Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 1 of 60

OUTTEN & GOLDEN LLP Adam T. Klein (AK 3293) Justin M. Swartz (JS 7989) Cara E. Greene (CG 0722) 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Kelly M. Dermody, pro hac vice forthcoming Heather H. Wong, pro hac vice forthcoming 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

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Rachel Geman (RG 0998) c . .

250 Hudson Street, 8th Floor ·' ·· · ·

New York, NY 10013-1413

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Telephone: (212) 355-9500

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Facsimile: (212) 355-9592

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, JULIE MOSS, and DIANNE GOEDTEL, on behalf of themselves and all others similarly situated,
Plaintiffs,

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-against-

CLASS ACTION

COMPLAINT

(Trial by Jury Demanded)

BANK OF AMERICA CORPORATION; MERRILL LYNCH & CO., INC.; and MERRILL LYNCH,

BlANCO, J.

PIERCE, FENNER & SMITH, INC.,

ORENSTEIN, M.J.

Defendants.

Individual and Representative Plaintiffs Judy Calibuso, Julie Moss, and Dianne Goedtel (collectively "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:

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NATURE OF THE CLAIM 1. This case is about deep-rooted and pervasive gender discrimination at the nation's largest bank and brokerage firm. Measured by both equity and assets, Defendant Bank of America Corporation ("BofA") is the largest bank company in the United States and one of the largest financial institutions in the world. Following its combination with Merrill Lynch & Co., Inc. ("ML") and Merrill Lynch, Pierce, Fenner & Smith, Inc. ("MLPF&S") 1, Defendants also have attained the status of being the largest brokerage firm in the world. Defendants' retail brokerage unit, now operating under the banner of Merrill Lynch Global Wealth Management, employs over 15,000 Financial Advisors (also referred to as "FAs" and "brokers") nationwide. These Financial Advisors provide financial and investment services to customers across the United States and manage over $2 trillion in client assets. 2. Beneath the veneer of a world-class financial institution, Defendants treat their female Financial Advisors as second-class citizens. Both BofA and Merrill alike have discriminated and continue to discriminate against female Financial Advisors on the basis of gender with respect to business opportunities, compensation, professional support, and other terms and conditions of employment. When female Financial Advisors have complained about these discriminatory practices, Defendants have retaliated against them. Defendants' discrimination and retaliation violate Title VII ofthe Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq. ("Title VII"), the New York State Human Rights Law, New York Executive Law§ 296 et seq. ("NYSHRL"), the New York City Human Rights Law, Administrative Code ofthe City of New York § 8-107 et seq. ("NYCHRL"), and the Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq. ("FCRA").
1 The Complaint will hereinafter refer to ML and MLPF&S collectively as "Merrill." The Complaint will hereinafter refer to all three named defendants collectively as "Defendants."
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3. The violations are systemic, based upon company-wide policies and practices, and the result of unchecked gender bias that pervades Defendants' corporate culture. They are not isolated or exceptional incidents, but rather the regular and predictable result of Defendants' company-wide policies and practices. Defendants' policies and practices with regard to the distribution of investment accounts and business opportunities under their control deny qualified female Financial Advisors equal opportunities for compensation. These policies and practices existed at both BofA and Merrill before the merger, and they continue to exist at the combined company today.
4. As a result of Defendants' company-wide policies and practices, female FAs have earned substantially less than similarly situated male FAs. This earnings disparity, which Defendants caused by reckless indifference and/or intentional conduct, has existed every year throughout the liability period in this case and is part of a pattern or practice of intentional discrimination.
5. Defendants, through their conduct throughout the liability period, have caused these gender-based earnings disparities by intentionally (a) implementing company-wide policies and practices that have allowed and encouraged BofA and Merrill managers to favor male FAs over female FAs in distributing client accounts from departing or retiring FAs, and other business opportunities, which give male FAs greater opportunities to earn compensation; and (b) implementing company-wide policies and practices that have created a "cumulative advantage" effect by perpetuating and widening the gender-based earnings disparities that Defendants' discriminatory policies and practices have caused.
6. Defendants have intentionally implemented these company-wide policies and practices, and maintained their discriminatory compensation system, in order to pay their male
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FA's more money than their female counterparts. Upon information and belief, Defendants' company-wide client account distribution policies and practices that, while facially neutral, have an adverse impact on the compensation of female brokers as compared to their male counterparts.
7. Accordingly, in addition to bringing this action on their own behalf, Plaintiffs also bring this action on behalf of a class of similarly situated current and former female Financial Advisors employed by Defendants ("the Class"), in order to end Defendants' discriminatory policies and/or practices and to make the Class whole.
PARTIES Plaintiffs
Judy Calibuso 8. Plaintiff Judy Calibuso is a woman who lives in Miami-Dade County, in the State of Florida. She is a citizen of the United States. 9. Calibuso is presently employed by Defendants as a Financial Advisor. She has held this position since approximately 1995. Julie Moss 10. Plaintiff Julie Moss is a woman who lives in Leon County, in the State of Florida. She is a citizen of the United States. 11. Moss was employed by BofA as a Financial Advisor from approximately March 2003 through October 2006. Dianne Goedtel 12. PlaintiffDianne Goedtel is a woman who lives in Suffolk County, in the State of New York. She is a citizen ofthe United States.
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13. Goedtel was employed by BofA as a Financial Advisor from approximately February 2006 through September 2007. Defendants
Bank o(America Corporation 14. Upon information and belief, Defendant Bank of America Corporation ("BofA") is a Delaware corporation doing business within Kings County in the State ofNew York and maintains corporate headquarters within the City and County of Charlotte-Mecklenburg at Bank of America Corporate Center, 100 N. Tryon St., Charlotte, North Carolina 28255. 15. Upon information and belief, Defendant BofA maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 16. During all relevant times, Defendant BofA was Plaintiffs' employer within the meaning of all applicable statutes. 17. On information and belief, at all times pertinent hereto, Defendant BofA has employed more than five hundred people. Merrill Lynch & Co., Inc. 18. Upon information and belief, Defendant Merrill Lynch & Co., Inc. ("ML") is a Delaware corporation doing business within Kings County in the State ofNew York and maintains corporate headquarters within the City and County of Charlotte-Mecklenburg at Bank of America Corporate Center, 100 N. Tryon St., Charlotte, North Carolina 28255. ML is a wholly owned subsidiary of BofA Corp. 19. Upon information and belief, Defendant ML maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
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20. Since January 1, 2009, Defendant ML has been PlaintiffCalibuso's employer within the meaning of all applicable statutes.
21. On information and belief, at all times pertinent hereto, Defendant ML has employed more than five hundred people.
Merrill Lynch. Pierce, Fenner & Smith. Inc. 22. Upon information and belief, Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. ("MLPF&S") is a Delaware corporation doing business within Kings County in the State of New York and maintains corporate headquarters within the City and County of New York at 4 World Financial Center, New York, New York 10080. MLPF&S is a wholly owned subsidiary of BofA and ML. 23. Upon information and belief, Defendant MLPF&S maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 24. Since January 1, 2009, Defendant MLPF&S has been PlaintiffCalibuso's employer within the meaning of all applicable statutes. 25. On information and belief, at all times pertinent hereto, Defendant MLPF&S has employed more than five hundred people.
JURISDICTION AND VENUE 26. This Court has original subject matter jurisdiction over the Title VII claims pursuant to 28 U.S.C. §§ 1331 and 1343, because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights. 27. This Court has original jurisdiction over the NYSHRL, NYCHRL, and FCRA claims in this action under the Class Action Fairness Act, 28 U.S.C. § 1332(d). This is a putative class action in which: (1) there are 100 or more members in the Class; (2) at least some members
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of the proposed class have a different citizenship from at least one Defendant; and (3) the claims of the proposed class members exceed $5,000,000.00 in the aggregate.
28. In addition, this Court has supplemental jurisdiction over the NYSHRL, NYCHRL, and FCRA claims under 28 U.S.C. § 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution.
29. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Defendants conduct business and can be found in this district and a substantial part of the events and omissions giving rise to the claims alleged herein occurred in this district, and because the alleged unlawful employment practice was committed here, and employment records relevant to that practice are maintained and administered here.
30. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII claims. Calibuso filed a charge of discrimination individually and on behalf of all similarly situated female FAs with the Equal Employment Opportunity Commission ("EEOC") on January 10,2007. Pursuant to the EEOC's worksharing agreement with the Florida Commission on Human Rights ("FCHR"), her charge is considered dually filed with the FCHR. She then filed a supplemental charge of retaliation on March 4, 2008. By notice dated June 17, 2008, the EEOC dismissed Calibuso's case and issued a Notice of Right to Sue. On August 19,2008, the parties entered into a Tolling Agreement ("Tolling Agreement") that tolled Calibuso's right to sue through AprilS, 2010.
31. On or about April 5, 2007, Moss filed a charge of discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. By notice dated June
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17, 2008, the EEOC dismissed Moss's case and issued a Notice of Right to Sue. The Tolling Agreement tolled Moss's right to sue through April 5, 2010.
32. On or about November 12, 2007, Goedtel filed a charge of discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC's worksharing agreement with the New York State Division ofHuman Rights ("NYSDHR"), her charge is considered dually filed with the NYSDHR. By notice dated May 21, 2008, the EEOC dismissed Goedtel's case and issued a Notice of Right to Sue. The Tolling Agreement tolled Goedtel's right to sue through AprilS, 2010.
33. Any and all other prerequisites to the filing of this suit have been met. FACTUAL ALLEGATIONS
34. Female Financial Advisors employed by Defendants work under company-wide policies and practices that are set up to disadvantage them. By unfairly relying on past performance as a basis for distributing current business opportunities, Defendants' companywide policies and practices create a "cumulative advantage" effect, under which "the rich get richer" and "success breeds success."
35. Defendants cause this "cumulative advantage" effect by intentionally (a) implementing company-wide policies and practices that have allowed and encouraged BofA and Merrill managers to favor male FAs over female FAs in distributing accounts and other business opportunities, which give male FAs greater opportunities to earn compensation; and (b) implementing company-wide policies and practices that perpetuate and widen gender-based earnings disparities by distributing greater business opportunities to men and compensating men more richly for having benefitted from Defendants' discriminatory policies and practices, and penalizing female Financial Advisors for failing to catch up.
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BofA's Acquisition of Merrill 36. By way of background, on January 1, 2009, BofA completed its acquisition of
Merrill. The combination brought together BofA's retail brokerage unit, Bane of America Investment Services, Inc. ("BAI''), which employed over 2,000 Financial Advisors, with Merrill's powerhouse brokerage operations, MLPF&S, which employed over 15,000 Financial Advisors. Upon information and belief, after the merger with Merrill, BofA kept intact MLFP&S as a wholly-owned subsidiary and swept its "legacy" Financial Advisors who had worked for BAI into MLFP&S. Defendants' Policies and Practices Create and Perpetuate Discrimination
37. Despite this corporate upheaval, Defendants' company-wide policies and practices, which discriminate against female Financial Advisors, have remained largely the same, or have become worse.
Subjective Decision-Making 38. Defendants have implemented company-wide policies that allow and encourage their predominantly male management to discriminate against female Financial Advisors in distributing accounts and business opportunities and providing support and training. These policies allow branch managers to distribute business opportunities on an arbitrary and subjective basis. Unchecked by corporate oversight, Defendants' largely male branch managers systematically favor male brokers by entrusting them with their most plum business opportunities and otherwise grooming them for success. 39. The business opportunities that Defendants distribute disproportionately to male FAs include, but are not limited to: (1) call-ins, walk-ins, leads, referrals, and client accounts from departing brokers' books (collectively "account distributions"); (2) partnership
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opportunities; (3) upfront money, pay-out rate, and other benefits in Defendants' compensation plan; and (4) sales, administrative, and professional support.
The "Cumulative Advantage" Effect 40. Defendants further perpetuate this discrimination by using past performance as one of their primary criteria for handing out business opportunities and for compensating their brokers. Defendants measure past performance by two primary metrics: "production" and "assets under management." "Production" is the amount of revenue that an FA generates for Defendants, usually stated over a 12-month period. "Assets under management" is the value of the assets in the client investment accounts that Defendants have assigned to the FA. 41. BofA and Merrill also have common histories of discriminating against female employees, including female Financial Advisors. Over many years, both before and during the liability period in this case, Defendants' gender discrimination has caused female brokers to accumulate fewer assets under management than similarly situated men, produce less than similarly situated men, and, therefore, earn less than similarly situated men. 42. Defendants compensate their FAs using a commission "grid" metric. The percentage payouts increase based on total production, which means that the higher producing FAs earn more money in commissions and bonuses and also earn the right to receive a larger percentage of their yearly production based on the grid targets. 43. Using past performance as a criterion for distributing business opportunities and setting compensation thus has the purpose and effect of discriminating against female FAs. Account Distribution 44. Defendants pay their Financial Advisors primarily on a commission basis, which they calculate based on the revenue FAs generate from the investment accounts assigned to
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them. Accounts typically come from one of four sources: (a) when individuals call ("call-ins") or walk ("walk-ins") into the office to open a new account; (b) through "leads" and "referrals" (e.g., when Defendants tell a Financial Advisor of a potential account opportunity and the Financial Advisor makes contact with the potential account holder); (c) when a Financial Advisor departs from the firm (e.g., when a Financial Advisor retires, leaves the business, or moves to another firm); or (d) through partnerships between Financial Advisors within an office or branch, whereby partnered Financial Advisors split the partnership's earned revenue according to a negotiated or predetermined ratio.
45. These accounts and potential accounts are not simply "acquired" by brokers in a vacuum. Defendants direct the distribution of accounts and business through a company-wide policy that delegates discretion to allocate or distribute accounts, as well as opportunities to gain new accounts, to their branch management. Because Financial Advisors obtain so many accounts through the distribution process rather than on their own initiative, Defendants' account distribution policies and practices have a substantial impact on the number and quality of accounts a Financial Advisor ultimately manages.
46. Defendants' company-wide policy and practice allows branch managers to consider their own preferences in making account distribution decisions. This extraordinary discretion allows branch managers to distribute accounts and other business opportunities as they choose, allowing their gender stereotypes and the company-wide culture of gender discrimination to influence their decisions. This policy and practice has the purpose and effect of systematically discriminating against female FA's by causing managers to distribute greater and more lucrative accounts and business opportunities to male FA's than to similarly situated female FA's.
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47. Defendants' company-wide policy and practice also directs branch management to consider past performance, as well as branch management's own preferences, in distributing accounts to FAs.
48. When a male FA receives a client investment account, he gains much more than the value of the client investment account or the revenue that the client investment account can generate. He also gains the growth potential of the assets in the client account and the growth potential of the account's production. And not only do the accounts grow in value, but they spawn other accounts, as each client refers other individuals who have money to invest. As the accounts generate revenues, they also boost the FA's production numbers, which cause him to earn greater and more lucrative accounts and increase his commission grid entitlements. These mechanisms exponentially increase the broker's assets under management and production- and therefore also increase his compensation.
49. Defendants' policies thus create a cumulative advantage. By disproportionately giving a greater number of accounts and more lucrative accounts to male FAs, Defendants disproportionately groom male FAs to qualify for, and ultimately secure, additional accounts and other business opportunities under Defendants' company-wide account distribution policy. These additional accounts and business opportunities directly and indirectly increase the male FAs' assets under management and production, and place male FAs in an even better position for the next round of account distributions.
50. Because Defendants have historically favored male FAs for account distributions and other business opportunities, at both BofA and Merrill, male FAs have higher production and assets under management than female FAs. Defendants' policies and practices that create the cumulative advantage effect thus discriminate against female FAs. The disparity between the
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accounts allocated to male and female FAs grows wider and wider, and women cannot catch up. Partnerships 51. The ability to enter into partnerships with other FAs allows FAs to increase their
earnings. Defendants permit their branch managers to create partnerships that systematically and unlawfully disadvantage female FAs and that further perpetuate the cumulative advantage enjoyed by male FAs.
52. In addition, pursuant to Defendants' company-wide policies and practices, Defendants' management often encourages male FAs to form lucrative partnership agreements to the exclusion of female FAs. Defendants treat female FAs less favorably with respect to partnerships and the division of assets and production therein in relation to their male counterparts. These discriminatory policies and practices have the purpose and effect of systematically discriminating against female FAs who work for Defendants with respect to compensation and business opportunities.
53. By excluding women from partnership opportunities, Defendants' policies and practices further perpetuate the cumulative advantage of men over women by precluding female FAs from the benefits of future business opportunities that are generated by these lucrative partnerships.
Upfront Money 54. Defendants also allow their branch managers and upper management wide discretion to advance "upfront money" to new FAs. "Upfront money" refers to forgivable loans that Defendants extend to new FAs when they join the company. Defendants' branch managers systematically give more upfront money to male FAs than to female FAs, allowing new male FAs to gain a head start on their female peers both in terms of status within the company and
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compensation. Sales, Administrative, and Professional Support 55. The wide discretion that Defendants bestow upon branch management also allows
branch managers to discriminate against female FAs by offering less sales, administrative, and professional support and fewer marketing dollars for business development than it offers to male FAs. These company-wide policies set up female FAs to underperform as compared to their male peers by depriving them of critical resources to perform their jobs. Defendants' failure to provide female FAs with the same levels of support given to male FAs directly impacts their ability to generate revenue.
Compensation 56. Defendants' nationwide compensation plan also discriminates against women by causing the cumulative advantage effect to depress female FAs' earnings compared to those of their male counterparts. 57. Defendants pay all oftheir FAs according to a two-tiered compensation grid set out in the nationwide compensation plan. FAs with production below a certain threshold are paid in accordance with plan "FA1"; FAs above the threshold are paid in accordance with "FA2." 58. The compensation grid determines the percentage of an FA's production that the FA takes home as earnings. 59. The compensation grid is "progressive"- the higher an FA's production during the prior year, the higher the percentage of that production the FA receives as compensation. 60. Because the production of female FAs are, on average, lower than that of their similarly situated male FAs due to Defendants' gender discrimination, the compensation grid
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dictates that Defendants pay male FAs at a higher rate than similarly situated female FAs for performing the same work.
61. Defendants have known that their compensation plan has favored male FAs throughout the class period. Defendants' compensation plan has the purpose and effect of favoring male FAs.
62. Defendants' compensation plan, including the grid, has applied to all FAs in all of Defendants' branches throughout the liability period.
63. In addition to the grid, other aspects of Defendants' compensation plan also have the purpose and effect of discriminating against female FAs including, but not limited to, bonuses, stock awards, recognition programs, deferred compensation, and other benefits because these benefits, in part, are the function of direct compensation.
64. From even before the beginning liability period, pursuant to its longstanding discriminatory practices, Defendants distributed accounts, partnership opportunities, upfront money, and sales, administrative, and professional support on more favorable terms to male FAs than to similarly situated female FAs-both intentionally and pursuant to policies and practices that had an unlawful disparate impact on women. These discriminatory account distributions and allocations of other business opportunities have continued to affect female Financial Advisors during the liability period. Female financial advisors have earned less during the class period, and continue to earn less, as a result of these discriminatory policies and practices.
Titles 65. According to its company-wide policies and practices, Defendants award corporate titles to Financial Advisors at the discretion of branch managers and as a function of Financial Advisors' production. Because Defendants permit their branch managers to favor male
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FAs and because the production of female FAs are, on average, lower than that of their similarly situated male FAs due to Defendants' gender discrimination, these policies and practices discriminate against female FAs by awarding disproportionately more corporate titles to male FAs than to female FAs. Defendants Refuse to Change Policies and Practices They Know Discriminate Against Women
66. As troubling as these discriminatory policies and practices are, more disturbing still is the cavalier way in which Defendants have treated the subject of sex discrimination against their female FAs. Defendants have responded with indifference to complaints from female FAs about the various ways in which they have been subjected to inferior terms and conditions of employment as compared to their male counterparts.
67. Worse, Defendants have retaliated against female FAs who have complained of gender discrimination. After female FAs have complained about Defendants' unfair allocation of business opportunities and compensation, Defendants have retaliated against them in various ways, including, but not limited to: denying them necessary resources and support to perform their jobs, subjecting them to harsher discipline, constructively discharging them, placing negative and misleading language on their U-5 forms, and even bringing legal proceedings against them.
68. Moreover, BofA's merger with Merrill has only worsened its treatment of female FAs. Prior to its acquisition by BofA Corp., Merrill maintained company-wide policies and practices that discriminated against female FAs with respect to business opportunities, compensation, professional support, and other terms and conditions of employment that had the same purpose and effect as those found at BofA. Both companies treated women unfairly, and the merger of the two companies has only exacerbated the discriminatory treatment of female
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FAs. The discriminatory policies and practices that plagued BofA and Merrill before the merger continue to persist at the company today.
69. Accordingly, this class action is brought by Calibuso, Moss, and Goedtel on behalf of themselves individually and all similarly situated female FAs in the United States. This action seeks to end Defendants' discriminatory policies and/or practices and retaliation, and to make the Plaintiff class whole by requesting the following remedies: injunctive relief to remedy systemic sex discrimination; an award of back pay and front pay; compensatory and punitive damages; and attorneys' fees.
CLASS ACTION ALLEGATIONS 70. Plaintiffs bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (b)(3) on behalf of a Class of all female Financial Advisors employed by Bank of America Corporation and its predecessors; Merrill Lynch & Co., Inc. and its predecessors; and Merrill Lynch, Pierce, Fenner & Smith, Inc., and its predecessors; in the United States at any time from March 16, 2006 through the resolution of this action. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (b)(3) on behalf of a Subclass of all female Financial Advisors employed by BofA, ML, MLPF&S, and its predecessors in New York at any time from August 19,2005 through the resolution ofthis action for claims under the NYSHRL; a Subclass of all female Financial Advisors employed by BofA, ML, MLPF&S, and its predecessors at any time from August 19, 2005 through the resolution of this action for claims under the NYCHRL; and a Subclass of all Female Financial Advisors employed by BofA, ML, MLPF&S, and its predecessors in Florida at any time from January 10,2006 through the resolution ofthis action for claims under the FCRA. Plaintiffs reserve the right to amend the definitions of the Class and Subclasses based on discovery or legal
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developments. 71. Plaintiffs are members of the Class they seek to represent. Plaintiff Goedtel is a
member ofthe New York State and New York City Subclasses, and Plaintiffs Calibuso and Moss are members ofthe New York City Subclass and the Florida Subclass.
72. The members ofthe Class identified herein are so numerous that joinder of all members is impracticable. As of the filing of this Complaint, Defendants have approximately 15,000 Financial Advisors. Although the precise number of female Financial Advisors is currently unknown, it is far greater than can be feasibly addressed through joinder.
73. There are questions oflaw and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others:
(a) whether Defendants' policies or practices discriminate against female FAs;
(b) whether Defendants have failed to implement policies and procedures to prevent retaliation against employees who challenge perceived bias in the workplace and failed to addressed complaints and conduct proper investigations;
(c) whether Defendants' policies and practices violate Title VII, the NYSHRL, the NYCHRL, and/or the FCRA; and
(d) whether equitable remedies, injunctive relief, compensatory damages, and punitive damages for the Class are warranted.
74. The Representative Plaintiffs' claims are typical of the claims of the Class. 75. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof.
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76. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because Defendants have acted and/or refused to act on grounds generally applicable to the class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class members are entitled to injunctive relief to end Defendants' common, uniform, unfair, and discriminatory policies and practices.
77. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The Class members have been damaged and are entitled to recovery as a result of Defendants' common, uniform, unfair, and discriminatory policies and practices. Defendants have computerized account data, payroll data, and personnel data that will make calculation of damages for specific Class members relatively simple. The propriety and amount of punitive damages are based on Defendants' conduct, making these issues common to the Class.
CLAIMS OF REPRESENTATIVE PLAINTIFFS Judy Calibuso
78. In June 1995, Plaintiff Judy Calibuso began working as an FA for Barnett Bank, which was acquired by BofA's predecessor firm in or around January 1998. Since January 1998, Calibuso has been employed by BofA as an FA and currently works in the Brickell Avenue office of Merrill in Miami, Florida.
79. During the course of her employment, Defendants denied Calibuso compensation, extra bonuses, business opportunities, titles, and other conditions of employment made available to similarly situated male FAs.
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80. BofA, and later Merrill as well, routinely distributed business opportunities, including accounts from departing and retiring brokers, referrals, leads, and potential clients, and more advantageous partnerships with different departments within the firm, to male FAs rather than to Calibuso or other female FAs. As a result of the inequitable and discriminatory distribution of accounts and account prospects, Calibuso and female FAs generally have less income potential and less actual income than similarly situated male employees.
81. In September 2006, Calibuso met with her then-manager and asked for fee-based accounts because BofA had not given her any earlier that year when several FAs within her office departed BofA. Her manager told her that he did not have any fee-based accounts to give her, but that even ifhe did, he would give them all to a specific male FA. Several weeks later, Calibuso learned that her manager had distributed fee-based accounts from the departed FAs to three male FAs.
82. By denying compensation or the opportunity for compensation to Calibuso that it made available to similarly situated male FAs, Defendants denied her the opportunity to form partnerships, and to earn discretionary bonuses and stock options, which are awarded based on a Financial Adviser's level of compensation. Moreover, Calibuso would have earned a higher grid payout if she had received these accounts.
83. In February 2007, Calibuso notified her current manager that she had filed a discrimination charge with the Equal Employment Opportunity Commission.
84. Following the filing of her charge, Defendants engaged in a constant campaign of retaliation.
85. Upon information and belief, in or around March 2007, BofA designated several FAs to form partnerships with BofA' s lucrative private banking business in order to help both
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FAs and Private Bank Relationship Managers grow their respective businesses, thereby increasing each partnered FA's total compensation and production. BofA designated several male FAs who were no more qualified, or who were less qualified, than Calibuso to form these partnerships, but did not designate Calibuso.
86. Calibuso's manager also excluded Calibuso from meetings involving her own accounts. In October 2007, her manager did not invite her to a lunch that the manager organized for one ofBofA's Commercial Banking relationship managers and several FAs from their office to promote cross referrals for investments. The manager invited other FAs who serviced accounts covered by the relationship manager, yet did not invite Calibuso, even though Calibuso and the relationship manager shared a major client.
87. On several different occasions, BofA retaliated against Calibuso by requiring her to get approvals before performing routine activities that it did not require male FAs to get and that it had not required Calibuso to get before she filed her discrimination charge.
88. In April2007, in order to develop potential sources of referrals, Calibuso planned a luncheon with several select relationship managers from different lines of business and advisors from Private Bank and Commercial Banking to meet with a BofA insurance specialist. When Calibuso's manager learned about the luncheon the night before, she told Calibuso to cancel it because she had not requested pre-approval. The luncheon, scheduled for 12:30 the next day, did not happen.
89. In contrast, on the same day as Calibuso's scheduled luncheon, two male FAs organized two separate group luncheons with wholesalers without pre-approval.
90. In October 2007, her manager issued Calibuso an undeserved reprimand letter, her first in her 12-year tenure with the company. The manager claimed that Calibuso had not
21

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followed the proper procedure for a client referral to BofA's Private Bank. When Calibuso asked her manager to approve a shared revenue partnership with the Private Bank client manager, her manager did not approve it. Instead, BofA took away these high value accounts from Calibuso and gave them to a male FA. Calibuso's manager also required Calibuso to attend a "coaching session" with management.
91. In or around March 2008, Calibuso received a referral from Commercial Banking to a high net worth client. Calibuso successfully serviced the account and brought two of the client's partners as new clients. After Calibuso had serviced these new accounts for several months, BofA stripped these accounts from her and gave them to a male FA because Calibuso had not been designated to work with Private Bank clients.
92. In or around November 2008, Calibuso requested reimbursement for continuing education classes for her Certified Financial Planner designation. BofA denied her request for reimbursement, although it approved reimbursements as well as additional travel expenses to male FAs taking similar courses.
93. On or about January 10, 2007, Calibuso filed a charge of discrimination with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission ("EEOC"). On or about March 4, 2008, Calibuso filed a supplemental charge of retaliation. On June 17, 2008, she received a Notice of Right to Sue from the EEOC. The Tolling Agreement tolled Calibuso's right to sue through April 5, 2010. Her charge, supplemental charge, and Notice of Right to Sue from the EEOC are attached to this Complaint as Exhibit 1 and are incorporated by reference. Julie Moss
94. Julie Moss was hired by BofA on March 15, 2003, as an Assistant Vice
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President/Financial Advisor. 95. BofA denied Moss compensation and extra bonuses that it made available to
similarly situated male employees. BofA routinely distributed business opportunities, including accounts from departing brokers, referrals, leads, and potential clients to male FAs rather than to Moss or other female FAs. For instance, when another female FA left (as a result ofharassment and discrimination by her supervisor, a male), BofA allowed a male broker to choose the accounts he wanted from her book of business. When a different female broker transferred back to the bank side of the business, she made a spreadsheet of her clients and who she thought would be the best FA for each one. The Market Director, a male, disregarded her recommendations and gave almost all the fee-based clients and the annuity clients with large commission trails to one male FA.
96. In March 2006, the Market Director hired a male FA who, on information and belief, had been a very small producer at a prior brokerage firm. When the new male FA arrived, the Market Director forced Moss to move out of her primary downtown office and buy her own furniture to move into a smaller office at another location. At the time, she held first place with the highest revenue in the Tallahassee market. When Moss left BofA in October 2006, she was still number one in the Tallahassee market.
97. On June 13, 2006, Moss contacted BofA's human resources department ("HR") and filed a claim of gender discrimination and hostile work environment. She told HR that she feared for her job, that the Market Director was intentionally harassing her and interfering with her production, and that the resulting stress was making her physically ill. HR arranged a meeting for July 11, 2006 in Jacksonville, but HR did not attend this meeting- instead Moss found herself meeting with her boss, the Market Director, and his boss, a Senior Vice President.
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On information and belief, this ambush meeting was in retaliation for her complaint of
discrimination.
98. Subsequent to the meeting on July 11, Moss suffered other instances of
discrimination and retaliation, including:
(a) The Market Director questioned Moss's trades and required her to call him for preapproval for trades. Moss had seven years experience in the brokerage business at that point, with no customer complaints, no questionable trades, and a clean U-4. On information and belief, BofA did not require other similarly situated FAs to obtain preapproval for trades.
(b) The Market Director did not require male FAs to repay BofA for the balance of start-up money advanced to them at the start oftheir employment as he required of Moss. Upon information and belief, the Market Director did not seek repayment from two male FAs for over $100,000 each- more than twice what Moss owed. In contrast, BofA initiated arbitration proceedings against Moss for the money she was advanced.
(c) She was told she would have to call the Market Director for preapproval to expense office lunches. On information and belief, no male FAs had to call for preapproval to expense office lunches.
(d) On Moss's last day of employment with BofA, Moss received a "letter of education" from the Market Director reprimanding her for failing to get manager pre-approval for an advertisement she had placed in a local paper. He copied several senior managers at BofA. Contrary to the Market Director's assertion, Moss had followed all BofA procedures for placing the advertisement.
99. BofA required Financial Advisers opening accounts for clients who had more
than a certain net worth to go through the firm's Private Bank. Male FAs were told to
circumvent this rule by falsifying documents to open accounts without going through the Private
Bank, and did not suffer negative consequences for falsifying the documents and violating
BofA's official policy. In contrast, Moss completed such documents truthfully and did not try to
circumvent the Private Bank; nonetheless, the Market Director investigated her, yelled at her,
and threatened to take away the production that she generated from one particular high-value
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account. 100. Through this misconduct, BofA constructively discharged Moss, forcing her to
resign effective October 27, 2006. 101. BofA would not permit Moss to repay her start-up loan without obtaining a
release of her discrimination claims. After she refused to release her discrimination claims and informed BofA of the possibility that she would file an EEOC charge, BofA continued to retaliate against Moss by commencing a claim against her in arbitration.
102. On or about AprilS, 2007, Moss filed a charge of discrimination and retaliation with the Florida Commission on Human Relations and the EEOC.
103. On June 17, 2008, Moss received a Notice of Right to Sue from the EEOC. Her charge and Notice of Right to Sue from the EEOC are attached to this Complaint as Exhibit 2 and are incorporated by reference. The Tolling Agreement tolled Moss's right to sue through April 5, 2010. Dianne Goedtel
104. PlaintiffDianne Goedtel worked as a Financial Advisor in the Melville, Long Island, New York office ofBofA from February 3, 2006 to September 20,2007. During the course of her employment, BofA denied Goedtel business opportunities and compensation that it made available to similarly situated male FAs, disciplined her more harshly than similarly situated males for similar infractions, and retaliated against her when she complained about gender discrimination.
105. From the start ofher employment, BofA discriminated against Goedtel on the basis of her gender by denying her start-up support and business opportunities that it provided to similarly situated men, which directly impacted her compensation. For example, BofA denied
25

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Goedtel upfront money when she first began working for BofA that it offered to similarly situated males when they began working.
106. On multiple occasions in or around the summer of 2007, BofA distributed accounts of departing FAs to similarly situated male FAs that it did not offer to Goedtel. Her manager distributed fewer assets to Goedtel than to male FAs and distributed to her almost no fee-based accounts, which are among the most lucrative. Ms. Goedtel's production had been in the top five for her office, but as a result of these discriminatory distributions, she dropped out of the top five.
107. BofA also engaged in gender discrimination and/or retaliation against Goedtel in other ways, including applying compliance standards more rigidly to Goedtel than to similarly situated males. For example, BofA compliance officers attempted to write her up on the grounds that she regularly submitted required paperwork later than her male colleagues. A comparative review, done at Goedtel's request, showed that this accusation was false. When Goedtel complained about the discriminatory account distributions, her manager was hostile and took no steps to remedy her complaints. In retaliation, a few weeks later her manager told her to resign after a minor compliance violation and placed excessive and misleading language on her form U5, which all prospective employers in the financial industry obtain from FINRA.
108. As a result of this discrimination and retaliation, BofA constructively discharged Goedtel from her employment with BofA on September 20, 2007. The constructive discharge caused Goedtel to lose income, including her earned commissions for her last month of employment. Goedtel also lost clients and had to start over to build her business.
109. BofA has discriminated against Goedtel on the basis ofher gender by denying her upfront money, business opportunities that directly impacted her compensation, subjecting her to
26

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excessive discipline and inferior terms and conditions of employment, constructively discharging her, and retaliating against her for her complaints of gender discrimination.
110. On or about November 12, 2007, Goedtel filed a charge of discrimination and retaliation with the EEOC. On May 27, 2008, Goedtel received a Notice of Right to Sue from the EEOC. The Tolling Agreement tolled Goedtel's right to sue through AprilS, 2010. Her charge and Notice of Right to Sue are attached to this Complaint as Exhibit 3 and are incorporated by reference.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF
Intentional Discrimination (Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq.)
(On Behalf of All Plaintiffs and the Class)
111. Plaintiffs incorporate the preceding paragraphs as alleged above. 112. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC making classwide claims of discrimination as well as individual claims and have thus exhausted their administrative remedies. 113. Defendants have engaged in an intentional company-wide systematic pattern or practice of discrimination against female FAs. The discriminatory acts that constitute Defendants' pattern or practice of discrimination occurred both within and outside the liability period in this case. 114. Defendants have intentionally maintained a system that perpetuates and increases discrimination against female Financial Advisors by implementing company-wide policies and practices that rely heavily on past performance as a criterion for account distributions, partnership opportunities, compensation, titles, and other terms and conditions of employment,
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and by implementing company-wide policies and practices that are discriminatory, subjective, standardless, and/or arbitrary, and by encouraging branch management and senior management to rely on their personal preferences and stereotypes to favor male FAs with respect to the abovementioned business opportunities. Defendants' discriminatory policies or practices described above have denied female FAs business opportunities and compensation, in the form of lost past and future wages and other job benefits, as compared to similarly situated male Financial Advisors.
115. Defendants have intentionally discriminated against Plaintiffs and the Class by maintaining a pattern or practice of denying business opportunities that directly affect compensation to qualified female FAs on the basis of sex. The foregoing conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by 42 U.S.C. §§ 2000e et seq.
116. Plaintiffs request relief as hereinafter described. SECOND CLAIM FOR RELIEF Disparate Impact Discrimination
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of All Plaintiffs and the Class)
117. Plaintiffs incorporate the preceding paragraphs as alleged above. 118. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC making classwide claims of discrimination as well as individual claims, and have thus exhausted their administrative remedies. 119. Defendants' discriminatory, subjective, standardless, and/or arbitrary policies and practices with respect to account distributions, partnership opportunities, compensation, titles, and other terms and conditions of employment have an adverse impact on female FAs in
28

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violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
120. Defendants' company-wide policies and practices of distributing accounts and other business opportunities, determining upfront money and compensation, awarding titles, and setting other terms and conditions of employment based on FAs' past performance also have an adverse impact on female FAs in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
121. Plaintiffs request relief as hereinafter described. THIRD CLAIM FOR RELIEF Intentional Discrimination
(NYSHRL, New York Executive Law§ 296 et seq.) (On Behalf of Dianne Goedtel and the New York Subclass) 122. Plaintiff Goedtel incorporates by reference each allegation of each preceding paragraph. 123. Defendants have maintained a system that discriminates on the basis of gender with respect to upfront money, account distributions, partnerships, other business opportunities, compensation, titles, and other terms and conditions of employment. 124. Defendants have intentionally discriminated against Plaintiff Goedtel and the New York Subclass in violation ofNYSHRL by, among other things: (a) treating them in a discriminatory manner based on their gender; (b) denying them other opportunities for advancement because oftheir
gender; (c) denying them opportunities for increased compensation because of their
gender;
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(d) providing them with less favorable compensation because of their gender; (e) providing disparate terms and conditions of employment because of their
gender; and (f) failing to examine their workplace to correct gender-biased and
discriminatory policies and failing to address problems of disparate treatment on the basis of gender. 125. The foregoing conduct constitutes illegal, intentional discrimination prohibited by New York Executive Law § 296 et seq.
FOURTH CLAIM FOR RELIEF Disparate Impact Discrimination (NYSHRL, New York Executive Law§ 296 et seq.) (On Behalf of Dianne Goedtel and the New York Subclass) 126. Plaintiff Goedtel incorporates the preceding paragraphs as alleged above. 127. Defendants' discriminatory, subjective, standardless, and/or arbitrary policies and practices with respect to upfront money, account distributions, partnerships, other business opportunities, compensation, titles, and other terms and conditions of employment have an adverse impact on female employees in violation of the NYSHRL and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 128. Defendants' company-wide policies and practices of distributing accounts and other business opportunities, determining compensation, awarding titles, and setting other terms and conditions of employment based on brokers' past performance also have an adverse impact on female FAs in violation of the NYSHRL and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
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129. The foregoing conduct constitutes illegal discrimination prohibited by New York Executive Law § 296 et seq.
FIFTH CLAIM FOR RELIEF Intentional Discrimination
(NYCHRL, New York City Administrative Code§ 8-107 et seq.) (On Behalf of All Plaintiffs and the Class)
130. Plaintiffs incorporate the preceding paragraphs as alleged above. 131. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. 132. Defendants have maintained a system that discriminates on the basis of gender with respect to upfront money, account distributions, partnerships, other business opportunities, compensation, titles, and other terms and conditions of employment. 133. Defendants have intentionally discriminated against Plaintiffs in violation of NYCHRL by, among other things:
(a) treating them in a discriminatory manner based on their gender; (b) denying them other opportunities for advancement because of their
gender; (c) denying them opportunities for increased compensation because of their
gender; (d) providing them with less favorable compensation because of their gender; (e) providing disparate terms and conditions of employment because of their
gender; and (f) failing to examine their workplace to correct gender-biased and
discriminatory policies and failing to address problems of disparate treatment on the basis of gender. 134. Defendants set and/or maintained these discriminatory practices during liability period within the City ofNew York.
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135. The foregoing conduct constitutes illegal discrimination prohibited by the Administrative Code of the City ofNew York§ 8-107 et seq.
SIXTH CLAIM FOR RELIEF Disparate Impact Discrimination (NYCHRL, New York City Administrative Code§ 8-107 et seq.) (On Behalf of All Plaintiffs and the Class) 136. Plaintiffs incorporate the preceding paragraphs as alleged above. 137. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. 138. Defendants' discriminatory, subjective, standardless, and/or arbitrary policies and practices with respect to upfront money, account distributions, partnerships, other business opportunities, compensation, titles, and other terms and conditions of employment have an adverse impact on female employees in violation of the NYCHRL and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 139. Defendants' company-wide policies and practices of distributing accounts and other business opportunities, determining compensation, awarding titles, and setting other terms and conditions of employment based on brokers' past performance also have an adverse impact on female FAs in violation ofthe NYCHRL and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 140. Defendants set and/or maintained these discriminatory practices during liability period within the City ofNew York.
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141. The foregoing conduct constitutes illegal discrimination prohibited by the Administrative Code ofthe City ofNew York§ 8-107 et seq.
SEVENTH CLAIM FOR RELIEF Discrimination
(Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq.) (On Behalf of Judy Calibuso and Julie Moss and the Florida Subclass) 142. Plaintiffs Calibuso and Moss incorporate the preceding paragraphs as alleged above. 143. This Claim is brought on behalf of Plaintiffs Calibuso and Moss and the Florida Subclass. 144. As described herein, Defendants' actions constitute gender discrimination in violation of the Florida Civil Rights Act of 1992 ("FCRA"). Plaintiffs Judy Calibuso and Julie Moss have both timely complied with all prerequisites to sue. They have both filed charges of gender discrimination with the EEOC and the Florida Commission on Human Relations. 145. Plaintiffs request relief as hereinafter provided.
EIGHTH CLAIM FOR RELIEF Retaliation
(Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq.) (On Behalf of All Plaintiffs Individually)
146. Plaintiffs incorporate the preceding paragraphs as alleged above. 147. This Claim is brought by Plaintiffs Calibuso, Moss, and Goedtel individually. Plaintiffs have timely filed charges with the EEOC alleging retaliation claims and have thus exhausted their administrative remedies. 148. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC complaining of Defendants' discriminatory policies and practices.
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149. Defendants took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct.
150. Plaintiffs request relief as hereinafter described. NINTH CLAIM FOR RELIEF Retaliation
(NYSHRL, New York Executive Law§ 296 et seq.) (On Behalf of Dianne Goedtel Individually)
151. Plaintiff Goedtel incorporates by reference each allegation of each preceding paragraph.
152. This Claim is brought by Plaintiff Goedtel individually. 153. Goedtel engaged in protected activities, including making internal complaints of unlawful discrimination and filing a charge with the EEOC complaining of Defendants' discriminatory policies and practices. 154. Defendants took adverse actions against Goedtel with the purpose of retaliating against her because of her participation in protected activities, and Goedtel suffered damages as a result of that conduct. 155. Plaintiffs request relief as hereinafter described.
TENTH CLAIM FOR RELIEF Retaliation
(Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq.) (On Behalf of Judy Calibuso and Julie Moss Individually) 156. Plaintiffs Calibuso and Moss incorporate the preceding paragraphs as alleged above. 157. This Claim is brought on behalfofPlaintiffs Calibuso and Moss individually. 158. Calibuso and Moss engaged in protected activities, including making internal
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complaints of unlawful discrimination and filing charges with the EEOC complaining of Defendants' discriminatory policies and practices.
159. Defendants took adverse actions against Calibuso and Moss with the purpose of retaliating against them because of their participation in protected activities, and Calibuso and Moss suffered damages as a result of that conduct.
160. Plaintiffs request relief as hereinafter provided. ALLEGATIONS REGARDING RELIEF
161. Plaintiffs and the Classes they seek to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief they seek in this action is the only means of securing complete and adequate relief. Plaintiffs and the Classes they seek to represent are now suffering, and will continue to suffer, irreparable injury from Defendants' discriminatory acts and omissions.
162. Defendants' actions have caused and continue to cause Plaintiffs and all Class members substantial losses in earnings and other employment benefits.
163. In addition, Representative Plaintiffs and the Class suffer and continue to suffer humiliation, embarrassment, and anguish, all to their damage in an amount according to proof.
164. Defendants performed the acts herein alleged with malice or reckless indifference. Plaintiffs and Class members are thus entitled to recover punitive damages in an amount according to proof.
PRAYER FOR RELIEF 165. WHEREFORE, Plaintiffs and the Class pray for relief as follows:
(a) Certification of the case as a class action on behalf of the proposed Class and the proposed Subclasses;
(b) Designation of Representative Plaintiffs Judy Calibuso, Julie Moss, and
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Dianne Goedtel as representatives ofthe Class and the New York City Subclass; designation of Plaintiffs Calibuso and Moss as representatives of the Florida Subclass; and designation of Plaintiff Goedtel as representative of the New York State Subclass;
(c) Designation ofRepresentative Plaintiffs' counsel of record as Class counsel;
(d) A declaratory judgment that the practices complained of herein are unlawful and violate 42 U.S.C. §§ 2000e, et seq., and Administrative Code ofthe City ofNew York§ 8-107 et seq., and, with respect to Plaintiffs Calibuso and Moss and the Florida Subclass, the Florida Civil Rights Act of 1992, F.S.A. §§ 760.01, et seq., and with respect to Plaintiff Goedtel and the New York Subclass, the New York Executive Law § 296 et seq.;
(e) A preliminary and permanent injunction against Defendants and their officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs, and usages set forth herein;
(f) An order that Defendants institute and carry out policies, practices, and programs that provide equal employment opportunities for all employees regardless of gender, and that it eradicate the effects of their past and present unlawful employment practices;
(g) An order restoring Plaintiffs and Class members to their rightful positions at BofA, or in lieu of reinstatements, an order for front pay benefits;
(h) Back pay (including interest and benefits) for the Representative Plaintiffs and Class and Subclass members;
(i) All damages sustained as a result of Defendants' conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof;
G) Exemplary and punitive damages in an amount commensurate with Defendants' ability to pay and to deter future conduct;
(k) Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law;
(1) Pre-judgment and post-judgment interest, as provided by law; and
(m) Such other and further legal and equitable relief as this Court deems necessary, just, and proper.
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JURY DEMAND
166. Pursuant to Rule 38(b) ofthe Federal Rules of Civil Procedure, Plaintiffs demand
a trial by jury in this action.
Dated: New York, New York March 30, 2010
By: --~~~---------­ Adam T. Klein (AK 3293) Justin M. Swartz (JS 7989) Cara E. Greene (CG 0722) OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
Kelly M. Dermody, pro hac vice forthcoming Heather H. Wong, pro hac vice forthcoming LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
Rachel Geman (RG 0998) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
Attorneys for Plaintiffs and the Putative Class
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EXHIBIT 1

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 39 of 60

EEOC FORM 131 (5101)
I Susan L. Gray
Sr. Vice President Bank of America 325 E. Street Davis, CA 95616
L

U.S. Equal Employment Opportunity Commission
PERSON FILING CHARGE
Judy E. Callbuso
THIS PERSON (check one or both)
[ ! ] Claims To Be Aggrieved
D Is Filing on Behalf of Other(s)
· _f EEOC CHARGE NO.
51 0·2007.01656 NOTICE OF CHARGE OF DISCRIMINATION
(See the enclosed for additional lnfonnation)

This is notice that a charge of employment discrimination has been filed against your organization under.

[!) Tille VII of the Civil Rights Act

0 The Americans with Disabilities Act

0 The Age Dlsaimlnation in Employment Act

0 The Equal Pay Act

0The boxes checked below apply to our handling of this charge:

1.

No action Is required by you at this time.

02.

Please call the EEOC Representative listed below concerning the further handling of this charge.

~ 3.

Please provide by 26·FEB·07 a statement of your position on the Issues covered by this charge, wllh copies of any

supporting documentation to the EEOC Representative listed below. Your response will be placad In the file and considered as we Investigate

the charge. A prompt response to this request will make It easier to conclude our InveStigation.

[!] 4.

Please respond fully by 26-FEB-D7 to the enclosed request for Information and send your response to the EEOC

. Representative listed below. Your response will be placad In the file and considered es we investigate the charge. A prompt response to this request will make It easier to conclude our Investigation.

D 5.

EEOC has a Mediation program that gives parties an opportunity to resolve the Issues of a charge without extensive Investigation or

expenditure of resources. If you would like to participate, please say so on the enclosed form and respond by

to

•

If you QQJ!IQI wish to try Mediation, you must respond to any request(s) made above by the date(s) specified there.

For further Inquiry on this matier, please use the charge number shown above. Your position statement, your response to our request for infonnation, or any Inquiry you may have should be directed to:

Robert Metaxa, Enforcement Supervisor

EEOC Represenl8Uve

Telephone (305) 808-1750

I2$J Enclosure(~):

Copy of Charge

Miami District Office - 51 0 2 South Biscayne Blvd Suite 2700 Miami, FL 33131

0 0 rn 0 0 0 0 0 0 CIRCUMSTANCES OF ALLEGED DISCRIMINATION

RACE

COLOR

SEX

RELIGION

NATIONAL ORIGIN

AGE

DISABILITY

RETALIATION

OTHER

See enclosed copy of charge of discrimination.

Date
January 25, 2007

Name I Title of Authorized Official
Federico Costales, District Director

(J;(\
Signature

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 40 of 60

~is

form

is

affected

by

CHARGE OF DISCRIMINATION the Privacy Act of 1974; See Privacy Act Statement

b~f~~;tWT.."~'·.-!·e:;·l:..i. rrU,":Cf.

AGENCY QffEPA

thas fonn.

· ,',:·~·•·1i''i\, f •L. EEOC

CHARGE NUMBER

NAME (indicale Mr.. Ms. or MJJ.)
Ms. Judy E. Calibuso

HOME TELEPHONE (incluclo area code)
Home (305) 827-6776

STREET ADDRESS

CITY. STATE AND Zll' CODE

DATE OF BIRTH

7539 NW 1751h St.

Miami FL 33015

NAME OF THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHII'Uo~,.-•

EE, STATE OR

LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME If more than one, lisa below.

NAME

NUMBER OF EMPLOYEES. MEMBERS

TELEPHONE (Include arm cot/4)

Bank of America
STREET ADDRESS

CITY.STATEANDZIPCODE

Cat. D (500+)

(800) 432-1 000
COUNTY

DRACE OCOWR

0 REUGION 0 NATIONAL ORIGIN

0 RETAUATION

0 DISABIUTY 0 OTHER (specify)

THE PARTICULARS ARE (Ifadditional 6fKI" i1 IIHded, nttncl1 extm 3l~eet(3)):

DATE DISCRIMINATION TOOK PLACE

EARLIEST

LATEST

1997 - Present

0 CONTINUING ACTION

L

Overview of Allegations

1.

This sex discrimination charge is filed on behalfof myself, Judy E. Calibuso, and all others similarly situated.

Like other female employees ofBanc of America Investment Services, Inc. (hereafter "BofA"), I have been harmed by a continuing pattern

and practice or policy ofsex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,

and Fla. Stat. § 760.10.

ll. Work History

2.

I was hired as a Financial Adviser by Barnett Bank in June, 1995, which later became BofA. I am still employed

by BofA as a Financial Adviser in its Brickell office in Miami, Florida.

• I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies ifl change my address or telephone number and cooperate fully with them in the processing of my charge in accordance with their procedure.
I declare under penalty ofperjury that

for State and Local Requirements)

Dale /

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 41 of 60

Judy E.Calibuso Charge of Discrimination

The Particulars Are (continued):
IU. Claims

3. Compensation and Promotion: I believe that I have been denied compensation and extra bonuses made available to similarly-situated male employees.

BofA routinely distributed business opportunities, including accounts from departing and retiring brokers, referrals, leads, and potential clients, and more advantageous partnerships with different departments within BofA, to male Financial Advisers rather than to female Financial Advisers. As a result of the inequitable and discriminatory distribution of accounts and account prospects, female Financial Advisers have diminished income potential and diminished actual income as compared to similarly-situated male employees.

For example, in December 2006 two male Financial Advisers in the Private Bank division left BofA, )which assi1g1ed half of their book of accounts to the brokerage retail level in whic~ I work. BofA gave all of these accounts totwo male Financial Advisers, both of whom had already received substantial accounts from BofA earlier that year. BofA did not assign any ofthese accounts to the designated Private Bank Financial Advisor, who is female. She had asked BofA for these accounts and explained that she already knew and serviced these clients, but BofA told· her that it would not assign her any ofthese accounts.

In another example, in September 2006, I met with my manager and asked for fee-based accounts,

since BofA did not give me any earlier that year when several brokers left. My manager told me that he did not have

any fee-based accounts to give me, but that ifhe did, he would give them all to a specific male broker. Several

weeks later, I learned that my manager had distributed fee-based accts from the departed brokers to three male1

brokers.

·

By denying compensation to me that was made available to similarly-situated male Financial Advisers, BofA has also denied me promotions, extra bonuses, and stock options, which are awarded based on a Financial AdViser's level ofcompensation.

IV. Class Claims

4. It is my understanding and beliefthat BofA has engaged in a continuing pattern or practice of discrimination against female Financial Advisers with respect to compensation, business allocation, and other terms and conditions ofemployment in the downtown Miami, Florida office and at other BofA facilities.

5. I would like this charge filed with the EEOC and the Florida Commission on Human Relations. I swear under penalty of perjury that I have read the above charge and that it is true and correct to the best ofmy knowledge, infollilation and belief.

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 42 of 60

EEOC FORM 131 (5101)

U.S. Equal Employment Opportunity Com' mission

I Vincent Castle Employee Relations Manager
BANK OF AMERICA
101 s. Marengo Ave, 3rd Floor
Pasadena, CA 91101

PERSON FILING CHARGE
Jud_X_E. Callbuso
DTHIS PERSON (check one or both) Claims To Be Aggrieved D Is Filing on BehaU of Other(&)

L

_j EEOC CHARGE NO.

510-2008.02882

NOTICE OF CHARGE OF DISCRIMINATION
(See the enclosed for addftlonallnfonnaUon)

[!] D This Is notice that a charge of employment discrimination has been filed against your organization under:

nue VII of the Civil Rights Ad

The Americans with DisabUilles Act

0 The Age Discrimination In Employment Ad

0 The Equal Pay Ad

0The boxes checked below apply to our handUng of this charge:

1.

No acUon Is required by you at this time.

02.

Please call the EEOC Representative listed below concerning the further handling of this charge.

[!! 3.

Please provide by 26-MAY.08 a statement of your position on the Issues covered by this charge, with copies of any

supporting docu'nentallon to the EEOC Representative Ustad below. Your response wiU be placed In the file and considered as we iwestigate

the charge. A prompt response to this request will make It easier to conclude our Investigation.

~ 4.

Please respond fully by 26-MAY.08 to the enc:loaed request for Information and send your response to the EEOC

Representative Usted below. Your response will be placed In the ftle and considered as we Investigate the charge. A prompt response to this

request wiU make It easier to conclude our Investigation.

D 5.

EEOC has a Mediation program that gives parties an opportunity to resolve the Issues of a charge without extensive Investigation or

expenditure of resources. If you would like to participate, please say so on the enclosed form and respond by

to

If you DQllQI wish to try Mediation, you must respond to any request(s) made above by the date(s) specified there.

For further Inquiry on this matter, please use the charge number shown above. Your position statement, your response to our request for Information, or any Inquiry you may have should be directed to:

Robert Metaxa,
Enforcement Supervisor

EEOC Repre..nletlve

Telephone
Enclosure(&): ~ ~PY of Charge

(305) 808•1750

Miami District Office 2 South Biscayne Blvd Suite 2700 Miami, FL 33131

CIRCUMSTANCES OF ALLEGED DISCRIMINATION

D 0 D D D D D []g D RACE

COLOR

sex

RELIGION

NATIONAL ORIGIN

AGE

DISABILITY

RETALIATION

OTHER

See enclosed copy of charge of discrimination.

Dale
April 24, 2008

Name I TIUe of Authorized Oftlclal
Federico Costales, District Director

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 43 of 60
Judy E.Calibuso Supplemental Charge of Discrimination
The Particulars Are (continued):
BofA Has Denied Me Business and Promotional Opportunities. 4. In late March 2007, I learned that Respondent partnered several FAs with BofA's Private Bank in order to help both FAs and Private Bank Relationship Managers grow their respective businesses, thereby increasing each partnered FA's total compensation and production. Among the FAs partnered were Doug Swartz, Eddie Fazzah, Yvette Sanchez (a female FA who has not, to my knowledge, filed a complaint about discrimination), and Mike Cannegieter. (Several months earlier, my prior manager partnered Scott Huffinan and Silvano "Siby'' Vizoso with Private Bank).
5. In or around April 2007, I talked to a colleague, Leo Porcella, about the partnerships. Leo told me that he asked my manager, Pilar, why BofA did not partner me with anyone since I was more senior and more experien~ than most ofthe FAs selected. Pilar responded ''because Judy has issues." At the time I had an unblemished disciplinary record during my 12 years with BofA and its pred~essor. Given my clean record with the company and the proximity in time to the filing ofmy discrimination charge, I believe that Pilar was referring to my EEOC charge when she told Leo that I had '''issues."
6. In August 2007, BofA selected a less experienced male, Oti Roberts, instead ofme for a position, Private Client Manager, in Private Bank that I applied for despite the· fact that I met most of the ''preferred" qualifications outlined in the job posting. During my interview for the position, the interviewer, Tanya Scavuzzo, asked about
· my recent low production numbers. I told her they were the result ofdiscriminatory account distributions stemming in part from my charge ofdiscrimination.
"1. Pilar has denied me the same opportunities to partner with Client Managers ("CM'') that she has given other FAs. Pilar has partnered most other FAs with three to five CMs. Until'October 2007, I had only one Client Manager. Pilar finally partnered me
With one more CM after the CM requested to partner with me. As a result I have not
had the same opportunities for business referrals or shared revenues as other FAs.
8. Pilar has excluded me from meetings involving my own accounts. In October 2007, she did not invite me to a lunch that she organized for one of BofA's Commercial Banking advisors, Oonzalo Dequesada, and several FAs from our office to help . promote cross referrals for investments. Pilar invited other FAs who service accounts covered by Oonzalo. Pilar also invited Ivette Sanchez, who, to my knowledge, does not share any accounts with Oonzalo or in his niche market. Even though I share one of my biggest accounts with Gonzalo, Pilar did not invite me to the lunch.
2

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 44 of 60

9. Despite my repeated requests, Pilar has not distributed unassigned accounts from departed FAs to me. In the Fall 2006, I completed a two-month project researching and compiling BofA "orphan" annuity accounts, i.e., accounts that had not been reassigned from departed FAs. At the time I began working on the project, my thenmanager and I agreed that most of the large accounts would be reassigned to me. To date, Pilar still has not assigned me those accounts. Because Pilar has refused to assign me the accounts, totaling approximately $120 million in annuity assets, I have lost out on significant opportunities for additional revenue production.

BofA Has SubJected Me to Harsher Rules and Compliance Standards.

10. On several different occasions, BofA required me to follow burdensome approval

procedures before performing routine activities that other FAs were not required to

follow and that I had not been required to follow before filing my discrimination

charge.

·

a. In one instance, I planned to give another branch manager, Clayton Williams, two tickets to a basketball game to thank him for an account referral. My sales assistant asked Operations Manager, Michelle Queen-who reports to Pilar, to approve all ofmy outgoing mail, which included the tickets. When Michelle opened the mail and saw the tickets, she told my sales assistant that Pilar had to approve the gift before it could be sent out. By the time Michelle returned the tickets with Pilar's approval, it was too late to. deliver them to Mr. Williams. I know ofothers who have given gifts for referrals without preapproval. For example, male FA Manny Fernandez' gave a branch manager tickets to the same game without pre-approval. Similarly, male FA Scott Huffman has given theater tickets and other gifts to BofA employees who referred business to him.
b. In another instance in April 2007, I planned a luncheon with several select relationship managers from different lines ofbusiness and advisors from Private Bank and Commercial Banking to meet.with John Prescott, a BofA insurance specialist. 1 When Pilar learned about the luncheon the night before, she told me to cancel it because I had not submitted any pre-approval or written request for a seminar type offunction. She said that regional manager Steve Imus would not approve it. Both John and I 8poke with Steve late that evening and provided details about the planned event to assure him that the luncheon did not violate any compliance rules. Steve said he did not .see any problems with that and that he would give his final approval early morning the next day. The following morning, I could not reach Steve. At or around 10:30, Pilar called me and said that after 4aving a conference call with

1 Private Bank and Commercial Banking manage high net worth clients and are a source of high revenueproducing account referrals. BofA encourages FAs to establish relationships with various departments to encourage "Partn,ersbip For Growth ("PFG''), especially between CMs and advisors from Private Bank and Commercial Banking. CMs and FAs work together to best meet the full range of the client's financial needs to keep clients from taking their business (or some portion of it) to a competitor.

3

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 45 of 60
regional management, she decided that she was not comfortable with the luncheon and that she decided not to approve it. The luncheon, scheduled for 12:30 that day, did not happen.
c. In contrast, on the same day, I am aware of at least two male FAs who organized two separate group luncheons with wholesalers without any preapproval or written request. Mike Cannegeiter and Manny Fernandez, along with some other male FAs, were leaving the Brickell office for a lunch they planned with two different outside wholesalers. A couple of client managers from BofA's Premier Client group also attended. Pilar and Michelle stopped Mike and the other FAs at the elevator and asked where they were going. When Mike told Pilar that they were ~ng referral sources to lunch, Michelle told them that they needed pre-approval for the lunch. Mike told them, ''Ok, I'm asking for pennission now!" Pilar gave her approval on the spot and Mike and the rest of the group left for lunch. Adding insult to injury, the male FAs went for lunch at the same restaurant where I planned to have my luncheon.
11. On May 14, 2007, I asked Pilar, and regional management, for approval toreschedule my luncheon. I was told to get approvals from all department heads-a time-consuming process. I then had to go through another round ofapproval from upper level management. Anne Curtis, one ofthe top compliance executives, finally · approved the lunch. She said that it was ridiculous that I had to go through this for a luncheon promoting PFG, partnership for growth, (a BofA iirltiative encouraging interdepartmental collaboration), given that no clients, only internal. employees, would be attending. After receiving Ms. Curtis's approval on May 23m, BofA still required me to get Pilar's final approval. She did not give me her approval until only several days before the planned event.
12. Pilar issued me an undeserved reprimand letter in OctOber 2007. Pilar. claimed that I had not followed procedure regarding a client referral to BofA's Private Bank. There was no basis for her claim because I told her about the client. I emailed her the necessary forms and asked her to see if she would approve it i~ order to allow me to share revenue with the Private Bank advisor for my referral. As with the incidents .described above, Pilar denied my request. As a result, I did not receive any revenue or. compensation for the business that I referred. Nonetheless, Pilar required me to attend a "coaching session" with her and the manager from the Private Banking group. The reprimand letter was my first in my 12-year tenure with the company. Again, I believe Pilar applied stricter rules to me in retaliation for my charge.
13. The above is non-exhaustive list ofthe retaliatory treatment I have been subjected to in violation ofTitle VII. Time and again I have been singled out, denied opportunities, and treated more harshly than other FAs.
4

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 46 of 60 14. As with my original charge, I would like this charge filed with the EEOC and the Florida Commission on Hmnan Relations. I swear under penalty ofpetjury that I have read the above charge and that it is true and correct to the best ofmy knowledge,· information and belief.
5

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 47 of 60

:>C Form 161·8 (3198)
Judy E. CaUbuso
7539 Nw 175th St Hialeah, FL 33015

U.S. EQUA. .MPLOYMENT OPPORTUNITY COMMISSIOll..

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

From:

Miami District Office 2 South Blacayne Blvd Sulte2700 Miami, FL 33131

D

On behalf ofpeiSOII(s) Qrieved whose ldenUty Is

CONFIDENTIAL (29 CFR §1601.7(a))

:oc Charge No.

EEOC Representative

Telephone No.

0-2007-01656

Katherine E. Gonzalez, Investigator

(305) 808-1766

nee TO THE PERSON AGGRIEVED:

(See also the additional Information enclosed with this form.)

e VII of the Civil Right& Act of 1964 and/or the Americans with Disabilities Act (ADA): This Is your Notice of Right to Sue, issued

ler Title VII and/or the ADA based on the above-numbered charge. It has been Issued at your request. Your lawsuit under Tille VII or

ADA must be filed In a federal or state court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this

1rge will be lost. (The time limH for filing suit based on a state claim may be different.)

·

[ ! ] More than 180 days have passed since the filing of this charge.

D
[!]

Less than 180 days have passed since the filing of this charge, but I have c be able to complete Hs administrative processing within 180 days from the fil ,~...,

The EEOC is terminating Its processing of this charge.

::t-

D

The EEOC will continue to process this charge.

1closures(s)

On behalf of the Commission
~--:

-~~ n..,w&-- - ·-(Dflte

Acting Director

7004 2510 ODD 'I 9478 4],73 .....-.

VIncent Castle Employee Relations Manager BANK OF AMERICA 101 S. Marengo Ave., 3rd Floor Pasadena, CA 91101

PiperHothnan, Esq.
Outten & Golden LLP 3 Park Avenue, 29th Floor New York, NY 10018

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 48 of 60
EXHIBIT 2

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 49 of 60

'.
•'

CHARGE OF DISCRIMINATION

This fonn is affected by the Privacy Act of 1974; See Privacy Act Statement before com letin this form.

AG:Bl'4CY CHARGE NUMBER

NAME (indicate Mr., Ms. or Mrs.)

Ms. Julie Moss

STREET ADDRESS

CITY, STATE AND ZIP CODE

HOME 1BLEPHONE (include area code)
850-8934603 DATE OF BIRTH

3911 Leane Drive Tallahassee, Florida 32309

NAME OF THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY

APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENr AGENCY VYHO

DISCRIMINATED AGAINST ME If more than one, list below.

NAME

NUMBER OF EMPLOYEES, TELEPHONE (include area

MEMBERS

code)

Bank of America Investment Services, Inc.

(800 432-1000

STREET ADDRESS

COUNfY

Bank of America Co rate Center, 100 N. T on St., Charlotte, NC 28255 · CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es))
o RACE o COLOR • SEX o REUGION o NATIONAL ORIGIN • RETALIATION o AGE o DISABILITY o OTHER (specify)
THE PARTICULARS ARE (Ifadditional space is needed, attach extra sheet(s~):

DATE DISCRIMINATION TOOK PLACE EARLiEST LATESf' 2004 -Present o CONTINUING ACTION

Please see attached.

•· I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or telephone number and cooperate fully with them in the processing of my charge in accordance with their procedure.

