Case 1:02-cv-00082-HHK Document 1 Filed 01/17/2002 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Shelly Kosen Elizabeth Bradler Lisa Granquist Deatra Harrington Dawn Hausch-Cooper Rebecca Hayes Jan Jackson Catherine Kelly Eleni Kulinski Susan Marcotte

) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 1:02CV00082 (HHK) ) CLASS ACTION ) COLLECTIVE ACTION ) JURY TRIAL DEMAND ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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Lydia Murphy

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)

)

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Melissa Poole

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Pauline Richards

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Mary Elizabeth Griffin Roy

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Susan S

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Rosalie Villafrate

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Lois Wisocky

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)

On behalf of themselves and all others similarly )

situated,

)

Plaintiffs,

)

v.

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)

)

American Express Financial Advisors Inc., IDS )

Financial Services, Inc., IDS Life Insurance, Inc., )

American Express Financial Corporation and

)

American Express Company,

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)

Defendants.

)

COMPLAINT

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Plaintiffs, for their Complaint against defendants American Express Financial Advisors, Inc., IDS Financial Services, Inc., IDS Life Insurance Company, American Express Financial Corporation and American Express Company (collectively, “Amex”), allege and state, as follows:
Introduction 1. This case arises out of the Amex defendants’ systemic discriminatory treatment of women who have applied for or attained the position of financial advisor in violation of federal and state civil rights laws. Having satisfied all administrative prerequisites and negotiated successfully a comprehensive consent decree resolving class claims on a nationwide basis, Plaintiffs now file this Complaint.
Parties A. Plaintiffs & Class Representatives – Financial Advisors 2 Elizabeth Bradler is a female resident and citizen of California. She was employed by Amex as a financial advisor in its New Jersey Market Group from June 1996 through April 1999. 3. Lisa Granquist is a female resident and citizen of Minnesota. She was employed by Amex as a financial advisor in its Rochester, Minnesota office in the Northern Lakes Market Group from April 1999 until March 2000. 4. Deatra Harrington is a resident and citizen of New York. She was employed by Amex as a financial advisor in its New York Metropolitan Market Group from July 1997 through November 1999.
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5. Dawn Hausch-Cooper is a female resident and citizen of Michigan. She has been employed by Amex as a financial advisor in its Greater Michigan Market Group since February 1996.
6. Rebecca Hayes is a female resident and citizen of Pennsylvania. She has been employed by Amex as a financial advisor in its Pittsburgh Market Group since January 1994.
7. Jan Jackson is a 51 year old female resident and citizen of North Carolina. She was employed by Amex as a financial advisor in the Carolina and Eastern Georgia Market Group from February 1999 to March 2000.
8. Shelly Kosen is a female resident and citizen of Minnesota. She was employed by Amex as a financial advisor in the Twin Cities Market Group from July 1998 until May 1999.
9. Eleni Kulinski is a female resident and citizen of New Jersey. She was employed by Amex as a financial advisor in the New Jersey Market Group from March 1996 through January 1999.
10. Susan Marcotte is a 54 year old female resident and citizen of Minnesota. She has been employed by Amex as a financial advisor in the New Brighton, Minnesota office since July 1997.
11. Lydia Murphy is over the age of 40 and is a female resident and citizen of Florida. She was employed by Amex as a financial advisor, advisor coach, assistant district manager, district manager and a manager coach in the West Florida Market Group from March 1997 until April 27, 2001.
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12. Pauline Richards is a 67 year old female resident and citizen of Minnesota. She was employed by Amex as a financial advisor in the Twin Cities Market Group from 1983 until 2000.
13. Mary Elizabeth Griffin (“MEG”) Roy is a 48 year old female resident and citizen of Minnesota. She was employed by Amex as a financial advisor in the Twin Cities Market Group from December 1996 until January 2000.
14. Susan S is a 51 year old female resident and citizen of Minnesota. She was employed by Amex as a financial advisor from October 1996 to August 1999 in the Twin Cities Market Group. From August 1999 until April 2001, she was employed by Amex as a sales consultant in retail brokerage at its corporate headquarters.
15. Rosalie Villafrate is a 56 year old female resident and citizen of Florida. She was employed by Amex as a financial advisor in the West Florida Market Group from June 1999 through March 2000.
16. Lois Wisocky is a female resident and citizen of Minnesota. She was employed by Amex as a financial advisor in the Twin Cities Market Group from August 1997 until June 1999.
B. Plaintiffs & Class Representatives – Financial Advisor Applicants 17. Catherine Kelly is a female resident and citizen of Florida. She has worked for Amex in various capacities in the Detroit, Michigan and West Florida Market Group since August 1990. Following a layoff in February 2001, Amex failed and refused to rehire Ms. Kelly as a financial advisor employee. 18. Melissa Poole is a female resident and citizen of Florida. She was employed by Amex as an administrative support person and assistant to the associate vice
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president in the West Florida Market Group from September 15, 1999 until April 6, 2001. During this time she sought to become a financial advisor, but was rejected by Amex.
C. Defendants (Collectively, “Amex”) 19. American Express Financial Advisors Inc. (“Amex Advisors”) is a Delaware corporation with its principal place of business in Minneapolis, Minnesota. It is a wholly owned subsidiary of and the principal marketing arm of American Express Financial Corporation. Amex Advisors maintains a field force of over 12,000 financial advisors and has offices throughout the United States including the Washington, D.C. Metropolitan area. Amex Advisors was previously known as IDS Financial Services, Inc. (“IDS”). To the extent IDS and its subsidiary, IDS Life Insurance Company (“IDS Life”), still exist, they are Delaware corporations and are wholly-owned subsidiaries of American Express Financial Corporation. 20. American Express Financial Corporation (“Amex Financial”) is a Delaware corporation with its principal place of business in Minneapolis, Minnesota. Amex Financial provides a variety of financial products and services to help individuals, businesses and institutions to establish and achieve their financial goals. Amex Financial’s products and services include financial planning and advice, insurance and annuities, a variety of investment products (including investment certificates, mutual funds and limited partnerships), investment advisory services, trust and employee plan administration services, personal automobile and homeowner’s insurance, and retail securities brokerage services. 21. American Express Company (“AXP”) is a Delaware corporation with its principal place of business in New York, New York. AXP is the direct or indirect parent
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corporation of Amex Advisors, Amex Financial, IDS and IDS Life. AXP offers financial services, credit services and travel-related services to individuals and other legal entities.
Jurisdiction and Venue 22. This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367 because this action is brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d) et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and applicable state and local laws prohibiting age, gender and pay discrimination in employment. 23. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because the Amex defendants reside or may be found in the District of Columbia.
Exhaustion of Administrative Remedies 24. Plaintiffs have each filed timely charges of discrimination with the Equal Employment Opportunity Commission and applicable state and/or local agencies alleging, among other things, class-wide gender, gender “plus” age and equal pay discrimination against Amex with respect to the hiring, compensation, and promotion of financial advisors in violation of Title VII, the ADEA, the EPA and applicable state and/or local civil rights laws. 25. Plaintiffs have each received notices of right to sue from the EEOC and other administrative agencies and, accordingly, have exhausted all administrative prerequisites for the maintenance of this action.
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Facts A. The Commencement and Nature of the Relationship Between Amex
and Its Financial Advisors 26. Amex provides financial services to its clients through three separate and interrelated distribution channels: retail (financial advisors, telephone and internet), institutional and third party. Of these, the principal channel is Amex’s core of financial advisors “in the field” who offer financial planning and investment advice to businesses and individuals. Such advice covers a wide variety of planning and investment products, nearly all of which are distributed by Amex Financial and its affiliates and subsidiaries, including IDS and IDS Life. 27. In order to obtain an “appointment” as an Amex financial advisor, an individual must complete an eight to twelve week training period. During this preappointment period, the prospective financial advisor must attend training sessions and obtain his or her licenses. Upon successful completion of the training period and passing a financial planning examination, the prospective advisor is hired by Amex as an “employee” for a one-year period, provided further training, and given a certain number of accounts and client leads in order to get his or her practice off the ground. Most of an advisor’s compensation during this one-year period is in the form of a fixed salary. 28. Prior to March 2000, the relationship between Amex and its financial advisors was governed by an agreement entitled “Personal Financial Advisor’s Agreement.” Under that agreement, the nominal status of all Amex financial advisors was altered from “employee” to “independent contractor” following the completion of the initial one-year period. In March 2000, Amex established a new system under which some
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advisors have been permitted to “select” whether they wish to be categorized as employees (called “Platform 1,” or “P1” positions) or independent contractors (called “Platform 2,” or “P2”positions). Under the new “platform” system, the only way financial advisors can be promoted into management is if they are in a P1 position.
29. Despite the provision in its standard-form contract characterizing financial advisors as “independent contractors,” Amex has – both before and after its adoption of the “platform” system in March 2000 – retained the right to control the manner and means through which all of its advisors provide planning and investment services to the general public. Amex has exercised that control over numerous aspects of an advisor’s work including, but not limited to, communications (both written and oral) to clients and potential clients (including the substance and frequency of such communications and the circumstances under which they can be made), production quotas, dress codes, reporting, record-keeping and maintenance, advertising, business card and letterhead, office location and layout, performance appraisal and training. Moreover, financial advisors are only permitted to market such products and services as are authorized by Amex and are prohibited from selling any products or services that compete with those offered by Amex Advisors, Amex Financial or other Amex affiliates.
B. The Patterns or Practices of Discrimination Experienced by Plaintiffs and Class Members
30. Since at least December 8, 1998, Amex has adopted and maintained a systematic practice of denying equal employment opportunities to women, including women forty years of age and above. Amex has engaged in a pattern and practice of gender and gender “plus” age discrimination with respect to hiring females for the
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position of financial advisor and promoting females from the position of financial advisor to other more prestigious, higher paying roles or positions. Amex also has engaged in a pattern and practice of gender, gender “plus” age and equal pay discrimination with respect to compensation and other terms and conditions of employment of female financial advisors that affect compensation and promotion opportunities, including, but not limited to, less favorable assignment of lucrative accounts and valuable leads and less favorable mentoring and training opportunities compared to their male counterparts.
31. The above-described discriminatory practices are the product of a stereotype – pervasive both inside Amex and throughout the industry – that women do not have what it takes to succeed in the financial planning business and that only young males have the temperament and ability to achieve aggressive sales. The existence of this stereotype is well known to Amex’s senior management and to its human resources department, which is responsible for addressing human resources issues, including compliance with federal and state civil rights laws, on a centralized and company-wide basis. Despite such awareness, neither senior management nor the human resources department has taken sufficient steps to discourage the discriminatory practices described herein. Indeed, far from responding to the numerous complaints that have been brought to its attention by female financial advisors, the human resources department frequently has participated in and encouraged such practices.
32. From the moment female applicants first express interest in the position of financial advisor, they are denied equal opportunity to be hired. For example, Plaintiff Poole was denied equal access to the Amex preparation courses for the Series 7 exam and
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when, as a result, she failed the exam the first time, Amex denied her a “second window” to take the exam as was routinely provided to similarly situated males.
33. Those women who manage to get hired as financial advisors are denied equal opportunities for career advancement. During the initial training period, for example, Amex provides support for its male trainees – including support in obtaining the licenses necessary for practice in the field – that is not made available to their female counterparts
34. Upon obtaining their appointments, female financial advisors suffer discrimination in virtually every aspect of their employment relationship with Amex. At the outset, in each entering class, Amex’s all-male management team hand-picks certain advisors – almost all of whom are male – to be “superstars.” These “superstars” are taken under the wing of managers, who provide them with mentoring and business that virtually ensures their financial success and subsequent promotion. The exclusion of female advisors from the “superstar” ranks of Amex is the product of blatant sexism. For instance, following her appointment as a financial advisor, one manager informed Plaintiff Kulinski that: “you will not make it in this business because you are a woman. Women would rather stay home and have a man take care of them. The only people who succeed in this business are white males.” Accepting this stereotype, Amex’s management has, in fact, made it impossible for women to succeed as financial planners by denying them training, leads, accounts and promotions and in otherwise denying them opportunities for career advancement that are readily available to male advisors.
35. The process of training and mentoring financial advisors is an ongoing one that continues long after their initial appointment. As is the case during the training and
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probationary period, however, Amex’s training and mentoring efforts focus almost exclusively upon its male advisors, who are provided with one-on-one consultations and other specialized training that is not generally available to their female counterparts. Similarly, while male managers frequently attend client meetings with male advisors and assist them in making presentations, conducting seminars and closing deals, when female advisors have requested similar assistance, those requests are typically refused. Indeed, when Plaintiffs Marcotte and Kulinski made such requests, they were belittled by their managers and, in Plaintiff Marcotte’s, case told to “shut the fuck up” and to “handle [her] own appointment.” Likewise, Plaintiff Bradler’s manager declined her request for “one-onone consultation” because she was “just too beautiful” and he was “afraid” that he “might say something wrong.”
36. The ability of a financial advisor to build a successful portfolio of business depends largely upon the volume and quality of “leads” that are either purchased from or given by Amex. The better the leads that are assigned to a financial advisor, the greater the income and the more rapid the career advancement. As a general matter, however, the leads that Amex provides to its male advisors are both substantially more plentiful and more valuable than the leads it provides to its female advisors. For instance, male advisors are generally sold, or given free-of-charge, lucrative leads from higher income areas. Female advisors, on the other hand, are often charged hundreds, if not thousands, of dollars for worthless leads, originating in low-income neighborhoods or involving clients who have been previously contacted without success. In many cases in which female advisors have brought in their own high quality leads, management has transferred those leads to male
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advisors. The disparity between male and female advisors in the assignment of leads is
reflected in the experience of the Plaintiffs. For instance:
• While the three male advisors who were in her entering class were each given 100 new, uncalled leads, Plaintiff Kulinski was furnished with just 21 leads, all of which had been previously contacted without success;
• Plaintiff Granquist was denied the opportunity to purchase leads altogether;
• At the same time that she was informed by one of her male counterparts that his leads were improving, Plaintiff Jackson was informed by Amex that it was running out of leads and, hence, was unable to provide her any; and,
• Plaintiff Hayes paid approximately $10,000 for leads, which she later learned had been previously given to young male advisors who had been unable to obtain any business from them.
37. Like the assignment of leads, the assignment of accounts to a financial
advisor plays a vital role in his or her ability to succeed in the financial planning business.
Yet, the same pattern of discrimination that characterizes the distribution of leads between
male and female advisors also characterizes the distribution of accounts. Thus, while
existing accounts are typically assigned to male advisors in order to enable them to get their
practices off the ground, far fewer such accounts are distributed to female advisors and,
those that are distributed to them are generally much less lucrative. This pattern of
discrimination is reflected in the experiences of the Plaintiffs. For instance:
• The district manager for Plaintiff Bradler, upon advising her that her refusal to invite him into her apartment could result in her not obtaining accounts, assigned her just ten accounts, while assigning approximately 200 accounts to a male advisor;
• Plaintiff Granquist was given no accounts, while a new male advisor was handed 100 existing accounts soon after he started;
• Plaintiff Marcotte received only a handful of accounts worth between $1,000 and $2,000, while her male counterparts were assigned accounts worth $30,000 to $500,000; and,
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• Plaintiff S was given 40% fewer accounts than a young male advisor who started the same day as she did.

38. In addition to distributing accounts to financial advisors upon their

appointment, Amex also distributes accounts to advisors on an ad hoc basis when other

advisors leave the company or are promoted. Despite the existence of guidelines and

criteria governing the distribution of such accounts, they are disproportionately assigned to

male advisors. Moreover, at the same time that Amex has systematically denied its female

advisors equal access to available accounts, it has frequently forced female advisors to

transfer their own accounts to male advisors in order to help those male advisors meet their

quotas. Again, the experiences of the Plaintiffs are typical of this pattern or practice of

discriminatory behavior. For instance:

• Plaintiff Harrington was forced to obtain all of her accounts through her own efforts, while two of her male colleagues were handed some 700 accounts to split between them;

• Though Plaintiff Cooper met the criteria for receiving certain transferred accounts, they were given to a male advisor who did not meet those criteria; and,

• Despite the fact that Plaintiff S

also met the criteria for obtaining them,

numerous valuable accounts were instead transferred to male advisors who did

not meet the criteria and had brought in only a handful of their own accounts.

39. Rather than instituting any kind of formal or even informal process for

applying for promotions, until March 2000 Amex traditionally approached advisors whom

it considered to be worthy and extended them offers. In view of the widespread perception

among all levels of management that women do not have the qualities necessary to succeed

in the business, it is not surprising that those who were approached with such offers were

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almost exclusively male. As one Amex manager acknowledged, it is “very difficult” for women to enter the ranks of the “all male” management team.
40. At about the time that it adopted the “platform” system in March 2000, Amex began to post the availability of supervisory positions and instituted procedures through which financial advisors could submit applications for those positions. Despite the initiation of such procedures, Amex has continued its prior practice of affirmatively approaching male advisors about opportunities for promotion and advancement. At the same time, Amex has discouraged female advisors from obtaining P1 status – a status that has become a prerequisite for promotion – or otherwise from pursuing management positions. For instance, female advisors, including many of the Plaintiffs, who have expressed interest in obtaining promotions have been told that Amex “does not like women in management,” that managerial track positions are “not for soccer moms,” that they should just wait for their “husbands to make more money,” that they should consider what would be “right for their family,” that the hours are too long and that they could never pass the tests or meet other criteria that are required for promotion to management.
41. In those cases in which female advisors have not been deterred from applying for promotions, their applications have been routinely rejected. For example, several of the Plaintiffs (including Plaintiffs Bradler, Cooper, Hayes, Roy and Wisocky) have sought managerial positions, but, despite the fact that they met or exceeded the stated criteria for those positions, were passed over in favor of male advisors who were less qualified and often did not meet that criteria.
42. Owing principally to their inability to obtain equal access to training, mentoring, leads, accounts and other forms of support, female advisors have much greater
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difficulty meeting their production quotas than do their male counterparts and, consequently, are terminated or constructively discharged at disproportionately higher rates. Indeed, several of the Plaintiffs, including Plaintiffs Harrington, Jackson, Kosen, Kulinsky, Villafrate and Wisocky, were discharged for precisely this reason.
43. Complaints about Amex’s discriminatory practices trigger swift and certain retaliation. Indeed, when Plaintiff Cooper complained of discriminatory treatment to her ombudsperson, he admitted the existence of such a policy, warning her that bringing the complaint to the attention of the human resources department would end her career with Amex. It should, therefore, hardly be surprising that each of the eight Plaintiffs who complained to human resources about having suffered gender discrimination (Plaintiffs Bradler, Cooper, Kosen, Kulinski, Roy, S , Villafrate and Wisocky) was terminated or constructively discharged shortly after having done so. For example, in approximately October 1998, Plaintiff Bradler complained to human resources that she was being subjected to severe harassment and discrimination. After months of inaction, she was informed that there was nothing that could be done because her manager had denied her allegations and, within a few weeks, that same manager helped orchestrate a pretext for her dismissal from the company.
44. Similarly, Plaintiff S was retaliated against for filing EEOC charges alleging a nationwide pattern of sex discrimination at Amex. Following a discussion with her manager in which she complained about having been retaliated against for the filing of those charges, Ms. S was given a written “warning” threatening her termination. She was subsequently interrogated by the human resources department concerning why she would want to stay with the company after having filed EEOC discrimination
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charges. Finally, in April 2001, Ms. S

was terminated after being accused by a

human resources representative of staying with the company in order “to trap us.”

45. Embracing the stereotypical notion that only young men have what it takes

to succeed in the business, Amex has tolerated and condoned a corporate culture and

work environment that is hostile to women. Illustrative of this environment is the

establishment and sponsorship by Amex of corporate functions and activities that are

male-oriented and demeaning to women. For instance, when advisors and managers

congregate for training at Amex’s centralized facility in Chaska, Minnesota, they are

routinely encouraged to visit a nearby Hooter’s restaurant so that they can see the

“incredible” scantily-clad female wait staff. Likewise, other social activities that are

sponsored or otherwise encouraged by Amex – such as “splat ball,” golf outings and

visits to local strip bars – are intended to promote camaraderie and bonding between male

advisors and male managers to the exclusion of Amex’s female work force.

46. The sexist attitudes that characterize the corporate culture at Amex have

given rise to a day-to-day work environment that is extremely abusive and, for many

women, intolerable. Many female advisors have received unwelcome sexual advances

from their managers, including, for example, Plaintiff Bradler whose manager invited

himself into her apartment and, when she subsequently sought a transfer to get away from

him, told her that he could not let her go because he would “miss having [her] beautiful

body around.” It is also commonplace at Amex field offices throughout the country for

female advisors to be verbally abused, yelled at, sworn at, belittled and otherwise

insulted. Many women have been subjected to overtly sexist comments, including

Plaintiffs Granquist and Kulinski, who have been expressly told that female advisors

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“cannot make it” in the business and that there is “no place for them” at the company. Similarly, Plaintiff Villafrate’s manager has frequently made derogatory remarks about older women and, on one occasion, advised a group of financial advisors to overlook women in Italian families because “old Italian mammas don’t know how to write a check.”
47. In short, Amex has adopted and maintained a systematic policy or practice of gender and gender “plus” age discrimination that has denied women including women age forty and over, equal employment opportunities in blatant disregard of federal, state and local civil rights laws. These discriminatory policies or practices include, but are not limited to, the following:
a. failing and refusing to hire female applicants for financial advisor positions, including denying them the same opportunities to qualify for advisor positions as provided to similarly situated men.
b. failing and refusing to promote female trainees to financial advisor positions;
c. assigning female advisors fewer accounts, and accounts of lesser value and production potential, than are assigned to male advisors;
d. denying female advisors the type of job assignments (such as participation in marketing activities), which can lead to lucrative accounts and clients;
e. denying female advisors client leads or providing them with leads that have far less potential than the leads provided to male advisors;
f. assigning fewer and much less valuable accounts to female advisors than are assigned to male advisors, even where the client holding the account specifically requests a female advisor;
g. denying female advisors promotional opportunities to management positions;
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h. maintaining a segregated work environment in which female advisors are kept in low-paying, slow-track positions through arbitrary and subjective practices;
i. paying female advisors compensation that is far lower than that paid to similarly situated male advisors, failing to pay them compensation that they have earned, and denying them opportunities to increase their earnings;
j. channeling female advisors into depressed markets with far less potential than the markets to which male advisors are assigned;
k. denying female advisors training and mentoring, including denial of specialized training (such as one-on-one meetings with district managers and “go-to” managers) given to male advisors; and,
l. denying female advisors other benefits and conditions of employment on the same terms applied to male advisors.
C. The Effect Of Amex’s Discriminatory Practices On Its Female Advisors
48. The cumulative effect of Amex Advisor’s discriminatory practices upon female financial advisors has been devastating. Throughout the course of their careers at Amex, female advisors have been left behind, while their less qualified male advisors have enjoyed promotions and great financial rewards. Indeed, owing to nothing other than their gender, most female advisors will, during the course of their careers, receive tens or even hundreds of thousands of dollars less in compensation than their male counterparts. As Amex requires its advisors to pay for overhead and leads, this disparity in compensation can lead to economic ruin. For instance, Plaintiff Kulinski – a single mother of two – almost had her heat turned off and nearly lost her home because she was forced to pay more money to Amex for useless leads than she was able to make providing planning and investment advice.
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49. Apart from the economic hardship that they have been forced to endure, female advisors have suffered severe emotional distress as a result of their exposure to constant discrimination. Many of these women have been forced to seek psychiatric help, including medication for anxiety and depression. These otherwise intelligent, capable and stable women have had their confidence and self-esteem shattered because of the demeaning attitudes and conduct of their employer.
50. Female advisors cannot escape the consequences of Amex’s discriminatory practices simply by leaving the company. Amex is required to report the reason for the departure of every financial advisor to the National Association of Securities Dealers on a form that is called the “U-5.” When a woman is terminated or constructively discharged from the company, Amex will generally report a negative reason for such termination or discharge, such as the failure to meet production quotas. As an advisor’s U-5 follows them wherever they go, such a negative notation makes it virtually impossible for a departing financial advisor to find new employment in the industry or to build her own practice. Accordingly, the careers of those financial advisors who are terminated by Amex are effectively ruined by sex discrimination.
Class Action Allegations 51. Pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3), Plaintiffs Elizabeth Bradler, Lisa Granquist, Deatra Harrington, Dawn Hausch-Cooper, Rebecca Hayes, Jan Jackson, Shelly Kosen, Eleni Kulinski, Susan Marcotte, Lydia Murphy, Pauline Richards, Mary Elizabeth Griffin Roy, Susan S , Rosalie Villafrate and Lois Wisocky seek to represent a nation-wide class (the “Damages and Injunctive Class”) consisting of:
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All women affiliated with American Express Financial Advisors Inc. as financial advisors at any time between December 8, 1998 and the present.

