Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 27 of 104

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JILL HUBLEY, and

§

LAURA GUENTHER,

§

§

On behalf of themselves and all others §

similarly situated,

§

§

Plaintiffs,

§

§

v.

§

§

DELL INC.

§

§

Defendant.

§

Civil No. A-08-CA-804-JRN

SETTLEMENT AGREEMENT SUbject to approval by the United States District Court for the Westem District of Texas, Austin Division, tillS Settlement Agreement ("Settlement Agreement" or "Agreement") sets forth the full and final terms by which Named Plaintiffs Jill Hubley and Laura Guenther, as representatives of the class described herein, and Dell Inc. ("Defendant" or Dell"), have settled and resolved this matter. I. NATURE AND RESOLUTION OF THE CASE. On October 29, 2008, Named Plaintiff Jill Hubley filed her Class Action Complaint against Dell in the United States District Court for the Western District of Texas on behalf of female employees of Dell. Named Plaintiff Laura Guenther was subsequently added as a named plaintiff and class representative. Named Plaintiffs are represented by Class Counsel, who have represented many clients in employment

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disputes with Dell. As part of their investigation and prosecution of this Civil Action, Class Counsel interviewed cun-ent and fonner Dell female employees regarding their experiences at Dell, particularly as it related to their compensation, promotion, business opportunities, and career advancement at Dell in comparison to their male cOW1terparts. Class Counsel also reviewed numerous Dell documents relating to these issues.
In an effort to avoid unnecessary litigation, cost and expense, the Parties entered pre-litigation mediation. Dell provided Class Counsel with substantial employment data and infonnation in furtherance of the mediation and the Parties retained a well-known and experienced mediator, skilled in mediation of complex class actions, including national employment discrimination class actions, to assist the Parties in their negotiations. Over the course of several months and multiple mediation sessions, the Pruties discussed extensive analyses of the employment data ruld potential equitable fonns of relief to be part of a settlement. Each party retained an expert labor economist to analyze the available employment data and to assist the Parties in negotiating a fair and reasonable settlement. Both Parties and their counsel recognize that, in the absence of an approved settlement, they would face a long litigation course, including motions to dismiss, motions for class certification, fonnal discovery, motions for summary judgment, and trial and appellate proceedings that would consume time and resources and present each of them with ongoing litigation risks and uncertainties, The Parties wish to avoid these lisks and uncertainties, as well as the consumption of time and resources, through settlement pursuant to the tenns and conditions of this Agreement. After careful review and consideration, the Class Representatives and Class Counsel ru'e of the opinion
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that the settlement set forth in this Agreement is fair, reasonable, adequate, and provides prompt relief for the Class. Class Counsel and the Class Representatives believe that the settlement set forth in this Settlement Agreement is in the best interest of the Class based on all the facts and circumstances, including the risk of significant delay and the uncertainty of achieving class certification that could preclude any recovery for the Class.
It is the desire of the Parties to fully, finally, and forever settle, compromise, and
discharge all disputes and claims arising from or related to the Civil Action which exist between them and between the Released Pmties and the Settlement Class.
It is the intention of the Parties that this Settlement Agreement shall constitute a full and complete settlement and release of all Released Claims against alI Released Parties and a dismissal of the Civil Action.
Dell denies all claims as to liability, wrongdoing, damages, penalties, interest, fees, injunctive relief and all other fOlIDS of relief, as well as the class allegations asserted in the Civil Action. Dell has agreed to resolve the Civil Action via this Settlement Agreement, but to the extent this Settlement Agreement is deemed void or the Effective Date does not occur, Dell does not waive, but rather expressly reserves, all rights to challenge any and all claims and allegations asserted by the Class Representatives in the Civil Action upon all procedural and substantive grounds, including without limitation the ability to challenge class action treatment on any grounds and to assert any and all other potential defenses or privileges. The Class Representatives and Class Counsel agree that Dell retains and reserves these rights, and they agree not to take a position to the contrary. Specifically, the Class Representatives and Class Counsel agree that, if the
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Civil Action were to proceed, they will not argue or present any argument, and hereby waive any argument that, based on the settlement or this Settlement Agreement or any exhibit and attachment hereto, or any act perfonned or document executed pursuant to or in furtherance of the settlement or this Settlement Agreement, Dell should be barred limn contesting class action certification pursuant to Federal Rule of Civil Procedure 23 on any grounds, or from asserting any and all other potential defenses and privileges. This Settlement Agreement shall not be deemed an admission by, or ground for estoppel against Dell that class action treatment pursuant to Federal Rule of Civil Procedure 23 in the Civil Action is proper or cannot be contested on any grounds. Additionally, neither the Settlement Agreement nor the settlement, nor any act performed or document executed pursuant to, or in fmtherance of, the Settlement Agreement or the settlement: (a) is or may be deemed to be or may be used as an admission or evidence of the validity of any Released Claim, or of any wrongdoing or liability of the Released Parties, or any of them; or (b) is or may be deemed to be or may be used as an admission or evidence of any fault or omission of the Released Parties, or any of them, in any civil, criminal or administrative proceeding in any court, administrative agency, or other tribunal.
This Settlement Agreement is a compromise and shall not be construed as an admission of liability at any time or for any purpose, under any circumstances, by the Released Pruiies. The Parties and Class Members further acknowledge and agree that neither this Settlement Agreement nor the settlement shall be used to suggest an admission of liability in any dispute the Parties and Settlement Class may have now or in the future with respect to any person or entity. Neither this Settlement Agreement nor
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anything in it, nor any part of the negotiations that occurred in connection with the creation of this settlement, shall constitute evidence with respect to any issue or dispute in any lawsuit, legal proceeding, or administrative proceeding, except for legal proceedings concerning the enforcement or interpretation of this Settlement Agreement.
II. GENERAL TERMS OF THE SETTLEMENT AGREEMENT.
A. Definitions. In addition to terms identified and defmed elsewhere in this Settlement Agreement, and as used in this Settlement Agreement, the tenns below shall have the following meanings:
1. The "Civil Action" means the above-captioned action. 2. "Claims Administrator" means HEFFLER, RADETICH & SAITTA LLP, 1515 Market Street, Suite 1700, Philadelphia, PA 19102, which has been jointly designated by counsel for the Parties to administer the Settlement Fund pursuant to the provisions set forth hcrein and orders of the Court. 3. "Class Counsel" means the law finns of Scott, Douglass & McConnico, LLP and Hance Scarborough, LLP approved as Class Counsel by the Court. 4. "Class Representatives" or "Named Plaintiffs" means Jill Hubley and Laura Guenther. 5. "Complaint" means the Complaint filed in this Civil Action on October 29, 2008 and the Amended Complaint filed on March 9,2009. 6. "Counsel for Dell" means the law firms of Morgan, Lewis & Bockius LLP, Boulette & Golden LLP, and Van Osselaer & Buchanan LLP.
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7. The "Court" means the United States District Comt for the Western District of Texas, Austin Division.
8. "Effective Date" means the date upon which all of the following have occuned: (I) entry of an order by the Court certifying the Settlement Class; (2) entry of an order or orders by the Court granting final approval to the Settlement Agreement, approving the amount of attorneys' fees and costs and dismissing the Action, with continuing jurisdiction limited to enforcing the Settlement Agreement; and (3) the appeal period (i.e., 30 days) has run without an appeal of any Court order, or in the event of an appeal, the Parties have received actual notice that the settlement has received fmal approval after completion of the appellate process and the fmal resolution of any appeals.
9. "External Advisor" means the individual retained by Dell, with the approval of Class Counsel, to perfonn the duties set forth herein with respect to this Agreement.
10. "Final Approval" means the order or orders entered by the Court granting final approval of the Settlement Agreement.
II. "Final Approval Date" means the date of entry of the Final Approval order or orders.
12. "Internal Compliance Panel" means the internal compliance panel established by Dell described within this Settlement Agreement whose members are responsible for ensuring that Dell complies with the terms of this Settlement Agreement.
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l3. "Notice" means the Notice of a Proposed Class Action Settlement substantially in the form attached hereto as Exhibit A, which is to be mailed directly to Class Members following preliminary Court approval of this Agreement.
14. The "Parties" means the Nmned Plaintiffs and Dell. 15. "Preliminary Approval" means the order or orders entered by the Court preliminarily approving the terms of this Settlement Agreement, certifying the Settlement Class and approving the form of Notice to be sent to Class Members. 16. "Preliminary Approval Date" means the date of entry of the Preliminary Approval order or orders. 17. "Released Claims" means any and all claims for injunctive andlor equitable relief of whatever nature, known or unknown, including but not limited to, all claims for back pay, front pay, liquidated damages or other make whole relief, that the Named Plaintiffs and Settlement Class Members may have against Dell, its subsidiaries and affiliated companies, and in the case of all such entities, their respective past and present owners, representatives, officers, directors, attorneys, agents, employees, insurers, successors and assigns (collectively referred to as the "Released Parties"), arising out of the same transactions, series of connected transactions, occurrences or nucleus of operative facts that form the basis of the claims that were or could have been asserted in Hubley ct. al v. Dell Inc. Co., A-08-CA-804-JRN. This release includes and covers without limitation all actions or omissions occurring through the Final Approval date as defined and all claims known or unknown for prior or past discriminatory actions outside any liability period, subject to the provisions set forth herein. Specifically included in
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this release are any and all employment discrimination claims or benefits claims or claims for losses caused by any unpaid wages or compensation arising out of the same transactions, series of connected transactions, occurrences or nucleus of operative facts that form the basis of the claims that were or could have been asserted in Hubley et. al v. Dell Inc. Co., A-08-CA-804-JRN, including but not limited to, claims of alleged employment discrimination or benefits claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the Equal Pay Act, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), the Texas Lahor Code, and the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. ("ERISA") (except for vested benefits otherwise entitled), and any other federal, state, or local statutes, common law, or regulation. Furthermore, this Release includes all claims for injunctive, declaratory or equitable relief, including all claims for back pay, front pay, liquidated damages or other make whole relief, and costs and attorneys' fees, whether arising under Title VII, the Equal Pay Act or under any other federal, state, local or common laws or regulations relating to or arising out of the same transactions, series of connected transactions, occurrences or nucleus of operative facts that fonTI the basis of the claims that were or could have been asserted in Hubley et. al v. Dell Inc. Co., A-08CA-804-JRN.
18. "Settlement Agreement" or "Agreement" means this Agreement and all Exhibits attached to it.
19. "Settlement Hearing" means the hearing at which the Court will consider final approval of this Settlement Agreement and related matters.
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B. Duration of the Settlement. The programmatic relief embodied in this Settlement Agreement shall remain binding on the Parties and their agents and successors for a three (3) year period following the Effective Date.
C. Cooperation. The Parties agree that they will cooperate to effectuate and implement all terms and conditions of this Settlement Agreement, and exercise good faith effOlts to accomplish the terms and conditions of this Settlement Agreement.
D. Persons Covered by this Settlement Agreement. 1. Definition of "Settlement Class," "Class," "Class Members." Solely for purposes of settlement and judicial approval of this Settlement Agreement, the Parties stipulate to the certification of the following Settlement Class: All women employed by Dell in the United States for at least one day in a C1 thmugh D3 grade level positions or their equivalents between February 14, 2007 and December 31, 2008, excluding any former employee who previously executed a complete release as part of any prior litigation or settlement agreement (but not a Severance agreement) and further excluding any current or former employee who filed a complaint of discrimination with a state or federal agency. Your individual status for evaluating whether you are a Class Member was determined based on a review of available records as of July 17, 2009. 2. Certification. The Settlement Class will be certified pursuant to Fed. R. Civ. P. 23(b)(2). III. COURT APPROVAL, NOTICE AND FAIRNESS HEARING. A. Jurisdiction and Venue. The Parties agree that the Court has jurisdiction over the Parties and the subject matter of this Civil Action and that venue is proper. The
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Court shall retain jurisdiction of this Civil Action solely relating to compliance with the terms of this agreement, if necessary,
B. Preliminary Approval. I, Prior to execution of this Settlement Agreement, the Parties have agreed upon a fonn for written Notice of this Settlement Agreement to Class Members, subject to Court approval. 2. Within twenty (20) days after the execution of this Settlement Agreement, the Parties shall petition the Court for: (a) Preliminary Approval; and (b) an order that, pending Final Approval, preliminmily enjoins each member of the Settlement Class from commencing, prosecuting or maintaining in any court other than this Court any claim, action or other proceeding that challenges or seeks review of or relief from any order, judgment, act, decision or ruling of this Court in connection with this Settlement Agreement.
c. Notice, Objections and Settlement Hearing.
I. Within ten (10) days after Preliminary Approval, Dell will identifY all Class Members and will provide to the Claims Administrator the name, social security number and last known address of each Class Member. The Claims Administrator shall utilize Class Members' social security numbers only if necessary for the purpose of locating and identifying Class Members and shall keep those social security nmnbers confidential.
2. Within twenty (20) days after Preliminm"y Approval, the Claims Administrator will mail by United States first class mail, postage prepaid, the Notice in
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substantively the fonn attached hereto as Exhibit A, and as approved by the Court, to each Class Member.
3. If envelopes from the mailing of the Notice are retumed with forwarding addresses, the Claims Administrator will re-mail the Notice of Class Action Settlement to the new address within three (3) business days.
4. Class Counsel shall provide the Court, at least five (5) calendar days prior to the Settlement Hearing, a declaration by the Claims Administrator of due diligence and proof of mailing with regard to the mailing of the Notice of Class Action Settlement to Proposed Class Members.
5. In the event that a Notice of Class Action Settlement is relnmcd to the Claims Administrator by the United States Postal Service because the address of the recipient is no longer valid, Le., the envelope is marked "RetUlTI to Sender," the Claims Administrator shall perfonn a standard skip trace in an effort to attempt to asceltain the cutTent address of the particular Proposed Class Member in question and, if such an address is ascertained, the Claims Administrator will re-send the Notice within three (3) business days of receiving the newly ascertained address; if no updated address is obtained for that Proposed Class Member, the Notice of Class Action Settlement shall be sent again to the Proposed Class Member's last known address. In either event, the Notice of Class Action Settlement shall be deemed received once it is mailed for the second time. With respect to envelopes marked "RetUlTI to Sender," the Claims Administrator may also call any identified last known telephone numbers (and telephone
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numbers updated through public and proprietary databases) of Proposed Class Members to obtain their current addresses.
6. The Claims Administrator shall provide to Class Counsel a list of those Class Members who have not been located and the Claims Administrator may engage third party vendors, who shall also keep Class Members' social security numbers confidential, to locate Class Members. The Claims Administrator wiJI maintain a log of its and any third party vendors' activities undertaken pursuant to this section.
7. Class Member objections to this Settlement Agreement must be submitted III writing, and must include a detailed description of the basis of the objection. Objections must be filed with the Court, with copies served on Class Counsel and Counscl for Dell, within thirty-five (35) days after thc Notice is mailed to Class Members. No one may appear at the Settlemcnt Hearing for the purpose of objecting to this Agreement without first having filed and served her objection(s) in writing within thilty-five (35) days after the Notice was mailed to Class Members.
8. Upon Preliminary Approval, a briefing schedule and Settlement Hearing date will be requested to be set at the Court's convenience. The Parties' Motion for Final Approval and for Certification of the Settlement Class will be due no later than twentyone (21) days following the close of the objection peliod, and the Settlement Hearing will be held no earlier than thirty (30) days following the close of the objection period. IV. MONETARY RELIEF.
A. Settlement Fund. No later than ten (10) days after Final Approval, Dell shall, by wire transfer, provide to the Claims Administrator the amount of Five Million,
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Six Hundred Thousand Dollars ($5,600,000) (the "Settlement Fund"). The $5.6 million will bc placed in an interest-bearing account approved by Class Counsel (the "Settlement Fund Account") with a unique Tax Payer Identifier Number. The Settlement Fund Account will constitute a qualified settlement fund and it will be created, numaged and disbmsed by the Claims Administrator under the supervision of the Parties. Except as
provided herein, Dell will have no responsibilities with respect to the administration of
the Settlement Fund Account, including any distribution therefrom. The Settlement Fund shall be divided as follows, provided the Court finally approves the Settlement:
(1) a total gross amount of Four Million, Five Hundred Thousand Dollars ($4,500,000) plus interest, the sum of which will be allocated for the payment of all
individual monetary awards to Class Members, including individual monetary awards to
Named Plaintiff Jill Hubley of Fifty Thousand Dollars ($50,000.00) and Named Plaintiff Laura Guenther of Twenty-Five Thousand Dollars ($25,000.00) for their service to the
class; and
(2) a total gross amount of One Million, One Hundred Thousand Dollars ($1,100,000) to pay Class Counsel's attorneys' fees and costs, including those fees and costs in connection with seeking Court approval of the Settlement, the claims process and monitoring of the Settlement Agreement.
B. Pay Equity Settlement Fund No later than ten (10) days after Final Approval, Dell shall reserve a total gross amount of Three Million, Five Hundred Thousand Dollars ($3,500,000) (thc "Pay Equity Settlement Fund") to be allocated within
a reasonable period of time, but no later than March 31, 2010, as base pay adjustments
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pm-suant to the pay equity review and salary adjustment analysis set forth in Section V,C, for Class Members who are current employees, grade level positions Cl through D3 or their equivalents. Dell agrees that, except as provided in Section V.C.2., to the extent recommended by the Labor Economist conducting the pay equity analysis as set forth in Section V,C" it shall utilize the full Pay Equity Settlement Fund to make pay adjustments. If the Labor Economist determines that the required pay adjustments are less than the Pay Equity Settlement Fund set aside to make adjustments, then the remaining funds shall be expended in one of the following ways: (l) subject to the terms of Section V,C.2, if Dell utilizes less than 85% of the Pay Equity Settlement Fund for the base pay adjustments pursuant to the Labor Economist's recommendations, then the remaining funds shall be distributed to cmrent employees on a pro rata basis; (2) subject to the terms of Section V,C.2, if Dell utilizes at least 85%, but less than 100% of the Pay Equity Settlement Fund for the base pay adjusttnents pm-suarrt to the Labor Economist's recommendations, then the remaining funds shall be utilized to implement the specific programmatic relief provisions set forth in Section V. benefiting all current employees. Dell shall provide an accounting of the use of such funds to the External Advisor.
C. Administrative Expenses. Dell agrees to pay all administrative expenses of this Settlement Agreement, including the fees and costs of the Claims Administrator and the costs of Notice (the "Administrative Expenses"),
D. Allocation, The $5,6 million transfened into the Settlement Fund Account, the $3,5 million reserved by Dell for the Pay Equity Settlement Fund, and the Administrative Expenses shall, with the additional Employer Payroll Tax Payment
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described below, constitute the total cash outlay by Dell in connection with (1) the resolution of this matter; (2) this Settlement Agreement (and attachments); and (3) the dismissal of this Civil Action. Except as provided herein, these sums are inclusive of payment for (a) all amounts paid to Class Members, including Named Plaintiffs, which are to be distributed pm-suant to this Settlement Agreement; (b) all Class Counsel's attorneys' fees and costs as set forth in Section IV.A.2. above; and (c) applicable federal, state and local income taxes, and federal and state unemployment taxes required to be withheld and/or paid by Dell. However, the $4.5 million paid for Class Members into the Settlement Fund does not include Dell's share of taxes or contributions (i.e., FICA, FUTA, SUTA and Medicare), which will be paid separately by Dell to the Claims Administrator. Dell shall, upon notice from the Claims Administrator as required in Section IV.!'. I. below, remit any required tax payment to the Claims Administrator.
E. Administration by the Claims Administrator. The Claims Administrator shall serve as trustee of the Settlement Fund and shall act as a fiduciary with respect to the handling, management and distribution of the Settlement Fund. The Claims Administrator shall act in a manner necessary to qualify the Settlement Fund as a "Qualified Settlement Fund" under Section 468B of the lntemal Revenue Code.
F. Allocation and Distribution of Individual Awards. 1. Within thirty (30) days after the Effective Date, the Claims Administrator will pay the portion of the Settlement Fund allocated for individual Class Member monetary awards. Prior to this date, the Claims Administrator will provide notice to Dell of Dell's required share of taxes or contributions referenced in Section IV.D. Each Class
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Member shall receive an individual award in accordance with the following distribution