NOTARY -(When necessary for State and Local Re · men ·

I declare under penalty of perjury that the foregoing is ~e and correct.

so~.. LTeOsBliEeFvO. RGEoMdwEin
·Commission t 0057893
Expires July 30, 2010
llotldlllfnlrFIIn·....._.,llll.~

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 50 of 60
Affidavit ofJulie K. Moss Moss v. Bank ofAmerica Investment Services. Inc.
1. This gender discrimination and retaliation charge is filed on behalfof me, Julie K. ·Moss, and others similarly situated. Like other female employees ofBank of America Investment Services Inc. (hereafter "BofA"), I have been
harmed by a continuing policy, pattern or practice ofsex discrimination in violation of Title vn ofthe Act, codified
as Subchapter VI of Chapter 21 ofTitle 42 ofthe United States Code, 42 U.S.C. § 2000e[l] et seq., and Fla. Stat. § 760.10.
2. I was hired by BofA on March 15,2003, as an Assistant Vice President/Financial Advisor.
3. I believe that BofA denied me compensation and extra bonuses that it made available to similarly-situated male employees. BofA routinely distributed business opportunities, including accounts from departing brokers, referrals, leads, potential clients, and more advantageous partnerships with different BofA departments, to male advisors rather than to female advisors. For instance, when Joan Bavi left (as a result ofharassment and discrimination by her supervisor, Joe Carrington), BofA allowed Rick Abbott to choose the accounts he wanted from her book ofbusiness. When Lara Burdack switched from BofA investments back to the bank side ofthe business as a premier partner, she made a spreadsheet ofher clients and who she thought would be the best fit for them (Rick Abbott, Michael Schaeffer, or me). Bank ofAmerica investments is a subsidiary ofBank of America. Mr. Carrington, Market Director, disregarded her input and gave almost all the fee-based clients and the annuity clients with large trails to Rick Abbott.
4. In March 2006 Mr. Carrington hired Michael Schaeffer from AG Edwards. Mr. Schaeffer had been a very
small producer at AG Edwards, where he handled in-house accounts that were so small that no one else wanted them.
When Mr. Schaeffer anived, Mr. Canington forced me to move out ofmy primary downtown office. At the time, I was in first place with the highest revenue in the Tallahassee market. BofA made me move into a smaller office
downtown and forced me to buy my own desk. According to Lewis Fogel, Senior Vice President, Senior Regional
Investment Executive, and Mr. Carrington's supervisor, I am the only Financial Adviser in his region who was
forced to buy my own desk. When I left BofA in October, 2006, I was still number one in the Tallahassee Market;
my revenues/production for the previous 12 months was $335,000.
5. On June 13th, 2006, I contacted BofA's human resources department (''HR.") and filed a claim of gender discrimination and hostile work environment. I told HR that I feared for my job, that Mr. Carrington was intentionally harassing me and interfering with my production, and that all ofthe stress was making me physically ill. A meeting was set for July 11, 2006 in·Jacksonville. To my dismay, HR. was not present at this meeting. The only people in attendance were Mr. Carrington, Mr. Fogel, and me. I believe that this meeting was retaliation for my complaint
6. Mr. Fogel finally reimbursed me for the desk I had to buy after I brought it to his attention at the July 11, 2006 meeting. There were many similar occurrences.
• I was told I would have to call Mr. Carrington for preapproval to expense office lunches. For three years, I just filled out the expense report and did not have to speak with Mr. Carrington. To my knowledge no one else had to call for preapproval.
• It took two months to get the phone set up at the new primary office Mr. Carrington had forced me into on Monroe Street, causing unease with my clients.
• Mr. Carrington questioned trades and required me to call him for ~pproval for trades. I had been in the business for seven years at that point, with no customer complaints, n'o questionable trades, and a clean U-4.
7. At the meeting on July 1.1, 20%; with Mr. Carrington and Mr. Fogel, tytr. Carrington informed me that I had
two weeks to move out ofthe smaller ~ffice downtown on Monroe Street, wJVPIJ was blatant retaliation. I bad spent
. '

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 51 of 60
J~. •0\) decorating it to try and make it not appear to my clients that I had been demoted since it was smaller office dlail the office Mr. Carrington forced me to give to Mr. Schaeffer.
8. BofA has also retaliated against me by threatening to come after me and my new employer (Morgan Stanley) ifI file this EEOC complaint I will provide a copy ofthat document as well.
9. BofA required Financial Advisers opening accounts for clients who had more than a certain net worth to go through the firm's Private Bank. Male employees were told to falsify documents to open accounts without going through the Private Bank, and did not suffer negative consequences for falsifying the documents and violating BofA's policy. For instance, on October 5th, Rick Abbott was told to falsify documents to open an account without going through the Private Bank. The client's name was Mark Clark as executor for James Clark. (Mr. Carrington's assistant, Matt Glass, instructed Mr. Abbott to falsify the documents. Witnesses to this incident include Nancy Thomas, Registered Assistant; Lara Burdack, Vice President at Bank ofAmerica; Yvonne Solario, Premier Market Manager for Tallahassee; and Carol Gallant, Vice President Private Bank at BofA. Ms. Gallant witnessed other similar incidents as well.) In contrast, I completed such documents truthfully and did not try to circumvent the . Private Bank, but I was investigated and yelled at, and Mr. Carrington threatened to take my production that I generated from one particular high-value account.
10. BofA's discrimination and retaliation against me was extremely stressful and caused me health problems. Through this misconduct BofA constructively discharged me, forcing me to resign effective October 27, 2006. It is my understanding and beliefthat BofA has engaged in a continuing pattern or practice ofdiscrimination againSt female financial advisors with respect to compensation, business allocation, and other terms and conditions of employment Upon information and belief, the following individuals witnessed this discrimination or have information relevant to this claim:
• Joan Bavi (239)-287-4653, (239)-352-5625- witnessed Mr. Carrington's discrimination against female Financial Advisers.
• Lara Burdack (850)-907-3144- witnessed Mr. Carrington's discrimination against women. • Jeri Winkleblack (850)-561-1737- witnessed BofA forcing me out ofmy office twice. • Andrea Morris (850) 561-1774- witnessed BofA forcing me out of my office twice. • Carol Gallant (904) 608-4770- witnessed discrimination against fenuile Financial Advisers. • Amy Lynn (former Financial Adviser)- witnessed Mr. Carrington's favoritism toward male Financial
Advisers. • Kristin Harrison (850) 561-1776- worked in the same complex as Mr. Carrington in Jacksonville and
witnessed his treatment ofwomen.

. Case '·

2:10-cv-01413-JFB

-MLO

Document 1

Filed 03/30/10 Page 52 of 60

11. I would like this charge filed with the EEOC and the Florida Commission on Human Relations. I swear
under penalty and perjury that I have read the above charge and that it is true and correct to the best of my
knowledge, information and belief.

Date

Notary 1c
:l'' ~ ~ Leslie V. Godwin
:.. •• Convnlssion # 00578939 Expires July 30,2010
IWM....,Pifi•IIIIIINQ,IM. HNRoTOtt

Date

-('

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 53 of 60

EEOC Form 161.fl (3196)
To: Julie Moss ·3911 Leane Drive Tallahaesee, FL 32309

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

From:

Q· Miami District Office EJ~IE!fll 2 South Biscayne Blv
Suite 2700
y Miami, FL 33131

jlJ;\ 19 2008

D

On behalfofperson(s) aggrieved whose Identity Is

CONFIDENTIAL (29 CFR §1601. 7(a))

EEOC Charge No.

EEOC Representative

Telephone No.

510-2007-03174

Katherine E. Gonzalez, Investigator

(305) 808-1766

(See also the additional/nfonnation enclosed with this form.)
NoncE TO THE PERSON AGGRIEVED:
Title VII of the.Civil Rights Act of 1964 and/or the Americans with Disabilities Act (ADA): This is your Notice of Right to Sue, issued
under Title VII and/or the ADA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII or
the ADA must be filed in a federal. or state court WITHIN 90 QAYS of your receipt of this notice; or your right to sue based on this
charge will be lost. (The time limit for filing suit based on a state claim may be different.)

[ ! ] More than 180 days have passed since the filing of this charge.

D
[!]
D

Less than 180 days have passed since the filing of this charge, but I have determined that It is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of this charge.
T~e EEOC is terminating its processing of this charge.
The EEOC will continue t~ process this charge.

Age Discrimination In Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was flied until
90 days after you receive notice that we have completed action on the charge. In this regard, the paragraph marked below applies to

yourcase:

·

D

The EEOC is closing your case. Therefore, your lawsuit under the ADEA must be filed In federal or state court~

90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above-numbered charge will be lost.

0

The EEOC is continuing its handling of your ADEA case. However, if 60 days have passed since the filing of the charge,

you may file suit in federal or state court under the ADEA at this time.

Equal Pay Act (EPA): You already have the right to sue under the EPA (filing an EEOC charge is not required.) EPA suits must be brought in federal or state court within 2 years (3 years for willful violations) of the aDeged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 vearsl before you file suit may not be collectible.

If you file suit, based on this charge, please send a copy of your court complaint to this office.

Enclosures( a)

cc:

Annette Torres

Steams Weaver Miller

Museum Tower, Ste 2200

150 West Flagler street

Miami, FL 33130

JUN 1~·7 zooa
(Date Mallscf)
Outten & Golden LLP 3 Park Avenue, 29th Floor New York, NY 10016

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 54 of 60
EXHIBIT 3

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 55 of 60

•ft
CHARGEOF DISCRIMINATION

AGENCY CHAR-GE NUMBER

This form is affected by the Privacy Act ofl974;. See Privacy Act . Statement before completiilg this form.

cFEPA
•EEOC

i~ e; J..t1ot CJCJJ"t/~

New York State Division gfHumm~ Relatigns and EEOC State or local Agency, ifany

NAME (indicate Mr., Ms. or Mrs.)

HOME TELEPHONE

Ms. Diimne Goedtel

(include area code)

516-991-5733

STREET ADDRESS

CITY, STATE AND ZIP CODE

DATE OF BIRTII

35 Stewart Circle N., Cen -'1. NY 11720

NAME OF THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY

APPRENTICESHIP COMMI'JTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO

DISCRIMINATED AGAINST ME (Ifmore than one, list below.)

NAME

NUMBER OF EMPWYEES, TELEPHONE (include area

MEMBERS

code)

Bank ofAmerica Investment Services, Inc.

Cat. D (500+)

(800) 432-1000

STREET ADDRESS

CITY, STATE AND ZIP CODE

COUNTY

Bank ofAmerica Corporate Center, 100 N. Tryon .84 Charlotte, NC 28255.
CAUSE OF DISCRIMINATION BASED ON (Check approprlflle box(es))
cRACE cCOWR •SEX oRELIOION c NATIONAL ORIGIN • RETALIATION cAGE c DISABILITY o OTHER (specify)
THE PARTICULARS ARE (/fadditional space is needed, attach extra sheet(s)):

DATE DISCRIMINATION TOOK. PLACE EARLIEST 2/3/06 LATEsT 10/4/06 . o CONfiNUING ACTION

Please see attached.

• I want this charge filed.:witb. both.the.EEOC aDdthe State or local Agency, ifany. I will advise the agencies ifI change my address or telephone number and cooperate fully with them in the processing ofmy charge in accordance with their procedure.

I declare imder penalty ofperjury that the foregoing is true and correct.

l \bJ..Vll
Date.
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Case 2:10-cv-01413-JFB -MLO Document 1

Filed 03/30/10 Page 56 of 60
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Affidavit of Dianne Goecltel
Qoedtel v. Bank ofAmerica Investment Services. Inc.

'--------1 ·-
EEOC-NYDO-CRTIU-

1. This sex discrimination c~e is til~ on behalfofmyself, Dianne Goedtel, and others similarly situated. Like other female employees ofBank ofAmerica Investment Services.Inc. (hereafter "BofA"), I have been banned by: a continuing policy, pattern or practice ofsex discrimination in violation of Title vn, 42 U.S.C. § 2000e[ll et seq., and.the New .York State HWllBB Rights Law, New York Executive·
Law § 296 et seq. ("NYSHRL'').
2: I began working at Bo~ as a Financial Adviser (''FA") on February 3, 2006, in the
Melville, Long .Islatid offiee. A.part :from my first few months at BofA, I was the only
female FA ODt of approximately 15 FA's in the Melville office. J believ.e I was also the only newly-hired FA in all ofLong Island who was female.

3. Josh Nagel, who had been my manager at Smith Barney, recruited me from there to BofA. In his process ofrecruiting me· to BofA from Smith·Barney be saidthat BofA was offering a forgivable draw and would assign to me any assets that were not currently assigned to an FA, e.g. assets from departing FA's. BofA did not give me any "upfront'' money because, according to Mr. Nagel, I had not been in the business long enough or accumulated enough assets to bring over from my previous firm.
4. While working at BofA I have seen the company give upfront money to four new
male FA's, three ofwhom brought less in assets to BofA than I did and one ofwhom . had been in-the-business for less -time thaa I.had whea l.came to BofA. I was the only .one ofall the newly-hired FAs on Long Island who did not get a check upftont.

5. · Most firms in the financial industry use a software program called Reuters. I had access to Reuters wbile working at Smith Barney and requested it when I joined BofA. At first BofA gave me access to this program, which was necessary to my business. BofA also gave Reuters access to the four new male FA's.

6. The day after my six-month anniversm:y at BofA, in August 2006, Mr. Nagel and Frank Casali told me that BofA was revoking my access to Reuters. Instead it gave me gQneric software that lagged 20 minutes behiiut Reuters, which hurt my business.

7. Mr. Nagel told me tbatBofA provided Reuters.to "new FA'.s"for only six D10J1ths unless their commissions exceeded a certain level. BofA did not revoke any male FA's Reuters access: I told Mr. Nagel, Mr. Casali, and FA?s Ira Kaf:4 Jason Latorre, and Bob Mermin, among others, that this was not fair. Mr. Nagel said that my
commissions were not high enough for me to access Reuters. I asked him why BofA did not revoke Reuters ac4SCSs for FA's Gary Leventhal, Robert ·Perconte, Mr. Latorre, ·. or Mr. Mermin, all ofwhom bad lower commissions than I did. Mr. Nagel responded that he was not looking at all commissions, just equity commissions. I asked Mr. Nagel's assistant, Mr. Casali, to show me the equity commissions ofthe other FA's,

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 57 of 60

and found that Messrs David Boliver, Lev~ Latorre, and Mermin's equity commissions were all lower than mine•

.S. A short time after BofA revoked my Reuters access, I walked into the office one
morning and noticed that all the FAs' offices had new flat-screen 1V's -except mine. I went to Mr. Casali and had-asked where my TV was. He· said they had
forgot;ten about me. Still he did not order a TV for my office. Instead, I had to spend
halfofmy work day getting.my name on the list and contacting people·to get a TV, as well as the technician. an~ cable company to set it up.

9. BofA's·complianee employees in·the·Melville-oftice,.Jim &bry and Dana Brandes, ·

discriminatecl against me based on my gender. Mr. Bebry and Ms. Brandes held me

to higher standards and tEeated me mom rudely than my male C01JDtel'parts. This

disparate treatment was apparent to others; Mr. Latorre even asked me why

compliance treated me so differently and was tougher on me.

·

10. In or around Januaey.2007.Bill-Bellow..took..ov.cr..as.my manager. Jn.or around June
2007, Mr. :Qellow told me that he bad to write me up pursuant tO ~ons from the compliance department because.! had h&tlded.in. an:.internal breakpoint worksheet one
day late. I knew from conversations with other FA's that many ofthem routinely
handed in the same form much later than one day. Mr. Bellow said that be thought it was harsh to write me up for·tbis, but saidhe had no choice. I told Mr. Bellow that I would not sign the write-up unless he wrote up all the male FA's who banded in
internal breakpo.int worksheets late. ·:Mr· Bellow said tbQt. the compliance workers told blm. thw felt that I always handed papers in late and made excessive errors. This was false. i: asked that compliance and Mr. Bellow review all of~;UY forms,and 1rades,
and ifafter that review they still felt that I made excessive errors, then I would sigti
the write-up. Cemplianee.and :wr..BeiJGw.-speat.abeutGBC-month.t"eViewilig my
forJllS and transactions and found no basis to write me up.

11. Nevertheless, the compliance workers continued to treat me more harshly than the male FA's. This created a very tense environment that made~ anxious.

.12. Aro~ this time two FA'~ John Abrams and Chris Affinita,.left BofA and Mr. Bellow distributed their assets to the remaining FA's. He gave me some oftheir accounts, .but I.receiv~.fewer.assets than many-male FA~s.did.and I received.almost no fee.-based accounts, which are the most lucrative. .

13. A few months later, FA Oary Leventhal departed. Mr. Bellow said that he would

distribute Mr. Leventhal's accounts to the five FA's who produced the highest

revenues from fee-based accounts. Before the distribution ofMessrs Abrams and

Affinita's accounts I was among the top five fee-based producers. By banding over a

number offee-based aecmmts to male FA's David Morrissey and Chris Axelson,

however, Mr. Bellow pushed me out ofthe top five fee-based producers. He did not

giv.eme any ofMr. Leventhal's accounts.

·

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 58 of 60

14. As soon as I learned of.this distribution I complained.to.Mr. Bellow that it was his assignment offee-based accounts to Messrs. Morrissey and Axelson that pushed me out ofthe top five fee,.based ~.·· lalso complainedabout how few. accounts b,e distributed to me from Messrs. Abrams and Aftinita.

· IS.

After I complained to Mr•. Bellow, he crit;ic~ me to Mr. Katz. saying that I was a
"spitfire" because I complained. BofA did assign me some accounts the next time an FA left.

16. On or around Septeni.ber 20, 2007, Mr. Bellow told me to resign because ofan error

in jUdgment that I made in completing a form for compliance~ I follOwed his orders.

The form in question·was a·disclosure.form·for-amutual.fund. 1 bad a disclosure

form that mY. clie.{lt had completed and signed. We were allowed to use copies of

signed disclosure forms as long as the client knew about it. I used a copy ofa forin

and changed the date, but I did not-discuss it with my client because I bad not yet

placed a trade based on that form.

·

17. Mr. Bellow said that the worst language BofA would put on my US would be that I resigned "pending an investigation." He said that BofA would not mention anything ~ut falsification·ofdoemnents,·beeause-tbat· would-be-excessive-gi¥en tbe error I
mad~.
wrote 18. BofA on my US: "internal investigation was ongoing at time oftermination
regarding management being made aware ofone instance offalsification of documentation. Internal investigation completed on 9fl6/2007. Confirmed that this incident as well as one additional incident did involve falsification of documentation." By tamishitlg my US with this excessive and misleading Jangna.ge, BofA ~me severe anxiety. I was out ofwork for six weeks because potential employers were put offby the language- on my US -several told-me-tbatthey.could not hire me because ofthe language BofA put on my US. During an interview with one po~ employer, the interviewer said they could not understand why BofA would put such harsh language on my US. I believe that BofA put this language on my US in retaliation for my complaints about compliance treating me more barsbly than male FAs.

19. BofA withheld 2S% ofFAs' commi~ions until three :tnonths after they were earned; because ofthis policy, when my employment ended BofA failed tQ pay me $10,000 that I had earned, andin-additioD.did oot.,pay.maaay-of.the .commissiGQS.I.eamed.in
September.

20. As a result ofthe termination ofmy employment with BofA I have lost clients, and have to start over to build my business. BofA's treatment of me and the resUlting ~to my business has caused me severe emotional distress.

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 59 of 60
21. I believe that the conduct described above is part ofa pattern and practice of discrimination against female FA's at BofA. I believe that BofA routinely
discriminates against female FA's With respect to pay, business opportunities, and
other terms and conditions ofemployment. 22. By engaging in the conduct described herein, BofA has violated Title vn ofthe Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and other laws by intentionally
discriminating against me and other women and implementing policies and practices that had a disparate impact on me and other women. 23. The above description is a short summary ofthe circumstances ofmy employment
and is not intended to be an exhaustive recitation ofthe facts.
24. This charge is representative and is intended to put BofA on JJOtice ofclass-wide allegations ofgender discrimination throughout BofA.
Dianne Ooedtel

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EEOC-NYDO-CRTIU

Case 2:10-cv-01413-JFB -MLO Document 1 Filed 03/30/10 Page 60 of 60

...
EEoc Form 161-8 (3198)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

To: Dianne Goedtel 35 Stewart Circle N., Centereach, NY 11720

NoncE OF RIGHT TO SUE (ISSUED ON REQUEST)

From:

New York District Office 33 Whitehall Street 5th Floor N.W York, NY 10004

0

On behalfofperson(s) aggrieved whose ld8ntity 18

. 0

~FIDENTIAL (29 CFR §1601. 7(a))

EEOC Charge No.

EEOC Representative

Telephone No.

520-2008..00546

Peter Holland, Investigator

(212) 336-3781

(See also the additional Information enclosed with this form.)
NOTICE TO THE PERSON AGGRIEVED:
Title VII of the Civil Rights Act of 1964 and/or the Americans with Disabilities ACt (ADA): This Is your Notice of Right to Sue, Issued
under Title VII and/or the ADA based on the above-numbered charg.e. It has been Issued at your request. Your lawsuit under lltle Vll.or.
· the ADA must be filed in a federal or state court WITHIN· PO DAYS of your receipt. of this notice; or your right to sue based on this
charge will be lost (The time limit for filing suit based on a state claim may be different.)
·[K] More than 180 days have passed since the filing of this charge. ·
0 . Less than 180 days have passed since the filing of this charge, but I have determined that it Is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of this charge.
(!] The EEOC Is terminating Its processing of this charge.
D . The EEOC will continue to process this charge.

Age Dlscrlmlnatlo~ In EinP!o~nt.ACt (ADEA): You may sue under the ADEA at any time from 60 days after the charge was filed until

90 days after Y9U recei.ve notice that we have completed action on the charge. In this regard, the paragraph ~rked below appllea to

yourcase: · · ··. ·

·

D

..
The EEOC is·closing. your case. Therefore, your lawsuit under the ADEA must be filed In federal or state court WIIH!!':t

90 DAYS of your receipt of this Notice. Otherwise, your right to sue· based on the abovEH\umbered charge will be lost.

D

The EEOC Is continuing Its handling of your ADEA case. However, If 60 days have passed since the filing of the charge,

you may file suit in federal or state court under the ADEA at this tlma.

Equal Pay Act (EPA): You already have the right to sue under the EPA (filing an EEOC charge Is not required.) EPA suits must be brought
In federal or state court within 2 years (3 years for willful violations) of the alleged E~A underpayment. This means that backpay due for
any violations that occurred more than 2 vea[J (3 veartl before you file ault may not be collectible.

If you file suit, based on this charge, please send a copy of your court complaint to this office.

,,.. ....... Enclosures(a)

cc:

Jerry Demone

Senior VP; H.R. Case Managemen

BANK OF AMERICA

1 Federal Street

Mall Code· MAS-503-06-04

· Bost~n, MA 02110'

:. Piper·Hoffman 3 Park Avenue, 29th Floor New York, NY 10016

., .. ..

 
 Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 1 of 58 PageID #: 1795

OUTTEN & GOLDEN LLP Adam T. Klein Justin M. Swartz Cara E. Greene Mariko Hirose Reena Arora 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Rachel Geman 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, and MARY DESALVATORE, on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
BANK OF AMERICA CORPORATION; MERRILL LYNCH & CO., INC.; and MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,
Defendants.

THIRD AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT (Trial by Jury Demanded)

Individual and Representative Plaintiffs Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore (collectively “Plaintiffs”), on behalf of themselves

1

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 2 of 58 PageID #: 1796
and all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
NATURE OF THE CLAIM 1. This case is about the gender disparities in compensation and in business opportunities at the nation’s largest bank and brokerage firm. Measured by both equity and assets, Defendant Bank of America Corporation (“BofA”) is the largest bank company in the United States and one of the largest financial institutions in the world. Following its combination with Merrill Lynch & Co., Inc. (“ML”) and Merrill Lynch, Pierce, Fenner & Smith, Inc. (“MLPF&S”) (together with ML, “Merrill”), Defendants also have attained the status of being the largest brokerage firm in the world. Defendants’ retail brokerage unit, now operating under the banner of Merrill Lynch Global Wealth Management, employs over 15,000 Financial Advisors (also referred to as “FAs” and “brokers”) nationwide. These Financial Advisors provide financial and investment services to customers across the United States and manage over $2 trillion in client assets. 2. Beneath the veneer of a world-class financial institution, Defendants treat their female Financial Advisors as second-class citizens. Every year throughout the liability period in this case, female FAs have earned substantially less than similarly-situated male FAs. 3. This earnings disparity is a result of Defendants’ unvalidated companywide policies and practices that govern compensation and the distribution of accounts and business opportunities, and the lack of proper accountability measures to ensure fairness. 4. These policies and practices existed at both BofA and Merrill before the merger, and they continue to exist at the combined company today.
2

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 3 of 58 PageID #: 1797
5. Specifically, Defendants, through their conduct throughout the liability period, have caused these gender-based earnings disparities by (a) employing uniform, unvalidated procedures for determining employees’ compensation that have a disparate impact on female Financial Advisors; (b) employing uniform, unvalidated procedures for allocating client accounts, leads, referrals and other business opportunities that have a disparate impact on female Financial Advisors; (c) intentionally implementing and retaining company-wide policies and practices relating to compensation, the distribution of client accounts from departing or retiring FAs, as well as other business opportunities, which give male FAs greater opportunities to earn compensation; (d) intentionally implementing and retaining company-wide policies and practices that have created a “cumulative advantage” effect by perpetuating and widening the gender-based earnings disparities that Defendants’ discriminatory policies and practices have caused; and (e) utilizing a uniform, unvalidated quintile ranking procedure to measure performance that has a disparate impact on female FAs, as discussed below.
6. When female Financial Advisors have complained about these discriminatory practices, Defendants have retaliated against them.
7. Defendants’ discrimination and retaliation violate the Equal Pay Act, 29 U.S.C. § 206 et seq. (“Federal EPA”), the New York Equal Pay Act, N.Y. Labor Law § 194 et seq. (“NY EPA”), Title VII of 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 Law § 296 et seq. (“NYSHRL”), the Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq. (“FCRA”), the Missouri Human Rights Act (“MHRA”), RSMo. § 213.010 et seq., and the New Jersey Law Against Discrimination (“NJ LAD”), N.J.S.A. § 10:5-1 et seq.
3

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 4 of 58 PageID #: 1798

8. Accordingly, in addition to bringing this action on their own behalf, Plaintiffs also bring this action on behalf of a class of similarly-situated current and former female Financial Advisors employed by Defendants (“the Rule 23 and Collective Action Class” or “the Class”), in order to end Defendants’ discriminatory policies and/or practices and to make the Class whole.

Plaintiffs

PARTIES

Judy Calibuso

9. Plaintiff Judy Calibuso is a woman who lives in Miami-Dade County, in

the State of Florida. She is a citizen of the United States.

10. Calibuso is presently employed by Defendants as a Financial Advisor.

She has held this position since approximately 1995.

Julie Moss

11. Plaintiff Julie Moss is a woman who lives in Jefferson County, in the State

of Louisiana. She is a citizen of the United States.

12. Moss was employed by BofA as a Financial Advisor from approximately

March 2003 through October 2006.

Dianne Goedtel

13. Plaintiff Dianne Goedtel is a woman who lives in Suffolk County, in the

State of New York. She is a citizen of the United States.

14. Goedtel was employed by BofA as a Financial Advisor from

approximately February 2006 through September 2007.

4

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 5 of 58 PageID #: 1799
Jean Evans 15. Plaintiff Jean Evans is a woman who lives in St. Louis County, in the State of Missouri. She is a citizen of the United States. 16. Evans was employed by Defendants as a Financial Advisor from approximately December 2007 through November 2010. Mary DeSalvatore 17. Plaintiff Mary DeSalvatore is a woman who lives in Monmouth County, in the State of New Jersey. She is a citizen of the United States. 18. DeSalvatore is presently employed by Defendants as a Financial Advisor. She has held this position since late 2006, when she joined Merrill’s Paths of Achievement (“POA”) program. She graduated from the POA program in approximately August 2008. Defendants Bank of America Corporation 19. Upon information and belief, Defendant Bank of America Corporation (“BofA”) is a Delaware corporation doing business within Kings County in the State of New York and maintains corporate headquarters within the City and County of CharlotteMecklenburg at Bank of America Corporate Center, 100 N. Tryon St., Charlotte, North Carolina 28255. 20. Upon information and belief, Defendant BofA maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 21. During all relevant times, Defendant BofA was Plaintiffs’ employer within the meaning of all applicable statutes.
5

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 6 of 58 PageID #: 1800
22. On information and belief, at all times pertinent hereto, Defendant BofA has employed more than five hundred people.
Merrill Lynch & Co., Inc. 23. Upon information and belief, Defendant Merrill Lynch & Co., Inc. (“ML”) is a Delaware corporation doing business within Kings County in the State of New York and maintains corporate headquarters within the City and County of Charlotte-Mecklenburg at Bank of America Corporate Center, 100 N. Tryon St., Charlotte, North Carolina 28255. ML is a wholly owned subsidiary of BofA. 24. Upon information and belief, Defendant ML maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 25. Defendant ML has been Plaintiff DeSalvatore’s employer within the meaning of all applicable statutes since she was hired in 2006. Similarly, Defendant ML has been Plaintiff Calibuso’s employer since January 1, 2009. 26. On information and belief, at all times pertinent hereto, Defendant ML has employed more than five hundred people. Merrill Lynch, Pierce, Fenner & Smith, Inc. 27. Upon information and belief, Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. (“MLPF&S”) is a Delaware corporation doing business within Kings County in the State of New York and maintains corporate headquarters within the City and County of New York at 4 World Financial Center, New York, New York 10080. MLPF&S is a wholly owned subsidiary of BofA and ML. 28. Upon information and belief, Defendant MLPF&S maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
6

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 7 of 58 PageID #: 1801
29. Defendant MLPF&S has been Plaintiff DeSalvatore’s employer within the meaning of all applicable statutes since she was hired in 2006. Likewise, Defendant MLPF&S has been Plaintiff Calibuso’s employer since January 1, 2009.
30. On information and belief, at all times pertinent hereto, Defendant MLPF&S has employed more than five hundred people.
JURISDICTION AND VENUE 31. This Court has original subject matter jurisdiction over the Federal EPA and Title VII claims pursuant to 29 U.S.C. § 206 and 28 U.S.C. §§ 1331 and 1343, respectively, because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights. 32. This Court has original jurisdiction over the NY EPA, NYSHRL, FCRA, MHRA, and NJ LAD claims in this action under the Class Action Fairness Act, 28 U.S.C. § 1332(d). This is a putative class action in which: (1) there are 100 or more members in the Class; (2) at least some members of the proposed Class have a different citizenship from at least one Defendant; and (3) the claims of the proposed Class members exceed $5,000,000.00 in the aggregate. 33. In addition, this Court has supplemental jurisdiction over the NY EPA, NYSHRL, FCRA, MHRA, and NJ LAD claims under 28 U.S.C. § 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution. 34. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3) because Defendants conduct business and can be found in this district
7

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 8 of 58 PageID #: 1802
and a substantial part of the events and omissions giving rise to the claims alleged herein occurred in this district, and because the alleged unlawful employment practice was committed here, and employment records relevant to that practice are maintained and administered here.
35. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII claims. Calibuso filed a charge of discrimination individually and on behalf of all similarly-situated female FAs with the Equal Employment Opportunity Commission (“EEOC”) on January 10, 2007. Pursuant to the EEOC’s worksharing agreement with the Florida Commission on Human Rights (“FCHR”), her charge is considered dually filed with the FCHR. She then filed a supplemental charge of retaliation on March 4, 2008. By notice dated June 17, 2008, the EEOC dismissed Calibuso’s case and issued a Notice of Right to Sue. She also filed an additional supplemental charge of retaliation on November 19, 2010. By notice dated September 30, 2011, the EEOC dismissed Calibuso’s additional supplemental charge of retaliation and issued a Notice of Right to Sue. On August 19, 2008, the parties entered into a Tolling Agreement (“Tolling Agreement”) that tolled Calibuso’s right to sue through April 5, 2010. Her charge, supplemental charges, and Notices of Right to sue from the EEOC are attached to this Complaint as Exhibit 1 and are incorporated by reference.
36. On or about April 5, 2007, Moss filed a charge of discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC’s worksharing agreement with the FCHR, her charge is considered dually filed with the FCHR. By notice dated June 17, 2008, the EEOC dismissed Moss’s case and issued a Notice of Right to Sue. The Tolling Agreement tolled Moss’s right to sue through April 5, 2010. Her charge and Notice of Right to Sue from the EEOC are attached to this Complaint as Exhibit 2 and are incorporated by reference.
8

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 9 of 58 PageID #: 1803
37. On or about November 12, 2007, Goedtel filed a charge of discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC’s worksharing agreement with the New York State Division of Human Rights (“NYSDHR”), her charge is considered dually filed with the NYSDHR. By notice dated May 21, 2008, the EEOC dismissed Goedtel’s case and issued a Notice of Right to Sue. The Tolling Agreement tolled Goedtel’s right to sue through April 5, 2010. Her charge and Notice of Right to Sue from the EEOC are attached to this Complaint as Exhibit 3 and are incorporated by reference.
38. On or about June 17, 2010, Evans filed a charge of discrimination with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC’s worksharing agreement with the Missouri Commission on Human Rights (“MCHR”), her charge is considered dually filed with the MCHR. By notice dated August 19, 2010, the EEOC dismissed Evans’ case and issued a Notice of Right to Sue. Evans also filed a supplemental charge of retaliation on or about October 15, 2010. By notice dated September 27, 2011, the EEOC issued a Notice of Right to Sue for the supplemental charge of retaliation. Her charge, supplemental charge, and Notices of Right to Sue from the EEOC are attached to this Complaint as Exhibit 4 and are incorporated by reference.
39. On or about March 11, 2011, DeSalvatore filed a charge of discrimination with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC’s worksharing agreement with the New Jersey Division on Civil Rights (“NJ DCR”), her charge is considered dually filed with NJ DCR. By notice dated September 16, 2011, the EEOC issued a Notice of Right to Sue. Her charge and Notice of Right to Sue from the EEOC are attached to this Complaint as Exhibit 5 and is incorporated by reference.
9

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 10 of 58 PageID #: 1804
40. Plaintiffs have complied with the requirements for their EPA claims by filing their respective Consent to Sue forms, attached as Exhibit 6 to this Complaint.
41. Any and all other prerequisites to the filing of this suit have been met. FACTUAL ALLEGATIONS
42. Female Financial Advisors employed by Defendants work under common and unvalidated company-wide policies and practices that are set up to disadvantage them. As a consequence, female Financial Advisors have earned materially less money than their similarlysituated male counterparts in each year during the class-liability period. BofA’s Acquisition of Merrill
43. By way of background, on January 1, 2009, BofA completed its acquisition of Merrill. The combination brought together BofA’s retail brokerage unit, Banc of America Investment Services, Inc. (“BAI”), which employed over 2,000 Financial Advisors, with Merrill’s powerhouse brokerage operations, MLPF&S, which employed over 15,000 Financial Advisors. Upon information and belief, after the merger with Merrill, BofA kept intact MLPF&S as a wholly owned subsidiary and swept its “legacy” Financial Advisors who had worked for BAI into MLPF&S.
44. Defendants’ common company-wide policies and practices relating to setting compensation and distributing client accounts, which discriminate against female Financial Advisors, have remained largely the same.
10

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 11 of 58 PageID #: 1805
Defendants’ Compensation Policies and Practices Have Discriminatory Impact on Female Financial Advisors
45. Defendants’ compensation policies and practices have applied to all Financial Advisors in all of Defendants’ branches throughout the liability period.
46. Defendants compensate their FAs through common express policies relating to commissions, upfront and backend payments to competitive lateral recruits, and other bonuses and awards.
47. Female FAs have earned materially less than similarly-situated male FAs throughout every year of the class-liability period because Defendants’ common and unvalidated company-wide compensation policies and practices have a discriminatory impact on female FAs.
48. All FAs perform substantially the same duties of prospecting for new clients and managing client accounts. Female FAs, however, earn significantly less in compensation than similarly-situated male FAs, for performing work requiring equal skill, effort, and responsibility.
Commissions 49. Defendants pay their Financial Advisors commissions according to commission grids set out in the nationwide compensation plan. The percentage payout schedule for the commission grid is based in large part on production credits associated with each FA. A production credit is based on the value of commissions or fees associated with a particular transaction or service charge relating to a particular client account. 50. The operation of the commission grids also depends in part on the FA’s length of service in the industry (“LOS”) based on registration information maintained by the Financial Industry Regulatory Authority (“FINRA”).
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51. The commission grids are far from mechanical in their operation. 52. LOS impacts FA compensation because the longer FAs are in the industry, the more they are expected to earn in production credits to maintain their income. Management, however, adjusts LOS for various reasons and does so in favor of male FAs over female FAs. Defendants’ determination of FAs’ LOS is based on unreliable, unvalidated criteria. 53. Production credits impact FA compensation because the higher an FA’s production, the higher the FA’s overall percentage payout from the grid. Production credits can be generated by the accounts that the FA manages. Management can also assign production credits to FAs of their own choosing from “house accounts” (accounts not managed by specific advisors) or from other FAs through a uniform, systematically documented, and unvalidated company-wide procedure that has an adverse impact on the compensation of female Financial Advisors. 54. The accounts that Financial Advisors manage and that generate production credits are not simply “acquired” by FAs in a vacuum. Defendants direct the distribution of accounts and business opportunities through uniform, systematically documented, and unvalidated company-wide procedures described below that favor male FAs over female FAs. 55. Defendants further cause and compound the discriminatory effects of the commission grids by permitting deviations from the grid in favor of male FAs. These deviations result from, among other things, adjustments to payments, forgiveness of excess compensation (compensation paid in anticipation of unrealized production), and negotiation with lateral recruits of guaranteed payout from the grid for a certain amount of time. These common, systematically documented, permitted deviations from the compensation plan are unvalidated and have an adverse impact on the compensation of female FAs.
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Upfront and Backend Bonuses for Lateral Recruits 56. Defendants offer compensation packages to lateral recruits that include “upfront money” and “backend bonuses.” “Upfront money” refers to forgivable loans that Defendants extend to new FAs. “Backend bonuses” are bonuses that new FAs may earn after joining the company if the FAs meet certain targets. 57. Defendants offer these packages to lateral recruits using systematically documented and unvalidated criteria that have an adverse impact on the compensation of female FAs. Bonuses 58. Defendants pay bonuses to their FAs through a uniform, systematically documented, and unvalidated company-wide procedure using criteria that have an adverse impact on the compensation of female FAs.
Defendants’ Account Distribution Policies and Practices Have Discriminatory Impact on Female Financial Advisors
59. Defendants direct the distribution of accounts and business opportunities through a uniform, systematically documented, and unvalidated company-wide procedure that favors male Financial Advisors in the allocation and distribution of accounts, as well as in opportunities to gain new accounts.
60. The accounts and business opportunities that Defendants distribute typically come from one of four sources:
(a) when individuals call (“call-ins”) or walk (“walk-ins”) into the office to open a new account;
(b) through “leads” and “referrals” (e.g., when Defendants tell a Financial Advisor of a potential account opportunity and the Financial Advisor makes contact with the potential account holder);
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(c) when a Financial Advisor departs from the firm (i.e., when a Financial Advisor retires, leaves the business, or moves to another firm); or
(d) through company-permitted partnerships or teams, in which a Financial Advisor partners or teams with other FAs and splits the partnership's earned revenue according to a negotiated or predetermined ratio, or in which a Financial Advisor partnered with a BAI employee in another line of business, whereby the partner referred accounts to the FA.
61. According to Defendants’ uniform, systematically documented, and unvalidated company-wide account distribution policy, accounts are distributed through an FA ranking system that is based on a series of criteria including past revenue and quintile ranking.1 Quintile ranking is the FA’s ranking in that category compared to other FAs within the same LOS.
62. The loopholes built into the system operate in a common and systematic way to allow Defendants to bypass the ostensible criteria, a further unvalidated practice that has an adverse impact on female FAs.
63. The company-wide teaming or partnership policies also permit FAs to partner with each other and transfer accounts to each other without going through the account distribution policy. This common practice is unvalidated and has an adverse impact on female FAs.
64. Financial Advisors obtain many of their accounts through Defendants’ account distribution policies and practices. When a FA receives an account, the FA gains not only the value of the account and the production credits it generates, but also the opportunity to grow that client’s account to increase the value and generate more revenue and the opportunity to gain new clients through that client’s referrals. These policies and practices therefore have a
1 Pre-merger BAI also used unvalidated criteria to distribute accounts, but did not employ quintile ranking.
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substantial impact on the number and quality of accounts a FA manages, and in turn, on the FA’s compensation.
65. Defendants’ account distribution policies use common, systematically documented, and unvalidated criteria that have a discriminatory impact on the number of and type of accounts that female FAs receive from Defendants, and therefore, a discriminatory impact on compensation. Defendants Perpetuate the Discriminatory Impact of the Compensation and Account Distribution Policies and Practices By Using the Tainted Variable of Past Performance as Criteria for Compensation and Account Distribution
66. By using the tainted variable of past performance as a criterion for compensation and account distribution, Defendants further perpetuate the gender-based compensation disparities and create a cumulative advantage for male FAs based on systematically documented and unvalidated criteria that has an adverse impact on female FAs.
67. The account distribution policy rewards FAs who have generated more revenue in the past by ranking them higher on the distribution list to receive accounts. This means that when a male FA receives an account, the revenue generated by that account allows him to earn greater and more lucrative accounts in the future. By disproportionately giving a greater number of accounts and more lucrative accounts to male FAs, Defendants use unvalidated criteria that advantage male FAs and enable them to secure additional accounts and other business opportunities under the account distribution policy. These additional accounts and business opportunities, as well as house account production credits, directly and indirectly increase the male FAs’ production and place male FAs in an even better position for the next round of account distributions based on systematically documented and unvalidated criteria.
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68. The commission grid provides higher percentage payouts for higher production credits in the previous year. This means that FAs with more production credits not only earn more money in commissions and bonuses but also earn the right to receive a larger percentage of their yearly production based on the grid targets.
69. Revenue and production credits of female FAs are, on average, lower than that of their similarly-situated male FAs due to the discriminatory operation of Defendants’ account and business distribution policies and practices described above. As a result, the unvalidated account distribution policy provides more business opportunities to men than to similarly-situated women.
70. Similarly, the commission grids dictate that Defendants pay male FAs at a higher rate than similarly-situated female FAs for performing the same work, i.e., work at the same level of production.
71. From even before the beginning of the liability period, pursuant to its longstanding discriminatory practices, Defendants distributed accounts, partnership opportunities, upfront money, and sales, administrative, and professional support on more favorable terms to male FAs than to similarly-situated female FAs—based on systematically documented and unvalidated policies and practices that had an adverse impact on the compensation of female FAs.
72. Indeed, through a past class-action lawsuit and subsequent finding of gender discrimination concerning the distribution of client accounts in a related arbitration, Defendants have known that Merrill had a pattern and practice of discriminating against female FAs. Nevertheless, they continued to use the results of that past discriminatory system as a variable for awarding further compensation and business opportunities.
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73. Using past performance as an unvalidated criterion for distributing business opportunities and setting compensation thus has the purpose and effect of discriminating against female FAs. The disparity between the accounts allocated to male and female FAs grows wider and wider, and women cannot catch up. Defendants’ Compensation and Account Distribution Systems Are Not Bona Fide Merit or Production Systems
74. Defendants’ compensation system is not a bona fide merit or production system because, as described above, it is unvalidated and does not have predetermined criteria for measuring merit or productivity, it is not adequately communicated to employees, and it is not consistently and/or even-handedly applied.
75. Defendants' account distribution system is not a bona fide merit or production system because, as described above, it is unvalidated and does not have predetermined criteria for measuring merit or productivity, it is not adequately communicated to employees, and it is not consistently and/or even-handedly applied.
76. There is no bona fide merit or production system that accounts for the compensation disparities between male and female FAs. Defendants’ Compensation and Account Distribution Systems Are Not Justified By Business Necessity and Alternative Practices Are Available
77. Defendants’ compensation and account distribution systems are not justified by business necessity. They cannot be justified by business necessity because they do not compensate FAs based on actual measures of performance.
78. Defendants implemented complex compensation and account distribution systems that are not validated and that have a discriminatory effect on women. Defendants could
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have chosen alternative compensation and account distribution systems that measure and
compensate FAs based on accurate performance measures.
Defendants Intentionally Discriminate Against Women In Their Compensation and Account and Business Opportunities
79. BofA and Merrill have common histories of discriminating against female
employees, including female FAs. Over many years, both before and during the liability period
in this case, Defendants’ gender discrimination has caused female FAs to manage less valuable
assets than similarly-situated men, produce less revenue than similarly-situated men, and,
therefore, earn less than similarly-situated men.
80. Defendants have known that their compensation and account distribution
systems have favored male FAs throughout the class period through such vehicles as audit
results, employee surveys, and employee complaints. Nevertheless, Defendants have refused to
change policies and practices that they know discriminate against women and instead re-ratify
the policies every year.
81. Defendants further compound the discriminatory effects of their uniform,
unvalidated procedures through the award of corporate titles and provision of sales,
administrative, and professional support.
(a) According to its company-wide policies and practices, Defendants award corporate titles to FAs based on inconsistently applied criteria, including FAs’ production. Because Defendants’ policies and practices favor male FAs and because the production of female FAs are, on average, lower than that of similarly-situated male FAs due to Defendants’ gender discrimination, these policies and practices discriminate against female FAs by awarding disproportionately more or higher corporate titles to male FAs than to female FAs. The disproportionately lower rate of corporate titles awarded to female FAs further disadvantages them because the use of corporate titles is helpful for external marketing to prospective clients and for other purposes.
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(b) Defendants offer female FAs less sales, administrative, and professional support, and fewer marketing dollars for business development, than they offer to male FAs. These company-wide policies set up female FAs to underperform as compared to their male peers by depriving them of critical resources to perform their jobs. Defendants’ failure to provide female FAs with the same levels of support given to male FAs directly impacts their ability to generate revenue, and therefore results in diminished compensation for female FAs as compared to their male counterparts.
82. Defendants also do not have an adequate policy against discrimination. This is evidenced by the cavalier way that Defendants have treated complaints of sex discrimination or harassment from their female FAs, including their failure to institute adequate policies and guidelines for the investigation of complaints. Defendants respond with indifference to complaints from female FAs about the various ways in which they have been subjected to inferior terms and conditions of employment as compared to their male counterparts.
83. Defendants have also retaliated against female FAs who have complained of gender discrimination. After female FAs have complained about Defendants’ unfair allocation of business opportunities and compensation, Defendants have retaliated against them in various ways, including, but not limited to: denying them necessary resources and support to perform their jobs, subjecting them to harsher discipline, constructively discharging them, placing negative and misleading language on their U-5 forms, and even bringing legal proceedings against them.
84. Both BofA and Merrill have treated women unfairly. Prior to its acquisition by BofA, Merrill maintained company-wide policies and practices that discriminated against female FAs with respect to business opportunities, compensation, professional support, and other terms and conditions of employment that had the same purpose and effect as those found at BofA. The discriminatory policies and practices that plagued BofA and Merrill before the merger continue to persist at the company today.
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85. Accordingly, this class and collective action is brought by Calibuso, Moss, Goedtel, Evans, and DeSalvatore on behalf of themselves individually and all similarly-situated female FAs in the United States. This action seeks to end Defendants’ discriminatory policies and/or practices and retaliation, and to make the Plaintiff Class whole by requesting the following remedies: injunctive relief to remedy systemic sex discrimination; an award of back pay and front pay; compensatory and punitive damages; and attorneys’ fees.
COLLECTIVE ACTION ALLEGATIONS 86. Plaintiffs bring the First Claim for Relief for violation of the Equal Pay Act (“Federal EPA”) as a collective action pursuant to 29 U.S.C. § 206 et seq., on behalf of all Federal EPA Collective Plaintiffs (“Federal EPA Class”). 87. Plaintiffs and the Federal EPA Class are similarly situated in that they have substantially similar job requirements and pay provisions, and are subject to Defendants’ common practice, policy, or plan of failing to pay Federal EPA Collective Plaintiffs equal pay for work requiring equal skill, effort, and responsibility, in violation of the Equal Pay Act. 88. The First Claim for Relief for violation of the Equal Pay Act may be brought and maintained as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b), since the claims of the Plaintiffs are similar to the claims of the Federal EPA Collective Plaintiffs.
CLASS ACTION ALLEGATIONS 89. Plaintiffs bring the Third and Fourth Claims for Relief pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a Class of all female Financial Advisors employed by BofA and its predecessors in the United States at any time from March 16, 2006, through the resolution of this action, and all female Financial Advisors employed by Merrill and its predecessors in the United
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States at any time from March 7, 2008, through the resolution of this action, pursuant to Title VII
(“Title VII Class”). Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil
Procedure 23(a) and (b)(3) seeking monetary damages and other make-whole relief on behalf of
the Title VII Class.
90. Plaintiffs bring the Second, Fifth, Sixth, Seventh, Eighth, and Ninth
Claims for Relief pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking
liability-phase injunctive and declaratory relief on behalf of:
(a) a Subclass of all female Financial Advisors employed by BofA and its predecessors in New York at any time from November 10, 2004, through the resolution of this action for claims under the New York Equal Pay Act (the “NY EPA Subclass”);
(b) a Subclass of all female Financial Advisors employed by BofA and its predecessors in New York at any time from November 10, 2004, through the resolution of this action for claims under the NYSHRL (the “New York Subclass”);
(c) a Subclass of all Female Financial Advisors employed by BofA and its predecessors in Florida at any time from January 10, 2006, through the resolution of this action for claims under the FCRA (“Florida Subclass”);
(d) a Subclass of all Female Financial Advisors employed by postmerger BofA and Merrill and its predecessors in Missouri at any time from January 1, 2007, through the resolution of this action for claims under the MHRA (together, the “Missouri Subclass”); and
(e) a Subclass of all Female Financial Advisors employed by postmerger BofA and Merrill and its predecessors in New Jersey at any time from January 1, 2007, through the resolution of this action for claims under the NJ LAD (together, the “New Jersey Subclass”).
91. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil
Procedure 23(a) and (b)(3) seeking monetary damages and other make-whole relief on behalf of
the NY EPA Subclass, the New York Subclass, the Florida Subclass, the Missouri Subclass, and
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the New Jersey Subclass. Plaintiffs reserve the right to amend the definitions of the Class and Subclasses based on discovery or legal developments.
92. Plaintiffs are members of the Class and Subclasses they seek to represent. Plaintiff Goedtel is a member of the NY EPA Subclass and the New York Subclass, Plaintiff Calibuso is a member of the Florida Subclass, Plaintiff Moss is a member of the Florida Subclass, Plaintiff Evans is a member of the Missouri Subclass, and Plaintiff DeSalvatore is a member of the New Jersey Subclass.
93. The members of the Class identified herein are so numerous that joinder of all members is impracticable. As of the filing of this Complaint, Defendants have approximately 15,000 Financial Advisors. Although the precise number of female Financial Advisors is currently unknown, it is far greater than can be feasibly addressed through joinder.
94. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others:
(a) whether Defendants’ policies or practices discriminate against female FAs;
(b) whether Defendants’ policies and practices violate Title VII, the Federal EPA, the NY EPA, the NYSHRL, the FCRA, the MHRA, and/or the NJ LAD;
(c) whether Defendants’ compensation system has a disparate impact on female FAs;
(d) whether Defendants’ compensation system is not justified by business necessity;
(e) whether Defendants could have chosen an alternative compensation system that measures and compensates FAs based on accurate performance measures;
(f) whether Defendants’ account distribution system has a disparate impact on female FAs;
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(g) whether Defendants’ account distribution system is not justified by business necessity;
(h) whether Defendants could have chosen an alternative account distribution system that measures FAs based on accurate performance measures;
(i) whether equitable remedies, injunctive relief, compensatory damages, and punitive damages for the Class are warranted; and
(j) whether Defendants have failed to implement policies and procedures to prevent retaliation against employees who challenge perceived bias in the workplace and failed to address complaints and conduct proper investigations.
95. The Representative Plaintiffs’ claims are typical of the claims of the Class. 96. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof. 97. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because Defendants have acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class members are entitled to injunctive relief to end Defendants’ common, uniform, unfair, and discriminatory policies and practices. 98. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The Class members have been damaged and are entitled to recovery as a result of Defendants’ common, uniform, unfair, and discriminatory policies and practices. Defendants have computerized account data,
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payroll data, and personnel data that will make calculation of damages for specific Class members relatively simple. The propriety and amount of punitive damages are based on Defendants’ conduct, making these issues common to the Class.
99. Alternatively, class certification with respect to particular issues is appropriate pursuant to Federal Rule of Civil Procedure 23(c)(4).
CLAIMS OF REPRESENTATIVE PLAINTIFFS Judy Calibuso
100. In June 1995, Plaintiff Judy Calibuso began working as an FA for Barnett Bank, which was acquired by BofA’s predecessor firm in or around January 1998. Since January 1998, Calibuso has been employed by BofA as an FA and currently works in the Brickell Avenue office of Merrill in Miami, Florida.
101. During the course of her employment, Defendants have denied Calibuso compensation, extra bonuses, business opportunities, corporate titles, and other conditions of employment made available to similarly-situated male FAs.
102. During the course of her employment, Defendants have not provided Calibuso equal pay to the pay of males for work requiring equal skill, effort, and responsibility, and which has been performed under similar working conditions.
103. BofA, and later Merrill as well, routinely distributed business opportunities, including accounts from departing and retiring brokers, referrals, leads, and potential clients, and more advantageous partnerships with different departments within the firm, to male FAs rather than to Calibuso or other female FAs. As a result of the inequitable and discriminatory distribution of accounts and account prospects, Calibuso and female FAs
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generally have less income potential and less actual income than similarly-situated male employees.
104. In September 2006, Calibuso met with her then-manager and asked for fee-based accounts because BofA had not given her any earlier that year when several FAs within her office departed BofA. Her manager told her that he did not have any fee-based accounts to give her, but that even if he did, he would give them all to a specific male FA. Several weeks later, Calibuso learned that her manager had distributed fee-based accounts from the departed FAs to three male FAs.
105. By denying compensation or the opportunity for compensation to Calibuso that they made available to similarly-situated male FAs, Defendants denied her the opportunity to form partnerships, to earn discretionary bonuses and stock options, and to earn corporate titles, which are awarded based on a Financial Adviser’s level of compensation. Moreover, Calibuso would have earned a higher grid payout if she had received these accounts.
106. In February 2007, Calibuso notified her then- manager that she had filed a discrimination charge with the EEOC.
107. Following the filing of her charge, Defendants engaged in a constant campaign of retaliation.
108. Upon information and belief, in or around March 2007, BofA designated several FAs to form partnerships with BofA’s lucrative private banking business in order to help both FAs and Private Bank Relationship Managers grow their respective businesses, thereby increasing each partnered FA’s total compensation and production. BofA designated several male FAs who were no more qualified, or who were less qualified, than Calibuso to form these partnerships, but did not designate Calibuso.
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109. Calibuso’s manager also excluded Calibuso from meetings involving her own accounts. In October 2007, her then-manager did not invite her to a lunch that the manager organized for one of BofA’s Commercial Banking relationship managers and several FAs from their office to promote cross referrals for investments. The manager invited other FAs who serviced accounts covered by the relationship manager, yet did not invite Calibuso, even though Calibuso and the relationship manager shared a major client.
110. On several different occasions, BofA retaliated against Calibuso by requiring her to get approvals before performing routine activities that it did not require male FAs to get and that it had not required Calibuso to get before she filed her discrimination charge.
111. In April 2007, in order to develop potential sources of referrals, Calibuso planned a luncheon with several select relationship managers from different lines of business and advisors from Private Bank and Commercial Banking to meet with a BofA insurance specialist. When Calibuso’s manager learned about the luncheon the night before, she told Calibuso to cancel it because she had not requested pre-approval. The luncheon, scheduled for 12:30 the next day, did not happen.
112. In contrast, on the same day as Calibuso’s scheduled luncheon, two male FAs organized two separate group luncheons with wholesalers without pre-approval and were permitted to proceed with their luncheons as planned.
113. In October 2007, her then-manager issued Calibuso an undeserved reprimand letter, her first in her 12-year tenure with the company. Her manager claimed that Calibuso had not followed the proper procedure for a client referral to BofA’s Private Bank. When Calibuso asked her manager to approve a shared revenue partnership with the Private Bank client manager, her manager did not approve it. Instead, BofA took away these high value
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accounts from Calibuso and gave them to a male FA. Calibuso’s manager also required Calibuso to attend a “coaching session” with management.
114. In or around March 2008, Calibuso received a referral from Commercial Banking to a high net worth client. Calibuso successfully serviced the account and brought in two of the client’s partners as new clients. After Calibuso had serviced these new accounts for several months, BofA stripped these accounts from her and gave them to a male FA because Calibuso had not been designated to work with Private Bank clients.
115. In or around November 2008, Calibuso requested reimbursement for continuing education classes for her Certified Financial Planner designation. BofA denied her request for reimbursement, although it approved reimbursements as well as additional travel expenses to male FAs taking similar courses.
116. On June 28, 2010, Calibuso completed a trade reconciliation for her assistant when her assistant could not come to work. Her manager had told her it could wait until the assistant returned, but Calibuso believed it to be in the best interest of her manager and her assistant to do so before then. When her manager learned that Calibuso had completed the reconciliation, she informed her and her assistant that they would be reprimanded because Calibuso had used her assistant’s credentials in order to post the trade. When Defendants learned that several other employees had used their co-worker’s credentials without being reprimanded, however, they decided instead to issue Calibuso a “first and final written warning” for allegedly failing to follow management instructions. The discipline was unwarranted and disproportionate as Calibuso had not manifested a disregard for her manager’s directive.
117. On or about January 10, 2007, Calibuso filed a charge of discrimination with the FCHR and the EEOC. On or about March 4, 2008, Calibuso filed a supplemental
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charge of retaliation. On June 17, 2008, she received a Notice of Right to Sue from the EEOC. On or about November 19, 2010, Calibuso filed an additional supplemental charge of retaliation. On October 3, 2011, she received a Notice of Right to Sue for her additional supplemental charge of retaliation from the EEOC. The Tolling Agreement tolled Calibuso’s right to sue through April 5, 2010. Julie Moss
118. Plaintiff Julie Moss was hired by BofA on March 15, 2003, as an Assistant Vice President/Financial Advisor.
119. BofA denied Moss compensation, extra bonuses, business opportunities, corporate titles, and other conditions of employment that it made available to similarly-situated male employees.
120. During the course of her employment, BofA did not provide Moss equal pay to the pay of males for work requiring equal skill, effort, and responsibility, and which was performed under similar working conditions.
121. BofA routinely distributed business opportunities, including accounts from departing brokers, referrals, leads, and potential clients to male FAs rather than to Moss or other female FAs. For instance, when another female FA left (as a result of harassment and discrimination by her supervisor, a male), BofA allowed a male broker to choose the accounts he wanted from her book of business. When a different female broker transferred back to the bank side of the business, she made a spreadsheet of her clients and who she thought would be the best FA for each one. The Market Director, a male, disregarded her recommendations and gave almost all the fee-based clients and the annuity clients with large commission trails to one male FA.
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122. In March 2006, the Market Director hired a male FA who, on information
and belief, had been a very small producer at a prior brokerage firm. When the new male FA
arrived, the Market Director forced Moss to move out of her primary downtown office and buy
her own furniture to move into a smaller office at another location. At the time, she held first
place with the highest revenue in the Tallahassee market. When Moss left BofA in October
2006, she was still number one in the Tallahassee market.
123. On June 13, 2006, Moss contacted BofA’s human resources department
(“HR”) and filed a claim of gender discrimination and hostile work environment. She told HR
that she feared for her job, that the Market Director was intentionally harassing her and
interfering with her production, and that the resulting stress was making her physically ill. HR
arranged a meeting for July 11, 2006 in Jacksonville, but HR did not attend this meeting –
instead Moss found herself meeting with her boss, the Market Director, and his boss, a Senior
Vice President. On information and belief, this ambush meeting was in retaliation for her
complaint of discrimination.
124. Subsequent to the meeting on July 11, Moss suffered other instances of
discrimination and retaliation, including:
(a) The Market Director questioned Moss’s trades and required her to call him for pre-approval for trades. Moss had seven years experience in the brokerage business at that point, with no customer complaints, no questionable trades, and a clean U-4. On information and belief, BofA did not require other similarlysituated male FAs to obtain preapproval for trades.
(b) The Market Director did not require male FAs to repay BofA for the balance of upfront money advanced to them at the start of their employment as he required of Moss. Upon information and belief, the Market Director did not seek repayment from two male FAs for over $100,000 each – more than twice what Moss owed. In contrast, BofA initiated arbitration proceedings against Moss for the money she was advanced.
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(c) Moss was told she would have to call the Market Director for preapproval to expense office lunches. On information and belief, no male FAs had to call for preapproval to expense office lunches.
(d) On Moss’s last day of employment with BofA, Moss received a “letter of education” from the Market Director reprimanding her for failing to get manager pre-approval for an advertisement she had placed in a local paper. He copied several senior managers at BofA. Contrary to the Market Director’s assertion, Moss had followed all BofA procedures for placing the advertisement.
125. BofA required Financial Advisors opening accounts for clients who had more than a certain net worth to go through the firm’s Private Bank. Male FAs were told to circumvent this rule by falsifying documents to open accounts without going through the Private Bank, and did not suffer negative consequences for falsifying the documents and violating BofA’s official policy. In contrast, Moss completed such documents truthfully and did not try to circumvent the Private Bank; nonetheless, the Market Director investigated her, yelled at her, and threatened to take away the production that she generated from one particular high-value account.
126. Through this misconduct, BofA constructively discharged Moss, forcing her to resign effective October 27, 2006.
127. BofA would not permit Moss to repay her upfront loan without obtaining a release of her discrimination claims. After she refused to release her discrimination claims and informed BofA of the possibility that she would file an EEOC charge, BofA continued to retaliate against Moss by commencing a claim against her in arbitration.
128. On or about April 5, 2007, Moss filed a charge of discrimination and retaliation with the FCHR and the EEOC.
129. On June 17, 2008, Moss received a Notice of Right to Sue from the EEOC. The Tolling Agreement tolled Moss’s right to sue through April 5, 2010.
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Dianne Goedtel 130. Plaintiff Dianne Goedtel worked as a Financial Advisor in the Melville,
Long Island, New York office of BofA from February 3, 2006 to September 20, 2007. 131. During the course of her employment, BofA denied Goedtel business
opportunities, compensation, corporate titles, and other conditions of employment that it made available to similarly-situated male FAs, disciplined her more harshly than similarly-situated males for similar infractions, and retaliated against her when she complained about gender discrimination.
132. During the course of her employment, BofA did not provide Goedtel equal pay to the pay of males for work requiring equal skill, effort, and responsibility, and which was performed under similar working conditions.
133. From the start of her employment, BofA discriminated against Goedtel on the basis of her gender by denying her start-up support and business opportunities that it provided to similarly-situated men, which directly impacted her compensation. For example, BofA denied Goedtel upfront money when she first began working for BofA that it offered to similarly-situated males when they began working.
134. On multiple occasions in or around the summer of 2007, BofA distributed accounts of departing FAs to similarly-situated male FAs that it did not offer to Goedtel. Her manager distributed fewer assets to Goedtel than to male FAs and distributed to her almost no fee-based accounts, which are among the most lucrative. Ms. Goedtel’s production had been in the top five of her office, but as a result of these discriminatory distributions, she dropped out of the top five.
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135. BofA also engaged in gender discrimination and/or retaliation against Goedtel in other ways, including applying compliance standards more rigidly to Goedtel than to similarly-situated males. For example, BofA compliance officers attempted to write her up on the grounds that she regularly submitted required paperwork later than her male colleagues. A comparative review, done at Goedtel’s request, showed that this accusation was false. When Goedtel complained about the discriminatory account distributions, her manager was hostile and took no steps to remedy her complaints. In retaliation, a few weeks later her manager told her to resign after a minor compliance violation and placed excessive and misleading language on her form U-5, which all prospective employers in the financial industry obtain from FINRA.
136. As a result of this discrimination and retaliation, BofA constructively discharged Goedtel from her employment with BofA on September 20, 2007. The constructive discharge caused Goedtel to lose income, including her earned commissions for her last month of employment. Goedtel also lost clients and had to start over to build her business.
137. BofA discriminated against Goedtel on the basis of her gender by denying her upfront money and business opportunities that directly impacted her compensation, subjecting her to excessive discipline and inferior terms and conditions of employment, constructively discharging her, and retaliating against her for her complaints of gender discrimination.
138. On or about November 12, 2007, Goedtel filed a charge of discrimination and retaliation with the NYSDHR and the EEOC. On May 27, 2008, Goedtel received a Notice of Right to Sue from the EEOC. The Tolling Agreement tolled Goedtel’s right to sue through April 5, 2010.
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Jean Evans 139. Plaintiff Jean Evans worked for Merrill as an FA from about December
17, 2007 to November 5, 2010 in Merrill’s Chesterfield, Missouri office. 140. During the course of her employment, Merrill denied Evans
compensation, extra bonuses, corporate titles, business opportunities, and other conditions of employment made available to similarly-situated male FAs, subjected her to sexual harassment, retaliated against her for making complaints of gender discrimination, and constructively discharged her.
141. During the course of her employment, Merrill did not provide Evans equal pay to the pay of males for work requiring equal skill, effort, and responsibility, and which was performed under similar working conditions.
142. Merrill routinely distributed business opportunities -- including accounts from departing and retiring brokers, and partnership opportunities -- to male FAs rather than to Evans or other female FAs. As a result of the inequitable and discriminatory distribution of accounts and partnerships, Evans and other female FAs had diminished income potential and diminished actual income as compared to similarly-situated male Financial Advisors.
143. For example, when brokers departed the firm in January, March, and July 2009, Evans did not receive any high-value accounts. Moreover, she was only assigned one small account from the book of business of the departing broker who left in July 2009. Her immediate supervisor, the Resident Director for her office, took that account away from her without any explanation. In addition, a broker retired from the firm in Summer 2009 and another broker passed away in March 2010. Merrill did not assign Evans any accounts from those brokers’ books of business.
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144. Similarly, Merrill denied Evans the opportunity to be part of a team or partnership. In or around March 2010, Evans requested to be put on a team or partnership by submitting a written request in person to the Managing Director/Complex Manager, Sales Manager, and Director. They did not grant her request. In or around April 2010, a senior broker approached Evans about forming a partnership, but Evans’ Resident Director would not approve the partnership. On or about April 29, 2010, Evans orally asked her Resident Director to put her on a team or partnership. The Resident Director declined her request. On or about June 8, 2010, Evans met with the Managing Director/Complex Manager and Director again and repeated her request to be put on a team or partnership. Again, they denied her request.
145. On information and belief, Evans’ Resident Director repeatedly encouraged a senior FA to form a partnership. When the senior FA told the Resident Director in the Summer of 2010 that she wanted to partner with Evans, the Resident Director asked the senior FA why she would want to partner with Evans, and instead suggested that the senior FA partner with two male FAs who were more junior than Evans. Despite the senior FA’s eagerness to partner with Evans, Evans’ Resident Director did not sign off on the partnership between Evans and the senior FA.
146. Repeatedly after April 2010, a senior broker offered to assign some accounts to Evans so that she could meet the $10 million annuitized assets and $15 million total assets thresholds required for her Paths of Achievement (“POA”) graduation, which would entitle her to a $20,000 bonus. Her Resident Director did not allow the senior broker to do this for her. The Resident Director told Evans that the Resident Director could not sign off on the senior broker giving Evans any accounts because it was “unethical.” However, on information and belief, both the Managing Director/Complex Manager and the Resident Director had
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allowed, and had even asked, senior brokers to assign accounts to junior male brokers so they could graduate from the POA training program. In or around July 2010, Evans learned that a junior male broker graduated from the POA program early because a senior broker transferred assets to him.
147. Evans was also subjected to a hostile work environment and quid pro quo sexual harassment. During the course of her employment, Evans was subjected to unwelcome sexual advances and other physical and verbal conduct of a sexual nature. The harassment that she suffered was severe or pervasive enough to affect the terms and/or conditions of her employment. The conduct was severe in that it involved physical touching. Alternatively, the conduct was pervasive in that it occurred daily. In addition, her refusal to submit to the sexual advances, as described more fully below, resulted in the tangible adverse action of not being assigned or transferred accounts.
148. When Evans went into production in or around March 2008, Merrill assigned a male Financial Advisor to serve as her mentor. Her mentor’s role was to help her build her book of business by, among other things, assigning her leads or prospects he had and transferring accounts to her. He also provided feedback on her performance to her Resident Director and Sales Manager/POA Coach. Despite his intended role of helping her build her book of business, Evans’ mentor repeatedly made inappropriate comments to her, sent her inappropriate emails, told inappropriate jokes, and made sexual advances toward her. For example, on several occasions, Evans asked her mentor what she should do to prepare for an appointment with a client. He responded by telling her that she should wear short skirts, wear a push-up bra, and unbutton one more button on her blouse and lean over, among other things. When Evans’ client was a female, her mentor asked Evans if the client was “hot” and if he could
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come to the appointment with her so they could “have a three-way.” In addition, Evans’ mentor told crude jokes to her and to others in her presence. Evans asked him to stop doing so, but he continued nonetheless. Evans’ mentor sometimes asked her if she wanted accounts. When she responded that she did, he leaned over, looked down her blouse, and asked “What are you going to give me?” and said “Quid pro quo.” Evans’ mentor also sent her emails attaching ads for bras. Evans later learned from a co-worker that her management had been aware of her mentor’s sexually inappropriate behavior, yet Merrill failed to do anything about it and assigned him to be her mentor nonetheless.
149. Evans was also sexually harassed by her male Sales Manager/POA Coach, who Merrill had designated as her go-to person. On or about December 19, 2009, when Evans arrived for the firm’s holiday party, her Sales Manager/POA Coach hugged her and leaned in to kiss her. When Evans turned away, he grabbed her face and kissed her on the mouth. The following Monday, December 21, 2009, Evans’ mentor called her into his office and reprimanded her for rejecting the Sales Manager’s sexual advances. Her mentor told her that she was not very nice to the Sales Manager, that he had a fragile ego, that she was rejecting him, and threatened that if she was not nicer to him, it could negatively affect her career. Her mentor then told her that she had to apologize to her Sales Manager/POA Coach. Evans told her mentor that she was not going to apologize for refusing his sexual advances. Evans’ relationships with her mentor and Sales Manager/POA Coach took a dramatic turn for the worse after that, and neither helped her with her business. Her Sales Manager/POA Coach lied to her Resident Director about her work performance, and neither her mentor nor her Sales Manager/POA Coach assigned accounts or leads to her. This resulted in Evans having lower production (and therefore compensation) than similarly-situated male FAs, which in turn deprived her of the opportunity to
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earn bonuses, graduate from the POA program early, be awarded corporate titles, and receive higher payouts. Her Sales Manager/POA Coach, on the other hand, was promoted to Resident Director of another office despite sexually harassing her.
150. On or about April 30, 2010, Evans called Merrill’s Advice and Counsel to make a formal complaint. Evans told the Advice and Counsel representative who returned her call that her Sales Manager/POA Coach had kissed her and that her mentor regularly made inappropriate comments to her. Although the Advice and Counsel representative said that she would investigate Evans’ complaint, the representative told Evans that her Sales Manager/POA Coach was her go-to person and that she still needed to go to him for information and help. The Advice and Counsel representative also told her that they were investigating her complaints but if they could not corroborate her story with witnesses, there was nothing they could do. On information and belief, the Advice and Counsel representative did not interview the witnesses that Evans identified. When Evans asked for a different mentor and/or POA Coach, the Advice and Counsel representative rejected her request.
151. Following the filing of her formal complaint to Merrill, Defendants engaged in a constant campaign of retaliation. The Advice and Counsel representative who was supposed to be investigating Evans’ complaints of gender discrimination and sexual harassment interrogated Evans about her sexual activity, informed Evans that Defendants were investigating her, and questioned her about her work performance. When the representative asked Evans about her legal claims, Evans advised her that she would need to answer those questions through her attorneys, but the representative insisted that Evans answer the questions without consulting with her attorneys.
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152. More specifically, on or about June 9, 2010, the Advice and Counsel representative asked Evans for any inappropriate emails that her mentor had sent her. The Advice and Counsel representative then called Evans to ask Evans to explain what Evans found offensive about the emails. Evans explained that whenever her mentor saw her talking to other male brokers or to male clients or prospects, he would ask her in front of them, “Are you guys f*cking?” or “Are you doing him?” Without basis, the Advice and Counsel representative responded by interrogating Evans about her sexual activity and whether or not she was flirting with co-workers.
153. In addition, following the filing of her complaint to Merrill, Defendants put obstacles in Evans’ way, which prevented her from continuing to grow her business. For example, Evans and the senior FA with whom she wanted to partner both requested a joint production number in July 2010. On information and belief, the approval process should only take 24 hours, but Evans’ Resident Director refused to approve the request submitted by Evans and the senior FA. When Evans last checked on the status of the request, it had still not been approved, even though at least three months had passed since Evans and the senior FA submitted their requests. Also in July 2010, Evans paid a vendor out of her own pocket to send an email newsletter to her clients as a marketing tool. This service required Evans’ Resident Director’s approval. Despite Evans’ request that her Resident Director approve this in July, her Resident Director did not approve it until two months later.
154. Through this misconduct, BofA constructively discharged Evans, forcing her to resign effective November 5, 2010.
155. On or about June 17, 2010, Evans filed a charge of discrimination with the MCHR and the EEOC. On August 19, 2010, she received a Notice of Right to Sue for her
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charge of discrimination from the EEOC. On or about October 15, 2010, Evans filed a supplemental charge of retaliation. On September 30, 2011, she received a Notice of Right to Sue for her supplemental charge of retaliation from the EEOC. Evans’ class claims are encompassed by the class charges filed by Calibuso, Moss, and Goedtel. Mary DeSalvatore
156. Plaintiff Mary DeSalvatore currently works as an FA in Merrill’s office in Red Bank, New Jersey. She joined the Paths of Achievement (“POA”) program as a Financial Advisor in late 2006, and graduated from the program in August 2008.
157. During the course of her employment, Merrill has denied DeSalvatore compensation, extra bonuses, business opportunities, and other conditions of employment made available to similarly-situated male FAs.
158. During the course of her employment, Merrill has not provided DeSalvatore equal pay to the pay of males for work requiring equal skill, effort, and responsibility, and which has been performed under similar working conditions.
159. Merrill has routinely distributed business opportunities -- including accounts from departing and retiring brokers, and more advantageous partnerships with other brokers -- to male Financial Advisors rather than to DeSalvatore or other female FAs. As a result of the inequitable and discriminatory distribution of accounts and partnerships, DeSalvatore and other female FAs have diminished income potential and diminished actual income as compared to similarly-situated male employees.
160. For instance, DeSalvatore has repeatedly asked her managers to partner her with senior FAs, as a means to grow her book of business and increase her compensation potential. However, her male managers have discouraged such partnerships and have failed to
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encourage senior FAs to team with her, although they have done so for male FAs. For example, a senior male FA recently invited a junior male FA in the POA program to partner with him and transferred many accounts to him. Although DeSalvatore had sought to partner with that same senior male FA in 2008, after she graduated from the POA program, she was told that she could join his team only if she became a Client Associate. At that point, DeSalvatore was already a full-fledged FA, and becoming a Client Associate would have been a demotion and lowered her earnings potential. She therefore declined.
161. DeSalvatore is the top producer in her office, and among the top in the country, within the group of FAs with LOS of less than three years. In October 2010, however, DeSalvatore was bumped down from being first in line within that group in her office to receive an account distribution, according to Defendants’ official account redistribution policy, because of account distributions to two junior male FAs that circumvented the account redistribution policy. These two junior male FAs were allowed to join partnerships (otherwise known as “teams”) with more senior FAs. Although the junior male FAs had lower production numbers than DeSalvatore, they received dozens of account transfers through the partnerships, consisting of millions of dollars in assets. Because of the account transfers, these two junior male FAs had priority over DeSalvatore in the account distribution system for a quarter.
162. DeSalvatore also has witnessed other examples of account transfers to male FAs outside the “official” account distribution process. On multiple occasions, senior male FAs have given accounts to junior male FAs or male FAs in the POA program, but not to junior female FAs like DeSalvatore or female FAs in the POA program.
163. Management also often transfers accounts to male FAs under the “exceptions” to the account distribution process. These “exceptions” swallow the official policy
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because they are abused and not limited in the way they are used. The account distributions that DeSalvatore has received generally have been characterized as “per ranking,” which means they purportedly have been distributed according to her ranking, but account transfers to the male FAs in her office are often made because of “Client FA Request” or “FA Expertise/Niche” -exceptions to the account distribution ranking. This has been true even when DeSalvatore knows or has good reason to believe that there has been no client request or when the FA is more junior than DeSalvatore and does not have an expertise different from DeSalvatore’s.
164. Management also uses partnerships as a way to further benefit male FAs. On several occasions, management encouraged struggling FAs to partner with particular senior male FAs. The senior male FAs received all of the struggling FAs’ accounts under the partnership rules when the struggling FAs left the firm. This allowed managers to transfer accounts to male FAs outside of the account distribution policy. DeSalvatore has never received accounts this way.
165. Other business opportunities also are distributed unfairly to the benefit of male FAs over female FAs. For example, when DeSalvatore inquired in the Fall of 2010 about initial public offering (“IPO”) opportunities, she was told that they had been previously distributed to only three male FAs. Even after her inquiry, she initially received only a small share even though DeSalvatore has a larger client than other male FAs who received larger shares of the IPOs.
166. DeSalvatore has rarely received any call-ins or walk-ins during the time that she has worked for Merrill. However, one junior male FA regularly receives call-ins and walk-ins. This junior male FA is friendly with many of the senior male FAs and managers in the
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office, and he is often invited to go on golf outings with them. DeSalvatore has rarely been invited to join them on such outings.
167. Management has made modifications to a male FA’s LOS to benefit the male FA within DeSalvatore’s branch. When a male FA who has been with Merrill for over 20 years was struggling to meet his minimum production requirements, management promoted him to a non-producing role for a limited amount of time and re-set his LOS to zero when he returned to a producing role. Re-setting the LOS in this way qualified the male FA for higher grid payouts for the same level of production he would have been able to receive if his LOS accurately reflected his over 20 years of experience. DeSalvatore has never witnessed management make such an adjustment for a female FA returning to the producing side of the business.
168. There is also no transparency as to who is chosen for leadership positions. For example, a male FA who is more junior to DeSalvatore and who has lower production than DeSalvatore was recently chosen to be a POA Coach, which helps his production and gives him extra compensation. DeSalavatore has never been chosen to be a POA coach.
169. DeSalvatore also has been discriminated against on the basis of her sex with respect to office assignments. Office assignments are supposed to be made according to production levels. However, DeSalvatore was not given an office until February 2010, despite requesting one from management. Other male FAs with lower production numbers than hers were given offices much earlier. Not having an office forced DeSalvatore to work from home more often than she wanted because of the constant unprofessional language and comments used in the area where she was sitting. Recently, management asked her to move to a smaller office,
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although male FAs with lower production than DeSalvatore’s have larger offices and were not asked to move offices.
170. DeSalvatore has had only sporadic sales assistant coverage as an FA despite repeated requests to management for more consistent coverage. The inadequate assistance has made it difficult for her to service her clients, as she often did not have a sales assistant to take her calls while she was at client meetings and her manager at the time forbid her from giving her cell phone number to clients. By comparison, more junior male FAs with lower production numbers were receiving consistent coverage during the same time period and were allowed to use their cell phones for client calls. To this date, DeSalvatore still receives inferior sales assistant coverage relative to similarly-situated male FAs, and receives inferior coverage even relative to male FAs with lower production numbers than her.
171. Merrill has discriminated against DeSalvatore on the basis of her gender by denying her business opportunities that directly impact her compensation and by subjecting her to inferior terms and conditions of employment. DeSalvatore has been a top performer despite this discrimination, but she could have excelled further if Merrill had given her the same opportunities that it gives to male FAs. In fact, instead of encouraging her development as it does with other male FAs, management has been attempting to reach out to DeSalvatore’s largest client without her and threatening to limit her business in a way it never does with male FAs.
172. On or about March 11, 2011, DeSalvatore filed a charge of discrimination with the NJDCR and EEOC. On September 19, 2011, she received a Notice of Right to Sue for her charge of discrimination from the EEOC.
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CAUSES OF ACTION FIRST CLAIM FOR RELIEF Sex Discrimination in Wages (Equal Pay Act, 29 U.S.C. § 206, et seq.) (On Behalf of All Plaintiffs and the Federal EPA Class) 173. Plaintiffs incorporate the preceding paragraphs as alleged above. 174. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Federal EPA Class. 175. At all relevant times, each Defendant has been, and continues to be, an “employer” within the meaning of 29 U.S.C. § 203. At all relevant times, Defendants have employed, and continue to employ, “employee[s],” including Plaintiffs and each of the Federal EPA Collective Plaintiffs, within the meaning of 29 U.S.C. § 203. 176. Attached hereto as Exhibit 6 are the Consent to Sue forms signed by Plaintiffs in this action pursuant to 29 U.S.C. §§ 216(b) and 256. It is likely that other similarlysituated individuals will sign consent forms and join as Plaintiffs on this claim in the future. 177. The claims of the collective action plaintiffs should be tolled such that they all date back to August 2, 2007, rather than three years back from the time they file their respective consents to sue. The parties had entered into a tolling agreement providing for the tolling of all claims relating to Plaintiffs’ work for Defendants. In addition, Plaintiffs did not know, and could not through reasonable diligence have known, of Defendants’ pattern and practices of paying women less than men for work of equal skill, effort, and/or responsibility. 178. The Equal Pay Act of the Fair Labor Standards Act, 29 U.S.C. § 206 et seq., makes it unlawful for an employer to discriminate between employees on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work.
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179. Plaintiffs and the Federal EPA Class were paid lower wages than male FAs for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.
180. Defendants willfully paid Plaintiffs and the Federal EPA Class less than they paid male FAs who were performing substantially equal work.
181. The foregoing conduct, as alleged, constitutes a willful violation of the Federal Equal Pay Act within the meaning of 29 U.S.C. § 255(a).
182. Plaintiffs request relief as hereinafter described. SECOND CLAIM FOR RELIEF
Rate of Pay Differential Because of Sex (New York Equal Pay Act, N.Y. Labor Law § 194, et seq.)
(On Behalf of Dianne Goedtel and the NY EPA Class) 183. Plaintiff Goedtel incorporates the preceding paragraphs as alleged above. 184. This Claim is brought on behalf of Plaintiff Goedtel and the NY EPA Class. 185. New York’s Equal Pay Act, N.Y. Labor Law § 194 et seq., makes it unlawful for an employee to be paid a wage at a rate less than the rate at which an employee of the opposite sex is paid for equal work. 186. Plaintiff and the NY EPA Class were paid lower wages than male FAs for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. 187. Defendants intentionally paid Plaintiff and the NY EPA Class less than they paid male FAs who were performing substantially equal work. 188. The foregoing conduct constitutes sex discrimination with respect to wages in violation of the NY EPA.
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189. Plaintiff requests relief as hereinafter described. THIRD CLAIM FOR RELIEF Intentional Discrimination
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of All Plaintiffs and the Title VII Class)
190. Plaintiffs incorporate the preceding paragraphs as alleged above.
191. This Claim is brought by all Representative Plaintiffs on behalf of
themselves and the Title VII Class they represent. Plaintiffs have timely filed charges with the
EEOC making classwide claims of discrimination as well as individual claims, and have thus
exhausted their administrative remedies.
192. Defendants have engaged in an intentional, company-wide, and systematic
pattern or practice of discrimination against female FAs. The discriminatory acts that constitute
Defendants’ pattern or practice of discrimination occurred both within and outside the liability
period in this case.
193. Defendants have engaged in an intentional, company-wide, and systematic
policy, pattern, and/or practice of discrimination against its female FAs by, among other things:
(a) intentionally maintaining and utilizing a compensation system that perpetuates and increases discrimination against female Financial Advisors;
(b) implementing company-wide policies and practices that rely heavily on past performance as a criterion for account distributions, compensation, corporate titles, and other terms and conditions of employment;
(c) implementing company-wide policies and practices that are discriminatory, unvalidated, standardless, and/or arbitrary;
(d) allowing managers to make decisions affecting FA compensation on an ad hoc basis and based on inconsistently applied criteria;
(e) permitting deviations to the compensation and account distribution systems that unfairly favor male FAs; and
(f) failing and refusing to take reasonable and adequate steps to
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prevent and correct the use of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment. 194. Defendants’ discriminatory policies or practices described above have denied female FAs business opportunities and compensation, in the form of lost past and future wages and other job benefits, as compared to similarly-situated male Financial Advisors. 195. Defendants have intentionally discriminated against Plaintiffs and the Title VII Class by maintaining a pattern or practice of denying business opportunities that directly affect compensation to qualified female FAs on the basis of sex. The foregoing conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by 42 U.S.C. §§ 2000e et seq. 196. Plaintiffs request relief as hereinafter described. FOURTH CLAIM FOR RELIEF Disparate Impact Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of All Plaintiffs and the Title VII Class) 197. Plaintiffs incorporate the preceding paragraphs as alleged above. 198. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Title VII Class they represent. Plaintiffs have timely filed charges with the EEOC making classwide claims of discrimination as well as individual claims, and have thus exhausted their administrative remedies. 199. Defendants’ reliance on illegitimate and unvalidated procedures and criteria to compensate FAs and distribute accounts and business opportunities have an adverse impact on female FAs in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such systems and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
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200. Plaintiffs request relief as hereinafter described. FIFTH CLAIM FOR RELIEF Intentional Discrimination
(NYSHRL, New York Executive Law § 296 et seq.) (On Behalf of Dianne Goedtel and the New York Subclass) 201. Plaintiff Goedtel incorporates by reference each allegation of each
preceding paragraph.
202. Defendants have maintained a system that discriminates on the basis of
gender with respect to upfront money, account distributions, partnerships, other business
opportunities, compensation, corporate titles, and other terms and conditions of employment.
203. Defendants have intentionally discriminated against Plaintiff Goedtel and
the New York Subclass in violation of NYSHRL by, among other things:
(a) intentionally maintaining and utilizing a compensation system that perpetuates and increases discrimination against female Financial Advisors;
(b) implementing company-wide policies and practices that rely heavily on past performance as a criterion for account distributions, compensation, corporate titles, and other terms and conditions of employment;
(c) implementing company-wide policies and practices that are discriminatory, unvalidated, standardless, and/or arbitrary;
(d) allowing managers to make decisions affecting FA compensation on an ad hoc basis and based on inconsistently applied criteria;
(e) permitting deviations to the compensation and account distribution systems that unfairly favor male FAs; and
(f) failing and refusing to take reasonable and adequate steps to prevent and correct the use of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment.
204. The foregoing conduct constitutes illegal, intentional discrimination
prohibited by New York Executive Law § 296 et seq.
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205. Plaintiff requests relief as hereinafter described. SIXTH CLAIM FOR RELIEF Disparate Impact Discrimination
(NYSHRL, New York Executive Law § 296 et seq.) (On Behalf of Dianne Goedtel and the New York Subclass) 206. Plaintiff Goedtel incorporates the preceding paragraphs as alleged above. 207. Defendants’ reliance on illegitimate and unvalidated systems and criteria to compensate FAs and distribute accounts and business opportunities have an adverse impact on female FAs in violation of the NYSHRL and are not, and cannot be, justified by business necessity. Even if such systems and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. The foregoing conduct constitutes illegal discrimination prohibited by New York Executive Law § 296 et seq. 208. Plaintiff requests relief as hereinafter described.
SEVENTH CLAIM FOR RELIEF Gender Discrimination
(Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq.) (On Behalf of Judy Calibuso and Julie Moss and the Florida Subclass)
209. Plaintiffs Calibuso and Moss incorporate the preceding paragraphs as alleged above.
210. This Claim is brought on behalf of Plaintiffs Calibuso and Moss and the Florida Subclass.
211. As described herein, Defendants’ actions constitute gender discrimination in violation of the Florida Civil Rights Act of 1992 (“FCRA”). Plaintiffs Judy Calibuso and Julie Moss have both timely complied with all prerequisites to sue. They have both filed charges of gender discrimination with the FCHR and the EEOC.
212. Plaintiffs request relief as hereinafter provided.
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EIGHTH CLAIM FOR RELIEF Gender Discrimination
(Missouri Human Rights Act, RSMo. § 213.010 et seq.) (On Behalf of Jean Evans and the Missouri Subclass) 213. Plaintiff Evans incorporates the preceding paragraphs as alleged above. 214. This Claim is brought on behalf of Plaintiff Evans and the Missouri Subclass. 215. As described herein, Defendants’ actions constitute gender discrimination in violation of the Missouri Human Rights Act (“MHRA”). Plaintiff Evans has timely complied with all prerequisites to sue. She has filed a charge of gender discrimination with the MCHR and the EEOC. 216. Plaintiff requests relief as hereinafter provided.
NINTH CLAIM FOR RELIEF Gender Discrimination
(New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq.) (On Behalf of Mary DeSalvatore and the New Jersey Subclass) 217. Plaintiff DeSalvatore incorporates the preceding paragraphs as alleged
above. 218. This Claim is brought on behalf of Plaintiff DeSalvatore and the New
Jersey Subclass. 219. As described herein, Defendants’ actions constitute gender discrimination
in violation of the New Jersey Law Against Discrimination (“NJ LAD”). Plaintiff DeSalvatore has timely complied with all prerequisites to sue. She has filed charges of gender discrimination with the NJDCR and the EEOC.
220. Plaintiff requests relief as hereinafter provided.
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Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 51 of 58 PageID #: 1845
TENTH CLAIM FOR RELIEF Sexual Harassment
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of Plaintiff Evans Individually)
221. Plaintiff Evans incorporates by reference each allegation of each preceding paragraph.
222. This Claim is brought by Plaintiff Evans individually. 223. Defendants illegally sexually harassed Evans in violation of Title VII. 224. As a result of Defendants’ illegal actions, Evans has suffered damages. 225. Plaintiff requests relief as hereinafter described.
ELEVENTH CLAIM FOR RELIEF Sexual Harassment
(Missouri Human Rights Act, RSMo. § 213.010 et seq.) (On Behalf of Jean Evans Individually)
226. Plaintiff Evans incorporates by reference each allegation of each preceding paragraph.
227. This Claim is brought by Plaintiff Evans individually. 228. Defendants illegally sexually harassed Evans in violation of the MHRA. 229. As a result of Defendants’ illegal actions, Evans has suffered damages. 230. Plaintiff requests relief as hereinafter described.
TWELFTH CLAIM FOR RELIEF Retaliation
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of Plaintiffs Calibuso, Moss, Goedtel, and Evans Individually)
231. Plaintiffs incorporate the preceding paragraphs as alleged above. 232. This Claim is brought by Plaintiffs Calibuso, Moss, Goedtel, and Evans individually. Plaintiffs have timely filed charges with the EEOC alleging retaliation claims and have thus exhausted their administrative remedies.
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233. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC complaining of Defendants’ discriminatory policies and practices.
234. Defendants took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct.
235. Plaintiffs request relief as hereinafter described. THIRTEENTH CLAIM FOR RELIEF Retaliation
(NYSHRL, New York Executive Law § 296 et seq.) (On Behalf of Dianne Goedtel Individually)
236. Plaintiff Goedtel incorporates by reference each allegation of each preceding paragraph.
237. This Claim is brought by Plaintiff Goedtel individually. 238. Goedtel engaged in protected activities, including making internal complaints of unlawful discrimination and filing a charge with the EEOC complaining of Defendants’ discriminatory policies and practices. 239. Defendants took adverse actions against Goedtel with the purpose of retaliating against her because of her participation in protected activities, and Goedtel suffered damages as a result of that conduct. 240. Plaintiff requests relief as hereinafter described.
FOURTEENTH CLAIM FOR RELIEF Retaliation
(Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq.) (On Behalf of Judy Calibuso and Julie Moss Individually) 241. Plaintiffs Calibuso and Moss incorporate the preceding paragraphs as alleged above.
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Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 53 of 58 PageID #: 1847
242. This Claim is brought on behalf of Plaintiffs Calibuso and Moss individually.
243. Calibuso and Moss engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC complaining of Defendants’ discriminatory policies and practices.
244. Defendants took adverse actions against Calibuso and Moss with the purpose of retaliating against them because of their participation in protected activities, and Calibuso and Moss suffered damages as a result of that conduct.
245. Plaintiffs request relief as hereinafter provided. FIFTEENTH CLAIM FOR RELIEF Retaliation
(Missouri Human Rights Act, RSMo. § 213.010 et seq.) (On Behalf of Jean Evans Individually)
246. Plaintiff Evans incorporates the preceding paragraphs as alleged above. 247. This Claim is brought on behalf of Plaintiff Evans individually. 248. Evans engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC complaining of Defendants’ discriminatory policies and practices. 249. Defendants took adverse actions against Evans with the purpose of retaliating against her because of her participation in protected activities, and Evans suffered damages as a result of that conduct. 250. Plaintiff requests relief as hereinafter provided.
ALLEGATIONS REGARDING RELIEF 251. Plaintiffs and the Classes they seek to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief they
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Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 54 of 58 PageID #: 1848
seek in this action is the only means of securing complete and adequate relief. Plaintiffs and the
Classes they seek to represent are now suffering, and will continue to suffer, irreparable injury
from Defendants’ discriminatory acts and omissions.
252. Defendants’ actions have caused and continue to cause Plaintiffs and all
Class members substantial losses in earnings and other employment benefits.
253. In addition, Representative Plaintiffs and the Class suffer and continue to
suffer humiliation, embarrassment, and anguish, all to their damage in an amount according to
proof.
254. Defendants performed the acts herein alleged with malice or reckless
indifference. Plaintiffs and Class members are thus entitled to recover punitive and/or double
damages in an amount according to proof.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and all members of the Federal
EPA Class, pray for relief as follows:
(a) Designation of this action as a collective action on behalf of the Federal EPA Collective Plaintiffs (asserting federal Equal Pay Act claims) and prompt issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly-situated members of the Federal EPA OptIn Class, apprising them of the pendency of this action, and permitting them to assert timely Equal Pay Act claims in this action by filing individual Consent to Sue forms pursuant to 29 U.S.C. § 216(b);
(b) Designation of Plaintiffs as Representatives of the Federal EPA Class;
(c) A declaratory judgment that the practices complained of herein are unlawful under the Federal Equal Pay Act;
(d) An award of damages, according to proof, including liquidated damages, to be paid by Defendants;
(e) Costs of action incurred herein, including expert fees;
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follows:

