final Approval of Settlement and Fees Award (“Appendix”) submitted herewith). There is no need to repeat what is set forth in the Plaintiffs' Preliminary Approval Motion, which is largely applicable to final approval of the Consent Decree as well as preliminary approval. Plaintiffs hereby incorporate the reasons and authorities set forth in that Memorandum by this reference. In this Memorandum, Plaintiffs set forth additional reasons, based on the notice procedure and its results, for granting final approval of the Consent Decree.

II. FACTUAL BACKGROUND
For purposes of this motion, Plaintiffs briefly summarize the factual background of this case. A more detailed summary can be found in Plaintiffs' Preliminary Approval Motion at 2-4. This action began on March 13, 2001, when five female current and former MetLife Financial Services' (“MLFS”) employees filed a complaint on behalf of themselves individually and others similarly situated alleging that MetLife engaged in a nationwide policy, pattern, or practice of gender discrimination in promotions, compensation, and other terms, conditions and privileges of employment.
The parties engaged in extensive discovery during 2002 and early 2003, including the taking and defending of numerous depositions of both fact and expert witnesses, the exchange of voluminous documents, and completing detailed analyses of statistical data. See Plaintiffs' Preliminary Approval Motion at 2-3.
The parties began preliminary settlement discussions in November 2002, and continued their discussions while simultaneously litigating the case. The parties reached a tentative settlement in May 2003, and thereafter, the parties continued to meet to work out the final details of the Consent Decree. See id. at 3-4. The parties agreed that the extensive formal discovery conducted in this action was sufficient to assess the merits of the respective parties' positions and to compromise on the issues on a fair and reasonable basis. See id. at 4. As a result of these settlement negotiations, a proposed Consent Decree (attached as Exhibit 2 of the Appendix) was negotiated and signed by the parties.
The Consent Decree provides for extensive injunctive relief including: increasing Human Resources staff; requiring diversity and sales management training; increasing recruitment of women for sales and sales management positions; establishing benchmarks for increasing the number of women in sales management positions; developing objective job descriptions and selection criteria for sales management positions; developing objective criteria for the distribution of sales leads and other business development resources within MLFS; and providing for monitoring of Decree compliance during the three year term. See id. at 6-8; and infra at pp. 11-13. Under the Consent Decree, MetLife expressly allocates $5 million to implement these injunctive relief provisions. In addition, the Decree provides for an additional $5 million to be paid into a Qualified Settlement Fund to pay the claims of the named plaintiffs and to be distributed to class members pursuant to a claims procedure, and for an additional sum of up to $3.4 million in current and future attorneys' fees and expenses.
On July 30, 2003, Plaintiffs filed their unopposed motion for conditional class certification, preliminary approval of the Consent Decree, and award of attorneys' fees and costs. Plaintiffs submitted the proposed Consent Decree (which included the terms of the injunctive and monetary relief and proposed class notice) for review by the Court, together with a Memorandum of Law and declarations in support of Plaintiffs' motion. The Court granted that motion in all respects by an order entered on August 18, 2003 (hereinafter “Preliminary Approval Order,” attached as Exhibit 1 hereto of the Appendix).
III. THE NOTICE PROCEDURES REQUIRED BY THE PRELIMINARY APPROVAL ORDER HAVE BEEN CARRIED OUT, AND THE RESULTS OF THAT PROCEDURE INDICATE THAT THE CLASS MEMBERS
SUPPORT THE SETTLEMENT TERMS.
In granting conditional certification of the settlement class and preliminary approval of the Consent Decree and award of attorneys' fees and costs, the Court also adopted the Class Notice procedures outlined in the Consent Decree. Specifically, the Court found that the proposed Class Notice (attached as Exhibit F to the proposed Consent Decree) fairly and adequately advised the class members of the terms of the proposed settlement and of the claims process available to them to obtain monetary relief provided by the settlement. The Court also found that the Class Notice fairly and adequately advised the class members of their rights to object to the settlement and/or to opt out of the class, and to appear at the Fairness Hearing that the Court set to determine whether the Consent Decree will be given final approval.