fonnula:

Subject to a minimum payment of $250.00 (e.g., for persons who worked only limited time within the Class Period), the funds are distributed proportionately based on the number of months worked by each employee and the number of months worked in each of the job grades (Cl to D3) based on the following weighting:

Job Grade Cl C2 C3 Dl D2 D3

Weight 1.0
1.4
1.8 2.3
2.9
3.3

Any employee whose employment was tennllated and who signed a severance agreement and accepted severance will receive the minimum payment 0[$250.00. For Class Members, the Claims Administrator will withhold all applicable taxes under federal, state and/or local laws. The Claims Administrator will ensure that such monies withheld are paid to the appropriate authorities for each Class Member who receives an individual award and will issue IRS Fonus W·2 for the amounts reportable on the fonn. 2. The Claims Administrator shall distribute individual payments under the tenus of this Settlement Agreement to the Class Members no later than thitty (30) days after the Effective Date. The face of each check sent to Class Members shall clearly state that the check must be cashed within one hundred twenty (120) calendar days. All payments distributed by the Claims Administrator must be accompanied by a cover letter stating words in bold to the effect that "the check must be cashed within one hundred and

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twenty (120) calendar days or it will become void." The back of each check will contaio a legend stating: "By negotiating this check and accepting payment, I agree that I have waived and released the Released Parties from all Released Claims as defined in the Settlement Agreement and in the Notice in this matter." Class Members must sign the check in the space following the legend, provided that the release of claims shall still be enforceable if any Class Members are pennitted to negotiate a check without a signature.
3. All Named Plaintiffs, as a condition of receiving a monetary payment in conjunction with this Settlement Agreement, will be required to execute and deliver to Dell via Class Counsel a Named Plaintiff Release in the form agreed to by counsel for the Parties.
4. Payments made under this Settlement Agreement, except for pay equity adjustment payments, are not intended to and will not: (1) form the basis for additional contIibutions to, benefits under, or any other monetary entitlement under; (2) count as eamings or compensation with respect to; or (3) be considered to apply to, or be applied for purposes of, Dell's bonus, pension, Executive Compensation, Long Tenn Incentive, and any 401(k) and/or other retirement plans or similar programs. Dell retains the right to modify the language of its benefit plans and pension, bonus and other programs, if necessary, to make clear that any amounts paid pursuant to this Settlement Agreement are not for hours worked, hours paid or any similar measuring tenn as defined by any plans and programs for purposes of eligibility, vesting, benefit accrual or any other purpose.
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V. PROGRAMMATIC RELIEF. A. Commitment to Non-Discrimination. Dell shall maintain and enforce its
existing non-discrimination and anti-retaliation policies designed to ensure equal employment opportunity for its employecs.
1. In accordance with the above-referenced policies and its obligations under state and federal law, Dell shall enforce its policy of not knowingly maintaining or enacting any policy or practice that has the purpose or effect of unlawfully discrinrinating against any Class Member or employee on the basis of gender.
2, In accordance with the above-referenced anti-retaliation policies and its obligations under federal and state law, Dell shall not retaliate against any Class Member or other female employee because she (1) complained of or opposed discrimination on the basis of gender at Dell; (2) testified, furnished information or participated in any investigation, proceeding, or hearing, whether in connection with this lawsuit or any other complaint of gender discrimination at Dell; or (3) sought and/or received monetary and/or non-monetary relief pursuant to this Settlement Agreement.
B. Industrial Psychologist and Policy Review. 1. Dell agrees to retain an Industrial Psychologist with a Ph.D., with the approval of Class Counsel (who shall fIrst review thc qualifications of this individual, and who agrees not to unreasonably withhold or delay consent), based on a reasonable budget, to work in conjunction with Dell to assist it in reviewing, developing and recommending policies and practices with regard to compensation, perfonnance evaluations, hiring, promotions and job assignments. Class Counsel shall have an
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opportunity to meet in person with the Industrial Psychologist as part of the Industrial Psychologist's review of Dell's policies and procedures.
2. Dell, in conjunction with the Industrial Psychologist, shall, with respect to employees in grade level positions Cl through D3 or their equivalents, evaluate and develop processes and procedures, or improve existing processes and procedures, to
govelll the promotion, hiring (external and internal), hiring classification and lateral transfer process that are designed to be consistent with a policy of promoting equal opportunity for all employees and a prohibition on unlawful discrimination or unlawful
disparate treatment in any of Dell's processes and procedures. 3. Dell, in conjunction with the Industrial Psychologist, also shall, with
respect to employees in grade level positions Cl through D3 or their equivalents, evaluate and develop processes and procedures, or improve existing processes and procedures, relating to accountability, internal oversight and monitoring of individual managerial decisions regarding promotions, hires (both external and intenml) and transfers, including decisions to classify or retain an employee in a particular grade level.
4. Dell, in conjunction with the Industrial Psychologist, also shall, with
respect to employees in grade level positions C 1 through D3 or their equivalents, evaluate and develop processes and procedures, or improve existing processes and procedures, relating to the employee development process, including criteria for promotion, participation in special projects and transfers that are designed to be consistent with a
policy of promoting equal opportunity for all employees and a prohibition on unlawful discrimination or unlawful disparate treatment in any of Dell's processes and procedures.
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5. Dell, in conjunction with the Industrial Psychologist, also shall, with respect to employees in grade level positions Cl through D3 or their equivalents, evaluate
and develop or improve existing managerial training on how to make decisions regarding
promotions, hires (external and intclnaI) and transfers, and provide managers with instruction on the proper utilization of compensation tools and guidelines designed to ensure that all employees arc classified in the appropriate grade level, and receive
equitable compensation (with respect to merit salary increases, bonuses, stock grants and stock option allocations).
6. Consistent with the principles and purposes of this Agreement, Dell agrees to consider and implement the recommendations of the Industrial Psychologist; provided, however, that Dell shall have the right to, in good faith, reject, in whole or in part, the recommendations of the Industrial Psychologist. Dell agrees to communicate in writing to the Industrial Psychologist, the Internal Compliance Panel, the External Advisor, and Class Counsel its reasons for rejecting any recommendations,
7. In the event that the External Advisor andlor Class Counsel is not satisfied with Dell's stated reasons for not implementing any of the recommendations of the Industrial Psychologist, Class Counsel andlor the External Advisor may suggest an alternative recommendation and the Parties shall meet and confer in a good faith effort to consider the recOllllnendation and/or altenlatives,
8, After implementing any recommendations of the Industrial Psychologist, Dell shall monitor and evaluate the effectiveness of any such changes and shall discuss such results with the Extemal Advisor and the Internal Compliance Panel. Dell shall
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provide data on an annual basis to the Exte111al Advisor and the Internal Compliance Panel tracking and measuring Dell's progress on the hiring, promotion and retention of women in grade level positions CI through D3 or their equivalents.
9. The recommendations of the Industrial Psychologist and changes implemented and rejected by Dell as a result of the analysis of the Industrial Psychologist shall he shared with the Intemal Compliance Panel, the External Advisor and Class Coonse!.
10. The recommendations of the Industrial Psychologist, all summaries of such recommendations, any decisions by Dell with respect to the recommendations and any changes implemented by Dell as a result of the recommendations shall be confidential and not disclosed, except as provided herein to resolve any disputes regarding Dell's compliance with the terms of this Agreement or to enforce Dell's compliance with the terms of this Agreement.
C. Equity Review and Salary Adjustments. 1. Dell agrees to retain with the approval of Class Counsel (who shall first review the qualifications of this individual, and who agrees not to umeasonably withhold or delay consent), subject to a reasonable budget, a Labor Economist/Statistician to conduct a pay equity analysis of existing compensation and recommend any pay adjustments for all current female employees in Cl through D3 grade level positions or their equivalents. Class Counsel shall have an opportunity to meet with the Labor Economist/Statistician prior to the Labor Economist/Statistician's beginning the analysis. Upon completion of the analysis, the Labor Economist/Statistician shall deliver a report
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summarizing his/her analysis and recommendations and deliver copies of the report to the appropriate individuals at Dell, the Internal Compliance Panel, the External Advisor and Class Counsel.
2. Consi,tent with the principles and purposes of this Agreement, Dell agrees to consider and implement the recommendations of the Labor Economist/Statistician and Indush'ial Psychologist regarding pay adjustments. While Dell shall have the right to accept or reject in good faith, in whole or in part, the recommendations of the Labor Economist/Statistician as to individual employees, Dell agrees that it is its intention to use the full Pay Equity Settlement Fund to make pay adjushnents pursuant to the pay equity process set forth in this Section. The Parties agree that any pay adjustments implemented pursuant to this Section shall be retroactive to May 31, 2009 and shall be valued on an annual basis. For example, if Employee X receives a base pay adjustment of $1,000 per month reh'oactive to May 31, 2009, the value of that adjustment on an annual basis is $12,000. The Parties further agree, however, that the full annual value of the adjushnent shall not be credited against the portion of the funds allocated for these adjustments in Section IV.B. to the extent an affected employee is tenninated pursuant to a reduction-in-force prior to May 31, 2010 and actually does not receive the full annual adjustment. On the one year anniversary date of the Retroactive Adjustment Date for implementation of the adjustments, Dell shall calculate the value of any such adjustments for the purpose of determining whether the funds allocated in Section IV.B. above for pay adjustments have been fully utilized in order to reach the 85% standard described in Section IV.B.
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 49 of 104
3. The Parties anticipate that, as a result of the pay equity adjustments to be implemented by Dell pursuant to this Settlement Agreement, the earnings of female employees in grade level positions CI through D3 at Dell will increase over the period of the Settlement Agreement by at least $12.6 ntillion.
4. With respect to any recommendations of the Labor Economist/Statistician
regarding pay equity adjustments that Dell rejects, Dell shall provide written business
reasons for its decision to the Internal Compliance Panel, the External Advisor and Class Counsel.
5. Consistent with the principles and purposes of this Agreement, Dell agrees that, with respect to the recommendations of Labor Economist/Statistician for pay adjustments which it has agreed to implement, Dell will implement those adjustments effective May 31, 2009 (the "Retroactive Adjushnent Date").
6. In the event that the External Advisor and/or Class Counsel is not satisfied with Dell's stated reasons for not implementing any of the recommendations for pay adjustments, Class Counsel and/or the External Advisor may suggest an altclnative
recommendation and the Patties shall meet and confer in a good faith effort to consider the recommendation and/or alternatives.
7. The recommendations of the Labor Economist/Statistician shall be subject
to the Confidentiality provisions of this Agreement, except as provided herein to resolve
any disputes regarding Dell's compliance with the terms of this Agreement or to enforce Dell's compliance with the tenns of this Agreement.
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 50 of 104
D. Expert Access to Information. Dell agrees that, subject to an appropriate confidentiality agreement, Dell will provide the selected Industrial Psychologist and Labor Economist/Statistician with reasonable access to all records, documents, data and other sources of information, including interviews of company personnel, necessary or appropriate to fulfill his/her responsibilities as stated in this Agreement.
E, Candidate Slate Consideration. For any grade level position D3 and above, Dell agrees to make all reasonable efforts to ensure that it interviews a diverse slate of candidates for such positions inclusive of female candidates. If Dell does not obtain a diverse slate of final candidates for a particular position, Dell will document and maintain a brief explanation for why there was not a diverse slate of candidates. Dell shall provide data to the External Advisor on an annual basis regarding the composition of candidate slates, including data regarding the diversity of the slates.
F. Internal Compliance Panel. Within thirty (30) days of the Final Approval
Date, Dell shall establish an Internal Compliance Panel to ensure compliance with this
Agreement. The Internal Compliance Panel shall be comprised of the Human Resources Center of Excellence Committee, currently comprised of the Vice-President of Global Talent Management, Vice-President of Global Compensation and Benefits, VicePresident of Global Corporate Responsibility and Vice-President of Global Ethics and Compliance. In the event any of the above leave or resign from the Committee, they shall be replaced by at least a Vice-President-Ievel employee within the Human Resources area. The Internal Compliance Panel shall meet semi~annually, or more frequently if necessmy, to review progress on the status of implementing this Agreement
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 51 of 104
and shall provide an annual progress report to the External Advisor on compliance with this Agreement The Internal Compliance Panel shall be charged with responsibility for ensuring that Dell complies with the terms of this Agreement.
G. External Advisor. Within ninety (90) days of the Final Approval Date, Dell shall retain an Extelual Advisor, approved by Class Counsel, to serve as a resource to the Executive Leadership Team and Chief Executive Officer concerning equal employment opportunity and diversity initiatives and to assist with and ensure compliance with this Settlement Agreement Class Counsel shall have an opportunity to meet in person with the External Advisor within sixty (60) days of retention by Dell. The ExtClnal Advisor will meet semi-annually or more frequently as necessary with the Internal Compliance Panel to review progress reports on the status of implementing the terms of this Settlement Agreement including the effectiveness of the recommendations of the Industrial Psychologist, the pay equity analysis, and general equal employment opportunity and diversity issues. The External Advisor shall further prepare an Annual Compliance Report regarding Dell's compliance with the terms of this Settlement Agreement to be submitted to the Executive Leadership Team, Dell's Internal Compliance Panel and Class Counsel which shall include, among other items, infonnation regarding the effectiveness of any recommendations of the Industrial Psychologist implemented by Dell. The External Advisor shall have reasonable access to Dell's records, data, documents and other sources ofinfonuation necessary or appropriate for the exercise of his/her authority. The External Advisor shall be charged with ensuring
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 52 of 104
Dell's implementation of and compliance with the provisions of this Settlement Agreement.
H. Implementation and Communication of Commitment to Diversity and Equal Employment Opportunity. No later than thirty (30) days after the Final Approval Date, Dell shall provide to each of its current employees an electronic or written communication that reflects Dell's commitment to diversity and equal employment opportunity, The communication will be issued by the Chief Executive Officer.
I. Reporting. 1. In addition to the reports and information outlined above, Dell will provide an annual report to Class Counsel relating to its compliance with the telIDS of this Agreement. The report shall include infonnatioll regarding Dell's compliance with all facets of this Agreement. 2. If the External Advisor believes there is an issue with Dell's compliance with the terms of this Agreement, the External Advisor shall have the right to contact a mediator mutually agreed upon by the Patties to seek a resolution of the compliance issue. The mediator shall meet with Dell and the External Advisor to resolve the dispute. If the dispute is not resolved, the mediator may contact Class Counsel. Dell, Class Counsel and the External Advisor shall attempt to resolve the compliance dispute with the assistance of the mediator,
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 53 of 104
3. The External Advisor, Dell and Class Counsel shall meet at least once every year regarding compliance, and may confer more frequently at their discretion or as dictated by information either side gathers.
J. Support Staff, Funds and Resources. Dell shall provide such support staff, funds and other resources as may be reasonably necessary to discharge Dell's obligations under this Settlement Agreement. VI. ENFORCEMENT.
A. No Third Parties. Enforcement of this Settlement Agreement shall be prosecuted by Class Counselor Counsel for Dell only, not third Parties. Class Counsel shall meet and confer with Counsel for Dell prior to commencement of any enforcement proceedings.
B. Dispute Resolution. The Parties will work diligently and in good faith to resolve all disputes, including any disputes that may arise with Dell's compliance under the terms of this Settlement Agreement or that may arise during the term of this Settlement Agreement concerning the rights, obligations and duties of the Parties to this Settlement Agreement. In the event the Parties cannot agree on compliance with the Settlement, the Parties will first attempt to resolve the dispute with the facilitation of the mediator used by the Parties to resolve this matter before. presenting the dispute to the COUli. The Parties shall split 50-50 the fees and expenses of the mediator in the event of such a dispute.
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 54 of 104
VII. ATTORNEYS' FEES AND EXPENSES OF CLASS COUNSEL. Following Final Approval, including the approval of Class Counsel's attorneys'
fees and costs, and within thirty (30) days after the Effective Date, the Claims Administrator will pay Class Counsel the amount of One Million, One Hundred Thousand Dollars ($1,100,000) as attorneys' fees and costs, directly from the Settlement Fund. At least seven days prior to the date of payment, Class Counsel will provide the Claims Administrator with taxpayer identification numbers for Class Counsel and executed Forms W-9. VIII. PARTIES' AUTHORITY.
The Named Plaintiffs hereby represent that they are fully authorized to enter into this agreement and to bind the Pmiies and the Class Members to the tenus and conditions
hereof. IX. NOTICES.
Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly given as of the third business day after mailing by United States registered or certified mail, return receipt requested, addressed as follows: To the Class Representatives or to any Settlement Class member:
HANCE SCARBOROUGH, LLP Geoffrey D. Weisbmt 111 Congress Ave, Suite 500 Austin, Texas 78701 and
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 55 of 104
SCOTT DOUGLASS & MCCONNICO, LLP Julie A. Springer 600 Congress Ave., Suite 1500 Austin, Texas 7870 I To the Defendant: MORGAN, LEWIS & BOCKIUS LLP Michael S. Burkhardt, Esq. 170 I Market Street Philadelphia, PA 19103-2921 X. MODIFICATION. This Settlement Agreement and its attachments may not be changed, altered, or modified, except in writing and signed by the Parties bereto, and approved by the Court. Xl. ENTIRE AGREEMENT. This Settlement Agreement and its attachments constitute the entire agreement and supersede all prior agreements between the Parties and the Settlement Class concerning the subject matter hereof. No extrinsic oral or written representations or terms shall modify, vary or contradict the tenns of this Agreement. In the event of any conflict between this Settlement Agreement and any other settlement-related document, the Parties and Class Members intend that this Settlement Agreement shall be controlling. XII. CHOICE OF LAW/JURISDICTION. This Settlement Agreement shall be subject to, governed by, and construed, enforced, and administered in accordance with the laws of the State of Texas, both in its procedural and substantive aspects, and shall be subject to the continuing jurisdiction of the COUlt. This Settlement Agreement shall be construed as a whole according to its fair meaning and intent, and not strictly for or against any party, regardless of who drafted or
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 56 of 104
who was principally responsible for drafting this Settlement Agreement or any specific term or condition thereof, XIII. COUNTERPARTS.
This Settlement Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpm1, each counterpart shall be deemed an original, and, when taken together with other signed counterpm1s, shall constitute one agreement, which shall be binding upon and effective as to all Parties and Class Members. XIV. CONFIDENTIALITY.
1. All proprietary and confidential documents or infonnation that have previously been provided to either Dell or Class Counsel as of the date this Settlement Agreement is executed, or which are produced by Dell, pursuant to the Confidentiality Agreement previously executed by the Parties or any provision of this Settlement Agreement shall, unless otherwise agreed, be treated as, and thereafter remain, confidential. Said documents and infoIDlation shall not be disclosed to anyone other than the mediator or the Court in connection with any proceeding to enforce any provision of this Settlement Agreement. If such disclosure is deemed necessary by Class Counselor Dell, Class Counselor Dell shall identify and disclose to the other Party such documents and information deemed necessary to disclose at least ten (l0) business days prior to filing such documents with the Court, and, if a Party so requests, shall seek pennission to file said documents with this Court under seaL
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 57 of 104
2. After the expiration of the three (3) year term of this Settlement Agreement, all proprietary and confidential documents or information provided to Class Counsel by Dell and designated as "Confidential" or a similar designation pursuant to this Settlement Agreement or the prior Confidentiality Agreement executed by the Parties, or that have been produced in confidence pursuant to any provision of this Settlement Agreement, and all copies of such documents or infonnation shall, upon request, be retumed to Counsel for Dell or be destroyed within thirty (30) days of the expiration of the three (3) year term of this Settlement Agreement Certification of such destruction shall be provided to Counsel for Dell.
3. Nothing in the preceding paragraphs shall preclude any party from responding to a lawful discovery request, subpoena, or court order; provided, however, that the Party against whom such discoVCIY is sought or such subpoena or order is directed agrees to provide immediate notice and a copy of same to counsel for the other Patties to this Settlement Agreement.
4. Other than necessary disclosures made to the Court, the fact of Settlement, the contents of this Agreement and the attachments hereto, the Patties' settlement negotiations and all related information shall be held strictly confidential by Dell, Counsel for Dell, Class Counsel, Class Representatives and Settlement Class Members, and shall not be disclosed to any third parties (including the media), subject only to the following exceptions: (a) Class Counsel and the Class Representatives may cOlmnunicate with Settlement Class Members for purposes of implementing, administering and enforcing the Settlement as provided herein, and Class Counsel may
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 58 of 104
respond to inquiries they respectively receive from Settlement Class Members; (b) Dell may communicate with those persons, including Dell employees, necessary for the administration, implementation, and enforcement of the Settlement, and may infonn its employees of the Settlement; and (c) Class Connsel, Class Representatives, Settlement
Class Members and Dell agree to issue a mutually agreed upon press release regarding
the settlement of the claims related to this matter which will set forth the reasons why
settlement is in the best interests of the Settlement Class Members. If Dell, Class Counsel, any of the Class Representatives or a Settlement Class Member (after Final Approval) is contacted by the media thereafter, she/he shall only respond in a manner that is consistent with the mutually agreed upon press release referenced above. The Parties agree that the mutually agreed upon press release will be issued when Notice is mailed to Class Members by the Claims Administrator. If Dell, Class Counsel, or any of the Class Representatives is contacted by the media prior to Notice being sent following
preliminary approval, she/he shall respond that it is the Pmiies' intent to issue a joint
statement when notice is sent to individual Class Members.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date indicated below:
Dated: July 22, 2009
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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 59 of 104

