Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 1 of 68

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

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

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

II. CRISTINA CHEN-OSTER; LISA PARISI; and

SHANNA ORLICH,

':,_

' i'

Plaintiffs,

- against -
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

CLASS ACTION COMPLAINT (Trial by .JUrY Demanded)

Defendants.

Individual and Representative Plaintiffs II. Cristina Chen-Oster, Lisa Parisi, and Shanna Orlich (collectively "Plaintiffs"), on behalf of themselves and all others similarly situated, atlege, upon personal knowledge as to thcmselves and upon information and belief as to othcr matters, as foHows:
NATURE OF THE CLAIM I. This is a class action brought by female professionals of Defendant Goldman, Sachs & CO. C'GS") and Defendant The Goldman Sachs Group, Inc. ("GS Group") (collectively, "Goldman Sachs"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.c. §§ 2000e et seq. ("Title Vll"); and the New York City Human Rights Law, Administrative Code of the City of New York § 8-107 ef seq. CNYCHRL'}

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2. Goldman Sachs is a global investment banking, seeurities and investment management firn1. The firm is famously secretive. Until its IPO and conversion to a corporation in 1999, the firm operated as a partnership with relatively little public oversight and regulation. Its culture has been described as insular, and its employees intensely loyal. The finn is also famously profitable. In 2009, Goldman Sachs generated S45 billion in net revenues and $! 3 billion in net earnings. Goldman Sachs credits its employees as "'a major strength and principal reason" for its success on Wall Strcet. And it pays them accordingly-in 2009, it spent S16 billion on cmployee compensation and benefits alone.
3. Goldman Sachs has distributed the bcnefits of lts enonnous success unequallysystematically favoring male professionals at the expense of their female counterparts. At nearly all levels of its management ranks, it has paid its female professionals less than similarly situated male professionals, even though they hold equivalent positions and perfonn the same or substantially similar work with similar or in some cases superior results.
4. Goldman maintains policies and practices for promoting its employees that result in the disproportionate promotion of men over equally or more qualified women. As a result, female professionals have been systematically circumvented and excluded from promotion opportunities that are routinely afforded to their male counterparts.
5. The resulting underrepresentation of women in Goldman Sachs' management ranks is stark. The number of women in management positions at Goldman Sachs dwindles as the level of management rises-from Associates, to Vice Presidents, to Managing Directors, to Partners, and finally to the firm's management committee and executive officers. According to figures released by Goldman Sachs in 2009, women made up only 29% of the finn's Vice Presidents and 17% of Managing Directors. According to 2008 figures, women \-vere only 14% of its Partners, Today, only 4 members of its 30-person management committee (roughly 13%)
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are women. or its nine cxecutivc officers, only a single one is female; she co-heads the Legal
Department with the firm's other General Counsel, a man. 6. Women at Goldman Sachs have received less compensation and have becn
promoted less frequently than their male counterparts as a result of the firm's discriminatory policies, pattems, andlor practices, The violations of its femaJe employees' rights are systemic, are based upon company-wide policies and practices, and are the result of unchecked gender bias that pervades Goldman Sachs' corporate culture. They have not been isolated or exceptional incidents, but rather the regular and predictable result of Goldman Sachs' company-wide policlCs and practices.
7. Specifically, Goldman Sachs gives its managers, the avenvhelming majority of whom are men, unchecked discretion to assign responsibilities, accounts, and projects to their subordinates. The end result is that managers, whether based on conscious or unexamined bias, most often assign the most lucrative and promising opportunitics, assignments, and "seats" to men. These more favorable business opportunities allow men at Goldman Sachs to produce bctter results, which in tum earn them greater compensation and career advancement.
8. Goldman Sachs also grants its managers unbiidled discretion to allocate resources among its employees, meluding but not limited to administrative support, training opportunities, and informal mentoring. Goldman Sachs managers exercise this discretion in an ad hoc andlor subjective manner, without any formal oversight or procedure. In practice, Goldman Sachs managers exercise this discretion in a way that prmides disproportionately greater resources to their male subordinates than their female subordinates. These policies, patterns andlor practices have the effect ofunfmrly benefiting men at Goldman Saehs while depriving thcir female coworkers of the same resources. Such resource assignments may also givc male employees the impression of higher power and seniority that often becomes a self-fulfilling prophecy. As a
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result, mcn at Goldman Sachs arc vie\1/ed more favorably, receive more compensation, and are more likely to be promoted.
9. Goldman Sachs also has constructed and maintained a system for evaluating cmployccs' pcrfonnancc that systcmatically discnminates agamst female professionals. Its pcrfonnance reyie\,·/ systcm pcnnits unacceptable levels of sUbjectivity and bias that result in the systematic undervaluation of female cmployces' perfonnance. This disparity between the evaluation of male and femalc employees further exacerbates the inequality betlA:een their respective compensation and opportunities for promotion.
10. Furthcnnore, these policies, patterns, and/or practices are no accident. Rather, they are part and parcel of an outdated corporate culture. Goldman Sachs has intentionally implemented these company-wide policies and practices in order to pay their male employees more money than their female counterparts, and to promote them morc frcqucntly.
11. These company-wide policies and practices, while facially neutral, havc had an adverse impact on the compensation, promotion, and pcrfonnanee evaluations offemale employees as compared to their male counterparts.
J2. Accordingly, m addition to bringing this action on their own behalf, Plaintiffs also bring this action on behalf of a class of similarly situated current and fonner female Associates, Vice Presidents, and Managing Directors employed by Goldman Sachs ("the Class"), in order to end Goldman Sachs· discriminatory policies and/or practices and to make the Class whole.
PARTIES Plaintiffs
H. Cristina Chen-Oster 13. PlaintiffH. Cristina Chen-Oster (,'Chen-Oster") is a woman who lives in Monmouth County_ in the State or New Jersey. She is a citizen of the United States.
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14. Chen-Oster was employed by Goldman Sachs from approximately March 1997 to March 2005 in :--.lev.' York, New York.
Lisa Parisi 15. PlalOtiffLisa Pansi (,'Parisi") is a woman who lives in Fulton County, in the State of Georgia. She IS a citizen of the United States. 16. Parisi was employed by Goldman Sachs from approximately August 2001 to March 2006 III New York, New York, and from approximately March 2006 to November 2008 in Atlanta, Georgia. ShwlIlQ Orlich 17. PlaintitlShanna Orlich (,'Orlich") is a woman who lives in Hudson County, in the State of New Jersey, She IS a citizen of the United States. 18. Orlich was employed by Goldman Sachs during the summer 0[2006 and from approximately July 2007 to November 2008 m New York, New York. Defendants Goldman, Sachs & Co. 19. Upon infoffilation and belie( Defendant Goldman, Sachs & Co. C'GS"") is a limited partnership fanned under the laws of the State of New York with a place of business within the City and County of New York at 200 West Street, New York, New York 10282. 20. Upon infonnation and beliet~ Defendant GS malOtains control, oversight, and direction over the operation of its facilitics, including its employment practices. 21. During all relevant times, Defendant GS was Plaintiffs' employer within the meaning of all applicable statutes.
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22. On infonnation and belief. at all times pertinent hereto, Defendant GS has employed more than five hundred people. GS is a wholly owned subsidiary of The Goldman Sachs Group, Inc.
The Go/dman Sachs Group, Illc. 23. Upon infonnation and belief, Defendant The Goldman Sachs Group. Inc. CoGS Group") is a Delaware corporation doing business within Ne\v York County in the State of New York and maintains corporate headquarters within the City and County of New York at 200 West Street, New York. New York 10282. 24. Upon infonnation and belief, Defendant GS Group maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 25. During all relevant times, Defendant GS Group was Plaintiffs' employer within the meanmg of all applicable statutes. 26. On infomlation and belief, at all times pertinent hereto, Defendant GS Group has employed more than five hundred people.
JURISDICTION AND VENUE 27. This Court has original subject matter jurisdiction over the Title VII claims
pursuant to 28 V.S.c. §§ 1331 and 1343, because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights.
28. This Court has original jurisdiction over the NYCHRL claims in this action under the Class Action Fairness Act, 28 U.S.c. § 1332(d). This is a putative class action in which: (l) there are 100 or more members in the Class: (2) at least some members of the proposed class have a different citizenship from at least one Defendant; and (3) the claims of the proposed class members exceed $5,000,000.00 in the aggregate.
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29. In addition, this Court has supplemental jurisdiction over the NYCHRL claims under 28 U.S.c. § 1367, because they arise from a common nuclcus of operative facts with the federal claims and are so related to the federal claims as to fonn part of the same case or controversy under Article III of the United States Constitution.
30. Venue is proper in this judicial district under 28 U.S.c. § \391(b)-(c) and 42 U.S.c. § 2000e-5(t)(3), because Defendants conduct business and can be found in this district and a substantial part of the events and omissions giving rise to the claims alleged hcrcin occurred in this district, and because the alleged unlawful employment practice was committed here, and employment records relevant to that practice are maintained and administered here.
31. Plamtiffs have exhausted their administrative remedies and complied with all statutory prereqUisites to their Title VII claims. Chen-Oster filed a charge of gender discrimination and retaliation individually and on behalf of all similarly situated women employcd by Goldman Saehs with the Equal Employment Opportunity Commission ('"EEOC') on or about July 7, 2005. Pursuant to the EEOCs worksharing agreement with the ~e\v York City Commission on Human Rights C"NYCCHR'"), her charge is considered dually filed with the NYCCHR. By notice dated June 15.2010, the EEOC dismissed Chen-Oster's case and issued a Notiec of Right to Sue.
32. On or about January 7, 2010, Parisi filed a charge of gender discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOCs worksharing agreement with the NYCCHR, her charge is considered dually filed with the NYCCHR.
33. On or about January 12,2010, Orlich filed a charge of gender discrimination and retaliation with the EEOC individually and on behalf of all others simliarly situated. Pursuant to
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the EEOC's worksharing agreement with the NYCCHR, her charge is considered dually filed with the NYCCIIR.
34. Contemporaneously with the filing of this Complaint, Plaintiffs havc mailed a copy to the New York City Commission of Human Rights and the Office or the Corporation Counsel of the City orNew YOlk thereby satisfying the notice requirements of § 8-502 of the New York City Administrative Code.
35. Any and all other prerequisites to the filing of this suit have been met. FACTUAL ALLEGATIONS
36. Goldman Sachs maintams uniform employment, compensation, and promotion policies throughout the United States. Likewise, it cultivates and promotes a common corporate culture. Indeed, Goldman Sachs prides itself on "instilling the Goldman Saehs culture" in all of its employees through initiation programs, training, seminars, and Goldman Sachs' '"360-degree" perfonnance review process.
37. Goldman Sachs' offices throughout the country use a common organizational structure, organizing finance professionals as follows. Entry-level employees, typically straight out of college, hold the position of Analyst. Analysts can be promoted to Associate, which typically mcludes employees with two to five years of relevant experience and/or an MBA degree. Thc next position to which Assoc1ates can be promoted is Vice President. Above Vice Presidents are Managing DIrectors, and above Managing Directors are Partners. Finally, at the top of Goldman's management hierarchy sits a 30-person management committee, which includes its nine executive officers.
38. At the Associate, Vice President, and Managing Director levels, Goldman Sachs discriminates against \vomen in (1) performance evaluations; (2) compensation; (3) promotions; (4) business opportunities; and (5) professional support, including but not limited to
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administrative supp011, training, and mentoring. Performance Evaluations
39. Goldman Sachs employs unifonn procedures for evaluating employee performance which systematically underrate female professionals relative to their similarly situated male peers.
40. Upon information and belief, Goldman Sachs uses a "360-degree" employee review process, by which an employee's supervisors, co-\vorkers, and subordinates reviev./ the employee's performance for the year. Reviewers give the employee a numerical rating on a scale of 1 to 5, with 1 being the lowest score, and 5 being the highest. Reviewers also write comments about the employee's perfonnance.
41. After the 360-degree review process is complete, Goldman Sachs uses a computer algorithm to adjust for the leniency and harshness of reviewers. This adjustment produces the employee's "adjusted score," which supposedly determines the quartile in which the employee \vill be ranked.
42. Goldman Sachs managers are able to unduly intluence the 360-degree evaluation process by requesting or requiring which superior, co-workers, and subordinates will evaluate an employee. Managers have the ability to add or remove a reviewer at their election.
43. Moreover, even though the adjusted performance scores provide an initial quartile ranking, managers are then given wide discretion to place their employees into quartiles \vhich are forced ranked (i.e., managers must assign an equal number of people to each quartile). A manager can therefore move an employee to a higher or 100ver quartile based entirely on the manager's subjective feelings towards the employee and his or her peers, Since there are only a given number of slots in the top quartile, managers' favoritism to\vards males means that these spots most often go to male employees. It is these manager-determined quartile rankings that
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detem1ine employees' compensation. 44. Together, Goldman Sachs' dual-track perfom1ancc evaluation procedures
systematically underrate female employees relative to male employees - that is, women, on average, receive lower 360-degree revIew scores, more negative reviews, and lower quartile rankmgs than men in similar positions who have delivered similar or worse objective perfonnance. Compensation
45. Because female professionals at Goldman Sachs systematically receive fewer and less desirable business opportunities, less professional support, and more negative perfonnance evaluations, they have fewer opportunities to earn similar levels of compensation than their male peers. Accordingly, female Associates, Vice Presidents, and Managing Directors eam less, on average, than their similarly situated male peers.
46. Goldman Sachs allows its managers unfettered discretion to detem1ine how cl"'edit is allocated to employees who share assets, accounts, or responsibility for a particular business. This subjectivity favors male employees, who systematically receive more credit for generating revenues for the finn than their female co-workers.
47. Goldman Sachs also employs uniform, secretive procedures for detennining employees' compensation that introduce further gender bias into how it compensates its male and female professionals. Goldman Sachs makes its compensation decisions inside a proverbial "black box" - it does not publish or even disclose set criteria by which it determines an employee's compensation. Nor does Goldman Sachs inform the employee hO\v it arrived at his or her amount of compensation.
48. Upon information and belief, an employee's adjusted score and quartile ranking, which are based on managers' subjective preferences, arc major detem1inants of compensation.
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Goldman Sachs managers also have a wide amount of discretion in setting an employee's compensation, which allows and encourages them to take into account personal preferences, personal relationships. and comcious and unconscious bias in making compensation decisions. Moreover, managers have discretion to pay one employee in a given quartile more than another employee in that same quartile, with little extemal control or review. Managers are simply given a total compensation pool for theIr team of employees and allowed to distribute it as they see fit.
49. Associates, Vice Presidents, and Managing Directors typically receive a base salary as well as a year-end bonus. In an average year, the year-end bonus can be many multiples of an employee's base salary. Goldman Sachs refers to total compensation. which includes base salary and bonus, as "Per Annum Total Compensation," or "P1\TC." Goldman Sachs' discriminatory compensation procedures have resulted in female professionals receiving lower P1\TC than their male peers for the same or substantially similar work.
50. Moreover, these gender disparities 10 compensation permanently depress the earnings potential of female finance professionals. Goldman Sachs compensates its finance professionals in each year as a percentage increase from their prior year's PATe. Because an employee's PATC is linked to her past levels of compensation, each discriminatory compensation deCIsion further \videns the pay gap behveen male and female finance profeSSionals at Goldman Sachs. As a result of these discriminatory compensation policies and practices, female finance professionals at Goldman Sachs have earned less compensation during the liability penod than their similarly situated male peers. Promotions
51. Goldman Sachs also employs opaque, and discnminatory procedures for selecting individuals for promotion.
52. Goldman Sachs has no clear path nor any objective criteria for promotion to
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Managing Director or Partner. To receive a promotion [rom Vice President to Managing Director, a Managing Director or Partner must nominate you, and the film must approve the promotion. Similarly, Managing Directors must be nominated by a Partner to be ehgible for a promotion, and the firm must decide to approve it.
53. Goldman Sachs managers enjoy extremely broad discretion in choosing \vho to nominate for a promotion and the promotion process functions as a tap on the shoulder. Its managers select individuals based on personal preferences, personal relationships, and subjective and biased views of their aptitude and perfomlanee. Upon information and belief, promotions at Goldman Sachs arc intensely political and require the careful cultivation of relationships with key decision-makers within the firm, the vast majority of whom arc male. As a result, Goldman Sachs nominates and promotes an overwhelmmgly disproportionate number of men, and passes over equally or more qualified women. Business Opportunities
54. Goldman Sachs discriminates against female Associates, Vice Presidents, and Managing Directors by giving its managers, the ovenvhe1ming majority of whom are male, unchecked discretion to assign responsibilities, accounts, and projects to their subordinates. As a result, whether based on conscious or unexamined bias, managers entrust their most plum opportunities to their male subordinates, and assign their less lucrative and less promising opportunities to their female subordinates.
55. Goldman Sachs also has allowed and promoted gender stereotyping by penmuing managers to assign less desirable tasks to female employees. Women at Goldman Sachs are often asked to take on responsibility for training junior employees, but then penalized for divelting their attention away [rom generating revenues for the firm. Men are asked to train junior employees less frequently, and when they do take on such duties, they are rewarded rather
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than penalized for their efforts. Managers at Goldman Sachs frequently also ask female professionals to perform low-level administrative and clerical tasks without demanding the same tasks from male professionals.
56. Goldman Sachs also discriminates against its female employees by denying them opportunities to move laterally into other areas of the firm. Although Goldman Sachs has a fonnal requirement that job openings for lateral moves be posted for two weeks prior to being filled, in practice, managers, the majority of whom are male, pre-select the candidates and the posting is merely a fonnality. On iniol1nation and belief, Goldman Sachs transfers an overwhelmingly disproportionate number of men 1Oto the most lucrative positions, and passes over equally or more qualified women.
57. These gender disparities in the allocation of business opportunities at Goldman Sachs result in similar disparities in perfonnanee evaluations, compensation. and promotions. Because women receive fe\\'er and less lucrative opportunities than their male counterparts, it is more difficult for them to achieve the same level of perfonnanec. As a result, female financial profeSSIOnals systematically receive \.vorse performance evaluations, Imver compensation, and fevv·er promotions. Professional Support
58. Goldman Sachs also discliminates against female Associates, Vice Presidents, and Managing Directors by delegating broad discretion to its mostly male managers to determine the amount of professional support their subordinates receive. As a result, managers at Goldman Sachs provide their female subordinates with less administrative support than their similarly situated male peers. For example, female professionals at Goldman Sachs receive fewer junior employees to assist them with their work.
59. Female Associates, Vice Presidents, and Managing Directors also receive less
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training and mentorship than similarly situated men in the same positions. Goldman Sachs managers disproportionately select male professIOnals to be paired \\lith more senior mentors, to receIve hands-on training, and to be included III social events \vhere they have access to or visibility among senior management. In many areas, Goldman Sachs also discrimmates against female finance professIOnals in seating assignments. For example, on trading floors, Goldman Sachs often places women at the periphery ",hile seating similarly situated or more junior males near the center of the floor. ;vIen thus have more access to the most senior managers who regularly sit in the middle ofthe floor, and arc able to cultivate relationships with them more easily. Women lack this same access and face greater difficulties in cultivating the same relationships. Conclusion
60. Accordingly, Chen-Oster, Pansi, and Orlich bring this class action on behalf of themselves individually and all similarly situated female Associates, Vice Presidents, and Managing Directors in the United States. This action seeks to end Goldman Sachs' discliminatory policies, patterns, andlor practices and retaliation, and to make the Class whole by requesting the following remedies: mjunctive relief to remedy systemic sex discrimination: an award of back pay and front pay; compensatory and punitive damages: and attorneys' fees.
CLASS ACTION ALLEGATIONS 61. Plaintiffs bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (b)(3) on behalf of a Class of all female financial-services employees who arc at the Associate, Vice President, and Managing Director corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in the United States at any time from September 10, 2004 through the resolution of this action for claims under Title VIr. Plaintiffs reserve the right to amend the
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definition of the Class based on discovery or legal developments. 62. Plamtiffs also bnng this Class Action pursuant to Federal Rules of CIvil
Procedure 23(a), (b)(2), and (b)(3) on behalf of Class of all female financial-services employees who are at the Associate, Vice President, and Managing Director corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in the City of New York at any time from July 7, 2002 through the resolution of this action for elaims under the NYCHRL. Plamtiffs reserve the right to amend the definition of the Class based on discovery or legal developments.
63. All Plaintiffs arc members of the Classes they seek to represent. 64. The members of the Class identified herein are so numerous that joinder of all members is impracticable. As of December 2009, Goldman Sachs employs approximately 32,500 employees worldwide and approximately 18,900 in its Americas region (North and South America). Although Plamtlffs do not know the precise number of female finanCIal-services employees at the Associate, Vice President, and Managing Director levels at Goldman Sachs, the number is far greater than can be feasibly addressed through joinder. 65. There are questions oflaw and fact common to the Class, and these questions predommate over any questions affecting only individual members. Common questions include, among others:
(a) v.. hether Goldman Sachs' poliCIes or practices discnminate against female Associates, Vice Presidents, and Managing Directors;
(b) whether Goldman Sachs has failed to Implement policies and procedures to prevent retaliation against employees \vho challenge perceived gender bias in the workplace, has tailed to address complaints, and has failed to conduct proper Il1vestigations;
(c) whether Goldman Sachs' policies and practices VIOlate Title VII andJor the NYCHRL; and
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(d) whether equitable remedies, injunctive relief, compcnsatOlY damages, and punitive damages for thc Class are warranted.
66. The Representative Plaintiffs' claims arc typical of the claims of the Class. 67. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members orthe Class. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the mtersection thereof. 68. Class cel1ification IS appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) bccausc Goldman Sachs has acted and/or rcfuscd to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class Members are entitlcd to injunctive relief to end Goldman Sachs' common, uniform, unfair, and discriminatory policies and practices. 69. Class certification is also appropriate pursuant to Federal Rulc of Civil Procedure 23(b)(3) because common questions offact and law predominate over any qucstions affecting only individual members o[ the Class, and because a class action IS superior to other available methods for the fair and efficient adjudication of this litigation. The Class Membcrs have been damaged and are entitled to recovery as a result of Goldman Sachs' common, unitonn, unfair, and discnminatory policies and practices. Goldman Sachs has computerized account data, payroll data, and personnel data that will make calculation of damages for specific Class Members relatively simple. The propricty and amount of punitive damagcs are based on Goldman Sachs' conduct, making these Issues common to the Class.
CLAIMS OF REPRESENTATIVE PLAINTIFFS H. Cristina Chen-Oster
70. In March 1997, Plaintiff H. Cristina Chen-Oster began working [or Goldman
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Sachs in the finn's Convertible Bonds Department, in the position of senior convertible bond salesperson. Goldman did not give her a title initially, despite the fact that Chen-Oster had held the title of Vice President for the same function with her previous employer. In June 1997, Goldman promoted Chen-Oster to Vice President from having no title. This ,"vas Chen-Oster's only promotion at Goldman Sachs during her eight-year tenure at the film.
71. During her employment, Goldman Sachs repeatedly denied Chen-Oster business opportunities, training and mentorship, and other terms and conditions of employment \vhich it made available to similarly situated males. Additionally, throughout Chen-Oster's tenure at the firnl, Goldman Sachs consistently reviewed her performance more harshly than it did similarly perfonning males, paid her less in base compensation and bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.
72. In late 1997, Chen-Oster" s direct supervisor, a male Managing Director, took away Chen-Oster"s fastest gro\ving account base convertible bond arbitrage accounts - and transferred them to the firm's London desk. A male Associate who was also a convei1ible bond salesperson had the same account base as Chen-Oster did, and had also shared w'ith her responsibility for some of the same arbitrage accounts. Her supervisor permitted the male Associate to continue covering the arbitrage accounts, but did not allow Chen-Oster to keep her coverage of the accounts, even though, as a Vice President, she was more senior than the male Associate.
73. In the fiscal year ending in November 1997, Chen-Oster earned significant revenues for Goldman Sachs. Nonetheless, Goldman Sachs paid her less that year than similarly situated males in her department who had generated less revenues. For example, upon infOlmation and belief, Goldman Sachs paid another male salesperson in the Convel1ible Bonds
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Department who had also been promoted to Vice President in June 1997 approximately 50% more than it paid Chen-Oster. even though this male salesperson had generated less revenues in both that year and the previous year.
74. In early 1998, Chen-Oster's supervisor asked her to train a newly hired male Associate and to introduce him to her chents, telling her that she would be evaluated and rewarded based on hov.'" well she trained him. Chen-Oster invested significant time and energy on training the new male Associate, which she did well, and acted as a team player in sharing her client relationships with him.
75. Despite her training efforts and strong sales performance, Goldman Sachs agam paid Chen-Oster less in 1998 than it paid similarly sltuated men in her department. For example, the same male salesperson who had received more compensation than Chen-Oster in 1997 again received approximately 50% higher compensation than her in 1998, even though he again had generated less revenue that year, and had not shouldered the burden of training a new Associate.
76. In 1998, Goldman Sachs promoted the male colleague \\'ho had been allowed to continue covenng the arbitrage accounts to Vice President.
77. In or around May 1999, Chen-Oster told her supervisor about an incident which had occurred in 1997, shortly after she joined Goldman Sachs. In the fall of 1997, Goldman Sachs sponsored a dinner for a male employee who had just been promoted to Managing Director. Part of the evening took place at Scores, a topless bar, and all employees in the group were encouraged to join. At the end of the evening, a married male Associate in her group insisted that he escort her to her boyfriend's apartment building a few blocks away. In the hallway outside the apartment, the male colleague surprised Chen-Oster by pinning her against a wall, kissing and groping her, and attempting to engage in a sexual act with her. Chen-Oster did not 1l1vitc or welcome thc attempt, and had to physically defend herself. The next morning, the
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male colleague apologized profusely to Chen-Oster and asked her not to say anything about the incident to anyone. On the same day, the male colleague also told hIS supervisor what had happencd the night before. This supervisor \vas also Chen-Oster"s supervisor. The supervisor and the male colleague had been friends and sat next to each other on the trading floor. The male colleague was also the same Associate \\"ho her supervisor had penniued to continue covering the arbitrage accounts in late 1997, and who had been promoted to Vice President in 1998. Chen-Oster later learned that her male colleague had told their supervisor about the incident on the morning after it occuned.
78. After reporting the 1997 incident to her supervisor, Chen-Oster began to experience increased hostility and marginalization at the finn. In mid-1999, Goldman Sachs took away some of her job duties and responsibilities, including responsibility for new Asian deal allocations in the United States and for giving feedback on new deal pricmg prior to new deal announcements. Chen-Oster had been managmg neVi Asian deal allocations successfully in the United States for the previous two years.
79. At the end of 1999, Goldman Sachs again paid Chen-Oster less than it paid similarly situated men in her department. For example, upon mtormation and belief, the male salesperson who had received more compensation than her in 1997 and 1998 again received over 50% more compensation than her in 1999. The male colleague involved in the 1997 incident also received over 50% more compensation than Chen-Oster, despite having been promoted to Vice President one year after Chen-Oster had been promoted. Both men had generated greater revenues in 1999 than Chen-Oster, but the difference resulted pnmarily from Chen-Oster"s supervisor removing higher production accounts from her coverage, but not removing any accounts from either of the two similarly situated men m her department, and giving major new accounts to the men.