The Preliminary Approval Order's requirements for class notice procedure have been fully and properly carried out pursuant to its terms. In compliance with the Preliminary Approval Order, the Claims Administrator, Rosenthal & Company, sent the Class Notice and Individualized Claims Forms and Instructions (attached as Exhibit E to the proposed Consent Decree) to 3,626 class members by first class mail at their last known address on August 25, 2003. See Declaration of Daniel Rosenthal, filed herewith (hereafter “Rosenthal Decl.”) (Exhibit 7 of the Appendix), ¶¶ 3, 4, 7. The list of class members and their most current known addresses was developed by the Claims Administrator using class member information provided by MetLife. See id. at ¶ 3. Subsequent to that mailing, MetLife produced another 114 class members' addresses, and notice and claims were sent to those class members on September 17, 2003. See id. at ¶ ¶ 8-9. From those two mailings, only 175 notice and claims forms were returned as undeliverable. See id. at ¶ 12. A subsequent address search of those 175 returned mailings resulted in finding 159 updated addresses, to which the Claims Administrator sent a second mailing. See id. Ultimately, there were only 29 class members with inaccurate addresses that could not be corrected. See id. at ¶ 13. In addition, in order to encourage notification and participation of class members, the Claims Administrator sent 2,325 reminder post-cards (attached as Exhibit C to the Rosenthal Declaration) by first-class mail to class members who had not responded to the Class Notice by September 16, 2003. See id. at ¶ 14.
The Claims Administrator also provided a free telephone response service to assist class members with questions about the Notice and Claims forms. The Claims Administrator created a toll-free number and staffed it with personnel trained in the details of the Consent Decree. See id. at ¶ 5. From August 25 to October 13, 2003, these operators received and responded to 499 telephone calls from class members. See id. at ¶ 10. Also, the Claims Administrator created a website (the address of which was published in the Notice and Claims forms), which provided forms and filings to download, including the Consent Decree and the Notice and Claims forms. See id. at ¶ 6.
As of the date of the Rosenthal Declaration, 1,900 completed claim forms have been submitted and processed by the Claims Administrator, reflecting participation by over 50% of the total class. See id. at ¶ 17. It is expected that claim forms will continue to come in until the filing deadline, November 24, 2003. See id. at ¶ 17. Up to the date of the Rosenthal Declaration, only 15 class members have submitted timely valid Request for Exclusion forms by which they have opted out of the settlement. See id. at ¶ 15. Of those, three have rescinded their exclusion requests, see id. at ¶ 15, and four opted out because they have pending individual claims or lawsuits against MetLife. See Supplemental Declaration of David Borgen (“Borgen Decl.”) (Exhibit 4 in the Appendix), ¶ 14. The remaining eight opt-outs constitute less than 0.3 % of the class members who received the Class Notice. In contrast, over 50% of such class members have so far submitted Claim forms to participate in the settlement's monetary relief provisions. See id. at ¶ 13. The period for class members to file claims extends until November 24, 2003, the deadline established by the Preliminary Approval Order; however, the period for requesting exclusion or filing objections has closed.
One of the remaining 12 opt-outs is named plaintiff Stella Mitchell. Ms. Mitchell's decision to opt-out does not impact the ultimate reasonableness or fairness of the settlement given her decision not to object to the settlement but only exclude herself from its provisions. Moreover, class action settlements can be approved by the court over the preferences of named plaintiffs because “a contrary view would put too much power in a wishful thinker ... to thwart a result that is in the best interests” of others. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995) (citing Sayior v. Lindsley 456 F.2d 896, 899-900 (2d Cir. 1972)) (other citation omitted); see also Martens v. Smith Barney, Inc., 181 F.R.D. 243, 265 (S.D.N.Y. 1998) (the fact that the lead named plaintiff opted out and objected to the employment discrimination class action settlement was not fatal to the final approval of the settlement by the court).
Not a single class member has submitted timely written objections to the Consent Decree to either the Class Administrator or Class Counsel as of the date of the Rosenthal Declaration. See Rosenthal Decl., ¶ 16, Borgen Decl., ¶ 15.
The large number of submitted claims, the tiny number of opt-outs, and the complete absence of objections by class

members weigh heavily in favor of approval of the Consent Decree. See, e.g., D'Amato v. Deutsche Bank, 236 F.3d 78, 87 (2d Cir. 2001) (holding that the district court appropriately held that the small number of objectors and opt outs favors approval of class settlement); Marisol v. Giuliani, 185 F.R.D. 152, 163 (S.D.N.Y. 1999) (“the small number of comments from a plaintiff class ...[is] evidence of the Settlement Agreement's fairness, reasonableness, and adequacy”); In re Warner Communications Secs. Litig., 618 F. Supp. 735, 746 (S.D.N.Y. 1985) (noting small number of objections and opt-outs in approving settlements).