(f) Attorneys’ fees, including fees pursuant to 29 U.S.C. § 216;
(g) Post-Judgment interest, as provided by law; and
(h) Such other legal equitable relief as this Court deems necessary, just, and proper.
WHEREFORE, Plaintiffs on behalf of themselves and the Class, pray for relief as
(a) Certification of the case as a class action on behalf of the proposed Class and the proposed Subclasses;
(b) Designation of Representative Plaintiffs Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore as representatives of the Title VII Class; designation of Plaintiff Goedtel as representative of the NY EPA Subclass and the New York Subclass; designation of Plaintiffs Calibuso and Moss as representatives of the Florida Subclass; designation of Plaintiff Evans as representative of the Missouri Subclass; and designation of Plaintiff DeSalvatore as representative of the New Jersey Subclass;
(c) Designation of Representative Plaintiffs’ counsel of record as Class counsel;
(d) A declaratory judgment that the practices complained of herein are unlawful and violate 42 U.S.C. §§ 2000e, et seq. and, with respect to Plaintiff Goedtel and the NY EPA Subclass and the New York Subclass, the New York Equal Pay Act, N.Y. Labor Law § 194, et seq. and New York Executive Law § 296 et seq., with respect to Plaintiffs Calibuso and Moss and the Florida Subclass, the Florida Civil Rights Act of 1992, F.S.A. §§ 760.01, et seq., with respect to Plaintiff Evans and the Missouri Subclass, the Missouri Human Rights Act, RSMo. § 213.010 et seq; and with respect to Plaintiff DeSalvatore and the New Jersey Subclass, the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq.;
(e) A preliminary and permanent injunction against Defendants and their officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs, and usages set forth herein;
(f) An order that Defendants institute and carry out policies, practices, and programs that provide equal employment opportunities for all employees regardless of gender, and that it eradicate the effects of

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follows:

their past and present unlawful employment practices;
(g) An order requiring Defendants to develop and institute accurate and validated standards for determining compensation, assigning accounts, assigning job opportunities, and determining other terms and benefits of employment;
(h) An order appointing a monitor to ensure that Defendants comply with the injunction provisions of any decree that the Court orders;
(i) An order retaining jurisdiction over this action to ensure that Defendants comply with such a decree;
(j) An order restoring Plaintiffs and Class members to their rightful positions at BofA, or in lieu of reinstatements, an order for front pay benefits;
(k) Back pay (including interest and benefits) for the Representative Plaintiffs and Class and Subclass members;
(l) All damages sustained as a result of Defendants’ conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof;
(m) Full wages, benefits, and wage supplements, as well as liquidated damages found to be due, pursuant to N.Y. Labor Law §§ 194 and 198;
(n) Exemplary and punitive damages in an amount commensurate with Defendants’ ability to pay and to deter future conduct;
(o) Costs incurred herein, including reasonable attorneys’ fees to the extent allowable by law;
(p) Pre-judgment and post-judgment interest, as provided by law; and
(q) Such other and further legal and equitable relief as this Court deems necessary, just, and proper.
WHEREFORE, Plaintiffs on behalf of themselves individually, pray for relief as
(a) Injunctive relief and equitable remedies, including front pay and back pay;

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Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 57 of 58 PageID #: 1851

(b) Damages for retaliation and sexual harassment, including damages for emotional distress, humiliation, embarrassment, and anguish, to be determined according to proof; and
(c) Such other relief as the Court may deem necessary, just, and proper.
JURY DEMAND
255. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs
demand a trial by jury in this action, for those claims so triable.

Dated: New York, New York October 5, 2011

Respectfully submitted,
By: /s/ Adam T. Klein Adam T. Klein
OUTTEN & GOLDEN LLP Adam T. Klein Justin M. Swartz Cara E. Greene Mariko Hirose Reena Arora 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

57

Case 2:10-cv-01413-PKC-AKT Document 108 Filed 10/05/11 Page 58 of 58 PageID #: 1852 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Rachel Geman 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 Attorneys for Plaintiffs and the Putative Class
58

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-1413 (JFB)(ETB) _____________________

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, AND MARY DESALVATORE ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,

VERSUS

BANK OF AMERICA CORPORATION, MERRILL LYNCH & CO., INC. AND MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,
Defendants.

___________________
MEMORANDUM AND ORDER September 27, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Judy Calibuso (“Calibuso”), Julie Moss (“Moss”), Dianne Goedtel (“Goedtel”), Jean Evans (“Evans ”) and Mary DeSalvatore (“DeSalvatore”) (collectively “plaintiffs”) comm enced this action on behalf of themselves and all others similarly situated, against Bank of Am erica Corporation (“BofA,” “ BOA” or “ Bank of America”), Merrill Ly nch & Co. (“ML”) and Merrill Lynch, Pierce, Fenner & Sm ith (“MLPF&S”)1 (collectively “defen dants”), claiming that the d efendants’ unvalidated compensation and account distribution systems cause a disparate im pact on women because, inter alia, they rely on tainted

criteria and are implem ented in a discriminatory manner. Spec ifically, plaintiffs claim that the defendants have violated the Equal Pay Act, 29 U.S.C. § 206, et seq. (the “EPA”), the New York Equal Pay Act New York Labor Law § 194 et seq. (the “NY EPA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the New York State s Human Rights Law, New York Executive Law § 296 et seq. (“NYSHRL”), the Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq. (“FCRA”), the Missouri Hum an Rights Act RSMo. § 213.010 et seq. (“MHRA”), and the New Jersey Law Against Discrimination, NJ.S.A. § 10:5-1 et seq. (“NJ LAD”).

1 ML and MLPF&S will collectively be referred to as “Merrill” or “Merrill Lynch” throughout this opinion.

Defendants have m oved to dism iss and/or strike the class claims in plaintiffs’ third amended complaint. Specifically, defendants argue the following: (1) the disparate impact claim as it r elates to the production and merit based policies must be dismissed as a m atter of law because thes e policies are immune from attack pursuant to § 703(h) of Title VII; (2) pursu ant to th e Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes , 131 S. C t. 2541 (2011), the challenge to defendants’ policies that allow manager discretion to make discriminatory decisions cannot be sustained; (3) defendants’ comm ission plans do not need to be validated; and (4) the disparate impact theory is outside of plaintiffs’ EEOC charges. Moreover, defendants contend that the proposed classes are overbroad and include tim e-barred claims.
For the reasons set forth below, the Court denies the defendants’ motion to dismiss for failure to exhaust, and denies the remainder of the motion without prejudice to defendants asserting th ese various grounds in response to plaintiffs’ class certification motion.
The primary argument in defendants’ motion is that class claims are precluded, as a matter of law, by the Suprem e Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2551 (2011). Specifically, defendants argue that plaintiffs have not (and cannot) plausibly state a d isparate impact claim that can satisfy the commonality requirements under Rule 23(a) after Dukes. This Court disagrees. The fatal flaw identified by the Suprem e Court in Dukes was that th e class claim s alleged discrimination by local m anagers exercising their broad, subjectiv e discretion in the absence of any policies, which by its very nature could not sa tisfy the commonality

requirement of Rule 23(a)(2). However, the Supreme Court m ade clear that a putative class could satisfy commonality, even where there is subjective decisionmaking involved, if the subjective d ecisionmaking was “operated under a ge neral policy of discrimination.” Id. at 2553. That is precisely what plaintiffs allege here. In the third amended complaint, plaintiffs assert that specific employment practices – namely, the criteria of the compensation and account distribution system s – systematically favor male Financial Advisors at BOA, and result in a discriminatory impact on fe male Financial Advisors. The fact that these criteria within the general policy m ay involve some level of discretion does not automatically preclude such class claim s under Rule 23(a)(2) at this junctu re of the proceedings, prior to certification. The critical question is whether plaintiffs, after discovery, can show that the alleged discriminatory policies have resulted in a “comm on mode of exercis ing discretion that p ervades the entire company.” Id. at 2554-55. Sim ilarly, defendants’ argument that Section 703(h) of Title VII p recludes any disparate impact claims based upon the comm ission and distribution policies, because they are m erit and production based system s, is equally unavailing at the m otion to dism iss stage. Plaintiffs here alleg e that (1) th e compensation and account distribution systems are not m erit or production based, but rather are govern ed by tainted and discriminatory criteria, and (2) defendants intentionally discriminated in im plementing these policies. Such allega tions are sufficient to survive def endants’ motion to dismiss and/or strike the class claims.
The Court recognizes that the m ere existence of a unifor m employment policy, including those involving com pensation and commissions, does not necessarily mean that

2

a disparate im pact claim based upon that policy will be subject to common proof, or that there will be co mmon questions with common answers for th e class as a whole, such that Rule 23(a ) will be satisfied. In fact, defendants em phatically contend that “[t]he undeniable reality is that every FA in the proposed disparate im pact class experienced the challenged policies and practices in unique ways .” (Defs.’ Br. at 10.) That m ay or may not be the case here, but the core problem with defendants’ argument is that it is pre mature at this point in the litigation. In other words, because plaintiffs have alleged a plausib le disparate impact claim that can survive th e legal strictures of Dukes, an analys is of whether there is a s ufficient factual basis for these allegations can only be decided in conjunction with plaintiffs’ anticipated class certification motion, in which plaintiffs (with the benefit of discovery) will have the burden of producing “significant proof” that the requirements of Rule 23(a), including commonality, are met. Dukes, 131 S. Ct. at 2553. Thus, the Court emphasizes that it has not concluded that this case will ultim ately satisfy Rule 23(a) under Dukes; rather, the Court merely has deter mined that plain tiffs have alleged a plausib le, disparate impact claim under Dukes that requires the Court’s full consideration in th e context of a class certification motion. Acc ordingly, defendants’ motion is denied, without prejudice to raising these arguments and issues in their oppositi on to the anticipated class certification motion.

I.

BACKGROUND

A. Facts

The following facts are taken from the third amended complaint and are not findings of fact by the Court. Instead, the Court assumes these facts to be true for

purposes of deciding the pending motion to dismiss and/or strike the class claim s, and will construe them in a light m ost favorable to plaintiffs, the non-moving party.

1. Plaintiffs

Calibuso lives in Miam i-Dade County,

Florida, and has been e mployed by the

defendants as a financ ial advisor (“FA”)

since approximately 1995. (Third Am ended

Complaint (the “TAC”) ¶¶

9-10.)

Specifically, Calibuso began working for

Barnett Bank, which was acquired by

BofA’s predecessor firm in or around

January 1998, and since January 1998, she

has been employed by BofA as an FA and

currently works in the Bricknell Avenue

office of Merrill in Miam i, Florida. (TAC

¶ 100.) Calibuso filed a charge of

discrimination, individually and on behalf of

all similarly-situated female FAs with th e

Equal

Employment

Opportunity

Commission (“EEOC”) on January 10,

2007, and her charge is considered dually

filed with the Florida Comm ission on

Human Rights (“FCHR”), pursuant to the

EEOC’s worksharing agreement. (Id. ¶ 35.)

Calibuso filed a supplem ental charge of

retaliation on March 4, 2008. ( Id.) By

notice dated June 17, 2008, the EEOC

dismissed her case and issued a N otice of

Right to Sue. (Id.) Sh e filed an a dditional

supplemental charge of retaliation on

November 19, 2010, and by notice dated

September 30, 2011, the EEOC dism issed

Calibuso’s additional supplem ental charge

of retaliation and issued a Notice of Right to

Sue. (Id.)

Moss lives in Jefferson County, Louisiana and was e mployed as an FA at BofA from March 2003 to October 2006. (Id. ¶¶ 11-12.) Specifically, she w as hired by BofA on March 15, 2003 as an Assistant Vice President/Financial Advisor. ( Id.

3

¶ 118.) P laintiffs allege that, through BofA’s misconduct, BofA constructively discharged Moss, forc ing her to resign effective October 27, 2006. ( Id. ¶ 126.) On April 5, 2007, she filed a charge of discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated and, pursuant to the EEOC workshare agreement, her claim is considered dually filed with the FCHR. (Id. ¶ 36.) By notice dated June 17, 2008, the EEOC dismissed Moss’s case and issued a Right to Sue letter. (Id.)
Goedtel lives in Suffolk County, New York, and was em ployed by BofA in its Melville, Long Island Office, as an FA fro m approximately February 3, 2006 to September 20, 2007. ( Id. ¶¶ 13-14, 130.) Plaintiffs allege that, as a result of discrimination and retaliation, BofA constructively discharged Goedtel f rom her employment with BofA on September 20, 2007. ( Id. ¶ 136.) Goedtel filed her charge of discrimination and reta liation with the EEOC individually and on behalf of others similarly situated on Novem ber 12, 2007, and by notice dated May 21, 2008, the EEOC dismissed Goed tel’s case an d issued a Notice o f Right to Sue. ( Id. ¶ 37.) Pursuant to the works hare agreement with the New York State Division of Hu man Rights (“NYSDHR”), her charge was dually filed with the NYSDHR. (Id.)
On August 19, 2008, Calibuso, Moss and Goedtel, on behalf of themselves and all others similarly situated, ente red into a Tolling Agreement (the “Tolling Agreement”) with B ank of Am erica Corporation, Bank of Am erica, N.A., and Banc of America Invest ment Services, Inc., that tolled Calibuso, Moss and Goedtel’ s right to sue through April 5, 2010. (Defs.’ Ex. B; TAC ¶¶ 35-37.)

Evans lives in St. Louis County, in Missouri, and was em ployed by the defendants as an FA from December 2007 through November 2010. (TAC ¶ ¶ 15-16.) Evans worked for Merrill as an F A from about December 17, 2007 to Novem ber 5, 2010 in Merrill’s C hesterfield, Missouri Office. (Id. ¶ 139.) According to plaintiffs, Evans was constructively discharged and forced to resign on Novem ber 5, 2010. ( Id. ¶ 154.) On June 17, 2010, she filed her charge of discrim ination with th e EEOC individually and on behalf of others similarly situated, which is co nsidered dually filed with the Missour i Commission on Human Rights (“MCHR”) pursuant to the worksharing agreement. ( Id. ¶ 38.) By notice dated August 19, 2010, the EEOC dismissed Evans’ case and issued a Notice of Right to Sue. ( Id.) She also filed a supplemental charge of retaliation on October 15, 2010, and by notice dated September 27, 2011, the EEOC issued a Notice of Right to Sue for the supplem ental charge of retaliation. (Id.)
DeSalvatore lives in Monm outh County, New Jersey, and is presently em ployed by defendants as an FA. ( Id. ¶¶ 17-18.) She has held that position since 2006 when she joined Merrill’s Paths of Achievement program, which she graduated from in August 2008. ( Id. ¶¶ 18, 156.) On March 11, 2011, she filed her charge of discrimination with the EEOC individually and on behalf of all others similarly situated, and pursuant to th e worksharing agreem ent with the New Jersey Division of Civil Rights (“NJ DCR”), her charge is considered dually f iled with the NJ DCR. (Id ¶ 39.) By notice dated Septem ber 16, 2011, the EEOC issued a Notice of Right to Sue. (Id.)

4

2. Acquisition of Merrill Lynch by Bank of America
On January 1, 2009, BofA com pleted its acquisition of Merrill and brought together BofA’s retail brokerage unit, Banc of America Investment Services, Inc. (“BAI”), with Merrill’s brokerage operations, MLPF&S. ( Id. ¶ 43.) Upon inform ation and belief, plaintiffs allege that, after the merger, BofA kept MLPF&S as a wholly owned subsidiary and “swept its ‘legacy’ Financial Advisors who had worked for BAI into MLPF&S.” ( Id.) Plaintiffs allege that defendants’ company-wide policies and practices relating to setting compensation and distributing clie nt accounts, which discriminate against fem ale FAs, have remained largely the same. (Id. ¶ 44.)
3. Defendants’ Compensation Policies and Practices
Plaintiffs allege that defendants’ compensation policies and practices have applied to all FAs in all of defendants’ branches throughout the liability period. (Id. ¶ 45.) They also allege that fem ale FAs have earned materially less than s imilarly situated FAs throughout every year of the class-liability period b ecause defendants’ common and unvalidated com pany-wide compensation policies and practices have a discriminatory impact on female FAs. ( Id. ¶ 47.)
Defendants pay their F As commissions according to commission grids set out in the nationwide compensation plan. ( Id. ¶ 49.) The percentage payout schedule for the commission grid is ba sed in large part on production credits associated with each FA. (Id.) A production credit is based on the value of comm issions or fees associated with a pa rticular transaction or service

charge relating to a particular client account. (Id.)
The operation of com mission grids also depends in part on the FA’s length of service (“LOS”) in the industry based on registration information maintained by the Financial Industry Regulatory Authority (“FINRA”). (Id. ¶ 50.) LOS impacts FA compensation because the longer FAs are in the industry, the m ore they are expected to earn in pro duction credits to m aintain their income. ( Id. ¶ 52.) Plaintiffs allege that management adjusts LOS for various reasons in favor of male FAs, and thus, defendants’ determination of an FA’s LOS is based on unreliable and unvalidated criteria. (Id.)
Production credits impact an FA’s compensation because the higher an FA’s production, the higher the FA’s overall percentage payout from the grid. ( Id. ¶ 53.) Production credits can be generated by accounts that the FA m anages and management can also assign production credits to F As of their own choosing from “house accounts” or from other FAs through a uniform, systematically documented and unvalidated company-wide procedure that allegedly has an adverse im pact on the compensation of female FAs. (Id.)
Moreover, plaintiffs allege th at the defendants direct th e distribution of accounts and business opportunities through uniform, systematically documented, and unvalidated company-wide procedures that favor male FAs over female FAs. (Id. ¶ 54.) Plaintiffs also allege that defendants perm it deviations from the grid in favor of m ale FAs. ( Id. ¶ 55.) The deviat ions allegedly result from, among other things, adjustments to payments, forgiveness of excess compensation, and negotiation with lateral

5

recruits of guaranteed payout from the grid for a certain amount of time. (Id.)
Defendants offer compensation packages to lateral recruits that include “upfront money” (forgivable lo ans that defendants extend to new FAs) and back-end bonuses (bonuses that new FA s may earn after joining the company if the FAs meet certain targets). (Id. ¶ 56.) According to plaintiffs, defendants offer these packages to lateral recruits using system atically documented and unvalidated criteria that have an adverse impact on the com pensation of female FAs. (Id. ¶ 57.)
According to plaintiffs, defendants also pay bonuses to their FAs through a uniform , systematically documented and unvalidated company-wide procedure using criteria that have an adverse impact on the compensation of female FAs. (Id. ¶ 58.)
4. Alleged Discriminatory Impact of Defendants’ Policies and Practices
The accounts and business opportunities that defendants distri bute typically com e from one of four sources: (1) when individuals call or walk into the office to open a new account; (2) “leads” and “referrals”; (3) when an FA departs from the firm; and (4) through company-permitted partnership or team s, in which an FA partners or team s with other FAs an d splits the partnership’s earned revenue according to a negotiated or predeterm ined ratio, or in which an FA partners with a BAI em ployee in another line of business, whereby the partner refers accounts to the FA. ( Id. ¶ 60.) According to defendants’ account distribution policy, acco unts are distributed through an FA ranking system that is based on a series of criteria including past revenue and quintile ranking (t he FA’s ranking in

that category compared to other FAs within the same LOS). (Id. ¶ 61).
According to plain tiffs, when an FA receives an account, the FA gains not only the value of the account and the production credits it g enerates, the FA also gets th e opportunity to grow that client’s account to increase the value and generate m ore revenue and the opportunity to gain new clients through that clie nt’s referrals. ( Id. ¶ 64.) According to pl aintiffs, defendants’ distribution policies have a discrim inatory impact on the num ber of, and type of, accounts that fe male FAs receive from defendants, and therefore, there is a discriminatory impact on com pensation. (Id. ¶ 65.)
Moreover, plaintiffs claim that, by using the tainted variable of past performance as a criterion for com pensation and account distribution, defendants further perpetuate the gender-based com pensation disparities and create a cum ulative advantage for male FAs based on systematically docum ented and unvalidated criteria that has an adverse impact on fe male FAs. ( Id. ¶ 66.) According to plaintiffs, the account distribution policy rewards FAs who have generated more revenue in the past by ranking them higher on th e distribution list to receive accounts, and thus, when a m ale FA receives an acco unt, the revenue generated by that account allows him to earn greater and m ore lucrative accounts in the future. ( Id. ¶ 67.) Ac cording to plaintiffs, by disproportionately giving a greater number of accounts and m ore lucrative accounts to m ale FAs, defendants use unvalidated criteria that advantage male FAs and enable them to secur e additional accounts and other business opportunities under the account distribution policy. ( Id.) Thus, male FAs receive a better pos ition for the next round of account distributions. (Id.)

6

As a result, revenue and production credits of female FAs are, on average, lo wer than their similarly situated male FAs. (Id. ¶ 69.)

Plaintiffs also argue that defendants’

compensation and account distribution

systems are not bona fide m

erit or

production systems because they are

unvalidated and do not have predeterm ined

criteria for measuring merit or productivity,

they are n ot adequately communicated to

employees, and they are not consistently

and/or even-handedly applied. ( Id. ¶¶ 74,

75.) Plaintiffs also claim that defendants

further compound the discriminatory effects

of their procedures through the award of

corporate titles and pr ovisions of sales,

administrative, and professional support.

(Id. ¶ 81.)

Plaintiffs also claim that defendants do not have an adequate policy against discrimination and have retaliated against female FAs who have c omplained of gender discrimination. (Id. ¶¶ 82-83.) Female FAs have allegedly been retaliated against by denying them necessary resources and support to perform their jobs, subjecting them to harsher d iscipline, constructively discharging them, placing negative and misleading language on their U-5 forms, and bringing legal pro ceedings against them. (Id. ¶ 83.)

B. Procedural History

Plaintiffs commenced this action on

March 30, 2010. By stipulation dated June

29, 2012, the parties agreed to perm it

plaintiffs to f ile an a mended complaint,

which plaintiffs subsequently filed on

August 2, 2010. On February 18, 2012,

defendants requested a pre-m

otion

conference in anticipation of their m otion

for partial judgment on the pleadings and/or

partial summary judgment. After the parties

participated in the pre-motion conference on March 4, 2011, defendant s consented to the filing of plaintiffs’ second am ended complaint and suggested a briefing schedule for defendants’ m otion. The m otion for judgment on the pleadings was fully briefed on July 8, 2011.
However, in light of the Suprem e Court’s decision in Wal-Mart Stores, Inc. v. Dukes, defendants submitted a letter on June 27, 2011, arguing that plai ntiffs’ Title VII and state law claim s seeking class action certification under R ule 23 m ust be dismissed, and requested a pre-motion conference. The parties participated in a telephone conference on July 18, 2011, where a briefing schedule was set.
On August 31, 2011, plaintiffs requested a pre-motion conference in an ticipation of their motion to am end the second am ended complaint to clarify their class allegations in light of the Dukes decision. The parties participated in a telephone conference on October 4, 2011, where a date was set for plaintiffs to f ile their third amended complaint and a briefing schedule was set for defendants’ m otion to dism iss and/or strike the class claim s. The third am ended complaint was filed on October 5, 2011. Defendants’ motion was filed on October 26, 2011. Plaintiffs’ opposition was filed on November 22, 2011. Defendants’ reply was filed on December 6, 2011. Both defendants and plaintiffs subm itted supplemental authority on January 13, 2012. Defendants submitted additional supplemental authority on January 16, 2012. The parties participated in oral argument on January 17, 2012. Following oral argument, both parties proceeded to subm it supplemental authority to the Co urt.2 The Court has fully
2 On January 20, 2012, plaintiffs filed supplemental authority, and defendants replied to plaintiffs’ submission on January 20, 2012. Plaintiffs replied to

7

considered all of the arguments presented by the parties.

II.

STANDARD OF REVIEW

A. Motion to Dismiss

When a Court review s a m otion to dismiss for failure to state a claim for which relief can be granted, it m ust accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). “In order to survive a m otion to dism iss under Rule 12(b)(6), a com plaint must allege a plausible s et of facts suffi cient ‘to raise a r ight to relief above t he speculative level.’” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). This standa rd does not require “heightened fact pleading of specifics, but only enough facts to st ate a claim to relief that is plausible on its f ace.” Twombly, 550 U.S. at 570.

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S. Ct . 1937 (2009). The

defendants’ January 20, 2012 opposition on January 23, 2012. Plain tiffs again submitted supplemental authority on February 24, 2012, to which defendants replied on February 28, 2012. Defendants submitted supplemental authority on March 12, 2012, and plaintiffs submitted supplemental authority on March 28, 2012. On Ap ril 19, 2012, plaintiffs submitted supplemental authority, and defendants responded on April 23, 2012. On July 6, 2012, plaintiffs submitted supplemental authority, to which defendants responded on July 10, 2012. On September 11, 2012, defendants filed supplemental authority, to which plaintiffs responded on September 13, 2012.

Court instructed district courts to first

“identify[ ] pleadings that, because they are

no more than conclusions, are not entitled to

the assumption of truth.” Id. at 1950.

Although “legal conclusions can provide the

framework of a com plaint, they must be

supported by factual allegations.”

Id.

Second, if a com plaint contains “well-

pleaded factual allegations, a court should

assume their veracity and then determine

whether they plausibly give rise to an

entitlement to re lief.” Id. “A claim has

facial plausibility when the p laintiff pleads

factual content that allows the court to draw

the reasonable inference that the defendant

is liable for the m isconduct alleged. The

plausibility standard is not a kin to a

‘probability requirement,’ but it asks for

more than a sheer possibility

that a

defendant has acted unlawfully.” Id. at 1949

(internal citations om itted) (quoting and

citing Twombly, 550 U.S. at 556-57).

The Court notes tha t in adjudicating this motion, it is entitled to consider: “(1) facts alleged in the com plaint and documents attached to it or inc orporated in it by reference, (2) docum ents ‘integral’ to the complaint and relied up on in it, ev en if not attached or incorpo rated by reference, (3 ) documents or inform ation contained in defendant’s motion papers if plaintiff has knowledge or possession of the m aterial and relied on it in f raming the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Comm ission, and (5) facts of which judicial notice m ay properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co. , 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003) (internal citations omitted), aff’d in part and reversed in part o n other grounds sub nom., Lentell v. Merrill Lynch & Co., 396 F.3d 161 (2d Cir. 2005), cert. denied, 546 U.S. 935 (2005); see also

8

Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 48 (2d Cir. 1991)(“[T]he district court . . . could have viewed [the documents] on the motion to dism iss because there was u ndisputed notice to plaintiffs of their contents and they were integral to plain tiffs’ claim.”); Brodeur v. City of New York , No. 04 Civ. 1859 (JG), 2005 U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y. May 13, 2005) (court could consider documents within the public domain on a Rule 12(b)(6) motion to dismiss)
B. Motion to Strike Class Allegations
“Motions to strike are generally looked upon with disfavor.” Chenensky v. New York Life Ins. Co., No. 07 Civ. 11503, 2011 W L 1795305, at * 1 (S.D.N.Y. Apr. 27, 2011) (quoting Ironforge.com v. Paychex, Inc., 747 F. Supp. 2d 384, 404 (W.D.N.Y. 2010)). “A motion to strike class allegations under Rule 12(f) is even m ore disfavored because it requires a reviewing court to ‘preemptively terminate the class aspects of . . . litiga tion, solely on the basis of what is allege d in the complaint, and bef ore plaintiffs are permitted to com plete the discovery to which they would otherwise be entitled on questions relevant to cl ass certification.’” Ironforge.com, 747 F. Supp. 2d at 404 (alterations in original) (quoting Francis v. Mead Johnson & Co., No. 10-CV-701, 2010 WL 3733023, at *1 (D. Colo. Sept. 16, 2010) and Bryant v. Food Lion, Inc. , 774 F. Supp. 1484, 1495 (D.S.C. 1991)). However, “[a] motion to strike that address es issues ‘separate and apart from the issues that will be decided on a class certification motion’ is not procedurally premature.” Chen-Oster v. Goldman, Sachs & Co. , No. 10 Civ. 6950(LBS)(JCF), 2012 WL 2912741, at *2 (S.D.N.Y. July 17, 2012) (adopting in part and reversing in part report and recommendation) (quoting Rahman v. Smith

& Wollensky Rest. Group, Inc. , 06 Civ. 6198, 2008 U.S. Dist. Lexis 2932, at *11, 2008 WL 161230 (S.D.N.Y. Jan. 16, 2008)).
III. DISCUSSION
A. Scope of EEOC Charge
Defendants argue that plaintiffs’ disparate impact claim in the th ird amended complaint exceeds the s cope of their EEOC charges. For the reasons set forth below, the Court disagrees and concludes that plaintiffs’ disparate impact claims do not exceed the scope of plaintiffs’ EEOC charges.
1. Applicable Law
Generally, to bring a Title VII discrimination claim in federal district court, a plaintiff m ust first exhaust her administrative remedies by “filing a tim ely charge with the EEOC or with ‘a State or local agency with authority to gran t or seek relief from such practice.’” Holtz v. Rockefeller & Co ., 258 F.3d 62, 82-83 (2d Cir. 2001) (quoting 42 U.S.C. § 2000e-5(e)). However, “‘claims that were not asserted before the EEOC [or an appropriate State or local agency] may be pursued in a subsequent federal court action if they are reasonably related to t hose that were filed with the agency.’” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 177 (2d Cir. 2005) (quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam )). “Reasonably related conduct is tha t which ‘would f all within the scope of the EEOC investiga tion which can reasonably be expected to grow out of the charge that was m ade.’” Id. (quoting Fitzgerald v. Henderson , 251 F.3d 345, 359-69 (2d Cir. 2001)).3 In determining
3 Two other kinds of claims may be consi dered “reasonably related”: those alleging “retaliation by an

9

whether a claim is “reasonably related” to the EEOC charge, “‘the focus should be on the factual allegations made in the [ EEOC] charge itself . . .’” and on whether those allegations “gave the [ EEOC] ‘adequate notice to investigate’” the claims asserted in court. Williams v. N.Y.C. Hous. Auth ., 458 F.3d 67, 70 (2d Cir. 2006) (quoting Deravin v. Kerik, 335 F.3d 195, 201-02 (2d Cir. 2003)).
2. Application

systems. (See TAC, Exs. 1-5.) For example, Calibuso’s EEOC charge states that:
BofA routinely distributed business opportunities, including accounts from departing and retiring brokers, referrals, leads, and potential clients, and more advantageous partnerships with different departm ents within BofA, to male Fina ncial Advis[o]rs rather than to f emale Financial Advis[o]rs.

Defendants argue that the disparate

impact claim, as articulated in the third

amended complaint, must be dism issed

because it exceeds the scope of the

administrative charges. (Defs.’ Br. at 14.)

Plaintiffs counter that they are not barred

from bringing the action

because

“[p]laintiffs are entitle d to litigate cla ims

‘reasonably related to th e allegations in the

complaint filed with the EEOC.’” (Pls. ’

Opp. at 22 (citing Kirkland v. Buffalo Bd. of

Educ., 622 F.2d 1066, 1068 (2d Cir. 1980).)

However, according to defendants, since

none of the plaintiffs’ EEOC charges alleges

that unvalidated systems had a disparate

impact on fem ale FAs, and that four of the

five EEOC charges do not mention disparate

impact at all, the EEO C charges are not

reasonably related to the th ird amended

complaint. (Defs.’ Br. at 14.) However, this

Court disagrees with defendants.

Here, all of the plaintiffs’ EEOC charges complain of sexual discrim ination based on the compensation and account distribution

employer against an employee for filing an EEOC charge,” and those alleging “further incidents of discrimination carried out in precisely the sam e manner alleged in the EEOC charge.” Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998).

(TAC, Ex. 1 ¶ 3.) Calibuso further alleged that “[a]s a result of the inequitable and discriminatory distribution of accounts and account prospects, fe male Financial Advis[o]rs have dim inished income potential and diminished actual incom e as compared to simila rly-situated male employees.” (Id.) Sim ilarly, Moss alleged in her EEOC charge that:
BofA routinely distributed business opportunities, including accounts from departing brokers, referrals, leads, potential clients, and m ore advantageous partnerships with different BofA departments, to m ale advisors rather than female advisors.
(TAC, Ex. 2 ¶ 3.) Evans stated in her charge that:
Merrill Lynch has routinely distributed business opportunities – including accounts from departing and retiring brokers, and m ore advantageous partnerships with other brokers – to male Financial Advisors rather than to f emale Financial Advisors. As a result of the inequitable and discrim inatory distribution of accounts and partnerships, female Financial Advisors have dim inished income

10

potential and dim inished actual income as com pared to sim ilarlysituated male employees.
(TAC, Ex. 4 ¶ 4.) DeSalvatore also included similar allegations in her EEOC charge:
Pursuant to com pany-wide policies, Respondents have routinely distributed business opportunities, including accounts from departing and retiring brokers, referrals, leads, potential clients, and more advantageous partnerships, to m ale FAs rather than to female FAs. As a result of the in equitable and discriminatory distribution of accounts and account prospects, female FAs including myself have diminished income potential and diminished actual incom e as compared to sim ilarly situated male FAs.
(TAC, Ex. 5 ¶ 5.) In addition, Goedtel described a series of instances in which male FAs were given accounts as opposed to her, and thus her salary was affected. (TAC, Ex. 3.) Goedtel also alleged in her EEOC charge that:
I believe that the conduct described above is part of a pattern and practice of discrim ination against female FA’s at BofA. I beli eve that BofA routinely discriminates against female FA’s with re spect to p ay, business opportunities, and other terms and conditions of employment.
(TAC, Ex. 3 ¶ 21.)
Despite defendants’ contention, it is clear from the alle gations in th e EEOC charges that plaintiffs were alleg ing violations of Title VII based the

discriminatory distribution of accounts and that there was discrimination against women in compensation. Thus, the allegations related to th e disparate impact cla im in the third amended complaint reasonably relate to the a llegations in th e EEOC charge, and the defendants were on notice of the allegations. See, e.g., Gomes v. Avco Corp., 964 F.2d 1330, 1334-35 (2d Cir. 1992) (“To be sure, this com plaint most naturally supports a claim of intentional discrimination. . . . Nonetheless, once the EEOC investigated the case and found that Gomes did not satisfy the eight year rule, it would have been perfectly natural for the EEOC to question the n ecessity of the eight year rule itself. . . . Accordingly, we conclude that an investigation of Gom es’ disparate impact clai m would reasonably have flowed from an investigation of his disparate treatment claim.”); Jenkins v. N.Y.C. Transit Au th., 646 F. Supp. 2d 464, 470 (S.D.N.Y. 2009) (“Even though the plaintiff may not have used the term ‘disparate impact’ in h er charge, it is the substance of the charge and not its label that controls. . . . The plaintiff’s disparate impact claim is therefore not b arred because it is reasonably related to the conduct alleged in her EEOC charge.” (quotations and citations omitted)); Maniatas v. N.Y. Hosp.-Cornell Med. Ctr., 58 F. Supp. 2d 221, 227 (S.D.N.Y. 1999) (“Because plaintiff’s claim under disparate im pact theory is arguably ‘reasonably related’ to he r intentional discrimination claim, this Court will analyze the claim as well.”).
In sum, plaintiffs’ third am ended complaint does not exc eed the sco pe of the EEOC charges, and the motion to dismiss on that ground is denied.

11

B. Commonality Requirement and Walmart Stores Inc. v. Dukes
Defendants argue that plaintiffs’ disparate impact claims could never satisfy Rule 23(a)’s commonality requirem ent after the Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011). In response, plaintiffs argue that they have sufficiently alleged commonality and that “[t]he sort of fact-based inquiry the Dukes Court espoused and engaged in, while required at the class certification s tage when the court is a rmed with a full class certification record, has no place in a Rule 12(b)(6) analysis that considers only whether plaintiffs have provided fair notice to the defendants of the basis for an employment claim through facially plausible allegations.” (Pls. ’ Opp. at 10. ) For the reasons set forth below, this Court agrees with the plain tiffs and conclud es that plaintiffs have alleged a plausible claim that is consistent with the Rule 23(a)’ s commonality requirement as articulated in Dukes. Thus, given the existence of a plausible claim based upon the pleadings, defendants’ motion is premature in this case, and plaintiffs should be given an opportunity to set forth their proof of commonality at the class certification stage.
1. Class Certification
a. Rule 23(a) and (b)
In order for a clas s to be certified, the party seeking certification m ust comport with the requirements of Federal Rule of Civil Procedure 23. Federal Rule of Civil Procedure 23(a) provides that:
(a) Prerequisites. One or m ore members of a class may sue or be sued as represen tative parties on behalf of all members only if:

(1) the class is so numerous th at joinder of all m embers is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claim s or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
Moreover, the p arty seeking class certification must satisfy at leas t one of the requirements listed in F ederal Rule of Civil Procedure 23(b). Federal Rule of Civil Procedure 23(b) provides:
(b) Types of Class Actions. A class action may be m aintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with resp ect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the inter ests of the other members not parties to the individual adjudications or

12

would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted o r refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the co urt finds that the questions of law or fact common to class mem bers predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The m atters pertinent to these findings include:

(A) the class m embers’ interests in ind ividually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or

undesirability

of

concentrating the litigation of

the claims in the p articular

forum; and

(D) the like ly difficulties in managing a class action.

Fed. R. Civ. P. 23(b).

b. Dukes and its Progeny

In Dukes, the Suprem e Court reversed

the decision of the Ninth Circ uit that

certified a class of fem ale employees who

alleged that the discretio n exercised by their

local supervisors over pay and prom otion

matters violated Title VII by discrim inating

against women. Dukes, 131 S. Ct. 2541. In

coming to this conclusion, the Court held

that commonality requires that the p laintiffs

“‘have suffered the same injury” as opposed

to “suffer[ing] a violation of the same

provision of law.”

Id. at 2551.

Accordingly, the Court held that th e claims

must be a “common contention” and that the

common contention “must be of such a

nature that it is cap able of classwide

resolution – which means that determination

of its truth or f alsity will r esolve an issue

that is central to the va lidity of each one of

the claims in one stroke.” Id.

In addition, the Dukes Court stated that:

Rule 23 does not set forth a m ere

pleading standard. A party seeking

class certification must affirmatively

demonstrate his compliance with the

Rule – that is, he must be prepared to

prove that there are

in fact

sufficiently numerous parties,

common questions of law or fact,

etc. We recognized in [ General

Telephone Co. of Southwest v. ]

Falcon [457 U.S. 147 (1982)] that

“sometimes it m ay be necessary for

the court to probe behind the

pleadings before coming to rest on

the certification question,” 457 U.S.,

at 160, 102 S. Ct. 2364, and that

certification is proper only if “the

trial court is satisf ied, after a

rigorous analysis, that the

prerequisites of Rule 23(a) have been

satisfied,” . . . .

13

Dukes, 131 S. Ct. at 2551.

In reaching this determination, the Supreme Court noted th at, in certain cases, discretion given to low er level supervisors can lead to Title VII liability under a disparate impact theory, but noted that it “does not lead to the conclusion that every employee in a com pany using a sy stem of discretion has such a claim in common.” Id. 2554. Moreover, the Court held that “Respondents have not identified a comm on mode of exercising disc retion that pervades the entire com pany . . .” and subsequently held that th e statistical evidence s ubmitted by respondents was insufficient to establish that respondents’ theory could be proven on a classwide basis. Id. 2554-55

Since Dukes, several federal courts have

denied class certification because there was

not a common m ode of discretion, and thus

Rule 23(a)’s requirements were not satisfied.

See, e.g., Bell v. Lockheed Mar tin Corp.,

No. 08-CV-6292, 2011 WL 6256978, at * 6

(D.N.J. Dec. 14, 2011) (granting defendants’

motion to deny class certification becaus e

“[t]he Court f inds that the a llegedly

discriminatory Lockheed policies were

substantially similar to the W al-Mart

discretionary policies that the Dukes Court

found to be imm une from class action

suit.”); Rodriguez v. Nat’l City Bank , 277

F.R.D. 148, 154-55 (E.D. Pa. 2011)

(“although the plaintiffs in Dukes were

bringing employment discrimination claims

under Title VII and P laintiffs in this case

bring discriminatory lending claim s under

the FHA and ECOA, both groups rely on the

disparate impact theo ry to show that the

defendants’ policy of granting discretion to

decision-makers

resulted in

discrimination”); In re Wells Far go Res.

Mortg. Lending Discrim. Litg. , No. 08-MD-

1930 MMC, 2011 WL 3903117, at *4-5

(N.D. Cal. Sept. 6, 2011) (denying class

certification because plaintiffs wer e unable to demonstrate that, with regard to the loan officers, there was “[a] common mode of exercising discretion that pervades the entire company”); Daskalea v. Walsh Humane Soc’y, 275 F.R.D. 346, 360 (D.D.C. Aug. 10, 2011) (denying class certification and holding that the plaintiffs fai led to demonstrate typicality because “[i]n short, the Act was suf ficiently open-ended that the Humane Society’s enforcement and administration of the Act were largely left to its discretion, and it therefore com es as no surprise that th ere would be con siderable variation among class m embers’ experiences”).
2. Application
In the case at bar, defendants attempt to have this Court, in essence, conduct the rigorous Rule 23( a) class certification analysis at the pleadin g stage before the plaintiffs have been given an opportunity to set forth their proof of, am ong other things, commonality. However, under the circumstances of this particular case, this Court concludes that su ch an an alysis is premature at this s tage of the litigation because plaintiffs have sufficiently alleged commonality, consistent with Dukes, in th e third amended complaint.
Defendants urge the Court to follow the reasoning of the Sixth Circuit and the Western District of N orth Carolina and dismiss this action before plaintiffs have had an opportunity to file their class certification motion. See, e.g., Scott v. Family Dollar Stores, Inc., No. 3:08CV540, 2012 W L 113657, at *4 (W .D.N.C. Jan. 13, 2012) (“Furthermore, the court finds that, after Dukes, it would be f utile to allow plain tiffs to conduct discovery because plaintiff’s theory for clas s certification is simply foreclosed by Dukes. Indeed, here, in

14

support of their request for discovery, plaintiffs have stated that discovery is mostly completed, and that they will be able to identify questions of law or fact that are common to the propo sed class at the class certification stage. . . . Like the plaintiffs in Dukes, plaintiffs here have been unable to ‘identif[y] a common mode of exercising discretion that p ervades the entire company. . . .’”); Pilgrim v. U niversal Health Card, LLC, 660 F. 3d 943, 949 (6th Cir. 2011) (“That the m otion to strike cam e before the plaintiffs had filed a m otion to certify the class does not by itself make the court’s decision reversibly prem ature. Rule 23(c)(1)(A) says that the district court should decide whether to certify a class ‘[a]t an early practicable ti me’ in the litigation, and nothing in the rules says that the court must await a motion by the plaintiffs.”) 4
First, plaintiffs’ claims in this action are distinguishable from Pilgrim and Family Dollar. In this case, the claim s set forth by the plaintiffs are not substantially sim ilar to the claims in Dukes, and therefore, it is not clear at th is stage of the litigation whether plaintiffs can prove commonality at the class certification stage. He re, plaintiffs do not argue that the dis cretion afforded to individual lower level supervisors, by itself, results in a disparate impact on female FAs. Instead, plaintiffs argue that, because the common compensation and account distribution systems rely on criteria th at systematically favors m ale FAs, th ere is a discriminatory impact on women. (See Pls.’ Opp. at 11.) This is clearly alleged

throughout the third am ended complaint. For example, plaintiffs allege that:

This earning disparity is a resu lt of Defendants’ unvalidated com panywide policies and practices that govern compensation and the distribution of accounts and business opportunities, and the lack of proper accountability measures to ensure fairness.

(TAC ¶ 3). Plaintiffs further allege that:

Specifically, Defendants, through

their conduct throughout the liability

period, have caused these gender-

based earning disparities by . . . (c)

intentionally implementing and

retaining company-wide policies and

practices relating to compensation,

the distribution of client accounts

from departing or retiring FAs, as

well as other busin ess opportunities,

which give m ale FAs greater

opportunities to earn com pensation;

(d) intentionally implementing and

retaining company-wide policies and

practices that have created

a

“cumulative advantage” effect by

perpetuating and widening the

gender-based earning disparities that

Defendants’ discriminatory policies

and practices have caused; and (e)

utilizing a uniform , unvalidated

quintile ranking procedure to

measure performance that has a

disparate impact on female FAs, as

discussed below.

4 It should be noted that the court in Pilgrim granted defendants’ motion because plaintiffs were unable to meet the pre dominance requirement of Rule 23(b). Pilgrim, 660 F.3d at 946. However, as will b e discussed infra, like the commonality requirement, the Court believes that plaintiffs should be given an opportunity to support that claim at the class certification stage.

(TAC ¶ 5.) Plaintiffs also allege that:
Defendants direct the distribution of accounts and business opportunities through uniform, systematically documented, and unvalidated

15

company-wide procedures described below that favor m ale FAs ove r female FAs.
(TAC ¶ 54.) Accordingly, although there appears to be som e level of discretion afforded to lower lev el supervisors, this claim is not purely based on the discretion afforded to the defendants’ supervisors. Unlike in Dukes, plaintiffs here have alleged that it is the criteria used by the defendants to distribute accounts that resu lts in th e disparate impact. Th is critical distinction makes this case m ore analogous to the Seventh Circuit case McReynolds v. Merrill Lynch, Pierce, Fenner & Smith , 672 F.3d 482 (6th Cir. 2012) (hereinafter “McReynolds I”), than to Dukes. In McReynolds I, the em ployee-plaintiffs sought class certification and alleged that the implementation of de fendants’ teaming policy and account dist ribution policy had a disparate impact on Af rican Americans. Id. at 488. The Sixth Circuit explained how, although discretion was afforded to directors, the case was not similar to Dukes:
The Complex Directors, as well as the branch-office m anagers, have a measure of discretion w ith regard to teaming and account distribution; they can veto team s and can supplement the com pany criteria for distributions. And to the extent that these regional and local managers exercise discretion regarding the compensation of the brokers whom they supervise, the cas e is indeed like Wal-Mart. But the exercis e of that discretion is influenced by the two company-wide policies at issue: authorization to brokers, rather than managers, to form and staff team s; and basing account distributions on the past success of the brokers who are competing for th e transfers.