HANCE SCARBOROUGH, LLP

By:

..-----------,.-

---, -;. -..,~~~::::,=

-'"7'

Geoffrey D. Weisbar!

111 Congress Ave., Suite 500

Austin, Texas 78701

Tel: (512) 479·8888

Fax: (512) 482·6891

SCOTT DOUGLASS & MCCONICO, LLP

Julie Springer, Esq. 600 Congress Ave., Suite 1500 Austin, Texas 78701 Tel: (512) 495·6300 Fax: (512) 474·0731
Counsel for Class Representatives and Class Members
Dated: July 22, 2009
MORGAN, LEWIS & BOCKlUS LLP

By: "'c-;~--;-;o-:: Miebael S. Burkhardt, Esq.
170 I Market St Philadelphia, PA 19103 Tel: (215) 963·5130 Fax: (215) 963·5001
Dated: July 22, 2009
Counsel for Defendant Dell

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Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 60 of 104
EXHIBIT "A"

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 61 of 104

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JILL HUBLEY and LAURA

§

GUENTHER, On behalf of themselves §

and all others similarly situated,

§

§

Plaintiffs,

§

§

v.

§

§

DELL INC.,

§

§

Defendant.

§

Civil No. A-08-CA-804-JRN
CLASS ACTION JURY TRIAL DEMAND

TIDS IS A NOTICE OF A PROPOSED CLASS ACTION SETTLEMENT FROM THE UNITED STATES DISTRICT COUlU FOR THE WESTERN DISTRICT OF TEXAS

PLEASE READ TIDS NOTICE CAREFULLY.

TIDS NOTICE MAY AFFECT YOUR LEGAL RIGHTS.

DATE OF MAILING: _ _ _ _-', 2009

This Notice is being sent to you, as ordered by the United States District Court for the Western District of Texas (the "Court"), to advise you of the preliminary approval of the settlement of an employment discrimination class action against Dell Inc. ("Dell").

You have received this Notice because Dell's records reflect that you arc or were a woman employed by Dell in the United States in a Cl through D3 grade level position or their equivalent between February 14, 2007 and December 31, 2008, are not a former employee who previously executed a complete release as pati of any prior litigation or settlement agreement (other than a severance agreement), and have not filed a separate complaint of discrimination with a state or federal agency. Therefore, you may be a Class Member in the lawsuit. Your individual status for evaluating whether you are a Class Member was detennined based on a review of available records as of July 17, 2009, The

I

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 62 of 104

purpose of this Notice is to provide you with a summary of the proposed settlement, and to advise you of your rights with respect to the proposed settlement.

I. Important Deadlines

• To participate in the monetary relief portion ofllie settlement, you do not have to do anything. All Class Members are automatically entitled to a monetary payment.

• As set forth in Section VI, below, you have the right to object to thc proposed

settlement. However, if you want to object to the settlement, or some part of the

settlement, you must mail or file your pleading with the COUlt setting forth your

written objection(s). The pleading must be filed with the Court or mailed to the

Court and postmarked by [date of mailing plus 35 days1

, 2009. A copy

of your pleading must also either be mailed or hand delivered to Class Counscl

and to Counsel for Dell by the same date. You may object and still participate in

the settlement.

II. Litigation and Settlement Background

In 2008, Plaintiff Jill Hubley filed a charge of discrimination against Den with the United Statcs Equal Employment Opportunity Commission. Thereafter, Ms. Hubley filed this lawsuit, alleging that Dell engaged in a pattern and practice of gender discrimination with respect to compensating and promoting female employees. Dell denied and continues to deny any liability or wrongdoing of any kind associated with the claims alleged in this lawsuit. Plaintiff Laura Guenther also filed a charge of discrimination, and joined the lawsuit as a second class representative.

Thereafter, the parties agreed to first engage in Alternative Dispute Resolution ("ADR") and retained a highly regarded and nationally known mediator who specializes in class action employment discIimination litigation to assist them in negotiations. The parties then exchanged documents and substantial data, which Plaintiffs had analyzed by a prominent labor economist and statistician. The parties later disclosed the results of their statistical investigation of the employment data and had detailed discussions about the statistical analyses and results. Ms. IIubIey and Ms. Guenther (the ''Named Plaintiffs") were velY much involved in this process and analysis of the evidence, and they also provided background infonnation to Class Counsel, attended and fully pmticipated in mediations,

2

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 63 of 104
provided guidance, assistance and direction to Class Counsel, and regularly responded to requests for information from Class Counsel and Den.
In December 2008, the parties began settlement discussions through the ADR process. Numerous face-to-face negotiations, including many with the mediator, and dozens oftelcphone negotiating sessions took place during December 2008 through June 2009. The Named Plaintiffs were integrally involved in the negotiations and approved of all of the settlement offers and rejected responses. Ultimately, the parties agreed to settle the litigation on the term'" set forth below.
Based upon their investigation and the risk of litigation, including the potential that a class would not be certified, Class Counsel and the Named Plaintiffs have concluded that the terms of the settlement are fair, reasonable, adequate, and in the best interests of the Class. In reaching this conclusion, Class Counsel and the Named Plaintiffs have analyzed the benefits of the settlement and the risk of an unfavorable outcome (I.e., losing), as well as the expense and length of continued proceedings neeessmy to prosecute this action. Dell does not admit any wrongdoing or liability by entering into this settlement, and has agreed to these settlement terms because it wishes to avoid further costly, disruptive, and time-consuming litigation, and desires to obtain complete and final settlement of the claims of the Named Plaintiffs and Class Members.
III. Programmatic and Monetary Relief -- Summary of Employment Practices Affected by the Proposed Settlement with Dell
As part of the negotiations, the Named Plaintiffs sought agreement from Dell in the area of Programmatic Relicf Dell, as part of the settlement, has agreed to the following:
A. Commitment to Non-Discrimination. Dell has committed to maintain and enforce its non-discrimination policies and anti-retaliation policies. Dell has also specifically agreed, among other things, that it shall not retaliate against any Class Member who seeks or receives monetmy and/or non-monetmy relief pursuant to the Settlement Agreement.
B. Industrial Psychologist and Policy Review. Dell has agreed to retain an Industrial Psychologist with a Ph.D., approved by Class Counsel, to work with
3

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 64 of 104
Dell to evaluate and improve Dell's processes and procedures governing the Class concerning the hiring (external and internal), promotion, hiring classification, and lateral transfer process to make sure thcy are consistent with a policy of promoting equal opportunity for all employees. The Industrial Psychologist will also, with respect to the Class, evaluate and develop processes and procedures, or improve existing policies and procedures, relating to accountability, internal oversight and monitoring of individual managerial decisions regarding promotions, hires (both external and internal) and transfers. Dell has also agreed, in conjunction with the Industrial Psychologist, to evaluate and develop or improve existing managerial training on how to make decisions regarding promotions, hires (external and internal) and transfers. Class Counsel and an External Advisor retained to monitor Dell's compliance with the Settlement Agreement will have the continuing authority to question and raise issues if Dell does not implement the Industrial Psychologist's recommendations. C. Candidate Slate Consideration. Dell has agreed for any grade level position D3 and above to make all reasonable efforts to ensure that it interviews a diverse slate of candidates for such positions inclusive of females. D. Equity Review and Salary Adjustments. Dell has agreed to retain, with Class Counsel approval, a labor economisUstatistician (the "Labor Economist") to conduct a pay equity analysis of existing compensation and recommend any pay equity adjustments for all current female employees in CI through D3 grade level positions or their equivalents. The Labor Economist's recommendation will be utilized by Dell in paying those female employees adjustments pursuant to the Pay Equity Settlement Fund, which allocates Three Million Five Hundred Thousand Dollars ($3,500,000.00) for such adjustments. The pay equity adjustments will be retroactive to May 31, 2009. The total em-nings increase for female employees in grade level positions Cl
4