IV. THE CONSENT DECREE SATISFIES THE CRITERIA FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENTS UNDER F.R.C.P. 23(E).
Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure (F.R.C.P.), any class action settlement requires court approval.[FN1] In examining the appropriateness of the settlement, the court looks to whether the settlement is “fair, adequate, and reasonable, and not a product of collusion.” Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). “In so doing, the court must ‘eschew any rubber stamp approval’ yet simultaneously ‘stop short of the detailed and thorough investigation that it would take it if were actually trying the case.’ ” Sheppard v. Consolidated Edison Co. of New York, Inc., 2002 WL 2003206, *3 (E.D.N.Y. Aug. 1, 2002) (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir. 1974). The courts should exercise such judicial discretion while keeping in mind the strong judicial and public policies that favor consensual resolution of cases. Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini, 258 F. Supp. 2d 254, 257 (S.D.N.Y. 2003) (citing In re Ivan F. Boesky Secs. Litig., 948 F.2d 1358, 1368 (2d Cir. 1991); Newman v. Stein, 464 F.2d 689, 692 (2d Cir. 1972); In re Michael Milken & Assocs. Secs. Litig., 150 F.R.D. 46, 53 (S.D.N.Y. 1993)).
FN1. The presently pending revisions of Rule 23 are not applicable to this proceeding because they do not take effect until December 1, 2003. See Report of the Civil Rules Advisory Committee, available at http// www.uscourts.gov/rules/ic09-2002/cvruleshc.pdf. However, the settlement and the procedures followed in reaching it satisfy all of the requirements of the new Rule 23(e) provisions and of Amchem Products v. Windsor, 521 U.S. 591 (1997), which inspired many of the amended Rule 23's new provisions.
In evaluating the fairness and reasonableness of a class action settlement, the courts look to both the procedural fairness (i.e., the adequacy of the parties' information and the negotiations that led to the settlement) and the substantive fairness (i.e., the terms of the settlement) of the agreement. See In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139, 145 (E.D.N.Y. 2000). The Second Circuit has enumerated several factors for courts to examine in evaluating the fairness and reasonableness of class action settlements pursuant to F.R.C.P. 23(e): (1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness of the settlement fund in light of the best possible recovery, (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation[.]
County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323-24 (2d Cir. 1990) (citing Robertson v. National Basketball Ass'n. 556 F.2d 682, 684 n. 1 (2d Cir. 1977) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974)); see also Grant v. Bethlehem Steel Corp., 823 F.2d 20, 24 (2d Cir. 1987) (finding no error in the trial court's examination of substantially similar factors in assessing the reasonableness of a class action settlement). The Consent Decree is fair and adequate in all of these respects.
A. Procedural Fairness.

The settlement is procedurally fair because the Consent Decree was the result of extensive, informed, arm's length negotiations between attorneys with substantial litigation and trial experience, including experience in complex and/or class action employment discrimination cases. See July 24, 2003 Declaration of David Borgen (attached to Plaintiffs' Preliminary Approval Motion and attached as Exhibit 3 in the Appendix) (hereafter “7/24/03 Borgen Decl.”), ¶¶ 22-31; Declaration of Adam T. Klein (attached to Plaintiffs' Preliminary Approval Motion and attached hereto as Exhibit 5 in the Appendix) (hereafter “7/29/03 Klein Decl.”), ¶¶ 8-16. Moreover, the attorneys involved in the settlement negotiations were fully familiar with the legal and factual issues of the case. The extensive discovery in the case (details of which were provided in Plaintiffs' preliminary approval motion) included analysis of voluminous documents and databases and the taking and defending of numerous depositions, which provided an ample factual basis for the parties to evaluate the merits of their cases. See 7/24/03 Borgen Decl., ¶¶ 3-11; 7/29/03 Klein Decl., ¶¶ 3-7. Class Counsel- Outten & Golden, who have been attorneys for plaintiffs during the entire span of the litigation, and Goldstein, Demchak, Baller, Borgen & Dardarian, who have been attorneys for plaintiffs since April 2002- will continue to represent the class during the three year term of the Consent Decree. Both firms have substantial experience and success in complex and class action litigation, and have successfully prosecuted, tried, and/or settled major employment discrimination class actions. See 7/24/03 Borgen Decl., ¶ 28; 7/29/03 Klein Decl., ¶ 15.