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80. In 2000, her supervisor rearranged seatmg assignments on the conveltible bonds trading floor. In the trading world, seat asslgmnents ncar the senior manager are highly coveted, as they signifY people's rank and help them cultivate relationships with the most senior managers in the group. In the rearrangcment, Chen-Oster's supervIsor moved her to the seat farthest from him among all of the salespeople 10 the convertible bond department. In contrast, the supervisor placed the male colleague involved in the 1997 incident and the male Associate who Chen-Oster had trained - both of whom were more junior than her - near the center of the seating scheme \vhere the supervisor sat.
81. Goldman Sachs also restricted Chen-Oster"s supervisory responsibilities. Goldman Sachs excluded her from delivering performance reviews and compensation numbers to the male Associate whom she had trained, even though employccs with similar seniority typically performed this role with Associates they had trained. Goldman Sachs similarly excluded her from delivering performance reviews to her direct subordinate by scheduling the review [or the day before Chen-Oster returned from her honeymoon, which V·ias highly unusual and which even her direct subordinate perceived as strange. Instead, two male salespersons gave Chen-aster's direct subordinate the performance review. Typically, perfOlmance reviews are delayed for days or even weeks so that an employee" s direct supervisor can participate.
82, In or about October 2000, Goldman Sachs promoted two male salespersons in her department to Managing Director: the salesperson who had consistently received higher compensation than Chen-Oster even in years in which he generated fewer revenues, and the male colleague involved in the 1997 incident. Both of these men were friends ofChen-Oster"s direct supervISor.
83. At the end of2000, both men who had been promoted to Managing Director received at least J00% more in compensation than Chen-Oster.
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84. In January 2001, Chen-Oster spoke to her supervisor and another Managing Director, both men, to ask for opportunities to advance her career. She indicated to them that her assigned area of busmess, Southeast Asian and Japanese convertible bonds, \vas low on her supervisor's pliority list since her fastest growing accounts, the convertible arbitrage accounts, had been taken away from her. Neither Managing Director offered her any help.
85. In March 20(H, Chen-Oster told her supervisor that the women in the Convertible Bonds Department telt that Goldman Sachs did not treat them equally and that several of them felt uncomfortable with the sexist banter that regularly occuned on the trading floor.
86. In March 2001, her supervisor announced that the male salesperson that had received higher compensation than Chen-Oster in the past, now a Managing Director, would be Chen-Oster's direct supen'lsor. This new supervisor had previously undennined and denigrated Chen-Oster in front of others when they had been peers, and he continued to do so as her manager. In addition, the male colleague involved in the 1997 incident was made the sale head of U.S. convertible bond sales, effectively making him Chen-Oster's indirect supervisor.
87. In July 200 L Chen-Oster conducted an analysis of her business area and concluded that the area was small and had fev,,· prospects for growth since it had been restructured to remove large accounts and those that had sIgnificant growth potentiaL She spoke with her new supervisor in an attempt to obtain more promising market opportunities, but the new supervisor instead directed her to continue working on her existing accounts.
88. In late 2001, Chen-Oster's previous supervisor and new supervisor assigned the male salesperson who Chen-Oster had trained to assess a new market opportunity involving high-yield, distressed convertible bonds. Even though Chen-Oster was more qualified to take on the opportunity and had asked her supervisors for greater business opportunities, her supervisors intentionally excluded her from the project, even telling a Financial Analyst who worked directly
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for Chen-Oster not to inform Chen-Oster of the proJect. When Chen-Oster finally learned of the project and asked her new supervisor why she \vas never offered the opportunity, he responded that his opmlon was that the male salesperson whom she had tramed was better suited for the opportunity .
89. In March 2002, Chen-Oster's subordinatc. a Financial Analyst. transferred to London. leaving her without any dedicated support. Instead of finding a new Fmancial Analyst to support Chen-Oster, Goldman Sachs assigned her a more junior Sales Assistant, who worked only a tIllction of his time \vith her. During the same period, the other male salespeople in the Convertible Bonds Department continued to have a dedicated Analyst to support them, in addition to a Sales Asslstant.
90. In June 2002. Chen-Oster's new supervisor rcplaced nearly half of the individuals on Chen-Oster's peer review list v,'ith employees in Europe who are known to give their peers lower scores, as is the typical practice in Europe. Moreover, because these employees were located in Europe, they had little familiarity with Chen-Oster and her performance. One of the people deSignated as her revie\ver was a male salesperson who had no clients in common with Chen-Oster and \\o'hom her ncw supervisor knew had sent raei"lly offensive emails around the group, including one entitled, ';Leam Chinese in 5 Minutes," which included statements such as "Our meeting is scheduled for next week ... Wai Yu Cum Nao?"" and '"Great ... Fu Kin SU Pah." Chen-Oster is Chinese.
91. Following this change to her peer review list, Chen-Oster submitted a written complaint to her new supervisor and one of Goldman Sachs' Leadership and Diversity Managers.
92. Shortly afterward. Goldman Sachs asked Chen-Oster to transfer to a marketing position in a newly formed group, Synthetic Convertibles. The new position w"s effectively a
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demotion, because Chen-Oster would be reporting to another Vice President, also a woman, Instead of to a Managing Director for the first time in her entire five year tenure at the firm. Nonetheless, Chen-Oster agreed to transfer to try to escape the discrimmation she was expencncmg.
93. In 2002, Goldman Sachs promoted the male colleague who had been involved in the 1997 incident trom Managing Director to Partner. Goldman Sachs did not promote ChenOster or the female Vice President who was Chen-Oster's supervisor to Managing Director.
94. At the end of 2002, Chen-Oster again received significantly less compensation than her Similarly situated male peers. The male Associate whom she had trained, for example, earned significantly more in compensation than Chen-Oster, despite having generated fev..:er gross sales credits than she had in that year.
95. From March to July 2003, Chen-Oster took maternity leave. 96. At the end of2003, Goldman Sachs again paid Chen-Oster less than her similarly situated male peers, For example, the male salesperson she had once trained received substantially greater compensation than she did for 2003, 97. From July to November 2004, Chen-Oster again took maternity leave. When she returned, Goldman Sachs removed her fonner accounts and failed to provide her with any meaningful responsibilities or accounts. Goldman Sachs also moved Chen-Oster's seat from the trading floor to a location among the administrative assistants, all of whom were female. Upon information and bclief~ Chen-Oster was the only Vice President-lcvel professlOnal who had been assigned to sit among support staff. The seating alTangcment also had the effect of removing Chen-Oster from the visibility of managers and creating the perccption that she was ajunior person. 98. In December 2004, Chen-Oster again received less compensation than her
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similarly situated male peers, including but not limited to the male salesperson she had trained. 99. In February 2005, Goldman Sachs relocated Chen-Oster to a sales group which
\vas known by managers to have lower average compensation than the convertible bonds sales group at Goldman Sachs. In this new group, her supervising Partner, a male. assigned her less favorable accounts than he assigned to male employees.
100. The inferior business opportunities and treatment that Goldman Sachs gave ChenOster relative to her similarly situated male peers severely impacted her career growth and compensation at Goldman Sachs. After being promoted to Vice President, Chen-Oster was never promoted again. Between 1997 and 2004, her compensation increased by only 27<%, far lower than comparable males. While Chen-Oster's career grmvth stagnated, the male colleague involved in the 1997 incident was promoted to Managing DIrector and finally Pm1ner. Over the same period, he saw his compensation increase by more than 400%.
101. Throughout Chen-Oster's employment, Goldman Sachs also discriminated against her by reviewing her perfonnanee more negatively than her similarly situated male peers. Although she received good 360 degree scores from her peers, these scores never1heless did not fully reflect her contributions to the fiml. Moreover, although they provided her with regular positive feedback, her supervisors reviewed her more negatively than her similarly situated male peers in their private evaluations of her, as is evidenced by the fact that she repeatedly received less compensation than male peers who had underperfonned her.
102. On March 10,2005, Chen-Oster resigned d.ue to the consistent and systematic discrimination she had suffered over her eight years at Goldman Sachs.
103. On or about July 6, 2005, Chen-Oster filed a charge of gender discrimination and
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retaliation \\'ith the EEOC and on June 22, 20 I0, she received a Notice of Right to Sue. I Lisa Parisi
104. In August 2001, Plaintiff Lisa Parisi began \",corking for Goldman Sachs as a Vice President in the firm's asset management division, Goldman Sachs Asset Management C'GSAM"). In 2003, Goldman Sachs promoted Parisi to Managing Director in the Value Group. This was Parisi's only promotion at Goldman Sachs in her seven-year tenure at the finn.
105. During her employment, Goldman Sachs repeatedly denied Parisi business opportunities, training and mentorship, and other temlS and conditions of employment which it made available to similarly situated males. Additionally, Goldman Sachs consistently reviewed her perfOimance more harshly than it did similarly perfonning males, paid her less in total compensation than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she \-vas qualified to hold.
106. At Goldman Sachs, Pansi was a top performer and conslstently outperfomled the industry, Her job as a portfolio manager required her to work on several portfolios, each of which had a benchmark. During her tenure at Goldman Sachs, Parisi achieved or surpassed each of these benclunarks. Parisi also consistently generated strong returns on both "long" investments and more difficult "shorf' investments. She was one of the few people in her group at Goldman Sachs who generated profits on such "short" investments,
107. Despite her objective record of superior perfonnance, Goldman Sachs paid her less than similarly situated men throughout her career at Goldman Sachs. For example, a male employee who began at Goldman Sachs around the same time as Parisi experienced the same growth in assets under management as Parisi - from approximately 54 billion in 2001 to bet\veen $40 and $50 billion in 2007. This similarly situated man, however, received compensation much I Chen-Oster's attorneys received a copy of her Notice of Right to Sue from the EEOC on June 18, 2010.
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higher than Parisi. From 2001 to 2007, hIs compensation doubled. In contrast, Parisi"s compensation dropped 60% from 2005 to 2007 despite her continued high performance and similar assets under management. Other male employees with whom ParisI worked also rceeivcd larger increases in their compensation than Parisi did.
l08. When P311si asked her superiors why Goldman Sachs had lowercd her compensation, her supervIsing Partner told her that while her objective pCrfOlTIlanCe numbers were good, the Small Cap Group of \vhich she \vas a membcr did not outperfc)!TIl. However, the othcr two senior members of her team, both men, did not suffer any decline in compensation. In fact, they both received an increase in compensation. Parisi's supcrvising Partner also stated that Goldman lowered her compensation because her 360-degree revie\v scores had declined. After hearing this, Parisi spokc to her colleagues, all of whom confirmed that they had not had any negative experiences with her.
109. During Parisi"s entire tenure as a Goldman Sachs Managing Director, similarly situated male Managing Directors received significantly higher increases in total compensation than her.
110. In 2006, Parisi requested a relocation to Atlanta so that she could be closer to hcr fiance and his school-age children. Goldman Sachs readily approved her request. In or around March 2006, she moved to Atlanta, paying her own relocation expenses, which is not typical for employees being transferred to other offices. Follmving her move, Parisi continued to be a top performer at Goldman Sachs.
Ill. While Parisi had previously received uniformly positive reviews, Goldman Sachs began evaluating her harshly in 2006. Goldman Sachs danned that Parisi's support staff had negative experiences with her. When Parisi approached her support staff, analysts, and the head trader to inquire about these purported negative experiences, however, they refuted Goldman
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Sachs" claims and confirmcd that none of them had had any negative experiences with her. 112" In 2006, Parisi" s supervising Partner informed her that Goldman Sachs intended
to take retail industry stock investments away Ii-om her. The Partner did not give Parisi a reason for taking away these investments. When Parisi"s colleagues leamed about these plans, they expressed shock. Several of them praised her as one of the best retail stock pickers in the industry. Parisi brought the issue to the attention of the head of her group and pomted out that she had made significant profits for Goldman Sachs in the retail sector. Only then did Goldman Sachs allow her to keep her coverage of the retail sector. Parisi learned from a colleague that her supervising Partner wanted to take her retail Investments away from her because the Partner wanted to give them to a male Vice President who had just joined the Value Group.
113. As Parisi"s work situation became untenable, she approached her supervising Partner III November 2007 and expressed an interest in receiving a separation agreement. She did not receive one. Instead, 10 November 2008, Goldman Sachs terminated Parisi"s employment.
114. On or about January 6, 2010, Parisi filed a charge of gender discrimination and retaliation with the EEOC and the New York State Division of Human Rights. Parisi's charge is attached to this Complamt as Exhibit 2 and is incorporated by reference. Parisi is requesting a Notice of Right to Sue from the EEOC, to which she is entitled. Shanna Orlich
115. Plaintiff Shanna Orlich first began working for Goldman Sachs as a Summer Associate in 2006 while a student in the .TO/MBA program at Columbia University. As a Summer Associate, Orlich did rotations in several trading departments of Goldman. After graduation, Orlich returned to Goldman Sachs in July 2007 and began working as an Associate in the Capital Structure Franchise Trading ("CSFT') Group, a unit within the finn's Fixed
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Income, CUlYeneies, and Commodities ("FICC") Division. 116. During her employment, Goldman Sachs repeatedly denied Orlich business
opportunities, training and mentorship, and other terms and conditions of employment which It made available to similarly situated males. Additionally. throughout Orlich's tenure at the firm, Goldman Sachs consistently reviewed her perfom1ance more harshly than it did similarly perfOITIling males, paid her less in bonuses than it paid similarly situated men, and promoted equally or less qualified mcn instead of her to positions she was qualified to hold,
117. At the time Orlich joined the CSFT group, the group consisted of 12 employees 10 male and 2 female, including herself.
118. In hcr first perfonnancc rcview, in December 2007, Orlich's direct supervisor, a male Managing Director, gave hcr only positive feedback and praise for the work she had done to date,
119. Nonetheless, Goldman Sachs gave Orlich fewer opportunities to become a junior trader than it gave similarly situated males, Although Orlich joined Goldman to be a trader, when she arrived at the CSFT desk, her direct supervisor told her that there was no trading seat avmlable, and that she would have to rotate with tradcrs and serve as a desk analyst, a less desirable position.
120. However, at the same time Goldman Sachs hired Orlich, it also hired a man who had been Orlich's business school classmate. Goldman Sachs' managers often challenged this male classmate to do push-up contests on the trading floor. When he an'ived at Goldman Sachs, Goldman Sachs allowed him to start directly as a trader in the High Yield group.
121. In October 2007, Orlieh's male Managing Director, who was responsible for both the High Yield and CSFT groups, decided to take on ajuniortrading partner 10 CSFT. He offered the position to Orlich's male classmate but not to Orlich, even though she was a member
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of the CSFT desk and Orlich's male classmate was not. 122. Around the same time Orlich \vas hired, Goldman Sachs also hired a male Analyst
directly from college. Even though the new Analyst v...as Junior to her. Goldman Sachs allowed him to begin working as a trader in the CSFT group Immediately.
123. In December 2007, Orlich complained to her dIrect supervisor that she had not been put in a trading seat. She pointed out to him that her male classmate and the new Analyst were already trading. When Orlich pressed him for a reason why she had not bccn put in a trading seat, he replied that she did not have enough experience in trading. Hmvever, Orlich's male classmate, like her, did not have any trading experiencc prior to his summcr intcrnship at Goldman in 2006. Likewise, the new Analyst also did not have any trading experience prior to his summer internship at Goldman in 2006. Nevertheless, Goldman Sachs readily plaecd her DNO male colleagues in trading positions, despite their lack of experience.
124. As a desk analyst, Orlich essentially had no defined role and had to work on whatever assignments her superiors asked her to do. While her male classmate and the male Analyst received hands-on traimng and mentorship, Orlich \\'as professionally and socially isolated in her role and did not receive similar levels of SUppOlt, training, or mentorship from her managers.
125. In JaouaI)' 2008, Orlich spoke to a more senior female trader about not having opportunities to trade. After this conversation, her direct supervisor agreed to aSSIgn hcr to a junior trader role with a male trader in CSFT. Days later, her direct supervisor left Goldman Sachs. In April 2008, the male trader to \\'ho111 Orlich had been assigned also left the finn, After the male trader·s departure, Goldman Sachs did not assign Orlich a new trading partner. As a result, she continued to have no opportunities to trade.
126. In July 2008, Orlich reached out to a male Managing Director of Sales to
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complain that she did not have a trading partner and \vas not being given an opportumty 10 trade. The male Managing Director expressed surprise that Orlich had been hired to be a trader and told Orlieh that he did not see her as the "right fiC to be a trader. He also told her that he saw her as an analyst, even though he had told a male colleague of hers that taking the analyst position would not be a good career move. He further told Orlich that because he had not hired her, he did not viev,' her as his responsibility.
127. Orlich then reached out to other members of Goldman Sachs' senior management team. A senior male Partner told Orlich to be a "team player" and to stay in the analyst role.
128. After Orlich's direct supervisor, who was also her male classmate's trading pariner, left Goldman Sachs, Orlich" s male classmate also reached out to the same senior male Partner. When Orlieh"s male classmate sought his help, the senior male Paliner assigned her male classmate to be ajunior trader ",,·ith a highly successful trader in High Yield.
129. Throughout her employment at Goldman Sachs, Orlich worked in an enviromnent in which her colleagues did not treat her and other women \vith the same respect that they gave to their male peers. This was true for work assignments and for social outings \",here relationships behveen managers and employees were cemented.
130. For example, Goldman organized frequent golf outings and other social events to which female employees, including Orlich, were not invited. On one occasion, a senior analyst on the CSFT desk asked every male person in Orlich"s department and in neighboring groups to be his pminer at a golf outing, including indlviduals more junior to Orlieh. However, he did not ask Orlich, the only female on the fixed ineome side of the CSFT trading desk. Orlieh has played golf since childhood and also played varsity golf for her high school team.
131. Orllch also learned of a golf outing attended by approximately 80 Goldman Sachs employees, only one of whom was a female employee. Orlieh was told that she \vas not invited
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because she was too junior, but she latcr learncd that several male analysts straight out of college attended the outing.
132. Orlich's superiors at Goldman Sachs also asked her to perfonn clencal and admmlstrative work that they did not give to male Associates, or even to male Analysts. For example, a senior male analyst on the CSFT desk often gave her demeaning and menial assignments, such as setting up his blackberry, making photocopies, and answering calls from his \vife. Similarly situated male Associates and even more junior male analysts were not asked to perform such work.
133. During Orlich's employment, Goldman Sachs also discnminated against her by reviewmg her perfomlance more negatively than her similarly situated male peers. For example, Orlich worked long hours during her employment and \vas often the first person to anive at the office and the last person to leave. Nevertheless, a senior male analyst to v"hom Orlich reported criticized her for not working hard enough. In mid-2008, Orlich was given performance review scores which penalized her for being given an undefined role as a desk analyst and for not having had opportunities to develop trading expertIse. However, Orlich never received a formal reviev,r ii'om any of her superiors.
134. These dispmities in the business oppOltunities and treatment that Goldman gave to Orlich's male peers but denied to her severely impacted her career growth and compensation at Goldman Sachs. In November 2008, Goldman Sachs terminated Orlich's employment.
135. On or about January 7, 20 la, Orlich filed a charge of gender discrimination and retaliation with the EEOC and the New York State DivisIOn of Human Rights. Orlich's charge is attached to this Complaint as Exhibit 3 and is incorporated by reference. Orlich is requesting a Notice of Right to Sue from the EEOC, to which she is entitled.
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CAUSES OF ACTION FIRST CLAIM FOR RELIEF
Intentional Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.c. §§ 2000e et seq.)
(On Behalf of All Plaintiffs and the Class)
136. Plaintiffs incorporate the preceding paragraphs as alleged above. 137. This Claim is brought by all Representative Plamtiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 138. Goldman Sachs has engaged. in an intentional, company-wide, and systematic policy, pattern, andlor practice of discnmination against its female Associates, Vice Presidents, and Managing Directors. Goldman Sachs has intentionally discriminated against Plaintiffs and the Class in violation of Title VII by, among other things:
(a) Delegating unchecked and standardless discretion to its mostly male managers to allocate business opportunities and professional support, review the performance of their subordinates, determine employees' compensation, and select individuals for promotion;
(b) Fostering a corporate culture which excludes women. undervalues their aptitude and perfonnance, and discounts their professional contributions; and
(c) Failing and refusing to take reasonable and adequate steps to prevent and correct instances of discrimination.
139. These company-wide policies are intended to and do have the effect of: (a) Denying Plaintiffs and Class Members business oPPOltunities because of their gender; (b) Compensating them less because ofthelr gender; (c) Failing to promote them because of their gender; (d) Evaluating their performance more negatively because of their gender;
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(c) Offering them less administrative support, training, and mentorship because of their gender; and
(f) Providing them \1o/ith infenor temlS and conditions of employment because of their gender.
140. The discriminatory acts that constitute Goldman Sachs' pattern and/or practice of discnmlOation have occurred both within and outside the liability period in this case.
141. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above, Plamtiffs and the Class have suffered damages includmg, but not limited to, lost past and future income. compensation, and benefits.
142. The foregomg conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by 42 U.S.c. §~ 2000e el seq.
143. Plaintiffs request relief as hereinafter described. SECOND CLAIM FOR RELIEF Disparate Impact Discrimination
(Title VII oftbe Ch'il Rights Act of 1964, 42 U.S.c. §§ 2000e et seq.) (On Behalf of All Plaintitls and the Class)
144. Plamtiffs incorporate the preceding paragraphs as alleged above. 145. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 146. Goldman Sachs' delegation of unchecked and standardless discretion to its ovenvhe1mmgly male managers to distribute business opportunities, detennine levels of professional support. evaluate employee perfomlance, set compensation, and select individuals for promotion, and detennme other terms and conditions of employment have an adverse impact on female Associates, Vice Presidents, and Managmg Directors in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be
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justified by business necessity, less discriminatory alternatives eXIst and would equally serve any alleged necessity.
147. Goldman Sachs' company-wide policies, patterns, and/or practices of detcnnining compensation and eligibility for promotion based on subjective critena applied by predominantly male reviewers also have an adverse impact on female Associates, Vice Presidents, and Managing Directors in viOlation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and \vould equally serve any alleged necessity.
148. Goldman Sachs has maintained these discriminatory policies, patterns, andior practices both within and outside the liability period in this case.
149. As a direct result of Goldman Sachs' dlscriminatory policies and/or practices as described above, Plamtiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
150. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of 42 U.S.c. §§ 2000e et seq.
151. Piaintitls request relief as hereinafter described. THIRD CLAIM FOR RELiEF Intentional Discrimination
(NYCHRL, New York City Administrative Code § 8~107 et seq.) (On Behalf of All Plaintiffs and the Class)
152. Plaintiffs incorporate the preceding paragraphs as alleged above. 153. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. 154. Goldman Sachs has engaged in an intentional, company-wide. and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents,
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and Managing Directors. Goldman Sachs has mtentionally discriminated against Plaintiffs and the Class in violation of the NYCHRL by, among other things:
(a) Delegatmg unchecked and standardless discretion to its mostly male managers to allocate business opportunities and professional support, review the performance of their subordinates, determine employees' compensation. and select individuals tor promotion;
(b) Fostering a corporate culture \vhich excludes \vomen, undervalues their aptitude and performance, and discounts their professional contributions; and
(c) Failing and refusing to take reasonable and adequate steps to prevent and correct instances of discrimination.
155. These company-wide policies are intended to and do have the effect of: (a) Denying Plaintiffs and Class Members busmess opportunities because of their gender; (b) Compensating them less because of their gender; (c) Failing to promote them because of their gcnder; Cd) Evaluating theIr perfOlmance more negatively because of their gcnder; (e) Offering them less admlOistrative support. training, and mentorship because of their gender; and (f) Providing them \vith inferior terms and conditions of employment becausc of their gender.
156. The discriminatory acts that constitute Goldman Sachs' pattern and/or practice of discrimination has OCCUlTed both wit1un and outside the liability period in this casco
157. Goldman Sachs has set andlor maintained thesc discriminatory policics, pattcrns, and/or practices during the liability period within the City of New York, and the discnminatory policies, pattems, and/or practices have had a discriminatory impact on female employees of Goldman Sachs Within the City of New York.
158. As a direct result of Goldman Sachs' discriminatory policies andlor practices as
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described above. Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
159. The foregoing conduct constitutes illegal, mtentional dIscrimination prohibited by the Administrative Code of the City of New York § 8~107 el seq_
160. Plaintiffs request relief as hereinafter described. FOURTH CLAIM FOR RELIEF Disparate Impact Discrimination
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of All Plaintiffs and the Class)
161. Plaintiffs incorporate the preceding paragraphs as alleged above. 162. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. 163. Goldman Sachs' delegation of unchecked and standardless discretion to its ovenvhelmingly male managers to distribute busmess opportunities, determine levels of professional support, evaluate employee performance, set compensation, and select individuals for promotion, and determine other terms and conditions of employment have an adverse impact on female ASSOCIates, Vice PresJ(!ents, and Managing Directors in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 164. Goldman Sachs' company-wide policies, patterns, andior practices of detennining compensation and eligibility for promotion based on subjective criteria applied by predominantly male reviewers also have an adverse impact on female Associates, Vice Presidents, and Managing Directors in violation of Title VII and are not, and cannot be, justified by business necessity. Even jf such system andior policies could be justified by business necessity, less
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discrimmatory alternatives exist and \vould equally serve any alleged necessity. 165. Goldman Sachs has maintained these discriminatOlY policies, patterns, and/or
practices both \vithin and outside the liability penod in this case. 166. Goldman Sachs has set and/or maintained these discrimmatory policies, patterns,
andior practices during the liability period within the City of New York and the discriminatory policies, patterns, and/or practices have had a discriminatOlY impact on female employees of Goldman Sachs \vithin the City of New York.
167. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above. Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
168. The foregoing conduct constitutes illegal discrimination prohibited by the Administrative Code of the City of Ne\\' York § 8-107 el seq.
169. Plaintiffs request relief as hereinafter described. FIFTH CLAIM FOR RELiEF Retaliation
(Title VII of the Civil Rights Act of 1964, 42 U.S.c. §§ 2000e et seq.) (On Behalf of All Plaintiffs IlldividualJv)
170. Plaintiffs incorporate the preceding paragraphs as alleged above. 171. This Claim is brought by Plaintiffs Chen-Oster, Parisi, and Orilch individually. PJamtitls have timely filed charges with the EEOC alleging retaliation claims and have thus exhausted their administrative remedies. 172. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and NYSDHR complaining of Goldman Sachs' discriminatory policies and practices. 173. Goldman Sachs took adverse actions against the Plaintiffs with the purpose of
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retaliating against them because of their participation in protected activities, and Plaintiffs sutTered damages as a result of that conduct.
174, Plaintiffs request relief as hereinafter described. SIXTH CLAIM FOR RELIEF Retaliation
(NYCHRL, NNew York City Administrative Code § 88-107 el seq.) (On Behalf of AAll Plaintiffs InddividuaIlv}
175. Plaintiffs incorporate the preceding paragraphs as alleged above. 176. This Claim is brought by Plaintiffs Chen-Oster, Parisi, and Orlich individually. 177. Plaintiffs engaged in protected activIties, including making internal complaints of unlawful discrimmation and filing charges with the EEOC and NYSDHR complaining of Goldman Sachs' discriminatory policies and practices. 178, Goldman Sachs took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct. 179. Plaintiffs request relief as hereinafter described.
SEVENTH CLAIM FOR RELIEF Pregnancy Discrimination
(Title VII of the Civil Rights Act of 1964, 42 V.S.C §§ 2000e el ~·eq., as amended by the Pregnancy Discrimination Act, 42 V.S.C § 2000e(k» (On Behalf of Plaintiff Chen-Oster lndividuallv)
180. Plaintiff Chen-Oster incorporates the preceding paragraphs as alleged above. 181. This Claim is brought by Plaintiff Chen-Oster individually. 182. Goldman Sachs has discriminated against Chen-Oster in the terms and conditions of their employmcnt on the basIs of their status as pregnant women and as women with children, in violation ofTitic VII of the Civil Rights Act of 1964, 42 U.S.c. § 2000e et seq., specifically the Pregnancy Discrimination Act, 42 U.S.c. § 2000e(k).
38