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 65 of 104
through D3 at Dell over the three-year period of the Settlement Agreement is estimated to be at least $12.6 million. E. Monetary Relief. In addition to expending the funds necessary to implement the Programmatic Relief and pay equity adjustments described above, Dell has also agreed to pay $4,425,000.00 to be distributed to Class Members to resolve the Class Action. The $4,425,000.00 will be paid to Class Members by the Class Administrator, who is approved by the Comt, pursuant to a formula agreed to by the parties and set forth in the Settlement Agreement. Class Members do not need to take any action to participate in the Settlement Fund. The Claims Administrator will mail Class Members their allocated payments within thilty days of the Effective Date of the Settlement. The Claims Administrator, under the Settlement Agreement, will pay $50,000.00 to Jill Hubley and $25,000.00 to Laura Guenther for theh' service, efforts and dedication to advancing the interests of the Class. Both Ms. Hubley and Ms. Guenther have spent countless hours working on tlus case, working with Class Counsel as well as attending and participating in the mediations that brought about this settlement. Dell is also paying to reimburse Class Counsel's legal fees and expenses in the amount of $1,100,000.00, which approximates the amount of legal fees and expenses incur~'ed and expended, and to be incurred and expended, by Class Counsel.
IV. Taxes on Amounts Paid to Class Members The Claims Administrator will withhold from eaeh payment to Class Members and the Class Representatives all applicable taxes under federal, state and/or local laws. The Claims Administrator will ensure that such monies withheld are paid to the appropriate
authorities for each Class Member and Class Representative and will issue IRS Forms W-2 for the amounts reportable on each Form. Dell's shm'e of taxes or contributions will be paid separately by Dell.
5

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 66 of 104
v. Release of Claims
If the Court grants final approval of the Settlement, then all Class Members will release certain claims against Dell pursuant to Paragraph ILA.17 of the Settlement Agreement. Specifically, all Class Members will release Dell for the following:
Any and all claims for injunctive and/or equitable relief of whatever nature, known or unknown, including but not limited to, all claims for back pay, front pay, liquidated damages or other make whole relief~ that the Named Plaintiffs and Settlement Class Members may have against Dell, its subsidiaries and affiliated companies, and in the case of all such entities, their respective past and present owners, representatives, officers, directors, attorneys, agents, employees, insurers, successors and assigns (collectively refened to as the "Rc1eased Parties"), arising out of the same transactions, series of connected transactions, occunences or nucleus of operative facts that form the basis of the claims that were or could have been asserted in Hubley et. al v. Dell Inc., A-08-CA-804-JRN. This release includes and covers without limitation all actions or omissions occurring through the Final Approval date as defined and all claims known or unknown for prior or past discriminatOlY actions outside any liability period, subject to the provisions sct forth herein. Specifically includcd in this release are any and all employment discrimination claim." or benefits claims or claims for losses caused by any unpaid wages or compensation arising out of thc same transactions, series of cOlmected transactions, occunenccs or nucleus of opcrative facts that form thc basis of the claims that were or could have been asserted in Hubley et. al v. Dell Inc., A-08-CA804-JRN, including but not limited to, claims of alleged employment discrimination or benefits claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the Equal Pay Act, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), the Texas Labor Code, and the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. ("ERISA") (except for vested benefits otherwise entitled), and any other federal, state, or local statutes, common law, or regulation. Furthermore, this Release includes all claims for injunctive, declaratory or equitable relicf~ including all claims for back pay, front pay, liquidated damages or other make whole relief, and costs and attorneys' fees, whether arising under Title VII, the Equal
6

Case 1:08-cv-00804-JRN Document 23 Filed 07/22/2009 Page 67 of 104
Pay Act or under any other federal, state, local or common laws or regulations relating to or arising out of the same transactions, series of cOllllected transactions, occurrences or nucleus of operative facts that [onn the basis of the claims that were or could have been asserted in Hubley et. al v. Dell Inc., A-08-CA-804-JRN.
When claims are "released," that means that a person covered by the release cannot sue Den for any of the claims that are covered by the release. Nothing in the Settlement will be construed to release claims of Class Members that may not be legally waived, that postdate the Final Approval by the Court of the Settlement Agreement, or that arc not covered by the release.
VI. The Settlement Process and Final Fairness Hearing EvelY class action must be approved by the court that presided over the class action lawsuit. Thus far, the Court has only decided that the proposed settlement may be fair and, therefore, justifies the distribution of this Notice. In order to decide whether to give final approval to the proposed settlement, the Court will consider related papers and comments submitted by the parties or others and hold a hearing in open court. A Final Fairness Hearing will be held on _ _ _ _- ' 2009, at _ _ _ _ _, in the Courtroom of United States
District Judge James R. Nowlin, United States District Court, Western District of Texas, 200 West 8th Street, Austin, TX 78701. You may, but are not required to, attend this hearing. You may also enter an appearance in the case, individually or through your own attorney, if you so desire. You may also submit any objections to the proposed settlement in writing as noted herein. For any such written objections to be considered, the objection must be filed with the Court or mailed to the Court and postmarked by [date of mailing plus 35 days]________, with copies mailed or hand delivered to Class Counsel and Counsel for Dell. Please do not send any comments directly to the Judge or attempt to reach the Judge in person.
You may review a copy of the Settlement Agreement at the Clerk's Office at tlle Court (200 West 81h Street, Austin, TX 78701) or online at www-.heffler.com. You may also contact tlle Claims Administrator or Class Counsel to obtain a copy of the full Settlement Agreement, and they will e-mail or mail it to you upon request.
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VII. Contact Information
Claims Administrator:
HEFFLER, RADETICH & SAITTA LLP 1515 Market Street, Suite 1700 Philadelphia, PA 19102 Main: 215.665.8870 Fax: 215.665.0613 www.hcffler.com
Class Counsel:
JULIE A. SPRINGER, ESQ. (jspringer@scottdoug.com) SCOTT DOUGLASS & McCONNlco, L.L.P. 600 Congress Avenue, Suite 1500
Austin, Texas 7870 I (512) 495-6300
GEOFFREY D. WEISBART, ESQ. (gweisbart@hslawmail.com) HANCE SCARBOROUGH, L.L.P.
III Congress Avenue, Suite 500 Austin, Texas 78701 (512) 479-8888
Counsel for Dell:
MICHAEL S. BURKHARDT, ESQ. (mburkhardt@morganlewis.eom)
MORGAN LEWIS& BOcrauS, L.L.P. 1701 Market Street
Philadelphia, PA 19103 (215) 963-5130
TheCoUli:
U.S. District Clerk's Office Western District of Texas - Austin Division
200 West 8'" Street, Room 130 Austin, Texas 7870 I (512) 916-5896
PLEASE DO NOT CONTACT THE COURT (except as referenced herein).
8

 
 Case 1:08-cv-00804-JRN Document 1 Filed 10/29/08 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS UI8 OCT 29 PH 4: 33
AUSTIN DIVISION

JILL HUBLEY,

§

§

On behalf of herself and all others

§

similarly situated,

§

§

Plaintiffs

§

§

v.

§

§

DELL INC.

§

§

§

Defendant.

§

Civil
A08CA 804LY
CLASS ACTION JURY TRIAL DEMAND

COMPLAINT

Plaintiff Jill Hubley ("Plaintiff') files this Complaint against Defendant Dell Inc.

("Dell"), alleges and states as follows:

Introduction

1. This case anses out of Dell's systemic company-wide discriminatory

treatment of its female employees in violation of federal and applicable state civil rights

laws. Having satisfied all administrative prerequisites, Plaintiff now files this Complaint.

Parties

A. Plaintiff Class Representative

2. Plaintiff Jill Hubley is a female resident and citizen of Austin, Texas.

Plaintiff was employed by Dell at its Round Rock, Texas location as a Senior Strategist in

the Learning and Development division of Dell Human Resources and supported the

Case 1:08-cv-00804-JRN Document 1 Filed 10/29/08 Page 2 of 10
Americas business group. Plaintiff was classified as a Grade Level D1 employee at Dell. Plaintiff worked for Dell as a Grade Level D1 between June 2005 and September 2007.
B. Defendant 3. Dell is a Delaware corporation with its principal place of business in Round Rock, Texas and may be served with process by serving its registered agent for service, Corporation Service Company, 701 Brazos Street, Suite 1050, Austin, Texas 78701. Dell currently employs approximately 88,000 employees world-wide and has locations throughout the nation and in intemationallocations.
Jurisdiction 4. This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 because this action is brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. prohibiting gender discrimination in employment.
Exhaustion of Administrative Remedies 5. Plaintiff has filed a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging, among other things, classwide general discrimination against women at Dell with respect to the compensation, career 'opportunities, lateral transfer, placement, promotion, retention and termination of female employees in violation of Title VII.

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6. Plaintiff has received a notice of right to sue from the EEOC and, accordingly, has exhausted all administrative prerequisites for the maintenance of this action.
Facts 7. Since at least 2003, Dell has systematically denied equal employment opportunities to its female employees. Dell has engaged in a pattern and practice of gender discrimination with respect to compensating and promoting female employees. Dell has engaged in a pattern and practice of gender discrimination with respect to other terms and conditions of employment of female professional employees at Dell that affect compensation and promotion opportunities including, but not limited to: training and mentoring; job assignments, including assignments to ex patriate positions; opportunities for business development; participation in company programs designed to accelerate promotion and job advancement, including but not limited to Key Talent Programs and Accelerated Development Training Programs; lateral transfers; retention; terminations; and promotion processes and procedures, including failing to credit women during promotion decisions for their experience or performance on the same basis as men and failing to consider women for timely promotions on the same basis as men. 8. Female employees have experienced discrimination with respect to training and mentoring, and in the advocacy process ofpromotion and advancement at Dell.

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Class Action Allegations
9. Pursuant to Fed. R. Civ. P. 23(b)(2), Plaintiffs seek to represent a
worldwide class consisting of:
All women employed by Dell between February 1,2003 and the present, whether based the United States or worldwide.
Plaintiffs reserve the right to seek to represent sub-classes of the world-wide class.
10. Numerosity. The number of women in the class exceeds 2,000. It would be impracticable to bring all, or even a substantial percentage of, such persons before the
Court as individual plaintiffs through joinder.
11. 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 Dell, through the acts and/or omissions of its management and supervisory
workforce, has adopted and/or maintained a policy or practice of employment
discrimination that is generally applicable to the class of all of Dell's female employees.
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 Dell's female employees have been promoted at rates that are disproportionately low compared to the rates at which male employees have been promoted;
• Whether Dell's female employees have been afforded treatment in respect of numerous aspects of employment (including but not limited to training, job assignments, short-term "ex-patriate" assignments outside the United States, participation in company programs designed to accelerate promotion and job advancement; lateral transfers, reductions in force, business

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development opportunities, promotion, termination and compensation) that is less favorable than the treatment afforded by Dell to its male employees; • Whether the employment policies or practices of Dell that have adversely affected its female executives violate Title VII because of the disparate impact of those policies or practices on women; and • Whether Dell's discriminatory employment practices constitute a "continuing violation." 12. Typicality. The claim of the above-identified class representative is typical of the claims of all class members because: (a) she and all class members have been subjected to the same company-wide practice of gender discrimination in employment; (b) her claims are based upon allegations that she has been adversely affected by Dell's practice of gender discrimination in a similar manner to that of class members in that she has received less favorable treatment than male employees at Dell with respect to numerous aspects of employment, including, without limitation, as to compensation and promotion; and (c) her claims are all based on the same legal theory or theories as those of the class members. 13. Adequacy of Representation. The above-identified class representative is an adequate representative of the class because: (1) she is willing and able to represent the proposed class and has every incentive to pursue this action to a successful conclusion; (2) her interests are not in any way antagonistic to those of the other class members; and (3) she is represented by counsel experienced in litigating employment discrimination claims and class actions.

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14. 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 Dell 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 Dell of a common, company-wide policy or practice of gender discrimination in employment to which each member of the class has been subjected. This relief would predominate over monetary relief
COUNT I EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDER-
CLASS CLAIMS FOR RELIEF 15. Plaintiff restates and realleges the allegations contained in Paragraphs 1 through 14 of this Complaint as though set forth here in full. 16. Plaintiff and members of the class are employees of Dell within the meaning of 42 U.S.C. § 2000(e) et seq. 17. The discriminatory policies or practices of Dell, as set forth in this Complaint, have denied Plaintiff and members of the class their right to equal employment opportunity in violation of 42 U.S.C. § 2000(e) et seq. 18. Dell has adopted and/or maintained a system-wide policy or practice of gender discrimination by, among other things, denying Plaintiff and members of the class equal opportunities as described above. 19. Dell has adopted and/or maintained subjective employment practices, including but not limited to, subjective and disparate practices for assessing and

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evaluating the ability and potential of their female professional employees that have had the adverse impact of denying female professional employees equal career advancement and other employment opportunities on account of their gender.
20. By reason of Dell's discriminatory policies or practices as set forth in this Complaint, Plaintiff and members of the class have suffered damages including, but not limited to, past and future loss of income and benefits and promotional opportunities. Plaintiff and members of the class are threatened with further injury and loss which are irreparable in nature and for which they have no adequate remedy at law.
ALTERNATIVE COUNT II EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDER AND
RETALIATIONINDIVIDUAL CLAIM FOR RELIEF 21. In the alternative and in the event that this Court does not determine that class certification is appropriate, Plaintiff asserts the following individual claim of discrimination and retaliation. 22. Plaintiff restates and realleges the allegations contained in Paragraphs 1 through 20 of this Complaint as though set forth here in full. 23. Plaintiff has experienced gender discrimination and retaliation with respect to the failure of Dell to promote her to Grade Level D3, with respect to her compensation and benefits, with respect to the termination of her employment pursuant to Dell's purported "job elimination" and with respect to the failure of Dell to allow her to laterally transfer or be hired into other available positions for which she was qualified. In

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addition, Dell engaged in illegal retaliation against Plaintiff because she complained of sexual discrimination and harassment at Dell.
24. Dell's wrongful conduct towards Plaintiff was intentional, malicious, deliberate, willful and oppressive, and was carried out with reckless and callous disregard for her rights.
25. By reason of Dell's discriminatory and unlawful employment practices as set forth in this Complaint, Plaintiff has suffered damage including, but not limited to, lost income, lost benefits, embarrassment, emotional distress, physical injury, humiliation, indignity and a reduced quality of life.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectively prays: 1. That this case be maintained as a class action on behalf of the proposed class; that Plaintiff be designated as representatives of the class, and that their counsel of record be designated as Class Counsel; 2. That the practices of Defendant complained of herein be determined and adjudged to be in violation of the rights of Plaintiff and the members of the class under Title VII; 3. That a permanent prohibitory injunction be issued prohibiting Defendant, its officers, agents, employees and successors from engaging in the employment practices complained of herein;
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4. That a permanent mandatory injunction be issued requiring that Defendant adopt employment practices in accord with the requirements of Title VII prohibiting gender discrimination in employment;
5. That judgment be entered in favor of Plaintiffs and the members of the class set forth herein, and against Defendant, for back pay (including interest or an appropriate inflation factor), front pay, benefits and all other amounts owed to Plaintiffs and the members of the class;
6. That Plaintiff be awarded compensatory and punitive damages for her individual claim;
7. That the Plaintiff and members of the class be awarded such other and further legal and equitable relief as may be found appropriate and as the court may deem just or equitable;
8. That the Plaintiff and members of the class be awarded costs including, but not limited to, attorneys' fees, experts' fees, and other costs and expenses of this litigation; and
9. That the Court retain jurisdiction over Defendant until such time as it is satisfied that it has remedied the practices complained of and it determined to be in full compliance with the law.
Jury Demand Plaintiff demands trial by jury on all issues triable of right by jury. Dated: October 29, 2008

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Respectfully submitted,
HANCESCARBOROUGH,LLP 111 Congress Avenue, Suite 500 Austin, TX 78701 (512) 479-8888 (512) 482-6891 Fax
By: ~~~:;
Geoffrey . Weisbart State Bar No. 21102645 gweisbart@hslawmail.com
Julie A. Springer State Bar No. 18966770 j springer@scottdoug.com Jennifer Knauth State Bar No. 12394680 jknauth@scottdoug.com SCOTT, DOUGLASS & McCONNICO, L.L.P. 600 Congress Avenue, Suite 1500 Austin, Texas 78701-2589 (512) 495-6300 (512) 474-0731 Fax

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 • Case 1:08-cv-00804-JRN Document 14

Filed 03/09/09 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS 2009 M~\R -9 PM 3: 33

AUSTIN DIVISION

.. ..~

JILL HUBLEY and

§

LAURA GUENTHER

§

§

On behalf of themselves and all others §

similarly situated,

§

§

Plaintiffs

§

§

v.