The negotiation process resulted from hard bargaining between adverse parties. Attorneys for the parties met numerous times over a seven-month period to discuss their respective positions. See Borgen Decl., ¶¶ 4-5. Both parties relied on detailed reports from their respective statisticians as a basis for their arguments on the parameters of the injunctive and monetary relief provisions. See id. at ¶ 5. The parties furthered their discussions by telephone in between their face-to-face meetings and relied on feedback sought from the Human Resources department of MetLife on the proposed injunctive relief provisions. See id. The amount of monetary funds to be dedicated to injunctive relief for the class was hard-fought between the parties. See id. at ¶ 6. Ultimately, the Consent Decree provides for a set aside amount of $5 million that will be expended by MetLife in the implementation of the injunctive relief measures for the benefit of class members who continue to work in MLFS jobs. Likewise, the amount of monetary relief for plaintiffs and the class was the subject of difficult negotiations. See id. In the end, a bargain for another $5 million was struck. These are compromise figures that reflect the best obtainable result for the class members given the extremely divergent positions of the parties on the merits of the case.
Accordingly, given the good-faith negotiation process between competent counsel and the sufficiency of their information based on exhaustive discovery, the Court should conclude that the Consent Decree was the product of a fair, adequate, and reasonable settlement process and was not the product of collusion between the parties.
B. Substantive Fairness.
1. The complexity, expense, and likely duration of the litigation.
Employment discrimination cases are notoriously expensive and time-consuming to prosecute. This case involves classwide allegations of a nationwide policy, pattern, or practice of gender discrimination in promotions, compensation, and other terms and conditions of employment in violation of federal and state anti-discrimination laws, against a major corporation with numerous offices across the country. These allegations would have been tested under both the disparate treatment and disparate impact legal standards. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). The parties' briefs and supporting documents on plaintiffs' Motion for Class Certification, filed in February and April 2003, well illustrate how difficult and complex the issues were. Plaintiffs' submissions in support of their motion included approximately 1,500 pages of documentation, including excerpts from 18 depositions, as well as 36 declarations. Similarly, defendant's submissions in reply to the class certification brief included approximately 1,100 pages of documentation, including excerpts from 18 depositions and 27 declarations. Whatever the Court's ruling on the motion for class certification, the losing side would certainly have sought review on an interlocutory appeal under Rule 23(f) of the Federal Rules of Civil Procedure.

Preparing and putting on their evidence on the complex factual and legal issues at trial on the merits would have consumed tremendous amounts of time and resources for both sides, as well as requiring substantial judicial resources to adjudicate the parties' disputes. Large amounts of additional discovery would have been required to establish liability. A complicated trial would have been necessary, featuring dueling experts and sophisticated statistical analyses, as well as extensive testimony by MetLife managers and executives, plaintiffs, and numerous class members, all presented to a jury on legal issues, with a concurrent bench trial on equitable issues. Any verdict would have likely been appealed, thereby extending the duration of the litigation. Had the Court denied the motion for class certification, the alternative to a class action -- multiple individual litigations -- would have taxed private and judicial resources over a period of years, and the high burden of proof for individual litigants would have deterred a great number of individuals from pursuing their legal rights. The settlement, on the other hand, makes both injunctive and monetary relief available to all class members in a prompt and efficient manner.
2. The reaction of the class to the settlement.
As outlined in detail in section II of this Memorandum, the reaction of the class has been extremely positive. Out of a class of approximately 3,700 people, only seven (constituting less 0.3% percent of the class) opted out of the settlement for any reason other than to pursue their own pre-existing cases in litigation, and not one class member objected to the settlement. The lack of any objectors and the extremely small number of opt-outs weigh heavily in favor of approval of the settlement. See e.g., D'Amato, 236 F.3d at 87 (2d Cir. 2001); Marisol, 185 F.R.D. at 163; In re Warner Communications Secs. Litig., 618 F. Supp. at 746.
3. The stage of the proceedings and the amount of discovery completed.
At the time this case was submitted to the Court for preliminary approval of the classwide settlement, the parties had engaged in hard-fought litigation for over two years. Class Counsel also had the benefit of one year of pre-filing investigation of the evidence supporting the class-wide allegations. See July 29, 2003 Klein Decl. at ¶ 4. Prior to entering into the Consent Decree, the parties engaged in extensive discovery (as outlined in Plaintiffs' Preliminary Approval motion), motion practice (including a motion for class certification), and many rounds of in-depth settlement negotiations. Given the lengthy and well-developed exchange of discovery, the Consent Decree represents negotiations between informed parties who were able to make well reasoned judgments about the merits of the case and the settlement.