52. Numerosity. The number of women in the class exceeds 4,000. It would

be impracticable to bring all, or even a substantial percentage of, such persons before the

Court as individual plaintiffs through joinder.

53. Commonality. There are questions of law and fact common to the class.

The overarching question of law and fact that is common to all members of the class is:

whether Amex, through the acts and/or omissions of their management and supervisory

workforce, have adopted and/or maintained a policy or practice of employment

discrimination that is generally applicable to the class of all of Amex’s female financial

advisor incumbents. This overarching common issue of law and fact includes numerous

subissues of law and fact that are also common to all members of the class. These

subissues include, but are not limited to, the following:

•

Whether the relationship between Amex and the financial advisors that it

has hired is that of employer-employee for purposes of Title VII;

•

Whether Amex’s female financial advisors have been promoted at rates

that are disproportionately low compared to the rates at which male

financial advisors have been promoted;

•

Whether Amex’s female financial advisors have been afforded treatment

in respect of numerous aspects of employment (including training,

compensation and lead and account distribution) that is less favorable than

the treatment afforded by Amex to its male financial advisors;

•

Whether the reason that Amex has afforded its female financial advisors

less favorable treatment than its male financial advisors is the acceptance

of an invidious stereotype;

•

Whether the employment policies or practices of Amex that have

adversely affected its female advisors violate Title VII under either a

disparate treatment or a disparate impact theory; and

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•

Whether Amex’s discriminatory employment practices are sufficiently

egregious to justify the imposition of punitive damages under Title VII.

54. Typicality. The claims of each of the above-identified class

representatives are typical of the claims of all class members: (a) because they have all

been subjected to the same company-wide practice of gender discrimination in

employment; (b) because all of their claims are based upon allegations that they have

been adversely affected by that practice of gender discrimination in a similar manner in

that they have received less favorable treatment than their male counterparts with respect

to numerous aspects of employment; and, (c) because their claims are all based on the

same legal theory or theories.

55. Adequacy of Representation. All of the above-identified class

representatives are adequate representatives of the class because: (1) they are willing and

able to represent the proposed class and have every incentive to pursue this action to a

successful conclusion; (2) their interests are not in any way antagonistic to those of the

other class members; and (3) they are represented by counsel experienced in litigating

major class actions in the field of employment discrimination.

56. Propriety of Maintenance of Class Action Under Fed. R. Civ. P. 23(b)(2).

Class action status is appropriate under Fed. R. Civ. P. 23(b)(2) because Amex has acted

and/or refused to act on grounds generally applicable to the class, thereby making

declaratory and final injunctive relief appropriate. Such generally applicable grounds

consist of the adoption and/or maintenance by Amex of a common, company-wide policy

or practice of gender discrimination in employment to which each member of the class

has been subjected.

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57. Propriety Of Maintenance of Class Action Under Fed. Civ. P. 23(b)(3). Class action status is also appropriate under Fed. R. Civ. P. 23(b)(3). The common questions of law and fact identified in Paragraph 53 above predominate over questions affecting only individual members. A class action – particularly where, as here, the parties have stipulated to certification and negotiated a class-wide resolution -- is superior to other available methods for the fair and efficient adjudication of this litigation. Inasmuch as all members of the class are geographically dispersed throughout the country and allege that they were subjected to the same company-wide policy or practice of gender discrimination, requiring each class member to pursue her claim individually would entail needless duplication and would waste the resources of both the parties and the federal judiciary. The financial burden of proving Amex engaged in such a pattern or practice of discrimination would also make the prosecution of individual actions virtually impossible for most, if not all, members of the class. 58. Pursuant to Fed. R. Civ. P. 23(b)(2), Plaintiffs Catherine Kelly and Melissa Poole seek to represent a separate nation-wide class (the “Injunctive Class”) consisting of:
All women who applied to and were rejected by American Express Financial Advisors Inc. for positions as financial advisors at any time between December 8, 1998 and the present. 59. Numerosity. The number of women in the class is estimated to exceed 1,000. It would be impracticable to bring all, or even a substantial percentage of, such persons before the Court as individual plaintiffs through joinder. 60. Commonality. There are questions of law and fact common to the class. The overarching question of law and fact that is common to all members of the class is:
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Case 1:02-cv-00082-HHK Document 1 Filed 01/17/2002 Page 24 of 33

whether Amex, through the acts and/or omissions of their management and supervisory

workforce, have adopted and/or maintained a policy or practice of employment

discrimination that is generally applicable to the class of all of Amex’s female financial

advisor applicants. This overarching common issue of law and fact includes numerous

subissues of law and fact that are also common to all members of the class. These

subissues include, but are not limited to, the following:

•

Whether the potential relationship between Amex and the financial adviser

applicants is that of employer-employee for purposes of Title VII;

•

Whether female applicants for the position of financial advisor have been

hired at rates that are disproportionately low compared to the rates at

which male financial advisors applicants have been hired;

•

Whether Amex’s female financial advisor applicants have been afforded

treatment that is less favorable than the treatment afforded by Amex to its

male financial advisor applicants;

•

Whether the reason that Amex has afforded its female financial advisor

applicants less favorable treatment than its male financial advisor

applicants is the acceptance of an invidious stereotype;

•

Whether the employment policies or practices of Amex that have

adversely affected its female advisor applicants violate Title VII under

either a disparate treatment or a disparate impact theory; and

61. Typicality. The claims of each of the above-identified class

representatives are typical of the claims of all class members: (a) because they have all

been subjected to the same company-wide practice of gender discrimination in hiring; (b)

because all of their claims are based upon allegations that they have been adversely

affected by that practice of gender discrimination in a similar manner in that they have

received less favorable treatment than their male counterparts; and, (c) because their

claims are all based on the same legal theory or theories.

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62. Adequacy of Representation. All of the above-identified class representatives are adequate representatives of the class because: (1) they are willing and able to represent the proposed class and have every incentive to pursue this action to a successful conclusion; (2) their interests are not in any way antagonistic to those of the other class members; and (3) they are represented by counsel experienced in litigating major class actions in the field of employment discrimination.
63. Propriety of Maintenance of Class Action Under Fed. R. Civ. P. 23(b)(2). Class action status is appropriate under Fed. R. Civ. P. 23(b)(2) because Amex has acted and/or refused to act on grounds generally applicable to the class, thereby making declaratory and final injunctive relief appropriate. Such generally applicable grounds consist of the adoption and/or maintenance by Amex of a common, company-wide policy or practice of gender discrimination in hiring to which each member of the class has been subjected.
Collective Action Allegations 64. Pursuant to 29 U.S.C. § 216(b), Plaintiffs seek to prosecute their Equal Pay Act claim as a collective action on behalf of all similarly situated class members who give their written consent to participate. 65. Pursuant to 29 U.S.C. § 216(b), Plaintiffs who are 40 years of age and above seek to prosecute the age component of their “gender” plus age claim under the Age Discrimination in Employment Act as a collective action on behalf of all similarly situated class members who are 40 years of age and above and give their written consent to participate.
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COUNT I EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDER --
CLASS CLAIMS FOR RELIEF 66. Plaintiffs restate and reallege the allegations contained in Paragraphs 1 through 65 of this Complaint as though set forth here in full. 67. Plaintiffs and members of the classes are applicants for employment or employees of Amex within the meaning of 42 U.S.C. § 2000(e) et seq. 68. The discriminatory policies or practices of Amex, as set forth in this Count, deny Plaintiffs and members of the classes their right to equal employment opportunity in violation of 42 U.S.C. § 2000(e) et seq. 69. Amex has adopted and/or maintained a system-wide policy or practice of gender discrimination by, among other things, denying Plaintiffs and members of the classes equal opportunities as described in Paragraphs 30 through 47, above. 70. Amex’s discriminatory and unlawful employment practices have been intentional, deliberate, willful and oppressive, and have been conducted in reckless and callous disregard for the rights of Plaintiffs and members of the Damages and Injunctive Class. 71. Amex has adopted and/or maintained subjective employment practices, including but not limited to, subjective practices for assessing and evaluating the ability and potential of their financial advisors that have had the adverse impact of denying female advisors equal career advancement and other employment opportunities on account of their gender.
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72. Amex’s management has independently adopted, ratified, condoned and approved the discriminatory policies or practices identified herein.
73. Amex’s management has been aware of the practices of discrimination alleged herein and has failed to provide any reasonable avenue of complaint or otherwise to take reasonable measures to prevent such discrimination from occurring.
74. By reason of Amex’s discriminatory policies or practices as set forth in this Count, Plaintiffs and members of the Damages and Injunctive Class have suffered damages including, but not limited to, lost income, lost benefits, embarrassment, emotional distress, humiliation, indignity and a reduced quality of life. Plaintiffs and members of the classes are threatened with further injury and loss which are irreparable in nature and for which they have no adequate remedy at law.
COUNT II EMPLOYMENT DISCRIMINATION ON THE BASIS OF AGE -INDIVIDUAL AND COLLECTIVE ACTION “OPT IN” CLAIMS FOR RELIEF 75. Plaintiffs who are age 40 and above restate and reallege the allegations contained in Paragraphs 1 through 74 of this Complaint as though set forth here in full. 76. Plaintiffs who are age 40 and above and similarly situated class members providing their written consent are applicants or employees of Amex within the meaning of 29 U.S.C. § 630 and other applicable civil rights laws prohibiting discrimination in employment on the basis of age. 77. The discriminatory policies or practices of Amex, as set forth herein, deny Plaintiffs who are age 40 and above and similarly situated class members providing their written consent their right to equal employment opportunity on the basis of age in
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Case 1:02-cv-00082-HHK Document 1 Filed 01/17/2002 Page 28 of 33
violation of 29 U.S.C. § 621 et seq. and other applicable civil rights laws prohibiting discrimination in employment on the basis of age.
78. Amex has adopted and/or maintained a system-wide policy or practice of age discrimination by, among other things, denying Plaintiffs age 40 and above and similarly situated class members providing their written consent equal opportunities with respect to numerous aspects of employment, including hiring, career advancement (including in performance appraisal, training, mentoring and promotional opportunities), distribution of leads and accounts, compensation and termination.
79. Amex’s discriminatory and unlawful employment practices identified above have been intentional, deliberate, willful and oppressive, and have been conducted in reckless and callous disregard for the rights of Plaintiffs age 40 and above and similarly situated class members providing their written consent.
80. Amex’s management has independently adopted, ratified, condoned and approved the discriminatory policies or practices identified above.
81. Amex’s management has been aware of the practices of discrimination alleged herein and has failed to provide any reasonable avenue of complaint or otherwise to take reasonable measures to prevent such discrimination from occurring.
82. By reason of Amex’s discriminatory policies or practices as set forth in this Count, Plaintiffs age 40 and above and similarly situated class members providing their written consent have suffered damage including, but not limited to, lost income, embarrassment, emotional distress, physical injury, humiliation, indignity and a reduced quality of life. Plaintiffs age 40 and above and class members providing their written
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consent are threatened with further injury and loss which is irreparable in nature and for which they have no adequate remedy at law.
COUNT III EMPLOYMENT DISCRIMINATION ON THE BASIS OF EQUAL PAY -INDIVIDUAL AND COLLECTIVE ACTION “OPT IN” CLAIMS FOR RELIEF
83. Plaintiffs restate and reallege the allegations contained in Paragraphs 1 through 82 of this Complaint as though set forth here in full.
84. The discriminatory policies or practices of Amex, as set forth herein, deny Plaintiffs and similarly situated class members providing their written consent compensation that is equal to similarly situated males in violation of 29 U.S.C. § 206(d) et seq. and other applicable civil rights laws prohibiting discrimination on the basis of pay.
85. Amex has adopted and/or maintained a system-wide policy or practice of equal pay discrimination by, among other things, denying female advisors compensation that is equal to that of their male peers for performing the same or comparable work.
86. Amex’s management has independently adopted, ratified, condoned and approved the discriminatory policies or practices identified above.
87. Amex’s management has been aware of the practices of discrimination alleged herein and has failed to provide any reasonable avenue or complaint or otherwise to take reasonable measures to prevent such discrimination from occurring.
88. By reason of Amex’s discriminatory policies or practices as set forth in this Count, plaintiffs have suffered damage including, but not limited to, lost income, embarrassment, emotional distress, physical injury, humiliation and dignity, and a
29

Case 1:02-cv-00082-HHK Document 1 Filed 01/17/2002 Page 30 of 33
reduced quality of life. Plaintiffs and similarly situated class members providing their written consent are threatened with further injury and loss which is irreparable in nature and to which they have no adequate remedy at law.
COUNT IV EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDER --
INDIVIDUAL NON-CLASS CLAIMS FOR RELIEF 89. Plaintiffs restate and reallege the allegations contained in Paragraphs 1 through 88 of this Complaint as though set forth here in full. 90. Amex has subjected one or more of the Plaintiffs to gender discrimination and other forms of discrimination which are outside the scope of Counts I through III, but which violate Title VII, and other applicable state and local civil rights laws prohibiting discrimination in employment on the basis of gender and retaliation including, but not limited to: a sexually hostile work environment, layoff, termination and constructive discharge. 91. The discriminatory and unlawful employment practices described in Paragraph 90 have been intentional, deliberate, willful and oppressive, and have been conducted in reckless and callous disregard for the rights of Plaintiffs. 92. Amex’s management has independently adopted, ratified, condoned and approved the discriminatory practices described in Paragraph 90. 93. Amex’s management has been aware of the practices of discrimination described in Paragraph 90 and has failed to provide any reasonable avenue of complaint or otherwise to take reasonable measures to prevent such discrimination
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94. By reason of Amex’s discriminatory practices as set forth in this Count, Plaintiffs have suffered damages including, but not limited to, loss of employment, lost income and benefits, embarrassment, emotional distress, physical injury, humiliation, indignity and a reduced quality of life.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectively pray: 1. That this case be maintained as a class action on behalf of the proposed classes; that collective action opt-in procedures be adopted with respect to the claims asserted under the Age Discrimination in Employment Act and Equal Pay Act; that Plaintiffs be designated as representatives of the respective classes, and that their counsel of record be designated as Class Counsel; 2. That the practices of Defendants complained of herein be determined and adjudged to be in violation of the rights of the Plaintiffs and the members of the classes under Title VII, the ADEA and the EPA. 3. That a permanent prohibitory injunction be issued prohibiting Defendants, and their officers, agents, employees and successors from engaging in the employment practices complained of herein; 4. That a permanent mandatory injunction be issued requiring that Defendants adopt employment practices in accord with the requirements of Title VII, the ADEA and the EPA; 5. That judgment be entered in favor of Plaintiffs and the members of the Damages and Injunctive Class set forth herein, and against Defendants, for back pay
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Case 1:02-cv-00082-HHK Document 1 Filed 01/17/2002 Page 32 of 33
(including interest or an appropriate inflation factor), front pay, benefits and all other amounts owed to Plaintiffs and the members of the Damages and Injunctive Class;
6. That the Plaintiffs and members of the Damages and Injunctive Class be awarded compensatory and punitive damages;
7. That the Plaintiffs and members of the Damages and Injunctive Class age 40 and above and the Plaintiffs and members of the Damages and Injunctive Class who are victims of pay discrimination be awarded liquidated damages to the extent allowed by law;
8. That the Plaintiffs and members of the classes be awarded such other and further legal and equitable relief as may be found appropriate and as the Court may deem just or equitable;
9. That the Plaintiffs and members of the classes be awarded costs including, but not limited to, attorneys’ fees pursuant to the common fund doctrine, experts’ fees, and other costs and expenses of this litigation; and
10. That the Court retain jurisdiction over Defendants until such time as it is satisfied that they have remedied the practices complained of and are determined to be in full compliance with the law.
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Jury Demand If the settlement does not become final, Plaintiffs demand trial by jury on all issues triable of right by jury.
Respectfully submitted,
Dated: Janaury 17, 2002

// S //

.

Paul C. Sprenger (DC No. 412029)

Michael D. Lieder (DC No. 444273)

Steven M. Sprenger (DC No. 418736)

SPRENGER & LANG, PLLC

1614 Twentieth Street N.W.

Washington, DC 20009

(202) 265-8010

(202) 332-6652 (facsimile)

// S //

.

Maurice W. O’Brien

(MN No 130229)

Nancy J. Miller (MN No 203518)

MILLER-O’BRIEN, PLLP

1208 Plymouth Building

12 South Sixth Street

Minneapolis, MN 55402

(612) 333-5831

(612) 342-2613 (facsimile)

// S //

.

Lawrence P. Schaefer (MN No. 195583)

Susan E. Stokes (MN No. 226725)

Mara R. Thompson (MN No.196125)

SPRENGER & LANG, PLLC

325 Ridgewood Avenue

Minneapolis, MN 55403

(612) 871-8910

(612) 871-9270 (facsimile)

ATTORNEYS FOR PLAINTIFFS AND THE CLASSES

33

 
 Case 1:02-cv-00082-HHK Document 4 Filed 01/23/2002 Page 1 of 49

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

______________________________________________________________________________

Shelly Kosen, Elizabeth Bradler, Lisa Granquist, Deatra Harrington, Dawn Hausch-Cooper, Rebecca Hayes, Jan Jackson, Catherine Kelly, Eleni Kulinski, Susan Marcotte, Lydia Murphy, Melissa Poole, Pauline Richards, Mary Elizabeth Griffin Roy, Susan S , Rosalie Villafrate, Lois Wisocky, on behalf of themselves and all others similarly situated,

Civil Action No: 1:02CV00082 (HHK)

Plaintiffs, v.

American Express Financial Advisors, Inc.; IDS Financial Services, Inc., IDS Life Insurance, Inc.; American Express Financial Corporation; and American Express Company,

Defendants. __________________________________

CONSENT DECREE

Case 1:02-cv-00082-HHK Document 4 Filed 01/23/2002 Page 2 of 49
TABLE OF CONTENTS
I. INTRODUCTION....................................................................................................................2
II. NATURE OF THE CASE .......................................................................................................2
III.GENERAL TERMS OF THE DECREE...............................................................................5
A. Definitions.....................................................................................................................5 B. Jurisdiction and Venue................................................................................................8 C. Effective Date of the Decree. .......................................................................................9 D. Cooperation. .................................................................................................................9 E. Persons Covered by this Decree..................................................................................9
1. Definition of “Classes” or “Class Members.”................................................9 2. Certification....................................................................................................10 3. Opt-Out Provisions and Objections. ............................................................10 4. Opt-In Class For Age And/Or Unequal Pay Discrimination. ....................11 5. Poole and Kelly Claims..................................................................................11 F. Termination. ...............................................................................................................11 G. Release/Bar of Claims................................................................................................12 1. Agreement and General Release and Written Consent..............................12 2. Dismissal With Prejudice. .............................................................................13 3. Res judicata. ...................................................................................................13
IV. GENERAL INJUNCTIVE RELIEF MEASURES.............................................................13
A. Field Diversity Officer. ..............................................................................................13 1. Appointment...................................................................................................13 2. Communications. ...........................................................................................13 3. Responsibilities of the Field Diversity Officer.............................................13 4. Assistance for Field Diversity Officer. .........................................................14 5. Performance Rating.......................................................................................14
B. Diversity Training......................................................................................................14 1. Diversity Training for Employee Financial Advisors.................................14 2. Diversity Training for Employee Leaders. ..................................................15 3. Records............................................................................................................16
C. Guidelines for Company-Sponsored Activities. ......................................................16 D. Hiring. .........................................................................................................................16
1. Good Faith Hiring Goals. ..............................................................................16 2. Records............................................................................................................16
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E. Leads/Marketing Opportunities. ..............................................................................16 1. Marketing Opportunities/Client Acquisition Allowance for All Employee Financial Advisors. ........................................................................................16 2. Leads. ..............................................................................................................17 3. Leads Database...............................................................................................17 4. Records............................................................................................................18 5. Business Development Portion......................................................................18
F. Account Assignments.................................................................................................18 1. Criteria............................................................................................................18 2. Account Assignment Database......................................................................19 3. Records............................................................................................................20
G. Promotions..................................................................................................................20 1. Posting.............................................................................................................20 2. Interview. ........................................................................................................20 3. Approval and Review of Promotions. ..........................................................20 4. Reason for Promotion Decision. ...................................................................21 5. Diversity Training..........................................................................................21 6. Communication. .............................................................................................21 7. Promotions Database. ....................................................................................21 8. Records............................................................................................................22
H. Mentoring. ..................................................................................................................22 1. Voluntary Mentoring Program. ...................................................................22 2. Records............................................................................................................22
I. Terminations. .............................................................................................................23 1. Exit Interview Form. .....................................................................................23 2. Inquiries from Prospective Employers. .......................................................23
J. Complaint Procedure.................................................................................................23
V. MONETARY RELIEF..........................................................................................................23
A. Settlement Fund. ........................................................................................................23 B. Creation and Administration of Settlement Fund. .................................................24
1. Creation. .........................................................................................................24 2. Administrators’ Administrative Responsibilities........................................25 C. Claims Filing Procedures For Settlement Of Claims Of Plaintiffs And Class Members. ....................................................................................................................26 D. Distribution Formula.................................................................................................26 E. Business Development Portion..................................................................................28 1. Business Development Portion......................................................................28 2. Obtaining Distributions from the Business Development Portion. ...........29 3. Approval of Business Development Claim Forms by Diversity Officer. 29 4. Notification of Administrators......................................................................31 5. Approval of Business Development Claim Form by Administrators. ......32 6. Timing of Distribution of Business Development Portion..........................32 7. AEFA Communication to Eligible Business Development Claimants. .....32 8. Reallocation and/or Disposal of Unused Funds. .........................................33 9. Records............................................................................................................33
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F. Tax Treatment............................................................................................................34 1. Qualified Tax Status and Tax Responsibilities. ..........................................34 2. Payment of All Federal, State and Local Taxes By the Settlement Fund.34 3. Indemnification by Plaintiffs and Class Members......................................35 4. Determining Independent Contractor/Employee Classification. ..............35 5. AEFA Has No Obligation, Liability or Responsibilty. ...............................36 6. Limited Indemnification of the Administrators by AEFA.........................36 7. Right to Defend. .............................................................................................37

VI. MONITORING ......................................................................................................................37

A. Monitors......................................................................................................................37 B. Semi-annual Meetings. ..............................................................................................38

VII.