§

§

DELL INC.

§

§

§

Defendant.

§

Civil No. A08CA 804 JRN
B'{ -,"--'" ,.'
CLASS ACTION JURY TRIAL DEMAND

FIRST AMENDED COMPLAINT

Plaintiffs Jill Hubley and Laura Guenther ("Plaintiffs"), prior to being served with

a responsive pleading, file this First Amended Complaint ("Complaint") against

Defendant Dell Inc. ("Dell") and allege and state as follows:

Introduction

1. This case arises out of Dell's systemic company-wide discriminatory

treatment of its female employees in violation of federal and applicable state civil rights

laws. Dell has not served Plaintiffs with a responsive pleading. Having satisfied all

administrative prerequisites and prior to being served with a responsive pleading,

Plaintiffs now file this Complaint.

Case 1:08-cv-00804-JRN Document 14

• Filed 03/09/09 Page 2 of 13

Parties

A. Plaintiff Class Representatives

2. Plaintiff Jill Hubley is a female resident and citizen of Austin, Texas.

Plaintiff was employed by Dell at its Round Rock, Texas location as a Senior Strategist in

the Learning and Development division of Dell Human Resources and supported the

Americas business group. Plaintiff was classified as a Grade Level D1 employee at Dell.

Plaintiff worked for Dell as a Grade Level Dl between June 2005 and September 2007.

3. Plaintiff Laura Guenther is a female resident and citizen of Austin, Texas.

Plaintiff was employed by Dell at its Round Rock, Texas location as a Senior Manager in

the Global Talent Management Group of Dell Human Resources. Plaintiff was classified

as a Grade Level D1 employee at Dell. Plaintiff worked for Dell as a Grade Level D1

between March 2005 and February 2008.

B. Defendant

4. Dell is a Delaware corporation with its principal place of business in Round

Rock, Texas and may be served with process by serving its registered agent for service,

Corporation Service Company, 701 Brazos Street, Suite 1050, Austin, Texas 78701. Dell

currently employs approximately 88,000 employees world-wide and has locations

throughout the nation and in international locations.

Jurisdiction

5. This court has subject matter jurisdiction over this action pursuant to 28

U.S.C. §§ 1331 and 1343 because this action is brought under Title VII of the Civil

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Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. prohibiting gender discrimination in employment.
Exhaustion of Administrative Remedies 6. Plaintiffs have each filed a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging, among other things, classwide general discrimination against women at Dell with respect to the compensation, career opportunities, lateral transfer, placement, promotion, retention and termination of female employees in violation of Title VII. 7. Plaintiffs have each received a notice of right to sue from the EEOC and, accordingly, have exhausted all administrative prerequisites for the maintenance of this action.
Facts 8. Since at least 2003, Dell has systematically denied equal employment opportunities to its female employees. Dell has engaged in a pattern and practice of gender discrimination with respect to compensating and promoting female employees. Dell has engaged in a pattern and practice of gender discrimination with respect to other terms and conditions of employment of female professional employees at Dell that affect compensation and promotion opportunities including, but not limited to: training and mentoring; job assignments, including assignments to ex patriate positions; opportunities for business development; participation in company programs designed to accelerate promotion and job advancement, including but not limited to Key Talent Programs and

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Filed 03/09/09 Page 4 of 13

Accelerated Development Training Programs; lateral transfers; retention; terminations;

and promotion processes and procedures, including failing to credit women during

promotion decisions for their experience or performance on the same basis as men and

failing to consider women for timely promotions on the same basis as men.

9. Female employees have experienced discrimination with respect to training

and mentoring, and in the advocacy process of promotion and advancement at Dell.

Class Action Allegations

10. Pursuant to Fed. R. Civ. P. 23(b)(2), Plaintiffs seek to represent a

worldwide class consisting of:

All women employed by Dell between February 1, 2003 and the present, whether based the United States or worldwide.

Plaintiffs reserve the right to seek to represent sub-classes of the world-wide class.

11. Numerosity. The number of women in the class exceeds 2,000. It would be

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

Court as individual plaintiffs through joinder.

12. 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 Dell, through the acts and/or omissions of its management and supervisory

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

discrimination that is generally applicable to the class of all of Dell's female employees.

This overarching common issue of law and fact includes numerous subissues of law and

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Filed 03/09/09 Page 5 of 13

fact that are also common to all members of the class. These subissues include, but are

not limited to, the following:

• Whether Dell's female employees have been promoted at rates that are disproportionately low compared to the rates at which male employees have been promoted;
• Whether Dell's female employees have been afforded treatment in respect of numerous aspects of employment (including but not limited to training, job assignments, short-term "ex-patriate" assignments outside the United States, participation in company programs designed to accelerate promotion and job advancement; lateral transfers, reductions in force, business development opportunities, promotion, termination and compensation) that is less favorable than the treatment afforded by Dell to its male employees;
• Whether the employment policies or practices of Dell that have adversely affected its female executives violate Title VII because of the disparate impact of those policies or practices on women; and

• Whether Dell's discriminatory employment practices constitute a "continuing violation."
13. Typicality. The claims of the above-identified class representatives are

typical of the claims of all class members because: (a) the class representatives and all

class members have been subjected to the same company-wide practice of gender

discrimination in employment; (b) their claims are based upon allegations that they have

been adversely affected by Dell's practice of gender discrimination in a similar manner to

that of class members in that they have received less favorable treatment than male

employees at Dell with respect to numerous aspects of employment, including, without

limitation, as to compensation and promotion; and (c) their claims are all based on the

same legal theory or theories as those of the class members.

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14. Adequacy ofRepresentation. 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 employment

discrimination claims and class actions.

15. 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 Dell 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 andlor maintenance by Dell of a common, company-wide policy

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

has been subjected. This relief would predominate over monetary relief

COUNT I

EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDERCLASS CLAIMS FOR RELIEF

16. Plaintiff restates and realleges the allegations contained in Paragraphs 1

through 15 of this Complaint as though set forth here in full.

17. Plaintiffs and members of the class are employees of Dell within the

meaning of 42 U.S.C. § 2000(e) et seq.

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18. The discriminatory policies or practices of Dell, as set forth in this

Complaint, have denied Plaintiffs and members of the class their right to equal

employment opportunity in violation of 42 U.S.C. § 2000(e) et seq.

19. Dell has adopted and/or maintained a system-wide policy or practice of

gender discrimination by, among other things, denying Plaintiffs and members of the

class equal opportunities as described above.

20. Dell has adopted and/or maintained subjective employment practices,

including but not limited to, subjective and disparate practices for assessing and

evaluating the ability and potential of their female professional employees that have had

the adverse impact of denying female professional employees equal career advancement

and other employment opportunities on account of their gender.

21. By reason of Dell's discriminatory policies or practices as set forth in this

Complaint, PlaintifIs and members of the class have suffered damages including, but not

limited to, past and future loss of income and benefits and promotional opportunities.

Plaintiffs and members of the class are threatened with further injury and loss which are

irreparable in nature and for which they have no adequate remedy at law.

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ALTERNATIVE COUNT II

EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDER AND RETALIATION-
INDIVIDUAL CLAIM FOR RELIEF (HUBLEY)

22. In the alternative and in the event that this Court does not determine that

class certification is appropriate, Plaintiff Jill Hubley asserts the following individual

claim of discrimination and retaliation.

23. Plaintiff restates and realleges the allegations contained in Paragraphs 1

through 22 of this Complaint as though set forth here in full.

24. Plaintiff has experienced gender discrimination and retaliation with respect

to the failure of Dell to promote her to Grade Level D3, with respect to her compensation

and benefits, with respect to the termination of her employment pursuant to Dell's

purported "job elimination" and with respect to the failure of Dell to allow her to laterally

transfer or be hired into other available positions for which she was qualified. In

addition, Dell engaged in illegal retaliation against Plaintiff because she complained of

sexual discrimination and harassment at Dell.

25. Dell's wrongful conduct towards Plaintiff was intentional, malicious,

deliberate, willful and oppressive, and was carried out with reckless and callous disregard

for her rights.

26. By reason of Dell's discriminatory and unlawful employment practices as

set forth in this Complaint, Plaintiff has suffered damage including, but not limited to,

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lost income, lost benefits, embarrassment, emotional distress, physical injury,

humiliation, indignity and a reduced quality of life.

ALTERNATIVE COUNT III

EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENDERINDIVIDUAL CLAIM FOR RELIEF (GUENTHER)

27. In the alternative and in the event that this Court does not determine that

class certification is appropriate, Plaintiff Laura Guenther asserts the following individual

claim of discrimination.

28. Plaintiff restates and realleges the allegations contained in Paragraphs 1

through 21 of this Complaint as though set forth here in full.

29. Plaintiff has experienced gender discrimination with respect to the failure

of Dell to promote her to Grade Level D3 and with respect to her compensation and

benefits.

30. Dell's wrongful conduct towards Plaintiff was intentional, malicious,

deliberate, willful and oppressive, and was carried out with reckless and callous disregard

for her rights.

31. By reason of Dell's discriminatory and unlawful employment practices as

set forth in this Complaint, Plaintiff has suffered damage including, but not limited to,

lost income, lost benefits, embarrassment, emotional distress, physical injury,

humiliation, indignity and a reduced quality of life.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray:

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1. That this case be maintained as a class action on behalf of the proposed

class; that Plaintiffs be designated as representatives of the class, and that their counsel of

record be designated as Class Counsel;

2. That the practices of Defendant complained of herein be determined and

adjudged to be in violation of the rights of Plaintiffs and the members of the class under

Title VII;

3. That a permanent prohibitory injunction be issued prohibiting Defendant,

its officers, agents, employees and successors from engaging in the employment practices

complained of herein;

4. That a permanent mandatory injunction be issued requiring that Defendant

adopt employment practices in accord with the requirements of Title VII prohibiting

gender discrimination in employment;

5. That judgment be entered in favor of Plaintiffs and the members of the

class set forth herein, and against Defendant, for back pay (including interest or an

appropriate inflation factor), front pay, benefits and all other amounts owed to Plaintiffs

and the members of the class;

6. That Plaintiffs be awarded compensatory and punitive damages for their

individual claims in the event the that this Court does not determine that class

certification is appropriate;

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7. That the Plaintiffs and members of the class be awarded such other and

further legal and equitable relief as may be found appropriate and as the court may deem

just or equitable;

8. That the Plaintiffs and members of the class be awarded costs including,

but not limited to, attorneys' fees, experts' fees, and other costs and expenses of this

litigation; and

9. That the Court retain jurisdiction over Defendant until such time as it is

satisfied that it has remedied the practices complained of and it determined to be in full

compliance with the law.

Jury Demand

Plaintiff demands trial by jury on all issues triable of right by jury.

Dated: March 9,2009

Respectfully submitted,

HANCESCARBOROUGH,LLP 111 Congress Avenue, Suite 500 Austin, TX 78701 (512) 479-8888 (512) 482-6891 Fax
By:_ __ ~'"7"
Geoffrey D. Weisbart State Bar No. 21102645 gweisbart@hslawmail.com Terry L. Scarborough State Bar No. 17716000 tscarborough@hslawmail.com Tonia L. Lucio State Bar No. 00793080 tlucio@hslawmail.com

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Julie A. Springer State Bar No. 18966770 j springer@scottdoug.com Steve McConnico State Bar No. l3450300 smcconmico@scottdoug.com Chris Sileo State Bar No. 24027977 csileo@scottdoug.com Jennifer Knauth State Bar No. 12394680 jknauth@scottdoug.com SCOTT, DOUGLASS & McCONNICO, L.L.P. 600 Congress Avenue, Suite 1500 Austin, Texas 78701-2589 (512) 495-6300 (512) 474-0731 Fax
ATTORNEYS FOR PLAINTIFFS JILL HUBLEY AND LAURA GUENTHER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been

forwarded to all counsel of record herein by way of:

D U.S. Mail, First Class
D Certified Mail (return receipt requested) D Facsimile D Federal Express D Hand Delivery
~ ECF on this 9th day of March, 2009, to-wit:

Jason Boulette (Bar No. 90001846) BOULETTE & GOLDEN LLP 1221 S. MoPac Expressway 3 Barton Skyway, Suite 300 Austin, Texas 78746 Phone: 512.732.8901 Fax: 512.732.8905 E-mail: jason@bou1ettegolden.com

Michael Burkhardt (Admitted Pro Hac Vice) Anne Martinez (Admitted Pro Hac Vice)
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street Philadelphia, Pennsylvania 19103 Phone: 215.963.5000 Fax: 215.963.5001 E-mail: mburkhardt@morganlewis.com
aemartinez@morganlewis.com

Geoffrey D. Weisbart

Page 13
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 Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JILL HUBLEY AND LAURA GUENTHER,
On behalf of themselves and all others similarly situated,
Plaintiffs
v.
DELL INC.
Defendant.

\, ,
§ Civil No. A:08-CA-804 JRN § § § § § § § § CLASS ACTION § § JURY TRIAL DEMAND § §

FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT A hearing was held on October 29, 2009, during which time the Court heard Plaintiffs'
Motion for Final Approval. The Court had previously entered an Order of Preliminary Approval appointing Class Counsel, approving notice to the Class, establishing deadlines for objections, setting a date for a final fairness hearing, certifying the Class and preliminarily approving the Settlement Agreement. Having considered the written submissions of the parties and all objections timely submitted by any Class Member, and having held a final fairness hearing and having considered the evidence and argument offered at the final fairness ,hearing, it is hereby ORDERED that the class is finally certified and the settlement is finally approved as follows:
I. CLASS CERTIFICATION "A class may be certified if all four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure are met and one or more of the provisions of Rule 23(b) is satisfied." Garza v. Sporting Goods Properties, Inc., 1996 WL 56247, at *3-6 (W.D. Tex. 1996). Here, the proposed Class is defined as:

FINAL ORDER

PAGEl

Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 2 of 24
All women employed by Dell in the United States for at least one day in a C1 through D3 grade level positions or their equivalents between February 14, 2007 and December 31, 2008, excluding any former employee who previously executed a complete release as part of any prior litigation or settlement agreement (but not a severance agreement) and further excluding any current or former employee who filed a complaint of discrimination with a state or federal agency.
A. Rule 23(a) Criteria
Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (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.
1. Numerosity.
This class encompasses some 4,919 potential Class Members, too many for joinder of all
to be practicable. See Mullen v. Treasure Chest Casino LLC, 186 FJd 620,624 (5th Cir. 1999).
2. Commonality.
The commonality requirement of Rule 23(a)(2) mandates there be at least one factual or
legal issue which is common to all or substantially all of the class members. Fed. R. Civ. P.
23(a)(2); Lightbourn v. County of El Paso, 118 FJd 421, 426 (5th Cir. 1997). "The
commonality test is met when there is at least one issue whose resolution will affect all or a
significant number of the putative class members." Forbush v. Jc. Penney Co., 994 F.2d 1101,
1106 (5th Cir. 1993) (internal quotation omitted). "The threshold of 'commonality' is not high."
Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986). The existence and operation
of a company-wide policy and practice of unlawful discrimination, as alleged in the First
Amended Complaint, satisfies commonality. See Rossini v. Ogilvy & Mather. Inc., 798 F.2d
590, 599 (2d. Cir. 1986) (holding that discriminatory intent was major issue of law and fact

FINAL ORDER

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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 3 of 24
shared in common by individual and class plaintiffs); San Antonio Hispanic Police Officers' Org., Inc. v. City ofSan Antonio, 188 F.R.D. 433, 442 (W.D. Tex. 1999) (holding that "[a]s long as class members are allegedly affected by a defendant's gent(ral [discriminatory] policy, and the general policy is the crux or focus of the litigation, the commonality prerequisite is satisfied").
3. Typicality Rule 23(a)(3)'s typicality requirement "is satisfied when each class member's claim arises from the same [common] course of events and each class member makes similar legal arguments to prove the defendant's liability." Robidoux v. Celani, 987 F.2d 931,936 (2d Cir. 1993); see also Jenkins, 782 F.2d at 472 (stating that "[t]he 'typicality' requirement focuses less on the relative strengths of the named and unnamed plaintiffs' cases than on the similarity of the legal and remedial theories behind their claims"). Plaintiffs do not assert claims unique to themselves. Their claims arise from the same factual and legal foundations as do the claims of other members and the legal and remedial theories behind the claims are similar. Typicality is satisfied. 4. Adequacy of Representation Rule 23(a)(4) requires the class representatives and their counsel to "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). To meet this requirement, plaintiffs must show "[1] the zeal and competence of the representative[s'] counsel and [2] the willingness and ability of the representative[s] to take an active role in and control the litigation and to protect the interests of absentees." Stirman v. Exxon Corp., 280 FJd 554, 563 (5th Cir. 2002). These requirements are met here. Class counsel in this case are skilled, competent, and experienced attorneys, and have significant experience in class actions in general and in employment-related class actions in particular. The Court also finds the class representatives adequately represented the class. Normally, "[c]lass representatives satisfy the adequacy