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 39 of 68
183. Goldman Sachs knC\V that lts actions constituted unlawful discrimination and showed willful and/or reckless disregard for Chen-Oster's statutorily protected rights.
184. As a direct result of Goldman Sachs' discriminatory policies andlor practices as described above, Chen-Oster has suffcred damages including, but not limited to, lost past and future income, compensation, and benefits.
185. Plaintiff Chen-Oster requests relief as hereinafter described. EIGHTH CLAIM FOR RELIEF Pregnancy Discrimination
(NYCHRL, Ne,,' York City Administrative Code § 8-107 et seq.) (On Behalf of Plaintiff Chen-Oster Individually)
186. Plaintiff Chen-Oster incorporate the preccding paragraphs as alleged above. 187. This Claim is brought by Plaintiff Chen-Oster individually. 188. Goldman Sachs has discriminated against Chen-Oster in the terms and conditions of thcir employment on the basis of thcir status as pregnant women and as women with children, in violation of the Administrative Code of the City of New York § 8-107 el seq. 189. Goldman Sachs knew that its actions constituted unlawful discrimination and showed willful andlor reckless disregard for Chen-Oster's statutorily protected rights. 190. Goldman Sachs cngaged in the discriminatOlY conduct alleged above during the liability period within the City of New Yark. 191. As a direct result of Goldman Sachs' discnminatory policles andlor practiccs as described above, Chen-Oster has suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 192. Plaintiff Chen-Oster requests relief as hereinafter described.
ALLEGATIONS REGARDING RELIEF 193. Plaintiffs and the Classes they seek to represent have no plain, adequate, or
39