Furthermore, team participation and account distribution can affect a broker’s performance evaluation, which under com pany policy influences the broker’s pay and promotion.
Id. at 489. The Si xth Circuit further explained that, despite the discretion afforded to Com plex Directors, the class should be certified:
There is no indication that th e corporate level of Merrill Lynch (or its parent, Bank of Am erica) wants to discriminate against black brokers. Probably it just wants to m aximize profits. But in a disparate im pact case the p resence or absence of discriminatory intent is irr elevant; and permitting brokers to f orm their own teams and prescribing criteria for account distributions that favor the already successful – those wh o may owe t heir success to havin g been invited to join a s uccessful or promising team – are practices of Merrill Lynch, rather than practices that local m anagers can choose or not at their whim . Therefore challenging those policies in a class action is not forbidden by the WalMart decision; rather that decision helps (as the district judge sensed) to show on which side of the line that separates a com pany-wide practice from an exercis e of discretion by local managers this case falls.
Id at 490. Although defendants attem pt to argue that the decision by the Seventh Circuit is distinguishable, the Court finds this argument to be unavailing. ( See Defs.’ Response to Pls.’ Supplem ental Authority, Feb. 28, 2012, ECF No. 124) . Plaintiffs in this case, like the plaintiffs in McReynolds I,

16

claim, in short, tha t it is the criteria used by the supervisors or managers that leads to the disparate impact, not only the discretion afforded to lower level supervisors.

Moreover, Dukes did not foreclose all

class action claims where there is a level of

discretion afforded to individual managers

and supervisors. As stated supra, the Dukes

Court stated that the “[r]espondents have not

identified a comm on mode of exercis ing

discretion that p ervades the entire

company . . .” Dukes, 131 S. Ct. at 2554-55.

Although, in Dukes, the plaintiffs m erely

alleged a strong corporate culture of gender

discrimination, here plaintiffs allege that the

implementation of com pany-wide

procedures, i.e. the com pensation and

distribution systems, results in a d isparate

impact on wom en because the criteria us ed

by individual m anagers is flawed. Thus,

although there m ay be som e level of

discretion afforded to the defendants’

managers and supervisors, such discretion

does not necessarily preclude plaintiffs’

class claims under Dukes. In short, based on

the allegations in the third am

ended

complaint, it is plausib le that p laintiffs will

come forth with sufficient ev idence at the

class certification stage to demonstrate

commonality consistent with the Dukes decision.5

It should also be noted that other federal courts in analogous cont exts have refrained from dismissing a clas s action cas e at the motion to dismiss stage when the defendants have challenged the class claim s on Dukes grounds. In Chen-Oster v. Goldman Sachs

5 For the reasons discussed supra with regard to commonality, the Court also finds that plaintiffs have properly pled predominance pursuant to Rule 23(b)(3), and that it is po ssible, despite Dukes, for plaintiffs to come forth with proof at the class certification stage. Accordingly, the Court de nies defendants’ motion to dismiss and/or strike the class claims on that ground.

& Co., Judge Sand denied def endants’

motion to strik e all class allegations and

motion for partial sum mary judgment. No.

10 Civ. 6950(LBS)(JCF), 2012 W

L

2912741, at *1 (S.D.N.Y. 2012). The Court

distinguished the Dukes case from the case

before it:

What was m issing in Dukes, but is present here, are “specific employment practice[s]” . . . that “tie[] all [ of Plaintiffs’] claims together.” . . . It is true that an individual manager’s discretion might be more or less discretionary, but this, as the Suprem e Court made clear in Dukes, does not doom a class, since this discretion would have been exercised under the rubric of a company-wide e mployment practice.

Id. at *2 (citations omitted).

Similarly, in Barghout v. Bayer Healthcare Pharmaceuticals, the court denied the defendants’ m otion to dism iss and strike the class al legations. No. 11-cv1576, 2012 WL 1113973, at *11-12 (D.N.J. Mar. 30, 2012). In that case, the District of New Jersey noted that the case before it was distinguishable from Dukes, because “[a]lthough the Dukes Court reasoning is binding and relevant to analysis of whether an expansive class of employee-Plaintiffs should be certified, its applicability is tenuous a[t] this st age of litigation. ” Id. at *11. Moreover, the Court noted that plaintiffs had been “candid in term s of describing their strategy and envisioned approach in this case” and dem onstrated an understanding of what certification under Rule 23 would require.6 Id. at *12.

6 At oral argument, defendants argued that discovery had been completed, and thus, plaintiffs should have come forward at th is stage of the litigation and set

17

Although defendants attem pt to

distinguish this case from Chen-Oster and

Barghout, and argue that this case is m ore

analogous to Pilgrim and Family Dollar,

this Court disagrees. ( See Defs.’ Notice of

Supplemental Authority, Jan. 16, 2012, ECF

No. 117; Response to Pls.’ Supplem ental

Authority, Jan. 20, 2012, ECF No. 120). As

discussed supra, this case, unlike Pilgrim

and Family Dollar, is distinguishable,

according to the alleg ations in the third

amended complaint, f rom Dukes, and thus

foreclosing plaintiff from having the ability

to set forth its proof of commonality at this

stage of the litigation is prem

ature.

Accordingly, the defendants’ m otion to

dismiss and/or strike pl aintiffs’ class claims due to a lack of commonality is denied.7

forth their evidence of commonality and predominance. This Cour t disagrees. Def endants have pointed to no authority to support their contention that plaintiffs must set forth their evidence at the pleading stage. In fact, the Dukes Court clearly stated that t he Court may need to “probe behind the pleadings” when conducting a R ule 23 rigorous analysis. Dukes, 131 S. Ct. at 2551. Here, the Court, as discussed supra, finds that the plaintiffs have se t forth sufficient allegations to plead commonality and predominance, and the ri gorous Rule 23 analysis should be conducted when plaintiffs bring their class certification motion. 7 Defendants make a number of arguments related to the scope and categories of classwide relief and argue that Dukes and Second Circuit authority preclude the purported hybrid or divided certification under Rule 12(b)(2) given the facts pled. Sim ilarly, defendants argue that certain aspects of the class claims are timebarred, the named plaintiff has no standing to assert the claims, and the s ub-classes are impermissibly overbroad. Ho wever, these issues will o nly become relevant should plaintiffs be able to prevail at the motion for certification stage in demonstrating that there is a factual basis that will allow them to proceed as a class action in the wake of Dukes. Th us, in its discretion, the Court declines to address these o ther issues regarding the sc ope of the class c laims and relief until the potentially dispositive issue regarding the application of Dukes (discussed supra) is decided in connection with the cer tification motion, because these other issues could become moot. O f course, defendants can renew these a rguments in response to

C. 703(h) of Title VII
Defendants also argue that the plaintiffs’ disparate impact claims against defendants’ commission and distribution policies m ust be dismissed as a matter of law because they are production and m erit based systems that are protected by Section 703(h) of Title VII. (Defs.’ Br. at 5-6). In response, plaintiffs argue that Section 703 (h) is inap plicable. (Pls.’ Opp. at 5-9.) Sp ecifically, plaintiffs argue that Section 703(h) of Title VII does not apply because “(1) BOA’s compensation and account distribution system s are not merit or production system s, and (2) Plaintiffs have adequately pled that the compensation system is inte ntionally discriminatory.” (Id. at 6.) For the reasons set forth below, taking the allegatio ns in the third amended complaint as true, and drawing all reasonabl e inferences in plaintiffs’ favor, the Court denies defendants’ motion on this ground and finds that plaintiffs have adeq uately pled that th e systems challenged are not m erit or
plaintiffs’ motion for class certification. See, e.g., Hofstetter v. Chase Home Fin., LLC, 751 F. Supp. 2d 1116, 1131 (N.D. Cal. 2010) (“defendants’ criticisms targeting the scope of the putative class alleg ations and the appropriateness of various ‘remedies’ set forth in th e proposed complaint are premature a nd will not be addressed at th is time. Th e propriety of plaintiff’s proposed class d efinitions will be addressed during the class certification process, when full attention can be given to the issue”); In re Giant Interactive Grp., Inc. Secs. Litig., 643 F. Supp. 2d 562, (S.D.N.Y. 2009) (“Defendants’ argument is a premature attempt to limit the sc ope of the class at the pleading s tage”); Krane v. C apital One Servs., Inc., 314 F. Supp. 2d 589 (E.D. Va. 2004) (“Because the issue of cl ass certification is not currently before the Court, the Defendant’s Motion to Limit Rearward Scope of Plaintiffs’ Proposed Class Definitions is not yet ripe and will b e denied as premature.”). Accordingly, defendants’ request to strike these portions of th e proposed complaint are d enied, without prejudice to defendants renewing these objections and arguments in connection with the anticipated class certification motion.

18

production based systems and, in a ny event, allege intentional discrimination.
1. Applicable Law
Section 703(h) of Title VII provides that:
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or dif ferent terms, conditions, or privileges of employment pursuant to a bona fide seniority or m erit system, or a system which measures earnings b y quantity or quality of production or to employees who work in different locations, provided that such differences are no t the result of an intention to discriminate because o f race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discrim inate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any e mployer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such e mployer if such differentiation is autho rized by th e provisions of section 206(d) of Title 29.
42 U.S.C. § 2000e-2(h). “Under § 703(h), the fact th at a sen iority system has a discriminatory impact is not alone sufficient to invalidate the system; actual intent to

discriminate must be proved.” Am. Tobacco Co. v. Patterson , 456 U.S. 63, 65 (1982). “Section 703(h) thus creates an exception to the general rule that ‘a prima facie Title VII violation may be esta blished by policies or practices that are neutral on their face and in intent but that nonetheless discrim inate in effect against a particular group.’” McReynolds v. Merrill Lynch & C o., Inc., No. 11-1957, 2012 W L 3932328, at *4 (7th Cir. Sept 11, 2012) (hereinafter “McReynolds II”) (quoting Int’l Bhd. of Teamsters v. United States , 431 U.S. 324, 349 (1977)). However, a com pensation scheme is not protected under Section 703(h) unless it actually m easures what it purports to m easure. See Guardians Ass’n of N.Y.C. Police Dep’t Inc. v. Civil S erv. Comm’n, 633 F.2d 232, 253 (2d Cir. 1980).

2. Application

As stated supra, plaintiffs argue that Section 703 of Title VII does not bar their claims that the com pensation and account distribution polices are not merit or production systems and because they alleg e that the systems intentionally discr iminate. Viewing the evidence in the lig ht most favorable to the plaint iffs, the Court finds that plaintiffs have sufficiently alleged a disparate impact claim that is not barred by Section 703(h) of Title VII.

As a threshold m atter, this Court agree s

with the plaintiffs that “[t]he cases BOA

cites in its current motion to dismiss are also

inapposite because in each of those cases the

district court determined, with the benefit of

a full evidentiary record at s

ummary

judgment, that the compensation system at

issue measured what it purpo rted to

measure.” (Pls.’ Opp. at 8 (em phasis in

original) (citing Defs.’ Br. at 5).) At this

stage of the litigation, the inquiry is whether

the plaintiffs have properly alleged a

19

plausible disparate impact claim that is not barred by S ection 703 of Title VII, and the Court concludes that they have.
Plaintiffs have prop erly alleged that defendants’ compensation and production based policies do not m easure what they purport to m easure. See Guardians, 633 F.2d at 253. For exam ple, the third amended complaint alleges that:
Defendants further cause and compound the discriminatory effects of the comm ission grids by permitting deviations f rom the grid in favor of male FAs. These deviations result from , among other things, adjustments of paym ents, forgiveness of excess com pensation . . . and n egotiation with late ral recruits of guaranteed payout from the grid for a certain amount of time.
(TAC ¶ 55.) The third am ended complaint further alleges that:
By using the tainted variable of past performance as a criterion fo r compensation and account distribution, Defendants further perpetuate the gender-based compensation disparities and create a cumulative advantage for m ale FAs based on system atically documented and unvalidated criteria that has an adverse impact on female FAs.
(TAC ¶ 66). Plaintif fs clearly state their allegation that the com pensation and account distribution systems are not merit or production based systems in paragraph 77 of the third amended complaint which states : “Defendants’ compensation and account distribution system are not justified by business necessity because they do not compensate FAs based on actual m easure of

performance.” (TAC ¶ 77.) In sum , the complaint alleges that the cr iteria used by defendants to determ ine compensation and account distribution have a discrim inatory impact on women and, while they appear to be facially neutral, through “unstated but officially sanctioned and ubiquitous exceptions driven by favoritism , not merit,” (See Pls.’ Opp at 7 (citing TAC ¶¶ 5, 52-58, 61-65, 66, 77)), and the use of tainted criteria, com pensation and account distributions do not m easure what they purport to measure.
In support of their ar gument, defendants recently submitted the Seventh Circuit’s opinion in McReynolds II, as supplem ental authority in support of their m otion to dismiss. (Defs.’ Notice of Suppl emental Authority, Sept. 11, 2012, ECF No. 132.) In that decision, the Seve nth Circuit affir med the district court’s di smissal of plaintiffs’ disparate impact claim s. McReynolds II, 2012 WL 3932328, at *1. The Court held that “[a]s described in the complaint, the retention program awarded bonuses based on race-neutral assessment of broker’s prior level of production, which suffices to protect the program under § 703(h) unless it was adopted with the intent to discrim inate.” Id. However, unlike in th e case at bar, in McReynolds II, the court concluded that “the production-credit system is about as direct a measure of production as one could im agine in the financial[]services industry, and the plaintiffs do not suggest otherwise . Id. at *5 (emphasis added). Moreover, in McReynolds II, the Court noted that “[n]owhere does the co mplaint allege that the formula is actually applied in a discriminatory manner – only that the ‘inputs’ determining a broker’s production levels were them selves the products of past discrimination.” Id.

20

Here, as described supra, plaintiffs

allege that the criter ia relied upon by the

compensation and account distribution

systems are ta inted, and res ult in

discrimination

against wom

en.

Accordingly, at this s tage of the litiga tion,

where the Court must take the allegations in

the third amended complaint as true, and

draw every reasonable inference in

plaintiffs’ favor, the Court finds that

plaintiffs have suffici ently alleged that the

compensation and account distribution

systems are not m erit or production based

systems protected by Section 703(h) of Title

VII. Moreover, as plaintiffs note, unlike

McReynolds II, “[t]he fe male financial

advisors in this lawsuit do not challenge the

retention bonus. Inst ead, they challenge

account distribution, team ing and

partnership, and ot her facets of the

compensation system, like in McReynolds

I.” (Pls.’ Response to Defs.’ Notice of

Supplemental, Sept. 13, 2012, ECF No. 133

(emphasis in origina l).) Thus, this case is

distinguishable from McReynolds II and, as

discussed in detail supra, similar to McReynolds I.8

Accordingly, plaintiffs have adequately pled their disparate impact claim s in a manner that is not barred by Section 703(h) of Title VII. 9 Therefore, the Court denies

8 The Court also concludes, in the alternative, that plaintiffs have sufficiently pled that the defendants implemented the com pensation and account distribution systems in a m anner that was intentionally discriminatory. ( See TAC ¶¶ 42, 7 985.) Plaintiffs contend that “[a]t the appropriate time, Plaintiffs will present factual evidence supporting their allegations of intentional discrimination, including evidence taken from numerous audits and other discovery that describes systematic deviations from the account distribution system that favored male FAs.” (Pls.’ Opp. at 9 n.9.) 9 Defendants also argue that “plaintiffs attempt to improve their disparate impact claim by asserting that the commission plans and account distribution policy/guidelines are ‘unvalidated’ should be rejected

defendants’ motion to di smiss and/or strike the class claims on this ground.

IV. CONCLUSION

For the reasons set f orth above, the Court denies the defendants’ motion to dismiss and/or strike the class claim s for failure to exhaust, and denies the rem ainder of the motion with out prejudice to defendants asserting these various grounds in response to plaintiffs’ class certification motion.

SO

ORDERED.

______________________

JOSEPH

F. BIANCO

United States District Judge

Dated:

September 27, 2012

Central

Islip, NY

* * *

Plaintiffs are rep resented by Rache l Geman Kelly M. Dermody, Rachel Geman, Allison M. Stocking, Heather H. Wong of Lieff Cabraser Heimann & Bernstein, LLP, 250 Hudson Street, 8th Floor, New York New York, 10013-1413 and also located at 275 Battery Street, 29th Floor, San Francisco, CA 94111. Defendants are represented by Katherine H. Parker, Gershom Radin Smith and Joseph Baum garten of Proskauer & Rose LLP, Eleven Tim es Square, New York, New York 10036.

out of hand.” (Defs.’ Br. at 12.) Plaintiffs dispute this legal contention. Howev er, the validation issue is not critical to the plausibility of plaintiffs’ disparate impact claim for purposes of this motion. In other words, the Court concludes that the claim is plausible independent of the allegations regarding a lack of validation. Thus, the Court need not address this issue at this juncture.

21

 
 Case 2:10-cv-01413-PKC-AKT Document 153 Filed 09/06/13 Page 1 of 2 PageID #: 2443

OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Rachel Geman 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, and MARY DESALVATORE, on behalf of themselves and all others similarly situated,
Plaintiffs,

No. 10 Civ. 1413 (PKC) (AKT)

-against-

BANK OF AMERICA CORPORATION; MERRILL LYNCH & CO., INC.; and MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,

Defendants.

NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PROVISIONAL CERTIFICATION OF SETTLEMENT CLASS, APPROVAL AND DISTRIBUTION OF THE NOTICE OF SETTLEMENT, AND
APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL
PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law In Support
of Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement and the Declarations
of Rachel Geman and Adam T. Klein in support thereof, Plaintiffs now move this Court before
the Honorable Judge Chen at the United States Courthouse for the Eastern District of New York,

Case 2:10-cv-01413-PKC-AKT Document 153 Filed 09/06/13 Page 2 of 2 PageID #: 2444
225 Camden Plaza East, Brooklyn, New York, 11201, at a time and date to be determined by the
Court, for an order granting: (1) preliminary approval of class action settlement; (2) provisional
certification of the settlement class and subclasses; (3) approval and distribution of the notice of
settlement; and (4) appointment of Lieff, Cabraser, Heimann & Bernstein, LLP and Outten &
Golden LLP as Class Counsel.
Dated: September 6, 2013 New York, New York
Respectfully submitted,
By: /s/ Cara E. Greene
OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene Jennifer L. Liu 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 29th Floor San Francisco, California 94111 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Rachel Geman 250 Hudson Street, 8th Floor New York, New York 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
Attorneys for Plaintiffs and the Punitive Class and Collective
2

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 1 of 16 PageID #: 2445
Exhibit 1

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 2 of 16 PageID #: 2446

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, and MARY DESALVATORE, on behalf of themselves and all others similarly situated,
Plaintiffs,

No. 10 Civ. 1413 (PKC) (AKT)

-against-

BANK OF AMERICA CORPORATION; MERRILL LYNCH & CO., INC.; and MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,

Defendants.

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR (1) PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; (2) PROVISIONAL
CERTIFICATION OF SETTLEMENT CLASS AND SUBCLASSES UNDER FED. R. CIV. P. 23 AND CERTIFICATION OF COLLECTIVE ACTION UNDER 29 U.S.C. 216(b); (3) APPROVAL AND DISTRIBUTION OF THE NOTICE OF SETTLEMENT;
AND (4) APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL

Having reviewed Plaintiffs’ Notice of Motion and Motion For: (1) Preliminary Approval of Class Action Settlement; (2) Provisional Certification of Settlement Classes; (3) Approval and Distribution of Notice of Settlement; and (4) Appointment of Plaintiffs’ counsel as Class Counsel; Plaintiffs’ Memorandum of Points and Authorities in Support thereof, and the proposed Settlement Agreement, along with the files and records of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows: I. JURISDICTION
This Court has jurisdiction over the subject matter of the litigation and over all parties to this litigation, including all members of the Settlement Classes, as defined below.

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 3 of 16 PageID #: 2447
As used below, “Defendants” means Bank of America Corp., Merrill Lynch & Co., Inc., and Merrill Lynch, Pierce, Fenner & Smith, Inc. (“MLPF&S” or “Merrill Lynch”). II. NO DETERMINATION
This Court hereby decrees that neither the Settlement Agreement, nor this Preliminary Approval Order, nor the fact of a settlement, are an admission or concession by the Defendants of any liability or wrongdoing whatsoever, or that certification of a litigation class or classes (as opposed to class certification for settlement purposes) is warranted. III. CERTIFICATION OF SETTLEMENT CLASSES AND SUBCLASSES
1. The Settlement Classes and Subclasses allege claims for gender discrimination brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”); the federal Equal Pay Act (“EPA”), 29 U.S.C. §206, et. seq.; the New York Equal Pay Act, N.Y. Labor Law § 194, et seq.; the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296, et seq.; the Florida Civil Rights Act of 1992, F.S.A. § 760.01, et seq.; the Missouri Human Rights Act, RSMo. § 213.010, et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq.
2. For settlement purposes only, the parties have proposed conditional certification of the following settlement classes:
a. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, a nationwide class certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and comprised of all women employed as Financial Advisors or Financial Advisor trainees (i.e., in the Pathways of Achievement, Paths of Achievement Program or Practice Management Development or predecessor programs who passed the Series 7 exam and received a production number) in the United States, Puerto Rico, or the U.S. Territories: (1) by Banc of America Investment Services, Inc. from March 16, 2006 through and including the date that
2

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 4 of 16 PageID #: 2448
entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through [add specific date]; and (2) by U.S. Wealth Management within MLPF&S from August 2, 2007 through [add specific date];
b. For purposes of the relief provided in the Settlement Agreement with respect to the federal EPA claim, a nationwide collective action certified under §16(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) and comprised of all women employed as Financial Advisors or Financial Advisor trainees in the United States, Puerto Rico, or the U.S. Territories: (1) by Banc of America Investment Services, Inc. from March 16, 2006 through and including the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through [add specific date]; and (2) by U.S. Wealth Management within MLPF&S from August 2, 2007 through [add specific date] (“EPA Subclass”);
c. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, a subclass certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by Banc of America Investment Services, Inc. in New York from November 10, 2004 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through [add specific date] (“New York Settlement Subclass”);
d. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, a subclass certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by Banc of America Investment Services, Inc. in Florida from January 10, 2006 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through [add specific date] (“Florida Settlement Subclass”);
3

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 5 of 16 PageID #: 2449
e. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, a subclass certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by U.S. Wealth Management within MLPF&S in Missouri from January 1, 2007 through [add specific date] (“Missouri Settlement Subclass”);
f. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, a subclass certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by U.S. Wealth Management within MLPF&S in New Jersey from January 1, 2007 through [add specific date] (“New Jersey Settlement Subclass”).
The Court hereby FINDS and CONCLUDES that, for purposes of this Settlement, the Settlement Classes set forth above satisfy all of the requirements for certification under Rule 23(a) and Rule 23(b)(3). There are approximately 4,812 Settlement Class Members satisfying the numerosity requirements.1 Named Plaintiffs are typical and adequate representatives of the Settlement Classes they seek to represent, since their interests are co-extensive with those of Settlement Class Members, and they have retained experienced counsel to represent them. Plaintiffs raise common questions and the Settlement Classes satisfy the predominance and superiority requirements for certification under Rule 23(b)(3) for settlement class purposes. The Court CERTIFIES the Settlement Classes under Rules 23(a) and 23(b)(3). IV. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL
1. The Court finds that Named Plaintiffs Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore have claims typical of Settlement Class Members and are
1 For purposes of this Settlement, Named Plaintiffs also are “similarly situated” to members of the Class under EPA collective action claims for the purposes of settlement.
4

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 6 of 16 PageID #: 2450
adequate representatives of Settlement Class Members. The Court appoints them to serve as Settlement Class Representatives of the nationwide Title VII and EPA classes. The Court also appoints Dianne Goedtel as Settlement Class Representative of the New York Settlement Subclass; Mary DeSalvatore as Settlement Class Representative of the New Jersey Settlement Subclass; Judy Calibuso and Julie Moss as Settlement Class Representatives of the Florida Settlement Subclass; and Jean Evans as Settlement Class Representative of the Missouri Settlement Subclass.
2. The Court finds that Lieff, Cabraser, Heimann & Bernstein, LLP, and Outten & Golden LLP have, separately and collectively, extensive experience and expertise in prosecuting employment discrimination class action cases. The Court appoints these firms as Class Counsel for the Settlement Classes under Fed. R. Civ. P. 23(g). V. PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
The Court has reviewed the terms of the Proposed Settlement Agreement attached as Exhibit 1, including the programmatic relief provisions and the plan of allocation, and the Plaintiffs’ description of the settlement in the Motion papers. The Court has also read and considered the Declaration of Rachel J. Geman in support of preliminary approval of the Settlement. Based on review of those papers, and the record in this case, the Court concludes that the settlement and Settlement Agreement are the result of extensive, arms-length negotiations between the parties after they investigated the class claims and became familiar with the strengths and weakness of Plaintiffs’ case. The assistance of an experienced mediator in the settlement process confirms that the Settlement is non-collusive. Based on that review, and the Court’s review of the issues in the case, the Court concludes that the proposed Settlement Agreement has no obvious defects and is within the range of possible settlement approval, such that notice to the Settlement Class is appropriate.
5

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 7 of 16 PageID #: 2451
IT IS THEREFORE ORDERED THAT: 1. The Proposed Settlement Agreement and the Settlement it embodies are hereby
PRELIMINARILY APPROVED. Final approval and entry of the Settlement Agreement is subject to the hearing of any objections of members of the Settlement Classes to the Proposed Settlement embodied in the Settlement Agreement.
2. Pending the determination of the fairness of the Settlement Agreement, all further litigation of this action is hereby STAYED. VI. CONFIDENTIALITY
The Court hereby enjoins disclosure to third parties of the documents and information discussed or exchanged during the parties’ confidential settlement negotiations and mediation to any third party not specified in the parties’ confidentiality agreements. VII. OTHER CASES ENJOINED
Pending Final Approval, the Court hereby preliminarily enjoins each member of the Settlement Classes and Subclasses, including any member who makes an irrevocable election to exclude herself from the Settlement Classes, from commencing, prosecuting or maintaining in any court other than this Court any claim, action or other proceeding that challenges or seeks review of or relief from any order, judgment, act, decision or ruling of this Court in connection with the Settlement Agreement. The Court further enjoins any member of the Settlement Classes and Subclasses who has not, by the deadline for opting-out, made a timely, irrevocable election to exclude herself from the Settlement Classes from commencing, prosecuting or maintaining, either directly, representatively or in any other capacity, any claim that is subsumed within the Settlement Agreement.
6

Case 2:10-cv-01413-PKC-AKT Document 153-1 Filed 09/06/13 Page 8 of 16 PageID #: 2452
Upon Final Approval by the Court, all Settlement Class Members who opt-in to the Settlement or do not opt-out, will be bound to the Release and Bar Order as set forth in the Settlement Agreement. Individuals who do not opt-out will be deemed to have opted-in.
Settlement Class Members may not assign or transfer their rights to participate in the Settlement Agreement. VIII. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS
NOTICE AND CLAIM FORM The parties have also submitted for this Court’s approval a proposed Class Notice and a proposed Claim Form, which the Court has carefully reviewed. The Court FINDS and CONCLUDES as follows: 1. The proposed Class Notice is the best notice practical under the circumstances and allows Settlement Class Members a full and fair opportunity to consider the proposed Settlement. The proposed plan for distributing the Class Notice and Claim Form likewise is a reasonable method calculated to reach all members of the Settlement Class who would be bound by the Settlement. Under this plan, the Claims Administrator will distribute the Class Notice and Claim Form to Settlement Class Members by first class U.S. Mail to their last known addresses. There is no additional method of distribution that would be reasonably likely to notify Settlement Class Members who may not receive notice pursuant to the proposed distribution plan. 2. The Class Notice fairly, plainly, accurately, and reasonably informs Settlement Class Members of: (1) appropriate information about the nature of this litigation, the Settlement Classes, the identity of Class Counsel, and the essential terms of the Settlement Agreement, including programmatic relief and the plan of allocation; (2) appropriate information about Class Counsel’s forthcoming application for attorneys’ fees, the proposed Service Awards to the Class Representatives and other payments that will be deducted from the Settlement Fund;
7

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(3) appropriate information about how to participate in the Settlement; (4) appropriate information about this Court’s procedures for final approval of the Settlement Agreement and Settlement, and about Settlement Class Members’ right to appear through counsel if they desire; (5) appropriate information about how to challenge or opt-out of the Settlement, if they wish to do so; and (6) appropriate instructions as to how to obtain additional information regarding this litigation or the Settlement Agreement.
3. Similarly, the proposed Claim Form allows members of the Settlement Classes a full and fair opportunity to submit a claim for proceeds in connection with the Settlement. Moreover, the Claim Form fairly, accurately, and reasonably informs Settlement Class Members that failure to complete and submit a Claim Form, in the manner and time specified, shall constitute a waiver of any right to obtain any share of the Settlement Fund.
4. The Court finds and concludes that the proposed plan for distributing the Notice and Claim Form (“Notice Materials”) will provide the best notice practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due process requirements.
5. Accordingly, the Court hereby ORDERS as follows: a. The form of the Notice Materials is approved. Non-material changes may
be made as the parties deem appropriate. b. The manner of distributing the Notice Materials is approved. c. Promptly following the entry of this Order, the Claims Administrator shall
prepare final versions of the Notice Materials, incorporating into the Notice the relevant dates and deadlines set forth in this Order.
d. Within five (5) business days following entry of this Order, Defendants shall provide the Claims Administrator the name and last known address of each Settlement
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Class Member. This information will be provided in a computer readable format acceptable to the Claims Administrator. For Settlement Class Members for whom the Notice is returned to the Claims Administrator, Defendants will provide a Social Security number within two (2) business days to the Claims Administrator to allow the Claims Administrator to expeditiously locate the Settlement Class Member’s new location. The Claims Administrator shall utilize such Settlement Class Members’ Social Security numbers only for the purpose of locating and identifying Class Members and shall keep those Social Security numbers confidential.
e. Prior to the mailing of the Notice Materials, the Claims Administrator will update any new address information for potential Class Members as may be available through the National Change of Address (“NCOA”) system.
f. Within twelve (12) business days after the entry of this Order, the Claims Administrator shall mail the Notice Materials to each Settlement Class Member by first class U.S. mail at her last known address or at the most recent address that may have been obtained through the NCOA.
g. The Claims Administrator shall maintain a log of its activities undertaken in its efforts to locate Settlement Class Members. The expense of the Claims Administrator shall be paid by the Settlement Sum as described in the Settlement Agreement.
h. The Claims Administrator shall take all other actions in furtherance of claims administration as are specified in the Settlement Agreement. IX. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT
A. Final Approval Hearing 1. The Court hereby schedules a hearing to determine whether to grant final certification of the Settlement Classes, and final approval of the Settlement Agreement (including the proposed plan of allocation, programmatic relief, payment of attorneys’ fees and
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costs, and Service Awards to the Named Plaintiffs) (the “Final Approval Hearing”) for _________ at __________am/pm. [90 days after CAFA Notice.]
B. Deadline To Request Exclusion From The Settlement 1. Settlement Class Members may exclude themselves, or opt-out, of the Settlement. Any request for exclusion must be in the form of a written, signed “opt-out” statement. A person wishing to opt-out must sign a statement confirming that the individual is aware that by optingout she will forego the opportunity to receive monetary benefits from this Settlement. To be effective, this opt-out statement must be post-marked on or before forty-five (45) days after the date the Notice is mailed to Settlement Class Members. 2. The Claims Administrator shall provide to all counsel and file with the Court all opt-out statements that are timely received and not rescinded. The Settlement Class will not include those individuals who file and serve a timely opt-out statement, and individuals who optout are not entitled to any monetary award under the Settlement Agreement. With respect to each such individual, the statute of limitations for her to assert any claim for individual relief will resume running on the postmark date of her signed, written statement that she is opting-out of the Settlement Class. In the event that a Settlement Class Member files both a Claim Form and an opt-out letter, Class Counsel will contact the Settlement Class Member to ascertain her intent. 3. Settlement Class Members shall be permitted to withdraw or rescind their opt-out statements by submitting a signed, written “rescission of opt-out” statement to the Claims Administrator. To be effective, the statement must be received by the Claims Administrator at least one day before the Final Approval Hearing. C. Deadline For Filing Objections To Settlement 1. Any Settlement Class Member who has not opted-out of the Settlement Classes and wishes to object to the fairness, reasonableness or adequacy of the Settlement Agreement or
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the Settlement must do so in writing. Settlement Class Member objections to the Settlement Agreement must include a detailed description of the basis of the objection. Objections must be filed with the Court, with copies served on Class Counsel and counsel for Defendants, postmarked on or before forty-five (45) days after the Notice is mailed to Settlement Class Members. No one may appear at the Final Approval Hearing for the purpose of objecting to the Settlement Agreement without first having filed and served her objection(s) in writing postmarked on or before forty-five (45) days after the Notice was mailed to Settlement Class Members.
D. Deadline For Submitting Claims Forms 1. A Settlement Class Member who does not opt-out will be eligible to a share of the settlement benefit. To receive this share, such a Settlement Class Member must properly and timely complete and submit a Claim Form to the Claims Administrator in accordance with the terms of the Settlement Agreement. To be effective, Settlement Class Members, including the Named Plaintiffs, must submit a Claim Form which must be postmarked no later than one hundred twenty (120) days after the initial mailing of the Class Notice to Settlement Class Members. 2. The Claims Administrator will provide counsel for Defendants’ payroll department with the names of all Settlement Class Members who submitted Claim Forms (“Claimants”). The identity of the Claimants will not be disclosed to anyone at Defendants other than counsel and Defendants’ payroll department, or as required for other tax or business and legal reporting purposes. The content of the Claims Form will be kept confidential. 3. After receiving the Claimant information discussed in the paragraph above, Defendants, through their counsel, will provide the Claims Administrator with the dates each
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Claimant was employed by Defendants as a Financial Advisor. The Claims Administrator will provide that information to each Claimant.
E. Settlement Proceeds 1. Within a reasonable time period after the date specified for receipt of claims, the Claims Administrator – based on Claimant’s tenure as defined by work weeks, Claimant’s position, and whether Claimant (based on information she may provide) believed she was terminated or constructively discharged – shall render a determination as to the monetary award if any, that will be paid to the Claimant from the Settlement Fund. 2. The total amount of settlement awards (including any and all payments to Settlement Class Members and the Named Plaintiffs for settlement of their class claims only) shall not exceed the net amount of the Settlement Sum after all costs related to the Settlement (excluding the cost of an Independent Consultant and Independent Settlement Monitor, the costs of the Programmatic Relief and the Defendants’ employer share of FUTA/FICA/SUTA and Medicare taxes) and Plaintiffs’ Counsel attorney’s fees and costs and the Claims Administrator’s fees and costs are considered. 3. The total amount of settlement awards for Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore for settlement of their individual non-class claims shall not in the aggregate exceed the net amount of the Individual Named Plaintiffs’ Settlement Fund. 4. Following its determination as to the monetary award, if any, that should be paid to each Claimant from the Settlement Fund, the Claims Administrator shall send a check to each eligible Claimant along with a reminder that the Claimant has released claims and has opted-into this action. If the amount of undistributed funds that remain after six (6) months from the mailing of the Notice of Award due to uncashed checks is in excess of $100,000, such
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undistributed funds shall be redistributed to Settlement Class Members who filed Claim Forms on a pro-rata basis in accordance with the plan of allocation (as determined by the Claims Administrator) and, if the undistributed funds are less than $100,000, they shall be distributed to Legal Momentum (Women’s Legal Defense and Education Fund), a 501(c)(3) organization advancing career opportunities for women.
5. The Claims Administrator shall maintain the distribution plan and allocation list for a period of seven (7) years. Defendants shall have access to individual allocation amounts for tax and reporting purposes, but shall not have access to Settlement Class Member Claim Forms or Settlement Class Member descriptions of their discharge from Defendants.
F. Deadline For Submitting Motion Seeking Final Approval No later than twenty (20) days before the last date on which Settlement Class Members may object or opt-out of the Settlement, Plaintiffs shall file a Motion for Final Approval of the Class Action Settlement and Petition for Attorneys’ Fees, Costs and Service Awards to Class Representatives (“Motions”). These documents will be posted on Class Counsel’s websites as well as the website maintained by the Claims Administrator set forth in the Notice to be mailed. No later than seven (7) days before the Final Approval Hearing, Plaintiffs shall file reply memoranda in support of their Motions. X. NAMED PLAINTIFFS’ AND SETTLEMENT CLASS MEMBERS’ RELEASE If, at the Final Approval Hearing, this Court grants Final Approval to the Settlement and Settlement Agreement, Named Plaintiffs and each individual Settlement Class Member who do not timely opt-out will release claims, as set forth in the Settlement Agreement, by operation of this Court’s entry of the Judgment and Final Approval, regardless of whether she submits a Claim Form or receives any share of the Settlement Fund.
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XI. APPOINTMENT OF CLAIMS ADMINISTRATOR Rust Consulting, Inc. is hereby appointed Claims Administrator to carry out the duties set
forth in this Order and the Settlement Agreement. XII. SETTLEMENT FUND
No later than ten (10) business days after the Effective Date of the Settlement, Defendants shall pay, by wire transfer to the Claims Administrator, (i) the sum of Seven Hundred Seventy-Five Thousand Dollars ($775,000) for the “Individual Named Plaintiffs’ Settlement Amount,” which Named Plaintiff Judy Calibuso is not entitled to participate in or receive any amounts from and (ii) Thirty-Eight Million Two Hundred Twenty-Five Thousand Dollars ($38,225,000) (the “Settlement Sum”) minus the amount previously paid to Plaintiffs’ Counsel for attorneys’ fees and costs and minus the Claims Administrator’s reasonably anticipated fees and costs advanced to the Claims Administrator upon Preliminary Approval of the Settlement Agreement (“the Settlement Fund”). These amounts shall be placed into an interest bearing escrow account established by the Claims Administrator.
The Settlement Sum and the Individual Named Plaintiffs’ Settlement Fund constitute the total settlement cash outlay by Defendants in connection with the resolution of this Action, except for payments to the Independent Consultant and Independent Settlement Monitor, the costs of the Programmatic Relief and Defendants’ share of taxes, as discussed above. No other money shall be separately paid by Defendants in connection with this Settlement (including, without limitation, in connection with any taxes, attorneys’ fees, retirement or other employee benefits, or in any other respect). The Settlement Sum and Individual Named Plaintiffs’ Settlement Fund are inclusive of payment for: (a) all amounts paid to Settlement Class Members, including the Named Plaintiffs; (b) all amounts paid to Named Plaintiffs, which includes amounts paid as Service Awards, amounts paid as Settlement Class Members and amounts paid
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to Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore for signing individual releases; (c) all attorneys’ fees associated or incurred in connection with Named Plaintiffs’ individual claims up through Preliminary Approval or, if later, the date Moss, Goedtel, Evans and DeSalvatore sign their individual release agreements; (d) all attorneys’ fees and costs awarded by the Court, including those in connection with securing Court Approval of the Settlement and the claims process and the monitoring by Class Counsel of the Settlement Agreement; (e) all costs in connection with the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund including, but not limited to, those related to notice and claims processing, independent legal advice obtained by the Claims Administrator relating to the establishment of the Qualified Settlement Fund and tax treatment and tax reporting of awards to Claimants, and preparation of the Fund’s tax returns (and the taxes associated with such tax returns as defined below); and (f) applicable federal, state and local taxes, and all federal and state unemployment taxes required by law to be withheld by Defendants. The Settlement Sum and Individual Named Plaintiffs’ Settlement Fund do not include Defendant’s share of taxes or contributions (i.e., FICA, FUTA, SUTA and Medicare) which will be paid separately by Defendants to the Claims Administrator, the payments to the Independent Consultant and Independent Settlement Monitor or the costs of the Programmatic Relief, which payments and costs will be borne by Defendants directly. Defendants shall, upon notice from the Claims Administrator, remit any required tax payment to the Claims Administrator.
IT IS SO ORDERED.

Dated: _________________, 2013

___________________________ PAMELA K. CHEN U.S. District Court Judge, E.D.N.Y.

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 Case 2:10-cv-01413-PKC-AKT Document 154 Filed 09/06/13 Page 1 of 33 PageID #: 2461

OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Rachel Geman 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, and MARY DESALVATORE, on behalf of themselves and all others similarly situated,
Plaintiffs,

No. 10 Civ. 1413 (PKC) (AKT)

-against-

BANK OF AMERICA CORPORATION; MERRILL LYNCH & CO., INC.; and MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,

Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PROVISIONAL CERTIFICATION OF SETTLEMENT CLASS,
APPROVAL AND DISTRIBUTION OF THE NOTICE OF SETTLEMENT, AND APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL

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TABLE OF CONTENTS
PAGES INTRODUCTION ...........................................................................................................................1
I. Factual and Procedural Background ........................................................................1 A. Litigation History.........................................................................................1 B. Settlement Negotiations ...............................................................................4
II. Summary of the Settlement Terms ..........................................................................5 A. The Settlement Fund ....................................................................................5 B. Programmatic Relief ....................................................................................5 C. Release .........................................................................................................9 1. Class Member Release .....................................................................9 2. Individual Claims of Named Plaintiffs ............................................9 3. Bank of America Mutual Release ..................................................10 D. Eligible Employees ....................................................................................10 E. Allocation Formula ....................................................................................10 F. Attorneys’ Fees and Litigation Costs.........................................................11 G. Service Award & Individual Awards.........................................................11 H. Settlement Claims Administrator...............................................................11
CLASS ACTION SETTLEMENT PROCEDURE .......................................................................12 ARGUMENT .................................................................................................................................12
I. Preliminary Approval of the Settlement Is Appropriate ........................................12 A. The Settlement Is Fair, Reasonable and Adequate ....................................14 1. Litigation Through Trial Would Be Complex, Costly, and Long ...............................................................................................15 2. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly ...................................................15 3. Plaintiffs Would Face Real Risks if the Case Proceeded ..............16 4. Maintaining the Class Through Trial Would Not Be Simple ........16 5. Defendant’s Ability to Withstand a Greater Judgment Is Not Clear ........................................................................................17 6. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation ........................................................................................17
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TABLE OF CONTENTS (continued) PAGES
II. Conditional Certification of the Settlement Class and Subclasses Is Appropriate ............................................................................................................18 A. Numerosity.................................................................................................18 B. Commonality..............................................................................................18 C. Typicality ...................................................................................................19 D. Adequacy of the Named Plaintiffs .............................................................20 E. Certification Is Proper Under Rule 23(b)(3) ..............................................20 1. Certification of the Class is Proper Under Rule 23(b)(3) ..............21 a. Common Questions Predominate ......................................21 b. A Class Action Is a Superior Mechanism ..........................22 F. The Nationwide EPA Class Satisfies 29 U.S.C. § 216(b) .........................23
III. Plaintiffs’ Counsel Should Be Appointed as Class Counsel..................................24 IV. The Proposed Notice and Claim Form Is Appropriate ..........................................24 CONCLUSION ..............................................................................................................................25
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TABLE OF AUTHORITIES

CASES

PAGES

Amchem Prods. v. Windsor, 521 U.S. 591 (1997)............................................................................................................ 21, 22

Augst-Johnson v. Morgan Stanley & Co., Inc., No. 06-1142 (D.D.C. Oct. 26, 2007) ........................................................................................ 22

In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000), ................................................................................. 14, 15

Cagan v. Anchor Sav. Bank FSB, No. 88 Civ. 3024, 1990 U.S. Dist. LEXIS 11450 (E.D.N.Y. May 22, 1990)........................... 18

Capsolas v. Pasta Resources, Inc., No. 10-5595, 2012 WL 1656920 (S.D.N.Y. May 9, 2012) ...................................................... 23

Carter v. Wells Fargo Advisors, LLC, No. 09-01752 (E.D.N.Y. June 8, 2011) .................................................................................... 22

City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974) ............................................................................................... 14, 17

Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) ....................................................................................................... 18

Curtis-Bauer v. Morgan Stanley & Co., Inc., No. C 06-3903, 2008 WL 4667090 (N.D. Cal. Oct. 22, 2008)................................................. 22

Danieli v. IBM, No. 08 Civ. 3688, 2009 WL 6583144 (S.D.N.Y. Nov. 16, 2009) ............................................ 13

Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) ..................................................................................................... 20

Duling v. Gristede’s Operating Corp., 267 F.R.D. 86 (S.D.N.Y. 2010) .......................................................................................... 18, 20

Easterling v. Connecticut, Dept. of Corr., 265 F.R.D. 45 (D. Conn. 2010) ......................................................................................... 22, 24

Easterling v. Connecticut, Dept. of Corr., 278 F.R.D. 241 (D. Conn. 2011) ............................................................................................. 24

Ellis v. Costco Wholesale Corp., 285 F.R.D. 492 (2012) .............................................................................................................. 24

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TABLE OF AUTHORITIES (continued)
In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ. 10240, 2007 WL 2230177 (S.D.N.Y. July 27, 2007) ........................................... 13
Frank v. Eastman Kodak Co., 228 F.R.D. 174 (W.D.N.Y. 2005)................................................................................. 13, 14, 20
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).................................................................................................................. 19
In re General Motors Corp. Pick-up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768 (3rd Cir 1995) ....................................................................................................... 18
Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968) ..................................................................................................... 22
In re Ira Haupt & Co., 304 F. Supp. 917 (S.D.N.Y. 1969) ........................................................................................... 16
Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072 (2d Cir. 1998) ..................................................................................................... 13
Mazur v. Olek Lejbzon & Co., No. 05 Civ. 2194, 2005 U.S. Dist. LEXIS 30321 (S.D.N.Y. Nov. 30, 2005) .......................... 23
McBean v. City of New York, 228 F.R.D. 487 (S.D.N.Y. 2005) .............................................................................................. 21
Officers for Justice v. Civil Serv. Comm’n of City and Cty. of San Francisco, 688 F.2d 615 (E.D. Tex. 1982) ................................................................................................. 18
Reyes v. Buddha-Bar NYC, No. 08-02494, 2009 WL 5841177 (S.D.N.Y. May 28, 2009) .................................................. 12
Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) ..................................................................................................... 20
Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) ..................................................................................................... 21
Scholtisek v. Eldre Corp., 229 F.R.D. 381 (W.D.N.Y. 2005)............................................................................................. 23
Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993) ...................................................................................................... 25
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TABLE OF AUTHORITIES (continued)
Toure v. Cent. Parking Sys. of N.Y., No. 05 Civ. 5237, 2007 U.S. Dist. LEXIS 74056 (S.D.N.Y. Sept. 28, 2007) .......................... 20
In re Traffic Exec. Ass’n, 627 F.2d 631 (2d Cir. 1980) ..................................................................................................... 13
United States v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011) ................................................................................................ 22
Velez v. Majik Cleaning Serv., Inc., No. 03 Civ. 8698, 2007 U.S. Dist. LEXIS 46223 (S.D.N.Y. June 25, 2007)........................... 16
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) ..................................................................................................... 21
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).................................................................................................... 4, 19, 20
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005) ................................................................................................. 12, 13
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ..................................................................................................... 15
Willix v. Healthfirst, Inc., No. 07-1143, 2011 U.S. Dist. LEXIS 21101 (E.D.N.Y. Feb. 18, 2011) .................................. 13
STATUTES 29 U.S.C. § 206............................................................................................................................... 2 29 U.S.C. § 216............................................................................................................................. 23 42 U.S.C. § 2000............................................................................................................................. 2 RULES Federal Rule Civil Procedure Rule 23 ................................................................................... passim
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OTHER AUTHORITIES Herbert B. Newberg & Alba Conte, Newberg on Class Action,
(4th ed. 2002)................................................................................................................ 12, 13, 18 REGULATIONS 29 C.F.R. §1604.11(a)..................................................................................................................... 9
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INTRODUCTION Plaintiffs respectfully seek certification of a settlement class and request that the Court grant preliminary approval of the Settlement Agreement (“Settlement”),1 attached as Exhibit 1 to the Proposed Order filed herewith. Subject to Court approval, the parties have settled Plaintiffs’ and Class Members’ compensation discrimination and equal pay claims for significant monetary relief of $39 million plus programmatic relief monitored by a recognized expert in Industrial/Organizational Psychology. The proposed settlement resolves all Class Members’ claims.2 See Third Amended Class and Collective Action Compl. (“TAC”) ¶¶ 173-250. The proposed settlement satisfies all of the criteria for preliminary approval. The settlement was negotiated at arms’ length and falls well within the range of possible approval. The monetary relief for the Class Members is substantial given the relative small size of the class and types of claims asserted in this lawsuit. In addition, the extensive programmatic relief provided for in the settlement will materially advance the goal of equal employment opportunity for female Financial Advisors (“FAs”) at Bank of America. Accordingly, Plaintiffs respectfully request that the Court grant preliminary approval of the proposed Settlement, direct distribution of class notice and a claim form (attached as Exhibits 2 and 3 to the Proposed Order), and appoint Plaintiffs’ counsel as Class Counsel. Plaintiffs also request the Court certify settlement classes and subclasses of female FAs under Fed. R. Civ. P. 23 for the Title VII and state-law claims and under 29 U.S.C. § 216(b) for the federal Equal Pay Act (“EPA”) claim. I. Factual and Procedural Background A. Litigation History Several of the Named Plaintiffs first contacted plaintiffs’ counsel in late 2006 and early
1 All capitalized terms used herein have the same meaning as set forth in the Settlement Agreement. 2 As discussed below, the Settlement has a class fund of $38,250,000 and a fund for the Named Plaintiffs of $775,000.
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2007. Declaration of Adam T. Klein (“Klein Decl”), ¶5. Plaintiffs’ counsel commenced an extensive investigation at that time. Id. Plaintiffs filed the original complaint on March 30, 2010 and the operative TAC on October 5, 2011.3 Plaintiffs’ claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) (disparate impact and intentional discrimination), the Equal Pay Act, 29 U.S.C. § 206 et seq. (“EPA”), and the applicable state anti-discrimination and equal pay laws of the states where the Named Plaintiffs reside: New York (Dianne Goedtel), New Jersey (Mary DeSalvatore), Florida (Judy Calibuso and Julie Moss), and Missouri (Jean Evans).
Plaintiffs conducted an extensive pre-filing investigation and, after the commencement of the Action, both parties conducted broad, extensive, and thorough discovery related to class and collective action certification between 2010 and April 2013. Declaration of Rachel Geman (“Geman Decl.”), ¶15. Plaintiffs conducted extensive data analysis of personnel and compensation-related data as well as discovery regarding key policies and practices including, without limitation, account distributions, teaming, leads and referrals, and compensation. Plaintiffs also conducted discovery into Defendants’ HR and complaint procedures. Id., ¶16.
The written class and collective action certification discovery conducted in this case included four formal sets of document requests (totaling more than 50 distinct categories of documents, and more than 200 separate requests) propounded by Plaintiffs, innumerable discovery-related letters and informal requests, and interrogatories. Geman Decl., ¶17. Defendants propounded requests for production and interrogatories toward each of the five Named Plaintiffs, and three sets of requests for admissions. Id. Between the parties, more than 900,000 pages (and over 100,000 documents) of materials were exchanged and reviewed (Defendants produced over 100,000 documents consisting of nearly 890,000 pages of material
3 Plaintiffs filed an Amended Complaint on August 2, 2010 and a Second Amended Complaint on March 14, 2010.
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for Plaintiffs to review) against the backdrop of extensive negotiations over the scope of discovery, including ESI (such as email) discovery. Id., ¶18. The production included documents over many years and across the Defendants related to the challenged policies and practices in this Action (including, without limitation, policies and practices relating to compensation, account distributions, teaming and pooling, and leads and referrals), emails, internal complaints, audits, documents related to the Plaintiffs, and other materials. Id.
The parties also litigated discovery disputes, including over whether Defendants were required to turn over their human resources, compensation, and account data and, if so, the scope of the production. Following briefing and two rounds of oral arguments, resulting in a telephonic Order on March 4, 2011 requiring the production of data, Defendants began producing data. Due to the complexity of the data, among other reasons, numerous supplemental productions occurred, with the last production in April 2013. Based on extensive work with their data experts, Plaintiffs conducted three formal data depositions and numerous informal interviews of Defendants’ employees to understand the data. Geman Decl., ¶19.
Deposition discovery was also extensive. In addition to the data depositions noted above, Plaintiffs took 16 other depositions of corporate designees on a variety of topics such as compensation, partnerships, organizational structure, human resources and complaints, and account distributions (making 19 total depositions by Plaintiffs), and Defendants deposed each of the Named Plaintiffs for two days. Geman Decl., ¶20.
The parties engaged in substantial motion practice relating to Plaintiffs’ allegations. Defendants moved to dismiss Plaintiffs’ claims and strike Plaintiffs’ class and collective action allegations. Specifically, in two motions Defendants argued that: (a) Section 703(h) of Title VII and a parallel provision under the EPA, which expressly permit certain merit-based and
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production-based systems, required dismissal of Plaintiffs’ Title VII disparate impact and EPA claims that challenged Defendants’ production- and merit-based policies, (b) Plaintiffs’ class claims could not be sustained in the wake of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), as well as a range of other authorities and related arguments, and (c) certain of Plaintiffs’ claims were untimely and/or beyond the scope of the underlying EEOC charges. Plaintiffs opposed the motions, arguing, inter alia, that Defendants’ compensation systems were not merit based or valid production based systems, and that they had validly alleged intentional discrimination. Both parties cited aspects of the then-existing evidentiary record in their papers on this motion. Plaintiffs also argued that their class claims were viable and timely.
After oral argument on January 17, 2012, and numerous supplemental filings, the Court denied all Defendants’ motions without prejudice on September 27, 2012, in a memorandum opinion. [Dkt. No. 134.]
B. Settlement Negotiations The Settlement Agreement was reached after extensive mediation before experienced mediator David A. Rotman. Counsel for the parties are experienced class action lawyers who retained Mr. Rotman for his expertise in mediating many complex class and collective actions. Geman Decl., ¶22. Mr. Rotman conducted four days of mediation in San Francisco, California over a period of four-and-a-half months, including numerous informal discussions with the parties during and following the same time period. Id. The Named Plaintiffs participated in the mediation and settlement process (in-person at mediation sessions and/or by providing input to counsel), and Plaintiffs submit that they were actively involved in shaping the monetary and programmatic relief set forth in the Settlement Agreement. Id. At all times during this process, the parties’ respective counsel bargained vigorously and at arm’s-length on behalf of their clients. Id.
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II. Summary of the Settlement Terms A. The Settlement Fund The monetary component of the Settlement is a $39,000,000 Settlement Fund, with a
$38.225 million Settlement Sum for the Class and a Named Plaintiffs’ Settlement Fund of $775,000. Settlement Agreement, §XI.A. The Settlement Sum will compensate members of the settlement class and subclasses who do not opt out and who timely submit claims, provide service payments (if approved) to Named Plaintiffs who are appointed as class representatives for service they provided on behalf of the class, and pay attorneys’ fees, notice costs, and administrative expenses. The Settlement Fund does not include Defendants’ separate payments to the Monitor, the Independent Consultant, or the Programmatic Relief (described below) or the employer share of its payroll and Medicare taxes on settlement proceeds.
B. Programmatic Relief The Settlement provides for meaningful programmatic relief, as overseen by a Monitor, and also involves a study by a separate expert in Organization Psychology. The programmatic relief will last for three years, starting from Effective Approval. The below is a summary of the programmatic relief, the full description of which is in the Settlement Agreement at Sections IX and X. First, Defendants will engage an Independent Consultant (“IC”), selected by Class Counsel, who has a background and substantial experience in applied Organizational Psychology. The IC will conduct a privileged and confidential internal study of FA teaming and make non -binding confidential recommendations as to ways to facilitate improved teaming arrangements for female FAs. Before beginning the review and evaluation of the teaming and pooling policies and practices, the IC will meet once with Class Counsel and once with counsel for Defendants to discuss the parties' respective perspectives in connection with the teaming
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study. The IC will interview various personnel in connection with this study, including representatives of management, female FAs who are current or former members of internal councils to management, female FAs who are current or former members of the Diversity Council, and a Named Plaintiff who is a current employee. In addition, for 30 offices, the IC will receive a listing of new FA pools/teams (excluding situational pool/split arrangements) formed and for each new pool/team, an indication of the gender of each of the members of the pool/team (names will be redacted) and each member’s allocation or share of the pool. The IC will also review sample pool/team agreements and any current policies/guidelines or training materials related to FA teaming, and such other information as she deems reasonably necessary for purposes of the study. After conclusion of the review, the IC will meet with Defendants to share the results and make non-binding recommendations.
Second, Defendants will engage a jointly-selected monitor to act as an Independent Settlement Monitor for compliance monitoring. The monitor will meet with a designated representative of the Company on a semi-annual basis for the 3-year period to review compliance with the terms of the Programmatic Relief, and the monitor may request information to ascertain compliance with the terms of the Settlement. Id.
Third, Defendants will conduct a quarterly review of account redistributions to track usage and adherence to the Account Distribution Policy (“ADP”), as it may be updated and modified from time to time, and to monitor exceptions and to provide the results to the monitor. If any unusual patterns of exceptions are noted, or if it appears that an office is not adhering to the policy, Defendants will follow-up with office management. Defendants will require written explanations for exceptions to be entered into a drop down list of exceptions maintained in the current or successor system for tracking as per the above. Defendants will provide information to
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the monitor to demonstrate compliance with this section, including the quarterly reports/results of quarterly reviews.4
Fourth, before approving a team, management will instruct that FAs consider a variety of potential teammates, offer suggestions at an early point in the formation process, and instruct that the decision to team with particular FAs, or not to team with particular FAs, may not be made on the basis of an FA’s gender or other legally protected characteristic. Defendants will maintain a policy that “Teams may not be formed solely for the purpose of selecting a successor in anticipation of an FA's retirement or departure.” Likewise, pools may not be used to evade the ADP’s prohibition against FA to FA transfers. Any pools formed within 60 days of the departure or retirement of an FA will be strictly scrutinized by management.
Fifth, Defendants will make available to all FAs and FA Trainees the option of adding a non-binding mediation process with a third-party neutral to their teaming agreements.
Sixth, Defendants agree to annually provide FAs with information about the process for making internal complaints of gender discrimination, and shall instruct that FAs acknowledge that they have read the complaint procedure. The complaint procedure will include information about a phone number that may be used to make a complaint of gender discrimination. Defendants also agree to promptly investigate (based on circumstances) all complaints of gender discrimination and retaliation and to take appropriate remedial action, and provide the monitor with complaints or complaint entries of gender discrimination (including those concerning account distributions, leads and referrals, teaming and compensation), and the results of the Defendants’ investigation and remedial action, if any, taken.
Seventh, Defendants agree to post non-discrimination policies on an internal website accessible to all FAs and FA management accompanied by statements of support by appropriate
4 Defendants will also maintain published policies relating to distributions of leads and referrals.
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management, and to include copies of policies for new FAs upon hire. Defendants will instruct that both FAs and FA management acknowledge that they have read these policies.
Eighth, Defendants will engage in business generation assistance, including: (a) maintenance of a Diverse FA Fund at $1 million per annum, that will be distributed on a first come, first serve basis in accordance with rules established by Defendants (but with at least half available for women); (b) maintenance of a Women’s Investors’ Fund, available to any FA to penetrate the Women’s market, funded at a minimum of $250,000 per annum; (c) sponsorship of a Women in Wealth symposium series; and (d) maintenance of a Women’s Employee Network, focusing on events addressing career development, networking, and personal leadership. Finally, the Company will provide ongoing training modules for FAs for business development.
Ninth, Defendants will continue to conduct performance assessments of Complex Directors and Resident Directors that include a distinct diversity and inclusion category designed to evaluate whether the manager was a leader in promoting diversity and inclusion (people, ideas, solutions), including female FAs’ inclusion in the allocation of business opportunities and teams, and whether the manager fostered open communications with FAs.
Finally, Defendants will not require female (or other) Financial Advisors within U.S. Wealth Management to arbitrate any employment discrimination claims unless individually negotiated.
Lead Class Counsel will receive semi-annual reports from the monitor that provide information about compliance or potential non-compliance with the settlement provisions for which the monitor is responsible for monitoring. Defendants and Lead Class Counsel will meet at least once every six months, beginning six months after the Effective Date, regarding compliance, and may confer more frequently at their discretion.
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C. Release 1. Class Member Release
Class Members who do not opt out of this Settlement will be deemed opted in as collective action Settlement Class Members under the EPA in addition to being Settlement Class Members under federal and state discrimination laws pursuant to Fed. R. Civ. Proc. 23, and will release all claims, known and unknown, existing through the date of preliminary approval, under any federal, state or local legal theory, for gender discrimination against Bank of America, with the exception of any individual, non-class claims Class Member Releasors may have for sexual harassment (such as defined in 29 C.F.R. §1604.11(a)) or retaliation, or individual or class claims for race discrimination such as those brought by the certified class in McReynolds v. Merrill Lynch, Case No. 05-C-658, currently pending in the U.S. District Court for the Northern District of Illinois (Eastern Division). Settlement Agreement, §V.A.
2. Individual Claims of Named Plaintiffs Each Class Representative who is signing a General Release will receive an additional payment for the release of her non-class claims, including non-economic losses that arise from sexual harassment and retaliation, as well as for her agreement not to be re-hired by Bank of America, to be determined by the neutral Claims Administrator.5 These decisions shall be based upon a review of the factual record and shall be non-appealable. In no event will the total of all such awards exceed $775,000. The Named Plaintiff General Release releases all claims of any nature against Bank of America under federal, state or local laws for any period up through the date each such Named Plaintiff signs her individual release. Settlement Agreement, §V.B.
5 Judy Calibuso, a current employee, is not releasing her individual retaliation claims against Bank of America and will not receive any portion of the $775,000.
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3. Bank of America Mutual Release Defendant releases the Named Plaintiffs who sign a general release from any pending claims against them and, upon an award of preliminary approval, will dismiss any actions against Named Plaintiffs, subject to the right to re-open if the Effective Date is not reached. Settlement Agreement, §V.C. D. Eligible Employees The Settlement Class of eligible employees includes all women employed as FAs or FA trainees in the United States, Puerto Rico, or the U.S. Territories (1) from March 16, 2006 for Legacy Bank of America Class Members and (2) from August 2, 2007 for all other Class Members.6 Settlement Agreement, §II.A. E. Allocation Formula Settlement Class Members who submit a simple and user-friendly Claim Form will be eligible to receive a monetary award, to be calculated by the Claims Administrator based on the assignment of points to each Claimant. Points will be assigned based on: (1) the Claimant’s length of tenure (e.g., weeks worked) during the Class Period as an FA or FA trainee and (2) information (if supplied by the Claimant) regarding whether any alleged purported compensation discrimination, in the view of the Claimant, caused the actual or constructive termination of her employment with Defendants. Settlement Agreement, §XI.D. The Claims Administrator shall calculate a total award for each Settlement Class Member who submits a valid Claim Form, with each Claimant receiving at least a minimum payment of $500. The Claims Administrator’s determination shall be final and not subject to review by, or appeal to, any court, mediator, arbitrator or other judicial body. Id.
6 There are four Settlement Subclasses, defined in §II.A. of the Settlement Agreement: a New York Settlement Subclass, a Florida Settlement Subclass, a Missouri Settlement Subclass, and a New Jersey Settlement Subclass.
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F. Attorneys’ Fees and Litigation Costs Class Counsel shall be entitled to apply to the Court for an award of Plaintiffs’ Counsel’s attorneys’ fees in a total amount not to exceed 30% of the portion of the Settlement for the Settlement Sum (the class fund), i.e., $11,467,500, plus their litigation expenses. The Parties agree that Class Counsel will hold back $100,000 per year of their awarded fees for each of the three years of the term of the Programmatic Relief for their work in monitoring the Programmatic Relief. The Claims Administrator will maintain this portion of the Court-awarded attorneys’ fees in escrow. Settlement Agreement, §XII.A. Bank of America and its attorneys do not to oppose these applications for attorneys’ fees, costs or expenses by Plaintiffs’ counsel as set forth above. Settlement Agreement, §XII.B. G. Service Award & Individual Awards Plaintiffs’ counsel will seek, and Bank of America will not oppose, Court approval for Service Awards in the amount of $35,000 for the Named Plaintiffs who are appointed as Class Representatives for their participation in the prosecution and settlement of this case. This participation included each Plaintiff preparing for and then being deposed for ten hours each, participating in responding to discovery requests, assisting counsel in developing strategy, and providing input into settlement discussions and the ultimate Settlement Agreement (including, in some cases, attendance at mediation in San Francisco). The proposed Service Awards will be in addition to Settlement Class benefits available to the Named Plaintiffs under the Agreement and are subject to Court approval. Settlement Agreement, §XII.D. H. Settlement Claims Administrator The parties have jointly selected Rust Consulting, Inc. as the Settlement Claims Administrator. Settlement Agreement, § III.A.5. The administrator’s fees will be paid from the Fund. Settlement Agreement, §XI.A.
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CLASS ACTION SETTLEMENT PROCEDURE Courts have established a defined procedure and specific criteria for settlement approval in class action settlements that include three distinct steps: 1. Preliminary approval of the proposed settlement after submission to the Court of a
written motion for preliminary approval and certification of the settlement class; 2. Dissemination of mailed and/or published notice of settlement to all affected
Class Members; and 3. A final settlement approval hearing at which Class Members may be heard
regarding the settlement, and at which argument concerning the fairness, adequacy, and reasonableness of the settlement may be presented. See Fed. R. Civ. P. 23(e); see also Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”) §§11.22 et seq. (4th ed. 2002); Reyes v. Buddha-Bar NYC, No. 08-02494, 2009 WL 5841177, at *1-2 (S.D.N.Y. May 28, 2009). This process safeguards Class Members’ procedural due process rights and enables the Court to fulfill its role as the guardian of class interests. With this motion, Plaintiffs request that the Court take the first step – granting preliminary approval of the Settlement Agreement, conditionally certifying the Settlement Class, appointing Plaintiffs’ counsel as Class Counsel, and approving the proposed Notice and Claim Form and authorizing the settlement administrator to send it.
ARGUMENT I. Preliminary Approval of the Settlement Is Appropriate
The law favors compromise and settlement of class action suits. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116-17 (2d Cir. 2005) (noting the “strong judicial policy in favor of settlements, particularly in the class action context”) (internal quotation marks omitted); Newberg §11.25 (“The compromise of complex litigation is encouraged by the courts and favored by public policy.”) The approval of a proposed class action settlement is a matter of
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discretion for the trial court. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1998).
Preliminary approval requires an “initial evaluation” of the fairness of the proposed settlement on the basis of written submissions and an informal presentation by the settling parties. Newberg § 11.25. The Court need only find that there is “‘probable cause’ to submit the [settlement] to Class Members and hold a full-scale hearing as to its fairness.” In re Traffic Exec. Ass’n, 627 F.2d 631, 634 (2d Cir. 1980); see Newberg §11.25 (“If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness . . . and appears to fall within the range of possible approval,” the court should permit notice of the settlement to be sent to Class Members); Danieli v. IBM, No. 08 Civ. 3688, 2009 WL 6583144, at *4 (S.D.N.Y. Nov. 16, 2009) (granting preliminary approval where the settlement “ha[d] no obvious defects” and the proposed allocation plan was “rationally related to the relative strengths and weaknesses of the respective claims asserted”).
“Fairness is determined upon review of both the terms of the settlement agreement and the negotiating process that led to such agreement.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 184 (W.D.N.Y. 2005). “A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Wal-Mart Stores, 396 F.3d at 116 (internal quotation marks omitted). “‘Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.’” Willix v. Healthfirst, Inc., No. 07-1143, 2011 U.S. Dist. LEXIS 21101, at *6 (E.D.N.Y. Feb. 18, 2011) (quoting In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ. 10240, 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007)).
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The first step in the settlement process simply allows notice to issue to the class and for Class Members to object, comment on, or opt out of the settlement. After the notice period, the Court will be able to evaluate the settlement with the benefit of the Class Members’ input.
A. The Settlement Is Fair, Reasonable and Adequate In evaluating a class action settlement, courts in the Second Circuit consider the nine factors set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). Although the Court need not evaluate the Grinnell factors in order to conduct its initial evaluation of the settlement, it may be useful for the Court to consider the criteria on which it will ultimately judge the settlement. The Grinnell factors are: (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; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. All of the Grinnell factors applicable now weigh in favor of preliminary approval of the Settlement Agreement.7
7 Obviously, Plaintiffs have not yet heard the reaction of the Class, rendering premature a discussion of the second Grinnell factor. With respect to the seventh factor, while Plaintiffs have every reason to believe that Bank of America would remain handily able to satisfy even larger judgments, a “defendant’s ability to withstand a greater judgment, standing alone, does not suggest that the settlement is unfair.” Frank, 228 F.R.D. at 186 (quoting In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 n.9) (S.D.N.Y. 2000). Here, no later than ten business days after the effective date of this Settlement, Defendant will submit the settlement sum to the Claims Administrator. Settlement Agreement, §XI.A.
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1. Litigation Through Trial Would Be Complex, Costly, and Long By reaching a favorable settlement prior to summary judgment motions or trial, and before class certification, Plaintiffs avoid significant expense and delay and ensure a risk-free recovery for the class. “Most class actions are inherently complex and settlement avoids the costs, delays and multitude of other problems associated with them.” In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000), aff’d sub. nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). This case is no exception, with approximately 4,800 Class Members and claims under federal and state law. Geman Decl., ¶15. The parties have completed extensive discovery (although some discovery remains) and the next step would be for a formal round of expert discovery and motion practice on class certification, followed by motion practice on dispositive motions. Preparing such motions would be timely and costly as they would require the parties to review dozens of deposition transcripts and thousands of documents and finalize supporting affidavits from Class Members (and undergo Class Member depositions as well). In addition, any judgment related to the class certification and summary judgment motions may be appealed, extending the duration of the litigation. The settlement, on the other hand, makes monetary and programmatic relief available to Class Members in a prompt and efficient manner.
2. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly
As described above, the parties have completed extensive motion practice and protracted discovery and are well prepared to recommend settlement. The proper question is “whether counsel had an adequate appreciation of the merits of the case before negotiating.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004) (internal quotation marks omitted). The parties’ discovery here meets this standard. As discussed above, the parties
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engaged in significant discovery, taking and defending approximately 24 depositions, including those of the Named Plaintiffs and Defendant’s designees and executives, and substantial document and data discovery. Geman Decl., ¶¶16-20. Based on these circumstances, the parties were well equipped to evaluate the strengths and weaknesses of the case.
3. Plaintiffs Would Face Real Risks if the Case Proceeded Although Plaintiffs believe their claims have merit, and are suitable for class and collective action treatment, they also recognize that they would face significant legal, factual, and procedural obstacles to recovering damages on their claims. Indeed, “if settlement has any purpose at all, it is to avoid a trial on the merits because of the uncertainty of the outcome.” In re Ira Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y. 1969); see also Velez v. Majik Cleaning Serv., Inc., No. 03 Civ. 8698, 2007 U.S. Dist. LEXIS 46223, at *19 (S.D.N.Y. June 25, 2007) (“The proposed settlement benefits each plaintiff in that he or she will recover a monetary award immediately, without having to risk that an outcome unfavorable to the plaintiffs will emerge from a trial.”). Bank of America denies that its treatment of its female FAs is unlawful or discriminatory, and contests the propriety of class certification here. Bank of America would challenge Plaintiffs’ claims at every stage of the litigation, including at summary judgment and trial. Notwithstanding these arguments, the overall settlement commits Bank of America to pay $38.225 million to compensate the class — a substantial amount ensuring that the recoveries by potentially thousands of individual Class Members will be meaningful. In light of the strengths and weaknesses of the case, the settlement achieves significant benefits for the class in a case where failure at trial is certainly possible.
4. Maintaining the Class Through Trial Would Not Be Simple The risk of obtaining class certification pursuant to Fed. R. Civ. P. 23(b)(3) and maintaining it through trial militates in favor of settlement. The Court has not yet certified a class
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and such a determination would likely be reached only after extensive briefing by both parties. Defendant may argue that individual questions preclude class certification, including whether the relevant policies and procedures were consistently applied company-wide. Should the Court certify a class, Defendant may later challenge certification and move to decertify, requiring another round of briefing. Defendant may also seek permission to file an interlocutory appeal under Fed. R. Civ. P. 23(f). Risk, expense, and delay permeate such a process. Settlement eliminates this risk, expense, and delay.
5. Defendant’s Ability to Withstand a Greater Judgment Is Not Clear Accordingly, this factor also favors preliminary approval.
6. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation
The $38.225 million dollar settlement represents a good value given the risks of litigation. In addition, this Settlement implements comprehensive, valuable programmatic relief to the entire class and addresses the compensation claims at issue in this action. For example, the Independent Consultant (selected by Plaintiffs) and the jointly-selected Monitor will have informed monitoring responsibilities and/or authority to propose practice changes relating to the key policies Plaintiffs challenge that negatively impact female FAs: pooling and teaming, the generation of business opportunities (including account distributions), the cumulative effect of past practices, and the response to women who complaint about these issues.
Weighing the benefits of the settlement against the risks associated with proceeding in the litigation, the settlement is more than reasonable. “[T]here is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” Grinnell, 495 F.2d at 455 n.2. “It is well settled that a cash settlement amounting to only a fraction of the potential recovery will not per se render the
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settlement inadequate or unfair.” Officers for Justice v. Civil Serv. Comm’n of City and Cty. of San Francisco, 688 F.2d 615, 628 (E.D. Tex. 1982); see also Cagan v. Anchor Sav. Bank FSB, No. 88 Civ. 3024, 1990 U.S. Dist. LEXIS 11450, at *34-35 (E.D.N.Y. May 22, 1990) (approving $2.3 million class settlement over objections that the “best possible recovery would be approximately $121 million”). Plaintiffs assert that this settlement far exceeds the minimum standard for approval. II. Conditional Certification of the Settlement Class and Subclasses Is Appropriate8
To grant preliminary approval of this class action settlement, this Court should also make a determination that the proposed settlement class and subclasses satisfy Rule 23(a)’s requirements of numerosity, commonality, typicality and adequacy of representation, and Rule 23(b)(3). See Newberg § 11.27 (citing In re General Motors Corp. Pick-up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768 (3rd Cir 1995)). As discussed below, all the requirements of certification for settlement purposes are met for these proposed settlement class and subclasses.
A. Numerosity Numerosity is satisfied when the class is “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[N]umerosity is presumed at a level of 40 members . . . .” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); see Duling v. Gristede’s Operating Corp., 267 F.R.D. 86 (S.D.N.Y. 2010) (numerosity satisfied by a class of 668). Here, there are approximately 4,800 Class Members. Geman Decl., ¶15. B. Commonality The proposed class also satisfies the commonality requirement, the purpose of which is to test “whether the named plaintiff’s claim and the class claims are so interrelated that the interests
8 Some of the state-law subclass anti-discrimination claims extend back longer than the nationwide Title VII class, but the discussion below of the satisfaction of the Rule 23 elements applies equally to both the class and the subclasses.
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of the Class Members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Although the claims need not be identical, they must share common questions of fact or law, such that “a classwide proceeding [can] generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original).
This case involves numerous common issues of fact, including (1) uniform personnel and management structures across branch offices; (2) Bank of America’s extensive corporate oversight of branch operations; (3) company-wide policies governing pay decisions; (4) company-wide policies governing teams, partnerships, and account distributions; and (5) consistent gender-related compensation disparities. Here, all Class Members were subjected to the same company-wide compensation, partnership, teaming and account distribution processes, crafted and imposed company wide. Common evidence — including allegations of senior management’s knowledge of barriers to equal compensation for women, anecdotal evidence from plaintiffs and Class Members, and statistical expert analysis — all establish common questions of fact, “the truth or falsity [of which] will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at 2551. Common legal theories and relief also establish commonality.9 In the absence of class certification and settlement, each individual settlement Class Member would be forced to litigate core common issues of law and fact.
C. Typicality Typicality is also satisfied. The “commonality and typicality requirements of Rule 23(a) tend to merge.” General Tel. Co. of S.W., 457 U.S. at 157, n.13 (1982) (cited with approval in
9 Common legal issues include whether Defendants violated the Equal Pay Act, intentionally discriminated against female FAs in compensation, business opportunities, and terms and conditions of employment in violation of Title VII or state law, or whether their policies caused an adverse impact against female FAs.
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Dukes, 131 S. Ct. at 2551 n.5). “Like the commonality requirement, typicality does not require the representative party’s claims to be identical to those of all Class Members.” Frank, 228 F.R.D. at 182. “Minor variations in the fact patterns underlying individual claims” do not defeat typicality when the defendant directs “the same unlawful conduct” at the named plaintiffs and the class. Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993).
Here, the Named Plaintiffs are members of the classes they seek to represent. They each worked for Bank of America as FAs. The claims of all Class Members flow from the same factual, legal and remedial theories. See Duling, 267 F.R.D. at 97-98. They were each subjected to Bank of America’s compensation and account distribution policies. They allege that they, and the Class Members, suffered adverse treatment with respect to compensation and business opportunities. Accordingly, the typicality requirement is satisfied.
D. Adequacy of the Named Plaintiffs Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The adequacy requirement exists to ensure that the named representatives will have an interest in vigorously pursuing the claims of the class, and . . . have no interests antagonistic to the interests of other Class Members.” Toure v. Cent. Parking Sys. of N.Y., No. 05 Civ. 5237, 2007 U.S. Dist. LEXIS 74056, at *18-19 (S.D.N.Y. Sept. 28, 2007) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)) (internal quotation marks omitted). Here, the interests of the Class Members and the interests of the Named Plaintiffs are the same – the elimination of sex discrimination against female FAs at Bank of America. The Named Plaintiffs have all affirmed their willingness to undertake the responsibilities of serving as class representatives. E. Certification Is Proper Under Rule 23(b)(3) Rule 23 requires that, in addition to the Rule 23(a) prerequisites, a proposed class must
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also meet the definition of one of the Rule 23(b) categories. Here, Plaintiffs move for certification under Rule 23(b)(3).
1. Certification of the Class is Proper Under Rule 23(b)(3) Rule 23(b)(3) requires that the common questions of law or fact “predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) . This inquiry examines “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. v. Windsor, 521 U.S. 591, 623 (1997). Satisfaction of Rule 23(a) “goes a long way toward satisfying the Rule 23(b)(3) requirement of commonality.” Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986).
a. Common Questions Predominate Predominance requires that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (internal quotation marks omitted), abrogated on other grounds by Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24 (2d Cir. 2006). The essential inquiry is whether “liability can be determined on a class-wide basis, even when there are some individualized damage issues.” In re Visa Check, 280 F.3d at 139. Where plaintiffs are “unified by a common legal theory” and by common facts, the predominance requirement is satisfied. McBean v. City of N.Y., 228 F.R.D. 487, 502 (S.D.N.Y. 2005). Here, all members of the class are unified by common factual allegations – that all Class Members were subjected to the same discriminatory policies based on their gender. They are also unified by a common legal theory – that these policies violated Title VII and various state antidiscrimination laws. These common issues predominate over any issues affecting only individual
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Class Members. See Easterling v. Conn. Dep’t of Corr., 278 F.R.D. 41, 45 (D. Conn. 2011) (holding that individual questions regarding Class Member status, qualifications, and mitigation were less substantial than the issues that were subject to generalized proof, including whether the challenged physical fitness test had a disparate impact on female applicants; whether that impact was justified by business necessity; the total amount of back pay, the rate at which those women would have been paid; the total number of priority hiring slots that should be awarded, if any; and the total amount of front pay); United States v. City of N.Y., 276 F.R.D. 22, 48-49 (E.D.N.Y. 2011) (finding that common issues, including the aggregate amount of relief available and the criteria used to establish who is eligible to receive retroactive seniority and priority hiring relief, predominated in a disparate impact case challenging a written entrance examination, despite individual questions regarding claimants’ mitigation efforts).10
b. A Class Action Is a Superior Mechanism Rule 23(b)(3)’s second provision analyzes whether “the class action device [is] superior to other methods available for a fair and efficient adjudication of the controversy.” Green v. Wolf Corp., 406 F.2d 291, 301 (2d Cir. 1968). Rule 23(b)(3) sets forth a non-exclusive list of relevant factors, including whether individual Class Members wish to bring, or have already brought, individual actions; and the desirability of concentrating the litigation of the claims in the particular forum. Fed. R. Civ. P. 23(b)(3).11
10 In a number of other cases alleging gender discrimination against FAs at other banks, and involving similar compensation systems, Courts have certified settlement classes under Rule 23(b)(3). See Geman Decl., Ex. 6 (AugstJohnson v. Morgan Stanley & Co., Inc., No. 06-1142 RWR (D.D.C. Oct. 26, 2007); Id., Ex. 7 (Carter v. Wells Fargo Advisors, LLC, No. 09-01752 (E.D.N.Y. June 8, 2011)); Id., Ex. 8 (Curtis-Bauer v. Morgan Stanley & Co., Inc., No. C 06-3903, 2008 WL 4667090 (N.D. Cal. Oct. 22, 2008)). 11 The manageability of a class action at trial is not a factor in determining whether to certify a settlement class. See Amchem, 521 U.S. at 620 (“[c]onfronted with a request for settlement-only class certification, a [trial] court need not inquire whether the case, if tried, would present intractable management problems, . . . for the proposal is that there be no trial”) (internal citation omitted).
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Class adjudication of this case is superior to individual adjudication because it will conserve judicial resources and is more efficient for Class Members, particularly those who lack the resources to bring their claims individually. See Capsolas v. Pasta Res., Inc., No. 10-5595, 2012 WL 1656920, at *2 (S.D.N.Y. May 9, 2012). Here, Plaintiffs and Class Members have limited financial resources with which to prosecute individual actions. Concentrating the litigation in this Court is desirable because much of the allegedly wrongful conduct occurred within its jurisdiction. Employing the class device here will achieve economies of scale for putative Class Members, conserve judicial resources, and preserve public confidence in the system by avoiding repetitive proceedings and preventing inconsistent adjudications.
F. The Nationwide EPA Class Satisfies 29 U.S.C. § 216(b) The Federal Equal Pay Act (“EPA”) class is appropriate for certification under Section 16(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Under the FLSA, an action may be maintained by an employee or employees on behalf of others who are “similarly situated.” 29 U.S.C. § 216(b). Because Plaintiffs satisfy commonality under Rule 23, they also are “similarly situated” to members of the class under the less onerous requirements applicable to EPA collective action claims. See Mazur v. Olek Lejbzon & Co., No. 05 Civ. 2194, 2005 U.S. Dist. LEXIS 30321, at *6 n.1 (S.D.N.Y. Nov. 30, 2005) (internal quotation marks omitted) (standard for approval of a collective action “far more lenient, and indeed, materially different, than the standard for granting class certification” under Fed. R. Civ. P. 23). In the initial, “conditional” certification phase, the “similarly situated” standard is more permissive than Rule 23 and requires only that the named plaintiff make a “modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law.” Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005).
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III. Plaintiffs’ Counsel Should Be Appointed as Class Counsel Rule 23(g) sets forth four criteria courts must consider in evaluating the adequacy of
proposed counsel: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions and claims of the type asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A).
Plaintiffs request that the Court appoint Lieff, Cabraser, Heimann & Bernstein, LLP (“LCHB”) and Outten & Golden LLP (“O&G”) as Class Counsel. They did substantial work identifying, investigating, prosecuting, and settling the claims; are well-versed and experienced in Title VII and class action law; and are well-qualified to represent the interests of the Class. Geman Decl., ¶¶ 10-14; Klein Decl., ¶¶ 1-4. Courts have repeatedly found both firms to be adequate class counsel in Title VII and other class cases. See, e.g., Easterling v. Conn., Dept. of Corr., 265 F.R.D. 45, 51 n.2 (D. Conn. 2010) (finding O&G to “be qualified, experienced, and generally able to conduct the proposed litigation” in a Title VII disparate impact class action), modified sub nom., Easterling v. Conn. Dept. of Corr., 278 F.R.D. 241 (D. Conn. 2011); Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 545 (2012) (finding that LCHB had “experience in handling complex litigation and have done extensive work prosecuting the claims in this action”); see also Geman Decl., ¶13; Klein Decl., ¶4. IV. The Proposed Notice and Claim Form Is Appropriate
The content of the proposed Notice of Class Action Settlement, which is attached to the proposed preliminary approval order as Exhibit 2, fully complies with due process and Fed. R. Civ. P. 23(c)(2)(B). The notice must provide the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.
The Notice proposed here satisfies the requirements of Rule 23(c)(2)(B). The Notice
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describes the terms of the settlement, informs the class about the attorneys’ fees terms of the agreement, and provides specific information regarding the date, time, and place of the final approval hearing. Accordingly, the detailed information in the proposed Notice is more than adequate to put Class Members on notice of the proposed settlement and is well within the requirements of Rule 23(c)(2)(B) .
The settlement agreement provides that notice will be mailed individually by the settlement administrator to the last known address of each Class Member within twelve (12) days of preliminary approval. Settlement Agreement, § III.C.2. To ensure a complete and accurate mailing, Bank of America will provide the settlement administrator with names and contact information of potential settlement Class Members within five (5) days of preliminary approval, and that list will be updated with any information available through the National Change of Address system. Id., § III.C.1. The settlement administrator will trace all returned undeliverable notices and re-send to the most recent addresses available. See id.
The Notice to the class will contain information about how to exclude oneself, object to the settlement, and/or file a claim. Class members will have forty-five (45) days from the date of mailing to submit opt-out requests or to comment on or object to the settlement. Settlement Agreement, § IV.C.7-8. This is sufficient time to give settlement Class Member a fair opportunity to respond. Cf. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (approving notice sent 31 days before the deadline for objections). Class members will have 120 days from the mailing of Notice to submit a claim form. Once claims are received, the settlement administrator will send payments as soon as practicable.
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that the Court issue the proposed Preliminary Approval Order.
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Case 2:10-cv-01413-PKC-AKT Document 154 Filed 09/06/13 Page 33 of 33 PageID #: 2493