ENFORCEMENT ......................................................................................................38

A. Complaint Procedure.................................................................................................38 1. Grounds for Female Financial Advisor Complaints...................................38 2. Procedural Requirements. ............................................................................38 3. Information Provided to Complainant. .......................................................39 4. Investigation of Complaints. .........................................................................39
B. Enforcement Procedure.............................................................................................39 1. Enforcement. ..................................................................................................39 2. Conditions Precedent.....................................................................................40 3. Meeting of Class Counsel, Field Diversity Officer and Counsel for AEFA.40 4. Written Response. ..........................................................................................40 5. Right to Cure. .................................................................................................40 6. Special Master. ...............................................................................................40 7. Special Master’s Orders. ...............................................................................41

VIII. CONFIDENTIALITY ...............................................................................................41

A. Documents and Information Exchanged Pursuant to Stipulation of Confidentiality............................................................................................................41
B. Documents and Information Produced Pursuant to this Decree...........................41 C. Disposal of Confidential Documents and Information. ..........................................42

IX. PUBLICITY ...........................................................................................................................42

X. GOVERNING LAW..............................................................................................................43

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Case 1:02-cv-00082-HHK Document 4 Filed 01/23/2002 Page 5 of 49 XI. OTHER CONDITIONS OF SETTLEMENT .....................................................................43
A. Exhibits. ......................................................................................................................43 B. Notices to Counsel. .....................................................................................................43 C. Failure to Insist on Strict Compliance. ....................................................................43 D. Decree Binding. ..........................................................................................................44 E. No Drafting Presumption. .........................................................................................44 F. Paragraph Headings. .................................................................................................44 G. Counterparts. .............................................................................................................44 H. Final and Binding.......................................................................................................44 I. Authorization..............................................................................................................44
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I. INTRODUCTION This Consent Decree (“Decree”) sets forth the full and final terms by which the Named
Plaintiffs, on behalf of themselves and members of the Classes defined herein, and Defendants American Express Financial Advisors, Inc., IDS Financial Services, Inc., IDS Life Insurance, Inc., American Express Financial Corporation, and American Express Company have settled and resolved all claims that have been raised in the charges filed by the Named Plaintiffs and in the Complaint filed this day. II. NATURE OF THE CASE
A. In February 1999 Named Plaintiffs Shelly Kosen, Lois Wisocky, Mary Elizabeth Griffin Roy and Susan S retained counsel for the class to investigate claims of unfair treatment, including discrimination based on gender, age and unequal pay. On or about October 4, 1999, these Named Plaintiffs each filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging, among other things, that Defendants discriminated against them and a class of similarly situated persons throughout the United States on the basis of their gender, unequal pay, and/or age in several aspects of their employment.
B. From the dates these four Named Plaintiffs filed their charges through about August of 2001, thirteen other persons, who are also Named Plaintiffs for purposes of the Settlement Classes, also filed charges with the EEOC. The remaining Named Plaintiffs are: Elizabeth Bradler, Lisa Granquist, Deatra Harrington, Dawn Hausch-Cooper, Rebecca Hayes, Jan Jackson, Catherine Kelly, Eleni Kulinski, Susan Marcotte, Lydia Murphy, Melissa Poole, Pauline Richards, and Rosalie Villafrate.
C. Among other things, Named Plaintiffs allege on behalf of themselves and members of the Classes defined herein, that they are women who are or were affiliated with
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AEFA as Financial Advisors, or are or were applicants for the position of Financial Advisor or other higher position; that they have been and are paid less than comparable male Financial Advisors; that they experienced gender discrimination in numerous aspects of their employment and have been subjected to a hostile work environment. They have further alleged, among other things, on behalf of themselves and members of the Classes defined herein that aspects of their employment in which they have experienced gender and/or age discrimination include, but are not limited to, career advancement, failure to hire as a Financial Advisor, distribution of leads and accounts, work assignments, promotion, compensation, a sexually hostile work environment, retaliation, termination, layoff, and/or other terms and conditions of employment.
D. In an effort to determine whether the parties could settle this dispute prior to the commencement of litigation, counsel for the parties, who are experienced class action attorneys, participated in detailed and exhaustive discussions and negotiations over nearly two years. The parties ultimately engaged the services of ADR Associates, Inc., of Washington, D.C., and Linda Singer, an internationally known and highly experienced professional mediator, skilled in mediation of complex class actions, including employment litigation. Ms. Singer became familiar with the case and conducted approximately ten full and partial day mediation sessions. The formal mediation sessions and follow-up settlement discussions between the parties commenced in May of 2001 and concluded on January 17, 2002, by execution of this Decree. During the negotiations, counsel bargained vigorously on behalf of their clients. All negotiations have been conducted at arm’s length and in good faith.
E. In order to facilitate settlement discussions, the parties executed tolling agreements covering the time period June 22, 2001 to January 17, 2002. For settlement purposes, Class Counsel sought, and Defendants produced to Class Counsel, voluminous data
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and other information concerning Defendants’ workforce and work practices relevant to the claims asserted and damages sought by Plaintiffs. Class Counsel retained a consultant to conduct a statistical analysis of the data. The consultant worked with Class Counsel for several months to review the data, ensure it was complete, request supplemental data, and analyze the data. The consultant conducted the same analyses that Plaintiffs would have conducted in preparation for trial of this matter. Counsel for both parties also have conducted their own substantial investigations of the matter, including the facts underlying the claims and issues raised in the charges and the Complaint. The investigations included, among other things, interviewing witnesses and reviewing a substantial number of relevant company records. As a result of the exchange of information, investigation, and other pre-suit activity, counsel for all parties are familiar with the strengths and weaknesses of their respective positions, and have had a full opportunity to assess the litigation risks presented in this case.
F. For the sole purposes of settlement and judicial approval of this Decree, the parties agree that, on or before January 17, 2002, Plaintiffs shall file a Complaint in the federal district court for the District of Columbia.
G. Defendants deny the allegations in both the administrative charges and the Complaint and deny any liability under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act, as each has been amended from time to time, as well as the human rights or any other laws of any State or locale, and further deny that Defendants unlawfully discriminated against or harassed Plaintiffs or Class Members on the basis of age, unequal pay, or gender, or that Plaintiffs or Class Members are otherwise entitled to the relief requested. In addition, Defendants deny that Plaintiffs and Class Members who are or were affiliated with Defendants as veteran Financial Advisors and/or as “Platform 2” Financial
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Advisors are or were employees of Defendants; to the contrary, said Financial Advisors are and/or were independent contractors.
H. All parties and their counsel recognize that, in the absence of an approved settlement, they face a long litigation course, including motions to dismiss, motions for class certification, formal discovery, motions for summary judgment, and trial and potential appellate proceedings, that will consume time and resources and present each of them with ongoing litigation risks and uncertainties. The parties wish to avoid these risks and uncertainties, as well as the consumption of time and resources, through amicable settlement pursuant to the terms and conditions of this Decree. Class Counsel believe that the terms of the Decree are fair, reasonable, and adequate for the Class Members, and in their best interests, and Defendants wish to bring the litigation to a conclusion on the terms set forth in this Decree.
I. Without any admission or concession by Defendants of any liability or wrongdoing with respect to the allegations in any charge or in the Complaint and without any admission or concession by Defendants that any veteran Financial Advisor or “Platform 2” Financial Advisor Plaintiff or Class Member is an employee, all Claims, as defined below, shall be finally and fully compromised, settled, and released and the Action dismissed with prejudice upon and subject to the terms and conditions of this Decree, which were the subject of negotiation and agreement by the parties. III. GENERAL TERMS OF THE DECREE
A. Definitions. In addition to terms identified and defined elsewhere in this Consent Decree, and as used in this Consent Decree, the following terms shall have the following meanings:
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1. “Action” means the lawsuit described above and in the Complaint and allegations in administrative charges as it relates to both the Plaintiffs and the Class Members.
2. “Administrators” means the persons designated by Class Counsel to administer the Settlement Fund pursuant to Section V below and other orders of the Court. Unless replaced by the Court, the Administrators shall be: Lawrence P. Schaefer and Maurice W. O’Brien.
3. “AEFA” means, for purposes of this Decree, American Express Financial Advisors, Inc., and any of its affiliated or related companies, parents, subsidiaries, predecessors, successors, and assigns, and includes all Defendants.
4. “Business Development Claim Form” means the Form to be submitted by Eligible Business Development Claimants substantially in the form attached hereto as Exhibit A.
5. “Claims” means any and all claims, rights, duties, remedies or causes of action or liabilities whatsoever, including all claims for damages and benefits, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including both known and Unknown Claims (as that term is defined in the Release) which have been released or discharged in the Release, a copy of which is attached hereto as Exhibit B, and incorporated herein.
6. “Claim Form” means the form to be submitted by Claimants attached hereto as Exhibit C.
7. “Claimants” means applicants for awards from the Claims Portion and the Business Development Portion of the Settlement Fund, the two of which are collectively
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referred to as the “Claimant Portions.” Recipients of awards from the Claimant Portions shall together be referred to as “Eligible Claimants.”
8. “Class Counsel” means the law firms of Miller-O’Brien PLLP and Sprenger & Lang PLLC.
9. “Complaint” means the Complaint to be filed in connection with this Settlement.
10. “Defendants’ Counsel” means the law firms of Dorsey & Whitney LLP and Jones, Day, Reavis & Pogue LLP.
11. “Depository Bank” means Chevy Chase Bank, designated by Class Counsel to receive, hold, invest and disburse the Settlement Fund.
12. “Employee Leader” means (1) any person employed in the field by AEFA, but not any other Defendant for purposes of this definition, and who holds a position equivalent to manager and above in AEFA’s employee platform; and (2) any person employed in the field by AEFA, but not any other Defendant for purposes of this definition, who holds a leadership position in the AEFA franchise platform (currently referred to as “Platform 2”) (excluding franchise branch managers and OSJ managers).
13. “Financial Advisor” means a person employed by or otherwise affiliated with AEFA as a financial advisor. Financial Advisor does not include persons who have (1) not been appointed, and/or (2) have been classified by AEFA as preappointment or preclient ready.
14. “Notice” means the mailed Notice of Class Action, Proposed Settlement, and Settlement Hearing, which is to be directed to members of the Damages Class substantially in the form attached hereto as Exhibit D, and the published Notice which is
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to be directed to both the Damages Class and the Injunctive Class substantially in the form attached hereto as Exhibit E.
15. “Payees” means Class Counsel and all experts, consultants and others associated with or retained by Class Counsel. Payments to Payees will be consistent with Section V of this Decree and governed by Administrative Order No. 1.
16. “Plaintiffs” or “Named Plaintiffs” means the seventeen Plaintiffs named in the caption of this Decree.
17. “Release” means the Agreement and Release referenced in Section III.G. and attached hereto as Exhibit B, and incorporated herein.
18. “Settlement,” “Agreement,” and “Settlement Agreement” each mean the settlement as reflected in this Decree.
19. “Settlement Fund” means the settlement monies transferred by Defendants to the Depository Bank, including all interest earned thereon, to be held, invested, administered, and disbursed pursuant to Administrative Order No. 1 (filed herewith) and this Decree.
20. “Settlement Hearing” means the hearing at which the Court will consider final approval of this Decree and related matters. B. Jurisdiction and Venue. The parties agree that this Court has jurisdiction over the parties and the subject matter of this action, and only for purposes of this settlement class, that venue is proper. This Court shall retain jurisdiction of this action for the duration of the Decree solely for the purpose of entering all orders and judgments authorized hereunder that may be necessary to implement and enforce the relief provided herein. Pursuant to Fed. R. Civ. P. 53,
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this Court shall appoint a Special Master whose powers are outlined in Section VII.B.6. and 7. of this Decree and in the proposed Order and Stipulation of Reference attached hereto as Exhibit F.
C. Effective Date of the Decree. This Decree and the agreements incorporated herein shall become effective on the date when all of the following have occurred: (1) the Court has finally approved, signed and entered this Decree; (2) the Court has entered an Order and Judgment dismissing the Action with prejudice, with continuing jurisdiction limited to enforcing this Decree; and (3) the time for appeal has either run without an appeal being filed or any appeal (including any requests for rehearing en banc, petitions for certiorari or appellate review) has been finally resolved. Beginning on the Effective Date, the Decree and the agreements incorporated in it shall become binding on the parties and their agents and successors for a fouryear period.
D. Cooperation. The parties agree that they will cooperate to effectuate and implement all terms and conditions of this Decree, and exercise good faith efforts to accomplish the foregoing terms and conditions of this Decree.
E. Persons Covered by this Decree. 1. Definition of “Classes” or “Class Members.” Solely for purposes of
Settlement and judicial approval of this Decree, the parties stipulate to the certification of the following Settlement Classes:
As to Damages and Injunctive Relief: All women employed by or otherwise affiliated with American Express Financial Advisors, Inc. as Financial Advisors at any time between December 8, 1998 and the date of preliminary approval (“Damages Class”). As to Injunctive Relief Only: All women who applied to work for or otherwise become affiliated with and who were rejected by American Express Financial Advisors, Inc. for positions as Financial Advisors at any time between December 8, 1998 and the date of preliminary approval (“Injunctive Class”).
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2. Certification. The Damages Class will be certified pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3); the Injunctive Class will be certified pursuant to Fed. R. Civ. P. 23(b)(2) only.
3. Opt-Out Provisions and Objections. Damages Class Members may request exclusion from the Damages Class by mailing to the Administrators a request for exclusion, as provided in the Notice, postmarked no later than a date specified in the Notice, which date shall be no later than twenty-one (21) days before the date scheduled for final judicial approval of this Decree. Damages Class Members who submit requests for exclusion from the Damages Class will give up their rights to object to the Settlement, to object to Class Counsel’s application for attorneys’ fees and expenses, and to participate in the Settlement and the distribution of any monies from the Settlement Fund; they will retain their right to pursue any remedies they may have on their own behalf and through their own legal counsel.
In the event the percentage of Damages Class Members who submit timely requests for exclusion is equal to or greater than one and one-half percent (1.5%), but less than three percent (3%) of the Damages Class, then the amount to be paid by Defendants pursuant to this Decree ($31,000,000) shall be reduced by a percentage equal to the percentage of opt-outs. If the percentage of Damages Class Members who submit timely requests for exclusion is equal to or greater than three percent (3%), then Defendants, at their sole and exclusive option, may either: (1) elect to reduce the amount to be paid by Defendants pursuant to this Decree ($31,000,000) by a percentage equal to the percentage of opt-outs; or (2) withdraw from and fully terminate this Decree pursuant to Section III.F. of this Decree. The percentage of opt-outs referenced in this paragraph shall be
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calculated by dividing the number of persons opting out by the total number of notices mailed (including those notices subsequently returned as undeliverable). The parties shall agree on the class size and the number of individuals to whom mailed notice shall be directed. If AEFA’s payment is reduced by any such percentage, then each of the three Portions of the Settlement Fund described in Section V below shall be reduced by the same percentage.
4. Opt-In Class For Age And/Or Unequal Pay Discrimination. Any Damages Class Member who could assert a claim for age or unequal pay discrimination and wishes to seek a distribution from the Settlement Fund for such discrimination claim(s), must affirmatively opt into this Action by so indicating on the Claim Form attached hereto as Exhibit C. Only by filing such a written consent may a Damages Class Member obtain a distribution from the Settlement Fund for her age and/or unequal pay discrimination claim. A Damages Class Member who could assert a claim for age and/or unequal pay discrimination but elects not to affirmatively opt into this Action will still be a Damages Class Member for purposes other than age and/or unequal pay discrimination unless said Damages Class Member opts out pursuant to Section III.E.3. above.
5. Poole and Kelly Claims. Both the damages and injunctive relief claims of Melissa Poole and Catherine Kelly are fully and finally settled and released through this Decree and the Release attached hereto as Exhibit B and incorporated herein. F. Termination. If this Decree is not approved by the Court or the Settlement set forth in this Decree is terminated or fails to become effective in accordance with its terms (or, if following approval by this Court, such approval is reversed or modified), the parties shall be restored to their respective positions in this Action as of the date hereof; the terms and provisions
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of this Decree shall have no force and effect and shall not be used in this Action or in any proceeding for any purpose; the Settlement Fund shall be returned to AEFA (after deducting costs of providing Notice to Class Members which have been already paid or incurred as of the date of termination); any Judgment entered by the Court in accordance with the terms of this Decree shall be treated as vacated, nunc pro tunc; and the litigation of the Action would resume as if there had been no Decree, with no stipulated Classes.
G. Release/Bar of Claims. 1. Agreement and General Release and Written Consent. Before receipt of
any payment from the Settlement Fund, each Claimant shall execute and deliver to Class Counsel a Release in the form attached hereto as Exhibit B. Within seven days of receipt of a Release, Class Counsel will provide AEFA with the original Release and will retain a copy for Class Counsel’s records. The terms of Exhibit B are a material part of this Decree and are hereby incorporated as if fully set forth in the Decree; if Exhibit B is not finally approved by the Court, the Decree cannot become effective and the Settlement set forth in this Decree shall terminate as provided in Section III.F. of this Decree. Any Claimant who does not execute and timely deliver a Release shall be ineligible for, and forever barred from receiving, monetary relief under this Decree, even if said Claimant has not opted out. Moreover, any Claimant under this Decree who could assert a claim for age or unequal pay discrimination as of the date of preliminary approval of this Decree who does not execute and timely file a written consent with the Court and has not executed and timely delivered a Release shall be ineligible for, and forever barred from receiving, monetary relief for her age or unequal pay discrimination claim under this Decree.
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2. Dismissal With Prejudice. Within ten (10) business days after the Effective Date, this Action shall be dismissed with prejudice.
3. Res judicata. Res judicata shall apply to all Named Plaintiffs and Class Members except those who have been allowed by the Court to opt out under the provisions of this Decree and except that members of the Injunctive Class (other than Melissa Poole and Catherine Kelly) are not barred from seeking damages for the denial of their applications to become Financial Advisors. IV. GENERAL INJUNCTIVE RELIEF MEASURES A. Field Diversity Officer.
1. Appointment. AEFA shall appoint a Field Diversity Officer whose responsibilities may be shared by more than one person. The first officers appointed by AEFA will be Catherine Sweet and Paul Connolly. Any successor to either Catherine Sweet or Paul Connolly in their roles as Field Diversity Officer must be a person who, for purposes of fulfilling the Field Diversity Officer’s responsibilities, reports to an AEFA executive vice president. AEFA shall notify Class Counsel at least twenty-one (21) days in advance of the appointment of any successor and allow Class Counsel to communicate any gender-related sensitivities or issues regarding the successor. Class Counsel’s comments shall be considered by, but are not binding on, AEFA.
2. Communications. AEFA shall communicate the existence, functions, and identities of the Field Diversity Officer to all Financial Advisors no later than sixty (60) days after the Effective Date and shall notify all Financial Advisors of any successors.
3. Responsibilities of the Field Diversity Officer. The Field Diversity Officer position shall have a written job description which specifies the following responsibilities: (a) oversee implementation of the Decree and perform all duties
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enumerated therein; (b) review and make recommendations on Decree implementation issues brought to the Field Diversity Officer’s attention by AEFA personnel; (c) make recommendations on diversity practices at AEFA related to the allegations raised in the Complaint; (d) oversee resolution of complaints regarding alleged gender discrimination or harassment or complaints regarding AEFA’s alleged noncompliance with the Decree; and (e) review and approve all Employee Leader promotions to the AVP level and above.
4. Assistance for Field Diversity Officer. The Field Diversity Officer, at his or her discretion, may utilize persons who report to the Field Diversity Officer to assist the Field Diversity Officer in fulfilling the responsibilities entrusted to the Field Diversity Officer pursuant to this Decree. Where such assistance is rendered, the Field Diversity Officer shall oversee the work of the assisting employees.
5. Performance Rating. Fulfillment of the responsibilities of the Field Diversity Officer shall be an express written criterion in the Field Diversity Officer’s performance review, which shall specifically include an annual rating as to this criterion, and as a result, shall be a factor in the Field Diversity Officer’s compensation. Class Counsel shall be provided annually with a copy of the Field Diversity Officer’s rating on this criterion only and shall not have access to any other portions of the performance review. B. Diversity Training.
1. Diversity Training for Employee Financial Advisors. AEFA will provide to all employee Financial Advisors (except for those employee Financial Advisors hired after the Effective Date (“Newly Hired Employee Financial Advisors”)) mandatory diversity training through real-time web-based training within one year of the Effective
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Date. AEFA will provide diversity training through real-time web-based training for Newly Hired Employee Financial Advisors within the first six months of their hire date or one year of the Effective Date, whichever is later. AEFA also will provide one mandatory follow-up real-time web-based training to each employee Financial Advisor during the term of the Decree, unless the employee Financial Advisor terminates prior to the follow-up training, or was hired during the final 18 months of the Decree.
AEFA must submit the identity of the provider and the proposed curriculum or modifications thereto for all diversity training to Class Counsel for approval within at least sixty days prior to the commencement of said training; such approval shall not be unreasonably withheld, and Class Counsel’s approval or disapproval shall be given no later than thirty days before commencement of said training.
2. Diversity Training for Employee Leaders. AEFA will provide to all Employee Leaders within the first year following the Effective Date mandatory in-person diversity training. Training must include the subjects of gender bias in hiring, promotion and workplace environment. Thereafter, on an annual basis for the period of the Consent Decree, AEFA shall provide either in-person or real time web-based mandatory diversity training to Employee Leaders.
AEFA must submit the identity of the provider and the proposed curriculum or modifications thereto for all diversity training to Class Counsel for approval within at least sixty days prior to the commencement of training; such approval shall not be unreasonably withheld, and Class Counsel’s approval or disapproval shall be given no later than thirty days before commencement of said training.
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3. Records. During the term of this Decree, AEFA shall maintain records of (i) employees and Employee Leaders attending diversity training; (ii) materials used in such training and any modifications thereto; and (iii) any evaluation forms completed by attendees. AEFA shall provide copies of said records to Class Counsel twice per year. C. Guidelines for Company-Sponsored Activities. No later than sixty days after the Effective Date, AEFA will establish written guidelines, which must be approved by Class Counsel, such approval not to be unreasonably withheld, for employee Financial Advisors and Employee Leaders on appropriate company-sponsored activities for employees. The guidelines shall address the inclusion of diverse members of AEFA’s workforce in company-sponsored activities, as well as the appropriateness of the activity in light of the ways in which diverse members of AEFA’s workforce might perceive or react to the activity. D. Hiring.
1. Good Faith Hiring Goals. AEFA will use good faith efforts to hire new employee Financial Advisors at the following rate for each of the following years: (1) 2002 calendar year: 26% women; (2) 2003 calendar year: 28% women; (3) 2004 calendar year: 30% women; and (4) 2005 calendar year: 32% women.
2. Records. During the term of this Decree, AEFA shall maintain and provide to Class Counsel twice per year records reflecting the percentage of women hired in the aggregate and by market group. Reports shall be produced no later than four weeks after the close of the second and fourth quarters. E. Leads/Marketing Opportunities.
1. Marketing Opportunities/Client Acquisition Allowance for All Employee Financial Advisors. AEFA will provide to each employee Financial Advisor a client
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acquisition allowance, and will stratify employee Financial Advisors by length of service, providing the same sum to each Financial Advisor within a given length-of-service category. Employee Financial Advisors may use the allowance as they see fit for client acquisition activities and expenses, including but not limited to purchase of leads, funding of client seminars, or other activities. Non-employee Financial Advisors will not receive the client acquisition allowance.
2. Leads. All client leads will be purchased through a distribution center which AEFA will establish at its corporate headquarters. AEFA will distribute such leads to Financial Advisors without regard to gender on a randomized basis, pursuant to objective criteria to be developed by AEFA. The criteria shall be provided before implementation of the program for Class Counsel approval, which shall not be unreasonably withheld. The objective criteria may be amended by AEFA during the term of the Decree, with approval of Class Counsel, which shall not be unreasonably withheld. Lead distribution will be subject to availability. To the extent AEFA distributes leads as part of a Financial Advisor’s client acquisition allowance, such distribution will be done randomly pursuant to the objective criteria.
3. Leads Database. AEFA will create and maintain a centralized database for lead distribution, both for purposes of improving the objectivity of its lead distribution and for compliance with this Decree. The database will be configured to allow tracking both by lead and by Financial Advisor. Each lead will be tracked for the life of the lead (e.g. by client name). The database will include Financial Advisor name, Financial Advisor number, Financial Advisor status, gender, office location, market group and hire date. For each Financial Advisor, the number of leads requested, the type of lead
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requested, the number of leads assigned, the type of leads assigned, whether each lead assigned is a refreshed lead, and the amount the Financial Advisor is personally charged for the lead will be preserved in the database. When a Financial Advisor obtains a lead, she shall be informed if it is a refreshed lead. The Field Diversity Officer shall receive no less than twice annually printouts of lead distribution, broken down by market group, and review said printouts for equitable distribution.
4. Records. During the term of this Decree, AEFA shall provide to Class Counsel twice per year reports in hard copy and computer readable form setting forth the information in the preceding paragraph from AEFA’s centralized database for the preceding two quarters. Reports shall be produced no later than four weeks after the close of the second and fourth quarters.
5. Business Development Portion. The $4 million Business Development Portion, referenced in Section V.E. of this Decree, is separate and distinct from the client acquisition allowance referenced in this section, and any distribution from the Business Development Portion shall be in addition to the client acquisition allowance. F. Account Assignments.
1. Criteria. To the extent that AEFA assigns client accounts to its Financial Advisors, it will do so according to the following centrally established objective criteria. Client accounts will be assigned to Financial Advisors without regard to gender by designated client account assignment coordinators in their respective market groups, on a randomized basis, according to the central objective criteria, which shall include geography, Financial Advisor productivity, specialty expertise, and account value index. The definition of the criteria will be provided before implementation to Class Counsel for
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approval, which shall not unreasonably be withheld. For Financial Advisors employed by or otherwise affiliated with AEFA for six months or less, the central objective criteria may not include Financial Advisor productivity as a factor. The criteria shall be kept in writing at AEFA corporate headquarters, and may be amended from time to time within the term of this Decree with prior notice to Class Counsel.
Notwithstanding the criteria, client-initiated preference regarding specific Financial Advisors will be followed in all instances. In addition, non-employee Financial Advisors may reassign their client accounts pursuant to AEFA’s successor policy.
2. Account Assignment Database. AEFA shall create and maintain a centralized database at corporate headquarters of all client account assignments and all Financial Advisors eligible to receive client account assignments according to the predetermined objective criteria. The database of eligible Financial Advisors will be updated monthly with newly eligible Financial Advisors being entered into the system. The database must be accessible to persons in the market groups responsible for account assignment, and must be utilized by those persons for all client account assignments. The database shall include data concerning each Financial Advisor as to each of the objective criteria. It shall also include, both by client account and Financial Advisor, the following information: Financial Advisor name, Financial Advisor number, Financial Advisor status, gender, office location, market group, length of service, the value for each account assigned, the assigning leader if applicable, and whether the client made a specific request for the Financial Advisor. Each client account coordinator shall collect information from the market group regarding each assignment to the extent necessary to
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create and maintain the report. The market groups shall send to the Field Diversity Officer a report two times per year after the Effective Date.
3. Records. During the term of this Decree, AEFA shall provide to Class Counsel twice per year reports in hard copy and computer readable form setting forth the information in the preceding paragraph from AEFA’s centralized database for the preceding two quarters. Reports shall be produced no later than four weeks after the close of the second and fourth quarters. G. Promotions.
1. Posting. AEFA shall electronically post for a minimum of seven (7) days openings for all Employee Leader positions. The posting shall include written selection criteria, minimum qualifications, and essential job functions. AEFA will make promotion decisions without regard to gender. Each posting shall include the following EEO statement: “AEFA is an equal opportunity employer. It encourages all qualified applicants, regardless of race, gender, national origin, age, disability, sexual orientation, or other protected class status, to apply. It makes all selection decisions based on jobrelated criteria, without regard to the applicant’s protected class status.”
2. Interview. After receiving applications for any such opening, AEFA shall interview, if available, at least two applicants of each gender who meet the minimum qualifications stated in the posting.
3. Approval and Review of Promotions. Promotion decisions for Employee Leader positions at the level of AVP and above require express written approval of the Human Resources Department and the responsible Senior Vice President. The Field Diversity Officer shall review all promotion decisions to Employee Leader positions at
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the level of AVP and above, which shall not be final without the Field Diversity Officer’s written approval.
4. Reason for Promotion Decision. In those cases where a male applicant is selected for promotion over a minimally qualified female applicant, AEFA shall set forth in writing the reason why the minimally qualified female applicant was not selected. Applicants shall not be provided the written reason.
5. Diversity Training. AEFA’s diversity training for Employee Leaders shall include the subject of promotion practices, including interviewing techniques and gender sensitivities. The curriculum also will incorporate training on AEFA policy that applicants for promotions may not be questioned about their family obligations.
6. Communication. No later than sixty days after the Effective Date, AEFA shall create and communicate the availability of a leadership training development program which shall be available to all Financial Advisors regardless of gender.
7. Promotions Database. AEFA shall maintain written selection criteria for all Employee Leader positions. The written selection criteria for each position will be uniform and AEFA will use good faith efforts to apply said criteria to all applicants consistently. AEFA shall also maintain computer readable data for all applicants for vacancies for all Employee Leader positions. Said data shall include the name, Financial Advisor number, Financial Advisor status, gender, office location, market group, date of hire, previous three positions at AEFA, current salary and compensation and salary for previous three positions, name and Financial Advisor number for each person who applied for each position and the name and Financial Advisor number of the person selected for the position and any written reasons required by Section IV.G.4. Moreover,
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AEFA shall maintain copies of all postings for Employee Leader positions, including the complete job description, EEOC statement, and responses to the postings as well as documents sufficient to describe the Field Diversity Officer’s approval of field supervisor promotion decisions. Each decisionmaker shall forward to the Field Diversity Officer periodic reports documenting promotional decisions referenced in this Section.