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 40 of 68
complete remedy at law to redress the wrongs alleged herein, and the injunctive rehefthey seck in this action is the only means of securing complete and adequate relief. Plaintiffs and the Classes they seek to represent are now suffering, and will continue to suffer, llTeparable injury from Goldman Sachs' discriminatory acts and omisslOns.
194. Goldman Sachs' actions have caused and continue to cause Plaintiffs and all Class Members substantial losses in earnings and other employment benefits.
195. In addition, Plamtiffs and Class Members suffer and continue to suffer emotional distress, humiliation, embarrassment and anguish, all to their damage in an amount according to proof.
196. Goldman Sachs perfonned the acts herein alleged with malice or reckless indifference. Plaintiffs and Class Members are thus entitled to recover punitive damages in an amount according to proof.
PRAYER FOR RELIEF 197. WHEREFORE, Plaintiffs and the Class pray for relief as fol10\\'"s:
(a) Certification of the case as a class action on behalf of the proposed Classes:
(b) Designation of Representative PlaintitTs H. Cristina Chen-Oster, Lisa Parisi, and Shanna Orlich as representatives of the Classes;
(c) Designation of Representative Plaintiffs' counsel of record as Class Counsel:
(d) A declaratory judgment that the practices complained of herein are unla\vful and violate 42 U.s.c. §§ 2000e, et seq.; and the Administrative Code ofthe City of New York § 8-107 el seq.;
(e) A preliminmy and pennanent mjunction against Goldman Sachs and its officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in policies, patterns, andior practices that discriminate against Plaintiffs or the Class because of their gender or participation m this lawsuit;
40