Dated: September 6, 2013 New York, New York

Respectfully submitted,
By: /s/ Cara E. Greene
OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene Jennifer L. Liu 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 29th Floor San Francisco, California 94111 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Rachel Geman 250 Hudson Street, 8th Floor New York, New York 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
Attorneys for Plaintiffs and the Punitive Class and Collective

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 2013 WL 5532631 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Judy CALIBUSO, et al., Plaintiffs, v.
BANK OF AMERICA CORPORATION, et al., Defendants.
No. 10–CV–1413 (PKC). |
Oct. 4, 2013.
Attorneys and Law Firms
Adam T. Klein, Cara E. Greene, Justin Mitchell Swartz, Jennifer Lin Liu, Reena Arora, Outten & Golden LLP, New York, NY, Kelly M. Dermody, Alison M. Stocking, Heather H. Wong, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA, Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY, Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, Shona B. Glink, Stowell & Friedman, Ltd., New York, NY, for Plaintiffs.
Joseph Baumgarten, Katherine H. Parker, Keisha–Ann G. Gray, Kristine Kathryn Huggins, Proskauer Rose, LLP, New York, NY, Steven Pearlman, Proskauer Rose LLP, Chicago, IL, for Defendants.
MEMORANDUM & ORDER
PAMELA K. CHEN, District Judge.
*1 For purposes of its decision, this Court assumes familiarity with the substance of this putative class and collective action involving the alleged discrimination against female financial advisors, or “brokers,” at Banc of America Investment Services, Inc. and Merrill Lynch, Pierce, Fenner & Smith, Inc. Calibuso v. Bank of Am. Corp., 893 F.Supp.2d 374 (E.D.N.Y.2012) (Bianco, J.). On September 6, 2013, the parties,1 by and through their counsel at the time, submitted a proposed settlement (the “Settlement”) in this action for this Court’s preliminary approval. (Dkt. No. 153.)
A hearing on preliminary approval of the Settlement (the

“preliminary approval hearing”) was originally scheduled for September 19, 2013, but was converted into a status conference after Named Plaintiff Judy Calibuso (“Ms.Calibuso”) unexpectedly retained new counsel (“Calibuso Counsel”). (Scheduling Orders, dated Sept. 9, 2013 & Sept. 18, 2013.) The preliminary approval hearing was rescheduled for October 9, 2013. (Order, dated Sept. 19, 2013.)
At the eleventh hour, less than ten days before the preliminary approval hearing, Calibuso Counsel filed a motion for Cathy Bender (“Ms.Bender”), a class member, and Maroc Howard (“Mr.Howard”), a non-class member, (collectively, the “Intervenors”) to intervene in this action, as of right or by permission (the “Motion”).2 Their proposed intervention is significant in one respect: Ms. Bender and Mr. Howard are also named plaintiffs and class representatives in McReynolds v. Merrill Lynch & Co., Inc., No. 05–CV–6583 (N.D.Ill.), a similar class action alleging discrimination against African–American financial advisors. (Dkt Nos. 167 (“Intervenors’ Motion”), at 1–2; 167–1 (“Intervenors’ Complaint”) ¶¶ 6– 7.)
McReynolds has reached a close-to-parallel stage in the settlement process: a month ago, the district court preliminarily approved a proposed settlement. Preliminary Approval Order, McReynolds, No. 05–CV–6583 (N.D.Ill. Sept. 4, 2013), ECF No. 589. As a result, the Intervenors now argue, on behalf of African–American financial advisors, that the “achievements” in the proposed McReynolds settlement “will be harmed by the proposed Calibuso Settlement.” (Intervenors’ Motion, at 2; see Intervenors’ Complaint ¶ 27.) Despite the Intervenors’ description of the relief they seek as “simple and direct” (Intervenors’ Complaint ¶ 39), if granted, it would hijack the Settlement.
This Court, in addition to finding that the Motion was filed in violation of its Individual Rules (see Rules 3(C)(D)), also denies the Motion, for the reasons set forth below.
I. Discussion Federal Rule of Civil Procedure (“FRCP”) 24(a) provides for intervention of right:
[T]he court must permit anyone to intervene who[ ] ... claims an interest relating to the property or transaction that is the subject of the action and is so situated that
1

disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
*2 Fed.R.Civ.P. 24(a)(2) (emphasis added); see also D’Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir.2001) (citing timeliness as an additional requirement). “Denial of the motion to intervene [as of right] is proper if any of these requirements is not met.” D’Amato, 236 F.3d at 84. Insofar as a request to intervene as of right is denied, a related request for permissive intervention, pursuant to FRCP 24(b), may also be denied. See In re Bank of N.Y. Derivative Litig., 320 F.3d 291, 300 n. 5 (2d Cir.2003) ( “Substantially the same factors are considered in determining whether to grant an application for permissive intervention pursuant to [FRCP 24(b)(2) ].... Accordingly, insofar as we affirm the District Court’s denial of [the proposed intervenor’s] motion to intervene as a matter of right, we need not also examine its denial of permissive intervention.” (emphasis added)).
The request for Ms. Bender to intervene as of right—or, alternatively, by permission—is denied. As a class member in this action, Ms. Bender’s “ability to protect [her] interest” in opposing the Settlement is not “impair[ed] or impede[d],” absent such an intervention. Ms. Bender will have an opportunity, vis-à-vis the settlement process, to object to the Settlement, if she stays in this action, or simply opt out and reject the Settlement altogether. See, e.g., In re Holocaust Victim Assets Litig., 225 F.3d 191, 202 (2d Cir.2000) (“Appellants insist that they ought to be permitted to intervene at least to state their objections to the Settlement. However, the District Court has discretion to deny this request, particularly where ... the proposed intervenors have already had an opportunity to state their objections before the Court.”); U.S. v. Pitney Bowes, Inc. (“Pitney Bowes”), 25 F.3d 66, 73 (2d Cir.1994) (affirming denial of request to intervene as of right, and by permission, where the proposed intervenor sought to “challeng[e] the fairness of the remedial actions to be undertaken pursuant to the consent decree,” because it already had an “opportunity to express its concerns ... during the public comment period”); Shore v. Parklane Hosiery Co., Inc., 606 F.2d 354, 357–58 (2d Cir.1979) (affirming finding that “appellants might elect to be excluded from the challenged settlement” and therefore did not require intervention of right, as “their interests were not impaired”); In re Bank of Am. Corp. Secs., Derivative, & ERISA Litig., No. 09 MD 2058, 2012 WL 1674299, at *3 (S.D.N.Y. May 14, 2012) (“[T]he Proposed Intervenors have not adequately explained why intervention is required to protect their interests, as distinguished from exercising their rights as objectors

under Rule 23.1.”); In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465, 491 (S.D.N.Y.1998) (“Class members need not formally intervene in order to raise their objections to a proposed settlement.”). The fact that this could present Ms. Bender with a Hobbesian choice does not compel this Court to end-run the settlement process, by permitting her to intervene and, unlike other class members, object without staying in this action.
*3 The same request for Mr. Howard to intervene is also denied. Mr. Howard, as a non-class member and male financial advisor, lacks a “ ‘direct, substantial, and legally protectable’ interest in the subject matter of this action,” i.e., a proposed settlement for female financial advisors who have alleged gender discrimination. Compagnie Noga D’Importation Et D’Exportation S.A. v. Russian Fed’n, No. 00 Civ. 0632, 2005 WL 1690537, at *4 (S.D.N.Y. July 20, 2005) (quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir.1990)). “The subject matter of this action is an agreement that seeks to settle claims belonging to” female financial advisors for alleged discrimination that they have experienced. Bank of N.Y. Mellon v. Walnut Place LLC, No. 11 Civ. 5988, 2011 WL 5843488, at *2 (S.D.N.Y. Nov. 18, 2011). At best, Mr. Howard’s “interest” in this action is an indirect one: “maximizing any recovery from” Defendants in remedying purportedly discriminatory policies and practices, which is what Mr. Howard is also pursuing in McReynolds on behalf of African–American financial advisors. Compagnie Noga D’Importation Et D’Exportation S.A., 2005 WL 1690537, at *4. As a practical matter, it would be cumbersome to permit class members—in separate actions against the same financial institutions—to come in and out of other actions as intervenors with indirect interests, solely because the actions involve the same category of violations. Where parallel settlements are reached, the actions would probably become more unwieldy. Mr. Howard should pursue, in McReynolds, the best recovery possible for the alleged discrimination that he and others experienced as African–American financial advisors, but should not be permitted to piggyback on, or undermine, the recovery for female financial advisors in this action.
In any event—even if Ms. Bender were unable to protect her interest as a class member in this action, rather than an intervenor, and Mr. Howard had a direct interest in intervening for purposes of the Settlement—the requests for their intervention should still be denied as untimely. Timeliness takes into account not only the proposed intervenor’s promptness in its request, but also “prejudice to existing parties resulting from any delay.” Pitney Bowes, 25 F.3d at 70. These requests, raised at the eleventh hour, threaten to thwart the parties’—except possibly Ms. Calibuso’s—interest in progressing with the
2

Settlement, which the parties have spent months, if not years, negotiating. See, e.g., In re Holocaust Victim Assets Litig., 225 F.3d at 202 (“[Permissive] intervention would prejudice the adjudication of the rights of the existing parties by destroying their Settlement[.]”); Pitney Bowes, 25 F.3d at 72 (holding that “intervention [of right and by permission] would result in prejudice to existing parties because the court would have been unavoidably obliged to delay entry of the consent decree,” and “[the parties] would have had to begin negotiations again from scratch,” in spite of earlier negotiations that lasted for eight months). The Motion, and any others like it, will not be allowed to derail the settlement process: the train has already left the station, and the next stop is the preliminary approval hearing.

II. Conclusion *4 The Motion is denied with prejudice, and Ms. Bender and Mr. Howard will not be permitted to intervene in this action. SO ORDERED.
All Citations Not Reported in F.Supp.2d, 2013 WL 5532631

Footnotes

1

In accordance with this Court’s Order, dated September 19, 2013, the Clerk of the Court is directed to amend the caption to

reflect the addition of Kathleen Mary Wing as a Named Plaintiff.

2

In its discretion, this Court has already accommodated a request from Calibuso Counsel to consider Ms. Calibuso’s objections to

the Settlement, prior to the preliminary approval hearing, in recognition of her special status as a Named Plaintiff. (Order, dated

Sept. 19, 2013.) This Court’s consideration of pre-preliminary approval hearing objections is already an exception, albeit a helpful

one, to the settlement process. See Manual for Complex Litigation § 21.632 (4th ed.) (stating that, at the preliminary approval

hearing, “it is often prudent to hear not only from counsel but also from the named plaintiffs”).

3

 
 Case 2:10-cv-01413-PKC-AKT Document 205 Filed 04/30/14 Page 1 of 32 PageID #: 3885

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------x

JUDY CALIBUSO, et al.,

Plaintiffs, -against-

MEMORANDUM ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT
10-CV-1413 (PKC)

BANK OF AMERICA CORPORATION, et al.,

Defendants.

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

PAMELA K. CHEN, United States District Judge:

On December 27, 2013, the Court finally approved the class (and collective) action

settlement (the “Settlement”) in this case. (Dkt. No. 202 (“Final Approval Order”).) The Settlement resolves the full range of Plaintiffs’ gender discrimination claims under federal law1

1

See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”);

Equal Pay Act, 29 U.S.C. §§ 206 et seq. (“EPA”). Technically, the EPA claim is brought as a

collective action, “by any one or more employees for and in behalf of himself or themselves and

other employees similarly situated,” based on Section 16(b) of the Fair Labor Standards Act

(“FLSA”). 29 U.S.C. § 216(b). The difference between certifying a FLSA collective action and

a traditional class action under Federal Rule of Civil Procedure (“FRCP”) 23 is that the former is

“not subject to [FRCP] 23’s strict requirements.” Hoffmann v. Sbarro, Inc., 982 F. Supp. 249,

263 (S.D.N.Y. 1997) (Sotomayor, J.) (emphasis in original). The former need only satisfy a

“similarly situated” requirement, which falls short of the “much higher threshold of

demonstrating that common questions of law and fact will ‘predominate’ for [FRCP] 23

purposes.” Myers v. Hertz Corp., 624 F.3d 537, 555-56 (2d Cir. 2010). Therefore, insofar as the

Court certifies a traditional class action for the Title VII claim, it correspondingly certifies a

collective action for the EPA claim. Accord id. at 556 (holding that, where “the higher

predominance standard [for FRCP 23 purposes] has not been met,” however, the plaintiffs may

not necessarily have failed to “satisfy the lower standard” for a FLSA collective action)

(emphasis added).

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and the state laws of New York, Florida, Missouri, and New Jersey,2 alleging that female financial advisors (“brokers”) at Banc of America Investment Services, Inc. and Merrill Lynch, Pierce, Fenner & Smith, Inc. (“MLPF&S”)3 were subject to policies that affected them less favorably than their male counterparts, mainly, with respect to account distribution, the sharing of accounts among brokers through teams (also known as “teaming”), and, as a result, overall compensation (the “Class and Subclass Claims”). (Dkt. No. 201 (“Settlement Agreement”), at 23); see Calibuso I, 893 F. Supp. 2d at 376, 379-81 (detailing the allegations in the operative third amended complaint, dated October 5, 2011). The Settlement also resolves the individual claims of Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore, alleging sexual harassment and retaliation (the “Individual Claims”). (Settlement Agreement, at 2 n.5, 24-26.)
The active participation of Class Counsel,4 Lieff, Cabraser, Heimann & Bernstein, LLP and Outten & Golden LLP; Defense Counsel, Proskauer Rose LLP; and Objector Counsel, Stowell & Friedman, Ltd., throughout the settlement approval process, assured that this process would fulfill its purpose of achieving a fair, reasonable, and adequate result for all Settlement

2

See New York Equal Pay Act, N.Y. Lab. Law §§ 194 et seq.; New York State Human

Rights Law, N.Y. Exec. Law §§ 296 et seq.; Florida Civil Rights Act of 1992, Fla. Stat. Ann.

§§ 760.01 et seq.; Missouri Human Rights Act, Mo. Ann. Stat. §§ 213.010 et seq.; New Jersey

Law Against Discrimination, N.J. Stat. Ann. §§ 10:5–1 et seq.

3

Prior to the merger between Bank of America Corporation and Merrill Lynch & Co., Inc.

in January 2009, Banc of America Investment Services, Inc. and MLPF&S, respectively, were

separate brokerage subsidiaries of the two banks. Calibuso v. Bank of Am. Corp. (“Calibuso I”),

893 F. Supp. 2d 374, 379 (E.D.N.Y. 2012) (Bianco, J.). Settlement Class Members—who

worked for these subsidiaries before, and possibly stayed after, the merger—are identified as

“Legacy Bank of America” and “Legacy Merrill Lynch.” After the merger, Bank of America

Corporation maintained MLPF&S, as a brokerage subsidiary, into which Legacy Bank of

America brokers were consolidated. Id.

4

The Court’s preliminary approval order, dated October 15, 2013, designated these firms

as Class Counsel. (Dkt. No. 178 (“Prelim. Approval Order”), at 5.)

2

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Class Members. Objector Counsel objected to the Settlement, on behalf of Named Plaintiff Judy Calibuso and other Settlement Class Members. (Dkt. Nos. 165 (“Calibuso Objections”); 189 (“Settlement Class Members’ Objections”).) Class Counsel and Defense Counsel responded, in detail, to these objections in their papers. (Dkt. Nos. 182 (“Pls.’ Br.”); 190 (“Defs.’ Monetary Relief Br.”); 194 (“Defs.’ Programmatic Relief Br.”); 196 (“Pls.’ Reply”).) And, all of the parties discussed these objections during lengthy preliminary and final approval hearings before the Court. (Transcript of Hearing, dated Oct. 9, 2013 (“Prelim. Approval Hr’g Tr.”); Transcript of Hearing, dated Dec. 20, 2013 (“Final Approval Hr’g Tr.”).) The Court considered these objections and any responses and discussions thereto, and “overrule[d] all such objections on the bases that: (i) for settlement purposes, FRCP 23(a)(2)-(4) are satisfied; (ii) the programmatic relief is fair, reasonable, and adequate; and (iii) the monetary relief and the plan of allocation are fair, reasonable, and adequate.” (Final Approval Order, at 4.)
In this Memorandum, the Court explains the reasons for its certification of the Settlement Class and Subclasses and final approval of the Settlement as fair, reasonable, and adequate, notwithstanding the objections advanced by Objector Counsel.
I. Relevant Background The Court presumes the parties’ familiarity with the procedural background in this case before they commenced their negotiations over the Settlement. See Calibuso I, 893 F. Supp. 2d at 381-82. Further details concerning this background, including the broad, class-certification discovery conducted by the parties, are contained in the parties’ other papers. (See, e.g., Dkt. No. 185 ¶¶ 11-17.) In December 2012, the parties retained experienced mediator, David Rotman, to oversee their negotiations. (Dkt. No. 162–2 (“Rotman Decl.”) ¶¶ 2-3.) Thereafter, the parties exchanged, and Rotman reviewed, mediation statements and supporting documents discussing
3

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their respective positions. (Id. ¶ 3.) Between February 11, 2013 and June 27, 2013, the parties’ negotiations took place, consisting of four full-day mediation sessions and follow-up conversations with Rotman. (Id. ¶¶ 1, 4-6.) At least one Named Plaintiff, including Calibuso, attended each session. (Id. ¶ 4; see Prelim. Approval Hr’g Tr., at 124:19 (“Ms. Calibuso was present at the mediation.”).) With Rotman’s assistance, the parties were able to negotiate a preliminary agreement regarding the Settlement, which provided for monetary relief of approximately $39 million and various forms of non-monetary, programmatic relief. (See Rotman Decl. ¶ 5.)
On September 6, 2013, Class Counsel submitted their motion for the Court’s preliminary approval of the Settlement. (Dkt. No. 153.) Accompanying the preliminary approval motion was a draft Settlement Agreement detailing the original terms of the Settlement, which, among other things, provided that (i) the Settlement Class and Subclasses would be certified pursuant to FRCP 23(b)(3); (ii) Defendants would “track usage and adherence to [the Account Distribution Policy (‘ADP’)], as it may be updated and modified from time to time”; and (iii) Kathleen Lundquist, as the Independent Consultant, would conduct a study on teaming. (See Dkt. No. 155–1, at 14, 30, 36.)
In response to the above motion, the Court scheduled the preliminary approval hearing for September 19, 2013. (Scheduling Order, dated Sept. 9, 2013.) Two days before the hearing, however, Calibuso retained Objector Counsel as new counsel to raise objections, on her behalf, “to be heard prior to preliminary approval of [the] proposed settlement.” (Dkt. No. 161, at 1.) The Court converted the hearing into a status conference, at which time, “in recognition of [Calibuso’s] special status as a Named Plaintiff,” it agreed to entertain Calibuso’s prepreliminary approval objections, as an “exception” to the normal course, at the hearing
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rescheduled for October 9, 2013.5 Calibuso v. Bank of Am. Corp. (“Calibuso II”), No. 10-CV1413, 2013 WL 5532631, at *1 n.2 (E.D.N.Y. Oct. 4, 2013) (Chen, J.); (Order, dated Sept. 19, 2013). Objector Counsel filed these objections about a week later. (Calibuso Objections.)
On September 30, 2013, Objector Counsel proposed that two named plaintiffs from a separate, but related, class action by male and female African-American brokers against MLPF&S6—one of whom was already a Settlement Class Member in this case and one of whom, a male broker, was not—be allowed to intervene, so that they too could object to the Settlement. (Dkt. No. 167, at 2.) The Court, however, denied Objector Counsel’s proposal: (i) for the intervenor who was already a Settlement Class Member, because she could object “vis-àvis the settlement process,” or opt out of the Settlement altogether;7 and (ii) for the proposed male intervenor who was not, because “it would be cumbersome to permit class members—in separate actions against the same financial institutions—to come in and out of other actions as intervenors with indirect interests, solely because the actions involve the same category of violations.” Calibuso II, 2013 WL 5532631, at *2-3.

5

At the final approval hearing, Objector Counsel acknowledged, “I thought [the Court]

gave us an extraordinary amount of time and opportunity both before preliminary approval and at

preliminary approval to be heard.” (Final Approval Hr’g Tr., at 25:15-17.)

6

See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 05-CV-6583 (N.D.

Ill.).

7

Under the original terms of the Settlement, the proposed intervention by the individual

who was already a Settlement Class Member was a necessary vehicle for being able to object,

because, upon opting out, she would not have had any right to do so. (See Prelim. Approval Hr’g

Tr., at 10:17-19 (statement from Objector Counsel that the only “mechanism[]” for objecting,

other than “as a class member,” was “to intervene”).) As discussed herein, however, the final

terms of the Settlement made the proposed intervention unnecessary, based on the fact that a

Settlement Class Member could not opt out of the programmatic relief and, thus, would be able

to challenge such relief, even if she were to opt out of the monetary relief.

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Therefore, at the October 9, 2013 hearing, the Court only addressed Calibuso’s pre-
preliminary approval objections:
I did review and consider those objections very carefully, and although I’m not prepared to adopt any of the objections or require any changes on the basis of those objections, they obviously informed some of the issues that I raised for today’s proceeding. . . .
[W]hile the objections may well be ones that have to be addressed again in the final approval hearing, all I have now [are] [sic] the objections of one particular class member, and to give it undue weight would turn this preliminary hearing into a final hearing.
. . .
[T]he question remains whether or not there will be other individuals who feel similarly at the final approval stage, and it may well be that these objections represent the objections of others in the class. But that remains to be seen.
(Prelim. Approval Hr’g Tr., at 3:12–4:17 (emphasis added).)
Significantly though, the parties resolved, on their own, the objection to certifying the
Settlement Class and Subclasses under FRCP 23(b)(3) only, as provided by the original terms of
the Settlement (Calibuso Objections, at 3). The agreed-upon resolution was to certify the
Settlement Class and Subclasses under both FRCP 23(b)(2) and 23(b)(3), i.e., a “hybrid
certification,” such that Settlement Class Members could not opt of, and could therefore object
to, the programmatic relief, whether or not they opted out of the monetary relief. (Prelim.
Approval Hr’g Tr., at 19:11–21:20; see id. at 5:6-8, 11:19-24, 17:11-20.)
On October 15, 2013, the Court issued its preliminary approval order, which also
authorized the parties to notify Settlement Class Members about, among other things, “how to challenge or opt-out of” the Settlement.8 (Prelim. Approval Order, at 7-9.) Among the 4,928

8

The Court’s preliminary approval order also preliminarily certified the Settlement Class

and Subclasses, pursuant to FRCP 23(b)(2) and 23(b)(3). (Prelim. Approval Order, at 2-5); see

Plummer v. Chem. Bank, 668 F.2d 654, 657 (2d Cir. 1982) (noting that “tentative designations of

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Settlement Class Members to whom such notices were sent, 99 individuals opted out of the monetary relief, but 42 of them, including Calibuso, continued to object to the programmatic relief;9 and only one individual, Linda Davila, objected to both the monetary and programmatic relief, because she did not opt out.10 (Dkt. No. 198–1 ¶¶ 9, 15; Settlement Class Members’ Objections, at 1-2.)
On December 20, 2013, the Court held the final approval hearing. (Final Approval Hr’g Tr., at 1, 4:18-20.) When the hearing began, Defense Counsel and Objector Counsel reported that they had reached a “confidential agreement,” whereby “Ms. Calibuso is opting back in[] [and] withdrawing her objections.” (Id. at 7:4, 9:17-18.) Later, during the hearing, Objector Counsel also represented that, in light of confidential discussions between the parties and with the Court, they had a “list of people who will opt back in,” based on an “anticipated change in the language [in the Settlement] regarding the Account Distribution Policy.” (Id. at 40:12-13, 47:11-12.) The list, submitted six days after the hearing, rescinded 55 of the original 99 opt-outs,

class for settlement purposes are not uncommon”); In re Beef Indus. Antitrust Litig., 607 F.2d 167, 177 (5th Cir. 1979) (“‘A blanket rule prohibiting the use of temporary settlement classes may render it virtually impossible for the parties to compromise class issues and reach a proposed class settlement before a class certification. Such a firm restriction does not appear necessary or desirable.’”) (quoting 3 Newberg, Class Actions § 5570c (1977)).

9

Although Objector Counsel named Courtney Moore as a 43rd opt-out who objected to the

programmatic relief (Settlement Class Members’ Objections, at 1), Moore’s name appeared

nowhere on the list of 99 opt-outs (see Dkt. No. 198–1, Ex. A), and, according to Defense

Counsel, Moore was not a Settlement Class Member (Dkt. No. 195 ¶ 8).

10 As with Calibuso, Davila and the other objecting Settlement Class Members were represented by Objector Counsel. (Settlement Class Members’ Objections, at 1-2; see Pls.’ Reply, at 1.)

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leaving only 45 individuals opting out of the monetary relief.11 (See Dkt. Nos. 199, Ex. A; 204,
at 1-2.)
On December 27, 2013, the Court issued its final approval order. The final terms of the
Settlement, which the Court approved, were contained in the actual Settlement Agreement and
outlined in the parties’ other papers (e.g., Pls.’ Br., at 2-9). Among other things, the Settlement
provided that:
• For the purpose of resolving the Individual Claims, the Individual Named Plaintiffs’ Settlement Fund shall contain $775,000 to be allocated to Moss, Goedtel, Evans, and DeSalvatore (Settlement Agreement, at 9-10 ¶ 18, 24-25, 43);
• For the purpose of resolving the Class and Subclass Claims, the Settlement Fund shall contain approximately $25,412,981.36—i.e., the $38,225,000 Settlement Sum, minus the court-approved attorneys’ fees and costs ($12,629,518.64) and service awards ($7,500 for Named Plaintiff Kathleen Wing and $35,000 for the remaining Named Plaintiffs)—to be allocated to Settlement Class Members who submit claim forms (see id. at 13 ¶¶ 30-31, 43, 45-46, 52, 54; Final Approval Order, at 9 ¶¶ 17-18);
• The plan of allocation, with respect to money awarded from the Settlement Fund, will account for Settlement Class Members’ (i) “length of tenure (e.g., weeks worked) during the [Settlement] Class Period” and (ii), if applicable, “actual or constructive termination” relating to allegations of discrimination (Settlement Agreement, at 47-48);
• Settlement Class Members include:
(i) nationwide Legacy Bank of America brokers employed between March 16, 2006 and September 15, 2013, and other nationwide MLPF&S (including Legacy Merrill Lynch) brokers employed between August 2, 2007 and September 15, 2013, who constitute the Settlement Class for the Title VII claim,12
11 The remaining 45 opt-outs included 44 of the original 99 opt-outs and a new opt-out, Shannon Nickels. (See Dkt. Nos. 198–1, Ex. A; 199, Ex. A.) 12 Any member of the Settlement Class for the Title VII claim is a member of the Settlement Subclass (or, more accurately, the collective action) for the EPA claim. (See Final Approval Order, at 2-3.)
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(ii) New York-based Legacy Bank of America brokers employed between November 10, 2004 and September 15, 2013, who constitute the Settlement Subclass for the New York claims,
(iii) Florida-based Legacy Bank of America brokers employed between January 10, 2006 and September 15, 2013, who constitute the Settlement Subclass for the Florida claim,
(iv) Missouri-based MLPF&S (including Legacy Merrill Lynch) brokers employed between January 1, 2007 and September 15, 2013, who constitute the Settlement Subclass for the Missouri claim, and
(v) New Jersey-based MLPF&S (including Legacy Merrill Lynch) brokers employed between January 1, 2007 and September 15, 2013, who constitute the Settlement Subclass for the New Jersey claim (id. at 2-3, 11-12 ¶¶ 28-29);
• The Settlement Class Period begins on March 16, 2006 for Legacy Bank of America brokers, and August 2, 2007 for other MLPF&S (including Legacy Merrill Lynch) brokers, but the period begins sooner for certain Legacy Bank of America and other MLPF&S (including Legacy Merrill Lynch) brokers located in New York, Florida, Missouri, and New Jersey, because of the Subclass Claims based on those states’ laws (id. at 2-3);13 and
• In addition to the above monetary relief, the programmatic relief includes:
(i) a study on teaming by Harold Goldstein, instead of Lundquist (as the Independent Consultant),
13 The state-law Subclass Claims apply to a small subset of states and brokers—Legacy Bank of America brokers for New York and Florida and MLPF&S (including Legacy Merrill Lynch) brokers for Missouri and New Jersey—since Named Plaintiffs could only bring such claims on behalf of the Settlement Subclasses that they could otherwise bring on their own behalf. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (Powell, J.) (“That a suit may be a class action, however, adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’”) (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975) (Powell, J.)). Goedtel was a New York-based Legacy Bank of America broker; Calibuso and Moss were both Florida-based Legacy Bank of America brokers; Evans was a Missouri-based Legacy Merrill Lynch broker; and DeSalvatore was a New Jersey-based Legacy Merrill Lynch broker. (See Dkt. No. 108 ¶¶ 92, 100, 118, 130, 139, 156, 201-20; Pls.’ Reply, at 7 n.7.) Wing, a Michigan-based Legacy Merrill Lynch broker, did not bring a state-law Subclass Claim, because she was added as a representative after the negotiation of the Settlement. (See Dkt. Nos. 162–1, at 1-3; 186–9 ¶ 2.)
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(ii) periodic review on overall compliance with the Settlement by Lundquist (as the Independent Settlement Monitor),
(iii) maintenance of a “gender neutral Account Distribution Policy (‘ADP’)” for redistributing accounts among brokers in accordance “with the law and the company’s EEO policies,” and related reviews of account redistributions pursuant to such a policy, and
(iv) various policies, procedures, and programs that pertain to the performance of female brokers at MLPF&S (see id. at 30-43).
II. Discussion A. Legal Standard 1. The Settlement Class and Subclasses
“Before approving a class settlement agreement, a district court must first determine whether the requirements for class certification in [FRCP] 23(a) and (b) have been satisfied. . . . Thus, the court must assess whether the proposed class satisfies [FRCP] 23(a)’s four threshold requirements: (1) numerosity (‘the class is so numerous that joinder of all members is impracticable’), (2) commonality (‘there are questions of law or fact common to the class’), (3) typicality (‘the claims or defenses of the representative parties are typical of the claims or defenses of the class’), and (4) adequacy of representation (‘the representative parties will fairly and adequately protect the interests of the class’). . . . The district court must also determine whether the action can be maintained under [FRCP] 23(b)(1), (2), or (3).”14 In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 238 (2d Cir. 2012) (citations omitted); see also In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011) (same). Indeed, in the context of a class action settlement, “the [FRCP] 23(a) requirements designed to
14 The standard for approving a class action settlement, see infra discussion at Section II.A.2, does not displace the standard for certifying a settlement class. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) (Ginsburg, J.) (“[FRCP 23(e)] was designed to function as an additional requirement, not a superseding direction, for the ‘class action’ to which [FRCP] 23(e) refers is one qualified for certification under [FRCP] 23(a) and (b).”).
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protect absent class members ‘demand undiluted, even heightened, attention.’” In re Literary Works, 654 F.3d at 249 (quoting Amchem, 521 U.S. at 620). Still, the district court’s “decision to certify a [settlement] class” is discretionary. Id.
The salience of the “adequacy” factor, Fed. R. Civ. P. 23(a)(4), is “particularly acute in settlement class situations.” In re Gen. Motors Corp. Pick-Up Truck Fuel Prods. Liab. Litig., 55 F.3d 768, 795 (3d Cir. 1995) (Becker, J.). The relevant inquiry for this factor, which focuses on avoiding “conflicts of interest between named parties and the class they seek to represent,” is whether such parties have (i) “an interest in vigorously pursuing the claims of the class” and, correspondingly, (ii) “no interests antagonistic to the interest of other class members.” Amchem, 521 U.S. at 625; Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006) (Jacobs, J.).
2. The Settlement FRCP 23(e) requires that a class action settlement be approved by the district court, based on its “finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e). Although the district court should apply a “higher degree of scrutiny” in approving a settlement reached before class certification, as in this case, once it has approved such a settlement, its approval is subject only to review for abuse of discretion. D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001); see also Weinberger v. Kendrick, 698 F.2d 61, 72-73 (2d Cir. 1982) (Friendly, J.) (holding that a “clearer showing of a settlement’s fairness, reasonableness and adequacy” is required for a settlement reached “prior to class certification,” though “we have long recognized that a district court’s disposition of a proposed class action settlement should be accorded considerable deference”). The district court “determines fairness, reasonableness, and adequacy of a proposed settlement by considering (1) the substantive terms of the settlement compared to the likely result of a trial, . . . and (2) the negotiating process, examined in light of the experience of counsel, the
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vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.” Malchman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983) (citations omitted); see also D’Amato, 236 F.3d at 85 (same). “The primary concern is with the substantive terms of the settlement[.]” Weinberger, 698 F.2d at 73. Nine factors nearly always inform the consideration of a settlement’s substantive terms, including “the ability of the defendants to withstand a greater judgment” and, of course, “the reaction of the class to the settlement.” City of Detroit v. Grinnell Corp. (“Grinnell”), 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000).
Where, as here, a settlement achieves a combination of non-monetary relief and monetary relief, the value of the non-monetary relief, along with the value of the monetary relief, may inform the district court’s view on what the defendants are actually giving up and thus whether they have “the ability . . . to withstand a greater judgment.” See Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 117, 119 (2d Cir. 2005) (concluding, as to “the ability of the defendants to withstand a greater judgment,” that “the injunctive relief . . . valued at approximately $25 to $87 billion or more . . . adds great value to the Settlement,” paired with the “compensatory relief” provided therein); Wright v. Stern, 553 F. Supp. 2d 337, 341, 347 (S.D.N.Y. 2008) (Chin, J.) (finding, with respect to a settlement that “contains both injunctive and monetary relief,” that “the City has the ability to withstand a greater judgment”). 15
15 By contrast, where only non-monetary relief is being sought, more than one district court has suggested that “the ability of the defendants to withstand a greater judgment” is not relevant to its determination. See, e.g., Ingles v. Toro, 438 F. Supp. 2d 203, 211 (S.D.N.Y. 2006) (Chin, J.) (“In cases where the plaintiffs seek declaratory and injunctive relief rather than money damages, there is no need to examine the last three Grinnell factors.”); see also Handschu v. Special Servs. Div., 605 F. Supp. 1384, 1394 (S.D.N.Y. 1985) (“Where . . . the suit sounds only in equity, the relief achieved by the proposed settlement is measured against the Court’s likely decree after trial. That exercise has two components: (1) plaintiffs’ prospects of proving their
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While the district court, in rendering its determination, is not allowed to “rewrite” a settlement to make it fair, reasonable, and adequate, the settlement approval process allows for changes to be made, with the district court’s input:
The parties might be willing to make changes before the notice of the settlement agreement is sent to the class members if the judge makes such suggestions at the preliminary approval stage. Even after notice of a proposed settlement is sent, a judge’s statement of concerns about the settlement during the fairness hearing might stimulate the parties to renegotiate in order to avoid possible rejection by the judge. Manual for Complex Litigation § 21.61 (4th ed.); see also Evans v. Jeff D., 475 U.S. 717, 726-27 (1986) (Stevens, J.) (same). B. Objections to the Settlement Class and Subclasses
1. FRCP 23(b) Objector Counsel claimed that the original FRCP 23(b)(3)-only certification of the Settlement Class and Subclasses would force Settlement Class Members to choose between (i) opting out of both the programmatic and monetary relief, or (ii) accepting the monetary relief “in order to [preserve the right to] object” to the programmatic relief. (See Calibuso Objections, at 3.) Purportedly, if Settlement Class Members had to make such a “Hobbesian choice,” the Court would only encounter a “bunch of happy campers . . . , none of whom will be offering any comments on the programmatic relief,” but “exclude from the dialogue [about the programmatic relief] all people who believe that the money is too low.” Calibuso II, 2013 WL 5532631, at *2; (Prelim. Approval Hr’g Tr., at 14:5-16). By contrast, the separate certification of the Settlement Class and Subclasses—based on FRCP 23(b)(2) for the programmatic relief and FRCP 23(b)(3)
claims, and (2) assuming plaintiffs’ success on the merits, the likelihood of the Court giving the requested declaratory and injunctive relief.”); but see Foe v. Cuomo, 700 F. Supp. 107, 110 (E.D.N.Y. 1988) (Bartels, J.) (citing “several criteria, those pertin[e]nt [sic] to cases involving injunctive relief,” such as “the ability of plaintiffs to obtain, and of defendants to withstand, a greater judgment”).
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for the monetary relief—would allow Settlement Class Members “to object to the programmatic relief because they could not opt out of the [FRCP] 23(b)(2) class[,] while still being able to opt out of the monetary relief provided to the class under [FRCP] 23(b)(3).” (Calibuso Objections, at 3.)
In this case, “where [programmatic] relief is sought in addition to substantial monetary damages,” the Court “may proceed in at least one of three ways: (1) certify the class under [FRCP] 23(b)(3) for all proceedings; (2) certify separate [FRCP] 23(b)(2) and (b)(3) classes addressing equitable relief and damages, respectively; or (3) certify the class under [FRCP] 23(b)(2) for both equitable and monetary relief but provide all class members with notice and opportunity and opt-out.” Sykes v. Mel Harris & Assocs., LLC, 285 F.R.D. 279, 288-89 (S.D.N.Y. 2012) (Chin, J.) (emphasis added). In other words, nothing required the Court to separately certify the Settlement Class and Subclasses to preserve Settlement Class Members’ right to object to the programmatic relief, while still permitting them to opt out of the monetary relief.
Nonetheless, as discussed supra at Section I, the parties resolved the objection on their own, by modifying the requested certification to delineate separate FRCP 23(b)(2) and FRCP 23(b)(3) classes. As Class Counsel acknowledged, “[w]e are not opposed to and think this settlement could support a structure in which somebody who opts out of the money, which says nothing about their view of the money, makes comments on the programmatic relief.” (Prelim. Approval Hr’g Tr., at 17:11-14.) Defense Counsel similarly stated, “[W]e’re prepared to address any objections [to the programmatic relief], even by people who opt out [of the monetary relief].” (Id. at 11:23-24.) The objection, therefore, is moot.
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2. Adequacy of Representation i. Awards for Named Plaintiffs’ Individual Claims and Service Awards
Objector Counsel claimed that Named Plaintiffs were conflicted between representing their own interests and the interests of other Settlement Class Members during the negotiations over the Settlement, based on Named Plaintiffs’ right to “sizeable special payments,” i.e., awards for their Individual Claims and service awards. (Settlement Class Members’ Objections, at 10; see also Final Approval Hr’g Tr., at 110:5-8, (“[G]iven that [Named Plaintiffs] stand to gain so much more by this deal going through, it creates a tension in terms of negotiating a larger settlement, monetary settlement, for the rest of the class[.]”).) The promise of these payments allegedly “preclude[d] [Named Plaintiffs] from standing in the shoes of other class members in assessing the Settlement’s monetary relief.” (Settlement Class Members’ Objections, at 10; see also id. at 18 (same).) According to Objector Counsel, absent that promise, Named Plaintiffs might have assessed the monetary relief differently. (See Prelim. Approval Hr’g Tr., at 30:1-3 (“The real issue is, if you didn’t have that promise present, would [Named Plaintiffs’] support for the settlement evaporate?”).)
By the Court’s calculations, which are necessarily theoretical,16 Moss, Goedtel, Evans, and DeSalvatore, as Named Plaintiffs, stand to receive (i) 1,774% more than the maximum average award from the Settlement Fund, if 40% of Settlement Class Members receive awards; and (ii) 2,218% more than the maximum average award from the Settlement Fund, if 50% of
16 These calculations assume that (i) there are 4,928 Settlement Class Members; (ii) the Settlement Fund contains $25,412,981.36, all of which will be distributed to Settlement Class Members; (iii) the entire Individual Named Plaintiffs’ Settlement Fund ($775,000) will be equally distributed to Moss, Goedtel, Evans, and DeSalvatore; and (iv) Moss, Goedtel, Evans, and DeSalvatore are also entitled to $35,000 service awards. The formula for these calculations is as follows: [$775,000/4 + $35,000]/[$25,412,981.36/(% of Settlement Class Members x 4,928)].
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Settlement Class Members receive awards.17 These percentages, which reflect a significant “disparity in the amount” that Named Plaintiffs could receive, would seem to support Objector Counsel’s view that the “potential awards for the four named plaintiffs . . . all on . . . top of their individual class award[s]” might have induced them to accept the Settlement, regardless of the amount that other Settlement Class Members may receive. (Final Approval Hr’g Tr., at 104:9, 105:9-12.)
These percentages, however, are not dispositive. The “prospect of a substantial personal recovery” for the named plaintiff in a class action settlement might “run afoul of the named plaintiff’s duty to negotiate fairly on behalf of all members of the class”; but, the ability to show that the named plaintiff would still agree to such a settlement, even “if he or she were to share in any award on the same terms as everyone else,” may otherwise demonstrate its “acceptability.” Women’s Comm. for Equal Emp’t Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 181 (S.D.N.Y. 1977) (emphasis added). The parties can make such a showing by establishing that, during their negotiations, “none of the named plaintiffs were promised an incentive award or were told that they should expect one.” In re W. Union Money Transfer Litig., No. 01-CV-335, 2004 WL 3709932, at *16 (E.D.N.Y. Oct. 19, 2004) (Sifton, J.) (holding that, as such, the “disbursement of incentive awards” did not “create[] a conflict of interest”); accord Sheppard v.
17 As a point of reference, the named plaintiffs in McReynolds only stand to receive (i) 121% more than the maximum average award from the settlement fund, if 40% of settlement class members receive awards; and (ii) 151% more than the maximum average award from the settlement fund, if 50% of settlement class members receive awards. In McReynolds, there are 1,433 settlement class members; the settlement fund, minus the attorneys’ fees and costs and service awards, amounts to $118,446,062.21; and the named plaintiffs are also entitled to $250,000 service awards. See Class Counsel’s Petition for Attorneys’ Fees & Costs, McReynolds, No. 05-CV-6583, ECF No. 596; Ex. 1, Settlement Agreement & Release, McReynolds, No. 05-CV-6583, ECF No. 611–1; Final Approval Order, McReynolds, No. 05-CV6583, ECF No. 616.
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Consol. Edison Co. of N.Y., Inc., No. 94-CV-403, 2002 WL 2003206, at *6 (E.D.N.Y. Aug. 1, 2002) (Gleeson, J.) (“In awarding [incentive awards] as part of a settlement, a court must ensure that the named plaintiffs, as fiduciaries to the class, have not been tempted to receive high incentive awards in exchange for accepting suboptimal settlements for absent class members.”).
Objector Counsel acknowledged that the separate negotiation of these awards would suggest adequate representation by Named Plaintiffs:
The question that [the Court] asked is spot on, which is, if that promise [of additional monetary relief for Named Plaintiffs] didn’t exist, would [their] support evaporate for the settlement? So, we think the way that it should be done is, it should be, from the get-go[,] [the monetary relief for Settlement Class Members and additional monetary relief for Named Plaintiffs] should not have been negotiated side by side[.] . . . [Y]ou are supposed to negotiate these things separately. You are not supposed to mention to your class reps anything of a bonus, anything more than they are supposed to get until you are done with the deal. Then you say, [y]ou may be entitled to a bonus here[.] (Prelim. Approval Hr’g Tr., at 29:5-10, 30:22–31:1 (emphasis added).) In response, Class Counsel confirmed that Named Plaintiffs “were wearing their hat as class representatives in negotiating the Class Settlement Fund before they were thinking about what they personally might get as an individual set-off within that class fund.” (Final Approval Hr’g Tr., at 110:24–111:3.) Class Counsel also confirmed that there was no “seductive kind of wink” with respect to the additional monetary relief for Named Plaintiffs, when the parties were negotiating the monetary relief for Settlement Class Members. (Id. at 111:6.) Because Named Plaintiffs did not negotiate on behalf of the Settlement Class and Subclasses with the allure or promise of benefits for themselves, there was no incentive for them to betray other Settlement Class Members in favor of their own self-interest. Accordingly, the Court finds that the
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objection to the adequacy of Named Plaintiffs’ representation based on such benefits does not warrant disapproving the Settlement.
ii. Longer Periods for the State-Law Settlement Subclasses in the Plan of Allocation
Objector Counsel also claimed that Named Plaintiffs—as Legacy Bank of America or Legacy Merrill Lynch brokers from certain states (i.e., New York, Florida, Missouri, and New Jersey) for purposes of the state-law Subclass Claims—negotiated special “treatment” in the plan of allocation, specifically for Legacy Bank of America or Legacy Merrill Lynch brokers “who work in their states, including themselves.” (Settlement Class Members’ Objections, at 10, 1920.) According to Objector Counsel, such “treatment” belies the adequacy of Named Plaintiffs’ representation on behalf of all Settlement Class Members. (Id.)
To clarify, the alleged problem stems from the fact that Named Plaintiffs had standing to bring the state-law Subclass Claims on behalf of New York-based and Florida-based Legacy Bank of America brokers, and Missouri-based and New Jersey-based Legacy Merrill Lynch brokers. See supra discussion at note 13. For those brokers, the state-law Subclass Claims supported longer statutes of limitations than the federal Class Claim, based on each state’s own statute of limitations. (See Defs.’ Monetary Relief Br., at 11-12.) As a “practical consequence,” the longer statutes of limitations for the state-law Subclass Claims translated to “greater claims periods for the state-specific subclasses,” including Named Plaintiffs, as factored into the plan of allocation.18 (Id.; see also Settlement Class Members’ Objections, at 19 (“[I]t cannot be
18 Specifically, the plan of allocation accounts for Settlement Class Members’ “length of tenure (e.g., weeks worked) during the [Settlement] Class Period” (Settlement Agreement, at 47 (emphasis added)), which begins on (i) November 10, 2004 and January 10, 2006 for New Yorkbased and Florida-based Legacy Bank of America brokers, respectively, rather than March 16, 2006 for other nationwide Legacy Bank of America brokers, and (ii) January 1, 2007 for both Missouri-based and New Jersey-based Legacy Merrill Lynch brokers, rather than August 2, 2007
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overlooked that the longest limitation period and award of work-weeks under the Settlement’s allocation formula is to Legacy Bank of America class members from Florida and New York, including Named Plaintiffs Moss and Goedtel.”); Final Approval Hr’g Tr., at 75:21-25 (“[T]he named plaintiffs brought state law claims in the states in which they resided and . . . the period at issue in those claims was a function of the statute of limitations in those states[.]”).) For instance, the Settlement Subclass of New York-based Legacy Bank of America brokers, based on the New York claims that Goedtel brought, are allowed to “file claims dating back to November 10, 2004”; whereas, New York-based Legacy Merrill Lynch brokers, not represented as a Settlement Subclass by any Named Plaintiffs, are only allowed to go back as far as August 2, 2007. (Settlement Class Members’ Objections, at 19); see supra discussion at Section I.
The heart of Objector Counsel’s argument was that, if Named Plaintiffs’ representation were adequate, they would have negotiated for the plan of allocation to account for claims periods in the same way for all Settlement Class Members from all states, regardless of whether such individuals were covered by the state-law Subclass Claims that Named Plaintiffs brought. Objector Counsel stated:
It would seem to us that the fair thing to do would be[,] if you negotiated the money and you have some states that you went back for[,] to sort of do an exploration to figure out what all the states are[.] . . . [E]very state law that has a claim that’s being released ought to be able to go back from the date of the filing of the lawsuit and those class members should get credit in the weeks computation [pursuant to the plan of allocation] rather than just picking and choosing some and applying inconsistent rules.
for other nationwide MLPF&S (including Legacy Merrill Lynch) brokers. See supra discussion at Section I.
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(Final Approval Hr’g Tr., at 72:6-17 (emphasis added).) Arguably, Named Plaintiffs, notwithstanding the state-law Subclass Claims, could have negotiated “to set a class period [for the plan of allocation] that applied to everyone regardless of where they were from and regardless of what the actual time frames were at the time that the case was initially brought.” (Id. at 82:17-20.) Objector Counsel argued that Named Plaintiffs’ failure to do so possibly reflects their favoritism for the Settlement Subclasses to which they belong, based on the statelaw Subclass Claims.
This argument is not without merit. The Court “must focus on the settlement’s distribution terms . . . to detect situations where some class members’ interests diverge from those of others in the class. . . . [A] settlement that offers considerably more value to one class of plaintiffs than to another may be trading the claims of the latter group away in order to enrich the former group.” In re Gen. Motors, 55 F.3d at 797. Nonetheless, in a class action where the named plaintiffs from particular states bring federal claims and other claims based on those states’ laws, there is nothing inherently inadequate about their negotiating a settlement for a broader class of individuals from other states as well. See Sewell v. Bovis Lend Lease, Inc., No. 09-CV-6548, 2012 WL 1320124, at *1, 4 (S.D.N.Y. Apr. 16, 2012) (concluding that the named plaintiffs, though “employed by Defendants in New York and New Jersey,” were adequate representatives of the nationwide “FLSA Class” for the FLSA and state-law claims); Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d 172, 175, 187 (W.D.N.Y. 2011) (refusing to find, where the named plaintiffs asserted FLSA and New York “wage and hour claims,” that they inadequately represented the whole “class covering all fifty states”); Glass v. UBS Fin. Servs., Inc., No. 06-CV-4068, 2007 WL 221862, at *1 & n.1, 9-10, 12-13 (N.D. Cal. Jan. 26, 2007) (holding that the named plaintiffs from New York, New Jersey, and Connecticut, who had
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asserted FLSA and state-law claims, were adequate representatives for a class of nationwide employees), aff’d, 331 F. App’x 452 (9th Cir. 2009); cf. Charron v. Wiener, 731 F.3d 241, 25354 (2d Cir. 2013) (“All class settlements value some claims more highly than others, based on their perceived merits, and strike compromises based on probabilistic assessments. . . . If these types of compromises automatically created subclasses that required separate representation, the class action procedure would become even more cumbersome than it already is[.]”) (citation omitted).
Indeed, in Sewell v. Bovis Lend Lease, Inc., the district court considered whether the two named plaintiffs—employed in New York, as well as New Jersey—adequately represented the “FLSA Class” of employees “anywhere in the United States” and the “NY Class,” when negotiating the settlement of their FLSA and state-law (i.e., New York and New Jersey) claims. 2012 WL 1320124, at *1, 4; Ex. A, Joint Stipulation of Settlement & Release, at 1-3, Sewell, No. 09-CV-6548, ECF No. 68–1. The court found that the named plaintiffs were adequate representatives, despite the fact that the class action settlement “propose[d] to distribute monies” based on a longer period for the “NY Class” (i.e., “between July 23, 2003, and December 31, 2010”) than the nationwide “FLSA Class” (i.e., “between March 4, 2007, and December 31, 2010”). Sewell, 2012 WL 1320124, at *1, 4. In other words, there was no basis for assuming that the named plaintiffs were conflicted, simply because they asserted state-law claims, along with their FLSA claim, and thus negotiated better terms on behalf of the “NY Class” to which they belonged than the nationwide “FLSA Class.”
In Glass v. UBS Fin. Servs., Inc., the district court also addressed a similar objection that the named plaintiffs, certain of whom were employed in New York and New Jersey, had asserted a FLSA claim and claims under those states’ laws; and, thereafter, settled their claims for a class
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of employees “anywhere in the United States or its territories,” while promising an “increased payout for class members who worked in New York, New Jersey, and Pennsylvania.” 2007 WL 221862, at *1 & n.1, 12. The court, however, found that “the parties have set forth a reasonable basis for treating claimants employed in New York, New Jersey, and Pennsylvania differently from claimants employed in other jurisdictions.” Id. at *13. Such differential treatment did not support the assumption that the named plaintiffs were inadequately representing the rest of the settlement class.
Like the district courts in Sewell and Glass, the Court declines to assume that the differential treatment of Settlement Class Members in the state-law Settlement Subclasses indicates that Named Plaintiffs did not adequately represent the interests of all Settlement Class Members. Indeed, at the final approval hearing, Defense Counsel noted that Defendants would not have agreed to longer claims periods in the plan of allocation for all Settlement Class Members, simply because the state-law Settlement Subclasses were entitled to longer claims periods. (See Final Approval Hr’g Tr., at 87:15-17 (“Your Honor, defendants are not willing to pay more money to people whose claims are time barred and I believe that’s what [Objector Counsel] is asking.”).) In effect, there was nothing that Named Plaintiffs could have done during the negotiations to more adequately represent the Settlement Class and Subclasses. Accordingly, the Court finds unavailing the objection based on the purported conflict between Named Plaintiffs’ representation of the Settlement Subclasses for the state-law Subclass Claims and other Settlement Class Members.
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C. Objections to the Settlement 1. Programmatic Relief i. Adherence to the ADP
Objector Counsel claimed that the ADP partially relies on a factor that will “have a discriminatory impact on the number and quality of accounts distributed to [female brokers],” namely, “past performance,” which has historically favored male brokers due to the challenged policies in this case. (Settlement Class Members’ Objections, at 12-15.) Thus, as Objector Counsel argued, “adherence” to the ADP, as sanctioned by the original ADP provision in the Settlement, might actually work to the detriment, not the benefit, of Settlement Class Members. (Id.) According to Objector Counsel, “[t]his is the most troubling aspect of the Settlement.” (Calibuso Objections, at 5.)
The district court, in Handschu v. Special Servs. Div., addressed a similar objection to a class action settlement, which provided that the New York City Police Department would follow certain guidelines for the “future collection, retention and dissemination of [law enforcementrelated intelligence] information.” 605 F. Supp. at 1389, 1395. Like Objector Counsel in this case, the objectors in Handschu claimed that, rather than requiring the defendants to offer “value for the class,” the settlement sanctioned the guidelines which would “make the situation [with respect to the intelligence gathering activities at issue] worse, not better.” Id. at 1395.
The Handschu court dismissed this objection, based on its finding that the alleged “illegality” of the guidelines sanctioned by the settlement did not “appear as a legal certainty on the face of the [settlement].” Id. at 1395, 1403-406, 1417 (quotations omitted) (concluding that “it cannot fairly be said that the proposed NYPD guidelines sanction unconstitutional behavior” and thus “the settlement does not initiate or authorize illegal conduct”); see also Robertson v. Nat’l Basketball Ass’n, 556 F.2d 682, 686 (2d Cir. 1977) (holding, in an antitrust class action,
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that, although “a settlement that authorizes the continuation of clearly illegal conduct cannot be approved, . . . the alleged illegality of the settlement agreement is not a legal certainty”) (citations and quotations omitted).
In this case, Objector Counsel opposed the original ADP provision in the Settlement, on the basis that it required adherence to a policy that allegedly reinforces unlawful discrimination against female brokers by incorporating the factor of “past performance.” The purported illegality of a performance-driven account distribution policy in the brokerage industry, however, hardly amounts to a “legal certainty.” Robertson, 556 F.2d at 686; Handschu, 605 F. Supp. at 1395. As other courts have suggested, there is nothing inherently illegal about such a policy. See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 489-90 (7th Cir. 2012) (Posner, J.) (noting, as dicta, that “[w]e are not suggesting that there is in fact racial discrimination at any level within Merrill Lynch, or that management’s . . . account distribution policies have a racial effect,” despite the allegation that such policies “prescrib[e] criteria for account distributions that favor the already successful,” e.g., “records of revenue generated” and “number and investments of clients retained”); see also Blount v. Morgan Stanley Smith Barney LLC, No. 11-CV-2227, -- F. Supp. 2d --, 2013 WL 5663480, at *6 (N.D. Cal. Oct. 17, 2013) (refusing to find a “prima facie case of discrimination” with respect to a “court-approved method” of distributing inherited brokerage accounts “based on [the plaintiff’s] performance within his peer group”). Nor has Objector Counsel cited any authority to support the opposite conclusion.19
19 Additionally, Class Counsel and Defense Counsel alleged that the ADP, which accounts for “past performance,” was intended as the panacea to issues with Defendants’ longstanding account distribution policy, which reflected “favoritism and manager preference” and not
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Objector Counsel, therefore, did not demonstrate that the illegality of a policy reinforced by the Settlement, like the ADP, is a “legal certainty”; at best, it is an issue that could have been litigated at trial. Robertson, 556 F.2d at 686; Handschu, 605 F. Supp. at 1395. However, it is axiomatic that the Court need not conduct a trial to avoid one. See Weinberger, 698 F.2d at 74 (“The Supreme Court could not have intended that, in order to avoid a trial, the judge must in effect conduct one.”). On the contrary, the Court need only consider whether the Settlement “initiate[s] or authorize[s] any illegal conduct” with “legal certainty,” not whether the sanctioned conduct would be illegal based on the standard of proof at trial. Handschu, 605 F. Supp. at 1395 (quotations omitted). With respect to the original ADP provision, the Court has already determined that the Settlement did not plainly authorize unlawful conduct; thus, the inclusion of this provision in the Settlement did not render it unfair, unreasonable, or inadequate.
In any event, notwithstanding the fact that the parties had no obligation to do so, they agreed to revise the final terms of the Settlement, by eliminating the requirement that Defendants “adhere[]” to the ADP, and substituting language in the Settlement that simply requires the ADP to be “gender neutral” and comply “with the law and the company’s EEO policies.” Supra discussion at Section I; see also Handschu, 605 F. Supp. at 1405 (holding that, in sanctioning adherence to guidelines which also stated that the NYPD would “conform to constitutionally guaranteed rights and privileges,” the settlement remained “flexible” as to “future developments in the law” that would “more closely conform[] to [objector] counsel’s present views”). In response, Objector Counsel indicated that this revision “resolves the ADP objection” and, as a result, resolves “the major issues with respect to the substance of the objections.” (Final
“objective” factors like “past performance.” (See Defs.’ Programmatic Relief Br., at 8; Pls.’ Reply, at 8.)
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Approval Hr’g Tr., at 38:6-8.) Based on this revision, 55 opt-outs also opted back into the
monetary relief. (See Dkt. No. 204, at 1-2.) Accordingly, the objection with respect to the
original ADP provision is not only without merit, but is also now moot.
ii. Lundquist’s Role Objector Counsel also objected to the Settlement’s appointment of Lundquist, an
industrial psychologist, as either the Independent Consultant or the Independent Settlement Monitor.20 According to Objector Counsel, Lundquist was unfit to serve in either capacity,
because she created Abercrombie & Fitch Stores, Inc.’s (“Abercrombie”) “Look Policy,”
described to the Court as a policy to make Abercrombie employees “look like the models in their catalogs and on their posters.”21 (Final Approval Hr’g Tr., at 18:10–19:8, 50:15-18, 56:20–
57:4.) Objector Counsel argued that Lundquist’s creation of this allegedly discriminatory policy
suggests that Lundquist would detract from the achievements for minority (i.e., female and
African-American) brokers in the Settlement and, by extension, the McReynolds settlement, if
she were to serve as either the Independent Consultant or the Independent Settlement Monitor in
this case. (See id. at 54:14-22, 63:15-20.) Objector Counsel stated that, instead of Lundquist, the
20 Originally, Lundquist was appointed as the Independent Consultant. (Dkt. No. 155–1, at 30.) In an attempt to address Objector Counsel’s concern, the parties appointed Lundquist as the Independent Settlement Monitor instead. (Settlement Agreement, at 34.) Objector Counsel, however, objected to Lundquist acting in any capacity for the Settlement. (See Final Approval Hr’g Tr., at 19:21-23 (“[W]e understood that ‘swapped’ meant remove Lundquist [as the Independent Consultant] and put in Goldstein, and somebody else would be the [Independent Settlement Monitor][,] not just [that] the two would swap roles.”).) 21 “Abercrombie requires employees in its stores to comply with a ‘Look Policy.’ That policy is intended to promote and showcase the Abercrombie brand, which exemplifies a classic East Coast collegiate style of clothing. . . . Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores.” EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1111 (10th Cir. 2013) (citations and quotations omitted) (reversing the district court’s grant of summary judgment to the EEOC and granting summary judgment to Abercrombie).
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parties should have chosen “somebody who wasn’t connected with the defense and wasn’t somebody who the EEOC and civil rights groups opposed.” (Id. at 19:7-8.)
However, there is no basis to Objector Counsel’s concern, because Lundquist did not create the allegedly discriminatory “Look Policy.” (See id. at 50:22-23 (“[Abercrombie’s] Look Policy was not designed by Kathleen Lundquist[;] that was designed by their marketing department.”); 55:13-15 (“[I]t sounds like Ms. Lundquist was hired to come in and do a job analysis and describe what you do for this job.”).) The Court’s own review of Lundquist’s declaration in EEOC v. Abercrombie & Fitch Stores, Inc. (“Abercrombie”), No. 09-CV-602 (N.D. Okla.), on which Objector Counsel relied, reveals as much. According to the declaration, Lundquist was retained solely to provide a descriptive account of the current, in-store positions at Abercrombie and the extent to which the “Model job” depends on “adherence to the Look Policy.” Decl. of Kathleen K. Lundquist ¶¶ 7-8, Abercrombie, No. 09-CV-602, ECF No. 50–7. Primarily based on the results from a prior “job analysis,” which involved reviewing Abercrombie’s internal documents and surveying its store managers, Lundquist reported that, at Abercrombie, “adhering to and upholding the Look Policy are important or critical to the Model job.” Id. ¶¶ 10, 15, 22-23. Nothing in the declaration insinuated that Lundquist created the “Look Policy” or promoted adherence thereto. Lundquist’s “opinion that it is critical to the job of Model at Abercrombie to comply with standards of conduct including the Look Policy” was merely what Lundquist had uncovered in her “job analysis,” in light of the existing information, and not a normative statement on the way that Abercrombie should operate. Id. ¶ 24.
Indeed, in an employment case before this District, Lundquist was retained by the plaintiffs to provide a similar “job analysis opinion” on certain positions at the “police and fire departments” and the duties required for each position. Ebbert v. Nassau Cnty., No. 05-CV-
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5445, 2008 WL 8086382, at *1-2 (E.D.N.Y. Sept. 29, 2008) (Tomlinson, Mag. J.) (quotations omitted). Rendering the “job analysis opinion” simply required Lundquist to “synthesize the information for the finders of fact and offer her analysis as to how the job categories . . . compare.” Id. at *4 (quotations omitted); see also id. at *12 (same). In declining to exclude Lundquist’s “job analysis opinion,” the district court observed:
Dr. Lundquist has been retained as an expert in fair employment law cases on 40 occasions, not including the instant case, in federal jurisdictions across the United States, eleven of which cases are currently pending. . . . Defendants have produced no evidence that any court has ever rejected her as an expert. Id. at *7 (citation omitted). The Ebbert court, in effect, recognized that Lundquist’s qualifications to render a “job analysis opinion,” like the one that the plaintiffs retained her to provide, were well-established. To conclude, nothing evidences that Lundquist was ever asked to create any discriminatory policies. Rather, in employment cases like Abercrombie and Ebbert, Lundquist was only asked to render “job analysis” opinions which synthesized the existing information about positions at specific employers. Accordingly, the Court finds that the objection about Lundquist serving in either a consulting or monitoring capacity for the Settlement lacks a factual basis and is entirely without merit.
iii. Other Overlapping Relief Lastly, Objector Counsel claimed that much of the programmatic relief in the Settlement overlaps with existing measures at MLPF&S (e.g., circulation of “Non-Discrimination and AntiRetaliation Policies” (Settlement Agreement, at 35)) or the relief in the McReynolds settlement (e.g., policies to promote “[d]iverse [t]eams” of brokers (id. at 37)); and thus fails to provide “consideration” for settling the Class and Subclass Claims. (Settlement Class Members’ Objections, at 15-16; see also Calibuso Objections, at 9-14 (same).) Objector Counsel also
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claimed that Goldstein’s study on teaming (Settlement Agreement, at 30-34) not only overlaps with, but will possibly counteract the benefits of a broader study in the McReynolds settlement. (Calibuso Objections, at 9-10; see also Final Approval Hr’g Tr., at 63:2-20 (same).)
Although some of the Settlement’s programmatic relief replicates various policies, procedures, and programs already in place at MLPF&S, such replication may still add value to the Settlement. The inclusion in the Settlement of MLPF&S’s existing measures to prevent discrimination and promote diversity ensures that these “voluntary” measures are “now subject to this Court’s scrutiny.” Plummer v. Chem. Bank, 579 F. Supp. 1364, 1368, 1374 (S.D.N.Y. 1984) (holding that, although the proposed settlement in the race-discrimination class action provided that the bank would comply with its “goals” for African-American employees “derived directly from [its] existing affirmative action program,” this provision was still a “significant benefit”); (see Defs.’ Programmatic Relief Br., at 10; Pls.’ Reply, at 8-9).
Furthermore, the fact that the parties in this case and McReynolds negotiated parallel class action settlements, the latter of which resolved claims of discrimination against AfricanAmerican brokers at MLPF&S, should not bar duplicative programmatic relief from being credited towards both settlements. See Lo Re v. Chase Manhattan Corp., No. 76-CV-154, 1979 WL 236, at *1-3, 6 (S.D.N.Y. May 25, 1979) (approving the “proposed settlement” to resolve allegations of Chase’s “employment practices which discriminated against women” with, among other things, $850,000 in programmatic relief, even though “[t]he proposed settlement is identical in concept with the conciliation agreement” that Chase already signed) (emphasis added). It was probably inevitable that, in the process of settling related discrimination claims, the parties would obtain certain of the same relief for their respective settlement class members.
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As for Goldstein’s study, this study and its recommendations on “teaming arrangements for women [brokers]” (Settlement Agreement, at 30-34 (emphasis added)) will complement, not counteract, the benefits of the McReynolds study and its recommendations on teaming overall, Ex. 1, Settlement Agreement & Release, at 49-52, McReynolds, No. 05-CV-6583, ECF No. 611– 1. Indeed, Goldman’s study will be tailored to female brokers, and, if anything, might offer more targeted insights than the McReynolds study. (See Final Approval Hr’g Tr., at 64:2-3 (stating that Goldstein “would be conducting the study with regard to gender issues”) (emphasis added); see also Defs.’ Programmatic Relief Br., at 11 (“Objectors do not and cannot identify any harm to women or African-Americans by having an additional expert conduct a study of teaming issues specific to women.”) (emphasis added).) While Goldman’s study will touch upon topics subsumed under the broader McReynolds study, it still provides a distinct benefit to Settlement Class Members, which does not warrant invalidating the Settlement based on the mere possibility of a conflict between these studies.
Accordingly, the objection to the overlapping programmatic relief in the Settlement is inapposite.
2. Monetary Relief Objector Counsel claimed that the plan of allocation “yields absurd and unfair results,” because it fails to account for (i) Legacy Merrill Lynch brokers’ “higher earnings, on average”; (ii) the fact that their “length of service” factored into earnings at Legacy Merrill Lynch; and (iii) their entitlement to “substantial retention bonuses” after the announcement of the January 2009 merger, which Legacy Merrill Lynch had agreed to pay. (Settlement Class Members’ Objections, at 17-18, 20-23; see Final Approval Hr’g Tr., at 96:24–97:2 (“[I]t was raised by Ms. Friedman . . . that legacy Merrill-Lynch advisors typically, ordinarily, would make more than Bank of America advisors[.]”).) Instead, the plan of allocation allegedly fails to compare the
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compensation of Legacy Merrill Lynch brokers and Legacy Bank of America brokers, by awarding money from the Settlement Fund based on the “same simplistic allocation formula.”22
(Settlement Class Members’ Objections, at 23.)
Class Counsel, however, convincingly argued that, in formulating the plan of allocation,
the relevant comparison was between the “pay differentials” for male and female Legacy Bank
of America brokers and the “pay differentials” for male and female Legacy Merrill Lynch
brokers. (Final Approval Hr’g Tr., at 98:9–99:21.) According to Class Counsel, their regression
analysis revealed that the “gross differences in pay” for male and female brokers at Legacy Bank
of America versus Legacy Merrill Lynch “fall away,” when the analysis was adjusted to “pay
differentials tied to the observed general policies and practices” being challenged. (Id.
(emphasis added).) Class Counsel represented, to the Court’s satisfaction, that “had there been
substantial differences between those two populations [i.e., Legacy Bank of America brokers and
Legacy Merrill Lynch brokers] we would have considered that in formulating the Plan of
Allocation.” (Id.)
22 Objector Counsel also attempted to recast this argument in terms of Named Plaintiffs’ adequacy as representatives. (See Final Approval Hr’g Tr., at 77:8-12, 77:25–78:2 (“[I]t doesn’t go to whether it is fair, reasonable, or adequate. What Ms. Davila would say is that there is a conflict of interest between the Bank of America class members and the Merrill-Lynch class members and having them participate in a common fund. . . . [U]sing the same formula raises issues that we talked about which was the adequacy of class representation[.]”) (emphasis added).) It is unclear, however, how this argument relates to adequacy of representation, where Named Plaintiffs, who negotiated the plan of allocation, include Legacy Merrill Lynch brokers (i.e., Evans and DeSalvatore) and Legacy Bank of America brokers (i.e., Goedtel, Calibuso, and Moss). See supra discussion at note 13. In other words, Evans and DeSalvatore would have represented the interests of Legacy Merrill Lynch brokers during the negotiations. (See Final Approval Hr’g Tr., at 80:2-4 (“[W]e do have class reps who work [at] [sic] both legacy banks and at a combined bank and were well able to represent the interests of the class in these discussions.”).) Accordingly, the Court only construes this argument as one that relates to the substantive fairness, reasonableness, and adequacy of the Settlement.
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Because the differences in earnings for male and female brokers at both Legacy Bank of America and Legacy Merrill Lynch, attributable to the challenged policies, were nearly equivalent, there was no need for the plan of allocation to award money from the Settlement Fund based on separate formulas for Legacy Bank of America and Legacy Merrill Lynch brokers. Therefore, the objection that there should have been separate formulas fails.
III. Conclusion For the reasons set forth above, the Court certified the Settlement Class and Subclasses and approved the Settlement in its final approval order, dated December 27, 2013. The Clerk of the Court is directed to terminate this case.