8. Records. During the term of this Decree, AEFA shall provide to Class Counsel twice per year reports in hard copy and computer readable form setting forth the information in the preceding paragraph from AEFA’s centralized database for the preceding two quarters. Reports shall be produced no later than four weeks after the close of the second and fourth quarters. H. Mentoring.
1. Voluntary Mentoring Program. AEFA shall create a meaningful mentoring program available on a voluntary basis to all female Financial Advisors. AEFA shall make good faith efforts to obtain female Financial Advisor mentors to participate on a voluntary basis in promoting the success of their mentees. AEFA shall publicize the program annually during the term of the Decree, and encourage Financial Advisors to voluntarily participate. Depending on the availability of mentors, AEFA shall match mentors to mentees, and provide reasonable support for the program. At its sole discretion, AEFA may expand the voluntary mentoring program to include all Financial Advisors.
2. Records. During the term of this Decree, AEFA shall provide to Class Counsel twice per year documents sufficient to describe AEFA’s notice of the mentor
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program, solicitation of mentors, assignment of mentors and any feedback on the program received by AEFA.
I. Terminations. 1. Exit Interview Form. AEFA shall prepare and post an exit interview form
electronically and encourage departing Financial Advisors to complete and submit the form to AEFA. Twice per year, AEFA shall provide Class Counsel with an excerpt of any portion of the exit forms completed by female Financial Advisors which relate to any subject covered by this Decree.
2. Inquiries from Prospective Employers. In the event that employers inquire about departed AEFA Financial Advisors, it shall be the policy of AEFA that responses be provided solely by AEFA corporate Human Resources. AEFA will inform all Employee Leaders of this policy by memorandum, and Employee Leaders shall refer any inquiries to Human Resources at the corporate office. Failure of an AEFA Employee Leader to follow this policy will not be considered a breach of this Decree. AEFA’s corporate Human Resources department will provide only the last title held by Financial Advisor and dates of affiliation in response to any inquiring prospective employer. J. Complaint Procedure. No later than sixty (60) days after the Effective Date, AEFA shall implement for all employee Financial Advisors the Complaint Procedure, a copy of which is attached hereto as Exhibit G. No later than sixty (60) days after the Effective Date, said Complaint Procedure shall be distributed to all financial advisors. V. MONETARY RELIEF A. Settlement Fund. No later than 15 days after preliminary approval of this Decree, AEFA shall pay by wire transfer to the Depository Bank (pursuant to transfer instructions to be
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provided by Class Counsel within seven days after execution of this Decree by all parties) the sum of thirty-one million dollars ($31,000,000) plus interest, that has accrued at an annual rate of two percent (2%) from the date the Decree is executed by all parties to the date of deposit. This payment is made in order to satisfy the claims of all Named Plaintiffs and Damages Class Members as well as for other purposes identified in this paragraph. The monies so transferred, together with interest subsequently earned thereon, shall constitute the Settlement Fund. With the exception of additional administrative costs associated with the distribution of funds to Business Development Fund Claimants to be paid by AEFA (not to exceed $50,000), the abovedescribed $31 million Settlement Fund shall constitute all the funds or monies to be paid by AEFA in connection with: (1) the resolution of this matter; (2) this Decree (and attachments); and (3) the dismissal of this Action. This sum is inclusive of payment for: (1) all awards to and on behalf of Named Plaintiffs and Damages Class Members; (2) attorneys’ fees and expenses of Plaintiffs and the Classes; (3) all costs of notice and settlement administration; (4) all taxes imposed on the Settlement Fund subsequent to the date of its creation by Defendants’ transfer to the Depository Bank and all expenses related to those taxes, and (5) applicable federal, state and local income taxes, the employer and employee portions of FICA under Subtitle C of the Code, and all federal and state unemployment taxes required to be withheld and/or paid, with the exception of any taxes or expenses covered by the indemnification set forth at Section ___. Nothing in the foregoing sentence, however, shall release AEFA from expending the resources required to fulfill its responsibilities under this Decree.
B. Creation and Administration of Settlement Fund. 1. Creation.
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a) The Settlement Fund shall be established as a Qualified Settlement Fund under Section 468B of the Internal Revenue Code and administered by the Administrators under the Court’s supervision in accordance with Administrative Order No. 1. The Settlement Fund will consist of three portions: the Claims Portion (the amount of $17,500,000 plus interest and earnings), the Business Development Portion (the amount of $2,600,000 plus interest and earnings) and the Monitoring Portion (the amount of $10,850,000 plus interest and earnings). The first two portions shall together be referred to as the “Claimant Portions.” Applicants for awards for the first two portions shall together be referred to as “Claimants,” and recipients of awards from the first two portions shall together be referred to as the “Eligible Claimants.”
b) From the Settlement Fund and any income earned thereon, Eligible Claimants may receive payments, and Class Counsel shall be paid all fees and reimbursed for expenses incurred. Tax reserves and an appeal fund may be created out of the Settlement Fund and set aside before allocating the Settlement Fund among Eligible Claimants or Payees.
c) Thirty-five thousand dollars ($35,000) shall be allocated to pay Catherine Kelly to settle her claims against AEFA, and twenty thousand dollars ($20,000) shall be allocated to pay Melissa Poole to settle her claims against AEFA. 2. Administrators’ Administrative Responsibilities. In administering the Settlement Fund, the Administrators shall be bound by the terms of the Court’s Administrative Order No. 1, as that order may in the future be supplemented or amended
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by the Court to administer and carry out the purposes of the Decree, provided that no such supplementation or amendment shall alter the terms of the Decree or any of its attachments.
C. Claims Filing Procedures For Settlement Of Claims Of Plaintiffs And Damages Class Members. Damages Class Members shall be entitled to submit their claims to Class Counsel, under penalty of perjury, in accordance with the procedures set forth on the Claim Form attached hereto as Exhibit C. Any Damages Class Member who previously released claims which would otherwise be covered by this Decree, or who obtained a final judicial determination concerning claims which would otherwise be covered by this Decree, is not eligible to receive an award from the Claims Portion for those claims.
In order to receive an award from the Claimant Portions, a Damages Class Member must submit a Claim Form postmarked or hand delivered by a date to be established by the Court; provided, however, that if a Damages Class Member could assert a claim for age and/or unequal pay discrimination, she must also affirmatively and timely opt in to the Action in order to claim any such award from the Claimant Portions. Claim Forms postmarked after that date shall not be eligible, unless the Court determines that the reason for a late filing constitutes excusable neglect. Claim Forms shall be processed and reviewed by the Administrators. The Administrators shall recommend monetary awards from the Claimant Portions to the Court under seal.
D. Distribution Formula. Pursuant to a formula ordered by the Court, and in an effort to promote both fairness and efficiency, each Claim Form will be awarded points after
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review and after such verification as the Administrators deem appropriate of the information provided on the Claim Form. Verification may include, among other things, checking the relevant information on computerized databases maintained by the Administrators and Claimants' tax returns. The details of the point system to be applied are subject to Court approval on recommendation by Class Counsel after Claim Forms are received. The point system shall be applied uniformly, will not be discretionary after approval and may be amended only by Court Order. The total points awarded to all Claimants will be aggregated, and each Claimant's proportionate share of the total points will be determined. The Claimant shall then be allocated a commensurate proportion of the Claims Portion. Subject to Court approval, a Claimant may be required to obtain a minimum number of points to qualify for a monetary award. All monetary awards shall be subject to the review and approval of the Court before disbursement. All Damages Class Members receiving awards will be required to keep the amount of the awards confidential from everyone except Class Counsel, or any attorney, tax or Financial Advisor representing them or their spouse, life partner or members of their immediate family.
The Administrators will submit the proposed formula as soon as practicable following the expiration of the claims filing period. The Court will not conduct a hearing to hear argument on what the formula should be; however, a Claimant may have input into it either by writing to Class Counsel at the address set out in the Notice and/or by filing such materials with the Court as the Claimant deems necessary (provided she also provides complete copies of such to Class Counsel at least five (5) days in advance of filing with the Court). In determining approval of the distribution formula, the Court may take into account several factors, including: (1) tenure as a Financial Advisor affiliated with AEFA; (2) denial of leads; (3) denial of promotions;
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(4) denial of accounts; (5) denial of training, mentoring or marketing opportunities; (6) hostile work environment; (7) unequal compensation; (8) termination or constructive discharge; (9) age; (10) contributions to the prosecution of the litigation; and (11) economic losses and/or evidence warranting entitlement to compensatory damages. AEFA shall have no duty or obligation to produce additional documents, data or other information.
E. Business Development Portion. 1. Business Development Portion. The parties agree that $4 million of the
$31 million Settlement Fund, plus proportionate interest and earnings, shall be designated as the “Business Development Portion” to be distributed to Damages Class Members who submit Claim Forms and are current Financial Advisors and have been for no longer than seven years at the time the business development expense is incurred (“Eligible Business Development Claimants”). However, the seven-year restriction is not applicable to Named Plaintiffs. No business development expense incurred prior to the Effective Date shall be reimbursable by the Business Development Portion. The Business Development Portion is subject to attorneys’ fees and costs in the same proportion as the remaining $27 million of the total Settlement Fund. The Administrators shall recommend how much each Eligible Business Development Claimant initially will be allocated, pursuant to an allocation formula to be provided to AEFA and approved by the Court. The Administrators shall notify each eligible Business Development Claimant of her business development allocation, provide her a Business Development Claim Form and an explanation of the Business Development Claim process. The Eligible Business Development Claimants shall use their allocated awards for the purposes of business development, client entertainment, other marketing, training or education. Such awards
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are to be in addition to all other funds made available generally to Financial Advisors for marketing or business development purposes.
2. Obtaining Distributions from the Business Development Portion. In order to obtain a distribution from the Business Development Portion, an Eligible Business Development Claimant must timely submit a Claim Form and submit to the Field Diversity Officer and the Administrators a fully executed Business Development Claim Form. An Eligible Business Development Claimant may submit more than one Business Development Claim Form during the term of the Decree as long as the aggregate total sought by that Claimant does not exceed the total allocated for distribution to that Claimant.
3. Approval of Business Development Claim Forms by Diversity Officer. The Field Diversity Officer shall oversee the approval of completed Business Development Claim Forms submitted by Eligible Business Development Claimants, except that the Administrators shall determine whether the requested distribution exceeds the total allocated for distribution to each Eligible Business Development Claimant. The Field Diversity Officer shall oversee the approval of each Business Development Claim Form submitted by an Eligible Business Development Claimant which shall be approved if it comports with the existing internal approval process at AEFA, the business development expense was incurred after the Effective Date, and said Eligible Business Development Claimant: (1) is a Damages Class Member who timely submits a Claim Form; (2) is a Damages Class Member who timely submits a fully executed Business Development Claim Form on or after the Effective Date; (3) is affiliated with AEFA as a Financial Advisor at the time the business development expense is incurred, whether as
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an employee or independent contractor; (4) will incur (within one hundred twenty (120) days after execution of said Business Development Claim Form) or has already incurred a specific business development, client entertainment, other marketing, training or education expense relevant to the Eligible Business Development Claimant’s Financial Advisor practice with AEFA, which is sufficiently identified on said Form; (5) is and remains affiliated with AEFA as a Financial Advisor at the time the above-described expense is incurred; and (6) executes and submits the Release attached hereto as Exhibit B if she has not already done so. In the event that the business development expense has already been incurred, documentation to support that expense, including all receipts must be attached to the Business Development Claim Form. If the business development expense has not yet been incurred because the Business Development Claim form was submitted to obtain prepayment for a business development expense, the Eligible Business Development Claimant shall within sixty days of incurring the business development expense submit documentation (including all receipts) to the Field Diversity Officer to demonstrate that the funds disbursed were spent as approved. In the event that the expense is not incurred within 120 days after execution of the Business Development Claim Form, the documentation is not submitted to the Field Diversity Officer in a timely fashion, the Field Diversity Officer determines that the documentation does not support the claim, or the Eligible Business Development Claimant’s employment or other affiliation with AEFA terminates (voluntarily or involuntarily) prior to incurring the expense, the Eligible Business Development Claimant must refund to the Administrators the amounts disbursed to said Eligible Business Development Claimant, and said funds shall be redeposited into the Business Development Portion.
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The Field Diversity Officer shall provide a written explanation to the Administrators for any Business Development Claim Forms which are denied. No request contained in a Business Development Claim Form will be denied for any reason other than the criteria embodied in this Section, including AEFA’s existing internal approval process. Any Eligible Business Development Claimant who disputes the denial of her request may seek reconsideration by submitting to the Field Diversity Officer in writing a request for reconsideration setting forth the basis for her belief that her requests met all of the criteria referenced in this Section. The Field Diversity Officer shall provide the Administrators by mail with: (1) a copy of any request for reconsideration; and (2) a copy of the Business Development Claim Form. The Administrators shall have an opportunity to provide input if provided no later than ten (10) business days after the Field Diversity Officer mails the Administrators a copy of the request for reconsideration and a copy of the Business Development Claim Form. At any time following the tenth business day, but no later than the seventeenth business day, the Field Diversity Officer shall make the final decision on the request for reconsideration. The Administrators may, on behalf of a Business Development Claimant, appeal any denial of a request for reconsideration to the Special Master.
4. Notification of Administrators. On a quarterly basis, the Field Diversity Officer shall notify the Administrators in writing whether Business Development Claim Forms submitted by the Eligible Business Development Claimants have been approved or denied and shall provide the Administrators with all denied Business Development Claim Forms. Such notification shall take place prior to the end of the quarter each Business Development Claim Form was submitted for Forms submitted prior to thirty (30) days
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before the end of the quarter. For Business Development Claim Forms submitted thirty (30) days or less before the end of the quarter, such notification shall take place prior to the end of the subsequent quarter. Submission is effective upon receipt by the Field Diversity Officer. The quarterly reporting periods coincide with the following dates of each relevant year: April 1, July 1, October 1, January 2, or, if a weekend or holiday, the first business day thereafter. Notification by the Field Diversity Officer is effective upon mailing to the Administrators.
5. Approval of Business Development Claim Form by Administrators. The Administrators shall approve any Business Development Claim Form previously approved by the Field Diversity Officer as long as its approval would not cause the Eligible Business Development Claimant to exceed the total amount allocated for distribution to that Claimant.
6. Timing of Distribution of Business Development Portion. The Administrators shall pay to Eligible Business Development Claimants from the Business Development Portion the amounts requested on any Business Development Claim Forms which have been approved by the Field Diversity Officer and the Administrators within thirty (30) days following the Administrators’ receipt of notification from the Field Diversity Officer that the amounts requested have been approved. Payment to the Eligible Business Development Claimants by the Administrators is effective upon mailing.
7. AEFA Communication to Eligible Business Development Claimants. AEFA shall communicate to Eligible Business Development Claimants that the distributions available from the Business Development Portion are in addition to regular
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business development and marketing funds generally available to Financial Advisors. Moreover, the mailed Notice shall reflect that the distributions available from the Business Development Portion to Eligible Business Development Claimants are in addition to regular business development and marketing funds generally available to Financial Advisors.
8. Reallocation and/or Disposal of Unused Funds. In the event a person who otherwise would qualify as an Eligible Business Development Claimant terminates her affiliation with AEFA prior to obtaining reimbursement of all funds allocated to that person, those funds shall be made available for distribution to remaining Eligible Business Development Claimants pursuant to the process described in Administrative Order No. 1. Notwithstanding the requirement in Section V.E., the Administrators may, in their sole discretion, distribute reallocated funds to Eligible Business Development Fund Claimants even if such Claimants have not submitted a timely Claims Form. However, any Eligible Business Development Claimant receiving such reallocated funds must, before receiving any such funds, execute the Release attached hereto as Exhibit B if she has not already done so. In the event that the full amount of the Business Development Fund is not distributed by the expiration of the Decree, said remainder shall be donated to an organization which qualifies as a tax deductible charitable organization under the Internal Revenue Code.
9. Records. During the term of this Decree, AEFA shall maintain and provide the Administrators twice per year with documents sufficient to verify that the Business Development Portion is in addition to other funds available to Financial
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Advisors for marketing/business development purposes (including the funds available to Financial Advisors from their client acquisition allowance). 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 (the “Code”) and any Treasury Regulations promulgated thereunder, and shall be administered by the Administrators under the Court’s supervision in accordance with Administrative Order No. 1. 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 All Federal, State and Local Taxes By the Settlement Fund. The Settlement Fund shall pay to the appropriate taxing authorities any and all federal, state and local taxes that may be imposed on the Settlement Fund; (2) any applicable federal, state and local income taxes and employer and employee FICA taxes under Subtitle C of the Internal Revenue Code, and federal and state unemployment taxes required to be paid and/or withheld pursuant to this Decree, Administrative Order No. 1, or any applicable law. The Administrators shall arrange for the preparation and filing of all tax reports and tax returns required to be filed by the Settlement Fund and for the payment from the Settlement Fund of any taxes owed by the Settlement Fund and/or required to be withheld and/or deducted from distributions to Plaintiffs and Damages Class Members. The Administrators also shall arrange for the preparation, filing and issuance of any required IRS Forms 1099, W-2s or other tax related forms (including
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forms required by any state and local tax authorities) related to payments made to Plaintiffs and Damages Class Members from the Settlement Fund.
3. Indemnification by Plaintiffs and Damages Class Members. For purposes of this indemnification, each Plaintiff and Damages Class Member who receives a payment from the Settlement Fund shall be fully and ultimately responsible for payment of any and all federal, state or local taxes (excluding the employer share of employment taxes and unemployment taxes) resulting from or attributable to the payment received by such Damages Class Member. Each Plaintiff and Damages Class Member shall indemnify and hold AEFA, Class Counsel, the Depository Bank and the Administrators harmless from any tax liability, including penalties and interest, related in any way to any acts or omissions on the part of the Plaintiff or Damages Class Member, and shall indemnify and hold AEFA harmless from the costs (including, for example, attorneys’ fees and disbursements) of any proceedings (including, for example, investigation and suit), related to such tax liability. In all cases in which the tax liability that arises is not attributable to any acts or omissions on the part of a Plaintiff or Damages Class Member, the Plaintiff or Damages Class Member shall indemnify and hold AEFA, Class Counsel, the Depository Bank and the Administrators harmless from such tax liability, but not penalties and interest and not the costs of any proceedings related to such tax liability.
4. Determining Independent Contractor/Employee Classification. In those circumstances where a distribution will be made to a Plaintiff or Damages Class Member from the Settlement Fund, and for purposes of issuing Forms 1099s and Forms W-2, tax withholding and reporting, or otherwise complying with its obligations under applicable tax law, the Administrators shall follow the classifications historically used by AEFA to
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establish whether the Plaintiff or Damages Class Member was an employee or independent contractor for the time period in question.
5. AEFA Has No Obligation, Liability or Responsibilty. AEFA shall have no withholding, reporting or any other tax reporting or payment responsibilities with regard to the Settlement Fund or its distribution to Plaintiffs and Damages Class Members. Moreover, AEFA shall have no liability, obligation, or responsibility for the administration of the Settlement Fund, the determination of any formulas for disbursement, or the disbursement of any monies from the Settlement Fund except for (1) its obligation to pay the settlement amount plus applicable interest no later than 15 days after preliminary approval of this Decree; (2) its agreement to cooperate in providing information which is necessary for settlement administration set forth herein; and (3) its administration and payment obligations with regard to the Business Development Portion, as described in Section V.E. of the Decree; (4) any payments to the Special Master referenced in Exhibit F; and (5) the indemnification obligation as described in the following paragraph.
6. Limited Indemnification of the Administrators by AEFA. No later than 21 business days after preliminary approval, AEFA shall provide to Class Counsel by letter a computer readable list that reflects the historical classification for each Plaintiff or Damages Class Member between December 8, 1998 and the date of preliminary approval. AEFA shall indemnify and hold the Administrators harmless from any tax liability, including penalties and interest, and shall indemnify and hold the Administrators harmless from the costs (including, for example, attorneys’ fees and disbursements) of any proceedings (including, for example, investigation and suit), related to such tax
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liability or threatened liability, solely and only with respect to any challenge by taxing authorities to the correctness of the classifications contained in the list as long as the Administrators' classifications of the Plaintiffs and Class Members for employment tax and reporting purposes did not deviate from the classifications contained in the list. AEFA shall not indemnify the Administrators for any other liability, including, but not limited to, liabilities arising out of the Administrators’ deviations from the list, any decision to allocate a greater or lesser proportion of an award to one or more service periods as compared to other service periods, the formula pursuant to which the distributions will be made, the Administrators’ reporting decisions regarding any item and the Administrators’ withholding decisions which do not relate directly to AEFA’s historic classification of independent contractors and employees.
7. Right to Defend. The Administrators shall immediately notify AEFA in writing upon receipt of any notice of any tax audit, assessment, claim or investigation (“Classification Claim”) that falls within the scope of the limited indemnification provided by AEFA in the paragraph above. AEFA shall, at its own expense, represent the interests of the Settlement Fund in connection with said Classification Claim to the extent it may result in a tax liability of AEFA pursuant to the limited indemnification given to the Administrators in the preceding paragraph. AEFA shall not be obligated to pay any attorneys’ fees or expenses of any additional counsel that the Administrators or the Fund may retain in connection with any Classification Claim. VI. MONITORING A. Monitors. AEFA’s internal monitors shall be the Field Diversity Officer, described in Section IV.A. above. Class Counsel shall monitor on behalf of the Plaintiffs and the Class Members. AEFA will provide Class Counsel sixty (60) days notice of any change in
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monitors and the identity of the successor. Class Counsel will have thirty (30) days to provide any comments on the successor.
B. Semi-annual Meetings. During the term of this Decree, Class Counsel, the Field Diversity Officers and Counsel for AEFA will meet in person or by telephone conference call twice per year following production of required reports to Class Counsel. The participants shall discuss implementation of and compliance with the terms of this Decree, and shall make good faith efforts to resolve potential issues short of resort to enforcement mechanisms. Any information obtained by Class Counsel during these meetings shall be treated as confidential and shall not be used for any purpose except for enforcement of this Decree. VII. ENFORCEMENT
A. Complaint Procedure. 1. Grounds for Female Financial Advisor Complaints. Within sixty days of
the Effective Date, AEFA shall inform all female Financial Advisors in writing that if they believe AEFA has not complied with the terms of this Decree, they may complain in writing or verbally to AEFA management, Human Resources or the Field Diversity Officer. The grounds for such complaints include that: they are being treated unfairly as compared to male Financial Advisors, are being harassed because of their gender, are being retaliated against because of their status as a Class Member or Plaintiff, or believe that AEFA has not complied with any terms or obligations under this Decree.
2. Procedural Requirements. If said complaint is made to AEFA management, Human Resources or the Field Diversity Officer, it shall be reduced to writing and maintained in the Diversity Office, along with AEFA’s response to the complaint. Any manager who receives such a complaint, whether oral or in writing, shall forward it to the Field Diversity Officer. The Field Diversity Officer shall maintain a log
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of complaints, investigations and results. AEFA shall provide the log to Class Counsel on a semiannual basis, along with copies of written complaints and investigation results for the preceding two quarters.
3. Information Provided to Complainant. AEFA shall provide in writing to every female employee who complains verbally or in writing to AEFA management, Human Resources or the Field Diversity Officer regarding the issues referenced in section VII.A.1. the following: A copy of the Complaint Procedure; a copy of this Decree; and the name, address and phone numbers of Class Counsel, all within three (3) business days of the complaint.
4. Investigation of Complaints. Consistent with Section IV.A.4., the Field Diversity Officer shall be responsible for overseeing investigation of all such complaints. Investigations shall be completed within thirty (30) days after receipt of the complaint. The investigation results, including any remedial measures, shall be maintained by the Field Diversity Officer and provided to the complainant and Class Counsel. B. Enforcement Procedure.
1. Enforcement. The parties reserve all rights in connection with any enforcement proceedings, including, but not limited to, the right to propose remedies. The absence of enforcement provisions in this Decree shall not limit the remedies sought Class Counsel or those to be ordered by the Special Master and their enforcement by the Court. Moreover, nothing in this Decree precludes Class Counsel from proposing a remedy to Defendants in connection with discussions with the Field Diversity Officer prior to the institution of any enforcement proceeding.
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2. Conditions Precedent. Class Counsel may pursue enforcement of this Decree only after providing written notice and an opportunity to cure as provided below and only after conferring in good faith in an effort to resolve the issue.
3. Meeting of Class Counsel, Field Diversity Officer and Counsel for AEFA. No later than twenty-one (21) days of AEFA’s receipt of the written notice, Class Counsel, the Field Diversity Officer and Counsel for AEFA shall meet and confer in person or telephonically about the issue raised in the written notice in a good faith effort to resolve the issue.
4. Written Response. If the parties are unable to resolve the issue through discussion and negotiation, AEFA shall provide a written response to the allegation to Class Counsel within thirty (30) days after the meeting.
5. Right to Cure. AEFA shall have sixty (60) days from the date of the meeting to cure the violation, if any, and provide written notice of the cure to Class Counsel. If Class Counsel concludes that the cure is inadequate, enforcement proceedings may be commenced. Nothing in this Decree shall preclude any Class Member from pursuing whatever rights or remedies she otherwise may have, if any, outside the terms of the Decree.
6. Special Master. All proceedings, if any, shall be conducted before a Special Master to be appointed by the Court under Rule 53 in the city or cities selected by AEFA in AEFA’s sole and unilateral discretion. The Order and Stipulation of Reference which, among other things, appoints the Special Master, identifies the powers of the Special Master, and describes the rules and procedures to be applied, is attached hereto as
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Exhibit F. The terms of Exhibit F are hereby incorporated as if fully set forth in the Decree.
7. Special Master’s Orders. The Special Masters’ reports and recommendations once filed shall be full and enforceable orders of the Court and shall be final and binding on the parties without right of appeal without the right to further judicial review and/or appeal; provided, however, that before filing with the Clerk of this Court, the proposed findings of fact, legal conclusions and resolutions contained in the report and recommendations shall be circulated to the parties in draft pursuant to Rule 53(e)(5). The parties agree to this waiver of this right to judicial review and/or appeal because they value finality and wish to minimize the cost and uncertainty of further proceedings. The waiver is intentional, having been fully discussed and understood by each of the parties prior to execution of the Decree. VIII. CONFIDENTIALITY A. Documents and Information Exchanged Pursuant to Stipulation of Confidentiality. The documents and the information exchanged pursuant to the Stipulation of Confidentiality executed by defense counsel and Class Counsel and forwarded by Class Counsel to defense counsel on or about December 18, 2000 shall retain their confidential status, except to the extent that disclosure is necessary to obtain Court approval of this Decree. If such disclosure is deemed necessary by Class Counsel, Class Counsel shall identify the documents and information deemed necessary to disclose to AEFA four (4) business days prior to filing such documents with the Court, and if AEFA so request shall seek permission to file said documents with this Court under Seal. B. Documents and Information Produced Pursuant to this Decree. The documents and information which are produced by AEFA to Class Counsel pursuant to any provision of this
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Decree shall be treated as, and thereafter remain, confidential. Said documents and information shall not be disclosed to anyone other than the Court in connection with any proceeding to enforce any provision of this Decree. If such disclosure to the Court is deemed necessary by Class Counsel, Class Counsel shall identify the documents and information deemed necessary to disclose to Defendants four (4) business days prior to filing such documents with the Court, and if AEFA so request shall seek permission to file said documents with this Court under Seal.
C. Disposal of Confidential Documents and Information. Within thirty (30) days after the expiration of the Decree, the parties and their attorneys shall return, or at the producing party’s option, destroy all documents, including all copies, in their possession that have been produced by the other parties and designated “Confidential for Settlement Purposes Only” or similar designation pursuant to the Confidentiality Agreement or that have been produced pursuant to any provision of this Decree. Nothing herein shall preclude any party from responding to a lawful discovery request, subpoena or court order; provided, however, that the party against whom such discovery is sought or such subpoena or order is directed agrees to provide immediate notice and a copy of same to counsel for the other parties to this Decree. IX. PUBLICITY
Any written media communications any party intends to make shall be made available to opposing counsel at least 48 hours in advance to permit an opportunity to review and raise objections. If the parties cannot resolve any objections, they shall confer with mediator Linda Singer in an effort to mediate their differences prior to publication. The parties shall prepare their media communications consistent with the spirit, tone and scope of the Decree. The parties shall not publicly disparage each other or make inflammatory comments.
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X. GOVERNING LAW The parties agree that federal law shall govern the validity, construction and enforcement
of this Decree. To the extent that it is determined that the validity, construction or enforcement of this Decree or any Release executed pursuant to its terms is governed by state law, the law of Minnesota shall apply.
This Decree, including the Exhibits hereto, contains the entire agreement and understanding of the parties with respect to the Settlement. This Decree does not impose any obligations on the parties beyond the terms and conditions stated herein. Accordingly, this Decree shall not prevent or preclude AEFA from revising its employment practices and policies or taking other personnel actions during the term of this Decree so long as they are consistent with this Decree.
Except as specifically provided for in this Decree, this Decree may not be amended or modified except with the express written consent of the parties and the approval of the Court. XI. OTHER CONDITIONS OF SETTLEMENT
A. Exhibits. The Exhibits to this Decree 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 Decree shall be in writing and delivered by hand or by registered or certified mail, telegram or courier, or by facsimile confirmed by first-class mail, to counsel for the respective parties at their respective addresses set forth below (or to such other address as any such party 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 any prior or subsequent breach.
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D. Decree Binding. This Decree 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 Decree shall not inure to the benefit of any third party.
E. No Drafting Presumption. All parties hereto have participated, through their respective counsel, in the drafting of this Decree and, therefore, this Decree shall not be construed more strictly against any party.
F. Paragraph Headings. Paragraph headings are for convenience of reference only and are not intended to create substantive rights or obligations.
G. Counterparts. This Decree may be executed in counterparts. Each signed counterpart together with the others shall constitute the full Decree.
H. Final and Binding. All parties to this Decree acknowledge that this Decree is final and binding in all respects.
I. Authorization. Each signatory to this Decree represents that each is fully authorized to execute this Decree and to bind the parties on whose behalf each signs. DATED: January ___, 2002