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 41 of 68
(f) An order that Goldman Sachs institute and carry out policIes, practices, and programs that provide equal employment opportunities for all employees regardless of gender, and that it eradicate the effects of their past and present unlawful employment practices;
(g) An order requmng Goldman Sachs to develop and institute objective standards for assIgning job opportunities, detennining of pay, and making promotion decIsions;
(h) An order appointing a monitor to ensure that Goldman Sachs complies ",rith the injunction provisions of any decree that the Court orders;
(1) An order retaining junsdlction over this action to ensure that Goldman Sachs complies with such a decree;
U) An order restoring Plaintiffs and Class Members to their rightful positions at Goldman Sachs, or m lieu of reinstatements, an order for front pay benefits;
(k) Back pay (including mterest and benefits) for the Representative Plaintiffs and Class Members;
(I) All damages sustained as a result of Goldman Sachs' conduct, including damages for emotional distress, humiliation, embanassment, and anguish, according to proof;
(m) Exemplary and punitive damages in an amount commensurate with Goldman Sachs' ability to pay and to deter future conduct;
(n) Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law;
(0) Pre-judgment and post-judgment interest, as provided by law; and (p) Such other and further legal and equitable relief as this Court deems
necessary, just, and proper. JURY DEMAND
198. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a tnal by jury in this action.
41

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 42 of 68

Dated: ~e\y Yark, New York September 15, 2010

OUITLN & GOLDEN UP A,dam T. Klein Caw E. Greene 1cnnifer L. Liu 3 Park A venue, 29th Floor New York, New York 10016 Telephone: (212) 245-1 000 Facsimile: (212) 977-4005
LIEFF, CAB RASER, HEIMANtJ & BERNSTEIN, LTP
Kelly M. Dermody (pro hac vice forthcoming) Anne R. Shaver (pro hac vice forthcoming) Heather H. Wong (pro hac vice forthcoming) 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone· (415) 956-1000 Faesimil(;: (415) 956-1008
Allorneysfbr Plaintiffs and the P1I/alive Class

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 43 of 68
EXHIBIT 1

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 44 of 68

Lll1lAAII<<.'"u'~~~ OF DISCRIMINATION
This form is ilfiect~d by th" Privacy Act oi 1974; xe Fnvacy Act Statement ""fore
completing tlllS form.

FEPA
EEOC

---~---~

~-~---~

. . ._ . _ - -

, '
H. Cristina Chen-Oster
~--~~---

Sial,; ur loced Agency, if ally

CHARGE· . ~ _~_~_~_ ~~_~___ ,a _nandd EEEEOOCC

NA:\1E OF THE EMPLOYER, LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME (If more than one lis! below.)

NANIF.
Goldman, Sachs & Co.

STREET ADDRESS

CITY, STATE. AND ZIP CODE

1 New York Plaza, 50th FL New York;, NY 10004

212-.902-·1000
COUNTY
New York

STREET ADDRESS

I COUNTY

CAUSE OF D1SCRI~ll:-lATI0l'i BASED 0"< (ChCCkTprOPfT" box(c.})

DRACE D CJ DDACE L--1 RACE

COLOR L:.e-J SEX L_--, RElIGION

ACE

EARLIEST (adealepa)

GJ I~EL\LIi\TION DD

I NATIONAL D DD DllSSAB BIJUUnnDDooTTH HEER R
ORIGIN

extra h· ( (s)):

PLACE LATEST (ALL)
March 10, 2005

Please see attached statement.

'l", '~-' 'ad~;Se- --'~4~~~~~~~~~:E~1~':':":R:"'~.~",:"~,~, ,~."~"~': : j1 ;tlhC,eC,a~g=,ee""ntn',lc"ccik':k;i-":s,;"c,,i"cf,",c"I,,"cc,,·.hCca,'"nC<'g1doe"J-=m"""~,"y"'"c",a,'"dl,,,d"'"r""e",·"s,ts"l,c,o·"Er'E·[E'cE·'kOOp'·CCh~l'-)",l,'"\dc,",·',nc,"u",,m,~·s,tl·oc',,,C'",l,,"',,J'",nc,"dJ,,"·'ooIccw=",l,d,·lC,lCACgA;o'go'';p,-,e,,-r~,a-.-t'"e'--mfmu;;lljl,.yTTW--'];;;;~IIlii

'ad~;Set~hleCmm

--

;j-.;~R Y

-

Local Rcquir~m~nts) .

ill the lj"OCL'SSing of mrnycharge in accordana with their p]"{,lcc~~dduurree,

I ,wCJr 0r

. that I have • d the ah(\ e charge and that it j, (rue to the best

of my knowledge. \nfonnat[on an

:~": 1';;:'2(~~&L~""'_~

SlJGG:-".-JIATURE OF CO)l.IJPPLLAAII:-".-JlAA:-.l1

m D'''11

Charging Party (SWtgllllaatar<')

Sl'lI3SCRlBED M<D SWOR.,\ TO BEfORE METHEI]S DATE (Day. JlW'ltli, alldyear)

EOCFO

MELANIE L CRISTOL
Notary Pub!li(;, State of New York No.01CR61i9348
Qualified in New York County , Commission Expires November 29, 20Dl

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 45 of 68
The particulars arc:
I. My name is H. Cristina Chen-Oster. 1 was born on ~'larch 29, 1971.
2. From March 3, 1997 to March 10,2005, I \\'as an employee in the Equities Division of Goldman, Sachs & Co. {"Goldman"). 1 worked as a senior international converlible bond salesperson from March 1997 to September 2002 and as a senior synthetics conveliible marketer from September 2002 to July 2004. I was promoted to Vice President in June 1997; that was my only promotion at Goldman.
3. Goldman discriminated against me on the basis of my gender with respect to pay, promotion, and other terms and conditions of employment; this included discrimination based on my pregnancy. Goldman retaliated against me when I complained about this discrimination.
4. This pattern of discrimination and retaliation began after a Goldman employee - a senior salesperson in my group and a friend of my manager at the time assaulted me in the fall of 1997.
5. The discrimination, harassment and retahation mcluded, but was not limited to, the following:
(a) Throughout my career at Goldman, I was paid less than similarly-situated men, I was initially not given any fOimal evaluation unlike similarlysituated men and was later evaluated more harshly than similarly-situated men, I was treated less favorably regarding promotions than similarlysituated men, and I was given less favorable account assignments than similarly-situated men.
(b) When I reported the sexual assault in May 1999 to my manager, the Partner in charge of the global convertible group, he advised me not to pursue the matter with Employee Relations.
(c) After I eventually disclosed the sexual assault to Human Resources, my performance evaluators and evaluations were manipulated so that I received artificially negative reviews, and my seat assignment \vas such that I was physically isolated from members of my desk and .;ut off from the flow of infonnation.
(d) I took maternity leaves [TOm about March 24, 2003 to about July 23,2003 and from about July 6, 2004 to about November 5, 2004. After my return in about November 2004, Goldman provided me with no meaningful responsibilities and I was given no accounts -- not even those that I had handled before my maternity leave. In addition, my seat was moved to a

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 46 of 68
location among the administrative assistants. Upon information and belief, no male Vice President level professional has ever been assigned a seat among a group of administrative staff in the Equities Division. The group of administrative staff was all female. (e) On about February 18, 2005, after having spent three months \vithout any substantive assignments or position, 1 was given no choice but to take a much lesser-valued job in U.S. Research Sales. While I was told 1 could continue to seek another position within Goldman on my own time, I was simultaneously told that there were no other positions available for me. As a result, I involuntarily accepted the position. Over the next few weeks, I was given basic account assignments that were far less favorable than accounts given to similarly-situated men. 6. On March 10, 2005, I resigned from Goldman because of the discrimination and retaliation. 7. I seek compensation fTOm Goldman Sachs for the discrimination and retaliation, including compensation for lost earnings, pain and suffering, and attorney's fees. 8. I file this charge on behalf of myself and other similarly-situated women at Goldman Sachs.
2

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 47 of 68

Supplement of EEOC Charge of
H. Cristina Chen-Oster

STATE OF NEW YORK

)

) ss:

COUNTY OF NEW YORK

)

H. Cristina Chen-Oster, being duly swam, deposes and says:

1. My name is Cristina Chen-Oster. I was bom on March 29,1971.

2. From March 3, 1997 to March 10,2005, I \vas an employee in the Equities Division of Goldman, Sachs & Co. ("Goldman"). I worked as a senior international convertible bond salesperson from March 1997 to September 2002 and as a senior synthetics convertible marketer from September 2002 to July 2004. I was promoted to Vice President in June 1997; that was my only promotion at Goldman.

3. Goldman dIscriminated against me on the basis of my gender throughout my employment with respect to pay, promotion, and other tenns and conditions of employment; this included discrimination based on my pregnancy. Goldman also retaliated against me because I complained of the discrimination.

4. ~ of discrimmation and retaliation began after a

employee,_

~ sexually assaulted me in the fall of 1997.

a senior

salesperson on the U.S. conveltiblc bond desk and a close friend afmy manager at the

time,

, who was also the most senior Managing Director on the convertible

bond desk. Mr. _ remained my manager until about August 1999. Thcreafter, Mr.

_continued to be involved in decisions and discussions surrounding my perfonnance

evaluations, supervision, compensation and promotion.

5. \Vhile Mr. _routinely provided my male peers infonnal career support and an annual perfonnance evaluation, Mr. _gave me only minimal, infomlal fcedback in 1997 and 1998. All feedback from Mr. _ and my peers during this period was posi tive and included phrases from Mr._such as "best hire I ever made" in about July 1997, before the sexual assault.

6. In the months following Mr. _ s assault, Mr._took away my fastest growing account base (specifically, convertible bond arbitrage accounts) and transferred it to Goldman's London desk without any notice or explanation. Although Mr. _ h a d the same account base and shared responsibility with me for some of these accounts, Mr. _pennitted Mr. _ t o continue covering all of his arbitrage accounts, including those that I had been directed to transfer to London coverage. This change severely restricted my professional growth but gave Mr.

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 48 of 68

_an opportunity to advance his career morc quickly. For instance, from 1997

to 2004, my compensation increased by 27%, Upon information and belief, during this

same period, Mr.

s compensation increased by more than 400°/'0. He was

promoted to Vice President in 1998 (one year after my promotion to Vice President),

Managing Director in 2000, and Partner in 2002.

7. After the 1997 assault, I was forced to deal with Mr.

s regular and unchecked

disparagement of my contributions to the business. Vvhenever I spoke at group meetings,

Mr.

would hold side conversations and laugh with another salesperson on our

desk,

) who was his friend and who became my boss in 2001. I was

frequently one of a fev., women - if not the only woman - at these meetings of twenty to

thirty people. :vIr.

and Mr.

did not engage in such behavior when

men spoke during the meetings. Their conduct towards me undermined my credibility

and .';ignalled to my peer.'; that my views were not important.

S. At the end of 1997, I was paid $375,000, which was significantly less than similarly-

situated men, including those I had out-perfonned. At the time, I was responsible for all

intemational convertible bond sales to U.S. accounts. Under my direction, this business

generated $15.3 million in gross sales credits in 1997. Upon information and beliet: Mr.

's compensation for 1997 was approximately 50% more than mine, even though

Mr.

had generated fewer sales credits than I had and had produced only $7

million in gross sales credits the year before. Goldman continued to pay me less than my

male counterparts in the ensuing years, notwithstanding my comparable or superior

performance. See ~~11, 19, 25, 37,47, 49, and 53.

9. In late 1997 and early 1998, I organized a conference that was held in February 1998 on "Emerging ::v1arkets" and which drew more than 200 attendees, including Goldman employees, corporate clients, and investors. I was highly praised for my initiative and success with the conference, and no other convertible bond salesperson undertook such efforts again until several years later. Nevertheless, I received no additional job responsibilities, no significant monetary remuneration, and no promotion in 1998.

iii•••. to. In early 1998, Mr._asked me to tram a newly hired male Associate, • • • • to market European convertible bonds to U.S. accounts. This area was widely

expected to be the largest and fastest-growing regional segment of the international

convertible bond business due to the launch of the Buro currency in January 1999.

Despite my seniority, seven-years of finance experience, and leadership in the

liiiillliiilas international convertible bond business in the U.S., Mr. _directed me to treat Mr.

a "partner." Mr.

me that I would be evaluated and

rewarded by how well I trained

whose background '''ias in management

consulting and who had never before worked in finance. I trained and taught Mr.

_ w e l l , and we as a team generated $17.6 million in gross sales credits in 1998.

11. Despite my various accomplishments in 1998, my compensation for the year was

$475,000, significantly

that of similarly-situated men.

infonnation and

belief, Goldman paid Mr.

least 50% more, despite Mr.

record of

2

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 49 of 68

fewer gross sales credits. Mr. _ a l s o did not train anyone that year, as he was still
developing his knowledge of the u.s. convertible market and his client relationships.

12. In May 1999, I had several conversations with Mr._about the possibility of transferring to Goldman's Menlo Park office. By then, I was frustrated by how my managers and predominantly male peers undervalued my work, even though I 'vas a high producer on our sales desk. I believed I \vould have greater opportunities for career advancement and compensation in the Menlo Park office in a private \vealth management role, \vhere I would be compensated by a defined commission rate instead of subjective salary plus bonus scheme in my institutional sales job.

13. Initially, Mr. _said he was surprised 'my request to transfer and did not support my

move. On about May 26, 1999, !'AI.

me to stay at least until February 2000.