SO ORDERED:

Dated: April 30, 2014 Brooklyn, New York

/s/ Pamela K. Chen PAMELA K. CHEN United States District Judge

32

 
 Case 2:10-cv-01413-PKC-AKT Document 201 Filed 12/27/13 Page 1 of 68 PageID #: 3800

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, and MARY DESALVATORE, on behalf of themselves and all others similarly situated,
Plaintiffs,

No. 10 Civ. 1413 (PKC) (AKT)

-against-

BANK OF AMERICA CORPORATION; MERRILL LYNCH & CO., INC.; and MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,

Defendants.

REVISED SETTLEMENT AGREEMENT

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TABLE OF CONTENTS
Page
I. INTRODUCTION ................................................................................................. 1 II. NATURE AND RESOLUTION OF THE CASE ................................................. 2
A. Plaintiffs’ Class and Collective Action Claims. ........................................ 2 B. The Parties Engaged in Substantial Discovery. ......................................... 4 C. The Parties Engaged in Extensive Motion Practice
on Substantive Issues. ................................................................................ 5 D. The Parties Reached a Settlement After Extensive Negotiations. ............. 6 III. GENERAL TERMS OF THE SETTLEMENT AGREEMENT ........................... 7 A. Definitions.................................................................................................. 7 B. Duration of the Settlement. ...................................................................... 13 C. Cooperation.............................................................................................. 13 D. Persons Covered by this Settlement Agreement ...................................... 13
1. Definition of “Settlement Class,” “Class” or “Class Members.”.................................................................................... 13
2. Certification. ................................................................................ 14 IV. COURT APPROVAL/NOTICE AND FINAL APPROVAL HEARING........... 14
A. Jurisdiction and Venue............................................................................. 14 B. Preliminary Approval............................................................................... 14 C. Notice and Settlement Hearing ................................................................ 15 V. RELEASE/BAR OF CLAIMS, INCLUDING EPA CLAIMS............................ 21 A. Class and Collective Action Release. ...................................................... 21 B. Individual Claims of Named Plaintiffs. ................................................... 24 C. Defendants’ Mutual Release. ................................................................... 26 D. Materiality of the Releases …………………………………………..…27 E. Effect of Failure to File a Claim Form..................................................... 27 F. No Bar to Future Claims. ......................................................................... 27 G. Ownership of Claims. .............................................................................. 28 VI. REHIRE LIMITATIONS ON THE NAMED PLAINTIFFS .............................. 28 VII. NON-DISPARAGEMENT AND SUPPORT OF SETTLEMENT..................... 28
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TABLE OF CONTENTS (continued)

Page

VIII. NO ADMISSION, NO DETERMINATION....................................................... 29 IX. PROGRAMMATIC RELIEF .............................................................................. 30
A. Duration of the Settlement. ...................................................................... 30 B. Independent Consultant and Independent Settlement Monitor................ 30
1. Independent Consultant. .............................................................. 30 2. Independent Settlement Monitor.................................................. 34 C. Specific Programmatic Relief. ................................................................. 35 1. Regular Issuance of Non-Discrimination and Anti-
Retaliation Policies. ..................................................................... 35 2. Complaints. .................................................................................. 35 3. Account Redistribution Policy (“ADP”)...................................... 36 4. Leads and Referrals...................................................................... 37 5. Partnerships/Teaming. ................................................................. 37
a. Partnerships/Teaming Generally………………………..37 b. Diverse Teams…………………………………………..37 c. Mediation in Teaming Dissolution Agreements……… ..38 6. Business Generation Assistance. ................................................. 38 a. Maintain a Diverse FA Fund............................................ 39 b. Maintain a Women Investors’ Fund. ............................... 39 c. Sponsor Women in Wealth Symposium Series Led
by Market Leaders. .......................................................... 40 d. Maintain a GWIM Women’s Employee Network. .......... 40 7. Provide ongoing training modules………………………………40 8. Manager Evaluation. .................................................................... 40 9. Voluntary Exit Interviews............................................................ 41 10. Manager Selection………………………………………………41 11. No Arbitration for Employment Discrimination ……………….41 D. Non-Interference With Business.............................................................. 42 X. COMPLIANCE MONITORING......................................................................... 42

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TABLE OF CONTENTS (continued)

Page

XI. MONETARY RELIEF ........................................................................................ 43 A. Settlement Fund. ...................................................................................... 43 B. Administration by Trustee. ...................................................................... 45 C. Claims Filing Procedures for Settlement of Claims of Named Plaintiffs and Settlement Class Members. ............................................... 45 D. Determination of the Settlement Award. ................................................. 47 E. Non-Admissibility of Fact of Award (or Non-Award). ........................... 49 F. Tax Treatment. ......................................................................................... 49 1. Qualified Tax Status and Tax Responsibilities. ........................... 49 2. Payment of Federal, State and Local Taxes................................. 50
XII. ATTORNEYS’ FEES, EXPENSES OF CLASS COUNSEL AND ADMINISTRATIVE EXPENSES....................................................................... 52 A. Class Counsel Fees and Costs.................................................................. 52 B. Defendants’ Non-Opposition. .................................................................. 53 C. Timing of Attorneys’ Fee Payment.......................................................... 53 D. Service Awards. ....................................................................................... 54
XIII. TERMINATION OF THE SETTLEMENT AGREEMENT .............................. 54 XIV. CONFIDENTIALITY.......................................................................................... 55
A. Confidentiality Regarding This Settlement. ............................................ 55 B. Documents and Information Produced by Defendants and
Class Counsel........................................................................................... 55 C. Disposal of Confidential Documents and Information. ........................... 55 D. Settlement Communications .................................................................... 55 XV. GOVERNING LAW............................................................................................ 56 XVI. CAFA NOTICE…………………………………………………………………56 XVII. OTHER CONDITIONS OF SETTLEMENT ...................................................... 57 A. Exhibits. ................................................................................................... 57 B. Notices to Counsel. .................................................................................. 57 C. Failure to Insist on Strict Compliance. .................................................... 57

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TABLE OF CONTENTS (continued)

Page

D. Modifications to this Agreement. ............................................................ 57 E. Extensions of Deadlines........................................................................... 58 F. No Drafting Presumption. ........................................................................ 58 G. Dispute As To Meaning of Agreement Terms......................................... 58 H. Interpretation of Terms. ........................................................................... 58 I. Severability .............................................................................................. 59 J. Integration ................................................................................................ 59 K. Paragraph and Section Headings. ............................................................ 59 L. Counterparts. ............................................................................................ 59 M. Agreement Binding. ................................................................................. 59 N. Enforcement. ............................................................................................ 60

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I. INTRODUCTION Subject to approval by the United States District Court for the Eastern District of New
York (the “Court”), this Settlement Agreement (“Settlement Agreement,” “Settlement” or “Agreement”) sets forth the full and final terms by which Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore (the “Named Plaintiffs” or “Plaintiffs”)1, on behalf of themselves and members of the Settlement Class as defined herein, and Defendants Bank of America Corp., Merrill Lynch & Co., Inc. (“Merrill Lynch & Co.”), and Merrill Lynch, Pierce, Fenner & Smith, Inc. (“MLPF&S” or “Merrill Lynch”) (all of the Defendants are hereinafter referred to collectively as “Defendants,” or “Company”), have settled and resolved all claims that have been raised or could have been raised based on the facts alleged in this Action in the Third Amended Class and Collective Action Complaint (“TAC” or “Complaint”) filed by the Named Plaintiffs on October 5, 2011, as well as in the earlier-filed class and collective action complaints in this same Action (“Action” is defined in Section III.A.1. below), except as to Named Plaintiff Judy Calibuso’s individual retaliation claims. This Action and Settlement Agreement applies to female Financial Advisors (“FAs”) and Financial Advisor trainees (“FA trainees”) (both categories are referred to as “FAs,” as set forth in Section III.A. below) employed by Defendants and Banc of America Investment Services, Inc. at any time during the relevant time period as defined in Section II.A. below. 2
1 An additional Financial Advisor, V. Katharine Aird, had been a Named Plaintiff, but the parties stipulated to withdraw her individual and representative claims on March 11, 2011 [Dkt. No. 54]. 2 On January 1, 2009, Bank of America Corp. completed its acquisition of Merrill Lynch & Co., Inc. Following the merger, Bank of America Corp. maintained MLPF&S as a wholly-owned subsidiary of Merrill Lynch & Co., Inc., and merged the operations of MLPF&S with those of Banc of America Investment Services, Inc., formerly a wholly owned subsidiary of Bank of America Corp. At the time of the merger of the operations of MLPF&S and Banc of America Investment Services, Inc., MLPF&S subsumed the then employed Financial Advisors who had been employed by Banc of America Investment Services, Inc. (referred to herein as “Legacy
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II. NATURE AND RESOLUTION OF THE CASE A. Plaintiffs’ Class and Collective Action Claims. Plaintiffs filed the original Class and Collective Action Complaint in this matter in the
U.S. District Court for the Eastern District of New York on March 30, 2010, and the operative Complaint (i.e., the TAC) on October 5, 2011.3
The Settlement Class Period for the federal claims begins on March 16, 2006, for Legacy Bank of America Class Members, and on August 2, 2007, for all other Settlement Class Members and ends on the date Preliminary Approval of this Settlement is granted or September 15, 2013, whichever is earlier.4 The Settlement Class Period for the Subclass claims begins on the dates set forth below in the paragraph describing the Subclass claims.
The Complaint, filed by the five Named Plaintiffs, asserts class and collective action claims for gender discrimination with respect to compensation and various other practices such as account distributions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. and the federal Equal Pay Act (“EPA”), 29 U.S.C. § 206.5 These claims covered the period beginning on March 16, 2006 for Legacy Bank of America Settlement Class Members and on August 2, 2007 for all other Settlement Class Members.
The Complaint also asserts claims for gender discrimination with respect to compensation and various other practices such as account distributions under four states’ laws on
Bank of America Financial Advisors” or “Legacy Bank of America Settlement Class Members”). 3 Plaintiffs filed an Amended Complaint on August 2, 2010, and a Second Amended Complaint on March 14, 2010. 4 In the Complaint, Plaintiffs’ proposed Legacy Merrill Lynch Settlement Class began on March 6, 2008, and proposed EPA collective action claims applicable to all Settlement Class Members began on August 2, 2007. 5 The Named Plaintiffs also bring individual claims in addition to the class and collective action claims described above.
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behalf of alleged Subclasses of female Financial Advisors and Financial Advisor trainees in those states as follows: (a) a Subclass of female FAs and FA trainees employed by Banc of America Investment Services, Inc. in New York from November 10, 2004 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“New York Settlement Subclass”)6; (b) a Subclass of female FAs and FA trainees employed by Banc of America Investment Services, Inc. in Florida from January 10, 2006 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“Florida Settlement Subclass”); (c) a Subclass of female FAs and FA trainees employed by U.S. Wealth Management within MLPF&S in Missouri from January 1, 2007 through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“Missouri Settlement Subclass”); and (d) a Subclass of female FAs and FA trainees employed by U.S. Wealth Management within MLPF&S in New Jersey from January 1, 2007 through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“New Jersey Settlement Subclass”). See the New York Equal Pay Act, N.Y. Labor Law § 194, et seq.; the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296, et seq.; the Florida Civil Rights Act of 1992, F.S.A. § 760.01, et seq.; the Missouri Human Rights Act, RSMo. § 213.010, et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq.
Defendants denied and continue to deny all of the allegations and claims asserted in this Action, including alleged liability under federal and state anti-discrimination laws, and deny that 6 This includes what was defined in the Complaint as the NY Subclass and the NY EPA Subclass.
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the Named Plaintiffs and Settlement Class Members are entitled to any relief. Defendants submit that they acted appropriately and lawfully at all relevant times and that each and every one of Plaintiffs’ claims is without merit.
B. The Parties Engaged in Substantial Discovery. Plaintiffs conducted an extensive pre-filing investigation and, after the commencement of the Action, both parties conducted broad, extensive, and thorough discovery related to class and collective action certification between 2010 and April 2013. Plaintiffs conducted extensive data analysis of more than 173 Terabytes of personnel and compensation-related data as well as discovery regarding key policies and practices including, without limitation, account distributions, teaming, leads and referrals, and compensation. The written class and collective action certification discovery conducted in this case included four formal sets of document requests (totaling more than 50 distinct categories of documents, and more than 200 separate requests) propounded by Plaintiffs, innumerable discovery-related letters and informal requests, and interrogatories. Defendants propounded requests for production and interrogatories toward each of the five Named Plaintiffs, and three sets of requests for admissions. Between the parties, more than 900,000 pages (and over 100,000 documents) of materials were exchanged and reviewed (Defendants produced over 100,000 documents consisting of nearly 890,000 pages of material for Plaintiffs to review) against the backdrop of extensive negotiations over the scope of discovery, including ESI (such as email) discovery. The production included documents over many years and across the Defendants related to the challenged policies and practices in this Action (including, without limitation, policies and practices relating to compensation, account distributions, teaming and pooling, and leads and referrals), emails, internal complaints, audits, documents related to the Plaintiffs, and other materials.
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The parties also litigated discovery disputes, including over whether Defendants were required to turn over their human resources, compensation, and account data and, if so, the scope of the production. Following briefing and two rounds of oral arguments, resulting in a telephonic Order on March 4, 2011, requiring the production of data, Defendants began producing data. Due to the complexity of the data, among other reasons, numerous supplemental productions occurred, with the last production in April 2013. Based on extensive work with their data experts, Plaintiffs conducted three formal data depositions and numerous informal interviews of Defendants’ employees to understand the data, and issued numerous informal written questions to Defense counsel to assure accuracy in understanding the voluminous material.
Deposition discovery was also extensive. In addition to the data depositions noted above, Plaintiffs took 16 other depositions of corporate designees on a variety of topics such as compensation, partnerships, organizational structure, human resources and complaints, and account distributions (making 19 total depositions by Plaintiffs), and Defendants deposed each of the Named Plaintiffs for two days.
C. The Parties Engaged in Extensive Motion Practice on Substantive Issues. The parties engaged in substantial motion practice relating to Plaintiffs’ allegations. Defendants moved to dismiss Plaintiffs’ claims and strike Plaintiffs’ class and collective action allegations. Specifically, in two motions Defendants argued that: (a) Section 703(h) of Title VII and a parallel provision under the EPA, which expressly permit certain merit-based and production-based systems, required dismissal of Plaintiffs’ Title VII disparate impact and EPA claims that challenged Defendants’ production- and merit-based policies, (b) Plaintiffs’ class claims could not be sustained in the wake of Wal-Mart Stores, Inc. v. Dukes,131 S. Ct. 2541 (2011), as well as a range of other authorities and related arguments, and (c) certain of Plaintiffs’
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claims were untimely and/or beyond the scope of the underlying EEOC charges. Plaintiffs opposed the motions, arguing, inter alia, that Defendants’ compensation systems were not meritbased or valid production-based systems, and that they had validly alleged intentional discrimination. Both parties cited aspects of the then-existing evidentiary record in their papers.
After oral argument on January 17, 2012, and numerous supplemental filings, the Court denied all Defendants’ motions without prejudice in a memorandum opinion dated September 27, 2012. [Dkt. No. 134.]
D. The Parties Reached a Settlement After Extensive Negotiations. Plaintiffs’ Counsel and counsel for Defendants recognize the costs and risks of prosecuting this litigation through class certification, summary judgment, trial, and appeal. Plaintiffs’ Counsel believe that it is in the interest of all members of the Settlement Class to resolve finally and completely the potential claims of the Settlement Class Members against Defendants. Plaintiffs’ Counsel believe that the terms of the Settlement Agreement are in the best interests of the Settlement Class and are fair, reasonable, and adequate. Defendants have agreed to settle this Action solely in order to avoid the expense, burdens and distractions that would be involved in continued litigation and to put to rest all further controversy with respect to the charges, claims and issues raised in this Action pursuant to the terms set forth in this Settlement Agreement. This Settlement Agreement was reached after extensive mediation before experienced mediator David A. Rotman. Counsel for the parties are experienced class action lawyers who retained Mr. Rotman for his expertise in mediating many complex class and collective actions. Mr. Rotman conducted four days of mediation in San Francisco, California over a period of fourand-a-half months, including numerous informal discussions with the parties over the same time period (during and between mediation sessions). Certain of the Named Plaintiffs attended each
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of the mediation sessions, and Plaintiffs submit that all were actively involved in shaping the monetary and programmatic relief set forth in the Settlement Agreement. At all times during this process, the parties’ respective counsel bargained vigorously and at arm’s-length on behalf of their clients.
Without any admission or concession by Defendants of any liability or wrongdoing with respect to the allegations and claims made or that could have been made based on the facts alleged in this Action as set forth in the Complaint and all prior versions of the Complaint, all Released Claims (as defined below) shall be finally and fully compromised, settled, and released subject to the terms and conditions of this Settlement Agreement, which were the subject of extensive negotiation and ultimate agreement by the parties. III. GENERAL TERMS OF THE SETTLEMENT AGREEMENT
A. Definitions. In addition to terms identified and defined elsewhere in this Settlement Agreement, and as used in this Settlement Agreement, the terms below shall have the following meanings:
1. “Action” means the original and amended Class and Collective Action Complaints filed in the U.S. District Court for the Eastern District of New York (including the operative TAC), and the allegations and claims made therein.
2. “Attorneys’ Fees and Expenses” means the settlement amounts approved by the Court for payment to Plaintiffs’ Counsel, including attorneys’ fees, costs, and litigation expenses.
3. CAFA Notice means the notice requirements imposed by 28 U.S.C. § 1715(b).
4. “Claimant” means a member of the Settlement Class who files a Claim form and becomes eligible to receive a Settlement payment.
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5. “Claims Administrator” means Rust Consulting, Inc., which has been jointly designated by counsel for the parties to administer the Settlement Fund pursuant to Section XI below and orders of the Court.
6. “Claim Form” means the form agreed to by the parties, approved by the Court, and attached to the Notice. The Claim Form must be submitted by any eligible Settlement Class Member to the Claims Administrator as part of the claims process.
7. “Class Counsel” or “Lead Class Counsel” means the law firms of Lieff Cabraser Heimann & Bernstein, LLP and Outten & Golden, LLP.
8. “Complaint” means the operative Complaint in this action (i.e., the Third Amended Complaint or “TAC”), filed on October 5, 2011. Prior versions of the Complaint refer to the original Complaint, First and Second Amended Complaints filed in this Action.
9. “Court” refers to the Court having jurisdiction over this Action, at any stage, presently the United States District Court for the Eastern District of New York.
10. “Defendants” or “Company” means Bank of America Corp., Merrill Lynch & Co., Inc., and Merrill Lynch, Pierce, Fenner & Smith, Incorporated (“MLPF&S”).
11. “Defense Counsel” means the law firm of Proskauer Rose LLP. 12. “Effective Date” means the date on which all of the following have occurred: (1) the Court has finally approved this Settlement Agreement and has signed and entered an order so indicating; (2) the Court has entered an Order and Judgment dismissing the Action with prejudice, with continuing jurisdiction limited to enforcing this Settlement Agreement; and (3) the time for appeal of the order finally approving this settlement has either run without an appeal being filed or any appeal (including any requests for rehearing en banc,
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petitions for certiorari or appellate review) has been finally resolved and the Court has approved the Settlement Agreement.
13. “Final Approval Order” refers to the order of the Court granting final approval of the Settlement Agreement on the terms provided herein or as the same may be modified by subsequent mutual agreement of the parties in writing and approved by the Court.
14. “Final Approval Hearing” means the hearing contemplated by the parties, at which the Court will approve, in final, the Settlement and make such other final rulings as are contemplated by this Settlement Agreement or as the same may be modified by subsequent mutual agreement of the parties in writing and approved by the Court.
15. “Financial Advisor” or “FA” means a person employed by U.S. Wealth Management within MLPF&S or by Banc of America Investment Services, Inc. as a registered Financial Advisor in the United States, Puerto Rico, or the U.S. Territories. The terms “Financial Advisor” and “FA” includes “Financial Advisor trainees,” who are defined as persons in the Pathways of Achievement, Paths of Achievement Program or Practice Management Development or predecessor programs who passed the Series 7 exam and received a production number.
16. “Independent Consultant” means the jointly selected individual appointed by the parties to carry out the duties specified in Section IX.B.1. of this Agreement.
17. “Independent Settlement Monitor” means the jointly selected individual appointed by the parties to carry out the duties specified in Section IX.B.2. of this Agreement.
18. “Individual Named Plaintiffs’ Settlement Fund” means the amounts allocated for settlement of the individual, non-class claims of Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore, which amount shall be allocated among the
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four Named Plaintiffs as determined by the Claims Administrator. For avoidance of doubt, Named Plaintiff Judy Calibuso is not entitled to participate in or receive any amounts from the Individual Named Plaintiffs’ Settlement Fund.
19. “Legacy Bank of America” means Banc of America Investment Services, Inc.
20. “Legacy Bank of America Settlement Class Members” means those female Financial Advisors and Financial Advisor trainees employed by Banc of America Investment Services, Inc. in the U.S., Puerto Rico and U.S. Territories at any time from March 16, 2006 through and including the date Banc of America Investment Services, Inc. ceased to exist, and thereafter, if applicable, by MLPF&S within U.S. Wealth Management through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier. It also means those female FAs and FA trainees employed by Legacy Bank of America in New York from November 10, 2004 through the date that entity ceased to exist, and thereafter, if applicable, by MLPF&S within U.S. Wealth Management through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier, and those female FAs and FA trainees employed by Legacy Bank of America in Florida from January 10, 2006 through the date that entity ceased to exist and thereafter, if applicable, by MLPF&S within U.S. Wealth Management through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier.
21. “Notice” means the Notice of Class Action, Proposed Settlement Agreement, and Settlement Hearing, which is to be mailed directly to Settlement Class Members, substantially in the form attached hereto as Exhibit A.
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22. “Notice of Award” means the letter sent to each eligible Claimant by the Claims Administrator specifying the amount of that Claimant’s award, as determined by the Claims Administrator.
23. “Plaintiffs” or “Named Plaintiffs” means Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore.
24. Plaintiffs’ Counsel means Lieff Cabraser Heimann & Bernstein, LLP, Outten & Golden LLP and the law offices of Frederick K. Brewington.
25. “Preliminary Approval Order” means the Order of the Court preliminarily certifying the Settlement Class and preliminarily approving this Settlement Agreement and the form of Notice to be sent to Class Members.
26. “Service Award” refers to the additional amounts paid to the Named Plaintiffs for their services as class representatives, subject to Court approval.
27. “Settlement,” “Agreement,” and “Settlement Agreement” each mean the settlement agreed to by the parties as reflected in this Settlement Agreement. “Settlement Class Member” means any person who meets the criteria set forth in the definition of “Settlement Class” below.
28. “Settlement Class Member” means any person who meets the criteria set forth in the definition of “Settlement Class” below, including Settlement Subclass members.
29. “Settlement Class” and “Settlement Subclasses”: “Settlement Class” or “Class” means the class and collective action that the parties jointly seek to have certified, solely for the purposes of this Settlement Agreement. The Settlement Class is comprised of all women employed as Financial Advisors or Financial Advisor trainees in the United States, Puerto Rico, or the U.S. Territories (1) by Legacy Bank of America from March 16, 2006 through and
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including the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier; and (2) by U.S. Wealth Management within MLPF&S from August 2, 2007 through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier, as well as those individuals who are in the Settlement Subclasses or Subclasses. “Settlement Subclasses” or “Subclasses” means the four subclasses that the parties jointly seek to have certified, solely for the purposes of this Settlement Agreement. These Subclasses are comprised of (a) all female FAs and FA trainees employed by Legacy Bank of America in New York from November 10, 2004 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“New York Settlement Subclass”); (b) all female FAs and FA trainees employed by Legacy Bank of America in Florida from January 10, 2006 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“Florida Settlement Subclass”); (c) all female FAs and FA trainees employed by U.S. Wealth Management within MLPF&S in Missouri from January 1, 2007 through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“Missouri Settlement Subclass”); and (d) all female FAs and FA trainees employed by U.S. Wealth Management within MLPF&S in New Jersey from January 1, 2007 through the date Preliminary Approval is granted or September 15, 2013, whichever is earlier (“New Jersey Settlement Subclass”). Settlement Class and Subclass Members who timely file an opt-out form as described in Section IV.C.8. below will be excluded from the Settlement Class and Subclasses.
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30. “Settlement Fund” means the settlement monies transferred by Defendants to the Claims Administrator pursuant to Section XI.A. of this Settlement Agreement for allocation among Settlement Class Members by the Claims Administrator.
31. “Settlement Sum” means Thirty-Eight Million Two Hundred Twenty-Five Thousand Dollars ($38,225,000) as described in Section XI.A. of this Settlement Agreement.
B. Duration of the Settlement. The programmatic relief embodied in this Settlement Agreement and the agreements and other documents incorporated in it shall remain binding on the parties and their agents and successors for a period of three (3) years following the Effective Date. C. Cooperation. The parties agree that they will cooperate to effectuate and implement all terms and conditions of this Settlement Agreement, and exercise good faith efforts to accomplish the terms and conditions of this Settlement Agreement. The parties agree to accept non-material and procedural changes to this Settlement Agreement if so required by the Court in connection with Final Approval of the Settlement, but under no circumstances are Defendants obligated to accept any changes to the amount of the Settlement Sum, the scope of the releases, or any other substantive change to the Settlement such as to the programmatic relief provided for herein. D. Persons Covered by this Settlement Agreement
1. Definition of “Settlement Class,” “Class” or “Class Members.” Solely for purposes of settlement and judicial approval of this Settlement Agreement, pursuant to Federal Rule of Civil Procedure 23(e) and § 216(b) of the Fair Labor Standards Act, the parties stipulate to the certification of the Settlement Class (which includes the Subclasses) defined above.
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2. Certification. Plaintiffs will propose to the Court that the Settlement Class will be certified pursuant to Fed. R. Civ. P. 23(b)(3), and the Collective Action will be certified under 29 U.S.C. § 216(b) for settlement purposes only. Defendants do not waive, and instead expressly reserve, their right to challenge the propriety of class certification for any purpose as if this Settlement Agreement had not been entered into by the parties should the Court not approve the Settlement Agreement, the Settlement Agreement not become effective, or should Defendants exercise their right to terminate the Settlement Agreement, as described in Section XIII. IV. COURT APPROVAL/NOTICE AND FINAL APPROVAL HEARING A. Jurisdiction and Venue. The parties agree that the Court has jurisdiction over the parties and the subject matter of this Action and that venue is proper. The Court shall retain jurisdiction of this Action for three (3) years from the Effective Date of the Settlement Agreement solely for the purpose of entering all orders and judgments authorized hereunder that may be necessary to implement and enforce the relief provided herein. B. Preliminary Approval.
1. Prior to execution of this Settlement Agreement, the parties agreed upon a form for written Notice of this Settlement Agreement to Settlement Class Members, attached as Exhibit A, subject to Court approval.
2. On September 6, 2013, the parties shall petition the Court for the following orders:
a. preliminarily certifying the Settlement Class; preliminarily approving this Settlement Agreement; approving the Notice to be sent to Settlement Class
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Members describing the terms of the Settlement and informing them of their rights to submit objections and to opt-out; and
b. pending Final Approval, preliminarily enjoining each member of the Settlement Classes and Subclasses, excluding any members who make an irrevocable election to exclude themselves from the Settlement, from commencing, prosecuting or maintaining in any court or forum other than this Court any claim, action or other proceeding that challenges or seeks review of or relief from any order, judgment, act, decision or ruling of the Court in connection with this Settlement Agreement or otherwise in connection with this Action. Effective as of the date specified for Settlement Class Members to opt-out of the Settlement, further enjoining any member of the Settlement Classes and Subclasses who has not made an irrevocable election to exclude themselves from the Settlement from commencing, prosecuting or maintaining either directly, representatively or in any other capacity any claim that is subsumed within and released and barred by virtue of the Settlement Agreement.
C. Notice and Settlement Hearing. 1. Defendants shall identify all Settlement Class Members and will provide
to the Claims Administrator, within five (5) business days after Preliminary Approval of this Settlement Agreement, the name and last known address of each Settlement Class Member. This information will be provided in a computer readable format acceptable to the Claims Administrator. For Settlement Class Members for whom the Notice is returned to the Claims Administrator, Defendants will provide a Social Security number within two (2) business days to the Claims Administrator to allow the Claims Administrator to expeditiously locate the Settlement Class Member’s new location. The Claims Administrator shall utilize such Settlement Class Members’ Social Security numbers only for the purpose of locating and identifying Settlement Class Members and shall keep those Social Security numbers confidential.
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The information provided to the Claim Administrator shall be confidential and not shared with Class Counsel.
2. Within twelve (12) business days after Preliminary Approval of the Settlement Agreement, the Claims Administrator will mail the Notice to each Settlement Class Member in the form agreed upon by the parties or such other form as approved by the Court. Such notice shall be done by first class U.S. mail to each Settlement Class Member’s last known address. The parties intend to provide actual notice to each Settlement Class Member, to the extent practicable. The Claims Administrator shall mail a Claim Form to each Settlement Class Member at the same time the Notice is sent.
3. The Claims Administrator will mail the Notice to each Settlement Class Member by first class U.S. mail to each individual’s last known address. There will be no second mailing of the Notice to Settlement Class Members unless a Notice is returned to the Claims Administrator, at which point a second mailing shall be made after one skip trace.
4. The Claims Administrator will maintain a log of its activities, including the dates of mailing of Class Notice and mailing and receipt of Claim Forms, returned mail and other communications and attempted communications with members of the Settlement Class; confirm in writing the substance of its activities and completion of the administration of the settlement; timely respond to communications from the parties or their respective counsel; and perform such other tasks as the parties mutually agree. In addition, as noted in Section XI.D. below, the Claims Administrator shall include a statement on each settlement check disbursed to each Claimant expressly stating that, by cashing the check, the Claimant has released claims and has opted-in to this Settlement.
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5. Class Counsel shall provide the Court, at least fourteen (14) calendar days before the Final Approval Hearing, a declaration by the Claims Administrator of due diligence and proof of mailing with regard to the mailing of the Class Notice.
6. The expenses of the Claims Administrator shall be taken from and paid by the Settlement Sum described at Section XI below.
7. Settlement Class Member objections to this Settlement Agreement, if any, must be submitted in writing, and must include a detailed description of the basis of the objection. Objections must be filed with the Court, with copies served on Lead Class Counsel and counsel for Defendants, postmarked on or before forty-five (45) days after the Notice is mailed to Settlement Class Members. No one may appear at the Settlement Hearing for the purpose of objecting to the Settlement Agreement without first having filed and served her objection(s) in writing postmarked on or before forty-five (45) days after the Notice was mailed to Class Members.
8. Any Settlement Class Member who wishes to opt-out of the Settlement Class must mail to the Claims Administrator a written, signed statement that she is opting-out, as set forth below. The Claims Administrator shall provide to all counsel and file with the Court all opt-out statements that are timely received. The Settlement Class will not include those individuals who file and serve a timely opt-out statement, and individuals who opt-out are not entitled to any monetary award under this Settlement Agreement. With respect to each such individual, the statute of limitations for her to assert any claim for individual relief will resume running on the postmark date of her signed, written statement that she is opting-out of the Settlement Class. Among other things, the Notice shall advise Settlement Class Members that:
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 Any Settlement Class Member who wishes to opt-out of the Settlement Class must mail a written, signed statement that she is opting-out of the Settlement Class to the Claims Administrator at the address listed in the Notice.
 To be effective, this opt-out statement must be post-marked on or before forty-five (45) days after the date the Notice is mailed to Settlement Class Members.
 To be effective, the opt-out letter and statement must include a written statement confirming that the individual is aware that by opting-out she will forego the opportunity to receive monetary benefits from this Settlement.
 Settlement Class Members who file opt-outs may rescind their opt-outs. To be effective, such rescissions must be in writing and received by the Claims Administrator at least one day before the Final Approval Hearing.
 Any person who does not opt-out will be deemed to have opted-in for purposes of the claims made in this Action pursuant to any opt-in claims asserted, i.e., the federal EPA. 9. If Defendants exercise their option to withdraw from the Settlement
pursuant to the terms of Administrative Order No. 1, this Settlement Agreement shall be null and void, in which case the Court shall not issue Final Approval and neither Defendants nor any of the Named Plaintiffs shall be deemed to have waived any claims, objections, defenses or affirmative defenses with respect to this Action. Administrative Order No. 1 will be filed with the Court under seal and will be treated as a confidential, attorneys-eyes only document.
10. Any person who does not timely opt-out of participating in this Settlement shall be deemed to have opted-in for purposes of the opt-in claims asserted, i.e., pursuant to the federal Equal Pay Act.
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11. The parties, through their respective counsel, agree to use their best efforts on a joint basis to obtain prompt entry of the Preliminary Approval Order. The parties, through their respective counsel, also agree to recommend to the Court on a joint basis that, in their respective professional opinions, the Settlement Agreement is reasonable and appropriate, in the best interests of justice, that the parties have bargained for the terms in the Settlement Agreement, and that no section or subsection of this Settlement Agreement should be modified or stricken.
12. If Preliminary Approval is granted, a briefing schedule and Final Approval Hearing date will be set and the parties will propose to hold the Final Approval Hearing no later than 90 days after the CAFA Notice is served. The actual dates will be inserted in the Preliminary Approval Order by the Court.
13. Following Preliminary Approval by the Court of this Settlement Agreement, Class Counsel will submit a proposed final order and judgment: (a) approving the Settlement Agreement, adjudging the terms thereof to be fair, reasonable and adequate, and directing consummation of its terms and provisions; (b) certifying the Settlement Class and Subclasses for purposes of settlement hereunder only; (c) dismissing the Action on the merits and with prejudice and permanently barring all members of the Settlement Class who have not timely opted-out, including the Class Representatives, from commencing, maintaining, prosecuting, participating in any action, suit or proceeding (judicial, administrative, arbitral or other) against Defendants or any of the Released Claims; (d) providing that the promises, agreement, obligations, undertakings, representations, certifications, and warranties set out herein shall survive the closing of this Settlement Agreement, approving the releases and bar order contained herein, issuing the judgment of dismissal to be entered in the Action, and
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providing that the Court shall have continuing jurisdiction to enforce the Settlement Agreement for the period specified herein.
14. Other than to effectuate this Settlement Agreement, Defendants do not agree to the certification of the Settlement Class, the provisional designation of the law firms Lieff, Cabraser, Heimann & Bernstein, LLP, and Outten & Golden LLP as Class Counsel for the Settlement Classes, or provisional designation of the Named Plaintiff as representatives of the Settlement Classes for any purpose.
15. In the event that this Settlement Agreement does not become final and binding, no party shall be deemed to have waived any claims, objections, rights, defenses or affirmative defenses, or legal arguments or positions, including, but not limited to, claims or objections to class certification, or claims or defenses or affirmative defenses on the merits. Neither this Settlement Agreement nor the Court’s Preliminary Approval Order or Final Approval Order shall be admissible in any court regarding the propriety of class or collective action certification or regarding any other issue or subject, including issues of liability or damages (except for the purpose of enforcing this Settlement Agreement). Each party reserves the right to prosecute or defend this Action in the event that the Settlement Agreement does not become final and binding.
16. If Defendants exercise their option to withdraw from the Settlement pursuant to the terms of Administrative Order No. 1 (which will be filed under seal and will be treated as a confidential, attorneys’-eyes only document), or if this Settlement Agreement is not approved by the Court or for any other reason is terminated or fails to become effective in accordance with its terms (or, if following approval by this Court, such approval is reversed or substantively modified), the parties shall be restored to their respective positions that existed in
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this Action prior to entering into this Settlement Agreement; the terms and provisions of this Settlement Agreement shall have no force or effect; neither this Settlement Agreement nor any statements, discussions, or materials prepared, exchanged, issued or used during the negotiation of this Settlement Agreement shall be used in this Action or in any proceeding for any purpose; to the extent paid, the Settlement Sum and the Individual Named Plaintiffs’ Settlement Fund shall be returned to Defendants, including the interest earned through the date of termination (after deducting costs of providing Notice to Settlement Class Members and costs paid or incurred by the Claims Administrator as of the date of termination); any Judgment entered by the Court in accordance with the terms of this Settlement Agreement shall be treated as vacated, nunc pro tunc; and the litigation of the Action will resume as if there had been no Settlement Agreement, with no stipulated Class. In this event, the parties will retain all rights, claims, objections, defenses and affirmative defenses as to class certification and otherwise as to any of the allegations and claims asserted in and defenses to this Action. This Settlement Agreement will not be considered an admission of liability or damages by Defendants nor, in the event it is not finally approved, represent a cap on damages available to the Named Plaintiffs or any member of the Settlement Class.
17. Each party reserves the right to prosecute or defend this Action if this Settlement Agreement is terminated pursuant to its terms (including if Defendants exercise their option to withdrawn from the Settlement pursuant to the terms of Administrative Order No. 1), or if the Effective Date does not occur for any reason. This provision survives the termination of this Settlement.
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V. RELEASE/BAR OF CLAIMS, INCLUDING EPA CLAIMS. A. Class and Collective Action Release. Upon the Effective Date of the Settlement Agreement, and except as to such rights or
claims as may be created by this Settlement Agreement, all Settlement Class Members who do not properly and timely opt-out of this Settlement will be deemed opted-in as collective action Settlement Class Members under the above-referenced federal Equal Pay Act, in addition to being Settlement Class Members under the federal and state discrimination laws invoked in the TAC pursuant to Fed. R. Civ. Proc. 23, and will fully release and be deemed to have released and fully and finally resolved, waived and discharged, for themselves and their heirs, executors, administrators, dependents, successors and assigns (the “Class Member Releasors”), all claims, demands, causes of action, and liabilities, known and unknown, that they had, have or may have at any time up through the date of Preliminary Approval of this Settlement Agreement, under any legal or equitable theory, whether contractual, common-law, or statutory, and whether under federal, state, or local law, against Defendants and any and all of their current and former parent corporations, subsidiaries, divisions, affiliates, employee benefit and/or pension plans or funds (including qualified and non-qualified plans or funds), successors and assigns, as well as current and former officers, directors, agents, shareholders, trustees, administrators, insurers, fiduciaries, predecessors, attorneys, representatives, employees, successors and/or assigns of the foregoing entities (whether acting as agents for the Companies or in their individual capacities) (collectively, the “Defendant Releasees”), arising from or relating to or concerning the claims and facts alleged in this Action (and the underlying EEOC charges), any claims or facts raised or that could have been raised in this Action, the Complaint and any prior version of the Complaint filed in this Action including, without limitation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; the federal Equal Pay Act (“EPA”), 29 U.S.C. § 206; the New York
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Equal Pay Act, the N.Y. Labor Law § 194, et seq.; the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296, et seq.; the Florida Civil Rights Act of 1992, F.S.A. § 760.01, et seq.; the Missouri Human Rights Act, RSMo. § 213.010, et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (“Released Claims”). By way of example only, and without any intent to limit the scope of the preceding release, this Settlement bars (and Released Claims include) any claim of gender or sex discrimination with respect to compensation of any type or description (including but not limited to commissions, sign-on bonuses, stock or stock options, salary, bonuses, transition bonuses, retention bonuses, deferred compensation, incentive pay and incentive awards), termination of employment, account distributions, account redistributions and transfers, pooling, teaming and split arrangements, length of service roll-backs, leads and referrals, new hire packages (including, without limitation, sign-on bonuses, retention bonuses, transition bonuses, and promissory notes), enforcement of promissory notes, award or grant of titles, internal teaming and partnering opportunities (whether or not with other Financial Advisors), provision of resources (including, without limitation, people, information), provision of business opportunities and training (including, without limitation, provision of business support, office space, reimbursement for business development activities, sales assistance, sales support staff and business development funds) and all damages of any kind whatsoever (whether actual, compensatory, punitive, treble, liquidated, consequential or otherwise), injunctive relief, costs, interest, expenses and attorneys’ fees and costs that were or could have been sought or recovered in connection with the Released Claims. For sake of clarity, Released Claims shall not include any individual, non-class claims Class Member Releasors may have for sexual harassment (as defined in 29 C.F.R. § 1604.11(a)) or retaliation, or individual or class claims for race discrimination such as those brought by the certified class
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in McReynolds v. Merrill Lynch, Case No. 05-C-658, currently pending in the U.S. District Court for the Northern District of Illinois (Eastern Division).
Settlement Class Members who fail to timely opt-out (including their heirs, administrators, representatives, executors, successors, and assigns) expressly waive any and all provisions, rights and benefits conferred under or by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to, Cal. Civ. Code § 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Except for a proceeding brought to enforce the terms of the Settlement Agreement, Settlement Class Members shall, as of the date of Preliminary Approval of this Settlement Agreement, be barred from commencing, maintaining, prosecuting, participating in, or permitting to be filed by any other person on their behalf, any action, suit or proceeding against Defendants and the Defendant Releasees with respect to the Released Claims and will be deemed to have agreed to the same by participating in this Settlement. Upon the Effective Date, this Action will be deemed voluntarily dismissed with prejudice, except that the Court will retain jurisdiction solely for the purposes set forth in Section XVII.N. of this Settlement Agreement. B. Individual Claims of Named Plaintiffs. Each Named Plaintiff will receive an additional Service Award for serving as a Class Representative, and Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore will receive an additional amount for the release of her individual non-class claims, including non-economic losses that arise from alleged sexual harassment and retaliation, as well
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as for her agreement not to be re-hired by Defendants (except that the no-rehire provision shall not be deemed to change or effect any information on any Form U-5 filed by Defendants (or Banc of America Investment Services, Inc.)) as to the Named Plaintiffs and shall not be deemed to require resignation or mandate the termination of any Named Plaintiff who in the future becomes an employee of Defendants by virtue of Defendants’ acquisition of or merger with such Named Plaintiff’s employer (who was unaffiliated with Defendants as of the Effective Date). The amount of the Service Awards to each Named Plaintiff shall be $35,000.00, subject to Court approval. The Service Awards shall exclusively come from, and serve to reduce, the Settlement Sum. The payments to Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore for settlement of their individual, non-class claims shall be determined by the Claims Administrator and shall not in the aggregate exceed $775,000, which had been set aside as the “Individual Named Plaintiffs’ Settlement Fund.”
The Release for Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore is not a limited release of claims of only gender discrimination but instead shall broadly release all Released Claims as well as all claims of any nature, known or unknown, against Defendants and related entities and persons, successors and assigns under federal, state or local laws for any period up through the date that Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their individual release (which shall be no earlier than the date of Preliminary Approval and no later than the last date to opt-out of the Action), and which shall become effective at the Effective Date, otherwise if the Effective Date of this Settlement Agreement is not reached, Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore’s Releases will become null and void. Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore shall be required to enter into an individual release
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agreement in the form provided in Administrative Order No. 2, which will be filed under seal and treated as a confidential document, and shall release claims on her own behalf as well as on behalf of her heirs, administrators, executors, dependents, successors and assigns. By no later than five days after the Effective Date, Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore shall execute any documents necessary to effectuate withdrawal of any actions that were pending against Defendant Releasees on the date Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their respective individual release agreements.
Named Plaintiff Judy Calibuso will not sign an individual release agreement and her individual, non-class claims of retaliation as asserted in this Action will be preserved. The parties agree that Judy Calibuso individual, non-class claims of retaliation are stayed until final approval of the Settlement Agreement.
C. Defendants’ Mutual Release. In exchange for the general release and withdrawal of claims being provided by the Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore, Defendants will release Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore from any claims that were pending against them as of the date Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their individual release agreements and, no later than five days after the Effective Date and, simultaneous with Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore’s withdrawal of any pending actions against Defendants, Defendants will dismiss any actions that were pending against Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore on the date Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their individual release agreements. Defendants’ obligations under this provision will become effective on the
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Effective Date of the Settlement Agreement, otherwise if the Effective Date of this Settlement Agreement is not reached, Defendants’ obligations will become null and void.
D. Materiality of the Releases. The terms of the releases are a material part of this Settlement Agreement. If these releases or the Settlement Agreement cannot become effective for any reason and the Settlement set forth in this Settlement Agreement shall terminate as provided in Section XIII of this Settlement Agreement, then the releases shall terminate nunc pro tunc and be of no force and effect. E. Effect of Failure to File a Claim Form. Settlement Class Members who neither timely opt-out nor timely file a Claim Form shall, upon the Effective Date, be ineligible to receive any monetary award pursuant to this Settlement Agreement and be deemed to have fully, finally and irrevocably waived, released and discharged Defendant Releasees from any and all claims of gender discrimination and be barred from bringing such Released Claims, to the same extent as specified in Section A above, whether known or unknown, actual or potential, arising at any time on or before the date of Preliminary Approval. F. No Bar to Future Claims. Nothing in the Settlement Agreement shall be construed to bar any claims of members of the Settlement Class that arise from conduct occurring after the Preliminary Approval Date. Nothing in the Settlement Agreement shall be construed to bar any claims of the Named Plaintiffs that arise from conduct occurring after the date that her individual general release, as applicable, becomes effective.
G. Ownership of Claims.
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Settlement Class Members may not assign or transfer their rights to participate in this Settlement Agreement. VI. REHIRE LIMITATIONS ON THE NAMED PLAINTIFFS.
The Named Plaintiffs who are no longer employed by Defendants as of the date of execution of this Settlement Agreement understand and agree that they are not entitled to rehire by Defendants. However, if any company that any such Named Plaintiff is or will be working for is acquired by, merged into, or acquires, Defendants, this provision will not require the Named Plaintiff to resign or mandate the termination of her employment. Notwithstanding the above, this no-rehire provision shall not be deemed to change or affect any FINRA or other regulatory reports filed by Defendants (or Banc of America Investment Services, Inc.). VII. NON-DISPARAGEMENT AND SUPPORT OF SETTLEMENT.
Class Counsel and Named Plaintiffs agree not to make any critical, negative, or disparaging remarks about Defendants, including, without limitation, Defendants’ current and former affiliates, subsidiaries and their employees, or concerning the Action or the Settlement in any public press notices or in responding to press inquiries about the Action or the Settlement; provided, however, this does not prevent a description of the general allegations asserted in the Action. Defendants, including Defendants’ Counsel, will not make critical, negative, or disparaging remarks about the Named Plaintiffs or Class Counsel in any public press notices or in responding to press inquiries about the Action or Settlement Agreement; provided, however, this does not prevent Defendants from stating that they vigorously denied and continue to deny the allegations in the Action. The parties will agree to support the Settlement, including in their public statements, and will not characterize the Settlement as a win on the merits (or a loss on the merits) by any party, but rather as favorable settlement from both parties’ perspectives and that is
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fair to the proposed Settlement Class. Prior to issuing any press release, the parties will share drafts to ensure that they are consistent with this paragraph. VIII. NO ADMISSION, NO DETERMINATION.
This Settlement Agreement does not, and is not intended to constitute, nor shall it be deemed to constitute, an admission by any party as to the merits, validity or accuracy of any of the allegations, claims, defenses or affirmative defenses of any party in this case. Plaintiffs continue to assert the merits and validity of their claims under Title VII, the EPA, or parallel state and local laws prohibiting gender discrimination. By entering into this Agreement, Defendants do not admit or concede, expressly or impliedly, but rather deny that they have in any way violated Title VII, the EPA, parallel state and local laws prohibiting gender discrimination, the common law of any jurisdiction, or any other federal, state or local law, statute, ordinance, regulation, rule or executive order, or any obligation or duty at law or in equity. Defendants continue to assert the merits and validity of their defenses and affirmative defenses to Plaintiffs’ claims. Neither the Court nor any other court has made any findings or expressed any opinion concerning the merits, validity or accuracy of any of the allegations, claims, defenses or affirmative defenses in this case. Furthermore, for avoidance of doubt, nothing herein shall be deemed an admission of the validity of Judy Calibuso’s individual retaliation claims or a waiver of Defendants’ rights, defenses, and affirmative defenses.
Nothing in this Settlement Agreement, nor any action taken in implementation thereof, nor any statements, discussions or communications, nor any materials prepared, exchanged, issued or used during the course of the mediation or negotiations leading to this Settlement Agreement, is intended by the parties to, nor shall any of the foregoing constitute, be introduced, be used or be admissible in any way in this case or any other judicial, arbitral, administrative, investigative or other proceeding of whatsoever kind or nature (including, without limitation, the
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results of the claims process established under this Settlement Agreement) as evidence of gender discrimination, retaliation or sexual harassment or as evidence of any violation of Title VII, the EPA, parallel state and local laws prohibiting gender discrimination, the common law of any jurisdiction, or any other federal, state or local law, statute, ordinance, regulation, rule or executive order, or any obligation or duty at law or in equity.
This Settlement Agreement is non-precedential and shall not be deemed to constitute an admission that class certification is appropriate in this action or any other action that may be brought against Defendants.
Notwithstanding the foregoing, this Settlement Agreement may be used in any proceeding in the Court or in mediation or arbitration to enforce or implement any provision of this Settlement Agreement or implement any orders or judgments of the Court entered into in connection herewith. IX. PROGRAMMATIC RELIEF.
A. Duration of the Settlement. The programmatic relief embodied in this Settlement Agreement and the agreements incorporated herein shall remain binding on the parties and their agents and successors for a three (3)-year period beginning with the later of the Effective Date or February 1, 2014, with all programmatic relief to be implemented and/or initiated, as applicable, during the first year of the (3)-year period. B. Independent Consultant and Independent Settlement Monitor.
1. Independent Consultant. Defendants agree to engage an Independent Consultant selected by Plaintiffs’ Counsel (Harold Goldstein) who has a background and substantial experience in applied Organizational Psychology. The Independent Consultant will conduct a privileged and confidential internal
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study of FA teaming within U.S. Wealth Management (the “Teaming Study”) as described in Subsection (C)(5) below and make non -binding confidential recommendations as to ways to facilitate improved teaming arrangements for women FAs within U.S. Wealth Management. The Teaming Study will be kept confidential and shared only with Merrill Lynch executives. All of the Independent Consultant’s communications in connection with the Teaming Study will be exclusively with Merrill Lynch or its agents, except as set forth in this Settlement Agreement. Any documents, data, access to individuals, or other information received by the Independent Consultant will be kept confidential and used exclusively to conduct the Teaming Study pursuant to this Settlement.
Before beginning her review and evaluation of the teaming and pooling policies and practices, the Independent Consultant will meet once with Class Counsel, and then once with counsel for Merrill Lynch to discuss the Parties' respective perspectives in connection with the Teaming Study. The Independent Consultant will then submit requests for documents, data, access to individuals, or other information to Merrill Lynch in accordance with the procedure set forth below.
Following Merrill Lynch’s response to the Independent Consultant’s requests, and before the Independent Consultant commences the Teaming Study, Merrill Lynch and Class Counsel will both have an opportunity to review and discuss the Independent Consultant’s Teaming Study plan, and be informed of the extent to which the Independent Consultant’s requests for documents, data, access to individuals, or other information was approved. All requests by the Independent Consultant for documents, access to individuals, or other information from or with Merrill Lynch will be made to Kevin Walsh of Merrill Lynch. Through arrangements to be made through Mr. Walsh, the Independent Consultant will be permitted to (1) interview
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representatives of management identified by Defendants regarding teaming and pooling practices and policies; (2) interview up to three female FAs who are current and/or former members of the FA Advisory Council to Management or RD Advisory Council to Management; (3) interview up to three female FAs who are current and/or former members of the Diversity Council; and (4) interview Judy Calibuso. All interviews conducted by the Independent Consultant shall be treated as strictly confidential and shared only internally with Defendants’ executive management and attorneys. The Independent Consultant will not share confidential data or information learned from management with Judy Calibuso, or any other FA with whom she meets, or their respective counsel.
In addition, as part of this privileged and confidential review, the Independent Consultant will be permitted (1) to receive for thirty (30) offices consisting of offices chosen at random as well as those where Named Plaintiffs have worked, a listing of new FA pools/teams (excluding situational pool/split arrangements) formed in the office (FA names redacted), and for each new pool/team, an indication of the gender of each of the members of the pool/team and each member’s allocation or share of the pool; (2) to review sample pool/team agreements and any current policies/guidelines or training materials related to FA teaming; and (3) such other information as she deems reasonably necessary for purposes of the study. Requests for information shall be made to Kevin Walsh. All requests for documents, data, access to individuals, or other information not specifically delineated herein shall be subject to Mr. Walsh’s reasonable discretion; the Independent Consultant’s requests for information will not be unreasonably denied. Any documents, data, access to individuals, or other information received by the Independent Consultant will be kept strictly confidential and used exclusively to review pooling and teaming practices pursuant to this Settlement.
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After conclusion of the review, the Independent Consultant will meet with Defendants’ executive management and attorneys for purposes of sharing the results of her review and to discuss on a strictly confidential and privileged basis preliminary non-binding recommendations, if any, regarding ways to facilitate improved teaming arrangements for women FAs and the business feasibility of such potential recommendations.
The Independent Consultant may, after the above-described review and privileged internal discussion, issue non-binding final recommendations, if any, regarding ways to facilitate improved teaming arrangements for women FAs. Any non-binding recommendations made (preliminary or final) shall be made solely to Merrill Lynch executives only (including senior executives from the business and executives with responsibility for the Firm’s teaming practices and diversity and inclusion function). Defendants, thereafter, in their sole discretion, shall determine in good faith and after careful consideration whether and how to implement the nonbinding recommendations, or any portion thereof. Any non-binding recommendations or reports made by the Independent Consultant and Defendants’ response to any non-binding recommendations, shall be considered strictly privileged and confidential, attorneys’-eyes only, shall not be disclosed to the Independent Settlement Monitor or to Plaintiffs’/Class Counsel and shall be used solely for the purposes of this Settlement and shall not be admissible for any other purpose in this Action or any other litigation against Defendants and/or the Released Parties.
The Independent Consultant will sign a confidentiality agreement with Defendants, providing, among other things, that: (i) the review of teaming and its results will be kept confidential and shared only with Defendants’ executive management and attorneys; (ii) all of the Independent Consultant’s communications in connection with the teaming review will be exclusively with Merrill Lynch or its agents and any documents, and (iii) access to individuals,
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or other information received by the Independent Consultant will be kept confidential and used exclusively to conduct the teaming review pursuant to this Settlement.
2. Independent Settlement Monitor. Defendants agree to engage an Independent Settlement Monitor, Kathleen Lundquist, who also has a background and substantial experience in applied Organizational Psychology, for compliance monitoring as set forth in Section X. The Independent Settlement Monitor will meet on a strictly confidential basis with a designated representative of the Company on a semi-annual basis for the 3-year period to review compliance with the terms of the Settlement with respect to Subsections 1-4, 5(b), 5(c), 6-10 of the Programmatic Relief set forth in Section IX(C) below. The Independent Settlement Monitor may request information as reasonably needed to independently ascertain compliance with the terms of the Settlement, except that the Independent Settlement Monitor will not be entitled to receive information about privileged and confidential internal studies, including, without limitation, the Teaming Study to be conducted by the Independent Consultant, the results of such study or any non-binding recommendations or response to recommendations from such study. The Independent Settlement Monitor will meet semi-annually with counsel for Plaintiffs and Defendants on a strictly confidential, attorneys’-eyes only basis to report on compliance with the terms of the Settlement. In connection with any information and/or documents provided to the Independent Settlement Monitor, all names and other personally identifying information shall be redacted. Nothing herein shall require Defendants to provide privileged information or privileged documents or raw data to the Independent Settlement Monitor or Plaintiffs’ or Class Counsel or authorize data analysis by the Independent Settlement Monitor. Additionally, underlying information and documents provided to the Independent Settlement Monitor will not
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be shared with Lead Class Counsel. Lead Class Counsel will receive semi-annual reports from the Independent Settlement Monitor about compliance or potential non-compliance with the Settlement Agreement; provided, however, they shall not receive any information about any Teaming Study or any other privileged internal reviews/studies, the results of any such studies or any non-binding recommendations or response to recommendations from any such studies.
C. Specific Programmatic Relief. 1. Regular Issuance of Non-Discrimination and Anti-Retaliation Policies.
Defendants agree to post existing policies, as they may be updated from time to time, on an internal website accessible to all FAs and FA management accompanied by statements of support by appropriate management, for the 3-year period. Defendants also agree to include copies of policies for new FAs upon hire for the 3-year period. Defendants will instruct that both FAs and FA management acknowledge (either in writing or electronically) that they have read these policies.
2. Complaints. For the 3-year period, Defendants agree to annually provide FAs with information about the process for making internal complaints of gender discrimination, and shall request that FAs acknowledge (either in writing or electronically) that they have read the complaint procedure. The complaint procedure will include information about a phone number that may be used to make a complaint of gender discrimination. Defendants also agree to promptly investigate (based on circumstances) all complaints of gender discrimination and retaliation and to take appropriate remedial action (based on circumstances and as it deems appropriate in its sole discretion). On a semi-annual basis, Defendants will apprise the Independent Settlement Monitor on a strictly confidential basis (and without providing names of individuals) of any complaints of
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gender discrimination by FAs (including providing the Independent Settlement Monitor with written complaints or complaint entries), including those concerning account distributions, leads and referrals, teaming and compensation, and the results of the Defendants’ investigation and remedial action, if any, taken.
3. Account Distribution Policy (“ADP”). Defendants agree to maintain a gender neutral Account Distribution Policy (“ADP”) under which accounts from departing FAs are transferred to other eligible FAs based on objective metrics that comply with the law and the company’s EEO policies. Any ADP shall also include team vesting schedules and team maturation rules with respect to FAs who are on teams. Nothing herein shall preclude Defendants from amending or changing the ADP for business purposes including, without limitation, to ranking and eligibility criteria, or that otherwise may be required by law or court order. Defendants agree, for the 3-year period, to continue their quarterly reviews of account redistributions and to provide the results to the Independent Settlement Monitor, including quarterly reports/results of quarterly reviews. Defendants will provide a quarterly memo to field management to highlight any policy enhancements or changes. Defendants will require written explanations for exceptions to be entered into a drop-down list of exceptions maintained in the current or successor system for tracking. Defendants will require Merrill Lynch U.S. Wealth Management managers to review and ensure that accounts subject to distribution through the ADP are properly householded pursuant to applicable policy prior to the distribution of any of the accounts to Financial Advisors or Financial Advisor Trainees through the ADP. Management shall maintain documentation sufficient to confirm and reviews have been performed.”
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4. Leads and Referrals. For the time period of the Settlement Agreement, Defendants will maintain a published policy(ies) with regard to distribution of leads and referrals within U.S. Wealth Management that establishes the criteria and mechanism for distribution of leads and referrals. Nothing herein limits Defendants from implementing business-related changes to such a policy or from promulgating different policies for different types of leads and referrals.
5. Partnerships/Teaming. a. Partnerships/Teaming Generally.
The Independent Consultant will conduct a confidential and privileged internal review FA pooling and teaming policies and practices within U.S. Wealth Management, the results of which will be reported solely internally to members of Defendants’ executive management and attorneys as discussed in Subsection B(1) above.
b. Diverse Teams. Additionally, Defendants shall maintain a policy for U.S. Wealth Management that provides that before approving a team, management will instruct that FAs consider a variety of potential teammates, offer suggestions at an early point in the formation process, and instruct that the decision to team with particular FAs, or not to team with particular FAs, may not be made on the basis of an FA’s gender, race, national origin, religion, age, sexual orientation or gender identity, disability, marital status, veteran status or other legally protected characteristic. Defendants also will maintain a policy for U.S. Wealth Management that teams may not be formed solely for the purpose of selecting a successor in anticipation of an FA’s retirement or departure and pools may not be used to evade the ADP’s prohibition against Financial Advisor to Financial Advisor transfers (“FA to FA transfers”). Any pools formed within 60 days of the departure or retirement of an FA will also be strictly scrutinized by management.
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c. Mediation in Teaming Dissolution Agreements. Defendants will make available to all U.S. Wealth Management Financial Advisors and Financial Advisor Trainees the option of adding a non-binding mediation process with a thirdparty neutral to their teaming agreements. This non-binding mediation process would serve as a dispute resolution mechanism following the efforts of the Complex Director and an executive of Defendants to resolve any disputes concerning the division of team assets in connection with team dissolutions. Such a provision shall be added to team agreements only with every team member’s consent. The mediation provision in the team agreements will provide that Defendants will pay fifty per cent (50%) of the mediator’s fees, while the team will pay fifty per cent (50%) of the mediator’s fees, to be divided among each team member in proportion to the percentage of production credits that each team member is designated to receive under the team agreement. The mediator will be selected by the team members from the roster of Financial Industry Regulatory Authority mediators.
6. Business Generation Assistance. Defendants agree, for the 3-year period, to:
a. Maintain a Diverse FA Fund. Defendants agree to continue to maintain the Diverse FA Fund. This Fund will be available nationwide to any diverse FA (an individual of color or female FA) to penetrate any market. An eligible FA may request funding to conduct a business development event. In this event the FA must have a speaking opportunity. The event funding will be capped for each participating FA at amounts to be determined by the Company, and an FA may only request one event per year. Managers must approve the FA’s request and the FA must provide post-event attendee lists from which the Company may measure effectiveness of the event. The Fund will be funded at a minimum of $1 Million per annum (paid for separately and in addition to the
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Settlement Fund) for the 3-year period and will be distributed on a first come, first serve basis in accordance with rules established by Defendants. Each year, at least half of the Diversity Fund shall be available to be distributed to female Financial Advisors who apply for these funds. This amount is intended as a floor but not a ceiling on grants to women Financial Advisors. The Company may establish in its discretion appropriate rules concerning the Fund.
b. Maintain a Women Investors’ Fund. Defendants agree to continue to maintain a Women Investors’ Fund. This fund will be available to any FA (male and female) to penetrate the Women’s market. The Fund will be funded at a minimum of $250,000 per annum (paid for separately and in addition to the Settlement Fund) for the 3-year period and will be distributed on a first come, first serve basis in accordance with rules established by Defendants. The Fund will be distributed on a first come, first serve basis until it is exhausted for the year. The Company may establish in its discretion appropriate rules regarding use of the Fund.
c. Sponsor Women in Wealth Symposium Series Led by Market Leaders.
U.S. Wealth Advisory will sponsor a Women in Wealth symposium series led by Market Leaders. Events will include speakers/learning opportunities to help women FAs develop marketing skills. Events will be open to all FAs. Funding per year will be capped at a set dollar amount per year annum (paid for separately and in addition to the Settlement Fund) in an amount to be determined by Defendants in their discretion.
d. Maintain a GWIM Women’s Employee Network. Defendants will maintain a GWIM (or its successor organization) Women’s Employee Network. The network council, as it may exist from time to time, will determine how to allocate the budget, but will focus on events addressing career development, networking, and personal
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leadership. Network events will be open to all FAs. The budget for the Network will be determined by Defendants in their sole discretion annum (paid for separately and in addition to the Settlement Fund).
7. Provide Ongoing Training Modules. Defendants will provide ongoing training modules for FAs. These modules will primarily be online learning, for all FAs designed to help FAs build their business. All female FAs shall have an equal opportunity with male FAs to participate in such training.
8. Manager Evaluation. Defendants agree, for the 3-year period, to continue to conduct performance assessments of Merrill Lynch Complex Directors and Resident Directors that include a distinct diversity and inclusion category designed to evaluate whether the manager was a leader in promoting diversity and inclusion (people, ideas, solutions), including female FAs’ inclusion in the allocation of business opportunities and teams, and whether the manager fostered open communications with FAs, including female FAs.
9. Voluntary Exit Interviews. For the 3-year period, Defendants agree to conduct voluntary exit interviews with departing Merrill Lynch U.S. Wealth Management Financial Advisors and Financial Advisor trainees if such an interview is requested by the FA or FA trainee. Defendants may designate members of Human Resources or other appropriate members of management to conduct such interviews. To the extent an interviewee shares information or concerns about any potential gender discrimination matter, Defendants will share such information on a strictly confidential basis, with names redacted, to the Independent Settlement Monitor.
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Case 2:10-cv-01413-PKC-AKT Document 201 Filed 12/27/13 Page 46 of 68 PageID #: 3845 10. Manager Selection.
Defendants are committed to actively promoting a diverse and inclusive environment where all employees have the opportunity to achieve management success and contribute to the growth of their business. As a standard practice, Defendants strive to ensure that slates of management candidates include diverse candidates (women and people of color) for all posted roles and will continue to do so. Accordingly, for the duration of the Settlement, Defendants will endeavor to interview at least one diverse candidate, where available, for any posted Executive or Director position opening in the U.S. Wealth Management business.
11. No Arbitration for Employment Discrimination. Defendants will not require Financial Advisors within U.S. Wealth Management to arbitrate any employment discrimination claims unless individually negotiated.
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B. Non-Interference With Business. This Settlement Agreement does not impose any obligations on the parties beyond the terms and conditions stated herein. Accordingly, this Settlement Agreement shall not prevent or preclude Defendants from revising their employment practices and policies or taking other personnel actions during the term of this Settlement Agreement so long as they are not inconsistent with this Settlement Agreement. Furthermore, nothing in this Settlement will be construed as interfering with Defendants’ rights to determine the nature, conduct, organization, or structure of their businesses as they deem appropriate or as may be required by law. This Settlement Agreement and the terms herein are subject to Defendants’ other legal obligations, and nothing herein shall obligate Defendants to take any action that is contrary to said obligations. II. COMPLIANCE MONITORING. Defendants will provide information to the Independent Settlement Monitor as specified herein and to demonstrate compliance with the terms of the Settlement. The Independent Settlement Monitor may request additional information reasonably needed to ensure compliance with the Settlement; provided, however, nothing herein shall require Defendants to share privileged information privileged communications, or data for statistical analysis with the Independent Settlement Monitor. All information provided to the Independent Settlement Monitor shall be treated as strictly confidential by the Independent Settlement Monitor and not disclosed except as otherwise provided herein or required by Court order, and the Independent Settlement Monitor shall sign a confidentiality agreement with Defendants so providing. Lead Class Counsel will receive semi-annual reports from the Independent Settlement Monitor as specified herein. The Independent Settlement Monitor’s reports to Lead Class Counsel will be limited to providing information about compliance or potential non-compliance
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with the settlement provisions for which the Independent Settlement Monitor is responsible for monitoring.
Defendants and Lead Class Counsel will meet at least once every six (6) months, beginning six months after the Effective Date, regarding compliance, and may confer more frequently at their discretion.
For avoidance of doubt, any recommendations or reports made by the Independent Consultant and Defendants’ response to any non-binding recommendations shall be considered strictly confidential, attorneys’-eyes only, shall not be disclosed to the Independent Settlement Monitor or to Plaintiffs’/Class Counsel, shall be used solely for the purposes of this Settlement and shall not be admissible for any other purpose in any litigation against Defendants. III. MONETARY RELIEF.
A. Settlement Funds. No later than ten (10) business days after the Effective Date of this Settlement, Defendants shall pay, by wire transfer to the Claims Administrator: (i) the sum of Seven Hundred Seventy-Five Thousand Dollars ($775,000) as the “Individual Named Plaintiffs’ Settlement Fund” and (ii) Thirty-Eight Million Two Hundred Twenty-Five Thousand Dollars ($38,225,000) (the “Settlement Sum”) minus the amount previously paid to Plaintiffs’ Counsel for attorneys’ fees and costs (as specified in Section XII) and minus the Claims Administrator’s reasonably anticipated fees and costs advanced to the Claims Administrator upon Preliminary Approval of the Settlement Agreement (the “Settlement Fund”). These amounts shall be placed into an interest bearing escrow account established by the Claims Administrator. The Settlement Sum together with the Individual Named Plaintiffs’ Settlement Fund constitute the total settlement cash outlay by Defendants in connection with the resolution of this Action, except for payments to the Independent Consultant and the Independent Settlement
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Monitor, the costs of the Programmatic Relief and Defendants’ share of taxes. The Settlement Sum together with the Individual Named Plaintiffs’ Settlement Fund shall cover all expenses, costs, fees and taxes related in any way to the Settlement, except for payments to the Independent Consultant and the Independent Settlement Monitor, the Programmatic Relief, and the employer share of FUTA/FICA/SUTA and Medicare taxes on settlement proceeds. No other money shall be separately paid by Defendants in connection with this Settlement (including, without limitation, in connection with any taxes, attorneys’ fees, retirement or other employee benefits, or in any other respect).
This Settlement Sum together with the Individual Named Plaintiffs’ Settlement Fund is inclusive of payment for: (a) all amounts paid to Settlement Class Members, including the Named Plaintiffs, which are to be distributed pursuant to Section C, below; (b) all amounts paid to Named Plaintiffs, which includes amounts paid as Service Awards (as described in Section XII.D.), amounts paid as Settlement Class Members and amounts paid to Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore for signing individual releases (as described in Section V.B.); (c) attorneys’ fees associated or incurred in connection with Named Plaintiffs’ individual claims up through Preliminary Approval or, if later, the date Moss, Goedtel, Evans and DeSalvatore sign their individual release agreements; (d) all attorneys’ fees and costs awarded by the Court, including those in connection with securing Court Approval of the Settlement and the claims process and the monitoring by Class Counsel of the Settlement Agreement; (e) all costs in connection with the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund including, but not limited to, those related to notice, claims processing, independent legal advice obtained by the Claims Administrator relating to the establishment of the Qualified Settlement Fund and tax treatment and tax reporting of awards to
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claimants, and preparation of the Fund’s tax returns (and the taxes associated with such tax returns as defined below); and (f) applicable federal, state and local taxes, and all federal and state unemployment taxes required by law to be withheld by Defendants.
The Settlement Sum together with the Individual Named Plaintiffs’ Settlement Fund do not include Defendants’ share of employer taxes or contributions (i.e., FICA, FUTA, SUTA and Medicare), which will be paid separately by Defendants to the Claims Administrator, the payments to the Independent Consultant and the Independent Settlement Monitor or the costs of the Programmatic Relief, which payments and costs will be borne by Defendants directly. Defendants shall, upon notice from the Claims Administrator, remit any required tax payment to the Claims Administrator. Defendants are not entitled to the return of any portion of the Settlement Sum or the Individual Named Plaintiffs’ Settlement Fund regardless of the participation rate of Settlement Class Members, except as otherwise provided herein.
B. Administration by Trustee. The Claims Administrator shall serve as Trustee of the Settlement Fund and the Individual Named Plaintiffs’ Settlement Fund and shall act as a fiduciary with respect to the handling, management and distribution of these Funds. The Claims Administrator shall act in a manner necessary to qualify the Settlement Fund as a “Qualified Settlement Fund” under Section 468B of the Internal Revenue Code of 1986, as amended, and Treas. Reg. Section 1.468B-1, et seq., and to maintain that qualification. C. Claims Filing Procedures for Settlement of Claims of Named Plaintiffs and
Settlement Class Members. Settlement Class Members who have not opted-out of the Settlement shall be entitled to submit their Claim Forms to the Claims Administrator by U.S. Mail or on-line and in accordance with the procedures set forth on the Claim Form. Any such Settlement Class Member who
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previously released claims which would otherwise be covered by this Settlement Agreement, or who obtained a final judicial determination concerning claims that would otherwise be covered by this Settlement Agreement, is not eligible to receive a monetary award for those claims.
In order to be eligible for an award from the Settlement Fund, Settlement Class Members, including the Named Plaintiffs, must submit a Claim Form postmarked within one hundred twenty (120) days of the date first mailed to Settlement Class Members and a Release. The Claim Form shall be completed in its entirety, and shall include language confirming that completion of the Claim Form operates as an opt-in to the Action with respect to the federal EPA. Settlement Class Members who file a deficient claim form will be entitled to cure within fifteen (15) days of submitting a deficient Claim Form.
The Claims Administrator will provide Defense Counsel and Defendants’ payroll department with the names of all Settlement Class Members who submitted Claim Forms (“Claimants”). The identity of the Claimants will not be disclosed to anyone at Defendants other than its counsel and those employees and agents necessary to retrieve the information to be provided to the Claims Administrator under this Section. The Claims Administrator shall maintain the confidentiality of all Social Security numbers and personally identifying information in accordance with applicable law and shall enter into an appropriate form of agreement with Defendants concerning the protection of such information.
After receiving the Claimant information discussed in the paragraph above, Defendants, through their counsel, will provide the Claims Administrator with the dates each Claimant was employed by Defendants as a Financial Advisor. The Claims Administrator will provide that information to each Claimant. To the extent there is any disagreement relating to the accuracy of
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the information provided to the Claimants, the disagreement shall be resolved by the Claims Administrator.
The Claim Form provided to the Claims Administrator for purposes of the claims filing procedure shall be used in connection with that process, and shall not be admissible in this Action, or any other subsequent litigation proceeding against Defendants or the Released Parties for any purpose.
D. Determination of Settlement Award. Settlement Class Members who submit a Claim Form will be eligible to receive a monetary award based on a Plan of Allocation approved by the Court. The monetary award will be calculated by the Claims Administrator based on the assignment of points to each Claimant. Points will be assigned based on: (1) the Claimant’s length of tenure (e.g., weeks worked) during the Class Period as an FA or FA trainee and (2) information (if supplied by the Claimant) regarding whether any alleged purported compensation discrimination, in the view of the Claimant, caused the actual or constructive termination of her employment with Defendants. (1) Tenure points: (i) 5 points per week worked during the Class Period as an FA and (ii) 1 point per week worked during the Class Period as an FA trainee. Weeks are based on calendar weeks in the year, and Claimants will get credit for the week if Claimant was employed as an FA or FA trainee for any part of that week, including if Claimant was out on leave, or using sick or vacation days during the week. (2) Actual or Constructive Termination points: up to 250 additional points (for FAs) or up to 50 additional points (for FA trainees), to be determined in the sole discretion of the Claims Administrator, based on information provided by the Claimant in the Claim Form concerning the circumstances surrounding the actual or constructive termination of Claimant’s employment with
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Defendants and the severity of the harm suffered by Claimant as a result of the actual or constructive termination of her employment with Defendants.
The Claims Administrator shall calculate a total award for each Settlement Class Member who submits a valid Claim Form, with each Claimant receiving at least a minimum payment of $500. The Claims Administrator’s determination shall be final and not subject to review by, or appeal to, any court, mediator, arbitrator or other judicial body, including without limitation this Court. As will be reflected in the final order approving this Settlement, Defendants, Defense Counsel and Class Counsel shall have no responsibility, and may not be held liable, for any determination reached by the Claims Administrator.
The total amount of such awards shall not exceed the net amount of the Settlement Sum after all costs related to the Settlement (excluding the cost of an Independent Consultant, the Independent Settlement Monitor, Programmatic Relief and the Defendants’ employer share of FUTA/FICA/SUTA and Medicare taxes) and Class Counsel’s attorney’s fees (as discussed in Section XII) and costs and the Claims Administrator’s fees and costs are considered. Further, the receipt of a monetary award by a Settlement Class Member does not alter the calculation of or require additional contributions by Defendants to any employee benefit or retirement benefit to which any Settlement Class Member might be otherwise eligible to receive from any retirement plan sponsored by Defendants.
Following its determination as to the monetary award, if any, that should be paid to each Claimant from the Settlement Fund, the Claims Administrator shall send a check to each eligible Claimant along with a statement on the check itself expressly stating that, by cashing the check, the Claimant has waived the Released Claims and has opted-into this Action for purposes of the federal EPA (and all other claims asserted in this Action). Claimants’ endorsement of any check
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from the Settlement Fund shall reconfirm that the Claimant has opted-into this Action for purposes of the federal EPA and waived the Released Claims. If the amount of undistributed funds that remain after six (6) months from the mailing of the Notice of Award due to uncashed checks is in excess of $100,000, such undistributed funds shall be redistributed to Settlement Class Members who filed Claim Forms on a pro-rata basis in accordance the Plan of Allocation (as determined by the Claims Administrator) and, if the undistributed funds are less than $100,000, they shall be distributed to Legal Momentum (Women’s Legal Defense and Education Fund), a 501(c)(3) organization advancing career opportunities for women.
The Claims Administrator shall maintain the distribution plan and allocation list for a period of seven (7) years. Defendants shall have access to individual allocation amounts for tax and reporting purposes, but shall not have access to Settlement Class Member Claim Forms or Settlement Class Member descriptions of their discharge from Defendants.
The Claims Administrator also shall determine allocations from the Individual Named Plaintiffs’ Settlement Fund to each of the Named Plaintiffs. As will be reflected in the final order approving this Settlement, Defendants, Defense Counsel and Class Counsel shall have no responsibility, and may not be held liable, for any determination reached by the Claims Administrator with respect to allocation of this Fund.
E. Non-Admissibility of Fact of Award (or Non-Award). Except to the extent that it would constitute a set off in an action for damages claimed for any period covered by this Settlement, neither the fact nor the amount of an award, nor the fact of any non-award, from the Settlement Fund or Individual Named Plaintiffs’ Settlement Fund shall be admissible in any other proceeding for any purpose other than to enforce a Named Plaintiff Release or a Settlement Class Member Release executed or ordered in connection with this Settlement, nor shall it be deemed to be a finding as to the merits of any claim.
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F. Tax Treatment. 1. Qualified Tax Status and Tax Responsibilities.
The Settlement Fund shall be established as a Qualified Settlement Fund within the meaning of Section 468B of the Internal Revenue Code of 1986, as amended, and Treas. Reg. Section 1.468B-1, et seq., and shall be administered by the Claims Administrator under the Court’s supervision. Defendants shall hereby be deemed to have made an election under Section 468B of the Revenue Code to have the Fund treated as a “Qualified Settlement Fund.” Defendants shall timely furnish a statement to the Trustee that complies with Treasury Regulation § 1.468B-3(e) and shall attach a copy of the statement to its federal income tax return that is filed for the taxable year in which Defendants make the required payment(s) to the Settlement Fund. The parties shall cooperate to ensure such treatment and shall not take a position in any filing or before any tax authority inconsistent with such treatment.
2. Payment of Federal, State and Local Taxes. The parties recognize that the awards to eligible Claimants from the Settlement Fund and to Named Plaintiffs from the Settlement Fund and the Individual Named Plaintiffs’ Settlement Fund will be subject to applicable tax withholding and reporting, which will be handled as follows: The Claims Administrator shall serve as trustee of the two Settlement Funds and shall act as a fiduciary with respect to the handling, management, and distribution of amounts therefrom, including the handling of tax-related issues and payments. Specifically, the Claims Administrator shall be responsible for withholding, remitting and reporting of each Claimant’s and Named Plaintiffs’ share of the payroll taxes, and Defendants shall be responsible for the employer’s share of payroll taxes as set forth in this section.
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The allocation of Claimant Awards from the Settlement Fund and Individual Named Plaintiff Awards from the Individual Named Plaintiffs’ Settlement Fund are 50% for alleged lost wages (and subject to withholding for FICA, FUTA, SUTA, and Medicare) and 50% for other income that is not subject to withholding. See Treas. Reg. §1.468B-4. The parties state that the claims include the EPA claims, which have a liquidated damages provision for double damages, and that there is interest and other damages claims being released.
The Claims Administrator shall inform Defendants in writing of the employer’s share of all taxes or contributions required to be paid by Defendants upon receiving all of the Claim Forms and finalizing the Awards. The Claims Administrator shall timely report and remit the employer share of payroll taxes relative to the settlement payments to the appropriate taxing authorities.
The Claims Administrator shall be responsible for the timely reporting and remitting of the Employer Payroll Tax Payment to the appropriate taxing authorities.
Except with respect to the Employer Payroll Tax Payment, the Claims Administrator shall be responsible to satisfy from the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund any and all federal, state and local employment and withholding taxes, including, without limitation, federal and state income tax withholding, FICA, FUTA, SUTA, Medicare and any state employment taxes. The Claims Administrator shall satisfy all federal, state, local, and other reporting requirements (including any applicable reporting with respect to attorneys’ fees and other costs subject to reporting), and any and all taxes, penalties and other obligations with respect to the payments or distributions from the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund not otherwise addressed herein.
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The Claims Administrator shall be responsible for procuring Form W-4 and Form W-9, and any other required tax forms, from the Named Plaintiffs and Settlement Class Members.
All (i) taxes (including any estimated taxes, interest or penalties) arising with respect to the income earned by the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund, including any taxes or tax detriments that may be imposed on Defendants with respect to income earned for any period during which the Settlement Fund does not qualify as a “Qualified Settlement Fund” for federal and state income tax purposes (hereinafter “Settlement Fund Taxes”), and (ii) expenses and costs incurred in connection with the operation and implementation of this paragraph (including, without limitation, expenses of tax attorneys and/or accountants and mailing and distribution costs and expenses relating to filing (or failing to file) any returns described herein or otherwise required to be filed pursuant to applicable authorities) (hereinafter “Settlement Fund Tax Expenses”), shall be paid out of the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund. Further, Settlement Funds Taxes and Settlement Funds Tax Expenses shall be treated as a cost of the administration of the Settlement Fund and Individual Named Plaintiffs’ Settlement Fund. The parties hereto agree to cooperate with the Claims Administrator, each other, and their tax attorneys and accountants to the extent reasonably necessary to carry out the provisions set forth in this paragraph. IV. ATTORNEYS’ FEES, EXPENSES OF CLASS COUNSEL AND
ADMINISTRATIVE EXPENSES. A. Class Counsel Fees and Costs. Class Counsel shall be entitled to apply to the Court for an award of Plaintiffs’ Counsel’s attorneys’ fees in a total amount not to exceed 30% of the Settlement Sum, i.e., $11,467,500, plus their litigation expenses. The Parties agree that Class Counsel will hold back $100,000 per year of their awarded fees for each of the three years of the term of the Programmatic Relief for
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their work in monitoring said Programmatic Relief. The Claims Administrator will maintain this portion of the Court-awarded attorneys’ fees in escrow.
Payment of Plaintiffs’ attorneys’ fees, costs and expenses shall be made exclusively from the Settlement Sum. Defendants’ payment of Plaintiffs’ attorneys’ fees, costs and expenses from the Settlement Sum shall constitute full satisfaction of Defendants’ obligation to pay any person, attorney or law firm for attorneys’ fees, costs, and expenses incurred on behalf of the Settlement Class and the Named Plaintiffs and shall relieve Defendants from any other claims or liability to any other attorney or law firm or person for any attorneys’ fees, expenses and costs to which any of them may claim to be entitled on behalf of the Settlement Class or any of the Named Plaintiffs that are in any way related to the Released Claims or claims released by Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore in their individual release agreements or in any way related to attorneys’ fees, expenses and costs incurred with respect to the prosecution of Judy Calibuso’s individual claims up through and including the Effective Date.
Class Counsel agree to indemnify and hold Defendants harmless from any claims, demands, deficiencies, levies, assessments, executions, judgments or recoveries of any amounts claimed due by any attorney or experts as fees for any work performed for or on behalf of Named Plaintiffs or the Settlement Class Members in this Action, whether a matter of record or not. Class Counsel further agree to hold Defendants harmless from any costs, expenses, or damages, including Defendants’ own attorneys’ fees sustained by Defendants by reason of any such claim.
B. Defendants’ Non-Opposition. Defendants and their attorneys agree not to oppose any applications for attorneys’ fees, costs or expenses by Class Counsel that are fully consistent with Section XII.A.
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C. Timing of Attorneys’ Fee Payment. Any attorneys’ fees, costs or expenses payable to Class Counsel shall be distributed from the Settlement Sum pursuant to the Settlement Agreement. The parties agree that Class Counsel are entitled to receive the Court-ordered attorneys’ fees and costs within three (3) business days of the Final Approval, subject to full repayment if the Effective Date is not reached. Defendants shall wire the attorneys’ fees payment into an account designated by Class Counsel (information regarding such account will be provided to Defendants at least two weeks prior to the date of the Final Approval Hearing). If the Settlement does not become effective, Plaintiffs’ Counsel will repay the money, with the same interest rate as the escrow account in which the Settlement Fund is held. Defendants shall have no liability or other responsibility for the allocation of such attorneys’ fees among Plaintiffs’ Counsel, which decision shall be made by Class Counsel. D. Service Awards. Class Counsel will seek and Defendants will not oppose Court approval for reasonable Service Awards ($35,000.00 each for Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore) from the Settlement Sum for their participation in the prosecution and settlement of this case. This participation included each Plaintiff preparing for and then being deposed for two days each, participating in responding to discovery requests, assisting counsel in developing strategy, and providing input into settlement discussions and the ultimate Settlement Agreement. The proposed Service Awards will be in addition to Settlement Class benefits available to the Named Plaintiffs under the Settlement Agreement and are subject to Court approval. There was no trade-off of classwide relief for the payment of the Service Awards. As noted, all Service Awards shall come from the Settlement Sum, and Named Plaintiffs, except for Judy Calibuso,
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will be required to execute a full and complete release of any and all claims, known and unknown, against Defendants. V. TERMINATION OF THE SETTLEMENT AGREEMENT.
If the Court does not approve any material condition of this Settlement Agreement that effects a fundamental change to the terms of this Settlement hereunder, including but not limited to, the Settlement Sum, the programmatic relief, payments for Plaintiffs’ attorneys’ fees in excess of thirty percent (30%) plus costs, or the scope of the releases in Section V of this Settlement Agreement, Defendants may treat the entire Settlement Agreement as void and unenforceable.
The application for attorneys’ fees, costs and expenses, as set forth in Section XII, is a matter separate and apart from the Settlement Agreement among the parties, and no decision by the Court concerning the granting, in whole or in part, of such attorneys’ fees, costs or expenses as set forth herein shall affect the validity of this Settlement Agreement or finality of the Settlement Agreement in any manner. VI. CONFIDENTIALITY.
A. Confidentiality Regarding This Settlement. Prior to the time Plaintiffs move for preliminary approval of the Settlement Agreement, Class Counsel and Plaintiffs agree to keep the terms of the Settlement confidential. B. Documents and Information Produced by Defendants and Class Counsel. All proprietary and confidential documents or information that have previously been provided to either Defendants or Lead Class Counsel as of the date this Settlement Agreement is executed, or which are produced by Defendants or Lead Class Counsel pursuant to any provision of this Settlement Agreement shall, unless otherwise agreed, be treated as, and thereafter remain, confidential. Said documents and information shall not be disclosed to anyone other than the
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mediator or the Court (pursuant to the protective order entered in this case) in connection with any proceeding to enforce any provision of this Settlement Agreement.
C. Disposal of Confidential Documents and Information. The parties will abide by the Protective Order previously entered in this Action with respect to handling and disposal of proprietary and confidential documents or information. D. Settlement Communications. Neither this Stipulation of Settlement, nor the Court’s preliminary or final approval hereof, or any statements, discussions, communications, or any materials prepared, exchanged, issued, or used during mediation and the negotiation of this Settlement Agreement will be admissible in any forum regarding the propriety of class certification or regarding any other issue or subject of this case or any other case. VII. GOVERNING LAW. The parties agree that federal law shall govern the validity, construction and enforcement of this Settlement Agreement. To the extent that it is determined that the validity, construction or enforcement of this Settlement Agreement is governed by state law, the law of the State of New York shall apply. This Settlement Agreement, including the Exhibits hereto, contains the entire agreement and understanding of the parties with respect to the Settlement. This Settlement Agreement does not impose any obligations on the parties beyond the terms and conditions stated herein. Accordingly, this Settlement Agreement shall not prevent or preclude Defendants from revising their employment practices and policies or taking other personnel actions during the term of this Settlement Agreement so long as they are not inconsistent with this Settlement Agreement. Furthermore, nothing in this Settlement will be construed as interfering with Defendants’ rights to determine the nature, conduct, organization, or structure of their businesses as they
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deem appropriate or as may be required by law. This Settlement Agreement and the terms herein are subject to Defendants’ other legal obligations, and nothing herein shall obligate Defendants to take any action that is contrary to said obligations. VIII. CAFA NOTICE
Defendants shall be responsible for timely compliance with all CAFA notice requirements, and will serve notices consistent with 28 U.S.C. § 1715(b) and the timing set forth in 28 U.S.C. § 1715(d). IX. OTHER CONDITIONS OF SETTLEMENT.
A. Exhibits. The Exhibits to this Settlement Agreement are material and integral parts hereof and are fully incorporated herein by this reference. B. Notices to Counsel. All notices to counsel required or desired to be given under this Settlement Agreement shall be in writing and by overnight mail and e-mail to lead counsel for the respective parties. Specifically, such notices shall be mailed to Kelly M. Dermody and Rachel Geman of Lieff Cabraser Heimann & Bernstein, LLP and Adam T. Klein and Cara E. Greene of Outten & Golden, LLP for the Plaintiffs, and Katharine Parker and Steven J. Pearlman of Proskauer Rose LLP for Defendants at their respective addresses set forth below (or to such other address as any such party or counsel may designate in a notice). C. Failure to Insist on Strict Compliance. The failure of any party to insist in any one or more instances on strict compliance with the terms and conditions hereof shall not be construed to be a waiver of remedies available with respect to any prior or subsequent breach.
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D. Modifications to this Agreement. No material modifications to this Agreement may be made without written agreement of all parties and prior Court approval. The parties shall have the right to seek modification of the Settlement Agreement by the Court to ensure that its purposes are fully effectuated. The parties may jointly agree to modify the Settlement Agreement with the approval of the Court. Upon application for a modification of the Settlement Agreement, the movant shall bear the burden of proving by a preponderance of the evidence that circumstances make such modification necessary. E. Extensions of Deadlines. The Named Plaintiffs and Defendants recognize that from time to time unforeseen events may cause delays in the accomplishment of objectives, no matter how well-intentioned and diligent the parties may be. Accordingly, with regard to the provisions of this Settlement Agreement that require the parties to take certain actions within specified time periods (other than deadlines set forth in the Preliminary Approval Order and the deadline for filing claims), the parties agree that Court approval will not be required for reasonable extensions of deadlines. In the event that any party determines in good faith that an action required by this Settlement Agreement cannot be taken within the specified time period, counsel for that party shall promptly notify counsel for the other party that it anticipates a delay, the reasons for the delay and a proposed alternative deadline. F. No Drafting Presumption. All parties hereto have participated, through their respective counsel, in the drafting of this Settlement Agreement and, therefore, this Settlement Agreement shall not be construed more strictly against one party than another.
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G. Dispute As To Meaning of Agreement Terms. In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Settlement Agreement or any Exhibit hereto, or in the event of a claimed breach of the Settlement Agreement, the parties agree that such dispute will be resolved and adjudicated only in accordance with the dispute resolution provisions of this Settlement Agreement. H. Interpretation of Terms. Whenever possible, each provision and term of this Settlement Agreement shall be interpreted in such a manner as to be valid and enforceable. I. Severability. If any portion of this Settlement Agreement is judged to be unenforceable, the remainder of this Settlement Agreement shall continue to be valid and enforceable. J. Integration. This Settlement Agreement contains the entire agreement between the parties relating to any and all matters addressed in the Settlement Agreement, and all prior or contemporaneous agreements, understandings, representations and statements, whether oral or written and whether by a party or such party’s legal counsel, with respect to such matters are extinguished. No rights hereunder may be waived or modified except in a writing signed by all parties. K. Paragraph and Section Headings. Paragraph and section headings are for convenience of reference only and are not intended to create substantive rights or obligations. L. Counterparts. This Settlement Agreement may be executed in counterparts. Each signed counterpart together with the others shall constitute the full Settlement Agreement.
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M. Agreement Binding. As of the date on which counsel for the parties execute this Settlement Agreement, this Settlement Agreement will be binding in all respects, unless it is terminated as set forth in Section XIII, or unless the Court fails to approve this Settlement Agreement and the Settlement Agreement is thus vacated. This Settlement Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, dependents, executors, administrators, trustees, legal representatives, personal representatives, agents, successors and assigns; provided, however, that this Settlement Agreement shall not inure to the benefit of any third party. Settlement Class Members will not be deemed third party beneficiaries of the Settlement Agreement and will have no individual right to enforce its terms; rather, only Defendants and the Named Plaintiffs, through Class Counsel, may seek to enforce the terms of the Settlement. Class Counsel and counsel for Defendants shall meet and confer before the commencement of any enforcement proceedings. N. Enforcement.
1. Enforcement of this Settlement Agreement shall be prosecuted by Lead Class Counsel or counsel for Defendants only, not third parties. Lead Class Counsel shall meet and confer with counsel for Defendants prior to commencement of any enforcement proceedings.
2. The parties will work diligently and in good faith to resolve all disputes that may arise during the term of this Settlement Agreement concerning the rights, obligations and duties of the parties to the Settlement Agreement, including the Programmatic Relief. In the event the parties cannot agree, the parties will attempt to resolve the dispute with a phone discussion with David A. Rotman. If the disagreement persists, the parties will conduct an inperson mediation session with David A. Rotman, whose services will be paid by Defendants. If the mediation fails, the parties reserve their rights to seek recourse with the Court.
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3. Any enforcement proceedings related to or arising out of this Settlement