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requirement unless they have an insufficient stake in the outcome or interest antagonistic to the unnamed members." Garza, 1996 WL 56247, at *4 (internal quotation omitted). The evidence reflects that Plaintiffs have taken an active role in the litigation, consulted extensively with Class Counsel, personally participated in the settlement negotiations, and have reviewed and approved of all settlement documents. There is no evidence that Class Representatives have any interests antagonistic to those of the Class. The class representatives are adequate. B. Rule 23(b)(2).
In addition to complying with the prerequisites of Rule 23(a), a putative class action must also satisfy at least one subsection of Rule 23(b). Plaintiffs here seek certification under Rule 23(b)(2), which requires the Court to find:
the [defendant] has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R Civ. P. 23(b)(2). Discrimination cases seeking injunctive relief "are the 'paradigm' of [Rule] 23(b)(2) class action cases." Comer v. Cisneros, 37 FJd 775, 796 (2d Cir. 1994). In fact, "Rule 23(b)(2) was promulgated ... essentially as a tool for facilitating civil rights [class] actions." 5 Moore's Federal Practice, § 23.43[1][a] (Matthew Bender 3d ed. 1988). Plaintiffs allege in their First Amended Complaint that Dell has acted or refused to act on grounds generally applicable to the class, in a number of ways. Equitable relief settingJorth various programmatic requirements for Dell's policies and procedures is the appropriate and predominant form of relief sought and obtained by plaintiffs. See Doe v. Bridgeport Police Dept., 198 F.RD. 325, 333 (D. Conn. 2001); Bruce v. Christian, 113 F.RD. 554, 559 (S.D.N.Y. 1986) (recognizing lawsuit seeking

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class-wide structural relief which would redound to benefit of each class member is a "paradigmatic Rule 23 (b)(2) class action").
The Fifth Circuit allows (b)(2) certifications that include some award of monetary damages, as long as monetary claims are "incidental" to the injunctive relief sought. In re Monumental Life Ins. Co., 365 FJd 408, 415 (5th Cir. 2004); Allison, 151 FJd at 411. In this case, the monetary relief is incidental to the changes in Dell's processes and procedures that are the thrust of this Rule 23(b)(2) action. Here, however, the Court does not need to consider whether the monetary component of the settlement is "incidental," because back pay is the only monetary relief sought. See Allison, 151 FJd 416 n.10. Back pay is, by definition, purely equitable relief. See id at 415 ("Back pay, of course, had long been recognized as an equitable remedy under Title VII."). The Allison court thus explained that it was, in fact, error for the district court to evaluate whether back pay sought in a class action was incidental to other equitable or injunctive relief sought in the case. See id at 416 n.l 0 ("Of course, to the extent the district court applied an incidental damages standard to the plaintiffs' claims for back pay, its analysis was flawed").
"When a class falls within the classic Rule 23(b)(2) paradigm, as it does here, no opt-out procedure is necessary to protect the interests of the class." Dehoyos v. Allstate Corp., 240 F.R.D. 269, 285 (W.D. Tex. 2007) (citing Ayers v. Thompson, 358 FJd 356, 375 (5th Cir. 2004»; accord Allison, 151 FJd at 412. No opt-out procedure is accorded because the intent behind Rule 23(b)(2) is that suits primarily for injunctive relief are "inherently class actions and the decision generally will be applicable to a class of persons affected." 8 Newberg on Class Actions § 24:81 (4th ed. 2002).

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The interests of the class members in this proposed settlement are cohesive and

homogenous. Plaintiffs seek to redress a common injury by class-wide equitable relief. As a

result, an opt-out procedure is not required here, and the Court concludes the class is properly

certified as a (b)(2) class without opt-out rights.

II.

NOTICE WAS APPROPRIATE

In accordance with the procedures approved in the Preliminary Approval Order, the Class was provided with the Class Notice regarding the proposed Settlement Agreement and the deadlines and procedures for objecting. The Court finds that the Class Notice and measures taken by the Claims Administrator in mailing the Class Notices were adequate to inform Class Members of the proposed settlement and that such actions provided sufficient notice for Class Members' due process rights to be adequately protected.
III. SETTLEMENT APPROVAL Having determined the class is properly certified and that notice was appropriate, the Court must next address the proposed Settlement Agreement. To approve the settlement, the Court must find the proposed settlement is "fair, reasonable and adequate." Fed. R. Civ. P. 23(e)(1)(C); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). There is a strong presumption in favor of finding the Settlement Agreement fair. Garza,
1996 WL 56247 at *11. The proposed settlement is not required to "achieve some hypothetical
standard constructed by imagining every benefit that might someday be obtained in contested litigation." Id. (internal quotation omitted). Compromise is the essence of settlement. Id. In assessing whether the settlement is fair, adequate and reasonable, the Fifth Circuit has stated six key points, or Reed factors, which should be considered. These factors are: (1) the existence of fraud or collusion behind the settlement; (2) the probability of plaintiffs' success on the merits;

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"
(3) the range of possible recovery; (4) the complexity, expense and likely duration of the litigation; (5) the stage of the proceedings and the amount of discovery completed; and (6) the opinions of class counsel, class representatives, and absent class members. Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983). Additionally, the Fifth Circuit has "admonished courts to be mindful of the 'overriding public interest in favor of settlement' in class action suits." Garza, 1996 WL 56247, at *12 (quoting Cotton, 559 F.2d at 1331). In this case, the Court concludes the Reed factors support approval.
Factor 1 - There is no Evidence of Fraud or Collusion Behind the Settlement. There is a presumption that no fraud or collusion occurred between counsel, in the absence of any evidence to the contrary. 4 Newberg on Class Actions § 11:51 (4th ed. 2002). Here, there are no allegations or indications of fraud or collusion. Indeed, the parties engaged in a lengthy, arms' length settlement process overseen by an experienced class action mediator who submitted an affidavit in support of the settlement. Based on the undisputed record, the Court determines the proposed settlement was the product of arms' length negotiations, free of fraud or collusion. This factor weighs in favor of approving the settlement. Factors 2 and 3 - Probability of Success and the Range of Possible Recovery. In evaluating the likelihood of success on the merits, the Court must compare the terms of the settlement with the rewards the class would have been likely to receive following a successful trial. Reed, 703 F.2d at 172. Importantly, as a matter of sound policy, settlements of disputed claims are encouraged and a settlement approval hearing should "not be turned into a trial or rehearsal for trial on merits." Officers for Justice, 688 F.2d at 650. Here, Plaintiffs faced substantial obstacles to prevailing on the merits. First, Plaintiffs would have had to obtain certification outside of the settlement process. This would have been
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challenging. "Few employment discrimination class actions have been certified in the Fifth Circuit since Allison. Most of the reported employment discrimination cases in which class certification has been sought since Allison have not resulted in class treatment." Colindres v. Quietflex Mfg., 235 F.R.D. 347, 371 (S.D. Tex. 2006). Because '''the prospects for obtaining certification have a great impact on the range of recovery one can expect to reap from the [class] action,' this factor measures the likelihood of obtaining and keeping a class certification if the action were to proceed to trial." In re Warfarin Sodium Antitrust Litig., 391 FJd 516, 537 (3d Cir. 2004) (internal citation omitted). Even if Plaintiffs were successful at obtaining a certification, the certified class would have faced many factual and legal challenges. Both Plaintiffs and Dell retained experts who have already offered different interpretations of the critical statistical evidence in the case. If Dell's expert's view prevailed, the Class might recover much less than it is recovering in settlement.
Additionally, and perhaps most importantly, the settlement obtains many specific programmatic benefits that most likely could not have been obtained even in the most favorable outcome at a trial on the merits due to the reluctance of courts to attempt to manage the affairs of parties. In other words, this settlement, in many ways, accomplishes more than what could have been accomplished after a successful trial.
For example, as part of the settlement, Dell has agreed to retain a Labor Economist/Statistician to conduct a pay equity analysis of existing compensation and recommend any pay equity adjustments for all current female employees in C1 through D3 grade level positions. Dell has also agreed to retain an Industrial Psychologist to assist Dell in reviewing, developing and recommending policies and practices with regard to compensation, performance evaluations, hiring, promotions and job assignments. Dell, in conjunction with the

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"
Industrial Psychologist, will evaluate and develop processes and procedures, or improve existing processes and procedures. Dell also agreed to retain an External Advisor to serve as a resource concerning equal employment opportunity and diversity initiatives, and to assist with and ensure compliance with the Settlement Agreement.
The undisputed record reveals the settlement will not only provide significant benefits to members of Plaintiffs' class but also to other women working at Dell now and in the future. This further favors approval of the settlement. See Dehoyos, 240 F.R.D. at 295 (citing Allison, 151 FJd at 429). As a result, the Court determines these substantial and immediate benefits from the settlement both in comparison to what might be obtained at trial and in comparison to the uncertainties of litigation weigh in favor of approving the settlement.
Factor 4 - The Complexity, Expense and Likely Duration of the Litigation.
In evaluating the merits of a class action settlement, this Court has recognized it is important to be mindful of "the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation." San Antonio Hispanic Officers' Org., Inc., 188 F.R.D. at 458. Specifically, as counsel for the parties have concluded, the probability of further protracted litigation, including appeals, would be a near certainty in the absence of a settlement. Additional litigation would likely include: (1) contested class certification proceedings; (2) an appeal under Federal Rule of Procedure 23(1); (3) dispositive motions; (4) extensive pretrial filings; (5) a lengthy trial; (6) post-trial proceedings in this District Court; and (7) further appeals. Having considered the complexity, expense, and likely duration of the litigation, the Court concludes this factor weighs in favor of approving the proposed settlement.
Factor 5 - The Stage of the Proceedings and the Amount of Discovery Repeated.
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In order to determine whether the parties have sufficient information to evaluate the terms of the settlement, the Court should look to more than simply the amount of formal discovery which has been completed. Cotton, 559 F.2d at 1332-33. The Court should consider all information which has been available to the parties. Garza, 1996 WL 56247, at *13.
The evidence reflects that the parties shared substantial documents and data. Plaintiffs and Dell both retained statistical experts who engaged in extensive analysis of employment data. In light of this discovery and statistical analysis, Class Counsel determined the proposed settlement is fair, adequate and reasonable. The Court determines the stage of the proceedings and the amount of discovery completed have provided the information necessary to permit the parties and the Court to make an informed judgment on the merits of the settlement. This factor therefore weighs in favor of accepting the proposed settlement.
Factor 6 - Opinions of Class Counsel, Class Representatives and Absent Class Members. The endorsement of class counsel is entitled to deference. Lelsz v. Kavanagh, 783 F. Supp. 286, 297 (N.D. Tex. 1991), aff'd, 983 F.2d 1061 (5th Cir.). Here, counsel for both parties have engaged in numerous class action lawsuits and possess a substantial amount of experience and expertise, and counsel have concluded that the settlement is fair, reasonable, and adequate. The class representatives also strongly support the settlement. In addition to the opinions of class counsel and class representatives, the Court should consider the opinions of absent class members. In this case, only four individual objections were filed, only two of which make any substantive claims concerning the settlement. One of the principal objections has been withdrawn. In light of the nationwide notice, the minimal level of opposition from absent class members weighs heavily in favor of approving the settlement. See DeBoer v. Mellon Mortgage Co., 64 FJd 1171, 1178 (8th Cir. 1995) (determining that "[t]he

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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 11 of 24
fact that only a handful of class members objected to the settlement similarly weighs in its favor").
The Court finds the opinions of class counsel, the class representatives, and the absent class members weigh in favor of approval. Objections aside, having considered all the relevant factors, the Court finds the Settlement Agreement to be fair, reasonable and adequate.
IV. OBJECTIONS The Court must next decide whether the four responses and/or objections filed here by absent class members provide a reason to reject the settlement. "Once the court has given preliminary approval, an agreement is presumptively reasonable, and an individual who objects has a heavy burden of demonstrating that the settlement is unreasonable." Whitford v. First Nationwide Bank, 147 F.R.D. 135, 138-39 (W.D. Ky. 1992). General objections without factual or legal substantiation do not carry weight. 4 Newberg on Class Actions § 11 :58 (4th ed. 2002); see also Fed. Prac. & Proc. § 1797.1 (providing that in class action settlement dispute "[0Jnly clearly presented objections ... will be considered"). "To allow the objectors to disrupt the settlement on the basis of nothing more than their unsupported suppositions would completely thwart the settlement process." City of Detroit v. Grinnell Corp., 495 F.2d 448, 464 (2d Cir. 1974). Objector Carolyn Thompson appeared in this matter through counsel. Thompson filed a Advisory to the Court (Doc. No. 39) prior to the Final Fairness Hearing advising the Court stating that she "withdraws her request to be excluded from the class action settlement, and her alternative objection to the proposed class action." Objector Rita Daur appeared pro se in open court at the Final Fairness Hearing. At the Final Fairness Hearing, as reflected on the record, Daur withdrew her objections to the

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Settlement at the Final Fairness Hearing. Prior to withdrawing their objections, the Court notes that Thompson and Daur both
complained about the lack of a right to opt-out of the class. However, the Fifth Circuit has held that "a member of a Rule 23(b)(2) class action has no absolute right to opt out of the class, even where monetary relief has been sought and is made available." Penson v. Terminal Transp. Co., 634 F.2d 989, 994 (5th Cir. 1981); accord Dehoyos, 240 F.R.D. at 285. A Rule 23(b)(2) class, such as this case, has "a greater decree of 'cohesiveness or unity in the class' than in 23(b)(3) actions, which minimizes the need for ... a right to opt out of the class." Id. at 993-94. "This cohesiveness is claimed to result from both the group nature of the harm alleged and the broad character of the relief sought." Id. at 994. Therefore, an automatic right to opt-out is not created merely because a class action settlement includes some form of monetary relief. Id.
The same analysis applies here. The alleged harm suffered by all class members arose from the alleged generally applicable policies of Dell. Furthermore, the undisputed evidence shows all class members will benefit from the broad, class-wide relief for which the settlement provides. Because class members suffered the same harm, and because the relief achieved in the settlement is broad class-wide relief, this Court determines the inclusion of an opt-out provision was not necessary. Important policy considerations also dictate that objectors to the settlement of a Rule 23(b)(2) class action need not be provided an opportunity to opt out of the settlement. Kincade v. General Tire and Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981). Specifically, "'[p]articularly in class action suits, there is an overriding public interest in favor of settlement.'" Id. (quoting Cotton, 559 F.2d at 1331). "[A]llowing objectors to opt out [of Rule 23(b)(2) actions] would discourage settlements because class action defendants would not be inclined to settle where the result would likely be a settlement applicable only to class
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members with questionable claims, with those having stronger claims opting out to pursue their
individual claims separately." Id For all these reasons, the objection that the settlement should
include an opt-out right, is overruled.
Furthermore, the due process clause of the Constitution also does not require a right to
opt out in this case. The Fifth Circuit explained how due process is satisfied in a non-opt-out
Rule 23(b)(2) action:
The due process clause of the Constitution is satisfied when a Rule 23(b)(2) class action is settled without providing objectors a means of opting out because the objectors are (1) adequately represented by the named plaintiffs, (2) represented by an attorney who is qualified, (3) provided with notice of the proposed settlement, (4) given an opportunity to object to the settlement, and (5) assured that the settlement will not take effect unless the trial judge-after analyzing the facts and law of the case and considering all objections to the proposed settlement-determines it to be fair, adequate, and reasonable. Kincade, 635 F.2d at 507-08. As explained in this Order, all of these factors are readily met
here.
Additionally, objector Daur expressed concern about preserving her claim for state
unemployment benefits. Such a claim is not precluded by the Release in this case. Both Dell
and Class Counsel expressed their agreement with this, and the Court so finds. Daur, alternatively, has lodged several objections to the terms of the Settlement. l Daur
claims that: (1) the notice period was not sufficient, (2) that the settlement unfairly benefits the
women still employed at Dell, and (3) the settlement should have included an admission of
wrongdoing by Dell. Only Daur's second complaint is worthy of mention at any length?