_________/S/_____________________ Paul C. Sprenger (DC No. 412029) Michael D. Lieder (DC No. 444273) Steven M. Sprenger (DC No. 418736) SPRENGER & LANG, PLLC 1614 Twentieth Street, N.W. Washington, DC 20009 (202) 265-8010 (202) 332-6652 (facsimile)
/S/ Lawrence P. Schaefer (MN No. 195583) Susan E. Stokes (MN No. 226725)

/S/ Maurice W. O’Brien
(MN No. 130229) Nancy J. Miller (MN No. 203518) MILLER-O’BRIEN, PLLP 1208 Plymouth Building 12 South Sixth Street Minneapolis, MN 55402 (612) 333-5831 (612) 342-2613 (facsimile)
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Mara R. Thompson (MN No. 196125) SPRENGER & LANG, PLLC 325 Ridgewood Avenue Minneapolis, MN 55403 (612) 871-8910 (612) 871-9270 (facsimile)
ATTORNEYS FOR PLAINTIFFS AND THE CLASSES
DATED: January 17, 2002 AMERICAN EXPRESS FINANCIAL ADVISORS, INC. By _________/S/____________________ IDS FINANCIAL SERVICES, INC. By ___________/S/__________________ IDS LIFE INSURANCE, INC. By __________/S/___________________ AMERICAN EXPRESS FINANCIAL CORPORATION By _________/S/____________________ AMERICAN EXPRESS COMPANY By ________/S/_____________________
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 Case 1:02-cv-00082-HHK Document 10 Filed 03/20/02 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

SHELLEY KOSEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

AMERICAN EXPRESS FINANCIAL )

ADVISORS, INC. (“AEFA”), IDS

)

FINANCIAL SERVICES, INC.,

)

AMERICAN EXPRESS FINANCIAL )

CORPORATION and AMERICAN

)

EXPRESS COMPANY,

)

)

Defendants.

)

)

Civil Action No. 1:02CV00082 (HHK) CLASS ACTION

ORDER PRELIMINARILY APPROVING CONSENT DECREE AND DIRECTING NOTICE TO CLASS MEMBERS

Having considered the Plaintiffs’ Unopposed Motion for Issuance of (A) an Order Preliminarily Approving Consent Decree and Directing Notice to Class Members; (B) Administrative Order No. 1; and (C) an Order Finally Approving Consent Decree; the proposed Consent Decree; the contents of the proposed mailed and published notices, the Claim Form and Business Development Claim Form; all other documents submitted along with the Consent Decree and the unopposed motion; the record of this case; and the memorandum and arguments of counsel; and
Having been advised by counsel (“Class Counsel”) for the Plaintiffs and the two proposed settlement classes (“Classes”) and counsel for the defendants (together referred to as “AEFA”) that the proposed Consent Decree is intended to effect a full and final settlement of the

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claims of Plaintiffs and other members of the Classes with respect to AEFA’s employment actions and practices;
The Court makes the following findings: 1. This settlement was reached after more than six months of complex mediation, facilitated by Linda Singer of ADR Associates. The mediations were attended by multiple lawyers for Plaintiffs, including Class Counsel from Sprenger & Lang, PLLC and MillerO’Brien, PLLP, as well as AEFA’s internal counsel and outside counsel from the firms of Dorsey & Whitney and Jones, Day, Reavis and Pogue. Counsel also conferred frequently by telephone to resolve disputes. 2. During the course of the mediation, the parties reviewed and analyzed virtually all aspects of AEFA’s personnel practices including, but not limited to: hiring; lead and account assignments; compensation; mentoring; training; promotions; retention; and termination. 3. In addition to the extensive mediation sessions, the parties undertook substantial informal discovery. To this end, Class Counsel analyzed, with the assistance of their expert statistician, extensive computer-readable employment data produced by AEFA. Such data included information concerning advancement, compensation, retention and termination. Class Counsel also assembled voluminous anecdotal information from Plaintiffs and Class Members. 4. On January 23, 2002, the parties informed the Court that, through the mediation process, the attorneys had reached an agreement to settle the entire litigation and filed the instant motion as well as a host of related and supporting documents and pleadings. 5. The proposed settlement was negotiated in good faith at arms length by competent and experienced counsel for the parties and with the assistance of a skilled mediator, and appears to be fair, reasonable and adequate under Fed. R. Civ. P. 23, and consistent with Title VII of the
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Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), the Equal Pay Act, 29 U.S.C. § 206(d) et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
6. The parties propose that the Court certify the following Classes: As to Injunctive Relief Alone: All women who applied to work for or to otherwise become affiliated with and who were rejected by American Express Financial Advisors, Inc. for positions as Financial Advisors at any time between December 8, 1998 and the date of preliminary approval (“Injunctive Class”). As to Damages and Injunctive Relief: All women employed by or otherwise affiliated with American Express Financial Advisors, Inc. as Financial Advisors at any time between December 8, 1998 and the date of preliminary approval (“Damages Class”) 7. Each of the Classes appears to have too many members who are too widely scattered around the country for joinder to be practicable. 8. The claims of the members of each of the proposed Classes appear to raise numerous common factual and legal issues, some of which are identified in paragraph 53 of the Complaint. 9. The claims of 15 plaintiffs appear to be typical of the claims of other members of the Damages Class, and the claims of the other two plaintiffs appear to be typical of the claims of the other members of the Injunctive Class. 10. The plaintiffs appear to be adequate representatives of the Classes of which they are members. They have together engaged experienced and adequate Class Counsel. They also do not appear to have any interests in conflict with those of the unnamed members of their respective Classes. 11. AEFA appears to have adopted policies and practices in evaluating applicants for positions as financial advisors that have been generally applicable to such applicants. The parties agree that it would be impracticable to try to assemble the information necessary to evaluate claims for damages by members of the Injunctive Class. Accordingly, the only remedy
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provided in the Consent Decree for members of the Injunctive Class (except for the two named plaintiffs for whom information is available) is injunctive. The Decree does not restrict any member of this class (except the two named plaintiffs) from pursuing claims for damages in the future.
12. AEFA appears to have adopted personnel policies and practices, such as with respect to lead and account assignments, pay, promotions, mentoring, training, investigation of complaints, diversity training and terminations, that have been generally applicable to Financial Advisors. The scope of the negotiated injunctive relief indicates that this relief may predominate for the members of the Damages Class. Furthermore, common issues concerning these personnel policies and practices and their impact on female Financial Advisors appear to exceed in importance solely individual issues associated with the claims of Plaintiffs and Damages Class members. Although these common issues would have a major impact on any litigation over the appropriate measure of monetary relief for each class member, each Class Member’s damages claim also would be influenced by purely individual facts. For example, compensation among class members has varied substantially, and some class members have sought promotions to managerial positions while others have not. Because of these variations, a relatively small number of class members may believe that they are entitled to damages beyond those that may be afforded under this settlement. The Consent Decree accordingly provides members of the Damages Class with opt out rights with respect to their claims for monetary relief. However, for the great majority of members of the Damages Class, a class action appears to be the best means of litigating their claims for monetary relief.
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13. Under 29 U.S.C. § 216(b), a person may opt in to an action under the EPA or the ADEA if she is similarly situated to the named plaintiffs and gives her written consent to participate.
14. The members of the Damages Class who assert that they were paid less than similarly-situated men are similarly situated to the plaintiffs for purposes of asserting claims under the EPA, and the members of that class who were forty or older when affiliated as Financial Advisors with AEFA are similarly situated to the seven plaintiffs who were over the age of forty.
15. All members of the Damages Class who fill out the sections of the Claim Form dealing with claims under the EPA and ADEA will be deemed to have given their written consent to participate in the EPA and ADEA actions.
16. The proposed Consent Decree does not provide for any class-wide preferential treatment via quotas or for the displacement of any incumbent from a job.
17. The provisions for notice to Class Members are designed to provide notice to as many Class Members and other interested individuals as possible at reasonable cost. AEFA will provide all information necessary to allow Class Counsel to effect mailed notice to members of the Damages Class in a timely manner following the issuance of this Order. Notice of the settlement also will be published in the national edition of The Wall Street Journal and Investment News, two publications widely read by persons in the financial advice industry.
ACCORDINGLY, IT IS ORDERED: 1. The proposed Consent Decree which incorporates the terms of the settlement is preliminarily approved.
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2. The Injunctive Class is preliminarily established pursuant to Fed. R. Civ. P. 23(b)(2) and may be maintained for the purpose of the proposed settlement and Consent Decree.
3. The Damages Class is preliminarily established pursuant to Fed. R. Civ. P. 23(b)(2) for the purposes of participating in the injunctive relief negotiated in the Decree. For purposes of claiming entitlement to monetary relief, the class is preliminarily established pursuant to Fed. R. Civ. P. 23(b)(3). Members of the Damages Class may therefore opt out of the monetary portion of the settlement in accordance with Fed. R. Civ. P. 23 (c)(2).
4. The preliminary approval of the Decree and preliminary establishment and maintenance of the Classes are expressly subject to final approval of the Decree after providing notice as described below, reviewing comments and/or objections, if any, and conducting the fairness hearing.
5. Notice of the proposed settlement, the fairness hearing and manner of submitting requests for exclusion from the settlement (opt-outs) and objections to the settlement shall be given by: mail to Damages Class Members at current or last known addresses in the form attached to the Decree as Exhibit D; by publication on the internet; and by publication to all Class Members and other interested individuals in the form attached to the Decree as Exhibit E and in the manner specified in the Consent Decree. The Claim Form attached to the Decree as Exhibit C is also approved and shall be sent by Class Counsel to all persons who receive the mailed notice and shall be available on the internet.
6. AEFA shall produce to Class Counsel within five business days of this Order the following electronic data with respect to each member of the Damages Class, preferably in Microsoft Access or other compatible format: first name, last name, middle name or initial, social security number, advisor number, last known mailing address (including complete street
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address, box number, apartment number, city, state and zip code, along with any other pertinent information necessary for mail to reach the address), and dates the person worked as a financial advisor between December 8, 1998 and the date of this Order.
7. The Schedule for Mailing and Publication of Notice proposed by Class Counsel, attached as Exhibit 1 to this Order, is approved.
8. Members of the Damages Class who wish to opt-out (as provided in the Consent Decree) and members of either Class who wish to object to all or part of the proposed Consent Decree shall mail their opt-outs or objections, and current AEFA employees who might be affected by the Decree shall mail their objections, to the Clerk of Court postmarked no later than, and in the manner, specified in the Notices from this Court attached to the Decree as Exhibits D and E. Any Class Member or current AEFA employee who might be affected by the Decree and who has timely filed a written objection may present argument at the fairness hearing unless otherwise ordered by the Court for good cause shown. The Court shall give full consideration to written objections regardless of whether the objector elects to appear at the fairness hearing.
9. Class Counsel and Counsel for AEFA may conduct reasonable discovery from any objecting person at any time after such objection is filed up to and including the last business day before the fairness hearing.
10. Any member of the Class who has a right to opt out of the Class under the proposed Consent Decree and does not avail him/herself of that right as provided herein will be barred from electing to opt out.
11. The hearing on the Motion for Final Approval shall occur on __[date]______.

Dated: __________________, 2002

__________________________________ The Honorable Henry H. Kennedy
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Case 1:02-cv-00082-HHK Document 10 Filed 03/20/02 Page 8 of 8 Judge, United States District Court for the District of Columbia
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 Case 1:02-cv-00082-HHK Document 15 Filed 06/16/02 Page 1 of 30

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

SHELLEY KOSEN, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 1:02CV00082 (HHK)

)

AMERICAN EXPRESS FINANCIAL

)

CLASS ACTION

ADVISORS, INC. (“AEFA”), IDS

)

FINANCIAL SERVICES, INC.,

)

AMERICAN EXPRESS FINANCIAL

)

CORPORATION and AMERICAN

)

EXPRESS COMPANY,

)

)

Defendants.