4. The risks of establishing liability and damages, as well as maintaining the class action through trial.
A trial in this case would involve significant risks to plaintiffs because of the extremely complex nature of the proof required in pattern and practice discrimination cases, and the substantial and vigorous defenses MetLife mounted against plaintiffs' claims as illustrated by defendant's Memorandum of Law in Support of Defendant's Opposition to Plaintiff's Motion for Class Certification. The complexity of the case was compounded by the complicated nature of the statistical and anecdotal class evidence and the various defenses to class certification and classwide liability that plaintiffs would have had to overcome. MetLife's defenses include the individualized nature of the decision making structure of the company, the downsizing of the company's local offices (which MetLife contended limited promotional opportunities for nondiscriminatory reasons and explained some of the facial disparities shown in plaintiffs' statistical data), and the applicable statute of limitations. While Class Counsel believe the class claims are meritorious, counsel are experienced and realistic, and understand that the resolution of the class certification and liability issues, the outcome of the trial, and the inevitable appeal process are inherently uncertain in terms of both outcome and duration. Moreover, the ability to prove classwide damages would have been challenging given the arguably individualized nature of damages in promotion and compensation discrimination cases.
5. The adequacy of inhunctive relief and its benefits to currently employed class members.

The Section X of the Consent Decree includes $5 million as a set aside amount that MetLife must spend for implementation of the extensive injunctive relief measures, which are aimed at ending policies and procedures alleged to be responsible for gender disparities in MetLife's MLFS and sales management sales workforce and compensation and at recruitment of professional level women employees in MLFS. These injunctive relief measures include a panoply of specific, detailed, and creative programs, summarized below. First, the Decree requires substantial increases in human resource support and improvements in MetLife's internal complaint procedure. See Consent Decree, Sections XI.B and - C (MetLife required to hire at least six additional HR Generalists whose duties will include carrying out investigation of discrimination complaints by women in MLFS under a rigorous procedure specified in the Decree). Second, the Decree establishes benchmarks requiring MetLife to increase the representation of women in management positions. See Consent Decree, Section IX.H (MetLife required to make its “Best Efforts” to attain specific numerical benchmarks, defined in Sec. IX.H.5 and - 6, designed “to increase the percentage of women I the Functional Manger, Agency Director ... and managing Director positions;” failure to attain the benchmarks is subject to review under the decree's Dispute Resolution Procedure (Section VII)). Third, the Decree commits MetLife to implement extensive training and evaluation procedures. See Consent Decree, Section XI.H and - J (MetLife to train MLFS managers with respect to diversity and EEOC goals as well as enhancement of the sales skills and productivity of Sales Representatives, the MLFS job with the largest number and percentage of female employees). Fourth, MetLife must undertake increased recruitment of female candidates for sales and sales management positions. See Consent Decree, Section IX.K (with provision that MetLife support this recruitment effort with specific required funding of $600,000). Fifth, MetLife is required to develop an equal employment opportunity management development program. See Consent Decree, Section IX.L (program is designed to prepare high potential sales personnel for management positions, with women to receive at least 30% of the slots). Sixth, MetLife will develop written criteria for the equal distribution of business resources and assistance. See Consent Decree, Sections IX.M, - N and - O (programs to enhance women's opportunities to get a fair share of business generation leads and development assistance, with monitoring to assure gender fairness). Seventh, MetLife must provide extensive reporting to Class Counsel for monitoring purposes, and assure retention of relevant records. See Consent Decree, Sections XI and IX.A.2.a.(iv) and - (v) (requiring reports for MLFS sales management positions on employment and compensation data, by gender, with any unexplained discrepancies subject to the Dispute Resolution Procedure). Eighth, MetLife will create a powerful Decree Monitor position to oversee implementation of the Decree over its three-year term. See Consent Decree, Section IX.A (assuring the Monitor and her staff will have the resources as well as the obligation to conduct extensive compliance reviews, with funding of $750,000 over that period). These relief measures are aimed at, and will surely be effective in, significantly increasing opportunities for the current and future female employees of the MLFS in professional jobs.
6. The reasonableness of the settlement fund for monetary relief in light of the best possible recovery and the attendant risks of litigation.