1 Notably, Thompson, who withdrew her objection, explains that she has no desire to upset the settiement, which she seems to believe is a fair and reasonable settlement.· 2 As the first and third objections, neither is anywhere near sufficient to disturb the settlement. The Court has already concluded that the Notice process was appropriate, and courts have upheld time frames of thirty (30) days and less, particularly when the actual fairness hearing is not held for several more weeks. See, e.g., In re Elan Securities Litigation, 385 F. Supp. 2d 363,370 n.7 (S.D.N.Y. 2005) (holding that an objection period of 30 days or less was sufficient). As to the assertion that Dell should have admitted

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Daur seemingly requests more money for the ex-Dell employees, and thus herself, yet fails to recognize the primarily injunctive nature of this Rule 23(b)(2) class action. The formula for allocating the equitable back-pay component of the settlement fund treats current and former employees identically, except to the extent an individual former employee signed a severance package with Dell (and thus already has received material compensation and signed a release in connection with a departure from Dell). Daur's position also ignores the reality of settlement of a Rule 23(b)(2) class action, because it does not explain what should be different about the settlement and why in context. An objection that "fails to account for the legal or factual context" in which a settlement is reached, such as unsupported allegations of unreasonableness, will not support a conclusion that the settlement is not fair and reasonable. In re AOL Time Warner, Inc., 2006 WL 903236 *15 (S.D.N.Y. 2006). Daur's objection also fails to give weight to the fact that the two named Plaintiffs are themselves former employees, who were clearly mindful of adequately protecting the interests of former Dell employees.
At the Final Fairness Hearing, Daur also articulated a concern that the Settlement lacked adequate enforcement mechanisms. Again, Daur withdrew this newly stated concern, but the Court also overrules the concern. The Settlement through the appointment of an External Advisor, who the parties have advised the Court is a former Secretary of Labor and the active and ongoing role of Class Counsel, with the right of the parties to seek enforcement in this Court after a required mediation process sets forth appropriate and adequate enforcement mechanisms.
Lastly, two Class Members, Andrea Ferrell and Olga Krachina, simply asked not to participate in the Class. Responses stating no specific grounds for objection may be disregarded. See International Union, United Auto., Aerospace, and Agricultural Implement Workers ofAm.
wrongdoing in the settlement, rarely does any settlement in any context includes such an admission, and none is necessary here to make the settlement fair, reasonable, and adequate.
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V. General Motors Corp., 2008 WL 2968408 *29 (E.D. Mich. 2008). Such submissions "provide no basis for rejecting the settlement." Id.; see also Charles A. Wright, et al., Fed. Prac. & Proc. § 1797 ("Only clearly presented objections ... will be considered."). The Court does not construe these submissions from Ferrell and Krachina as objections, but to the extent they are objections, they are overruled for the reasons explained throughout this opinion.
The Court also notes its appreciation of the submissions from the absent class members, and in particular of Ms. Daur who took the time to travel from a great distance to attend the hearing and share her views, but reminds the absent class members that:
a [settlement] is a compromise that cannot possibly satisfy every class member's particular desires; rather, the [settlement] must embody the best settlement available to the class as a whole. This record indicates that gains reached during the settlement could have been delayed, jeopardized or even lost entirely if litigation had continued. Thus, compromises here were fully justified so as not to gamble with the rights of everybody to satisfy the complaints of some. Salinas v. Roadway Express, Inc.,802 F.2d 787, 790 (5th Cir. 1986). In sum, none of the responses/objections provides a reason to disturb the settlement, and all objections, to the extent there are objections remaining, are overruled.
V. ATTORNEYS' FEES AND EXPENSES
The proposed award of attorneys' fees was set forth in the Settlement Agreement filed July 22,2009, and the notices to Class Members and the 52 attorneys general. An agreed upon award of attorneys' fees and expenses is proper in a class action settlement, so long as the amount of the fee is reasonable under the circumstances. See Fed. R. Civ. P. 23(h) (providing that "[i]n an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by ... agreement of the parties ....").
Here the parties have agreed to award class counsel a lump sum of attorneys' fees and expenses, subject to Court approval. Importantly, the evidence shows that attorneys' fees were

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not negotiated or discussed until after the agreement was reached between the parties on all other terms of the settlement. See Hanlon, 150 FJd at 1029 (noting with approval that "class counsel and [defendant] did not negotiate or discuss attorneys' fees until after the final settlement"). The request by class counsel for attorneys' fees and expenses was set forth in the notice and was met with no opposition from absent class members. A. Attorneys' Fees.
Courts use the "'lodestar method' to calculate attorneys' fees." Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir. 1992). The lodestar is computed by multiplying the number of hours reasonably expended by the prevailing hourly rate in the community for similar work. Id. The Court then adjusts the lodestar upward or downward depending on the respective weight of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), which are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorneys; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitation imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability ofthe attorneys; (l0) the undesirability of the case; (11) the length and nature of the attorney-client relationship; and (12) awards in similar cases.
1. Class Counsel's Hourly Rates In determining the reasonableness of hourly rates, courts consider the experience, reputation and ability of the attorney, and the skill required by the attorneys. Shipes, 987 F.2d at 320. Here, class counsel are experienced and skilled practitioners in civil rights and class action

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fields. Considering the complex nature of this case and class counsel's experience, reputation and skill, this Court finds class counsel's rates are reasonable.
2. The Hours Expended by Class Counsel The Court has also reviewed the evidence submitted concerning the number of hours expended. The Court is required to determine not only that the total hours claimed by class counsel are reasonable, but the hours were reasonably expended. Louisiana Power & Light Co. v. Kellstrom, 50 FJd 319, 325 (5th Cir. 1995). Having reviewed the evidence submitted, the Court concludes that the hours spent by class counsel were reasonably expended. 3. Adjustment of the Lodestar using the Johnson Factors. The second step in establishing attorneys' fees is to consider whether the lodestar should be adjusted due to the circumstances of the case. Rutherford v. Harris County, 197 FJd 173, 192 (5th Cir. 1999). The lodestar factors support adjusting the fees upward in this case.
a. Time and Labor Required. Although the time and labor required in this case is normally presented in the calculation of the lodestar, there is evidence that class counsel here will be required to expend significant additional time over the course of the term of the settlement involved overseeing compliance. Simply, class counsel's work is not finished. The time and labor factor thus weigh in favor of adjusting the lodestar.
b. The Preclusion of Other Employment. The law firms which make up class counsel are small to medium sized law firms and class counsel are partners of their respective firms. Counsel have indicated that their involvement in this case has substantially diminished, and perhaps in some cases foreclosed, the
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acceptance of other employment or possible business opportunities. Garza, 1996 WL 56247, at .*31 (considering preclusion of other employment by attorneys due to acceptance of case).
c. Customary Fee. The customary fee in civil rights and other socially valuable cases is often higher than in other cases. See Fleet Inv. Co. v. Rogers, 620 F.2d 792, 793~94 (lOth Cir. 1980) (noting "[t]he value of an attorney's services is not only measured by the amount of the recovery to plaintiff, but also the non~monetary benefit[s]"); see also Wright & Miller, Federal Practice & Procedure, § ·1803.1. Case law also supports the proposition that the customary fee in civil rights cases should be enhanced. See United Slate, Tile & Composition Roofers, Damp and Waterproof Workers Ass'n, Local 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 503 (6th Cir. 1984) (recognizing courts should not focus on financial gain when awarding attorneys' fees where results are achieved in form of vindication of civil rights).
d. Whether the Fee is Fixed or Contingent. This case was taken on a contingency fee. The contingency fee system "permits a greater recovery for successful cases, thereby rewarding their investment in successes, and offsetting the losses from unsuccessful cases." In re Shell Oil Refinery, 155 F.R.D. 552, 571 (E.D. La. 1993). Adjustment of the lodestar to reflect the contingent nature of the suit was recognized by the Fifth Circuit in Graves v. Barnes, 700 F.2d 220, 222~23 (5th Cir. 1983). Given the complex legal and factual issues confronting counsel, as discussed throughout this opinion, class counsel undertook a considerable risk with no guarantee any fees or expenses would be recovered.
e. The Amount Involved and the Results Obtained. The settlement involves not only monetary relief, but, most importantly, terms concerning the polices and procedures at Dell. See Garza, 1996 WL 56247, at *332 (considering

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amount involved and results obtained when considering request for attorneys' fees in class action

settlement). Also, courts have recognized that "[t]oo great an emphasis on the amount realized

from the judgment would detrimentally encourage attorneys to concentrate on increasing the

damage award, perhaps with harm to the merits of the case." United Slate, Tile & Composition

Roofers, Damp and Waterproof Workers' Ass'n, Local 307, 732 F.2d at 503. The Court

concludes, for reasons discussed throughout this Order, that the settlement here was a superior

result and therefore this factor favors enhancing the lodestar.

f. Awards in Similar Cases.

Courts often look at fees awarded in comparable cases to determine if the fee requested is

reasonable. Johnson, 488 F.2d at 719 & n. 5 (citing similar cases reviewed when determining

whether to adjust lodestar). The average range of multipliers applied to other class actions has

been from 1.0 to 4.5. Garza, 1996 WL 56247, at *33. The range of multipliers on large and

complicated class actions have ranged from at least 2.26 to 4.5. Id. Here, a fee award of less

than $1,040,000.00 million, representing a multiplier of slightly less than 2, is equal to or less

than the average fee awarded in similar complex class action litigation. Specifically, the fee

requested here compares favorably to awards in other complex, civil rights and/or class actions:

• Bernardi v. Yeutter, 951 F.2d 971,975 (9th Cir. 1991) (multiplier of2).

• Local 56, United Food & Commercial Workers Union v. Campbell Soup Co., 954 F. Supp. 1000, 1005 (D.N.J. 1997) (2.39 multiplier on the lodestar).

• Garza v. Sporting Goods Properties, Inc., 1996 WL 56247, at *33 (W.D. Tex. Feb. 6, 1996) (multipliers of 3.5 and 4 were appropriate).

• Pooshs v. Fluoroware, Inc., 1994 WL 374540, at *5 (N.D. Cal. July 11, 1994) (awarding multiplier of 2 in civil rights case).

• In re Fernald Litig., 1989 WL 267038, at *5 (S.D. Ohio Sept. 29, 1989) (awarding class

counsel equivalent of multiplier of 5).

.

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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 20 of 24
Based on awards in similar cases and upon the factors set forth above, this Court concludes the fee requested here, which represents a multiplier of less than 2, is appropriate for this case.
In sum, having reviewed the request in light of all the Johnson factors, the Court finds that the factors are either neutral or support an upward adjustment of the multiplier. The fees sought are fair and reasonable and justified by the Johnson factors.
2. Expenses. The appropriate analysis to apply in determining which expenses are compensable in a class action case is whether such costs are of the variety typically billed by attorneys to clients.
Abrams v. Lightolier, 50 FJd 1204, 1225 (3d Cir. 1995) (determining expenses are recoverable if it is customary to bill clients for these expenses). In this case, class counsel have incurred expenses through the date of filing the final approval motion of slightly in excess of $66,000.00. These expenses include costs for filing fees, expert witnesses and consultants, photocopies, mailing and travel. The Court finds the requested costs to be reasonable and, therefore, the Court finds class counsel should be reimbursed for these litigation related expenses.
Overall, the requested attorneys' fees and expenses are within the range of attorneys' fees awards made in comparable cases and is reasonable under both the "lodestar" and percentage of fund method of calculations. Accordingly, the Court awards $1,100,000.00 to Class Counsel, to be paid by Dell pursuant to the settlement for their fees and expenses incurred in prosecuting this case and in monitoring and enforcing the Settlement Agreement.
VI. SERVICE PAYMENTS TO CLASS REPRESENTATIVES The two named Plaintiffs who have performed services for the class have made a request for compensation. "Federal courts consistently approve incentive awards in class action lawsuits to compensate named Plaintiffs for the services they provide and burdens they shoulder
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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 21 of 24
during litigation." Camp v. Progressive Corp., 2004 WL 2149079, at *8 (E.D. La. 2004) (internal quotation omitted). Having reviewed the record, the Court finds the service payments to the named Plaintiffs is justified in light of the named Plaintiffs' willingness to devote their time and energy to this civil rights representative action and reasonable in consideration of the overall benefit conferred on the settlement class.
VIII. CONCLUSION Based on the foregoing analysis, the settlement, as evidenced by the parties' agreement, is hereby determined to be fair, reasonable and adequate. The $1,100,000.00 in attorneys' fees and expenses requested by class counsel are further found to be reasonable, as is the award of compensation to the two named class representatives. THE COURT FURTHER FINDS AND ORDERS AS FOLLOWS: 1. On July 23, 2009, the Court entered an Order Preliminarily Approving Settlement in this cause based upon a Settlement Agreement entered into by the Parties. 2. The Court hereby adopts all of the findings contained in its Order Preliminarily Approving Settlement. In addition, this Final Order and Judgment Approving Class Action Settlement incorporates by reference the definitions contained in the Settlement Agreement, and all capitalized terms used in this Final Order and Judgment Approving Class Action Settlement will have the same meanings as set forth in the Settlement Agreement, unless otherwise defined in this Final Order and Judgment Approving Class Action Settlement. 3. This matter satisfies the prerequisites for certification of a settlement class under Rule 23(a) and (b)(2) ofthe Federal Rules of Civil Procedure. 4. The Settlement Agreement primarily provides injunctive and equitable relief, This monetary damages portion of the settlement are merely incidental to the injunctive and

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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 22 of 24
equitable relief being provided in the Settlement Agreement for Class Members. 5. The Court thus finds that the Class satisfies Rule 23(b)(2) of the Federal Rules of
Civil Procedure in that it appears Dell in this cause has acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief with respect to the class as a whole.
6. Given that the present action falls within the classic Rule 23(b)(2) paradigm, no opt-out procedure is necessary to protect the interests of the Class. The interests of the Class Members in this Settlement are cohesive and homogeneous, Plaintiffs seek to redress an alleged common injury properly through class-wide equitable relief. The relief offered in the Settlement is not dependent on adjudication of facts particular to any subset of the class nor does it require a remedy that differs materially among Class members. As a result, an opt-out procedure is not required and all Class Members may properly be bound by the release and final judgment to be entered pursuant to the Settlement.
7. Notice to the Settlement Class has been provided in accordance and compliance with this Court's Preliminary Order Approving Settlement Agreement, and notice has been given in an adequate and sufficient manner; constitutes the best notice practicable under the circumstances; and satisfies the requirements of due process. Full opportunity has been afforded to members of the Class to participate in this Fairness Hearing. Accordingly, the Court determines that all members of the Class are bound by this Order and Final Judgment Approving Class Action Settlement.
8. Plaintiffs' Motion for Final Approval of Class Action Settlement and Entry of Final Judgment is GRANTED.
9. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the following Settlement Class is certified: "All women employed by Dell in the United States for

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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 23 of 24
at least one day in a C1 through D3 grade level positions or their equivalents between February 14, 2007 and December 31, 2008, excluding any former employee who previously executed a complete release as part of any prior litigation or settlement agreement (but not a severance agreement) and further excluding any current or former employee who filed a complaint of discrimination with a state or federal agency."
10. The Settlement Agreement submitted by Plaintiffs is finally approved as fair, reasonable and adequate and in the best interests of the Class, and the parties are directed to consummate and to implement the Settlement Agreement in accordance with its terms. The provision of equitable relief shall take place in accordance with the Settlement Agreement.
11. The law firms of Hance Scarborough L.L.P. and Scott, Douglass & McConnico, L.L.P. are appointed Class Counsel for the settlement Class and shall act on behalf of the Class Representative and all members of the settlement Class.
12. Plaintiffs Jill Hubley and Laura Guenther are hereby certified as the Class representatives of the Class defined above.
13. Class Counsel has applied for an award of attorneys' fees and expenses to be paid pursuant to the terms of the Settlement. This Court awards Plaintiffs' Counsel attorneys' fees and expenses of $1,100,000.00. Said fees and expenses are determined by the Court to be fair, reasonable and appropriate.
14. Plaintiffs have applied for service payments to be paid to the representative Plaintiffs. Recognizing these representative Plaintiffs' efforts on behalf of the Class, this Court finds the awards provided for in the Settlement Agreement to be fair, reasonable and appropriate, and approves the service payments as set out in the Settlement.
15. Any person wishing to appeal this Final Order and Judgment Approving Class