)

ORDER APPROVING CONSENT DECREE Having considered the filings and oral presentations of the parties concerning the proposed settlement of the dispute between the named plaintiffs and defendants with respect to

AEFA’s employment actions and practices and having conducted a fairness hearing at which

persons with comments were invited to give their opinions about the settlement, the Court makes

the following:

FINDINGS OF FACT

BACKGROUND 1. American Express Financial Advisors, Inc. is a Delaware corporation with its
principal place of business in Minneapolis, Minnesota. The other defendants are the corporate parent and various affiliates of American Express Financial Advisors, Inc. The claims of the plaintiffs are directed against the policies and actions of American Express Financial Advisors, Inc., and the defendants are therefore collectively referred to herein as “AEFA.”
2. The named plaintiffs are seventeen women. Fifteen of them are current or former financial advisors affiliated with AEFA and therefore members of the Damages Class as defined

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in paragraph 3 below. Two of the plaintiffs were rejected for positions as financial advisors with AEFA and are thus members of the Injunctive Class as defined in paragraph 3 below.
3. The Consent Decree that the parties have negotiated provides for the creation of two settlement classes, defined as follows:
As to Injunctive Relief Alone: All women who applied to work for or otherwise become affiliated with and were rejected by American Express Financial Advisors, Inc. for positions as Financial Advisors at any time between December 8, 1998 and March 20, 2002 (“Injunctive Class”). As to Damage and Injunctive Relief: All women employed by or otherwise affiliated with American Express Financial Advisors, Inc. as Financial Advisors at any time between December 8, 1998 and March 20, 2002 (“Damages Class”) 4. Four of the women who became named plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”) against AEFA on October 4, 1999. Subsequently, the remaining 13 named plaintiffs filed charges of discrimination. 5. In 2000, before the EEOC had issued any right-to-sue letters and hence before any complaint had been filed, the parties agreed to attempt to negotiate a settlement of the dispute. They then spent a number of months negotiating the information to be exchanged, exchanging information, and agreeing upon a mediator for the negotiations. They selected Linda Singer of ADR Associates, a mediator experienced in the facilitation of negotiations in complex litigation. 6. This settlement was reached after more than six months of complex, arms-length negotiations facilitated by Ms. Singer. The mediations were attended by lawyers for Plaintiffs, including lawyers from Sprenger & Lang, PLLC and Miller-O'Brien, PLLP (“Class Counsel”), as well as AEFA’s internal counsel and outside counsel from the firms of Dorsey & Whitney and Jones, Day, Reavis and Pogue. Counsel also conferred frequently by telephone to resolve disputes.
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7. The Decree contains significant monetary and injunctive relief. The Decree addresses every significant issue plaintiffs raised in their Complaint: hiring, lead and account assignments, mentoring programs, interview and job selection procedures, pay, EEO investigative techniques and corporate accountability, harassment, termination, and diversity training.
8. During the course of the mediation, the parties reviewed and analyzed virtually all aspects of AEFA’s personnel practices including, but not limited to: hiring; lead and account assignments; compensation; mentoring; training; promotions; retention; and termination.
9. In connection with the mediation sessions, Class Counsel and counsel for AEFA analyzed, with the assistance of an expert statistician, extensive computer-readable employment data produced by AEFA. This data included information concerning advancement, compensation, retention and termination. Class Counsel also assembled voluminous anecdotal information from Plaintiffs and Class Members, while counsel for AEFA obtained information from its client.
10. In December 2001, the parties reached an agreement in principle to resolve the dispute. On January 17, 2002, the plaintiffs filed their Complaint. On January 18, 2002, the parties filed a Consent Decree, two proposed orders with numerous exhibits, a motion for preliminary approval of the settlement, and supporting papers.
11. On March 20, 2002, the Court entered both of the orders proposed by the parties: (a) an Order Preliminarily Approving Consent Decree and Directing Notice to Class Members (“Preliminary Approval Order”), and (b) Administrative Order No. 1. The Preliminary Approval Order, provided for, among other things, notice of the proposed settlement to be given to members of the proposed Classes. The Court approved a three-pronged plan for providing
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notice to class members, involving the mailing of notice to members of the Damages Class, the publication of notice in two publications, and the creation of a website that provided information about the settlement and gave Class members and others the ability to download settlement documents. In the Preliminary Approval Order, the Court also approved the forms of notice attached as Exhibits D and E to the Consent Decree (“Mailed Notice” and “Published Notice” respectively) as meeting the requirements of Fed. R. Civ. P. 23 to inform class members of the terms of the settlement and of the steps class members needed to take to file claims and to object to or exclude themselves from the settlement.
12. A second order, Administrative Order No. 1, appointed two of Class Counsel – Lawrence P. Schaefer and Maurice W. O’Brien -- as administrators (“Administrators”) of the settlement fund to be created under the terms of the Consent Decree. I. PROVISION OF NOTICE TO CLASS MEMBERS
13. Pursuant to the Preliminary Approval Order, AEFA provided Class Counsel with the names, social security numbers, last-known addresses and other information concerning all of the 4,111 members of the Damages Class recorded in AEFA's computer-readable records. The Administrators meanwhile engaged Rust Consulting, Inc. to assist it in the performance of their duties as Administrators, including with respect to mailed notice.
14. On March 29, 2002, Rust mailed by first class mail the Mailed Notice and the claim form attached as Exhibit C to the Consent Decree (“Claim Form”) to all 4,111 members of the Damages Class recorded in AEFA's computer-readable data. (The Mailed Notice and the Claim Form together are referred to as the “Notice Package.”) Through May 30, 2002, only 106 of the Notice Packages had been returned as undeliverable, and Rust had been able to use other
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resources to identify more current addresses for 67 of those class members, leaving only 39 Damages Class members for whom Rust does not appear to have accurate addresses yet.
15. In addition, the Published Notice was published, in accordance with the Schedule attached as Exhibit 1 to the Preliminary Approval order, twice apiece in The Wall Street Journal and in Investment News, two publications widely read by participants in the investment advice industry.
16. Finally, Class Counsel prepared a website from which members of the settlement classes and other interested parties could find out about the settlement and download any of the settlement documents.
17. These actions by Class Counsel, including the Administrators, to inform members of the settlement classes of the settlement conform with the obligations of Class Counsel and the Administrators under the Preliminary Approval Order and are sufficient to inform class members of the settlement to the extent reasonably practicable. II. THE SETTLEMENT CLASSES
A. The Rule 23 Classes 18. Each of the Classes has too many members who are too widely scattered around the country for joinder to be practicable. 19. The claims of the members of each of the proposed Classes raise numerous common factual and legal issues, some of which are identified in paragraph 53 of the Complaint. 20. The claims of the 15 plaintiffs who are members of the Damages Class are typical of the claims of other members of the Damages Class, in that they arise from the same practices that give rise to the claims of the other members of the class. Similarly, the claims of the other
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two plaintiffs are typical of the claims of the other members of the Injunctive Class, in that they arise from the same practices that give rise to the claims of the other members of the class.
21. The plaintiffs are adequate representatives of the Classes of which they are members. They have together engaged experienced and adequate Class Counsel. They also do not have any interests in conflict with those of the unnamed members of their respective Classes.
22. AEFA adopted policies and practices in evaluating applicants for positions as financial advisors that have been generally applicable to such applicants. All members of the Injunctive Class were rejected for employment or affiliation with AEFA. The only remedy provided in the Consent Decree for members of the Injunctive Class (except for the two named plaintiffs for whom information is available) is injunctive. The Decree does not restrict any member of this class (except the two named plaintiffs) from pursuing claims for damages in the future.
23. AEFA adopted personnel policies and practices with respect to lead and account assignments, pay, promotions, mentoring, training, investigation of complaints, diversity training and terminations that have been generally applicable to financial advisors. During its term, the Consent Decree will alter each of these policies and practices. The scope of the negotiated injunctive relief indicates that this relief predominates in importance over monetary relief for the members of the Damages Class.
24. Common issues concerning the nature of these personnel policies and practices and their impact on female employees would exceed in importance solely individual issues in litigating the claims of Damages Class members, especially in the litigation of liability issues. Each Class Member’s damages claim, however, also would be influenced by purely individual
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facts. For example, compensation among class members has varied substantially, and some class members have sought promotions to managerial positions while others have not.
25. As of May 30, 2002, 340, or over 8%, had already submitted Claim Forms. Only 22 of the 4,111 Damages Class members, or about 0.5%, tried to exclude themselves from the settlement.
B. The Opt-In Collective Actions 26. All fifteen of the plaintiffs who are or were financial advisors assert claims under the Equal Pay Act (“EPA”) that they have been paid less than similarly situated males. Other female financial advisors are similarly situated to the plaintiffs: they all filled the same positions, the types of compensation available to financial advisors were the same for all of them, and the policies and practices that determined compensation were the same for all of them. 27 Seven of the fifteen plaintiffs who are or were financial advisors assert claims of “gender plus age” discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Other female financial advisors who are or were at least forty years of age when working as a financial advisor are similarly situated to the seven plaintiffs: they all filled the same positions and they were subject to the same personnel policies and practices. 28. The Mailed Notice informs members of the Damages Class of their opportunity to opt in to the EPA and ADEA actions, and the Claim Form gives them an opportunity to do so. 29. Through May 30, 2002, all Damages Class members who filed claim forms had opted into the EPA collective action, and all Damages Class members over 40 years old who filed claim forms had opted into the ADEA collective action.
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III. EVALUATION OF THE SETTLEMENT A. The Relief Provided by AEFA to the Class 1. The Settlement is the Result of Arms Length Negotiations 30. This settlement was reached after almost a year of complex, arms-length
negotiations facilitated by Ms. Singer. Numerous lawyers attended and conducted these negotiations. The mediation sessions included ten in-person meetings and numerous telephone conferences.
2. The Terms of the Settlement in Relation to the Strength of Plaintiffs’ Case and the Risks of Litigation Support Approval of the Settlement.
31. The injunctive relief provided by the settlement is comprehensive. The provisions address every significant issue raised by the plaintiffs in the Complaint: hiring, lead and account assignments, mentoring programs, interview and job selection procedures, pay, EEO investigative techniques and corporate accountability, termination, and diversity training. Systemic changes like these go beyond the relief that typically is awarded by courts after trials in employment discrimination class cases and probably could have been obtained only through negotiations. .
32. The $31,000,000 monetary fund created pursuant to the settlement will adequately compensate members of the Damages Class for any claimed losses. It is smaller than the maximum possible exposure calculated by plaintiffs’ statistical expert, but considerably greater than the maximum exposure calculated by defendants. It appears to be one of the largest funds ever created in a gender discrimination case.
33. The settlement does not provide any monetary relief to members of the Injunctive Class. The state of defendants’ records concerning the application process made negotiation of
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classwide monetary relief impracticable. Recognizing this, the terms of the Consent Decree do not bar members of the Class from initiating suits seeking monetary relief.
34. This relief obtained for members of both classes warrants approval of the settlement when measured against the likely outcome if this case were litigated.
35. The plaintiffs and class members faced three substantial risk factors in this case in addition to the risks, expenses and delay normally associated with employment discrimination class actions. First, AEFA classified many of the proposed class members as independent contractors and not employees during much of the time involved in the class period. In early 2001, Judge James Rosenbaum of the United States District Court for the District of Minnesota, in a case brought on behalf of all AEFA financial advisors alleging violations of ERISA, expressed skepticism concerning the issue that the financial advisors were employees instead of independent contractors. The case, Lambert v. American Express Financial Corp., Civ. File No. 99-CV-493 (JMR/SRN) (D. Minn.), settled shortly afterward, without Judge Rosenbaum having to decide the issue. If this issue had been resolved in AEFA’s favor in this case, it could have dramatically reduced the size of the potential Damages Class and the amount of the potential recovery. Second, the proposed Damages Class encompasses over 4,000 financial advisors who have worked throughout the country at numerous locations under numerous managers, making class certification more problematic. Third, the plaintiffs intended to seek recovery of compensatory and punitive damages on behalf of all class members should litigation commence, again making certification more problematic.
36. Regardless of the outcome, litigation would have been protracted and expensive, especially if the litigation proceeded through a full-scale liability trial and a large number of individual damages hearings.
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3. The Stage of the Litigation Proceedings at the Time of Settlement 37. During the course of the mediation, Class Counsel obtained the information to assess the settlement by four means. First, they had contact with over 560 witnesses, conducted about 90 extensive interviews, and prepared 45 declarations summarizing the information obtained, in addition to regularly conferring with the named plaintiffs. Second, prior to and during the negotiation process, they obtained information about AEFA’s policies and AEFA’s computerized personnel information from the defendant, the same type of information that could have been obtained if the parties had proceeded to litigation only through a series of document production requests and depositions. Third, they engaged a recognized statistical expert who analyzed AEFA’s data and prepared a series of analyses, provided the results of those analyses to AEFA, and received from AEFA a summary of the results of the analysis performed by the company’s expert. Finally, many of the most difficult issues, such as whether the financial advisors were employees or independent contractors and whether Minnesota law would have extended beyond the state’s borders, were largely legal in nature. Counsel analyzed each of them, often from several different perspectives. 38. Because of these efforts, the early stage of the litigation did not prevent counsel from adequately assessing the settlement.
4. Reaction of the Class to the Settlement 39. The Court’s Preliminary Approval Order required that all opt-outs from and objections to the settlement from class members be postmarked by May 17, 2002. As of May 30, 2002, Class Counsel had received no objections to the settlement. 40. As of May 30, 2002, Class Counsel had received 22 opt-outs from the settlement, 21 postmarked on or before May 17, 2002 and one postmarked on May 23, 2002. Of the 22 opt-
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outs, only four have offered reasons for why they desire to opt-out: two state they didn’t feel they suffered sex discrimination while employed by or affiliated with AEFA as financial advisors, one indicates nothing about sex discrimination but appears to believe she has a fraudulent misrepresentation claim, and one wishes to pursue her claims through an individual action.
41. The lack of objections, the relatively small number of opt outs, and the substantial number of claimants (see finding 25 above), show strong support for the settlement from class members.
5. The Opinion of Experienced Counsel 42. Class Counsel has extensive experience in prosecuting employment discrimination class actions. Class Counsel and the class representatives believe that this settlement is fair, reasonable and adequate. B. Allocation of the Benefits of the Settlement 43. Both the injunctive and monetary benefits of the settlement will be shared by plaintiffs and class members. With one relatively minor exception, plaintiffs are not singled out for any unique benefits. 44. The changes in policies and practices mandated by the injunctive provisions of the Decree will be equally available to plaintiffs and all members of both settlement classes. The Decree does not contain any injunctive provisions, such as job relief, specifically benefiting named plaintiffs. 45. The Decree provides that the Claims Portion of the Fund will be allocated to members of the Damages Class who timely file claim forms based on a formula to be developed by Class Counsel and approved by the Court that awards points for different forms of losses
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covered by the settlement. The details of the formula, as well as the specific awards, must be submitted to the Court for approval before any disbursements are made.
46. The Decree also provides that the Business Development Fund will be allocated among plaintiffs and other members of the Damages Class who are currently employed as financial advisors by AEFA based on a formula to be developed by Class Counsel and approved by the Court. Again, the details of the formula must be submitted to the Court for approval before any disbursements are made.
47. The only benefit that named plaintiffs are receiving that class members are not is that the two plaintiffs who are members of the Injunctive Class but not the Damages Class will receive awards of $35,000 and $20,000. As stated above, Class Counsel lacked the information necessary to negotiate monetary relief for the members of the Injunctive Class. Class Counsel did have information concerning the circumstances of these two plaintiffs, however.
48. Many of the injunctive provisions are designed to make AEFA's human resources policies and practices fairer for all financial advisors and potential financial advisors, not just for female advisors and applicants. The Decree does not provide for any class-wide preferential treatment via quotas or for the displacement of any incumbent from a job.
49. The Decree fairly allocates the benefits of the settlements among plaintiffs and class members.
C. The Requested Award of Attorneys' Fees and Expenses 50. The settlement provides that Class Counsel will receive 35% of the total amount paid by defendants, or $10,850,000, plus allocable interest, to cover all fees and expenses already incurred and to be incurred in administering and monitoring the settlement. Thirty percent will be payable upon the Effective Date of the Decree (as set forth in §III.C. of the
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Decree), 3% will be payable on December 15, 2002, and 2% will be payable on December 15, 2003.
1. Fees Allocable to Work Already Performed 51. Based on experience in other cases, it is reasonable to believe that the fees at lodestar rates and expenses involved with claims administration and monitoring over the next four years will be in the range of $1.75 to $2.25 million. 52. Lawyers who represent plaintiffs in class cases not brought under the civil rights laws, such as securities fraud and antitrust cases, generally do not incur any or incur only minimal attorneys’ fees and costs post-settlement. 53. Class Counsel’s requested award also includes reimbursement for expenses already incurred, of more than $291,000. 54. Subtracting the projected fees and expenses for administration and monitoring and the actual expenses already incurred of $291,000 from the $10,850,000 request brings the request for fees for work already performed down to approximately 27% of the settlement fund.
2. Reasonableness of Fee Request a. The size of the fund created and the number of persons benefited
55. As stated above, this is one of the largest gender discrimination settlements ever negotiated and also provides substantial injunctive relief. Negotiating and drafting the provisions concerning injunctive relief consumed more hours and energy than did the provisions concerning monetary relief.
b. The presence or absence of substantial objections by members of the class to the settlement and/or the requested fees
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56. Not only have no class members objected to the settlement, but also no class

members have objected to the provisions concerning attorneys’ fees.

c.

The skill and efficiency of the attorneys involved

57. One of the firms comprising Class Counsel, Sprenger & Lang, specializes in class

action litigation on behalf of plaintiffs, generally employees, and has achieved many favorable

results in this District and elsewhere. Among the highlights are settlement of age discrimination

collective action lawsuits against First Union Corporation and Ceridian Corporation for $58.5

million and $28.5 million respectively, settlement of race discrimination lawsuits against PEPCO

and Amtrak in this District for total amounts of over $62 million in cash plus sweeping

injunctive relief, certification of the first hostile environment class against women and then

achievement of the first liability finding to the class in a hostile environment case, earning what

Class Counsel believes is the largest settlement ever in a plant closing case, and settlement of a

landmark ERISA case for $26 million.

58. The other firm, Miller-O’Brien, is one of the most respected plaintiffs’ labor and

employment firms in the State of Minnesota.

59. The attorneys of the two firms who primarily worked on this case have played

leading roles in their firms’ employment cases, giving them a wealth of experience in class

action and employment discrimination litigation relevant to this case.

60. Opposing counsel from Dorsey & Whitney is of equivalent skill and experience.

d. The complexity and duration of the litigation 61. This case was factually complex. Class Counsel had to identify the policies and

procedures that contributed to the alleged discrimination and develop evidence that those

policies and practices were administered centrally in a discriminatory manner and that AEFA