During this conversation, I told

MI.

had sexually assaulted me

in the fall of 1997. To my amazement, :\1r. _said that Mr.

had already

told him about the assault, though not the victim's identity. Mr. _said that now that I

had rep011ed the attack, he was obligated to infoml Employee Relations abOllt the assault.

However, at the same time, Mr. _told me not to pursue an internal investigation by

Goldman into thc assault and strongly recommended that I seek outside counseling

instead.

14. After I infomled Mr. _ofMr.

's assault, Mr. _stopped insisting that I

stay in New York and, even though he knew I had not finalized any transfer, began aeting

as though I was on my way out. By late June 1999, he began urging Mr.

, who

previously had expressed interest in transferring with me to Menlo Park, to stay in New

York and continue working with the convertible bonds group. Although I was still the

senior salesperson in

of the international convertible bond sales business to u.s.

outright accounts and

onty a second-year Associate, Mr. _also

began talking to Mr.

about replacing me as the head of this business and about

recruiting additional support for Mr.

15. I \vas apprehensive about trusting Mr. _after he told me that he had known about Mr.
~• • • •'s assault for months and after he advised me not to pursue the matter with
Employee Relations. Hmvever, NfL _ w a s one of the most senior Partners at
Goldman, and r was hesitant to go against his vvord and reputation, especialJy since the
perpctrator was his friend. In addition, from 1997 until 2002, Mr. _was responsible for detelmining compensation levels for everyone on the global convertible bond team,
including minc. Mr. _retired in November 2002, but continued to be involved with
Goldman as an advisor.

16. When I met with Employee Relations in July 1999 to discuss M r . _ s assault, I asked several times whether Mr. _would be told what I said if! mentioned his name. When the Employee Relations representative indicated yes, I stated only that Mr. had engaged in very inappropriate behavior that would have led to rape, had I not fought him off.

3

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 50 of 68

17. In the weeks after my meeting with Employee Relations,

Mr.

_ a s my manager. (Mr.

was a Managing Director in London who reported to

M r . _ ) In addition. a significant portion of my job responsibilities \vas gradually

siphoned away; I was no longer responsible for determining new Asian deal allocations

in the U.S. nor for giving feedback on new deal pricing prior to new deal announcements,

tasks I regularly undertook before I had reponed the sexual assault.

18. In about August 1999, two and a half years after my start at Goldman, I received my first perfonnance evaluation. The evaluation was delivered by Mr. _ and M r . _ a Managing Director in charge of U.S. convertible bond trading. My peer reyiew score summary was 3.83 out of a maximum score of 5.00. I was told that although my score was within the average range, it would likely have been higher had I not been reviewed by European employees, \\'ho culturally tend to give lower scores.

19. At the end of 1999, 1 was paid $650,000. Upon inforrnation and belief, my male

colleagues, Mr.

and Mr.

) each received at least 50~/o more than I did

in 1999. Although their sales credits for U.S. convertible sales may have been higher

than mine, this difference was partly the result ofMr. _removing higher yield

accounts from my covera"gie,.biiuiit.nio.t making a comparable change in the accounts covered by Mr._and Mr."

20. In early 2000, Mr. _ rearranged our scat assignments. Seat assignments were changed infrequently and signified a person's rank on the desk. Seats closest to the desk manager and in the center of the group were most coveted, since they enabled an individual to build relationships with senior managers, gave individuals direct access to information, and allowed greater involvement in the overall business.

21. With the ncw seating arrangement in 2000, Mr. _moved me to the seat farthest from

him among the convertible bond salespeople, even though I co~covcred accounts with

other salespeople at our desk and it would have made sense to place me closer to the

center. In contrast, Mr. _ assigned Mr.

to a seat near him and placed Mr,

_

who was still an Associate and my subordinate, near the center of the seating

scheme.

22. While Mr. _and others on the desk helped Mr.

advance at Goldman, they

restIicted my supervisory responsibilities over him considerably after I had trained him

and introduced him to my clients. I was excluded from co-delivering performance

reviews and annual compensation numbers, even though senior professionals like myself

typically had this role with respect to associates they had trained. I was further excluded

from assessing Mr.

's candidacy for Financial Analyst Training Program

Manager, despite my substantive knowledge of his abilities and the significant addition to

Mr.

s job responsibilities this position entailed.

23. In about September 2000, Mr._and Mr.

delivered my performance review. I

received a score of 3.53 out of 5.0, and 9 out of 12 reviewers ranked me among the top

50% of my peers. In spite of my performance, I was not promoted in 2000. In contrast,

4

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 51 of 68

two of my male peers, Mr. • • •1and Mr.• • • • •,' were promoted to Managing
Director in about October 2000.

24. My supervisory responsibilities \-vere also undercut with regard to my Financial Analyst,

_

2000, one day before my scheduled return from my

honeymoon, Mr.

and Mr.

met \vith Ms. • to deliver her performance

review \vithout my input. I raised the issue of my exclusion with Mr. _ but he

dismissed my complaint, simply stating that Mr.

probably had his reasons for

doing so and could do as he wished as Managing Director.

25, ~;~ • • • •II:for 2000 was $800,000. Upon infOimation and belief, Mr. • • • and

f\.

received at least 100% more.

26. In January 2001, I spoke to Mr. _and Mr. _ a b o u t opportunities for career

advancement at Goldman. I stated !hat my assigned area of business, Southeast Asian

and Japanese convertible bonds, was of low priority in the overall business strategy of the

convertible bond desk since Goldman's emphasis was on U.S. and European convertible

bond sales. In addition, my fastest growing accounts, the convertible arbitrage accounts,

had been taken away from me despite their significant grmvth while under

ill iaisk.eiid.specificaily what I needed to do to advance my career, but gave me only vague responses. Neither Mr. _nor Mr.

any

tangible action to address my concerns.

27. I regularly raised the issues of inequitable treatment towards women on the convertible bond desk. On about March 9, 2001, J spoke again to Mr. _ a b o u t the poor treatment of women, including myself, in the convertible bonds sales group. I informed him that several women who worked in the London convcl1iblcs desk were uncomfortable with the sexist banter that regularly occurred in the workplace. I also reported to Mr._ a Managing Director, had repeatedly brushed up against me, stood within an uncomfortably close range, and had expressed personal interest in dating mc. l\.1r._thanked me for raising these issues with him, but took no discernible action, and the work environment did not changc after this conversation.

28. On about March 15, 2001, Mr. _ announced that Mr.

was moving to a ne\v

position and

by Mr.

I would now be reporting directly to Mr.

_,

friend and my former peer who I had outperformed in sales

when we had begun our careers at Goldman. Mr. _also announced that Mr.

would be the sale head of U.S. convertible bond sales, effectively making

him my indirect superv·isor. By this time, Mr. _had known about Mr.

s

assault on me for nearly t\vo years. This reporting line created a negative and hostile

work environment, in which I would face extreme difficulty in advancing at the firm.

29. Once Mr. _

became my manager, he continued to undennine me in front of others,

just as he and Mr.

had when we were peers. From 2001 through 2002, as my

direct manager, Mr.

regularly denigrated my performance during our London

5

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 52 of 68

convertible bond sales desk meetings when I was not present, regardless of my actual perfonnance lc\'els.

30. In Juiy 2001, I completed a market analysis of the business area for which I was

responsible. The analysis indicated that this area was very small and had little prospect

for growth. I shared these conclusions with Mr.

in yet another attempt to obtain

more promising market oppOltunitics. However, Mr.

only directed me to

continue \yorking on my existing accounts.

31. I also shared the results with Mr. _ asking him to transfer me to a different position.

Like Mr.

, Mr. _did not respond to my request.

32. Despite my clear indication to Mr. _ and Mr.

that I sought greater work

responsibilities and avenues for career gro\'.1h, 1 was not given such opportunities when

they arose, even though 1 was qualified. In contrast, between 1999 and 2002, my

""",,'l>'~"l'p01l1to<l at least three men to the position of Financial Analyst Manager-

_ , a n d _ - despite my credentials, avowed interest in

such work, and positive peer reviews.

33. In the fall of2001,

my annual perfonnance review. My score had

increased from the previous year to 3.63 out of 5.0.

_s 34. About one month later, I met with someone in Employee Relations to discuss another job

opening at Goldman. Among other things, 1 discussed the unfavorable treatment of

women on the convertible bond desk and the fact that Mr. _had directed me not to

encourage Goldman to investigate Mr.

sexual assault on me.

35. VYhile none of my managers had responded affinnatively to my requests for greater

business opportunities at Goldman, a fe,,- weeks after my meeting with Employee

Relations, Mr.

Mr. _assigned Mr.

to a "secret" project that

involved assessing whether high-YIeld, distressed conveliible bonds provided a viable

market opportunity. To complete this project, Mr.

enlisted the assistance of Ms.

• without consulting me, even though she was the Financial Analyst assigned to

support my team. Furthennore, Mr.

told Ms. _ specifically that she was not to

discuss this project \\lith me, even though she reported to me. As a result, I was the only

member of our team who did not know ahout this project.

36. The results of this secret analYSIS gave Mr.

the chance to ,"vork with high-yield,

distressed convertible bonds, tapping a market potential of$20 million, even though I

was clearly more qualified for such work. 1had three years of relevant work experience

fix~,ir,comcsales, \vhile Mr.

had none. Most of the business contacts Mr.

in this field were those that I had given him during his training. When I

asked Mr.

why I was not offered this opportunity in light of my superior

qualifications and experience, Mr. _stated only that Mr.

was somehow

better-suited.

6

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 53 of 68

37. In December 200L I was paid $450,000 - a 44% drop from the previous year.

38. In about March 2002, Ms. _transferred to London, leaving me \vithout any dedicated

SUppOIt, unlike my male counterparts. Every salesperson was typically assigned one

Financial Analyst who was responsible for analyzing tradc ideas, tracking trades,

answering client calls, and executing trades. Although my business had doubled from

2001 levels, instead of giving me a new Financial Analyst, Mr.

and_

, head of Global Convertible Bond Trading, allowed only one Sales Assistant to

spend 10% of his time helping me. Sales Assistants were junior to Financial Analysts

and were nonnally involved in more administrative tasks, such as answering phones and

booking trades.

39. Consequently, for the rest of2002, I worked more hours than anyone else on my desk. I

came into the officc nearly every weekend and occasionally arrived alone at 2:00 a.m. to

selJ new international convertible bond deals. In contrast, within about a month of Ms.

• s departure, Mr.

was assigned a new

to support

him in his new convertible bond business. Associates are typically recent business school

graduates and are therefore more senior than Financial Analysts, who generally are recent

college graduates.

40. With Ms. •'s departure, my seat was surrounded by six empty desks, sending the

message that my work was not valued and distancing me from the flow of infonnation

about the convertible bond business. Mr.

and Mr.

did not change my

seat, even after I made repeated requests to be seated closer to the one Sales Assistant

who had bcen permitted to support me (albeit on a limited basis). I was also one of the

few profeSSional women left in convertible bond sales at Goldman offices world-wide.

41. In March 2002, Mr. _presented an overview for U.S. Convertible Sales to the convertible bond desk. I was the only convertible bond salesperson in the U.S. whose name did not appear in the presentation, despite my coverage of U.S. convertible clients for convertible products.

42. Since there were so few women in the convertible bond group, I became involved wllh the Women's Network. In the fall 01'2001. I was asked to co-head the Leadership and Development Committee within the Women's Network in the Equities Division. We organized a full day Women's Leadership Conference held on about May 3, 2002 for a group of female Vice Presidents in the division. My managers, including Me were aware of my work with the Women's Network.

43. In about June 2002,

replaced nearly half of the 15 individuals on my peer

review list who had substantive knowledge of my work, with people who had little

familiarity with me. Almost all of the new reviewers worked in Europe and generally

give lower average scores, as is typical in Europe. Perfonnance reviews were not usually

conducted by individuals who worked in a different geographic location. Thus, by

making these changes, My.

effectively lowered my quantitative performance

review from the previous year. Following this change, I submitted a written complaint to

7

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 54 of 68

ML

On about August 23, 2002, I also spoke to

the Leadership

and Diversity Manager of the Equities Division about

changes to my

review and about the overall discriminatory and hostile work cnviroruncnt towards

women at our desk. I also provided Mr. _ \ v i t h a copy of the complaint I had given

to Mr. • •"

44. Within about one week, Mr.

me to transfer to a senior marketing

position with Synthetic Convertibles and repOlt

who had less seniority

than me as she had been promoted to Vice President two years after me. This marketing

position was a clear demotion from my previous job in both structure and substance.

45. r requested that Ms.

and I co-head the Synthetics Convertibles group together,

since (a) Ms.

was my peer, if not my junior; (b) Ms.

would be out on

maternity leave within the month and the group would need a manager in her absence; (c)

I had significant experience training and managing small groups; and (d) many other

small groups in the Equities Division were managed by two people. However, ML

who was a rising Managing Director in the Equities Division with senior

management aspirations, persuaded me to accept the lesser position and promised to

become my mentor. Though we ostensibly set up monthly lunches to discuss my career,

over the next two and a half years, Mr. _ a n d I met approximately three times for

such talks.

46. In about September 2002, Mr. _ a n d Mr.

delivered my annual

performance review. I received a rating of3.4 out of 5.0 overall, which was the same as

the overall team mean. r'vlr.

and Mr. _

emphasized that this quantitative

score was lower than would be expected, given the more positive comments J received in

the qualitative part of my review.

47. ]n December 2002, 1 was paid the same as the year before ($450,000), even though I had

dramatically increased my business from ZOOl levels in spite of having lost the full-time

support of two professionals. Upon information and belief, Mr. _performed

worse yet was paid significantly more than me. I generated $9.5 million in sales credits

from Jan 2002 through August 2002 ($12.7 million annualized for the fiscal year) when I

transferred to synthetic convertibles, largely on my own, compared to Mr. _

who

generated, as a team together with Mr.

, $11.75 million in sales credits for the

2002 fiscal year.

48. I took maternity leave from about March 24, 2003 to about July 23,2003. After my

return in about August 2003, Ms.

delivered my performance review. I received a

score of 3.88 out of 5.0.

49. In December 2003, I was paid $475,000. Upon infonnation and belief, Mr. _ __ received substantially greater compensation than me for 2003.

50. I took maternity leave from about July 6, 2004 to about November 5, 2004. After my return in about November 2004, Goldman provided me with no meaningful

8

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 55 of 68

responsibilities or accounts. rwas not even permitted to cover the accounts I had handled

before my maternity leave, even though ;vtr.

had stated numerOus times that I

had successfully grown the synthetic convertible business and perfonned well with those

accounts.