Agreement will be resolved and adjudicated only by the Honorable Pamela K. Chen of the

United States District Court for the Eastern District of New York, or by any other judge to whom

this case subsequently may be assigned, unless otherwise provided in this Settlement Agreement.

Dated: December 27, 2013

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

By: Rachel Geman
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Rachel Geman (RG 0998) 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Kelly M. Dermody, admitted pro hac vice Heather H. Wong, admitted pro hac vice 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

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Dated: December 27, 2013

OUTTEN & GOLDEN LLP
By: Adam T. Klein
OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
Class Counsel

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 Case 2:10-cv-01413-PKC-AKT Document 202 Filed 12/27/13 Page 1 of 11 PageID #: 3868

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

JUDY CALIBUSO, et al., Plaintiffs,
-against-

10-CV-1413 (PKC)

BANK OF AMERICA CORPORATION, et al., Defendants.

ORDER GRANTING FINAL APPROVAL OF (I) CLASS ACTION SETTLEMENT AND (II) REQUEST FOR ATTORNEYS’ FEES AND COSTS, SERVICE AWARDS FOR NAMED PLAINTIFFS, AND INDIVIDUAL NAMED PLAINTIFFS’ SETTLEMENT FUND; AND FINAL JUDGMENT THIS MATTER came before the Court on December 20, 2013, for final approval of the
proposed class action settlement (the “Settlement”) and on a request by Plaintiffs for attorneys’ fees, litigation expenses, class representative service payments, and an amount for the release of certain Named Plaintiffs’ individual, non-class claims. The Court has considered all papers filed and proceedings in this matter and held a hearing on December 20, 2013, at which time the parties and all other interested persons were afforded the opportunity to be heard in support of and in opposition to the proposed Settlement. Based on the papers filed with the Court and presentations made to the Court at the hearing, it is hereby ORDERED as follows:
1. The definitions and provisions of the Settlement Agreement are hereby incorporated as though fully set forth herein. For purposes of this Order, all capitalized terms used hereafter shall have the meaning ascribed to them in the Settlement Agreement, unless otherwise noted.
2. The Court has jurisdiction over the subject matter of the Settlement Agreement
with respect to and over all the parties to the Settlement Agreement, including Settlement Class

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Members and Defendants Bank of America Corp., Merrill Lynch & Co., Inc., and Merrill Lynch,
Pierce, Fenner & Smith, Inc. (collectively, “Bank of America”).
I. Certification of the Settlement Class and Subclasses
3. On October 15, 2013 the Court preliminarily certified the Settlement Classes and
Subclasses under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure (“FRCP”).
Docket No. 178, at 5. The Court now grants final certification, as the requirements pursuant to
FRCP 23 have been met. As detailed below, the Court certifies, under FRCP 23(b)(2) and
23(b)(3), the following Settlement Classes and Subclasses, previously set forth and defined in the
Court’s Preliminary Approval Order:
a. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, nationwide classes certified under FRCP 23(b)(2) and 23(b)(3) and comprised of all women employed as Financial Advisors or Financial Advisor trainees (i.e., in the Pathways of Achievement, Paths of Achievement Program or Practice Management Development or predecessor programs who passed the Series 7 exam and received a production number) in the United States, Puerto Rico, or the U.S. Territories: (1) by Banc of America Investment Services, Inc. from March 16, 2006 through and including the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through September 15, 2013, and (2) by U.S. Wealth Management within MLPF&S from August 2, 2007 through September 15, 2013;
b. For purposes of the relief provided in the Settlement Agreement with respect to the federal EPA claim, a nationwide collective action certified under § 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b) and comprised of all women employed as Financial Advisors or Financial Advisor trainees in the United States, Puerto Rico, or the U.S. Territories: (1) by Banc of America Investment Services, Inc. from March 16, 2006 through and including the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within
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MLPF&S through September 15, 2013, and (2) by U.S. Wealth Management within MLPF&S from August 2, 2007 through September 15, 2013 (all of the individuals who did not opt out are deemed to have opted into this Subclass);
c. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, subclasses certified under FRCP 23(b)(2) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by Banc of America Investment Services, Inc. in New York from November 10, 2004 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through September 15, 2013;
d. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, subclasses certified under FRCP 23(b)(2) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by Banc of America Investment Services, Inc. in Florida from January 10, 2006 through the date that entity ceased to exist and thereafter, if applicable, by U.S. Wealth Management within MLPF&S through September 15, 2013;
e. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, subclasses certified under FRCP 23(b)(2) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by U.S. Wealth Management within MLPF&S in Missouri from January 1, 2007 through September 15, 2013;
f. For purposes of the programmatic and monetary relief provided in the Settlement Agreement, subclasses certified under FRCP 23(b)(2) and 23(b)(3) and consisting of all female Financial Advisors and Financial Advisor trainees employed by U.S. Wealth Management within MLPF&S in New Jersey from January 1, 2007 through September 15, 2013.
Id. at 2-4. Furthermore, the Settlement Class and Subclasses for purposes of FRCP 23(b)(2)
programmatic relief includes Settlement Class Members who have elected to exclude themselves
from the monetary relief portion of the Settlement Agreement.
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4. The Court finds that Named Plaintiffs are adequate representatives of the Settlement Classes and Subclasses. II. The Settlement Is Fair, Reasonable, and Adequate.
5. FRCP 23(e) requires court approval for a class action settlement to ensure that it is procedurally and substantively fair, reasonable, and adequate. Fed. R. Civ. P. 23(e).
6. The Court hereby finally approves the Settlement, subject to the amendments set forth in this Order, which have been agreed to by the parties and which, as provided infra at Part IV, will be incorporated into the final Settlement Agreement. The Court has reviewed the terms of the proposed Settlement Agreement along with its exhibits, including specifically the programmatic relief provisions and the plan of allocation for the Settlement Fund, Plaintiffs’ Motion for Final Approval, and written objections filed by objecting Settlement Class Members. Based on a review of those papers and the Court’s familiarity with the case, the Court concludes that the Settlement, as amended pursuant to Part IV herein, is, in all respects, fair, reasonable, and adequate.
7. The Court has considered the objections to the Settlement that were not withdrawn, and overrules all such objections on the bases that: (i) for settlement purposes, FRCP 23(a)(2)-(4) are satisfied; (ii) the programmatic relief is fair, reasonable, and adequate; and (iii) the monetary relief and the plan of allocation are fair, reasonable, and adequate. The Court finds that the Notice effectuated was the best practicable notice under the circumstances, and was accomplished in all material respects. The Notice provided adequate notice of these proceedings and the Settlement Agreement to all parties entitled to such notice. The distribution of the Notice fully met the requirements of FRCP 23, and satisfied the requirements of constitutional due process and any other applicable law.
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8. On September 13, 2013, consistent with the Class Action Fairness Act (“CAFA”), appropriate CAFA notices were mailed to each appropriate Federal and State official, as required by 28 U.S.C. § 1715. No objections were received from any Federal or State officials.
9. The Settlement is hereby approved and incorporated herein and shall become effective according to its terms, subject to the amendments set forth in this Order, which have been agreed to by the parties and which, as provided infra at Part IV, will be incorporated into the final Settlement Agreement. III. Release and Dismissal of Claims with Prejudice
10. As set forth in Section V.A of the Settlement Agreement, and except as to such rights or claims as may be created by this Settlement Agreement, all Settlement Class Members who do not properly and timely opt-out of this Settlement will be deemed opted-in as collective action Settlement Class Members under the above-referenced federal Equal Pay Act, in addition to being Settlement Class Members under the federal and state discrimination laws invoked in the Third Amended Complaint pursuant to FRCP 23, and will fully release and be deemed to have released and fully and finally resolved, waived and discharged, for themselves and their heirs, executors, administrators, dependents, successors and assigns (the “Class Member Releasors”), all claims, demands, causes of action, and liabilities, known and unknown, that they had, have, or may have at any time up through the date of Preliminary Approval of this Settlement Agreement (that is, through October 15, 2013), under any legal or equitable theory, whether contractual, common-law, or statutory, and whether under federal, state, or local law, against Defendants and any and all of their current and former parent corporations, subsidiaries, divisions, affiliates, employee benefit and/or pension plans or funds (including qualified and non-qualified plans or funds), successors and assigns, as well as current and former officers,
5

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directors, agents, shareholders, trustees, administrators, insurers, fiduciaries, predecessors, attorneys, representatives, employees, successors and/or assigns of the foregoing entities (whether acting as agents for the Companies or in their individual capacities) (collectively, the “Defendant Releasees”), arising from or relating to or concerning the claims and facts alleged in this Action (and the underlying EEOC charges), any claims or facts raised or that could have been raised in this Action, the Complaint and any prior version of the Complaint filed in this Action including, without limitation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; the federal Equal Pay Act (“EPA”), 29 U.S.C. § 206; the New York Equal Pay Act, the N.Y. Labor Law § 194, et seq.; the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296, et seq.; the Florida Civil Rights Act of 1992, F.S.A. § 760.01, et seq.; the Missouri Human Rights Act, RSMo. § 213.010, et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (“Released Claims”). Released Claims shall not include any individual, non-class claims that Class Member Releasors may have for sexual harassment (as defined in 29 C.F.R. § 1604.11(a)) or retaliation, or individual or class claims for race discrimination such as those brought by the certified class in McReynolds v. Merrill Lynch, Case No. 05-C-6583, currently pending in the U.S. District Court for the Northern District of Illinois (Eastern Division). Settlement Class Members who fail to timely opt-out (including their heirs, administrators, representatives, executors, successors, and assigns) expressly waive any and all provisions, rights and benefits conferred under or by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to, Cal. Civ. Code § 1542, which provides:
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A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 11. As set forth in Section V.B of the Settlement Agreement, Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore are settling their individual claims in addition to their Class claims and providing a broader general release of claims as set forth in their individual agreements. Their individual release agreements have been filed under seal and shall become effective at the Effective Date; otherwise, if the Effective Date of this Settlement Agreement is not reached, Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore’s Releases will become null and void. By no later than five days after the Effective Date, Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore shall execute any documents necessary to effectuate withdrawal of any actions that were pending against Defendant Releasees on the date Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their respective individual release agreements. 12. Defendants have entered into a mutual release in exchange for the general release and withdrawal of claims being provided by Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore, as set forth in Section V.C of the Settlement Agreement. Defendants will release Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore from any claims that were pending against them as of the date Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their individual release agreements and, no later than five days after the Effective Date and, simultaneous with Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore’s withdrawal of any pending actions against Defendants, Defendants will dismiss any actions that were pending
7

Case 2:10-cv-01413-PKC-AKT Document 202 Filed 12/27/13 Page 8 of 11 PageID #: 3875
against Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore on the
date Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans and Mary DeSalvatore sign their
individual release agreements. Defendants’ obligations under this provision will become
effective on the Effective Date of the Settlement Agreement; otherwise, if the Effective Date of
this Settlement Agreement is not reached, Defendants’ obligations will become null and void.
IV. Amendments to the Settlement Agreement
13. Section III.B. of the Settlement Agreement is amended to read as follows:
The programmatic relief embodied in this Settlement Agreement and the agreements and other documents incorporated in it shall remain binding on the parties and their agents for a period of three (3) years, beginning February 1, 2014.
14. Section IX.B of the Settlement Agreement is amended to substitute Harold
Goldstein as the Independent Consultant. Kathleen Lundquist will be the Independent Monitor.
15. Section IX.C.3 of the Settlement Agreement is amended to read as follows:
3. Account Distribution Policy (“ADP”) Defendants agree to maintain a gender neutral Account Distribution Policy (“ADP”) under which accounts from departing FAs are transferred to other eligible FAs based on objective metrics that comply with the law and the company’s EEO policies. Any ADP shall also include team vesting schedules and team maturation rules with respect to FAs who are on teams. Nothing herein shall preclude Defendants from amending or changing the ADP for business purposes including, without limitation, to ranking and eligibility criteria, or that otherwise may be required by law or court order. Defendants agree, for the 3-year period, to continue their quarterly reviews of account redistributions and to provide the results to the Independent Settlement Monitor, including quarterly reports/results of quarterly reviews. Defendants will provide a quarterly memo to field
8

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management to highlight any policy enhancements or changes. Defendants will require written explanations for exceptions to be entered into a drop-down list of exceptions maintained in the current or successor system for tracking. Defendants will require Merrill Lynch U.S. Wealth Management managers to review and ensure that accounts subject to distribution through the ADP are properly householded pursuant to applicable policy prior to the distribution of any of the accounts to Financial Advisors or Financial Advisor Trainees through the ADP. Management shall maintain documentation sufficient to confirm and reviews have been performed. 16. These amendments shall be incorporated into the final Settlement Agreement, which will be fully executed and filed by the parties within ten (10) days of this Order. V. Attorneys’ Fees and Costs, Service Awards for Named Plaintiffs, and Individual Named Plaintiffs’ Settlement Fund 17. The Court finds Plaintiffs’ request for attorneys’ fees and costs to be reasonable, and awards fees in the amount of $11,467,500 and costs in the amount of $1,162,018.64 to Class Counsel, the law firms of Lieff Cabraser Heimann & Bernstein, LLP and Outten & Golden LLP. 18. The Court approves service awards of (i) $35,000 each for Named Plaintiffs Judy Calibuso, Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore, and (ii) $7,500 to Named Plaintiff Kathleen Wing. 19. The Court approves as reasonable the amount of $775,000 to be allocated to the Individual Named Plaintiffs’ Settlement Fund, for the purpose of resolving all individual, nonclass claims of Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore.
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VI. Dismissal of this Action 20. Without affecting the finality of this Order and Final Judgment, the Court retains
continuing jurisdiction over: (i) implementation of the Settlement Agreement and distribution of the settlement relief contemplated by the Settlement Agreement, until all acts agreed to be performed pursuant to the Settlement Agreement have been performed; and (ii) all parties to this action and Settlement Class Members for the purpose of enforcing and administering the Settlement Agreement.
21. The Court hereby dismisses this action with prejudice as to all Settlement Class Members. All claims released pursuant to the Settlement Agreement are dismissed with prejudice as to all Settlement Class Members other than the individuals listed in Exhibit A, attached hereto, which sets forth the names of those individuals who have timely and properly excluded themselves from the monetary portion of the Settlement Class.
22. This Order and the Settlement Agreement are binding on all Settlement Class Members, other than the individuals listed in Exhibit A to this Order. Neither the Settlement Agreement nor this Order nor the fact of a settlement are an admission or concession by Defendants or any of them of any liability or wrongdoing whatsoever, or a finding by this Court as to the merits of any claim or defense asserted or that could have been asserted in this Action.
23. This Order shall constitute a judgment for purposes of FRCP 58. 24. In the event that the Settlement Agreement does not become effective in accordance with its terms, then this Order and Final Judgment shall be vacated, the Settlement Class shall be decertified and the Settlement Agreement and all orders entered in connection therewith shall become null and void and of no further force and effect.
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The Court shall, at a later date, issue a separate Memorandum further explaining its findings and reasoning regarding final approval of the Settlement.

Dated: December 27, 2013 Brooklyn, New York

SO ORDERED:
/s/ Pamela K. Chen PAMELA K. CHEN United States District Judge

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1
2 3 NAME 4 1. Adams, Shelley
2. Astle, Joanne
5 3. Bentz, Sharon 6 4. Bowden, Carrie
5. Conway, Helene
7 6. Cornette, Cindy 8 7. Craane, Janine
8. Craane, Valery
9 9. Cuddy Al-Gailani, Sarah 10 10. De Marco, Edythe M.
11. Dinsmore, Susan
11 12. Eastom, Rebecca 12 13. Gleason, Barbara
14. Golden, Leslie
13 15. Grimm, Donna McKenzie 14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

EXHIBIT A
List of Opt-Outs
16. Heckman, Julie 17. Heckman, Wendy 18. Hernandez, Maria 19. Hudson, Sara 20. Karns, Maria 21. Ketchum, Susan 22. Kirby, Margaret 23. Kuo, Julia 24. Larsen, Katherine 25. Liberatos, Irene 26. Loy, Rhonda 27. Lueken, Laura 28. Manasco, Dawn 29. Miller, Elizabeth 30. Mitchell, Kimberly

31. Mullin, Mary 32. Nguyen, Nancy 33. Nickels, Shannon 34. Palombo, Susan 35. Pearson, Lauren 36. Posey, Julie 37. Reich, Robin 38. Rosfelder, Kathleen 39. Schwartz, Fern 40. Sillerud, Nora Anderson 41. Spilly-Shahinian, Karen 42. True, Rebecca 43. Wharton, Catherine 44. Wise, Pamela

 
 Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 1 of 29
U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:10−cv−01413−PKC−AKT

CLOSED

Calibuso et al v. Bank of America Corporation et al Assigned to: Judge Pamela K. Chen Referred to: Magistrate Judge A. Kathleen Tomlinson Cause: 42:2000 Job Discrimination (Sex)
Plaintiff

Date Filed: 03/30/2010 Date Terminated: 04/30/2014 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Judy Calibuso

represented by Adam Todd Klein Outten & Golden LLP 3 Park Avenue 29th Flr. New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: atk@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara E. Greene Outten & Golden LLP Three Park Avenue New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: ceg@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz Outten & Golden LLP 3 Park Avenue, 29th Floor New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: jms@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody Lieff Cabraser Heimann & Bernstein LLP 275 Battery Street 29th Floor San Francisco, CA 94111 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda D. Friedman Stowell & Friedman, Ltd. 303 W Madison Suite 2600 Chicago, IL 60606 312−431−0888 Fax: 312−431−0228 Email: lfriedman@sfltd.com LEAD ATTORNEY

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 2 of 29
PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Geman Lieff, Cabraser, Heimann & Bernstein, LLP 250 Hudson Street 8th Floor New York, NY 10013 212−355−9500 Fax: 212−355−9592 Email: rgeman@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanne E. Bish Stowell & Friedman, Ltd. 303 W Madison Suite 2600 Chicago, IL 60606 312−431−0888 Fax: 312−431−0228 Email: sbish@sfltd.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alison M. Stocking Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street 29th Floor San Francisco, CA 94111 415−956−1000 Fax: 415−956−1008 ATTORNEY TO BE NOTICED
Frederick K. Brewington Law Offices of Frederick K. Brewington 556 Peninsula Boulevard Hempstead, NY 11550 516−489−6959 Fax: 516−489−6958 Email: fred@brewingtonlaw.com ATTORNEY TO BE NOTICED
Heather H. Wong Lieff Cabraser Heimann & Bernstein LLP 275 Battery Street 29th Floor San Francisco, CA 94111 415−956−1000 Fax: 415−956−1008 Email: hwong@lchb.com ATTORNEY TO BE NOTICED
Jennifer Lin Liu Outten & Golden LLP 3 Park Avenue 29th Floor New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: jliu@outtengolden.com ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 3 of 29

Mariko Hirose Outten and Golden LLP 3 Park Avenue South 29th Floor New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: mhirose@outtengolden.com TERMINATED: 02/10/2012 ATTORNEY TO BE NOTICED

Reena Arora Outten & Golden LLP 3 Park Avenue New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: rarora@outtengolden.com ATTORNEY TO BE NOTICED

Shona B. Glink Stowell & Friedman, Ltd. 46 West 83rd Street Suite 4d New York, NY 10024 212−496−5690 Fax: 212−496−5691 Email: sglink@sfltd.com ATTORNEY TO BE NOTICED

Plaintiff Julie Moss

represented by Adam Todd Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara E. Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Geman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED

Frederick K. Brewington (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 4 of 29

Heather H. Wong (See above for address) ATTORNEY TO BE NOTICED

Jennifer Lin Liu (See above for address) ATTORNEY TO BE NOTICED

Mariko Hirose (See above for address) TERMINATED: 02/10/2012 ATTORNEY TO BE NOTICED

Reena Arora (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dianne Goedtel on behalf of themselves and all others similarly situated

represented by Adam Todd Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara E. Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Geman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED

Frederick K. Brewington (See above for address) ATTORNEY TO BE NOTICED

Heather H. Wong (See above for address) ATTORNEY TO BE NOTICED

Jennifer Lin Liu (See above for address) ATTORNEY TO BE NOTICED

Mariko Hirose (See above for address) TERMINATED: 02/10/2012 ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 5 of 29

Reena Arora (See above for address) ATTORNEY TO BE NOTICED

Plaintiff V. Katherine Aird

represented by Adam Todd Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara E. Greene (See above for address) ATTORNEY TO BE NOTICED

Frederick K. Brewington (See above for address) ATTORNEY TO BE NOTICED

Heather H. Wong (See above for address) ATTORNEY TO BE NOTICED

Jennifer Lin Liu (See above for address) ATTORNEY TO BE NOTICED

Mariko Hirose (See above for address) TERMINATED: 02/10/2012 ATTORNEY TO BE NOTICED

Rachel Geman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jean Evans

represented by Adam Todd Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED

Cara E. Greene (See above for address) ATTORNEY TO BE NOTICED

Frederick K. Brewington (See above for address) ATTORNEY TO BE NOTICED

Heather H. Wong

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 6 of 29

(See above for address) ATTORNEY TO BE NOTICED

Jennifer Lin Liu (See above for address) ATTORNEY TO BE NOTICED

Mariko Hirose (See above for address) TERMINATED: 02/10/2012 ATTORNEY TO BE NOTICED

Rachel Geman (See above for address) ATTORNEY TO BE NOTICED

Reena Arora (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary DeSalvatore

represented by Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED

Cara E. Greene (See above for address) ATTORNEY TO BE NOTICED

Mariko Hirose (See above for address) TERMINATED: 02/10/2012 ATTORNEY TO BE NOTICED

Rachel Geman (See above for address) ATTORNEY TO BE NOTICED

Reena Arora (See above for address) ATTORNEY TO BE NOTICED

Adam Todd Klein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kathleen Mary Wing

represented by Adam Todd Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara E. Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 7 of 29
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Geman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED
Heather H. Wong (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lin Liu (See above for address) ATTORNEY TO BE NOTICED
Reena Arora (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Maroc Howard TERMINATED: 10/04/2013
Intervenor Plaintiff Cathy Bender TERMINATED: 10/04/2013

represented by Shona B. Glink (See above for address) ATTORNEY TO BE NOTICED
represented by Shona B. Glink (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Bank of America Corporation

represented by Gershom Radin Smith Proskauer & Rose LLP Eleven Times Square New York, NY 10036 212−969−3000 Fax: 212−969−2900 Email: gsmith@proskauer.com TERMINATED: 10/04/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Baumgarten Proskauer Rose, LLP Eleven Times Square New York, NY 10036 (212) 969−3002 Fax: (212) 969−2900 Email: jbaumgarten@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine H. Parker Proskauer Rose LLP

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 8 of 29

Eleven Times Square New York, NY 10036 212−969−3009 Fax: 212−969−2900 Email: kparker@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keisha−Ann G. Gray Proskauer Rose LLP Eleven Times Square New York, NY 10036 212−969−3000 Fax: 212−969−2900 Email: kgray@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristine Kathryn Huggins Proskauer Rose LLP 11 Times Square New York, NY 10036 212−969−3000 Fax: 212−969−2900 Email: khuggins@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Pearlman Proskauer Rose LLP 70 W Madison 38th Floor Chicago, IL 60602 312−962−3545 Fax: 312−962−3551 Email: spearlman@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Merrill Lynch & Co., Inc.

represented by Gershom Radin Smith (See above for address) TERMINATED: 10/04/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Baumgarten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katharine H. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keisha−Ann G. Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristine Kathryn Huggins (See above for address) LEAD ATTORNEY

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 9 of 29

ATTORNEY TO BE NOTICED

Steven Pearlman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Merrill Lynch, Pierce, Fenner & Smith, Inc.

represented by Gershom Radin Smith (See above for address) TERMINATED: 10/04/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Baumgarten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katharine H. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keisha−Ann G. Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristine Kathryn Huggins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Pearlman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/30/2010
03/30/2010 03/30/2010 04/01/2010 04/22/2010
04/22/2010
04/22/2010

# Docket Text
1 COMPLAINT against Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. Disclosure Statement on Civil Cover Sheet completed −No,, filed by Julie Moss, Dianne Goedtel, Judy Calibuso. (Attachments: # 1 Civil Cover Sheet) (Ryan, Mary) (Entered: 03/31/2010)
FILING FEE: $ 350, receipt number 4653013095 (Ryan, Mary) (Entered: 03/31/2010)
Summons Issued as to Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Ryan, Mary) (Entered: 04/02/2010)
Case Ineligible for Arbitration (Bollbach, Jean) (Entered: 04/01/2010)
2 WAIVER OF SERVICE Returned Executed by Julie Moss, Dianne Goedtel, Judy Calibuso. Merrill Lynch, Pierce, Fenner & Smith, Inc. waiver sent on 4/5/2010, answer due 6/4/2010. (Greene, Cara) (Entered: 04/22/2010)
3 WAIVER OF SERVICE Returned Executed by Julie Moss, Dianne Goedtel, Judy Calibuso. Merrill Lynch & Co., Inc. waiver sent on 4/5/2010, answer due 6/4/2010. (Greene, Cara) (Entered: 04/22/2010)
4 WAIVER OF SERVICE Returned Executed by Julie Moss, Dianne Goedtel, Judy Calibuso. Bank of America Corporation waiver sent on 4/5/2010, answer due 6/4/2010. (Greene, Cara) (Entered: 04/22/2010)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 10 of 29

04/22/2010
04/22/2010
04/23/2010 06/02/2010 06/02/2010 06/02/2010 06/02/2010 06/02/2010
06/07/2010
06/30/2010
08/02/2010 08/06/2010 08/06/2010 09/15/2010