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had a pattern or practice across offices scattered across the country of administering the policies and procedures in a discriminatory manner. This, as discussed below, necessitated numerous contacts with numerous class members and other witnesses.
62. This case also was legally complex. Among the unresolved issues were questions associated about AEFA’s potential liability to plaintiffs and class members it classified as independent contractors, and issues associated with whether plaintiffs would have met the requirements for proceeding on behalf of a class.
63. The litigation lasted about three years from the commencement of investigation by Class Counsel, and about two years from the filing of the initial class charges of discrimination with the Equal Employment Opportunity Commission, until the parties agreed to a settlement. By litigation standards in the employment discrimination class action arena, the parties were remarkably efficient in reaching resolution so quickly. The pre-suit nature of this settlement was only made possible, however, by the parties’ agreement, as a condition of conducting meaningful settlement negotiations, to the voluntary exchange of voluminous discovery, the sort of exchange that generally occurs only in cases that are hotly and comprehensively litigated. Class Counsel put in a extraordinary amount of work to assimilate the information and settle the case.
e. The risk of nonpayment 64. Employment discrimination class actions are very risky. The difference in risk between them and many other types of class actions, including antitrust, securities fraud, and consumer product class actions, is highlighted by the lack of competition among plaintiffs’ lawyers to prosecute them. In In re Vitamins Antitrust Litig., MDL No. 1285, at 2 n.3 (D.D.C. July 16, 2001) (“Vitamins”) (Hogan, C.J.), for example, 57 law firms represented the plaintiffs.
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Vitamins at 2 n.3. During the 13 years in which Sprenger & Lang has been in existence, on only one occasion did another firm file a class action that overlapped with one filed by Sprenger & Lang.
65. Employment discrimination class action cases are risky for many reasons. There generally is no government investigation to draw upon, as there frequently is in other types of class action cases. Companies are able to keep figures concerning the impact of their employment practices private, forcing plaintiffs’ firms to perform expensive investigations prior to filing suit, unlike, for example, in securities class actions. Many courts give great credence to employers’ business rationales for their policies and practices.
66. Among employment discrimination class actions, this case was especially risky at the time that Class Counsel agreed to represent the plaintiffs for two reasons, as described above: the employee-independent contractor issue; and the attempt to certify a nationwide class of women affected by decisions by hundreds of managers in scores of facilities.
f. The amount of time devoted to the case 67. Although this case was settled early, Class Counsel has invested an extraordinay amount of work into the matter over the past three years – over 10,243 hours of attorney and legal assistant time – along with over $291,000 in expenses. They gathered substantial quantities of information outside the discovery process, through contacts with over 560 class members and other witnesses, extensive interviews with about 90 persons, preparation of 45 declarations, and regular conferences with the named plaintiffs. Prior to and during the negotiation process, they obtained information about AEFA’s policies and AEFA’s computerized personnel information from the defendant. They worked with a statistical expert to analyze AEFA’s data. They prepared a database summarizing the documents and information
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they were obtaining. They performed the legal research for and prepared numerous memoranda analyzing the many legal issues in the case. They engaged in ten face-to-face negotiating sessions and spent a large amount of additional time on the phone with the mediator and opposing counsel. They worked with tax lawyers in addressing the issues raised by the fact that AEFA has treated many of the class members as independent contractors. Finally, they have been working with a consultant in connection with the issuance of notice to class members and the beginning of the claims administration process.
68. Through April 30, 2002, Class Counsel had devoted $2,873,806.63 in fees at lodestar rates and $291,311.08 in expenses to prosecuting this action. Class Counsel sets their billing rates based on survey data about billing rates in Washington, D.C., and used billing judgment in eliminating several hundred hours of work on this case. Using Class Counsel’s already incurred lodestar of $2,873,806 plus projected fees for settlement administration and monitoring of $1,250,000, the requested fee award amounts to an award of about 2.27 times the lodestar of about $4,370,000.
g. Awards in similar cases 69. Judge Emmet Sullivan of this District approved awards to cover attorneys’ fees and expenses in 1999 and 2000 in two race discrimination class action cases against Amtrak that are very similar in procedural setting to this case. Those cases are McLaurin v. National Railroad Passenger Corp. and Thornton v. National Railroad Passenger Corp. Each case entered settlement discussions early, after the filing of the complaint in McLaurin and after a motion to dismiss and two depositions in Thornton. In those cases, like this one, the negotiations proceeded for many months. In those cases, like this one, the settlement provided for comprehensive injunctive relief in addition to damages. In those cases, like this one, the award
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to Class Counsel encompassed both past and future work and past and future expenses. The period of the Decree in those cases, like this one, was four years. In light of all of these circumstances, Judge Sullivan awarded class counsel in each case fees and expenses in the amount of 37.5% of the settlements, 2.5% more than requested in this case.
CONCLUSIONS OF LAW JURISDICTION AND VENUE
1. This Court has jurisdiction over the lawsuit pursuant to 28 U.S.C. § 1331. 2. The propriety of venue in this Court is not disputed. I. NOTICE TO CLASS MEMBERS 3. Under Fed. R. Civ. P. 23(e), the Court is required to give class members notice and an opportunity to comment on, or object to, a proposed settlement of a class action. The form and method of notice must be adequate to inform the class members of the terms of the settlement. 4. The form and method of notice were adequate in this case to inform the members of the settlement classes of the terms of the settlement. II. THE SETTLEMENT CLASSES A. The Rule 23 Classes 5. A class that the parties seek to have certified in the context of a settlement must satisfy all of the requirements of Fed. R. Civ. P. 23, except that, if certification is sought pursuant to Rule 23(b)(3), the manageability of the proposed class action at trial is not in issue. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
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6. A class may be certified only if it satisfies the four requirements of Rule 23(a) and at least one of the three alternatives of Rule 23(b). Rule 23(a) requires:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims 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. 7. Each of the Classes satisfies the requirement of Rule 23(a)(1), because each has too many members who are too widely scattered around the country for joinder to be practicable. See 5 Moore’s Federal Practice § 23.22[3][a] (Matthew Bender 3d ed. 1998); Frazier v. Consolidated Rail Corp., 851 F.2d 1447, 1456 n.10 (D.C. Cir. 1988). 8. Each of the Classes satisfies the requirements of Rule 23(a)(2), because the claims of the members of each Class raise numerous common issues of fact and law, even though the proposed class members worked in many different locations across the country. See Martens v. Smith, Barney, Inc., 181 F.R.D. 243, 259 (S.D.N.Y. 1998) (holding that alleged pattern of discriminatory treatment of women that is traced to centralized failure to address and remedy widespread discrimination satisfies commonality and typicality requirements); Thomas v. Christopher, 169 F.R.D. 224, 237 (D.D.C. 1996) (holding that commonality requirement is satisfied when “key personnel procedures are centrally administered, highly subjective, and applicable to all class members throughout their careers”), aff’d in relevant part, rev’d in part 139 F.3d 227 (D.C. Cir. 1998); Wells v. General Elec. Co., 78 F.R.D. 433, 438 (E.D. Pa. 1978) (“[A] nationwide class action may be appropriately maintained where defendant formulates a policy which is uniformly applied to all employees within the class.”). 9. Each of the Classes satisfies the requirements of Rule 23(a)(3). The claims of the 15 plaintiffs who are members of the Damages Class arise out of the same policies and practices and are typical of those of the other members of the Damages Class, and the claims of the two
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Case 1:02-cv-00082-HHK Document 15 Filed 06/16/02 Page 20 of 30
plaintiffs who are members of the Injunctive Class arise out of the same policies and practices and are typical of those of the other members of the Injunctive Class. De La Fuente v. StokelyVan Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (holding that typicality requirement is satisfied if the named plaintiffs’ claims “arise from the same event or practice or course of conduct that gives rise to the claims of other class members and ... are based on the same legal theory”) (quotations omitted); Thomas v. Christopher, 169 F.R.D. 224 at 238 (holding that typicality requirement is satisfied when commonality requirement is satisfied and the plaintiffs have experienced the same types of adverse actions complained of for the class).
10. Each of the Classes satisfies the requirements of Rule 23(a)(4), because they do not have any interests in conflict with those of the unnamed members of their respective Classes and they have together engaged experienced and adequate Class Counsel. See Amchem, 521 U.S. at 625-27.
11. The Injunctive Class meets the requirements for certification under Rule 23(b)(2): AEFA adopted policies and practices in evaluating applicants for positions as financial advisors that have been generally applicable to such applicants and resulted in the rejection of all members of the Injunctive Class, making appropriate final injunctive relief for the Injunctive Class as a whole, and injunctive relief is the only form of relief being accorded to members of the Injunctive Class.
12. The Damages Class shall be certified under both Rule 23(b)(2) and (b)(3). See Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997) (permitting district court to “adopt a "hybrid" approach, certifying a (b)(2) class as to the claims for declaratory or injunctive relief, and a (b)(3) class as to the claims for monetary relief, effectively granting (b)(3) protections including the right to opt out to class members at the monetary relief stage”); Thomas v.
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Albright, 139 F.3d 227 (D.C. Cir. 1998); Taylor v. D.C. Water & Sewer Authority, 205 F.R.D. 43, 48-49 (D.D.C. 2002) (Kennedy, J.) (refusing to dismiss class certification allegations because D.C. Circuit law permits hybrid (b)(2)/(b)(3) certifications).
13. The Damages Class meets the requirements for certification under Rule 23(b)(2) insofar as it seeks injunctive relief. AEFA adopted numerous personnel policies and practices that have been generally applicable to financial advisors and that resulted in or did not rectify harm to members of the Damages Class as a whole. The adoption of these policies and practices makes appropriate final injunctive relief for the class as a whole as to those issues underlying the injunctive relief.
14. The Damages Class meets the requirements for certification under Rule 23(b)(3) insofar as it seeks monetary relief. Common issues concerning the nature of AEFA’s personnel policies and practices and their impact on female employees would exceed in importance solely individual issues in litigating the claims of Damages Class members, especially in the litigation of liability issues. However, the validity of and damages associated with each class member’s claim also would be influenced by purely individual facts. Class members thus have an interest in opting out of the settlement insofar as it provides monetary relief and controlling their own litigation on that score.
b. The Opt-In Collective Actions 15. Under 29 U.S.C. § 216(b), a person may opt in to an action under the EPA or the ADEA if she is similarly situated to the named plaintiffs and gives her written consent to participate. 16. The factors to be considered in determining whether employees are similarly situated include similarity of positions, similarity of claim, and similarity of policies and
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practices giving rise to the claims. See Hyman v. First Union Corp., 982 F. Supp. 1 (D.D.C. 1997).
17. The members of the Damages Class who assert that they were paid less than similarly-situated men are similarly situated to the plaintiffs for purposes of asserting claims under the EPA.
18. The members of the Damages Class who were forty or older when affiliated as financial advisors with AEFA are similarly situated to the seven plaintiffs who were over the age of forty.
19. All members of the Damages Class who fill out the sections of the Claim Form dealing with claims under the EPA and ADEA have given their written consent to participate. III. EVALUATION OF THE SETTLEMENT
20. Class actions may be approved only if they are fair, reasonable and adequate, based on three criteria: is the quantum of relief provided by AEFA to the class fair, reasonable, and adequate; is the plan for distribution of that relief among plaintiffs and class members fair; and is the compensation to Class Counsel fair and reasonable. In re Lorazepam & Clorazepate Antitrust Litig. (“Lorazepam”), 205 F.R.D. 369 (D.D.C. 2002).
A. The Relief to be Provided by AEFA to the Class 21. The Court is guided by the following factors in determining whether the relief to be provided by AEFA to the class is fair, reasonable and adequate: (a) whether the settlement is the result of arms-length negotiations; (b) the terms of the settlement in relation to the strength of plaintiffs’ case; (c) the stage of the litigation proceedings at the time of settlement; (d) the reaction of the class; and (e) the opinion of experienced counsel. Lorazepam, 205 F.R.D. at 375 (citations omitted). As set forth below, under these factors the Court concludes that the quantum of relief to the class is fair, reasonable, and adequate.
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1. The Nature of the Negotiations 22. The settlement was a product of arms length negotiations between experienced attorneys. Accordingly, a “presumption of fairness, adequacy and reasonableness attaches to [the] class settlement.” Lorazepam, 205 F.R.D. at 376.
2. The Amount of the Settlement Compared to the Strength of Plaintiffs’ Case
23. In assessing the terms of a settlement, “by far the most important factor is a comparison of the terms of the compromise or settlement with the likely recovery the plaintiffs would realize if the case went to trial.” Pigford v. Glickman, 185 F.R.D. 82, 91 (D.D.C. 1999).
24. This settlement provides substantial monetary and injunctive benefits to the class which justify the settlement in view of substantial risks that a class would not have been certified, that even if certified it would have been much smaller than the class defined in the settlement, and that even if certified the class would not have prevailed on liability and/or damages would have been substantially less than sought.
3. The Stage of the Litigation Proceedings at the Time of Settlement 25. Although “[e]arly settlement of [class action] cases is encouraged,” when a case is settled early, a court must consider “whether counsel had sufficient information . . . to reasonably assess the risks of litigaton vis-à-vis the probability of success and range of recovery.” Lorazepam, 205 F.R.D. at 377. 26. Based on Class Counsel’s research and the exchange of information with AEFA, Class Counsel had adequate information to reasonably assess the benefits and risks of litigation at the time of settlement.
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4. Reaction of the Class to the Settlement 27. The lack of objections, the small number of opt outs, and the substantial number of claims already filed reflects strong approval for the proposed settlement, which strongly supports approval. See Lorazepam, 205 F.R.D. at 378; In re: Newbridge Networks Securities Litig., 1998 U.S. Dist. LEXIS 23238, at *6-7 (D.D.C. October 23, 1998).
5. The Opinion of Experienced Counsel 28. Because they are experienced litigators, the Court gives substantial weight to Class Counsel’s view that the settlement is fair, reasonable and adequate. Lorazepam, 205 F.R.D. at 380 (citations omitted); see also In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 359, 379-80 (N.D. Ohio Aug. 29, 2001) (citing cases); Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d 561, 580-81 (E.D. Pa. 2001).
6. Conclusion 29. For all of the above reasons, the Court concludes that the relief to the class provided by the settlement is fair, reasonable and adequate. B. Allocation of the Benefits of the Settlement 30. The monetary relief to the members of the Damages Class will be distributed pursuant to formulas to be proposed by Class Counsel and approved by the Court. An allocation plan such as the one at issue here that is subject to close court scrutiny at every stage is fair and reasonable even though the precise details of the formula are not spelled out in the decree itself. In re Agent Orange Prod. Liability Litigation, 818 F.2d 145, 170 (2d Cir. 1987) (where court assessed overall fairness of settlement prior to adoption of distribution scheme, distribution scheme need not be finalized prior to final approval of class settlement); In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 224 (5th Cir. 1981) (sustaining district court’s
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approval of settlement notice even though amounts each class member could expect to receive are not yet determined); In re Drexel Burnham Lambert Group, Inc., 130 B.R. 910, 925 (S.D.N.Y. 1991), aff’d, 960 F.2d 285 (2d Cir. 1992) (settlement satisfactory even though “amounts to be distributed . . . will be subject to further allocation procedures”).
31. The settlement fairly and reasonably allocates the relief obtained from AEFA among plaintiffs and class members.
C. The Requested Award of Attorneys’ Fees and Expenses 32. For purposes of evaluating the fee and expense provisions, this is a “common fund” case. In the D.C. Circuit, proposed fee awards in common fund cases should be evaluated based on the “percentage-of-the-fund method.” Swedish Hospital Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993); Lorazepam, 205 F.R.D. at 383. “[T]he percentage of recovery method is meant to simulate awards that would otherwise prevail in the market.” In re Vitamins Antitrust Litig., MDL No. 1285, at 29 (D.D.C. July 16, 2001) (“Vitamins”) (Hogan, C.J.).
1. Fees Allocable to Work Already Performed 33. Many of the decisions determining the percentage of the recovery to award as attorneys’ fees have arisen in non-civil rights class actions in which there was little if any monitoring and claims administration work to be performed. To properly compare the fee request here to awards in other cases that involved little if any post-settlement work, it is necessary to subtract the projected fees and expenses for administration and monitoring and the actual expenses already incurred from the $10,850,000 request of Class Counsel. This brings the request for fees for work already performed down to between $8,700,000 and $9,200,000, or to between 28% and 29.7% of the settlement fund.
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2. Reasonableness of Request for Work Already Performed 34. Fee awards in this District have ranged from 20% to 45% of the fund, while tending to center around 30%. See Swedish Hospital, 1 F.3d at 1272 (20%); Vitamins at 23 (about 34% plus expenses); Thornton (Schaefer Decl., ¶¶ 21-23) (37.5% for past and future fees and expenses); McLaurin (Schaefer Decl., ¶¶ 21-23) (37.5% for past and future fees and expenses); In re Newbridge Networks Sec. Litig., 1998 U.S. Dist. LEXIS 23238, at *10-12 (30% plus expenses); In re Ampicillin Antitrust Litig., 526 F. Supp. 494 (D.D.C. 1981) (45%, including expenses). Awards around 30% are consistent with the trend in numerous other jurisdictions. 35. The D.C. Circuit has not developed a list of factors to be considered in evaluating fee requests in common fund cases. Lorazepam, 205 F.R.D. at 383. Based on two recent decisions issued by Judge Hogan, the Court considers seven factors that have been identified by the Third Circuit, as set forth below.
a. The size of the fund created and the number of persons benefited
36. Higher percentages of recoveries generally should be awarded to attorneys who achieve settlements, such as this one, that produce “exceptional benefits.” See Vitamins at 25-26.
37. In judging the benefits provided by this settlement, the Court considers not only the monetary relief, but also the comprehensive injunctive relief contained in the Consent Decree.
b. The presence or absence of substantial objections by members of the class to the settlement and/or the requested fees
38. The Court gives substantial weight to the fact that no class members have objected to the settlement, including to the requested fees and costs.
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c. The skill and efficiency of the attorneys involved 39. The experience, skill and professionalism of Class Counsel and the performance and quality of opposing counsel all support award of a fee in the range requested by Class Counsel. See Vitamins at 26 (approving 34% fee award based in part on “[t]he experience, skill and professionalism of counsel and the performance and quality of opposing counsel”).
d. The complexity and duration of the litigation 40. This lawsuit raised a host of complex factual and legal issues. 41. Counsel should not be penalized for achieving such an outstanding settlement in about three years instead of the typically longer period between the start of investigation and the conclusion of a class action lawsuit. See Vitamins at 27; Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 198 (3rd Cir. 2000) (recognizing purpose of percentage of recovery method is to encourage early settlement); Maley v. Del Global Technologies Corp., 186 F. Supp. 2d 358, 368 (S.D.N.Y. 2002) (awarding 33% in common fund securities case settled early in litigation); In re APAC Teleservices, Inc. Sec. Litig., 1999 U.S. Dist. LEXIS 17908, at *2 (S.D.N.Y. Dec. 10, 2001) (awarding 33% of a $21,000,000 settlement prior to start of depositions); In re Safety Components Int’l Inc. Sec. Litig., 166 F. Supp. 2d 72 (D.N.J. Sept. 27, 2001) (awarding 33% of settlement fund when case settled early in litigation).
e. The risk of nonpayment 42. The riskiness of a case must be assessed as of the commencement of representation, not sometime later when developments in the litigation made nonpayment more or less risky. See, e.g., In re Synthroid Marketing Litigation, 264 F.3d 712, 718-19 (7th Cir. 2001); In re Fine Paper Antitrust Litigation, 751 F.2d 562, 583 (3d Cir. 1984); Emery v. Hunt,
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132 F. Supp. 2d 803, 811 (D.S.D. 2001); Cook v. McCarron, 1997 U.S. Dist. LEXIS 1090, at *58 (N.D. Ill. Jan. 30, 1997).
43. At the commencement of representation, this case posed a substantial risk of nonpayment to Class Counsel. This risk supports an award in the range requested by Class Counsel. See Newbridge Network Sec. Litig., 1998 U.S. Dist. LEXIS 23238, at *11 (“[U]nlike in Swedish Hospital Corp., where an award of twenty percent was made because prior resolution of the underlying legal issue eliminated the risk of zero recovery, . . . here counsel did not ‘piggyback’ on the success of other plaintiffs and clearly faced the prospect of zero recovery.”)
f. The amount of time devoted to the case by plaintiffs' counsel 44. The number of hours and type of work performed by Class Counsel fully supports the requested fee award. See Vitamins at 26. 45. Although unnecessary to check under the law of this Circuit, the multiplier on Class Counsel’s fees at their lodestar rates is consistent with that awarded in other cases, and is fair and reasonable.
g. The awards in similar cases 46. In the two most similar cases of which this Court is aware in this District, fees and expenses were awarded to cover both past and future work in the amount of 37.5% of the settlement fund, 2.5% more than is requested in this case.
h. Conclusion 47. For all these reasons, the proposed fee and expense award here is fair and
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reasonable and should be approved. An appropriate order and judgment accompanies this order.

Dated: June 16, 2002

Henry H. Kennedy, Jr United States District Judge

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EXH IBIT A

American Express Gender Litigation Opt-outs

Number
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Name of Class Member
Requesting Exclusion Ann O. Nelson Valerie S. Hamre Lee M. Floersheimer Sandra Stamp Florence R. Carunshio Lynn A. Soderstrom Faith T. Donaldson Valentina Rornik Lisbeth L. Cherrington* Ruthann Kyler Monique M. Dorsey Sandra E. Goodstein Angham A. Ibrahim Caren S. Hersh Janice I. Morrissey Karen Go Suzanne Osborne Cynthia Bogatzki Doussard Susan F. Witten Cynthia A. Schofield* Karen Ford

Postmark Date
April 8, 2002 April 8. 2002 April 8, 2002 April 8, 2002 April 9, 2002 April 10, 2002 April 11, 2002 April 17, 2002 April 17, 2002 April 18, 2002 April 29, 2002 April 30, 2002 May 13, 2002 May 10, 2002 May 11, 2002 May 12, 2002 May 14, 2002 May 15, 2002 May 15, 2002 May 16, 2002 May 17, 2002

 
 Case: 1:02-cv-00082-HHK As of: 10/13/2009 11:58 AM EDT 1 of 13
CLOSED, JURY, TYPE−H
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:02−cv−00082−HHK

KOSEN et al v. AMERICAN EXPRESS FINANCIAL ADVISORS INC. et al Assigned to: Judge Henry H. Kennedy Cause: 28:1331 Fed. Question: Employment Discrimination
Plaintiff

Date Filed: 01/17/2002 Date Terminated: 06/17/2002 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

SHELLY KOSEN

represented by Michael D. Lieder SPRENGER &LANG, PLLC 1400 Eye Street, NW Suite 500 Washington , DC 20005 (202) 265−8010 Fax: (202) 332−6652 Email: mlieder@sprengerlang.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger SPRENGER &LANG, PLLC 1400 I Street, NW Suite 500 Washington , DC 20005 (202) 265−8010 x 1160 Fax: (202) 332−6652 Email: ssprenger@sprengerlang.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ELIZABETH BRADLER

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LISA GRANQUIST

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff DEATRA HARRINGTON

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:02-cv-00082-HHK As of: 10/13/2009 11:58 AM EDT 2 of 13

Plaintiff DAWN HAUSCH−COOPER
Plaintiff REBECCA HAYES
Plaintiff JAN JACKSON
Plaintiff CATHERINE KELLY
Plaintiff ELENI KULINSKI
Plaintiff

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:02-cv-00082-HHK As of: 10/13/2009 11:58 AM EDT 3 of 13

SUSAN MARCOTTE

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LYDIA MURPHY

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MELISSA POOLE

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PAULINE RICHARDS

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MARY ELIZABETH GRIFFIN−ROY

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff SUSAN S

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address)

Case: 1:02-cv-00082-HHK As of: 10/13/2009 11:58 AM EDT 4 of 13

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ROSALIE VILLAFRATE

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
LOIS WISOCKY on behalf of themselves and all others similarly situated

represented by Michael D. Lieder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
AMERICAN EXPRESS FINANCIAL ADVISORS INC.

represented by Janice M. Symchych DORSEY &WHITNEY LLP 50 South 6th Street Suite 1500 Minneapolis , MN 55402 (612)340−2600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ralph A. Taylor ARENT FOX, LLP 1050 Connecticut Avenue, NW Washington , DC 20036 (202) 775−5713 Fax: (202) 857−6395 Email: taylor.ralph@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahna M. Thoresen FAEGRE &BENSON LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis , MN 55402 (612) 766−7000 ATTORNEY TO BE NOTICED
Creighton R. Magid DORSEY &WHITNEY, L.L.P. 1050 Connecticut Avenue, NW Suite 1250 Washington , DC 20036 (202) 442−3555 Fax: (202) 442−3199

Case: 1:02-cv-00082-HHK As of: 10/13/2009 11:58 AM EDT 5 of 13

Email: magid.chip@dorseylaw.com ATTORNEY TO BE NOTICED

Kevin B. Bedell GREENBERG TRAURIG LLP 1750 Tysons Boulevard Suite 1200 Mclean , VA 22102 (703) 749−13339 Fax: (703) 714−8339 Email: bedellk@gtlaw.com TERMINATED: 07/15/2005 ATTORNEY TO BE NOTICED

Defendant IDS FINANCIAL SERVICES, INC.

represented by Janice M. Symchych (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ralph A. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahna M. Thoresen (See above for address) ATTORNEY TO BE NOTICED

Creighton R. Magid (See above for address) ATTORNEY TO BE NOTICED

Kevin B. Bedell (See above for address) TERMINATED: 07/15/2005 ATTORNEY TO BE NOTICED

Defendant IDS LIFE INSURANCE, INC.

represented by Janice M. Symchych (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ralph A. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahna M. Thoresen (See above for address) ATTORNEY TO BE NOTICED

Creighton R. Magid (See above for address) ATTORNEY TO BE NOTICED

Kevin B. Bedell (See above for address) TERMINATED: 07/15/2005 ATTORNEY TO BE NOTICED

Defendant

Case: 1:02-cv-00082-HHK As of: 10/13/2009 11:58 AM EDT 6 of 13

AMERICAN EXPRESS FINANCIAL CORPORATION

represented by Janice M. Symchych (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ralph A. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahna M. Thoresen (See above for address) ATTORNEY TO BE NOTICED

Creighton R. Magid (See above for address) ATTORNEY TO BE NOTICED

Kevin B. Bedell (See above for address) TERMINATED: 07/15/2005 ATTORNEY TO BE NOTICED

Defendant AMERICAN EXPRESS COMPANY

represented by Janice M. Symchych (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ralph A. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahna M. Thoresen (See above for address) ATTORNEY TO BE NOTICED

Creighton R. Magid (See above for address) ATTORNEY TO BE NOTICED

Kevin B. Bedell (See above for address) TERMINATED: 07/15/2005 ATTORNEY TO BE NOTICED

V. Interested Party ANGELA GRABOVSKY
Claimant

represented by Thomas McDonald Campbell SMITH CAMPBELL, LLP One Whitehall Street 16th Floor New York , NY 10004 (212) 344−1500 Fax: (212) 344−5585 Email: tcampbell@sc−llp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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LINDA DAVENPORT

represented by LINDA DAVENPORT 10 Pinkney Colony Road Building 300 Bluffton, SC 29909 (843)815−2566 Fax: (843)815−8556 PRO SE

Date Filed 01/17/2002
01/17/2002 01/17/2002 01/17/2002
01/23/2002
01/23/2002

# Docket Text

1 COMPLAINT against AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS

FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL

CORPORATION, IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE,

INC. ( Filing fee $150 ). Filed by ELIZABETH BRADLER, LISA GRANQUIST,

MARY ELIZABETH GRIFFIN−ROY, DEATRA HARRINGTON, DAWN

HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON, CATHERINE KELLY,

SHELLY KOSEN, ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY,

MELISSA POOLE, PAULINE RICHARDS, SUSAN S

, ROSALIE

VILLAFRATE, LOIS WISOCKY. (cdw, ) (Entered: 01/22/2002)

SUMMONS (5)Issued as to AMERICAN EXPRESS COMPANY ; AMERICAN EXPRESS FINANCIAL ADVISORS INC. ; AMERICAN EXPRESS FINANCIAL CORPORATION ; IDS FINANCIAL SERVICES, INC. ; IDS LIFE INSURANCE, INC. (cdw, ) (Entered: 01/22/2002)

2 LCvR 26.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by plaintiffs (cdw, ) (Entered: 01/22/2002)

3 MOTION for Leave to Appear Pro Hac Vice by Lawrence P. Schaefer, Susan E.

Stokes, and Mara R. Thompson of SPRENGER &LANG, PLLC; 325 Ridgewood

Avenue; Minneapolis, MN 55403 (614) 871−8910; and for Maurice William O'Brien

and Nancy J. Miller of MILLER−O'BRIEN, PLLC; 1208 Plymouth Building; 12 South

Sixth Street; Minneapolis, MN 55402; (612) 333−5831 by ELIZABETH BRADLER,

LISA GRANQUIST, MARY ELIZABETH GRIFFIN−ROY, DEATRA

HARRINGTON, DAWN HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON,

CATHERINE KELLY, SHELLY KOSEN, ELENI KULINSKI, SUSAN

MARCOTTE, LYDIA MURPHY, MELISSA POOLE, PAULINE RICHARDS,

SUSAN S

, ROSALIE VILLAFRATE, LOIS WISOCKY. (cdw, ) (Entered:

01/22/2002)

4 Unopposed MOTION for issuance of an order preliminarily approving consent decree;

and directing notice to class members; and administrative order No. 1 by ELIZABETH

BRADLER, LISA GRANQUIST, MARY ELIZABETH GRIFFIN−ROY, DEATRA

HARRINGTON, DAWN HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON,

CATHERINE KELLY, SHELLY KOSEN, ELENI KULINSKI, SUSAN

MARCOTTE, LYDIA MURPHY, MELISSA POOLE, PAULINE RICHARDS,

SUSAN S

ROSALIE VILLAFRATE, LOIS WISOCKY. (Attachments: # 1

Consent Decree# 2 Exhibit Ex. A to Consent Decree# 3 Exhibit Ex. B to Consent

Decree# 4 Exhibit Ex. C to Consent Decree# 5 Exhibit Ex. D to Consent Decree# 6

Exhibit Ex. E to Consent Decree# 7 Exhibit Ex. F to C onsent Decree# 8 Exhibit Ex. G

to Consent Decree# 9 Memorandum In Support of Motion# 10 Proposed

Administrative Order# 11 Proposed Order Granting Motion# 12 Ex. 1 to Proposed

Order Granting Motion)(Sprenger, Steven) Modified on 1/24/2002 (cdw, ). (Entered:

01/23/2002)

5 AFFIDAVIT re 4 Class Settlement by ELIZABETH BRADLER, LISA GRANQUIST,

MARY ELIZABETH GRIFFIN−ROY, DEATRA HARRINGTON, DAWN

HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON, CATHERINE KELLY,

SHELLY KOSEN, ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY,

MELISSA POOLE, PAULINE RICHARDS, SUSAN S

, ROSALIE

VILLAFRATE, LOIS WISOCKY. (Attachments: # 1 Exhibit Ex. A1 to Schaefer

Declaration# 2 Exhibit Ex. A2 to Schaefer Declaration# 3 Exhibit Ex. B1 to Schaefer

Declaration# 4 Exhibit Ex. B2 to Schaefer Declaration)(Sprenger, Steven) (Entered:

01/23/2002)

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01/23/2002 01/23/2002 01/23/2002 01/23/2002
01/23/2002
01/26/2002 02/15/2002 02/19/2002 03/15/2002 03/20/2002 03/20/2002 03/20/2002 05/30/2002 05/31/2002
05/31/2002

ORDER granting Motion for Leave to Appear 3 Signed by Judge Henry H. Kennedy, Jr. on January 23, 2002. (Kennedy, Henry) (Entered: 01/23/2002)

6 NOTICE of Appearance by Ralph A. Taylor on behalf of AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE, INC. (cdw, ) (Entered: 01/24/2002)

7 LCvR 26.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by defendants (cdw, ) (Entered: 01/24/2002)

8 Consent MOTION for Leave to Appear Pro Hac Vice by Edward B. Magarian of DORSEY &WHITNEY LLP; Suite 1500; 50 South Sixth Street; Minneapolis, MN 55402; (612) 340−2600 by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE, INC.. (cdw, ) (Entered: 01/24/2002)

9 Consent MOTION for Leave to Appear Pro Hac Vice by Janice M. Symchych of DORSEY &WHITNEY LLP; Suite 1500; 50 South Sixth Street; Minneapolis, MN 55402; (612) 340−2600 by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE, INC.. (cdw, ) (Entered: 01/24/2002)

ORDER granting Motion for Leave to Appear 8 . Signed by Judge Henry H. Kennedy,Jr. on January 26, 2002. (Kennedy, Henry) (Entered: 01/26/2002)

ORDER granting Motion for Leave to Appear re: Janice M. Symchych 9 Signed by Judge Henry H. Kennedy, Jr. on February 15, 2002. (Kennedy, Henry) (Entered: 02/15/2002)