51. In addition, one month before I returned from maternity leave, my scat was moved to a location among the administrative assistants, and I remained seated there until about December 2004. I was the only Vice President-level professional at that time who was assigned a seat among support staff. Upon information and belief: no male Vice President-level professional 10 the Equities Division has ever been made to sit among administrative staff. The group of administrative staff was a11 female.

52. Ms.

my temporary manager, delivered my perionnance

review on ahout October 29, 2004. My score was 3.92 out of 5.0, and I was told that my

ratings placed me firmly in the second quartile of my peers.

53. Nevertheless, in December 2004, I was paid $475,000, the same as the previous year.

My compensation level remained stagnant despite 40% growth in our business from 2003

levels (an increase that surpassed our revenue targets) and despite 60% annualized

_s growth in our business during the four months I led the group during my manager's

maternity leave. Additionally, my pay for 2004 did not track that of employees in the

Equities Division generally, for whom compensation levels had increased by about 20%

on average. Upon information and belief, Mr.

compensation for 2004 was

substantially greater than mine.

54. On about Febmary 4,

about three months for Goldman to assign

me any substantive work,

the head of U.S. Sales and a Pm1ner, gave

me a much lesser-valued job in U.S. Research Sales.

55. On Febmury 18,2005, Mr.

gave me basic account assigrnnents that were far

less favorable than accounts given to similarly-situated men (male Vice Presidents of

comparable professional history who transferred into U.S. Research Sales, .,vith no sales

experience specifically in U.S. Research Sales). Although .\1r.

said I could

continue to seek another position \\'ithin Goldman on my own time, he also cautioned that

there were no other positions available for me. As a result Mr. _essentially

gave me no choice but to take the mueh-Ie.<iser valued job in U.S. Research Sales, and I

involuntarily accepted the position. On February 25,2005,

a Partner in

U.S. Research Sales, gave me my remaining account assignments. These were again far

less favorable than the assignments given to male employees with even less finance

experience than me.

56. By February 2005, most ofthe women who had worked on the convertible bond desk in all of Goldman's offices globally had transferred within the finn or had left Goldman altogether. :\1any of these women had moved or resigned because of their frustration with working in a male·dominated environment, where women were trcated less favorably than their male pcers, regardless of perfonnance. Upon infonnation and belief,

9

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 56 of 68

the global convertible bond desk has never had a female managing director. The most

senior female on the global convertible bond desk in March 2005 was

-a

singic, 29-year old, second-year Vice President.

57. On March 10,2005, I resigned from Goldman because of the discrimination and retaliation to which I was subjected on account of my gender.

58. I seck compensation from Goldman for the discrimination and retaliation, mcluding compensation for lost earnings, pain and suffering, and attorneys' fees.

59. I file this charge on behalf of myself and other similarly-situated women at Goldman.

60. Based upon the above, 1 charge Goldman, Sachs & Co. with discriminating against me because of my gender and retaliating against me, in violation of Title VII of the Civil
Rights Act of 1964, 42 USc. §§ 2000e ct seq., as well as the New York State and City Human Rights Laws, N.Y Exec. L. §§ 290 et seq. and N.YC. Admin. Code §§ 8-101 et ~. respectively.

Dated:

July~,

//t!-c"
2005

New York, New York

Swam to me on this ./j day ofJuly, 2005
i1

H. Cristina Chen-Oster

ANIE l. CRISTOl
··,;vlie, :.orate of New York
D1CR6119348
" /lie,·) York County
'- . ""(!mbcr 29,20_
N fa MELANIE l. CRISTOl
o ry PUblic, state of New York
. ~o. 01CR6119348 Qualified in Ne y,
C1'lmm:sSi(ln Ex' Work County
pires November 29, 20iJ6
10

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 57 of 68

EEOC Form 161·8 (111O~l
To:

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

From:

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

D

On behalf of porson(s) aggrieved whose identity is

CONFIDENTIAL (29 CFR §1601.7(a))

EEOC Charge No.

EEOC Representative

Telephone No.

160-2005-03069

lawrence M. Angelo,
Investigator

(212) 336-3763

NOTICE TO THE PERSON AGGRIEVED:

(See a/so the additional information enclosed with this form.)

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), or the Genetic Information Nondiscrimination Act (GINA): This is your Notice of Right to Sue, issued under Title VlI. the ADA or GINA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge wll! be lost. (The time limit for filing sull based on a claim under
state law may be different.)

~
D
~
D

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

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

[]

The EEOC is closing your case. Therefore, your lawsuit under Ihe ADEA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above-numbered charge will be lost.

C

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

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

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

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

Enclosures(s)

cc:

GOLDMAN SACHS & CO.

1 New York Plaza

50th Floor

New York, NY 10004

~ 00 beh~:J0mm;";oo

~~L~?C--

-,-
\j iJhR IS--<-h ulo

Spencer H. lewis, Jr., Director

(Date Mailed)

\

'"

Cara Greene, 'Esq. OuHen & Golden, LLP 3 Park Avenue, 29th Floor

New York, NY 10016

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 58 of 68
EXHIBIT 2

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 59 of 68

Lisa Parisi EEOC Charge (final).doc

Pagelof4

I(I;:::::,~~::,:',:~~~:~ by the Privacy Act of 1974; See Privacy Act Statement before this form .

• M,.orMrs)

ADDRESS CITY. STATE AND ZIP CODE

, )

mSCRIMINA. TED

IGe",llddmomano, Sachs & Co.

CITY. STATE AND liP CODE

New

I I

IIA$EDON (O.ckoppropnale bo"r,,))

RACE 0 COLORiIJ SEX 0 RELIGION 0 NATIONALORIGfN

III RETALlA TIOl\ 0 AGE 0 DISAABIILITY 0 OrnER (specify)

Over

OR OTHERS. (If more 'n,"
November
CONTINUING AC110N

I· and I wan! this charge filed with both the EEOC and the Slalte or locaal Agency. if any.
I:::;~~~ei:h:~:'"~:~:::, If I change my "ddress or telephone number and cooperate fully
in Ithe processing of my charge i[nl accordance with treir procedure. swear or affirm that I have read the above that it is tme to the best of m~ knowledge,
declare under penalty of perjury that the foregoing is true and correct

http://maii.googie.comlmaill?ui=2&ik=b33f109ce9&view=att&th= 126048fecb658c69&atti... 1/6/2010

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 60 of 68
Lisa Pansi Charge of Discrimination
The Particulars Are (continued):
l. OVERVIEW OF ALLEGAnONS
1. I am female. This sex discnmination charge is filed on behalf of myself, Lisa Parisi, and all others similarly situated. Like other female professionals at Goldman, Sachs & Co. ("Goldman"), I havc been harmed by a continuing pattern and practice or policy of discrimination with respect to pay, promotion, and other terms and conditions of employment in violation of Title VII of the CIvil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et §.§.g., as well as the New York State and City Human Rights Laws, N.Y. Exec. L. §§ 290 et seq. and NYC Admm. Code §§ 8-101 et SCfL respectively. Goldman retaliated against and terminated me and other females who complained about this discrimination.
II. WORK HISTORY
2. I was hircd by Goldman in or around 2001. Since November 2003, Goldman employed me as a Managing Director in the Value Group. In recent years, I focused primarily on the retail industry's stock investments. Dunng my tenure at Goldman, I was a top performer and consistently outperfonned the industry. My job required me to work on several portfolios, each of which had a benchmark. During my tenure at Goldman, I achieved or surpassed each of these benchmarks. I consistently made money on both long-tenn investments and more-difficult, short-side investments. I was one of the few people in my group at Goldman who made money on such short-side investments.
3. My objective perfonnance record has becn consistent with high praise.
III. DISCRIMINATION
Compensation
4. Goldman paid me less than similarly situated males throughout my career at Goldman. For example, a male employee who began at Goldman around the same time as me experienced a similar rise in assets under management ~ from approximately $4 billion in 2001 to between $40 and $50 billion in 2007. This similarly situated male, however, received compensation much higher than mc. From 2001 to 2007, his compensation doubled. My compensation, in contrast, dropped 60% from 2005 to 2007 despite my continued high performance and similar assets under management. During my final year at Goldman, I received only a base salary without any bonus.
5. When I asked why Goldman lowered my salary, my supervising partner told me that, while my objective performance numbers were good, the Small Cap Group
822236.1

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 61 of 68
of which I was a member did not outperform. The other two senior members of my team, however, did not suffer any decline in salary. In fact, they received an increase in salary. My supervising partner also stated that Goldman lowered my compensation because my scores on Goldman's subjective 360 review declined. But, my colleagues refuted my supervising partner's claims and confirmed that none of them had any negative experiences with me.
6. During my entire tenure as a Goldman Sachs Managing Director, similarly situated males received significantly higher base compensation and bonuses than me.
Promotion
7. Goldman treated me less favorably regarding promotions than similarly situated men. There is no clear path or any objective criteria for promotion to partner at Goldman. Rather, to receive a promotion from managing director to partner at Goldman, a current paJtner must nominate you and the company must approve the promotion. When a partner positlon came open, Goldman nominated and promoted a male managing dircctor with several years less experience than me. Prior to receIving this promotion, this male managing director also had significantly less experience than other managing directors in the team.
Hostile WQrk_,EnvironmentlFamily Rcsponsibility Discriminatiol!
8. In my experience with Goldman, male Goldman employees who start families receive higher pay and better treatment than womcn who start families.
9. In 2006, I requested that Goldman allow me to relocate to Atlanta to be closer to my fiance and his school-age children. I moved to Atlanta in or around March of 2006. I paid my own expenses to relocate and travel to New York for business. Following my move to Atlanta, I continued to be a top perfonner at Goldman.
10. While I had previously received unifonnly positive reviews, Goldman began evaluating me negatively in 2006. Goldman claimed that my support staff had negative experiences with me. When I approached my support staff to inquire about these purported Issues, however, the support staff refuted Goldman's claims and confinned that none of them had any negative expenences with me.
11. Also in 2006, my supervising partner approached me to infonn me that Goldman planned to take the retail industry's stock investments away from mc. When my colleagues heard this news, they expressed shock. Several of them, including the junior male managing director that Goldman had promoted, praised me as one of the best retail stock pickers in the industry. I brought this issue to the attention of the head of my group and pointed out that I made large amounts of money for Goldman in retail. Only then did Goldman decide to keep me on the retail industry's stock investments.
822236.1

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 62 of 68
Retaliation 12. When I have brought the repeated instances of discrimination to Goldman's attention, the company has not acted to remedy the situation, but instead has retaliated against me by reviewing me negatively, lowcnng my compensation, and threatening to take me off of retaiL Goldman further retaliated against me by terminating me.
Termination 13. As my work situation had become untenable, I approached my supervising partner in November 2007 and stated that, while I did not intend to resign, I hoped that we could negotiate a mutual separation agreement. Goldman agreed to discuss a mutual separation agreement with me. My supervising partner then asked me to remain at Goldman through the first quarter of2008. While Goldman terminated several employees in early 2008, Goldman did not terminate me and did not follow up with my request In November 2008, Goldman sent me a termination notice due to a mass reduction in force (RIF).
IV. CLASS CLAIMS 14. It is my understanding and belief that Goldman has engaged in a continuing pattern and practice of discrimination based on sex against female Managing Directors, Vice Presidents, and Associates with respect to compensation, business allocations, promotions, and other terms and conditions of employment in Goldman facilities nationally. Goldman implements this pattern and practice of discrimination through subjective and unvalidatcd criteria in evaluating the distribution of benefits and opportunities, mcluding base compensation, bonus amounts, promotions, and other terms and conditions of employment Goldman also retaliates against women and disproportionately selects fcmales for reductions in force.
I swear under penalty of perjury that I have read the above charge and that it is true and correct to the best of my knowledge, infonnation and belief. This charge is not intended to be exhaustive, but is representative of the treatment to whieh Goldman has subjected me.
822236_1

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 63 of 68
EXHIBIT 3

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 64 of 68

CHARGE OF DISCRIMINATION
This form is affected by the Privacy Act of 1974; See Privacy Act Statement before completing this form.

AGENCY
o FEPA

New York State Division of Human Rights and EEOC

CHARGE NUMBER

Ms. Shanna Orlich

I New York Plaza

New

NY 10004

DRACE oD COLOR
•• RETALIATION

• SEX DAGE

Please see attached statement.

o RELIGION 0 NATIONAL ORIGIN
oD DISABILITY o0
exira

, New York '

EARLJEST

loAnsr

o CONTINUING ACTiON

• I want this charge fIled with both the EEOC and the State or local Agency, if any. I will advise the agencies jf! change my address or telephonce number and cooperate fuHy with them In the processing of my charge in accordance with their procedure.
IS uue and corrcect.

NOTARY· SIGNATURE OF COMPLAINANT

Local

i true

D",

Charging Party (signature)

SUBSCRIBED AND SWORt'l" TO BEFORE ME THIS DATE

(Day, month. and year)

/- 'l-Jolo

EDDIE A., ZAKARIAN Notary Public - New Jersey ~IY Comnission Expires June 7, 2011

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 65 of 68

Sharma Orlich Charge of Discrimination

The Particulars Are:

I. OVERVIEW OF ALLEGATIONS

1. This sex discrimination charge is filed on behalf of myself, Sharma Orlich, and others similarly situated. Like other female professionals at Goldman, Sachs & Co. ("Goldman"), I have been harmed by a continuing policy, pattern or practice of sex discrimination with respect to pay, promotion, and other tenus and conditions of employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §§ 2000e et seq., as well as the New York State and City Human Rights Laws, N.Y. Exec. L. §§ 290 et seq. and NYC Admin. Code §§ 8-101 et seq. respectively. Goldman retaliated against me and other females who complained about discrimination and terminated my employment.
II. WORK HISTORY

2. I began working at Goldman as a Summer Associate in the summer of2006 while a student in the JD/MBA program at Columbia University. As a Summer Associate, I did rotations in several trading departments of Goldman. In August 2006, Goldman offered me a full-time position for the following year, and I accepted. I graduated from Columbia in 2007 and began working at Goldman in the summer of 2007. After completing training, I began as an Associate in the Capital Structure Franchise Trading ("CSFT") group in October 2007.

3. My first and only performance review at Goldman was overwhelmingly positive.

In November 2007, I met with my direct supervisor,

who was head

of both the CSFT and High Yield desks. In my review,

feedback and praise for the work I had done to date.