5 MOTION for Leave to Appear Pro Hac Vice − Heather H. Wong Filing fee $ 25, receipt number 0207−4108289. by Judy Calibuso, Dianne Goedtel, Julie Moss. (Attachments: # 1 Affidavit of Heather H. Wong In Support of Motion to Admit Counsel Pro Hac Vice, # 2 Proposed Order Admission to Practice Pro Hac Vice, # 3 Affidavit of Service) (Greene, Cara) (Entered: 04/22/2010)
6 MOTION for Leave to Appear Pro Hac Vice − Kelly M. Dermody by Judy Calibuso, Dianne Goedtel, Julie Moss. (Attachments: # 1 Affidavit of Kelly M. Dermody In Support of Motion to Admit Counsel Pro Hac Vice, # 2 Proposed Order Admission to Practice Pro Hac Vice, # 3 Affidavit of Service) (Greene, Cara) Modified on 4/23/2010 to include receipt number 0207−4108198 per call from atty.(Bollbach, Jean). (Entered: 04/22/2010)
7 ORDER granting 5 Motion for Leave to Appear Pro Hac VicePro Hac Vice; granting 6 Motion for Leave to Appear Pro Hac VicePro Hac Vice. Ordered by Magistrate Judge Michael L. Orenstein on 4/23/2010. (Imrie, Robert) (Entered: 04/23/2010)
8 NOTICE of Appearance by Gershom Radin Smith on behalf of Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (aty to be noticed) (Smith, Gershom) (Entered: 06/02/2010)
9 NOTICE of Appearance by Joseph Baumgarten on behalf of Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (aty to be noticed) (Baumgarten, Joseph) (Entered: 06/02/2010)
10 NOTICE of Appearance by Katherine H. Parker on behalf of Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (aty to be noticed) (Parker, Katherine) (Entered: 06/02/2010)
11 Corporate Disclosure Statement by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 06/02/2010)
12 STIPULATION re 1 Complaint, between the undersigned, that Defendants' time to answer or respond to Plaintiffs' Class Action Complaint shall be extended from 6−4−10 through 6−30−10. by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 06/02/2010)
13 ORDER TO ANSWER re 12 Stipulation, filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. Bank of America Corporation answer due 6/30/2010; Merrill Lynch & Co., Inc. answer due 6/30/2010; Merrill Lynch, Pierce, Fenner & Smith, Inc. answer due 6/30/2010. Ordered by Magistrate Judge Michael L. Orenstein on 6/7/2010. (Imrie, Robert) (Entered: 06/07/2010)
14 STIPULATION that the Plaintiffs may serve their Amended Class Action Complaint on or before 8/2/2010 and Defendants will answer or otherwise respond to Plaintiffs' Class Action Complaint on or before 9/15/2010 by Bank of America Corporation, Judy Calibuso, Dianne Goedtel, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Julie Moss (Parker, Katherine) (Entered: 06/30/2010)
15 AMENDED COMPLAINT against Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., filed by Julie Moss, Dianne Goedtel, Judy Calibuso. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Klein, Adam) (Entered: 08/02/2010)
16 NOTICE of Appearance by Kelly M. Dermody on behalf of Judy Calibuso, Dianne Goedtel, Julie Moss, V. Katherine Aird, Jean Evans (aty to be noticed) (Dermody, Kelly) (Entered: 08/06/2010)
17 NOTICE of Appearance by Heather H. Wong on behalf of V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (aty to be noticed) (Wong, Heather) (Entered: 08/06/2010)
18 Defendants' ANSWER to 15 Amended Complaint, by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 09/15/2010)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 11 of 29

09/27/2010 09/27/2010 10/04/2010 10/04/2010 10/08/2010 10/12/2010 10/13/2010 10/18/2010 10/26/2010 10/29/2010 11/02/2010 12/02/2010
12/21/2010

19 NOTICE of Appearance by Jennifer Lin Liu on behalf of V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (aty to be noticed) (Liu, Jennifer) (Entered: 09/27/2010)
Magistrate Judge William D. Wall added. Magistrate Judge Michael L. Orenstein no longer assigned to case. (Vaughn, Terry) (Entered: 09/27/2010)
20 Letter MOTION for Hearing and preliminary conference to address certain discovery issues and a schedule for discovery by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Proposed Order Joint Stipulation of Confidentiality and Proposed Protective Order) (Baumgarten, Joseph) (Entered: 10/04/2010)
21 ORDER granting 20 Motion for conference to the extent that an initial conference has been scheduled for 10/22/10 before the undersigned. See order and attachment.Ordered by Magistrate Judge William D. Wall on 10/4/2010. (Attachments: # 1 WDW rules) (Disbrow, Sandra) (Entered: 10/04/2010)
22 Letter MOTION to Adjourn Conference scheduled for 10−22−10 to 11−2−10 by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Baumgarten, Joseph) (Entered: 10/08/2010)
ORDER granting 22 Motion to Adjourn Conference from 10/22/10 to 11/2/10 at 11:30 a.m. Ordered by Magistrate Judge William D. Wall on 10/12/2010. (Hepworth, F.) (Entered: 10/12/2010)
23 MOTION to Compel by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Klein, Adam) (Entered: 10/13/2010)
24 RESPONSE to Motion re 23 MOTION to Compel filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Exhibit Transcript dtd 11−13−02 (Hnot v. Willis Group), # 2 Exhibit Transcript dtd 1−9−03 (Hnot v. Willis Group)) (Baumgarten, Joseph) (Entered: 10/18/2010)
25 First MOTION for Discovery (30(b)(6) deposition related to Electronically Stored Information and data) by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Greene, Cara) (Entered: 10/26/2010)
26 RESPONSE to Motion re 25 First MOTION for Discovery (30(b)(6) deposition related to Electronically Stored Information and data)First MOTION for Discovery (30(b)(6) deposition related to Electronically Stored Information and data) filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 10/29/2010)
27 Minute Order for proceedings held before Magistrate Judge William D. Wall on 11/2/2010: denying 23 , 25 without prejudice. See attached order for additional rulings. Next status conference will be held on 2/10/11. Ordered by Judge William D. Wall on 11/2/10. c/g (Disbrow, Sandra) (Entered: 11/02/2010)
28 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on NOVEMBER 02, 2010,CIVIL CAUSE FOR HEARING HELD before MAG. JUDGE WILLIAM D. WALL. Court Reporter/Transcriber TRACY GRIBBEN @ TERRY GRIBBEN'S TRANSCRIPTION SERVICE 27 BEACH ROAD, UNIT 4 MONMOUTH BEACH, NJ 07750, Telephone number TRACY GRIBBEN (732) 263−0044; (800) 603−6212, Fax No. (732) 263−0075. Email address: WWW.TGRIBBENTRANSCRIPTION.COM. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/23/2010. Redacted Transcript Deadline set for 1/3/2011. Release of Transcript Restriction set for 3/2/2011.KEITH ANGELO JONES. (Jones, Keith) (Entered: 12/02/2010)
29 Letter with Exhibit A by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (Geman, Rachel) (Entered: 12/21/2010)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 12 of 29

12/21/2010
12/21/2010 12/22/2010 12/22/2010 12/27/2010 12/28/2010 01/03/2011 01/03/2011 01/03/2011 01/05/2011
01/12/2011 01/13/2011 01/13/2011 01/13/2011 01/26/2011
01/26/2011

ELECTRONIC ORDER re 29 Letter filed by plaintiffs. The request is denied without prejudice to renew for failure to comply with the undersigned's individual rules. Any request for court intervention, including scheduling of a conference, must be electronically filed as a "Motion," not a letter. Ordered by Judge William D. Wall on 12/21/2010. (Disbrow, Sandra) (Entered: 12/21/2010)
30 Letter MOTION for Hearing to address certain discovery issues, with Exhibit A by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Geman, Rachel) (Entered: 12/21/2010)
31 NOTICE of Appearance by Mariko Hirose on behalf of V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (aty to be noticed) (Hirose, Mariko) (Entered: 12/22/2010)
32 Letter MOTION for Hearing by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Geman, Rachel) (Entered: 12/22/2010)
33 Letter from Katherine H. Parker, Esq. to Judge Wall, in responses to Plaintiffs' 12/21/10 letter, by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 12/27/2010)
34 Letter in responses to Plaintiff 12/22/10 to your Honor by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 12/28/2010)
35 NOTICE of Change of Address by Katherine H. Parker effective January 18, 2011 from 1585 Broadway Ny NY 10036 to Eleven Time Square, NY NY 10036−8299. (Parker, Katherine) (Entered: 01/03/2011)
36 NOTICE of Change of Address by Gershom Radin Smith , effectice January 18, 2011, Proskauer Rose LLP will move from 1585 Broadway New York, NY 10036 to Eleven Time Square, New York NY 10036−8299. (Smith, Gershom) (Entered: 01/03/2011)
37 NOTICE of Change of Address by Joseph Baumgarten , effective January 18, 2011, Proskauer Rose LLP will from 1585 Broadway New York, NY 10036 to Eleven Time Square New York, NY 10036−8299. (Baumgarten, Joseph) (Entered: 01/03/2011)
ELECTRONIC ORDER granting 30 Motion to the the extent that a conference has been scheduled for 1/13/11 at 11:00 a.m. in courtroom 820 of the federal courthouse in Central Islip. Ordered by Judge William D. Wall on 1/5/2011. (Disbrow, Sandra) (Entered: 01/05/2011)
38 NOTICE of Appearance by Heather H. Wong on behalf of V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (notification declined or already on case) (Wong, Heather) (Entered: 01/12/2011)
39 NOTICE of Appearance by Frederick K. Brewington on behalf of V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (aty to be noticed) (Brewington, Frederick) (Entered: 01/13/2011)
Minute Entry for proceedings held before Magistrate Judge William D. Wall:Status Conference held on 1/13/2011 (Hepworth, F.) Modified on 1/14/2011−the conference was held on 1/13/11 (Talbott, Thomas). (Entered: 01/14/2011)
40 PRETRIAL ORDER The next status conference will be held on 2/10/11. Ordered by Magistrate Judge William D. Wall on 1/13/2011. (Hepworth, F.) Modified on 1/14/2011 changing the filed date to 1/13/11(Talbott, Thomas). (Entered: 01/14/2011)
41 STIPULATION AMENDMENT to the Joint Stipulation and [Proposed] Protective Order filed as an Attachment 1 to the Letter Motion filed on 10−4−10 (docket entry 20). by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 01/26/2011)
42 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on JANUARY 13, 2011,CIVIL CAUSE FOR ORAL ARGUMENT HELD before MAG. JUDGE WILLIAM D. WALL. Court Reporter/Transcriber TYPING AT YOUR DOORSTEP(R. GRANT), Telephone number (888) 866−5134 FAX 800−860−5722. Email address: TAYDS@COURT−TRANSCRIPTS.NET. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 13 of 29

02/08/2011
02/08/2011
02/08/2011 02/08/2011 02/09/2011 02/09/2011 02/14/2011 02/16/2011 02/17/2011 02/18/2011 02/18/2011 02/22/2011

purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/16/2011. Redacted Transcript Deadline set for 2/28/2011. Release of Transcript Restriction set for 4/26/2011.KEITH ANGELO JONES. (Jones, Keith) (Entered: 01/26/2011)
ELECTRONIC ORDER: The plaintiffs are advised that the court will not consider their letter submission dated 2/7/11. They may electronically file a status letter not to exceed three pages. Counsel is further directed to review the undersigned's individual rules, particularly those regarding filing, page limitation, formatting, and fax limitations. Ordered by Judge William D. Wall on 2/8/2011. (Disbrow, Sandra) (Entered: 02/08/2011)
43 Letter to Magistrate Judge Wall from Katharine Parker of Proskauer on behalf of defendants dated 2−8−10 regarding the status of discovery pursuant to Judge Wall's directive dated 11−2−10 by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Additional attachment(s) added on 2/9/2011: # 1 Attachment 1, # 2 Attachment 2) (Glueckert, Lisa). Modified, added 2 attachments to the docket entry, as per request of Louis Bigliani on 2/9/2011 (Glueckert, Lisa). (Entered: 02/08/2011)
44 ORDER: For the reasons set forth in the attached order, the stipluation and protective order submitted as [20−1] is So Ordered, with the exception of paragraph 7, which is stricken. The amendment 41 to the order is hereby So Ordered. Ordered by Judge William D. Wall on 2/8/2011. (Disbrow, Sandra) (Entered: 02/08/2011)
45 Letter to The Honorable Magistrate William D. Wall from Rachel Geman Pursuant to Directives dated 11/2/10 and 2/8/11 by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (Geman, Rachel) (Entered: 02/08/2011)
ELECTRONIC ORDER: The status conference scheduled for 2/10/11 has been cancelled. An order of recusal will be issued forthwith. Ordered by Judge William D. Wall on 2/9/2011. (Disbrow, Sandra) (Entered: 02/09/2011)
46 ORDER OF RECUSAL: Magistrate Judge William D. Wall recused pursuant to 28 U.S.C., Section 455(a). Case reassigned to Magistrate Judge E. Thomas Boyle for all further referral proceedings. Ordered by Magistrate Judge William D. Wall on 2/9/2011. Motions referred to E. Thomas Boyle. (Mahon, Cinthia) (Entered: 02/09/2011)
47 Letter MOTION for Hearing re 45 Letter to Honorable E. Thomas Boyle by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Wong, Heather) (Entered: 02/14/2011)
ENDORSED ORDER granting 47 Motion for Hearing. A conference shall be held on February 22, 2011 at 11:00 a.m. Counsel shall be present. Ordered by Magistrate Judge E. Thomas Boyle on 2/16/2011. (Joy, Dolores) (Entered: 02/16/2011)
48 Letter MOTION to Adjourn Conference set for 2−22−11. Parties are available for a conference on 2−23−11 or such other dates that are convenient for the Court by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 02/17/2011)
ENDORSED ORDER granting 48 Motion to Adjourn Conference. Application is granted. The conference is rescheduled to February 23, 2011 at 10:00 a.m. Ordered by Magistrate Judge E. Thomas Boyle on 2/18/2011. (Joy, Dolores) (Entered: 02/18/2011)
49 Letter MOTION for pre motion conference to discuss Defendants' anticipated motion for partial judgment on the pleadings and/or partial summary judgment under FRCP 12(c) and/or 56(b) by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 02/18/2011)
ORDER granting 49 Motion for Pre Motion Conference. By letter dated February 18, 2011, defendants requested a pre−motion conference in anticipation of filing a motion for partial judgment on the pleadings and/or partial summary judgment pursuant to Federal Rule of Civil Procedure Rules 12(c) and/or 56. IT IS HEREBY ORDERED

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 14 of 29

02/23/2011 02/23/2011 03/04/2011
03/04/2011 03/11/2011 03/11/2011 03/14/2011 03/25/2011

that defendants' request is granted. Counsel for the parties to this action shall participate in a telephone pre−motion conference on March 4, 2011 at 4:00 p.m. At that time, counsel for defendants shall initiate the call and, with all parties on the line, contact Chambers at 631−712−5670. Prior to the conference, counsel for plaintiffs may submit a letter to the Court, in accordance with the Court's Individual Rule III.A, explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/22/2011. (Graves, Kelly) (Entered: 02/22/2011)
50 Minute Entry for proceedings held before Magistrate Judge E. Thomas Boyle:Status Conference held on 2/23/2011, ( Status Conference by phone set for 3/4/2011 at 04:30 PM before Magistrate Judge E. Thomas Boyle.) ( Telephone Conference to be held after telephone conference before Judge Bianco) The conference call should be made through the teleconference operator provided by your long−distance service (e.g., AT&T, MCI, Sprint). (So ordered by Mag. Judge Boyle on 2/23/11). (Tape #10:14−11:15, 1:03−1:30.) (Lundy, Lisa) (Entered: 02/23/2011)
51 RESPONSE in Opposition re 49 Letter MOTION for pre motion conference to discuss Defendants' anticipated motion for partial judgment on the pleadings and/or partial summary judgment under FRCP 12(c) and/or 56(b)Letter MOTION for pre motion conference to discuss Defendants' anticipated motion for partial judgment on the pleadings and/or partial summary judgment under FRCP 12(c) and/or 56(b) filed by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Klein, Adam) (Entered: 02/23/2011)
52 Minute Entry for proceedings held before Magistrate Judge E. Thomas Boyle:Status Conference by phone held on 3/4/2011, For the reasons discussed on the record, since the parties have failed to agree to the priority disclosure and stay recommended by the court at the 2/23/11, the court sets the following schedule for all discovery including any experts; class discovery shall be completed by 6/3/11; Merits discovery completed by 12/5/11; Class & merit disclosure shall proceed on simultaneous dual tracks. It is noted that this action commenced 12 months ago. ( Final Pretrial Conference set for 12/21/2011 01:30 PM before Magistrate Judge E. Thomas Boyle.) Lastly the parties are directed to Local Civil Rule 26.5 which is applicable to this action. (So ordered by Mag. Judge Boyle on 3/4/11). (Tape #4:36−4:59.) (Lundy, Lisa) (Entered: 03/07/2011)
53 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 3/4/2011; submit a letter to the court by 3/11/11 (Court Reporter ftr 4:14 − 4:21.) (Bollbach, Jean) (Entered: 03/08/2011)
54 STIPULATION Joint Stipulation and [Proposed] Order Withdrawing V. Katherine Aird as a Class Representative by V. Katherine Aird, Bank of America Corporation, Judy Calibuso, Jean Evans, Dianne Goedtel, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Julie Moss (Geman, Rachel) (Entered: 03/11/2011)
55 Letter Joint Letter to Judge Bianco re Second Amended Complaint and Proposed Briefing Schedule by V. Katherine Aird, Bank of America Corporation, Judy Calibuso, Jean Evans, Dianne Goedtel, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Julie Moss (Attachments: # 1 Proposed Order Joint Stipulation and [Proposed] Order) (Wong, Heather) (Entered: 03/11/2011)
56 ORDER allowing plaintiffs to file second amended complaint and settign breifing schedule for defts proposed Rule 12(c) motion − see document for full details.. Ordered by Judge Joseph F. Bianco on 3/14/2011. (Bollbach, Jean) (Entered: 03/23/2011)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on MARCH 04, 2011,CIVIL CAUSE FOR TELEPHONE CONFERENCE HELD before MAG. JUDGE E. THOAMS BOYLE. Court Reporter/Transcriber LINDA FERRARA FOR TYPING AT YOUR DOORSTEP, Telephone number (888) 866−5134; Fax No. (800) 860−5722. Email address: TAYDS@COURT−TRANSCRIPTS.NET. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/15/2011. Redacted Transcript Deadline set for 4/25/2011. Release of Transcript Restriction set for 6/23/2011.KEITH ANGELO JONES. (Jones, Keith) (Entered: 03/25/2011)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 15 of 29

04/06/2011 04/08/2011 04/12/2011
04/15/2011 04/15/2011 04/15/2011
04/18/2011 04/22/2011 04/25/2011 04/29/2011

58 STIPULATION and Proposed Protective Order Regarding Materials to be filed Under Seal by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Baumgarten, Joseph) (Entered: 04/06/2011)
ORDER re 58 Stipulation filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. So Ordered by Magistrate Judge E. Thomas Boyle on 4/8/2011. (Minerva, Deanna) (Entered: 04/08/2011)
59 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on FEBRUARY 23, 2011,CIVIL CAUSE FOR CONFERENCE HELD before MAG. JUDGE E. THOMAS BOYLE. Court Reporter/Transcriber LINDA FERRARA FOR TYPING AT YOUR DOORSTEP, Telephone number R. GRANT; (888) 866−5134; Fax No. (800) 860−5722. Email address: TAYDS@court−transcripts.net. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/3/2011. Redacted Transcript Deadline set for 5/13/2011. Release of Transcript Restriction set for 7/11/2011.KEITH ANGELO JONES. (Jones, Keith) (Entered: 04/12/2011)
60 Letter MOTION to Stay by Bank of America Corporation, Judy Calibuso, Jean Evans, Dianne Goedtel, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Julie Moss. (Attachments: # 1 Proposed Order) (Klein, Adam) (Entered: 04/15/2011)
61 Letter MOTION for Extension of Time to File Defendants' Answer to Second Amended Complaint, Defendants' Partial Motion to Dismiss, Plaintiffs' Opposition to Defendants' Motion to Dismiss, and Defendants' Reply in Support of their Motion to Dismiss by Bank of America Corporation, Judy Calibuso, Jean Evans, Dianne Goedtel, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Julie Moss. (Klein, Adam) (Entered: 04/15/2011)
ORDER granting 61 Motion for Extension of Time to File. By letter dated April 15, 2011, the parties requested an extension of time for defendants to file their answer and an extension of the briefing schedule for defendants' partial motion to dismiss. IT IS HEREBY ORDERED that the parties' request for an extension is granted. Defendants shall file their answer by June 16, 2011. The parties shall adhere to the following amended briefing schedule for defendants' partial motion to dismiss: defendants shall file their motion by June 16, 2011; plaintiffs shall file their opposition by July 14, 2011; and defendants shall file their reply by August 5, 2011. Oral argument is scheduled for Wednesday, August 24, 2011 at 2 p.m. IT IS FURTHER ORDERED that any requests to stay discovery should be directed to Magistrate Judge Boyle. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/15/2011. (Graves, Kelly) (Entered: 04/15/2011)
ENDORSED ORDER denying 60 Motion to Stay. The application for a stay is denied based on the absence of a necessary predicate for such relief, i.e., good cause. SEE Rule 26(c). A settlement conference is part and parcel of every civil action in this court and does not satisfy the "good cause" requirement. Ordered by Magistrate Judge E. Thomas Boyle on 4/18/2011. (Joy, Dolores) (Entered: 04/18/2011)
62 Letter Motion For Reconsideration to judge Thomas Boyle dated 4/21/2011 by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Baumgarten, Joseph) Modified on 4/25/2011 (Lundy, Lisa). (Entered: 04/22/2011)
ORDER denying 62 Motion for Reconsideration: Application denied for the same reason set forth in the Order dated April 18, 2011. The movant has failed to call to the Court's attention any facts or law that would modify that Order. Moreover, no reason has been set forth as to why any of the facts herein were not brought to the Court's attention in the initial application. So Ordered by Magistrate Judge E. Thomas Boyle on 4/25/2011. (Minerva, Deanna) (Entered: 04/25/2011)
63 Letter MOTION for Extension of Time to File Answer to the Second Amended Complaint, Defendants' Partial Motion to dismiss, Plaintiffs' opposition to Dismiss and Defendants' Reply in Support of their Motion to Dismiss by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc..

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 16 of 29

05/02/2011 05/05/2011 05/05/2011
06/14/2011 06/14/2011
06/14/2011 06/27/2011

(Parker, Katherine) (Entered: 04/29/2011)
SCHEDULING ORDER: By letter dated April 29, 2011, defendants requested an amendment to the briefing schedule for defendants' motion to dismiss. Plaintiffs have consented to this request. IT IS HEREBY ORDERED that defendants' request is granted. Defendants shall file their answer and their partial motion to dismiss on or before May 6, 2011. Plaintiff shall file their opposition to defendants' motion to dismiss on or before June 14, 2011. Defendants shall file their reply on or before July 8, 2011. Oral argument will be held on Friday, August 5, 2011 at 11:00 a.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/2/2011. (Graves, Kelly) (Entered: 05/02/2011)
64 NOTICE by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. re 55 Letter, Defendants' Answer to Second Amended Class and Collective Action Complaint (Parker, Katherine) (Entered: 05/05/2011)
65 MOTION to Dismiss Partial Motion to Dismiss by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Memorandum in Support of Defendants' Partial Motion to Dismiss, # 2 Declaration of Katharine H. Parker in Support of Defendants' Partial Motion to Dismiss, # 3 Exhibit A to Parker Declaration, # 4 Exhibit B to Parker Declaration, # 5 Exhibit C to Parker Declaration, # 6 Exhibit D to Parker Declaration, # 7 Exhibit E to Parker Declaration, # 8 Exhibit F to Parker Declaration, # 9 Exhibit G to Parker Declaration, # 10 Exhibit H to Parker Declaration, # 11 Exhibit I to Parker Declaration, # 12 Exhibit J to Parker Declaration, # 13 Exhibit K to Parker Declaration, # 14 Exhibit L to Parker Declaration, # 15 Exhibit M to Parker Declaration, # 16 Exhibit N to Parker Declaration, # 17 Exhibit O to Parker Declaration, # 18 Exhibit P to Parker Declaration, # 19 Exhibit Q to Parker Declaration, # 20 Exhibit R to Parker Declaration, # 21 Exhibit S to Parker Declaration, # 22 Exhibit T to Parker Declaration, # 23 Exhibit U to Parker Declaration, # 24 Exhibit V to Parker Declaration, # 25 Exhibit W to Parker Declaration, # 26 Exhibit X to Parker Declaration, # 27 Exhibit Y to Parker Declaration, # 28 Exhibit Z to Parker Declaration, # 29 Exhibit AA to Parker Declaration, # 30 Exhibit AB to Parker Declaration, # 31 Exhibit AC to Parker Declaration, # 32 Exhibit AD to Parker Declaration, # 33 Exhibit AE to Parker Declaration, # 34 Exhibit AF to Parker Declaration, # 35 Exhibit AG to Parker Declaration, # 36 Exhibit AH to Parker Declaration, # 37 Exhibit AI to Parker Declaration, # 38 Exhibit AJ to Parker Declaration) (Parker, Katherine) (Entered: 05/05/2011)
66 MEMORANDUM in Opposition re 65 MOTION to Dismiss Partial Motion to Dismiss [REDACTED] filed by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Geman, Rachel) (Entered: 06/14/2011)
67 DECLARATION re 66 Memorandum in Opposition OF HEATHER H. WONG IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' PARTIAL MOTION TO DISMISS by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49) (Geman, Rachel) (Entered: 06/14/2011)
68 CERTIFICATE OF SERVICE by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss VIA FEDERAL EXPRESS (Geman, Rachel) (Entered: 06/14/2011)
69 Letter MOTION for pre motion conference by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Exhibit U.S. Supreme Court Decision [ Wal−Mart Stores, Inc v. Dukes]) (Parker, Katherine) (Entered: 06/27/2011)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 17 of 29

06/29/2011 07/08/2011 07/08/2011
07/08/2011
07/18/2011 08/09/2011 08/31/2011 09/01/2011 09/02/2011 09/09/2011 09/20/2011 09/26/2011 09/27/2011

70 RESPONSE to Motion re 69 Letter MOTION for pre motion conference filed by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Geman, Rachel) (Entered: 06/29/2011)
71 REPLY to Response to Motion re 65 MOTION to Dismiss Partial Motion to Dismiss Reply Memorandum of Law in Support of Defendants' Partial Motion to Dismiss filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 07/08/2011)
72 AFFIDAVIT/DECLARATION in Support re 65 MOTION to Dismiss Partial Motion to Dismiss Declaration of Katharine H. Parker, Esq in support of Defendants' Partial Motion to Dismiss filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Exhibit) (Parker, Katherine) (Entered: 07/08/2011)
SCHEDULING ORDER: By letter dated June 27, 2011, defendants requested a pre−motion conference in light of the Supreme Court's decision in Wal−Mart Stores, Inc v. Dukes. IT IS HEREBY ORDERED that defendants' request is granted. Counsel for the parties to this action shall participate in a telephone conference on Monday, July 18, 2011 at 1:30 p.m. At that time, counsel for defendants shall initiate the call and, with all parties on the line, contact Chambers at 631−712−5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/8/2011. (Graves, Kelly) (Entered: 07/08/2011)
97 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 7/18/2011; motion to be filed by 8/9/11; response by 9/9/11; reply by 9/23/11; oral argument scheduled for 8/5/11 is adjourned to 10/26/11 (Court Reporter ftr 2:27 − 2:35.) (Bollbach, Jean) (Entered: 07/28/2011)
98 MOTION to Dismiss and/or Strike Class Claims Pursuant to Wal−Mart Stores, Inc. v. Dukes by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Memorandum in Support) (Parker, Katherine) (Entered: 08/09/2011)
99 Letter MOTION for pre motion conference by Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit A) (Klein, Adam) (Entered: 08/31/2011)
100 STIPULATION re 99 Letter MOTION for pre motion conference , 98 MOTION to Dismiss and/or Strike Class Claims Pursuant to Wal−Mart Stores, Inc. v. Dukes , Briefing Schedule for Motion to Strike Class Claims by Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss (Greene, Cara) (Entered: 09/01/2011)
101 SCHEDULING ORDER: defts to submit letter in response to plaintiffs letter request on or before 9/9/11; deadline for plaintiffs to file response is 9/30/11; defts reply by 10/21/11. Ordered by Judge Joseph F. Bianco on 9/2/2011. (Bollbach, Jean) (Entered: 09/09/2011)
102 RESPONSE in Opposition re 99 Letter MOTION for pre motion conference filed by All Defendants. (Parker, Katherine) (Entered: 09/09/2011)
103 NOTICE by Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss of Right to Sue as to Mary DeSalvatore (Attachments: # 1 Exhibit Notice of Right to Sue as to Mary DeSalvatore) (Hirose, Mariko) (Entered: 09/20/2011)
104 MOTION for Extension of Time to File by V. Katherine Aird, Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss. (Geman, Rachel) (Entered: 09/26/2011)
SCHEDULING ORDER: The Court has received plaintiffs' August 31, 2011 letter requesting a pre−motion conference regarding plaintiffs' proposed amended complaint, as well as defendants' September 9, 2011 opposition to plaintiffs' request. The Court has also received plaintiffs' September 26, 2011 letter requesting an extension of time, in light of the pending request to file an amended complaint, to file their opposition to defendants' motion to strike. IT IS HEREBY ORDERED that counsel to the parties in this action shall participate in a telephone conference on Tuesday, October 4, 2011 at 1:30 p.m. to discuss these issues. At that time, counsel for plaintiffs shall initiate the call and, with all parties on the line, contact Chambers at 631−712−5670. IT IS FURTHER ORDERED that the briefing schedule on defendants' motion to strike is

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 18 of 29

10/04/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/06/2011 10/06/2011 10/06/2011 10/07/2011
10/11/2011 10/26/2011
11/22/2011

adjourned until plaintiffs' request to amend is resolved. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/27/2011. (Graves, Kelly) (Entered: 09/27/2011)
105 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 10/4/2011; motion to be filed by 10/6/11 (3rd amended complaint); renewed motion by 10/26/11; response by 11/22/11; reply by 12/6/11; oral argument set for 1/6/12 at 1:00 pm; Discovery stayed. Third amended complaint to be refiled as separate file. (Tape #ftr 1:40 − 1:58.) (Bollbach, Jean) (Entered: 10/04/2011)
106 NOTICE of Appearance by Reena Arora on behalf of Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss, Mary DeSalvatore (aty to be noticed) (Arora, Reena) (Entered: 10/05/2011)
107 ORDER. The final conference scheduled for December 12, 2011 at 1:30 p.m. is canceled based on the stay of discovery. Plaintiffs' counsel is directed to serve a copy of this order on all parties upon receipt. Ordered by Magistrate Judge E. Thomas Boyle on 10/5/2011. (Joy, Dolores) (Entered: 10/05/2011)
108 AMENDED COMPLAINT THIRD AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT against All Defendants, filed by Julie Moss, Dianne Goedtel, Jean Evans, Judy Calibuso, Mary DeSalvatore. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Klein, Adam) (Entered: 10/05/2011)
109 Letter MOTION to Adjourn Conference Oral Argument on January 6, 2012 by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Hirose, Mariko) (Entered: 10/05/2011)
SCHEDULING ORDER: By letter dated October 5, 2011, plaintiffs requested, with defendants' consent, that the oral argument scheduled for January 6, 2012 be adjourned. IT IS HEREBY ORDERED that plaintiffs' request is granted. Oral argument will now be held on January 16, 2011 at 4:30 PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/6/2011. (O'Neil, Jacquelyn) (Entered: 10/06/2011)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the oral argument scheduled for January 16, 2012 is hereby adjourned to January 17, 2012 at 4:30PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/6/2011. (O'Neil, Jacquelyn) (Entered: 10/06/2011)
110 MOTION for Leave to Appear Pro Hac Vice of Alison M. Stocking Filing fee $ 25, receipt number 0207−5063859. by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Affidavit, # 2 Proposed Order, # 3 Certificate of Service) (Geman, Rachel) (Entered: 10/06/2011)
ORDER granting 110 Motion for Leave to Appear pro hac vice as to attorney Alison M. Stocking. Ms. Stocking is permitted to argue or try this case in whole or in part as counsel or advocate. Ms. Stocking shall register for ECF. Registration is available online at the E.D.N.Y. homepage. Once registered, Ms. Stocking shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ordered by Magistrate Judge E. Thomas Boyle on 10/7/2011. (Joy, Dolores) (Entered: 10/07/2011)
111 NOTICE of Appearance by Alison M. Stocking on behalf of Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss (aty to be noticed) (Stocking, Alison) (Entered: 10/11/2011)
112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of defendants' Motion to Dismiss and/or Strike Class Claims in plaintiffs' Third Amended Complaint, # 2 Declaration Declaration of Katharine H. Parker, Esq., # 3 Exhibit A, # 4 Exhibit B) (Parker, Katherine) (Entered: 10/26/2011)
113 MEMORANDUM in Opposition TO DEFENDANTS MOTION TO DISMISS AND/OR STRIKE CLASS CLAIMS IN PLAINTIFFS THIRD AMENDED COMPLAINT filed by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Declaration of Alison M. Stocking and Exhibit A) (Geman, Rachel) (Entered: 11/22/2011)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 19 of 29

12/06/2011 12/08/2011 01/13/2012 01/13/2012 01/13/2012 01/16/2012 01/17/2012 01/20/2012 01/20/2012
01/23/2012 02/08/2012 02/10/2012 02/24/2012

114 REPLY to Response to Motion re 112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Reply Memorandum of Law in Support of Defendants' Motion to Dismiss and/or Strike Class Claims in Plaintiffs' Third Amended Complaint filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 12/06/2011)
ORDER denying as moot the 109 Motion to Adjourn Conference. The oral argument has been rescheduled. Accordingly, the motion is moot. Ordered by Judge Joseph F. Bianco on 12/8/2011. (O'Neil, Jacquelyn) Modified docket text per the DQA on 1/3/2012 (Mahon, Cinthia). (Entered: 12/08/2011)
SCHEDULING ORDER: Due to a conflict in the Court's Calendar, IT IS HEREBY ORDERED that the oral argument originally scheduled for January 17, 2012 at 4:30 p.m. is rescheduled for January 17, 2012 at 2:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/13/2012. (O'Neil, Jacquelyn) (Entered: 01/13/2012)
115 REPLY in Support re 112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Notice of Supplemental Authority in Support of Defendants' Motion to Dismiss and/or Strike Class Claims in Plaintiffs' Third Amended Complaint filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 01/13/2012)
116 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss Plaintiffs Notice Of Supplemental Authority Relevant To Motion To Dismiss And/Or Strike Class Claims In Plaintiffs Third Amended Complaint with Exhibits A−B (Geman, Rachel) (Entered: 01/13/2012)
117 REPLY in Support re 112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Notice of Additional Supplemental Authority in Support of Defendants' Motion to Dismiss and/or Strike Class Claims in Plaintiffs' Third Amended Complaint filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 01/16/2012)
118 Minute Entry for proceedings held before Judge Joseph F. Bianco:Status Conference/ Oral argument held on 1/17/2012 (Tape #ftr 2:09 − 3:04.) (Bollbach, Jean) (Entered: 01/19/2012)
119 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss Plaintiffs Notice Of Supplemental Authority Relevant To Motion To Dismiss And/Or Strike Class Claims In Plaintiffs Third Amended Complaint With Exhibit A (Geman, Rachel) (Entered: 01/20/2012)
120 REPLY in Opposition re 119 Notice(Other), Letter from Katherine H. Parker to Judge Bianco in response to Plaintiffs' Notice of Supplemental Authority and to ask that the Court consider this response in its determination of Defendants' motion to dismiss and/or strike the class claims. filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 01/20/2012)
121 REPLY in Support re 119 Notice(Other), Letter from R. Geman to Judge Bianco Regarding Plaintiffs' Notice of Supplemental Authority filed by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Geman, Rachel) (Entered: 01/23/2012)
122 MOTION to Withdraw as Attorney Mariko Hirose by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Declaration of Reena Arora in Support of Motion to Withdraw As Attorney) (Arora, Reena) (Entered: 02/08/2012)
ORDER granting 122 Motion to Withdraw as Attorney. Attorney Mariko Hirose terminated. Ordered by Magistrate Judge E. Thomas Boyle on 2/10/2012. (Joy, Dolores) (Entered: 02/10/2012)
123 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss Plaintiffs' Notice of Supplemental Authority Relevant to Motion to Dismiss and−or Strike Class Claims in Plaintiffs' Third Amended Complaint (with Exhibit A) (Geman, Rachel) (Entered: 02/24/2012)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 20 of 29

02/28/2012 03/12/2012 03/28/2012 04/19/2012 04/23/2012
07/06/2012
07/10/2012 08/28/2012 09/11/2012 09/13/2012 09/27/2012
10/02/2012 10/03/2012

124 Letter to The Honorable Joseph F. Bianco from Katharine H. Parker re Defendants Response to Plaintiffs' Notice of Supplemental Authority (123) by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 02/28/2012)
125 Letter to the Hon. Joseph F. Bianco, from Katharine H. Parker, Esq., by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Attachments: # 1 Exhibit Copy of Petition for Rehearing En Banc) (Parker, Katherine) (Entered: 03/12/2012)
126 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss re 112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM of Supplemental Authority (Geman, Rachel) (Entered: 03/28/2012)
127 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss re 112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OF SUPPLEMENTAL AUTHORITY (Geman, Rachel) (Entered: 04/19/2012)
128 NOTICE by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. re 127 Notice(Other) Defendants' LETTER, dd 4/23/2012, to the Hon. Joseph F. Bianco, from Katharine H. Parker, Esq., in response to [Docket Entry 127] Plaintiffs' Notice of Supplemental Authority with the submission of DCNJ's March 30, 2012 decision in Barghout, et al, v. Bayer Healthcare Pharmaceuticals, et al. (Parker, Katherine) (Entered: 04/23/2012)
129 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss re 112 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs' Notice of Supplemental Authority Relevant to Motion to Dismiss and/or Strike Class Claims in Plaintiffs' Third Amended Complaint (Attachments: # 1 Exhibit A − Memorandum & Order, Moore v. Publicis Group SA and MSLGroup, Case 1:11−cv−01279−ALC−AJP (S.D.N.Y. June 29, 2012)) (Stocking, Alison) (Entered: 07/06/2012)
130 Letter to Hon. Joseph F. Bianco dated 7/10/2012 from Katharine H. Parker by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 07/10/2012)
131 MOTION to Withdraw as Attorney filed by Gershom R. Smith on behalf of Defendants by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Smith, Gershom) (Entered: 08/28/2012)
132 NOTICE by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. Notice of Supplemental Authority in Support of Defendants' Motion to Dismiss And/Or Strike Class Claims in Plaintiffs' Third Amended Complaint. (Parker, Katherine) (Entered: 09/11/2012)
133 NOTICE by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss re 132 Notice(Other), PLAINTIFFS RESPONSE TO DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE CLASS CLAIMS IN PLAINTIFFS THIRD AMENDED COMPLAINT (Geman, Rachel) (Entered: 09/13/2012)
134 ORDER denying 112 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the Court denies the defendants' motion to dismiss and/or strike the class claims for failure to exhaust, and denies the remainder of the motion without prejudice to defendants asserting these various grounds in response to plaintiffs' class certification motion. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/27/2012. (O'Neil, Jacquelyn) (Entered: 09/27/2012)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone status conference on Tuesday, October 16, 2012 at 4:30 p.m. At that time, counsel for the plaintiffs shall initiate the call and, once all parties are on the line, contact Chambers at 631−712−5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/2/2012. (O'Neil, Jacquelyn) (Entered: 10/02/2012)
135 NOTICE of Appearance by Kristine Kathryn Huggins on behalf of Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 21 of 29

10/03/2012 10/04/2012 10/04/2012 10/11/2012 10/16/2012 11/05/2012 11/12/2012 11/14/2012
11/16/2012
11/16/2012 11/19/2012
11/19/2012

(aty to be noticed) (Huggins, Kristine) (Entered: 10/03/2012)
136 Letter to follow up on motion to withdraw as attorney for defendants by Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Smith, Gershom) (Entered: 10/03/2012)
137 NOTICE of Appearance by Keisha−Ann G. Gray on behalf of Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (aty to be noticed) (Gray, Keisha−Ann) (Entered: 10/04/2012)
ORDER granting 131 Motion to Withdraw. So Ordered by Magistrate Judge E. Thomas Boyle on 10/4/2012. (Minerva, Deanna) (Entered: 10/04/2012)
138 ANSWER to 108 Amended Complaint, Defendants' Answer to Third Amended Class and Collective Action Complaint by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 10/11/2012)
139 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 10/16/2012 − plaintiffs counsel is to submit a status letter to the court by 11/2/12. Ms. Parker is to submit a letter response by 11/12/12 (Tape #ftr 4:48 − 4:56.) (Bollbach, Jean) (Entered: 10/17/2012)
140 Letter dtd. 11/2/12 from plaintiffs counsel to Judge Bianco RE: status of proposed class (Attachments: # 1 propopsed pretrial scheduling order) (Bollbach, Jean) (Entered: 11/07/2012)
141 Letter Proskauer Rose LLP's Letter to the Hon. Joseph F. Bianco, from Katharine H. Parker, Esq., in response to mthe proposed scheduling order set forth in Plaintiffs' letter to this Court dated 11/02/2012 by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Attachments: # 1 [Proposed] Revised Scheduling Order) (Parker, Katherine) (Entered: 11/12/2012)
ORDER. IT IS HEREBY ORDERED that the parties participate in a telephone conference on Thursday, November 29, 2012 at 3:00 p.m. to discuss the proposed scheduling order. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/14/2012. (O'Donnell, Kaitlin) (Entered: 11/14/2012)
142 MOTION for Leave to Appear Pro Hac Vice as counsel for Defendants Bank of America Corporation; Merrill Lynch & Co., Inc; Merrill Lynch, Pierce, Fenner & Smith, Inc. Filing fee $ 25, receipt number 0207−5848665. by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Attachments: # 1 Declaration of Steven J. Pearlman in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Proposed Order of Admission to Practice Pro Hac Vice) (Huggins, Kristine) (Entered: 11/16/2012)
143 Letter to Judge Bianco to reschedule upcoming conference by V. Katherine Aird, Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss (Geman, Rachel) (Entered: 11/16/2012)
SCHEDULING ORDER: By letter dated November 16, 2012, plaintiff, on behalf of both parties, requested that the telephone conference scheduled for Thursday, November 29, 2012 at 3:00 p.m. be rescheduled. IT IS HEREBY ORDERED that the telephone conference is rescheduled for Monday, December 3, 2012 at 11:00 a.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/19/2012. (O'Donnell, Kaitlin) (Entered: 11/19/2012)
ORDER granting 142 Motion for Leave to Appear Pro Hac Vice: Steven J. Pearlman is permitted to argue or try this case, in whole or in part, as counsel for defendants Bank of America Corporation, Merril Lynch & Co., Inc., and Merrill Lynch, Pierce, Fenner & Smith, Inc. Mr. Pearlman shall register for ECF. Registration is available online at the EDNY homepage. Once registered, Mr. Pearlman shall file a notice of appearance and ensure that he receives electronic notification of all activity in this action. So Ordered by Magistrate Judge E. Thomas Boyle on 11/19/2012. (Suarez, Stephanie) (Entered: 11/19/2012)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 22 of 29

11/29/2012 11/30/2012 12/03/2012 12/05/2012 01/29/2013 04/03/2013
04/19/2013 07/15/2013 07/22/2013 08/02/2013 08/08/2013 08/12/2013
08/14/2013

144 Letter response to Defendants' proposed schedule by V. Katherine Aird, Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss (Geman, Rachel) (Entered: 11/29/2012)
145 Letter from Katharine H. Parker to Judge Bianco on behalf of Defendants to update the Court about discovery that has occurred in October and November that may impact the discovery schedule and to summarize Defendants' response to Plaintiff's 11−29−12 letter by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 11/30/2012)
146 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 12/3/2012 at 4:48 pm. Appearances: For plaintiff Adam Klein and Rachel Geman present. For defendant Katherine Parker, Steven Pearlman, LaToya Moore, and Christine Huggins. Case called. Counsel for all sides present. Conference held. (Tape #11:10−11:29.) (Padilla, Kristin) (Entered: 12/28/2012)
Incorrect Case/Document/Entry Information. document # 146 has been deleted and redocketed on correct case. (Bollbach, Jean) (Entered: 12/06/2012)
148 NOTICE of Appearance by Steven Pearlman on behalf of Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (aty to be noticed) (Pearlman, Steven) (Entered: 01/29/2013)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties' joint request for an extension of all case deadlines by 75 days is granted. The new case deadlines are as follows: August 6, 2013 (plaintiffs to provide expert reports); October 7, 2013 (deposition of plaintiffs' experts and defendants to provide expert reports); November 8, 2013 (deposition of defendants' experts and plaintiffs' rebuttal reports to be completed; parties to complete discovery re: class and collective action certification, and defendants' motions for summary judgment on individual plaintiffs' claims); December 9, 2013 (plaintiffs' class action certification motion and defendants' motions for summary judgment due); January 27, 2014 (defendants' opposition to class action certification and plaintiffs' opposition to summary judgment due); February 24, 2014 (parties' reply briefs due). SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/3/2013. (O'Donnell, Kaitlin) (Entered: 04/03/2013)
Judge Pamela K. Chen added. Judge Joseph F. Bianco no longer assigned to case. (Gapinski, Michele) (Entered: 04/19/2013)
Magistrate Judge A. Kathleen Tomlinson added. Magistrate Judge E. Thomas Boyle no longer assigned to case. (Gapinski, Michele) (Entered: 07/15/2013)
150 MOTION for Leave to Electronically File Document under Seal by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit Letter) (Geman, Rachel) (Entered: 07/22/2013)
151 MOTION for Leave to Electronically File Document under Seal by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit Letter) (Klein, Adam) (Entered: 08/02/2013)
ORDER granting 150 and 151 Joint Motions for Leave to Electronically File Documents under Seal. The parties shall file the original documents under seal as separate entries. Instructions on filing sealed documents on ECF are located at www.nyed.uscourts.gov. Ordered by Judge Pamela K. Chen on 8/8/2013. (Lo, Justin) (Entered: 08/08/2013)
ORDER re: 152 . The parties' request for the extension of deadlines in this action is GRANTED in part and DENIED in part. The revised deadlines are adopted, except with respect to the service and filing of Defendants' summary judgment motions. The deadlines for the service and filing of such motions will be addressed after the parties have apprised this Court, by 2/28/14, of the status for seeking class certification. The conference scheduled for 8/15/13 is ADJOURNED, and will be rescheduled after this Court receives the required papers from the parties. Ordered by Judge Pamela K. Chen on 8/12/2013. (Lo, Justin) (Entered: 08/12/2013)
ORDER: Plaintiffs' counsel are directed to confer with their clients regarding the status of this action and the timing for any anticipated filing and/or proposed conference. Plaintiffs are advised that any communications with this Court should be through their

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 23 of 29

08/22/2013 08/26/2013 08/27/2013
09/06/2013 09/06/2013 09/06/2013
09/06/2013 09/06/2013 09/06/2013 09/09/2013 09/09/2013

counsel. Ordered by Judge Pamela K. Chen on 8/14/2013. (Lo, Justin) (Entered: 08/14/2013)
SCHEDULING ORDER: A telephone conference with all Plaintiffs and their counsel to address concerns relating to their representation is scheduled for 8/27/13 at 10:00 AM before Judge Pamela K. Chen. Plaintiffs' counsel shall initiate the telephone conference and dial into chambers at (718) 613−2510, once everyone is on the line. Ordered by Judge Pamela K. Chen on 8/22/2013. (Lo, Justin) (Entered: 08/22/2013)
SCHEDULING ORDER: The telephone conference with Plaintiffs and their counsel, originally scheduled for 8/27/13 at 10:00 AM before Judge Pamela K. Chen, will now start at 11:00 AM. Ordered by Judge Pamela K. Chen on 8/26/2013. (Lo, Justin) (Entered: 08/26/2013)
Minute Entry for proceedings held before Judge Pamela K. Chen: Telephone Conference with Plaintiffs and their counsel only held on 8/27/13. Appearing at this conference were Plaintiffs Judy Calibuso, Jean Evans, Dianne Goedtel, Julie Moss, and Mary DeSalvatore; and their counsel, Rachel Geman, Cara Greene, Adam Klein, and Heather Wong. The recording for this conference is to be SEALED from the public and Defendants. (Tape #FTR 11:06−11:30)(SEALED) (Lo, Justin) (Entered: 08/27/2013)
153 MOTION for Settlement Preliminary Approval of Class Action Settlement, Provisional Certification of Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs' Counsel as Class Counsel by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit 1) (Greene, Cara) (Entered: 09/06/2013)
154 MEMORANDUM in Support re 153 MOTION for Settlement Preliminary Approval of Class Action Settlement, Provisional Certification of Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs' Counsel as Class Counsel filed by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Greene, Cara) (Entered: 09/06/2013)
155 AFFIDAVIT/DECLARATION in Support re 153 MOTION for Settlement Preliminary Approval of Class Action Settlement, Provisional Certification of Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs' Counsel as Class Counsel filed by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9) (Greene, Cara) (Entered: 09/06/2013)
156 AFFIDAVIT/DECLARATION in Support re 153 MOTION for Settlement Preliminary Approval of Class Action Settlement, Provisional Certification of Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs' Counsel as Class Counsel filed by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit 1) (Greene, Cara) (Entered: 09/06/2013)
157 MOTION for Leave to Electronically File Document under Seal by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. (Attachments: # 1 Exhibit 1) (Greene, Cara) (Entered: 09/06/2013)
158 Letter by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss (Greene, Cara) (Entered: 09/06/2013)
SCHEDULING ORDER re: 158 . The parties' joint request to schedule a preliminary approval hearing for the class action settlement is GRANTED. The preliminary approval hearing is scheduled for 9/19/13 at 11:00 AM in Courtroom 4F North before Judge Pamela K. Chen. Their request to schedule a final approval hearing is DEFERRED until after the preliminary approval hearing. Ordered by Judge Pamela K. Chen on 9/9/2013. (Lo, Justin) (Entered: 09/09/2013)
ORDER granting 157 Plaintiffs' Unopposed Motion for Leave to Electronically File Document under Seal. Counsel is directed to file the original document under seal as a separate entry. Instructions on filing sealed documents on ECF are located at www.nyed.uscourts.gov. Ordered by Judge Pamela K. Chen on 9/9/2013. (Lo, Justin)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 24 of 29

09/09/2013 09/17/2013 09/17/2013 09/18/2013
09/18/2013 09/18/2013 09/18/2013 09/19/2013
09/19/2013
09/20/2013 09/27/2013
09/27/2013

(Entered: 09/09/2013)
159 EXHIBIT Administrative Orders Nos. 1 through 5 to Settlement Agreement (Exhibit 1 to Declaration of Rachel Geman) by Judy Calibuso, Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss. Related document: 155 Affidavit in Support of Motion,, filed by Jean Evans, Julie Moss, Mary DeSalvatore, Dianne Goedtel, Judy Calibuso. (Greene, Cara) (Entered: 09/09/2013)
160 NOTICE of Appearance by Shona B. Glink on behalf of Judy Calibuso (aty to be noticed) (Glink, Shona) (Entered: 09/17/2013)
161 Letter Regarding Proposed Settlement by Judy Calibuso (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Glink, Shona) (Entered: 09/17/2013)
REVISED SCHEDULING ORDER: In light of the recent submission from Named Plaintiff Judy Calibuso's new counsel, Stowell & Friedman, Ltd. (see 161 ), the preliminary approval hearing scheduled for 9/19/13 at 11:00 AM in Courtroom 4F North before Judge Pamela K. Chen is converted into a status conference. Calibuso's new counsel is directed to appear at this conference. Ordered by Judge Pamela K. Chen on 9/18/2013. (Lo, Justin) (Entered: 09/18/2013)
162 Letter to Honorable Chen by Judy Calibuso (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Geman, Rachel) (Entered: 09/18/2013)
163 Letter dated September 18 2013 to judge Chen from Katharine H. Parker by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Parker, Katherine) (Entered: 09/18/2013)
164 Letter Response to Letter of R Geman by Judy Calibuso (Attachments: # 1 Exhibit A) (Glink, Shona) (Entered: 09/18/2013)
ORDER: For the reasons stated on the record at today's status conference and upon further consideration, this Court is permitting Named Plaintiff Judy Calibuso, through her new counsel, to file objections to the programmatic relief provisions in the class action settlement, by no later than 9/27/13. Proposed Class Counsel and Defendants' Counsel need not respond in writing to Ms. Calibuso's objections. This Court, however, will determine whether any objection should be addressed by the parties at the preliminary approval hearing, and so notify the parties. The preliminary approval hearing is scheduled for 10/9/13 at 10:00 AM in Courtroom 4F North before Judge Pamela K. Chen. The parties will receive notice about all the issues to be raised at this hearing, by 10/3/13. Additionally, the unopposed request to add Kathleen Mary Wing as a Named Plaintiff (see 162 ) is GRANTED. Ordered by Judge Pamela K. Chen on 9/19/2013. (Lo, Justin) (Entered: 09/19/2013)
Minute Entry for proceedings held before Judge Pamela K. Chen: Status Conference held on 9/19/13. Appearing (i) for Named Plaintiffs Julie Moss, Dianne Goedtel, Jean Evans, and Mary DeSalvatore and the Proposed Settlement Class: Rachel Geman, Kelly Dermody, Adam Klein, and Cara Greene; (ii) for Named Plaintiff Judy Calibuso: Linda Friedman, Suzanne Bish, and Shona Glink; and (iii) for Defendants: Katharine Parker and Steven Pearlman. At the conference, this Court reserved judgment on issues regarding the preliminary approval hearing, which it has addressed in a separate order, dated 9/19/13. (Court Reporter Vicky Torres Butler.) (Lo, Justin) (Entered: 09/19/2013)
ORDER: By the joint request of counsel for the parties, the October 9, 2013 hearing will begin at 9:00 AM, rather than 10:00 AM as previously scheduled. Ordered by Judge Pamela K. Chen on 9/20/2013 (Doerr, Mark) (Entered: 09/20/2013)
165 RESPONSE to Motion re 153 MOTION for Settlement Preliminary Approval of Class Action Settlement, Provisional Certification of Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs' Counsel as Class Counsel Objections to Proposed Settlement and Motion for Class Certification and Preliminary Approval filed by Judy Calibuso. (Attachments: # 1 Exhibit A, Traverse City Team) (Glink, Shona) (Entered: 09/27/2013)
166 MOTION for Leave to Electronically File Document under Seal by Judy Calibuso. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F) (Glink, Shona) (Entered: 09/27/2013)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 25 of 29

09/30/2013 09/30/2013 10/02/2013 10/03/2013 10/03/2013 10/04/2013 10/04/2013
10/04/2013
10/08/2013 10/09/2013 10/10/2013 10/11/2013
10/11/2013 10/11/2013 10/15/2013

167 MOTION to Intervene by Maroc Howard, Cathy Bender. (Attachments: # 1 Exhibit A Intervenor Complaint, # 2 Exhibit Exh A to Intervenor Complaint) (Glink, Shona) (Entered: 09/30/2013)
168 MEMORANDUM in Support re 167 MOTION to Intervene filed by Cathy Bender, Maroc Howard. (Glink, Shona) (Entered: 09/30/2013)
169 Letter to The Honorable Pamela K. Chen by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss (Geman, Rachel) (Entered: 10/02/2013)
170 Letter to the Honorable Pamela K. Chen by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Huggins, Kristine) (Entered: 10/03/2013)
171 ORDER: See attached Order for a list of questions and issues that the parties should be prepared to address at the preliminary approval hearing on the proposed settlement agreement, scheduled for October 9, 2013. Ordered by Judge Pamela K. Chen on 10/3/2013. (Lo, Justin) (Entered: 10/03/2013)
172 MEMORANDUM & ORDER: See attached Memorandum & Order denying 167 Cathy Bender and Maroc Howard's Motion to Intervene. Ordered by Judge Pamela K. Chen on 10/4/2013. (Lo, Justin) (Entered: 10/04/2013)
173 ORDER re: 170 . See attached Order. This Court will not consider any pre−Settlement documents or discussion about those documents. Ms. Calibuso is directed not to further produce or discuss any pre−Settlement documents and, with respect to her motion, dated September 27, 2013 (see 166 ), is granted leave to file her exhibits under seal, except Exhibit B which may not be filed. Ordered by Judge Pamela K. Chen on 10/4/2013. (Lo, Justin) (Entered: 10/04/2013)
ORDER granting in part and denying in part 166 Named Plaintiff Judy Calibuso's Motion for Leave to Electronically File Documents under Seal. See 173 Order, dated October 4, 2013. Counsel is directed to file Exhibits C−F under seal as a separate entry. Instructions on filing sealed documents on ECF are located at www.nyed.uscourts.gov. Ordered by Judge Pamela K. Chen on 10/4/2013. (Lo, Justin) (Entered: 10/04/2013)
175 ORDER: As indicated by 171 this Court's Order, dated October 3, 2013, attached is a redlined version of the class notice with proposed additions and changes. Ordered by Judge Pamela K. Chen on 10/8/2013. (Lo, Justin) (Entered: 10/08/2013)
Minute Entry for proceedings held before Judge Pamela K. Chen: Settlement Conference held on 10/9/2013. Discussions re approval of class action settlement held on and off the record. (Court Reporter Anthony Mancuso) (Abdallah, Fida) (Entered: 11/14/2013)
176 Proposed MOTION for Settlement Proposed Order granting Plaintiffs' Motion by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Attachments: # 1 Notice of Class and Collective Action) (Greene, Cara) (Entered: 10/10/2013)
Motions terminated, docketed incorrectly: 176 Proposed MOTION for Settlement Proposed Order granting Plaintiffs' Motion filed by Jean Evans, Julie Moss, Mary DeSalvatore, Dianne Goedtel, Kathleen Mary Wing. This is not a motion; it is a proposed order. NO FURTHER ACTION IS NECESSARY. This document does not need to be re−filed. (Abdallah, Fida) (Entered: 10/11/2013)
177 ORDER re: 176 . Attached is a redlined version of the class notice with further proposed additions and changes. Ordered by Judge Pamela K. Chen on 10/11/2013. (Lo, Justin) (Entered: 10/11/2013)
ORDER: This Court, having received a final version of the class notice from the parties, proposes no further additions and changes, in advance of its preliminary approval of the Settlement. Ordered by Judge Pamela K. Chen on 10/11/2013. (Lo, Justin) (Entered: 10/11/2013)
178 ORDER granting 153 Plaintiffs' Motion for Preliminary Approval of the Settlement. See attached Order. Ordered by Judge Pamela K. Chen on 10/15/2013. (Lo, Justin) (Entered: 10/15/2013)

Case: 2:10-cv-1413 As of: 09/17/2017 06:58 PM EDT 26 of 29

11/01/2013 11/01/2013 11/01/2013 11/12/2013 11/12/2013 11/12/2013 11/12/2013 11/12/2013
11/12/2013
11/13/2013 11/14/2013
11/14/2013

179 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 25, receipt number 0207−6532776. by Judy Calibuso. (Attachments: # 1 Affidavit Affidavit of Linda D. Friedman, # 2 Certificates of Good Standing, # 3 Proposed Order) (Glink, Shona) (Entered: 11/01/2013)
180 NOTICE OF APPEAL as to 172 Order on Motion to Intervene by Cathy Bender, Maroc Howard. Filing fee $ 455, receipt number 0207−6533565. (Glink, Shona) (Entered: 11/01/2013)
Electronic Index to Record on Appeal sent to US Court of Appeals. 180 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 11/01/2013)
181 MOTION for Settlement Final Approval of Class Action Settlement by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Geman, Rachel) (Entered: 11/12/2013)
182 MOTION for Settlement Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Final Approval of Class Action Settlement by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Geman, Rachel) (Entered: 11/12/2013)
183 MOTION for Attorney Fees by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Geman, Rachel) (Entered: 11/12/2013)
184 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Attorneys' Fees and Costs by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Geman, Rachel) (Entered: 11/12/2013)
185 DECLARATION re 183 MOTION for Attorney Fees , 181 MOTION for Settlement Final Approval of Class Action Settlement Declaration of Rachel Geman by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9) (Geman, Rachel) (Entered: 11/12/2013)
186 DECLARATION re 183 MOTION for Attorney Fees , 181 MOTION for Settlement Final Approval of Class Action Settlement Declaration of Adam T. Klein by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (Geman, Rachel) (Entered: 11/12/2013)
187 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 25, receipt number 0207−6555268. by Judy Calibuso. (Attachments: # 1 Affidavit Affidavit of Suzanne E. Bish, # 2 Appendix Certificates of Good Standing, # 3 Proposed Order Proposed Order) (Glink, Shona) (Entered: 11/13/2013)
Motions terminated, docketed incorrectly: 182 MOTION for Settlement Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Final Approval of Class Action Settlement, 184 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Attorneys' Fees and Costs. These documents are not motions; they are supporting documents. These documents are also filed prematurely and are filed in violation of this Court's Individual Rules and of this Court's instructions given on an Order dated October 15, 2013 (doc #178). In the future, counsel should refer to this Court's Individual Rules as well as instructions provided. NO further action is necessary. This document does not need to be re−filed (Abdallah, Fida) (Entered: 11/14/2013)
NOTICE: Counsel is given notice that these motions 181 and 183 have been filed in violation of this Court's Individual Rules. More specifically, these motions should have been filed on December 13, 2013, seven days before the Final Approval of Class Action Settlement Conference. In the future, counsel should refer to this Court's Individual Rules as well as instructions provided. NO further action is necessary. These motions do not need to be re−filed. (Abdallah, Fida) (Entered: 11/14/2013)

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12/13/2013
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ORDER granting 179 Motion for Leave to Appear Pro Hac Vice as to Linda D. Friedman. Ordered by Judge Pamela K. Chen on 11/14/2013. (Abdallah, Fida) (Entered: 11/14/2013)
ORDER granting 187 Motion for Leave to Appear Pro Hac Vice as to Suzanne E. Bish. Ordered by Judge Pamela K. Chen on 11/14/2013. (Abdallah, Fida) (Entered: 11/14/2013)
188 TRANSCRIPT REQUEST by Cathy Bender, Maroc Howard for proceedings held on 7/18/2011; 10/4/11; 10/16/12; 12/3/12; 8/27/13; 9/19/13 before Judge Joseph F. Bianco; Joseph F. Bianco; Joseph F. Bianco; Joseph F. Bianco; Pamela K. Chen; Pamela K. Chen, re 180 Notice of Appeal Transcript due by 12/17/2013. (Glink, Shona) (Entered: 11/18/2013)
First Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 180 Notice of Appeal 188 FORM D − USCA TRANSCRIPT INFORMATION FORM. PLEASE NOTE: THIS FORM SHOULD HAVE BEEN FILED AT THE USCA NOT THE DISTRICT COURT. HARD COPY SENT TO LYNN DOBBS USCA. (McGee, Mary Ann) (Entered: 11/26/2013)
189 MEMORANDUM in Opposition Objections of Putative Class Members to Motion for Class Certification and Approval of Class Settlement filed by Judy Calibuso. (Bish, Suzanne) (Entered: 11/29/2013)
190 MEMORANDUM in Opposition re 189 Memorandum in Opposition Defendants' Memorandum of Law in Response to Objections to FRCP 23(b)(3) Monetary Relief Portion of Proposed Class Action Settlement filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 12/13/2013)
191 MOTION to Set Aside Recovery of Service Award Under Settlement Agreement as to Plaintiff Judy Calibuso by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 12/13/2013)
192 MEMORANDUM in Support re 191 MOTION to Set Aside Recovery of Service Award Under Settlement Agreement as to Plaintiff Judy Calibuso Memorandum of Law in Support of Defendants' Motion to Exclude Judy Calibuso from Recovery of Any Service Award Under Settlement Agreement. filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 12/13/2013)
193 MOTION to Strike 189 Memorandum in Opposition Notice of Motion to Strike Certain Objections by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 12/13/2013)
194 MEMORANDUM in Support re 193 MOTION to Strike 189 Memorandum in Opposition Notice of Motion to Strike Certain Objections, 189 Memorandum in Opposition Defendants' Memorandum of Law in Support of Responses to Objections to FRCP 23(b)(2) Class for Programmatic Relief and Class Notice, and Motion to Strike Certain Objections filed by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc.. (Parker, Katherine) (Entered: 12/13/2013)
195 DECLARATION re 192 Memorandum in Support, 190 Memorandum in Opposition, 191 MOTION to Set Aside Recovery of Service Award Under Settlement Agreement as to Plaintiff Judy Calibuso, 194 Memorandum in Support, Declaration of Katharine H. Parker in Support of Defendants' Memorandums of Law in Response to objections to the monetary and programmatic relief provided by the proposed class settlement. by Bank of America Corporation, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Parker, Katherine) (Entered: 12/13/2013)
196 REPLY in Support Plaintiffs' Reply Memorandum of Law ISO Mtn for: (1) Final Approval of Class Action Settlement; (2) Certification of Settlement Classes; (3) Approval of Distribution of Settlement Funds (Docket No. 181) filed by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing.

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12/13/2013 12/13/2013 12/20/2013
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(Attachments: # 1 Proposed Order) (Geman, Rachel) (Entered: 12/13/2013)
197 REPLY in Support Reply Memorandum of Law ISO Plaintiffs' Mtn for Approval of Attorneys' Fees, Reimbursement of Expenses, Service Awards, and Consideration for Certain Named Plaintiffs for the Release of Non−Class Claims (Docket No. 183) filed by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Attachments: # 1 Proposed Order) (Geman, Rachel) (Entered: 12/13/2013)
198 DECLARATION of Cara E. Greene in Further Support of Plaintiffs' Mtn for Final Approval of Class Action Settlement, Certification of Settlement Classes, and Approval of Distribution of Settlement Funds and Plaintiffs' Mtn for Attys' Fees & Costs, Reimbursement of Expenses, Service Awards, and Consideration for Certain Named Plaintiffs for Release of Non−Class Claims (Docket Nos. 181 and 183) by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Geman, Rachel) (Entered: 12/13/2013)
Minute Entry for proceedings held before Judge Pamela K. Chen: Final approval hearing on the proposed settlement agreement held on 12/20/13. Appearing (i) for the Proposed Settlement Class and Named Plaintiffs, except Judy Calibuso: Rachel Geman, Kelly Dermody, and Adam Klein ("Class Counsel"); (ii) for Named Plaintiff Judy Calibuso and other Opt−Out/Objector Class Members: Linda Friedman, Suzanne Bish, and Shonda Glink ("Opt−Out/Objector Counsel"); (iii) for Defendants: Katherine Parker and Kristine Huggins ("Defense Counsel"); and (iv) as outside counsel for Merrill Lynch & Co., Inc., Jared Friedmann ("Outside Counsel"). At today's hearing, it was agreed that (i) Defense Counsel WITHDRAWS 191 their motion to set aside the service award for Ms. Calibuso; (ii) Ms. Calibuso RESCINDS her opt−out from the proposed settlement agreement; and (iii) Opt−Out/Objector Counsel will SUBMIT a list of other Opt−Out/Objector Class Members who rescind their opt−outs by 5 P.M. on 12/26/13. Portions of today's hearing were conducted ex parte, between Opt−Out/Objector Counsel, Defense Counsel, Outside Counsel, and Ms. Calibuso, outside the presence of Class Counsel. The parties are additionally directed to order copies of the transcript from today's hearing, and specify which sections should be sealed. (Court Reporter Anthony Frisolone.) (Lo, Justin) (Entered: 12/20/2013)
ORDER terminating 191 Defendants' Motion to Set Aside the Service Award for Named Plaintiff Judy Calibuso. See Minute Entry, dated 12/20/13. Ordered by Judge Pamela K. Chen on 12/20/2013. (Lo, Justin) (Entered: 12/20/2013)
199 Proposed MOTION for Settlement Proposed Order granting Final Approval of Class Action Settlement and Judgment by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Greene, Cara) (Entered: 12/26/2013)
Motion terminated, docketed incorrectly: 199 Proposed MOTION for Settlement Proposed Order granting Final Approval of Class Action Settlement and Judgment filed by Jean Evans, Julie Moss, Mary DeSalvatore, Dianne Goedtel, Kathleen Mary Wing. This document is not a motion; it is a document in support of 181 and 183 . (Lo, Justin) (Entered: 12/27/2013)
200 REPLY in Support re 183 MOTION for Attorney Fees , 181 MOTION for Settlement Final Approval of Class Action Settlement Revised Proposed Order granting Final Approval of Class Action Settlement and Judgment filed by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing. (Greene, Cara) (Entered: 12/27/2013)
201 SETTLEMENT AGREEMENT REVISED by Mary DeSalvatore, Jean Evans, Dianne Goedtel, Julie Moss, Kathleen Mary Wing (Greene, Cara) (Entered: 12/27/2013)
202 ORDER granting 181 Plaintiffs' Motion for Final Approval of the Class Action Settlement and granting 183 Plaintiffs' Motion for Attorneys' Fees and Costs, Service Awards for Named Plaintiffs, and Individual Named Plaintiffs' Settlement Fund. See attached Order. The Court shall, at a later date, issue a separate Memorandum further explaining its findings and reasoning regarding final approval of the Settlement. Ordered by Judge Pamela K. Chen on 12/27/2013. (Attachments: # 1 Exhibit A) (Lo, Justin) (Entered: 12/27/2013)
203 MANDATE of USCA as to 180 Notice of Appeal filed by Maroc Howard, Cathy Bender. The parties in the above−referenced case have filed a stipulation withdrawing

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03/18/2014 04/30/2014

this appeal pursuant to FRAP 42. The Stipulation is "So Ordered" Issued as Mandate: 1/10/14 (McGee, Mary Ann) (Entered: 01/14/2014)
204 Letter dated 12/26/2013, from Linda Friedman, Suzanne Bish, and Shona Glink to Judge Chen re opt−out statements. (Abdallah, Fida) (Entered: 03/18/2014)
205 MEMORANDUM ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT: For the reasons set forth in this Memorandum, the Court, in 202 its Final Approval Order, certified the Settlement Class and Subclasses and finally approved the Settlement. The Clerk of the Court is directed to terminate this case. Ordered by Judge Pamela K. Chen on 4/30/2014. (Lo, Justin) (Entered: 04/30/2014)