Minute Entry: Motion Hearing re 4 for preliminary approval of class action settlement held on 2/19/2002 and taken under advisement before Judge Henry H. Kennedy, Jr. (Court Reporter Dolores Byers.) (dcn, ) (Entered: 02/21/2002)

Calendar Entry Telephone Conference set for 3/20/2002 09:30 AM before Judge Henry H. Kennedy, Jr.. (dcn, ) (Entered: 03/15/2002)

10 ORDER PRELIMINARILY APPROVING CONSENT DECREE AND DIRECTING NOTICE TO CLASS MEMBERS 4 Signed by Judge Henry H. Kennedy, Jr. on March 20, 2002.(Kennedy, Henry) (Entered: 03/20/2002)

11 ADMINISTRATIVE ORDER NO. 1 Signed by Judge Henry H. Kennedy, Jr. on March 20, 2002. (Kennedy, Henry) (Entered: 03/20/2002)

Minute Entry: Telephone Status Conference held on 3/20/2002 before Judge Henry H. Kennedy, Jr.; granted preliminary approval of settlement; Final approval hearing set for June 6, 2002, 10:00 a.m.(Court Reporter Jackie Wood−Miller Reporting.) (dcn, ) (Entered: 03/22/2002)

12 NOTICE of Change of Address by Ralph A. Taylor (Taylor, Ralph) (Entered: 05/30/2002)

13 MOTION to Approve Consent Judgment by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Attachments: # 1 Affidavit of Luz Maria Davis# 2 Affidavit of Edward B. Magarian# 3 Proposed Order)(Taylor, Ralph) (Entered: 05/31/2002)

14 Unopposed MOTION to Appoint Counsel as Special Master, MOTION to Certify

Class, MOTION for Entry of Final Judgment, MOTION for Settlement by

ELIZABETH BRADLER, LISA GRANQUIST, MARY ELIZABETH

GRIFFIN−ROY, DEATRA HARRINGTON, DAWN HAUSCH−COOPER,

REBECCA HAYES, JAN JACKSON, CATHERINE KELLY, SHELLY KOSEN,

ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY, MELISSA POOLE,

PAULINE RICHARDS, SUSAN S

, ROSALIE VILLAFRATE, LOIS

WISOCKY. (Attachments: # 1 Memorandum in Support of Plaintiffs' Unopposed

Motion for Final Approval of Consent Decree and Order and Stipulation of Reference

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06/07/2002 06/16/2002 06/16/2002 06/16/2002 07/11/2002 07/17/2002
07/18/2002 07/23/2002 08/26/2002
08/27/2002 08/28/2002 08/29/2002
10/02/2002

Appointing a Special Master# 2 Declaration of L Schaefer# 3 Exhibit L Schaefer Dec − Ex A1# 4 Exhibit L Schaefer Dec − Ex A2# 5 Exhibit L Schaefer Dec − Ex B1# 6 Exhibit L Schaefer Dec − Ex B2# 7 Declaration of M Thompson# 8 Declaration of M Lieder# 9 Exhibit Lieder Dec − Ex A# 10 Exhibit Lieder Dec − Ex B# 11 Exhibit Lieder Dec − Ex C# 12 Exhibit Lieder Dec − Ex D# 13 Declaration of K Ness# 14 Exhibit Ness Dec − Ex A# 15 Exhibit Ness Dec − Ex B1# 16 Exhibit Ness Dec − Ex B2# 17 Exhibit Ness Dec − Ex B3# 18 Exhibit Ness Dec − Ex C# 19 Declaration of D Borgen# 20 Exhibit Borgen Dec − Ex A# 21 Declaration of J Anderson# 22 Declaration of M. W. O'Brien# 23 Declaration of D Heins# 24 Order Approving Consent Decree# 25 Exhibit Order Approving Consent Decee − Ex A# 26 Order and Stipulation of Reference)(Sprenger, Steven) (Entered: 05/31/2002)
Minute Entry: Motion Hearing re [] Final approval of settlement granted, hearing held on 6/6/2002 before Judge Henry H. Kennedy, Jr. (Court Reporter Jackie Wood−Miller Reorting.) (dcn, ) (Entered: 06/17/2002)
15 ORDER Approving Consent DecreeSigned by Judge Henry H. Kennedy, Jr. on June 16, 2002. (Kennedy, Henry) (Entered: 06/16/2002)
16 ORDER AND STIPULATION OF REFERENCESigned by Judge Henry H. Kennedy, Jr. on June 16, 2002. (Kennedy, Henry) (Entered: 06/16/2002)
17 JudgmentSigned by Judge Henry H. Kennedy, Jr. on June 16, 2002. (Kennedy, Henry) (Entered: 06/16/2002)
18 TRANSCRIPT for dates 6/6/02 ; Court Reporter Jacqueline L. Wood of Miller Reporting Company. (mpt, ) (Entered: 07/12/2002)
19 MOTION to Enforce the Consent Decree by Enjoining Class Member Debra Wood from Proceeding with Her Cause of Action in Nebraska and Directing Her to Dismiss Said Action with Prejudice by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Attachments: # 1 Memorandum in Support of Motion# 2 Declaration of Judith Moldover# 3 Declaration of Edward Magarian with Exhibits# 4 Proposed Order)(Taylor, Ralph) (Entered: 07/17/2002)
20 PRELIMINARY ELECTRONIC CASE FILING ORDER . Signed by Judge Henry H. Kennedy, Jr. on July 18, 2002. (FL, ) (Entered: 07/18/2002)
21 NOTICE re 19 Certificates of Service of Motion Papers on Class Member Debra Wood by all defendants (Taylor, Ralph) (Entered: 07/23/2002)
ORDER deferring ruling on Motion to Enforce 19 . The clerk of the court shall schedule a hearing on plaintiffs' Motion to enforce as soon as the business of the court permits. Notice of the hearing shall be sent to Debra Wood. Counsel for plaintiffs shall serve Debra Wood with notice of the hearing by certified mail or personally also. Signed by Judge Henry H. Kennedy, Jr. on August 26, 2002.(Kennedy, Henry) (Entered: 08/26/2002)
Calendar Entry, Set Hearing: Hearing on Plaintiffs Motion to Enforce the Consent Decree set for 9/10/2002, 09:30 AM in Courtroom 14, before Judge Henry H. Kennedy, Jr. (dcn, ) (Entered: 08/27/2002)
22 NOTICE Of Clarification Of Status by all plaintiffs (Attachments: # 1 Notice Of Filing# 2 Certificate Of Mailing)(Sprenger, Steven) (Entered: 08/28/2002)
Minute Entry: The court having been informed that Debra Wood and Defendant American Express Financial Advisors have consented and stipulated to to the dismissal of the action she commenced in the District of Nebraska, 02cv3160, and that American Express Financial Advisors, therefore, withdraws its motion to enforce docketed July 17, 2002, the hearing on the motion scheduled for September 17, 2002 is cancelled. (Kennedy, Henry) Modified on 8/30/2002 (cdw, ). (Entered: 08/29/2002)
23 Consent MOTION Modification of Consent Decree re 15 by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Attachments: # 1 Proposed Order)(Taylor, Ralph) (Entered: 10/02/2002)

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10/03/2002 10/04/2002 10/25/2002 11/01/2002 11/15/2002
11/30/2002 02/05/2003
02/06/2003 03/15/2003

24 Unopposed MOTION for Disbursement of Funds in Approval of A per Capita

Allocation Formula for the Business Development Fund by ELIZABETH BRADLER,

LISA GRANQUIST, MARY ELIZABETH GRIFFIN−ROY, DEATRA

HARRINGTON, DAWN HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON,

CATHERINE KELLY, SHELLY KOSEN, ELENI KULINSKI, SUSAN

MARCOTTE, LYDIA MURPHY, MELISSA POOLE, PAULINE RICHARDS,

SUSAN S

, ROSALIE VILLAFRATE, LOIS WISOCKY. (Attachments: # 1 #

2 # 3 # 4 # 5 # 6 # 7)(Sprenger, Steven) (Entered: 10/03/2002)

25 NOTICE re 24 exhibit attachment to motion for disbursement; FILED UNDER SEAL

by ELIZABETH BRADLER, LISA GRANQUIST, MARY ELIZABETH

GRIFFIN−ROY, DEATRA HARRINGTON, DAWN HAUSCH−COOPER,

REBECCA HAYES, JAN JACKSON, CATHERINE KELLY, SHELLY KOSEN,

ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY, MELISSA POOLE,

PAULINE RICHARDS, SUSAN S

, ROSALIE VILLAFRATE, LOIS

WISOCKY (cdw, ) (Entered: 10/08/2002)

26 ORDER granting Motion 23 (Kennedy, Henry) (Entered: 10/25/2002)

27 ORDER granting Motion for Disbursement of Funds 24 (Kennedy, Henry) (Entered: 11/01/2002)

28 Unopposed MOTION for Disbursement of Funds for (1) Approval of the Point System

for Allocating the Claims Portion of the Settlement Fund, (2) Acceptance of Certain

Late Claim Forms, (3) Approval of the Proposed Distribution from the Claims Portion

of the Settlement Fund, and (4) Approval of the Apportionment of Awards by

ELIZABETH BRADLER, LISA GRANQUIST, MARY ELIZABETH

GRIFFIN−ROY, DEATRA HARRINGTON, DAWN HAUSCH−COOPER,

REBECCA HAYES, JAN JACKSON, CATHERINE KELLY, SHELLY KOSEN,

ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY, MELISSA POOLE,

PAULINE RICHARDS, SUSAN S

, ROSALIE VILLAFRATE, LOIS

WISOCKY. (Attachments: # 1 Memorandum in Support of Motion# 2 Affidavit

Declaration of Mara R. Thompson# 3 Ex A−Thompson Decl.# 4 ExA1−Thompson

Decl.# 5 ExC−Thompson Decl.# 6 ExD−Thompson Decl# 7 Ex E−Thompson Decl# 8

Ex F−Thompson Decl# 9 Declaration of Kimberly Ness# 10 ExA−Ness Decl# 11

Proposed Order# 12 ExA − Order# 13 Ex A1−Order# 14 Ex B−Order# 15 Ex

C−Order# 16 Ex D−Order# 17 Ex E− Order# 18 Ex F−Order# 19 Ex B−Thompson

Decl)(Sprenger, Steven) (Entered: 11/15/2002)

29 ORDER granting 28 Motion for Disbursement of Funds Signed by Judge Henry H. Kennedy on November 30, 2002. (Kennedy, Henry) (Entered: 11/30/2002)

30 MOTION for Disbursement of Funds By Class Counsel Requesting Court Approval of Recommendations as to Claimant Appeals by ELIZABETH BRADLER, LISA GRANQUIST, MARY ELIZABETH GRIFFIN−ROY, DEATRA HARRINGTON, DAWN HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON, CATHERINE KELLY, SHELLY KOSEN, ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY, MELISSA POOLE, PAULINE RICHARDS, SUSAN S ROSALIE VILLAFRATE, LOIS WISOCKY. (Attachments: # 1 Memorandum in Support of Class Counsel's Motion for Approval of Recommendations Regarding Claimant Appeals# 2 Affidavit Declaration of Kimberly Ness# 3 Declaration of Mara R. Thompson# 4 Exhibit Thompson Decl. Ex Table A# 5 Exhibit Thompson Decl. Ex Table A−1# 6 Exhibit Thompson Decl. Ex Table B# 7 Notice Regarding Exhibit Attachment# 8 Proposed Order Approving Class Counsel's Recommendations as to Claimant Appeals# 9 Order Exhibit Table 1)(Sprenger, Steven) (Entered: 02/05/2003)

31 NOTICE by ELIZABETH BRADLER, LISA GRANQUIST, MARY ELIZABETH

GRIFFIN−ROY, DEATRA HARRINGTON, DAWN HAUSCH−COOPER,

REBECCA HAYES, JAN JACKSON, CATHERINE KELLY, SHELLY KOSEN,

ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY, MELISSA POOLE,

PAULINE RICHARDS, SUSAN S

, ROSALIE VILLAFRATE, LOIS

WISOCKY re 30 sealed exhibits to their MOTION for Disbursement of Funds By

Class Counsel Requesting Court Approval of Recommendations as to Claimant

Appeals (3 Bulkies; FILED UNDER SEAL) (cdw, ) (Entered: 02/11/2003)

32 ORDER granting 30 Motion for Disbursement of Funds (Kennedy, Henry) (Entered: 03/15/2003)

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03/20/2003
01/20/2004 01/23/2004
01/23/2004
01/29/2004 02/05/2004 02/09/2004 02/17/2004 02/19/2004 02/24/2004 02/25/2004 03/01/2004 03/04/2004 03/07/2004

33 NOTICE by ELIZABETH BRADLER, LISA GRANQUIST, MARY ELIZABETH

GRIFFIN−ROY, DEATRA HARRINGTON, DAWN HAUSCH−COOPER,

REBECCA HAYES, JAN JACKSON, CATHERINE KELLY, SHELLY KOSEN,

ELENI KULINSKI, SUSAN MARCOTTE, LYDIA MURPHY, MELISSA POOLE,

PAULINE RICHARDS, SUSAN S

, ROSALIE VILLAFRATE, LOIS

WISOCKY Plaintiffs submitted a copy of Table 1, in paper form, to the Clerk of the

Court to be filed under seal (Sprenger, Steven) (Entered: 03/20/2003)

ENTERED IN ERROR....."NOTICE OF CORRECTED DOCKET ENTRY. Document No. 34 was entered in error and counsel instructed to refile the motion to enforce consent decree as to S. S ." (bcs, ) Modified on 1/29/2004 (bcs, ). Modified on 1/29/2004 (bcs, ). (Entered: 01/29/2004)

34 MOTION to Enforce The Consent Decree as to Linda Davenport by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Attachments: # 1 Affidavit of Edward Magarian and Exhibits Thereto# 2 Text of Proposed Order)(Taylor, Ralph) Modified on 1/29/2004 (bcs, ). Modified on 1/29/2004 (bcs, ). (Entered: 01/23/2004)

35 MOTION to Enforce Consent Decree as to S. S , and Memo in Support, by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Attachments: # 1 Affidavit Edward Magarian and Exhibits# 2 Affidavit Ahna Thoresen and Exhibits# 3 Text of Proposed Order)(Taylor, Ralph) (Entered: 01/23/2004)

"Please disregard the notice of corrected docket entry enter on 1/28/04 for documents 34 and 35 are two separate motions pertainig to two different parties." (bcs, ) (Entered: 01/29/2004)

36 RESPONSE to 34 respondent AEFA's motion to enforce the consent decree by enjoining portion of Linda Davenport's claims in arbitration by LINDA DAVENPORT. (Attachments: # 1 Exhibit)(bcs, ) (Entered: 02/10/2004)

NOTICE of Hearing on Motions: MOTION to Enforce The Consent Decree, 34 &35

MOTION to Enforce Consent Decree as to S. S

and Motion Hearing on 34 set for

3/19/2004 02:00 PM; Motion Hearing on 35 set for 3:00 p.m. in Courtroom 14 before

Judge Judge Henry H. Kennedy. (dcn, ) (Entered: 02/09/2004)

37 REPLY in support of motion re 34 Enforcement of Consent Decree as to Linda Davenport filed by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Taylor, Ralph) (Entered: 02/17/2004)

38 MOTION for Leave to Appear Pro Hac Vice for Ahna Thoresen by AMERICAN EXPRESS FINANCIAL ADVISORS INC.. (Attachments: # 1 Text of Proposed Order)(Taylor, Ralph) (Entered: 02/19/2004)

41 MEMORANDUM relating to motion to enforce release and consent decree as to claims

of Susan S before the NASD from Susan S

(Attachments: # 1 Exhibit)(bcs,

) (Entered: 03/08/2004)

Minute order re 38 granting defendants' motion for Ahna M. Thoresen to appear pro hac vice. Ahna M. Thoresen, Esq. is admitted to appear pro hac vice as co−counsel for American Express Financial Advisors, Inc. Signed by Judge Henry H. Kennedy, Jr., on February 25, 2004. (FL, ) (Entered: 02/25/2004)

39 REPLY to opposition to motion re 35 Motion to Enforce Release and Consent Decree as to Susan S filed by AMERICAN EXPRESS FINANCIAL ADVISORS INC.. (Attachments: # 1 Exhibit A (S Opposition))(Taylor, Ralph) (Entered: 03/01/2004)

Remark: THE MOTIONS HEARING SET FOR MARCH 19, 2004 HAS BEEN CANCELLED BY ORDER OF THE COURT. (dcn, ) (Entered: 03/04/2004)

40 ORDER granting 34 Motion to Enforce, granting 35 Motion to Enforce (Kennedy, Henry) (Entered: 03/07/2004)

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03/15/2004 03/16/2004 03/24/2004 04/05/2004 04/14/2004 06/09/2004
06/21/2004 06/24/2004
06/29/2004
07/02/2004 07/25/2004 08/16/2004

43 MOTION to Compel compliance with Kosen complaint procedures and for sanctions by LINDA DAVENPORT. (Attachments: # 1 Exhibit)(bcs, ) (Entered: 03/17/2004)

42 NOTICE by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION of Withdrawal of Appearance of Janice Symchych as Co−Counsel (Taylor, Ralph) (Entered: 03/16/2004)

44 MOTION to Strike 43 MOTION to Compel compliance with Kosen complaint procedures and for sanctions, by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE, INC.. (Attachments: # 1 Exhibit Part 1# 2 Exhibit Part 2# 3 Text of Proposed Order)(Bedell, Kevin) (Entered: 03/24/2004)

46 RESPONSE to 44 motion to stike by LINDA DAVENPORT. (Attachments: # 1 Exhibit)(bcs, ) (Entered: 04/16/2004)

45 REPLY to opposition to motion re 44 to Strike filed by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE, INC.. (Bedell, Kevin) (Entered: 04/14/2004)

47 MOTION to Enforce Consent Decree by Enjoining Portion of Class Member Grabovsky's Claims in Arbitration, and Memo in Support by AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION. (Attachments: # 1 Affidavit of Ahna M. Thoresen# 2 Exhibit 1 to Thoresen Affidavit# 3 Exhibit 2 to Thoresen Affidavit# 4 Exhibit 3 to Thoresen Affidavit# 5 Affidavit of Cheryl Printon# 6 Affidavit of Kimberly K Ness# 7 Exhibit A to Ness Affidavit# 8 Text of Proposed Order # 9 Certificate of Service)(Taylor, Ralph) (Entered: 06/09/2004)

48 Memorandum in opposition to motion re 47 Enforcement of Consent Decree by Enjoining Portion of Class Member Grabovsky's Claims in Arbitration filed by ANGELA GRABOVSKY. (Attachments: # 1 Affidavit (Declaration) of Thomas Campbell# 2 Affidavit (Declaration) of Angela Grabovsky)(Burgess, Joe) (Entered: 06/22/2004)

49 MOTION for Leave to Appear pro hac vice for Thomas M. Campbell by ELIZABETH

BRADLER, LISA GRANQUIST, MARY ELIZABETH GRIFFIN−ROY, DEATRA

HARRINGTON, DAWN HAUSCH−COOPER, REBECCA HAYES, JAN JACKSON,

CATHERINE KELLY, SHELLY KOSEN, ELENI KULINSKI, SUSAN

MARCOTTE, LYDIA MURPHY, MELISSA POOLE, PAULINE RICHARDS,

SUSAN S

ROSALIE VILLAFRATE, LOIS WISOCKY. (Attachments: # 1

Declaration of Thomas M. Campbell# 2 Proposed Order# 3 Certificate of

Service)(Sprenger, Steven) (Entered: 06/24/2004)

50 REPLY to opposition to motion re 47 Enforcement of Consent Decree Against A. Grabovsky filed by AMERICAN EXPRESS FINANCIAL ADVISORS INC.. (Attachments: # 1 Affidavit (2d) of Ahna Thoresen# 2 Exhibit A to 2d Thoresen Declaration# 3 Exhibit B to 2d Thoresen Declaration# 4 Exhibit C to 2d Thoresen Declaration# 5 Exhibit D to 2d Thoresen Declaration# 6 Exhibit E to 2d Thoresen Declaration# 7 Exhibit F to 2d Thoresen Declaration# 8 Affidavit of Michael Lloyd# 9 Exhibit A to Lloyd Declaration# 10 Certificate of Service)(Taylor, Ralph) (Entered: 06/29/2004)

Minute order granting 49 motion for Thomas M. Campbell to appear pro hac vice. Thomas M. Campbell is admited to appear pro hac vice as counsel for Angela Grabovsky, an alleged class member. Signed by Judge Henry H. Kennedy, Jr., on July 2, 2004. Official paperless order (FL, ) (Entered: 07/02/2004)

MINUTE ORDER granting 44 Motion to Strike Linda Davenport's Motion to Compel Compliance with Kosen Complaint Procedure and for Sanctions. (Kennedy, Henry) (Entered: 07/25/2004)

THIS IS A TEST. Please disregard this entry. It will be deleted forthwith after the conclusion of the test. Please accept our apology for the inconvenience that this may cause you our your staff. (Burgess, Joe) (Entered: 08/16/2004)

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11/08/2004 11/15/2004 11/16/2004
11/18/2004 02/16/2005
02/25/2005 03/03/2005 03/03/2005 03/04/2005 05/20/2005
05/31/2005
06/02/2005 07/15/2005

Set Hearings: Motion Hearing, motion to enforce, set for 11/29/2004 at 09:30 AM in Courtroom 14 before Judge Henry H. Kennedy. Each side will have 20 minutes for argument. (rew, ) (Entered: 11/08/2004)
51 Joint MOTION Adjournment of 11−29−04 oral argument to any date after 2/7/05 by ANGELA GRABOVSKY. (Campbell, Thomas) (Entered: 11/15/2004)
MINUTE ORDER granting 51 Motion to adjourn oral argument on MOTION to Enforce Consent Decree until after February 7, 2005. The clerk of the court shall reschedule the oral arguemnt as soon after February 7, 2005, as the business of the court permits. (Kennedy, Henry) (Entered: 11/16/2004)
Set/Reset Hearings: Motion Hearing set for 11/29/2004 at 9:30 AM is OFF and reset for 3/18/2005 at 02:00 PM, 20 minutes each side, in Courtroom 14 before Judge Henry H. Kennedy. (rew, ) (Entered: 11/18/2004)
52 STIPULATION Stipulated Order and Letter from Carolyn Chalmers, Special Master by AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, AMERICAN EXPRESS COMPANY. (Attachments: # 1 Stipulated Order)(Sprenger, Steven) (Entered: 02/16/2005)
MINUTE ORDER: The court hereby adopts the parties' "Stipulated Order" regarding discovery material to be treated as confidential. The parties shall be governed by such Order. (Kennedy, Henry) (Entered: 02/25/2005)
53 MOTION for Order Adjourning Oral Argument of March 18, 2005 by ANGELA GRABOVSKY. (Campbell, Thomas) (Entered: 03/03/2005)
54 STIPULATION re 53 MOTION for Order Adjourning Oral Argument of March 18, 2005 (Stipulated Order) by ANGELA GRABOVSKY. (Campbell, Thomas) (Entered: 03/03/2005)
MINUTE ORDER granting 53 MOTION for Order Adjourning Oral Argument of March 18, 2005. Oral argument shall take place on May 20, 2005, at 11:00 A.M. (Kennedy, Henry) (Entered: 03/04/2005)
55 Order withdrawing 47 defendants' motion to enforce consent decree by enjoining portion of Class Member Angela Grabovsky's Claims in Arbitration, Docketed June 9, 2004. Signed by Judge Henry H. Kennedy on May 20, 2005. (FL, ) (Entered: 05/20/2005)
56 NOTICE of Filing of Special Master's Report and Order by AMERICAN EXPRESS FINANCIAL ADVISORS INC., AMERICAN EXPRESS FINANCIAL CORPORATION, AMERICAN EXPRESS COMPANY (Attachments: # 1 Special Master's Report and Order)(Bedell, Kevin) (Entered: 05/31/2005)
57 NOTICE of Change of Address by Steven M. Sprenger (Sprenger, Steven) (Entered: 06/02/2005)
58 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN EXPRESS FINANCIAL ADVISORS INC., IDS FINANCIAL SERVICES, INC., IDS LIFE INSURANCE, INC., AMERICAN EXPRESS FINANCIAL CORPORATION, AMERICAN EXPRESS COMPANY. Attorney Kevin B. Bedell terminated. (Bedell, Kevin) (Entered: 07/15/2005)