Under Section XI.A.I.a of the Consent Decree, MetLife will pay $5 million into a Qualified Settlement Fund to be used to compensate class members pursuant to a claims procedure. Each qualified claimant will receive a minimum payment of $1,000, and she will also be assigned points based on the claimant's years of employment, the positions(s) she held, the time and effort she spent participating in pre-class certification discovery, and whether she is a former employee. See Consent Decree, Section XI.F. Monetary relief will be allocated to each claimant based on her pro rata share of the total points of all claimants. See Consent Decree, Sec. XII.E, - F. Payments from this fund are not limited to incumbent employees but will benefit previously employed class members who make timely claims. Former female MLFS employees who cannot take advantage of the injunctive relief measure but who file claims will benefit from additional compensation.
If at least 60% of the class submit claim forms by the cut off date[FN2], the average monetary award per class member will be $2,500. For class members who are former employees, who have five to ten years of tenure, who held a management position, and who supplied a declaration and or deposition in the litigation, it is likely that the recovery will reach or exceed $5,000. The range of $1,000 to $5,000 reflects substantial recoveries, particularly when made available to a large class of individuals.

FN2. A 60% return of claim forms is a realistic assumption given that over 50% of class members have sent in claim forms as of October 20, 2003, and claim forms will be timely if mailed by November 24, 2003.
As part of the Qualified Settlement Fund, the four named plaintiffs who have not opted out of the litigation will share a liquidated sum of $180,000,[FN3] in settlement of their individual claims, recognition of the efforts they have undertaken and the risk they incurred on behalf of the class, and in exchange for a broader release of their individual claims than that given by other class members. The named plaintiffs' efforts, as well as the case law that supports such incentive payments, were detailed in the Plaintiffs' Preliminary Approval Motion at 10-11.
FN3. Section XI.A.l.c of the Consent Decree provides for a liquidated sum of $235,000 for the named plaintiffs who do not opt out of the litigation. See Consent Decree at 43. Because one of the named plaintiffs (i.e., Ms. Mitchell) has opted out of the litigation, her allocated share ($55,000, see Preliminary Approval Brief at 10, fn. 4) will be deducted from the total, leaving $180,000 in incentive payments to the named plaintiffs.
7. Advantages of the settlement.
Under the Consent Decree, the class members are entitled to far-reaching and immediate advantages, which will also positively impact future female MLFS employees. The injunctive relief measures (as described above) will create significant opportunities for current female MLFS employees, including promotions to more responsible and higher paying jobs that will enhance their compensation and career development opportunities. Moreover, the settlement will increase the total number of female sales personnel in MLFS by the establishment of a targeted recruiting effort by MetLife, and these beneficial provisions will go into effect soon after the settlement's approval. This settlement is not only a win-win result for the parties but will advance the law's goal of equal employment opportunities as applicable to MLFS by a broad range of non-exclusionary programs. See, e.g, Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (cooperation and voluntary compliance were selected as the preferred means for achieving Title VII's goal of equal employment opportunities); Wrenn v. Secretary. Dept. of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990) (same).
With regard to the monetary relief provision, because this is an employment discrimination class action, the best possible recovery for the class is difficult to ascertain with specificity. Back pay and front pay for lost sales business opportunities and compensatory and punitive damages are difficult to gauge, especially on a class wide basis. However, here, the settlement provides $5 million for extensive injunctive relief, including a three-year monitoring period, and $5 million in monetary relief which is available to individual class members based on their work histories and claims. Each class member who files a timely claim form will obtain one to several thousand dollars within a short time. Accordingly, the proposed Consent Degree terms are objectively reasonable, especially when considered against the attendant risks and delays of litigation, as outlined above.
V. CONCLUSION
The settlement embodied in the Consent Decree is fair and adequate under the Second Circuit's criteria for approval pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. Therefore, the Court should grant plaintiffs' motion for final approval of the Consent Decree and enter the Consent Decree as an order of the Court.[FN4]
FN4. By a separately filed Memorandum of Law in Support of Plaintiffs' Application for Award of Attorney's Fees and Costs, plaintiffs concurrently seek approval of the provision of Section XIII of the Consent Decree for payment of $3.4 million to plaintiffs' counsel.

Stella MITCHELL, Hwa-Mei C. Gee, Durpatty Persaud, and Janet Ramsey, on behalf of themselves and all others similarly situated, and Barbara LaChance, individually, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, INC., dba Metlife, Defendant.