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Case 1:08-cv-00804-JRN Document 45 Filed 11/06/09 Page 24 of 24 Action Settlement shall post a bond with this Court to cover the costs of appeal as a condition of prosecuting the appeal. The amount of the appeal bond will be set if, as, and when a notice of appeal is filed.
16. The Plaintiffs, the Class Members, and Dell having so agreed, good cause appearing, and there being no just reason for delay, it is ordered that this Final Order and Judgment Approving Class Action Settlement, is hereby entered as a final and appealable order.
17. This Action is dismissed with prejudice and without further costs, including but not limited to claims for interest, penalties, costs and attorneys' fees, that Plaintiffs and any Class Members have alleged or may have alleged in connection with this Litigation. Without affecting the finality of this Order, this Court retains exclusive jurisdiction over the consummation, performance, administration, effectuation and enforcement of the Settlement Agreement, and this orde~
SIGNED this ~ day of_-I-;H.f-~___
FINAL ORDER

 
 Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 1 of 7
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:08−cv−00804−JRN

CLOSED

Hubley v. Dell Inc. Assigned to: Judge James R. Nowlin Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 10/29/2008 Date Terminated: 11/06/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Jill Hubley On behalf of herself and all others similarly situated

represented by Christopher D. Sileo Scott, Douglass &McConnico LLP 600 Congress Ave. Suite 1500 Austin, TX 78701 (512) 495−6300 Fax: 512/474−0731 Email: csileo@scottdoug.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey D. Weisbart Hance Scarborough LLP 111 Congress Ave. Suite 500 Austin, TX 78701 (512) 479−8888 Fax: (512) 482−6891 Email: gweisbart@hslawmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Knauth Scott, Douglass &McConnico, L.L.P. 600 Congress Avenue, 15th Floor Austin, TX 78701−2589 (512)495−6300 Fax: 512/474−0731 Email: jknauth@scottdoug.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie A. Springer Scott, Douglass &McConnico One American Center 600 Congress, 15th Flr. Austin, TX 78701 (512) 495−6300 Fax: 512/474−0731 Email: jspringer@scottdoug.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. McConnico Scott, Douglass &McConnico LLP 600 Congress Ave Suite 1500 Austin, TX 78701 (512) 495−6300 Fax: 512/474−0731 Email: smcconnico@scottdoug.com

Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 2 of 7

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terry Lane Scarborough Hance Scarborough LLP 111 Congress Avenue Suite 500 Austin, TX 78701 (512) 479−8888 Fax: (512) 482−6891 Email: tscarborough@hslawmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tonia Lea Lucio Hance Scarborough LLP 111 Congress Avenue Suite 500 Austin, TX 78701 (512) 479−8888 Fax: (512) 482−6891 Email: tlucio@hslawmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Laura Guenther

represented by Christopher D. Sileo Scott, Douglass &McConnico, L.L.P. 600 Congress Ave., Ste. 1500 Austin, TX 78701−2589 (512) 495−6300 Fax: 512/474−0731 Email: csileo@scottdoug.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey D. Weisbart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Knauth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie A. Springer Scott, Douglass &McConnico 600 Congress, 15th Flr. Austin, TX 78701 (512) 495−6300 Fax: 512/474−0731 Email: jspringer@scottdoug.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. McConnico Scott, Douglass &McConnico 600 Congress Ave., 15th Floor Austin, TX 78701 (512) 495−6300 Fax: 512/474−0731 Email: smcconnico@scottdoug.com LEAD ATTORNEY

Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 3 of 7
ATTORNEY TO BE NOTICED
Terry Lane Scarborough Hance Scarborough LLP 111 Congress Avenue Suite 500 Austin, TX 78701 (512) 487−4006 Fax: (512) 482−6891 Email: tscarborough@hslawmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tonia Lea Lucio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Dell Inc.
Movant

represented by Anne E. Martinez Morgan, Lewis &Bockius LLP 1701 Market Street Philadelphia, PA 19103−2921 (215) 963−5718 Fax: (215) 963−5001 Email: aemartinez@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittan L. Buchanan Van Osselaer &Buchanan, LLP 9600 Great Hills Trail Suite 300 West Austin, TX 78759 (512) 225−2822 Fax: (512) 225−2801 Email: bbuchanan@vbllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Scott Boulette Boulette &Golden L.L.P. 1221 S. Mopac Expressway Suite 300 Austin, TX 78746 (512) 732−8901 Fax: (512) 732−8905 Email: jason@boulettegolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S. Burkhardt Morgan, Lewis &Bockius LLP 1701 Market Street Philadelphia, PA 19103−2921 (215) 963−5130 Fax: (215) 963−5001 Email: mburkhardt@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 4 of 7

Caroline Thomson

represented by John Judge Judge Kosture &Putman, P.C. 2901 Bee Cave Road Box L Austin, TX 78746 (512) 328−9099 Fax: 512/328−4132 Email: jjudge@jkplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael L. Pitt Pitt McGehee Palmer Rivers &Golden 117 W Fourth St Ste 200 Royal Oak, MI 48067−3848 248−398−9800 Fax: 248−398−9804 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Andrea K. Ferrell

represented by Andrea K. Ferrell 5585 Hwy 109 N Lebanon, TN 37087 PRO SE

Movant Rheta Daur

represented by Rheta Daur 7716 S Oak St Tempe, AZ 85284 PRO SE

Movant Olga Krachina

Date Filed 10/29/2008
10/29/2008 11/04/2008 11/05/2008
12/01/2008 12/01/2008 12/11/2008 12/11/2008

# Docket Text
1 COMPLAINT ( Filing fee $ 350 receipt number MR# 427912, AR# 429782), filed by Jill Hubley. (Attachments: # 1 Civil Cover Sheet, receipt, and cover letter)(tdk, ) (Entered: 10/31/2008)
2 REQUEST FOR WAIVER of Service sent to Dell Inc. on 10/29/08 by Jill Hubley (tdk, ) (Entered: 10/31/2008)
3 WAIVER OF SERVICE Returned Executed by Jill Hubley as to Dell Inc. Waiver sent on 10/29/2008, answer due 12/28/2008. (mm5) (Entered: 11/04/2008)
4 ORDER REASSIGNING CASE. Case reassigned to Judge James R. Nowlin for all proceedings. Judge Lee Yeakel no longer assigned to case. Signed by Judge Lee Yeakel. (mm5) (Entered: 11/05/2008)
5 NOTICE of Attorney Appearance by Julie A. Springer on behalf of Jill Hubley for Steve McConnico and Chris Sileo (Springer, Julie) (Entered: 12/01/2008)
6 NOTICE of Attorney Appearance by Julie A. Springer on behalf of Jill Hubley for Terry Scarborough (Springer, Julie) (Entered: 12/01/2008)
7 * MOTION to Appear Pro Hac Vice by Jason Scott Boulette by on behalf of Dell Inc.. (Attachments: # 1 Proposed Order)(Boulette, Jason) (Entered: 12/11/2008)
8 * MOTION to Appear Pro Hac Vice by Jason Scott Boulette by on behalf of Dell Inc.. (Attachments: # 1 Proposed Order)(Boulette, Jason) (Entered: 12/11/2008)

Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 5 of 7

12/15/2008 12/16/2008 12/19/2008 12/24/2008 02/04/2009 03/09/2009 03/09/2009 03/11/2009 03/16/2009 03/18/2009 04/08/2009 04/16/2009
04/17/2009 05/13/2009 07/22/2009
07/22/2009 07/23/2009 07/23/2009 08/10/2009

10 ORDER GRANTING 7 Motion to Appear Pro Hac Vice by Anne E. Martinez Signed by Judge James R. Nowlin. (td) (Entered: 12/16/2008)
9 ORDER GRANTING 8 Motion to Appear Pro Hac Vice by Michael S. Burkhardt Signed by Judge James R. Nowlin. (td) (Entered: 12/16/2008)
Pro Hac Vice Fee Paid by Michael S. Burkhardt, Anne E. Martinez; Filing fee $ 50.00, receipt number 100000606. (mm5) (Entered: 01/05/2009)
11 STIPULATION And Proposed Order Extending Defendant's Time To Answer, Move, Or Otherwise Respond by Jill Hubley, Dell Inc.. (Boulette, Jason) (Entered: 12/24/2008)
12 STIPULATION Joint Stipulation and Proposed Order Extending Defendant's Time to Answer, Move, or Otherwise Respond by Jill Hubley, Dell Inc.. (Boulette, Jason) (Entered: 02/04/2009)
13 NOTICE of Attorney Appearance by Geoffrey D. Weisbart on behalf of Jill Hubley (Weisbart, Geoffrey) (Entered: 03/09/2009)
14 FIRST AMENDED COMPLAINT against Dell Inc. amending 1 Complaint, filed by Laura Guenther, Jill Hubley.(dm) (Entered: 03/10/2009)
15 WAIVER OF SERVICE Returned Executed by Jill Hubley, Laura Guenther as to Dell Inc.. Waiver sent on 3/9/2009, answer due 5/8/2009. (mc2, ) (Entered: 03/12/2009)
16 NOTICE of Attorney Appearance by Brittan L. Buchanan on behalf of Dell Inc. (Buchanan, Brittan) (Entered: 03/16/2009)
17 ANSWER to 14 Amended Complaint with Affirmative and Other Defenses by Dell Inc..(Burkhardt, Michael) (Entered: 03/18/2009)
18 Proposed Scheduling Order /Joint Proposed Discovery Control Plan by Jill Hubley, Laura Guenther. (Weisbart, Geoffrey) (Entered: 04/08/2009)
19 SCHEDULING ORDER: ADR Report Deadline due by 4/17/2009. Amended Pleadings due by 8/31/2009. Discovery due by 10/1/2009. Joinder of Parties due by 8/31/2009. Motions due by 10/30/2009.. Signed by Judge James R. Nowlin. (mm5, ) (Entered: 04/16/2009)
20 ADR Report Filed − Jointly by Jill Hubley, Dell Inc., Laura Guenther(Burkhardt, Michael) (Entered: 04/17/2009)
21 NOTICE of Filing vacation letter by Dell Inc. (Buchanan, Brittan) (Entered: 05/13/2009)
22 Unopposed MOTION for Leave to Exceed Page Limitation on Unopposed Motion for Preliminary Approval of Class Action Settlement by Jill Hubley, Laura Guenther. (Attachments: # 1 Proposed Order)(Weisbart, Geoffrey) (Entered: 07/22/2009)
23 Unopposed MOTION for Preliminary Approval of Class Action Settlement by Jill Hubley, Laura Guenther. (Attachments: # 1 Proposed Order)(Weisbart, Geoffrey) (Entered: 07/22/2009)
Text Order GRANTING 22 Motion for Leave to File Excess Pages entered by Judge James R. Nowlin. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ajh) (Entered: 07/23/2009)
24 ORDER PRELIMINARY APPROVING SETTLEMENT. Signed by Judge James R. Nowlin. (td) (Entered: 07/23/2009)
25 Joint MOTION to Reset Final Approval Hearing Date by Jill Hubley, Laura Guenther. (Attachments: # 1 Proposed Order Resetting Hearing)(Sileo, Christopher) Modified on 8/10/2009 to include defendant as a filing party (mm5, ). Modified on 8/10/2009 to reflect correct motion type (mm5, ). (Entered: 08/10/2009)

Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 6 of 7

08/10/2009
08/10/2009 08/11/2009 08/11/2009 08/31/2009 09/09/2009 09/17/2009 09/17/2009 09/21/2009
09/21/2009 09/28/2009 10/02/2009
10/07/2009 10/07/2009
10/08/2009 10/19/2009 10/19/2009 10/20/2009 10/28/2009 10/29/2009

Notice of Correction: re 25 Joint MOTION for Hearing to Reset Final Approval Hearing Date. ***Docket entry modified to include defendant as a filing party. In the future, on jointly filed pleadings, ensure that ALL filing parties are selected.*** (mm5, ) (Entered: 08/10/2009)
Notice of Correction: re 25 MOTION. ***Docket entry modified to reflect correct motion type: changed from a Motion for Hearing to a Motion for Miscellaneous Relief.*** (mm5, ) (Entered: 08/10/2009)
26 ORDER GRANTING 25 Motion to Reset Final Approval Hearing Date. Signed by Judge James R. Nowlin. (dm, ) (Entered: 08/11/2009)
Set Hearings: Final Fairness Hearing reset for 10/29/2009 02:00 PM before Judge James R. Nowlin. (dm, ) (Entered: 08/11/2009)
27 OBJECTION to Inclusion in Class Action by Caroline Thomson. (mm5, ) Modified on 9/28/2009 to reflect document type (pleading is objection, not motion (per Chambers) (mm5, ). (Entered: 09/01/2009)
28 MOTION FOR CLARIFICATION, OR ALTERNATIVELY, FOR EXTENSION by Jill Hubley, Laura Guenther. (Attachments: # 1 Proposed Order)(Sileo, Christopher) (Entered: 09/09/2009)
29 ADVISORY TO THE COURT by Andrea K. Ferrell. (mm5, ) (Entered: 09/17/2009)
30 ADVISORY TO THE COURT by Rheta Daur. (mm5, ) (Entered: 09/17/2009)
31 RESPONSE to Motion, filed by Dell Inc., re 27 MOTION to be Excluded from Class Action or, in the Alternative, Her Objection to Class Certification under Fed.R.Civ.P. 23(b)(2) filed by Movant Caroline Thomson (Burkhardt, Michael) (Entered: 09/21/2009)
32 ADVISORY TO THE COURT by Olga Krachina. (mm5, ) (Entered: 09/21/2009)
Notice of Correction: re 27 OBJECTION to Inclusion in Class Action. ***Docket entry modified to reflect change from MOTION to OBJECTION (per Chambers).*** (mm5, ) (Entered: 09/28/2009)
Text Order GRANTING 28 Motion. All objections, motions, and requests for exclusion will be dealt with by the Court at the Final Fairness Hearing. Entered by Judge James R. Nowlin. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ajh) (Entered: 10/02/2009)
33 Unopposed MOTION for Leave to Exceed Page Limitation With Regard to Their Motion to Approve Final Settlement by Jill Hubley, Laura Guenther. (Attachments: # 1 Proposed Order)(Weisbart, Geoffrey) (Entered: 10/07/2009)
34 MOTION for Final Approval of Class Action Settlement by Jill Hubley, Laura Guenther. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Proposed Order)(Weisbart, Geoffrey) (Entered: 10/07/2009)
Text Order GRANTING 33 Motion for Leave to File Excess Pages entered by Judge James R. Nowlin. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ajh) (Entered: 10/08/2009)
35 NOTICE − Declaration of Edward J. Sincavage by Jill Hubley, Laura Guenther (Weisbart, Geoffrey) (Entered: 10/19/2009)
36 DEFICIENCY NOTICE: re 35 Notice (Other) (mm5, ) (Entered: 10/20/2009)
37 CERTIFICATE OF SERVICE by Jill Hubley, Laura Guenther 35 Notice (Other) (Weisbart, Geoffrey) (Entered: 10/20/2009)
38 NOTICE of Attorney Appearance by John Judge on behalf of Caroline Thomson (Judge, John) (Entered: 10/28/2009)
39 NOTICE of Settlement by Caroline Thomson (Judge, John) (Entered: 10/29/2009)

Case: 1:08-cv-00804-JRN As of: 03/10/2010 02:43 PM CST 7 of 7

10/29/2009 10/29/2009
10/29/2009 10/29/2009 10/30/2009 11/06/2009 11/06/2009

40 NOTICE of Filing Proposed Final Order and Judgment Approving Class Action Settlement by Jill Hubley, Laura Guenther (Attachments: # 1 Proposed Order)(Springer, Julie) (Entered: 10/29/2009)
41 Minute Entry for proceedings held before Judge James R. Nowlin: Final Fairness Hearing held on 10/29/2009 (Minute entry documents are not available electronically.) Written Order forthcoming. (Court Reporter Lily Reznik.)(mm5, ) (Entered: 10/30/2009)
42 List of Witnesses from Final Fairness Hearing held 10/29/09. (mm5, ) (Entered: 10/30/2009)
43 Plaintiffs' Exhibit List from Final Fairness Hearing held 10/29/09. (mm5, ) (Entered: 10/30/2009)
44 NOTICE of Filing [Revised Proposed] Final Order and Judgment Approving Class Action Settlement by Jill Hubley, Laura Guenther (Attachments: # 1 Proposed Order)(Sileo, Christopher) (Entered: 10/30/2009)
45 FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT. Signed by Judge James R. Nowlin. (mm5, ) (Entered: 11/06/2009)
46 FINAL JUDGMENT. Signed by Judge James R. Nowlin. (mm5, ) (Entered: 11/06/2009)