III. D1SCRIiVlINAnON

Promotion/Work Assignments

4. At the time I joined Goldman Sachs in 2007, the CFST group was comprised of2 females, including myself, and 10 males.

5. Goldman gave me fewer opportunities to become ajunior trader than it gave

similarly situated males. Although I joined Goldman to be a trader, when I

arrived at the CSFT desk, Mr. _ t o l d me there was no trading seat available

and that I would have to rotate with traders and serve as a desk analyst. However,

Goldman also hired my business school classmate,

who started

directly as a trader in the High Yield group. Mr.

was a fonner Navy

Seal, and Goldman's management team often challenged him to do push-up

contests on the trading floor and to engage in other displays of masculinity.

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 66 of 68

6. "When Mr. ~ccided to take on a junior trading partner in CSFT, he offered

the position to lv1r.

even though lv1r.

was not even a member of

the CSFT.

7. When I complained to Mr. _ a n d asked why I had not been put in a trading

2 seat, Mr.

told me that I did not have enough experience in trading. Mr.

did not have any trading experience prior to his summer internship at

8.

_was Goldman in 2006.

Around the same time I was hired, Goldman also hired • • ••••••I1• 1III.•.

directly from college. Even though lv1r.

junior to me, Goldman

allowed Mr.

to begin working as a trader in the CSFT group

immediately. Mr.

did not have any trading experience prior to his

sununer internship at Goldman in 2006.

9. In January 2008, after I complained to a more senior female trader, Iv1r. _

~a~g.r,'e!ed.tto assign me to bce a junior trader with

Days later, Mr.

the fiinnn. In April 2008, Mr.

also left the firm. After Mr.

departure, Goldman did not assign me a new trading partner, and as a

result, I did not have the opportunity to trade.

10. In July 2008, I reached out to

, the Managing Director of Sales, to

complain that I had no trading partner and was not being given an opportunity to

trade. Mr.

expressed surprise that Mr. _ h a d hired me to trade and

told me that he did not see me as the "right fit" for a trader. He told me that he

saw me as an analyst, and that he had told a male colleague of mine who was

interested in the analyst position that it would not be a good choice for him

because it would not be a good career move. He also said that because he had not

hired me, he did not view me as his responsibility.

11. I also reached out to other members of Goldman's senior management with my

concerns. One of these was

a senior Partner. Mr._told

me to stay put in the analyst role and to be a "team player," and that changes were

icoiim.iuiig.to the

and not to worry. Mr.

also reached out to 11r.

after Mr.

his trading partner, left the firm. Mr. • • • •

assigned Mr.

be a jllllior trader with a highly successful trader in High

Yield.

12. Although the CSFT desk has an executive assistant, I was often asked by more

senior males to perform clerical and administrative work not given to other male

Associates. For example,

a more senior Analyst on the CSFT desk,

often gave me demeaning and

assignments, such as setting up his

blackberry, making photocopies, and answering calls from his wife. Similarly-

situated male Associates and more junior male Analysts were not asked to

perform such work.

Hostile Work Environment

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 67 of 68

13. Goldman permits an environment to flourish that excludes and is hostile to women. For example, in December 2007, a male Managing Director hired female escorts to attend Goldman's Distressed Sales/CSFT holiday party. The female escorts arrived wearing short black skirts, strapless tops, and Santa hats and socialized with male guests during the event.

14. Goldman also organized frequent golf outings and other social events to which

female cmployees were not invited. On one occasion, Mr. _

asked every

male person in my department and in neighboring groups to be his partner at a

golf outing, including individuals more junior to me. However, he did not ask

me, the only female on the fixed income side of the CSFT trading desk. I have

played golf since childhood and also played varsity golf for my high school team.

IS. I also learned of a golf outing attended by approximately 80 Goldman employees, only one of which was a female employee. I was told that I was not invited because I was too junior, but I later learned that several male analysts straight out of college attended the outing.

Retaliation

16. Vv'hen I brought the repeated instances of gender discrimination to Goldman'S attention, the company did not act to remedy the situation. Instead, Goldman retaliated against me by failing to give me advancement opportunities and then by terminating my employment.

Termination/Compensation

17. In November 2008, Goldman sent me a termination notice due to a mass

reduction in force (RIP). Males who were similarly·situated to me oofriiimmiiao.rrcc.Jj."uurnu.i"or

to me were not selected for the RIF, including.Mr.

and Mr.

18. In 2008, Goldman paid me less than similarly·situated males. At the time I was terminated, Goldman did not pay me a bonus, even though I had worked for almost the entire year, and the amount of my severance package was based upon my base salary rate for 2008.

Family Responsibility Discrimination

19. At the time Goldman terminated my employment, I was three months pregnant. Although I did not publicly announce that I was pregnant, I made conspicuous changes to my behavior, such as not drinking at work events as I had in the past. One week before Goldman terminated my employment, I spoke to the executive assistant to the Partners of the High Yield, CSFT, and Investment Grade groups. She told me that she had seen the list of people to be terminated as part of the RIF, and that I was not on the list I told her that I was pregnant, and she responded that she had thought that I was pregnant based on my behavior. This conversation occurred on the trading floor. One week later, Goldman terminated
my employment.

Case 1:10-cv-06950-LBS -JCF Document 5 Filed 09/16/10 Page 68 of 68
20. After Goldman terminated my employment, an HR representative from Goldman called me to ask if I wanted to work in a temporary position for less pay. When I told the HR representative that I was pregnant and that I would need maternity leave during the period that they needed someone for the temporary position, the HR representative responded that "that would be a problem." Later, the HR representative called to ask me to disregard those conunents and to go ahead and interview for the temporary position if I was interested in it.
IV. CLASS CLAIMS
21. It is my understanding and belief that Goldman has engaged in a continuing pattern and practice of discrimination based on sex against female Managing Directors, Vice Presidents, and Associates with respect to compensation, business allocations, promotions, and other terms and conditions of employment in Goldman facilities nationally. Goldman implements this pattern and practice of discrimination through subjective and unvalidated criteria in evaluating the distribution of opportunities and benefits, inclUding base compensation, bonus amounts, promotions, and other terms and conditions of employment. Goldman also retaliates against women and disproportionately selects females for reductions in force.
I swear under penalty of perjury that I have read the above charge and that it is true and correct to the best of my knowledge, information and belief. This charge is not intended to be exhaustive, but is representative of the treatment to which Goldman has SUbjected me.

 
 Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

:

PARISI; and SHANNA ORLICH,

:

:

Plaintiffs,

:

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

(ECF)
10 Civ. 6950 (LBS) (JCF) MEMORANDUM AND ORDER

This is a putative class action in which the plaintiffs allege

that their employer, Goldman, Sachs & Co. and The Goldman Sachs

Group, Inc. (collectively, “Goldman Sachs”), has engaged in a

pattern of gender discrimination against its female professional

employees in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and New York City Human Rights

Law, N.Y.C. Admin. Code § 8-107 et seq. Goldman Sachs has moved to

stay the action with respect to one representative plaintiff, Lisa

Parisi, and to compel arbitration of her individual claims. In

response to that motion, the plaintiffs propounded discovery

related to Goldman Sachs’ custom and practice regarding

arbitration. Goldman Sachs objected to producing the requested

information on the ground that it is irrelevant, and the plaintiffs

now move pursuant to Rule 37 of the Federal Rules of Civil

1

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 2 of 10
Procedure for an order compelling disclosure. For the reasons set
forth below, the plaintiffs’ motion is denied.
Background
In November 2003, Ms. Parisi was promoted to the position of
Managing Director at Goldman Sachs, as a condition of which she
signed an employment contract. (Letter of Henry M. Paulson, Jr.,
dated Nov. 4, 2003 (the “Employment Agreement”), attached as Exh.
A to Declaration of Adam T. Klein dated Jan. 21, 2011 (“Klein
Decl.”)). That contract contains an arbitration clause that
provides as follows:
[A]ny dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters will be finally settled by arbitration in New York City before, and in accordance with the rules then obtaining of, the New York Stock Exchange, Inc. (“NYSE”) or if the matter is not arbitrable before the NYSE, the National Association of Securities Dealers (“NASD”). If both the NYSE and the NASD decline to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any arbitration decision and/or award will be final and binding upon the parties and may be entered as a judgment in any appropriate court.
(Employment Agreement, § 4). The Agreement defines “Employment
Related Matters” as “matters arising out of or relating to or
concerning this Agreement, your hire by or employment with the Firm
or the termination thereof, or otherwise concerning any rights,
obligations or other aspects of your employment relationship in
2

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 3 of 10
respect of the Firm.” (Employment Agreement, § 3). The current dispute between the parties centers on whether
these provisions authorize the arbitration of claims on a classwide basis. In connection with that issue, the plaintiffs propounded discovery, seeking representative exemplars from 2001-2006 of any cardholder agreements for credit cards sponsored by Goldman Sachs as well as any agreements that employees entered into when selecting or purchasing Goldman Sachs investment products. (Memorandum in Support of Plaintiffs’ Motion to Compel Discovery (“Pl. Memo.”) at 3). The plaintiffs’ theory is that Goldman Sachs’ practices with respect to the use of arbitration clauses would shed light on its intent in drafting the language of the Employment Agreement here. For example, if Goldman Sachs routinely included language precluding the assertion of class claims in arbitration, the plaintiffs would argue that the absence of such language here indicates an intent to allow class claims.
Goldman Sachs maintains that the plaintiffs’ discovery requests seek irrelevant information. It argues that the Employment Agreement is unambiguous and, in the absence of ambiguity, extrinsic evidence of the parties’ intent is not permitted.
3

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Discussion
A. Stolt-Neilsen
The instant discovery dispute must be viewed against the
backdrop of the Supreme Court’s decision in Stolt-Nielsen S.A. v.
AnimalFeeds International Corp., __ U.S. __, 130 S. Ct. 1758
(2010). In that case, a panel of arbitrators had issued an award
authorizing classwide arbitration of certain maritime claims even
though the governing arbitration clause was silent on the issue of
class arbitration. Id. at __, 130 S. Ct. at 1766. The Court,
however, faulted the arbitrators for substituting a rationale based
on public policy considerations in place of a rigorous analysis of
the contractual terms.
[A] party may not be compelled under the [Federal Arbitration Act (the “FAA”)] to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. In this case, however, the arbitration panel imposed class arbitration even though the parties concurred that they had reached “no agreement” on that issue.
Id. at , 130 S. Ct. at 1775. According to the Court,
[r]ather than inquiring whether the FAA, maritime law, or New York law contains a “default rule” under which an arbitration clause is construed as allowing class arbitration in the absence of express consent, the panel proceeded as if it had the authority of a common-law court to develop what it viewed as the best rule to be applied in such a situation.
Id. at , 130 S. Ct. at 1768-69.
A central teaching of Stolt-Nielsen, then, is that an
4

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 5 of 10
arbitration clause must be construed in accordance with the applicable law of contracts. Accordingly, it is necessary here to first identify the controlling law and then ascertain the extent to which the discovery sought by the plaintiffs may be relevant under that law.
B. New York Contract Law The Employment Agreement provides that it shall be governed by New York law. (Employment Agreement, § 5). “Under New York law, the presence or absence of ambiguity is determined by looking within the four corners of the document, without reference to extrinsic evidence.” Chapman v. New York State Division for Youth, 546 F.3d 230, 236 (2d Cir. 2008). Accordingly, silence with respect to a particular issue does not generally render a contract ambiguous. See Wyly v. CA, Inc., No. 05 CV 4430, 2009 WL 3128034, at *9 (E.D.N.Y. Sept. 29, 2009) (“‘[S]ilence alone does not equate to ambiguity.’” (quoting Henrich v. Phazar Antenna Corp., 33 A.D.3d 864, 867, 827 N.Y.S.2d 58, 61 (2d Dep’t 2006)); Millgard Corp. v. E.E. Cruz/Nab/Fronier-Kemper, No. 99 Civ. 2952, 2003 WL 22741664, at *3 (S.D.N.Y. Nov. 18, 2003) (holding that “under New York law, the omission of terms in a contract does not create ambiguity”); Kirschten v. Research Institute of America, Inc., No. 94 Civ. 7947, 1997 WL 739587, at *7-8 (S.D.N.Y. Sept. 24, 1997); Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199, 738 N.Y.S.2d 658,
5

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 6 of 10
661 (2001) (“‘An omission or mistake in a contract does not constitute an ambiguity . . . .’” (quoting Schmidt v. Magnetic Head Corp., 97 A.D.2d 151, 157, 468 N.Y.S.2d 649, 654 (2d Dep’t 1983))). And, in the absence of ambiguity, extrinsic evidence is inadmissible. See Wyly, 2009 WL 3128034, at *9 (“Where a contract is unambiguous, extrinsic or parol evidence is inadmissible.”); Millguard Corp., 2003 WL 22741664, at *2 (“‘Only when the language of the contract is ambiguous may a court turn to extrinsic evidence of the contracting parties’ intent.’” (quoting Curry Road Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir. 1990)).
The cases cited by the plaintiffs for the proposition that “‘silence as to [a] particular issue can, at times, create an ambiguity in a contract requiring the introduction of extrinsic evidence’” are inapposite. (Reply Memorandum of Law in Support of Plaintiffs’ Motion to Compel Discovery at 3 (quoting Wallace Industries, Inc. v. Salt City Energy Venture L.P., 233 A.D.2d 543, 545, 649 N.Y.S.2d 531, 533 (3d Dep’t 1996))). The language relied upon by the plaintiffs in the Wallace Industries case was dicta, since the court there found that the silence of a fully integrated contract with respect to a secondary issue created no ambiguity. Id. at 545, 649 N.Y.S.2d at 533. Wallace Industries, in turn, referred to another case cited by the plaintiffs, Belknap v. Dean Witter & Co., 61 N.Y.2d 802, 473 N.Y.S.2d 948 (1984). In Belknap,
6

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 7 of 10
the court found that a corporate resolution had addressed, albeit incompletely, the issue of whether the defendant was obligated to continue the plaintiff’s pension in the event of a merger. Id. at 803-04, 473 N.Y.S.2d at 949. Thus, in stating that “[i]nsofar as that agreement was otherwise silent on the issue whether defendant had contracted to provide the pension, it was proper to admit extrinsic evidence that was probative of the parties’ intent,” id. at 804, 473 N.Y.S.2d at 949 (emphasis supplied), the court was applying the unexceptional principle that extrinsic evidence is admissible where an agreement is ambiguous. See Proteus Books Ltd. v. Cherry Lane Music Co., 873 F.2d 502, 509-10 (2d Cir. 1989) (holding, under New York law, that extrinsic evidence is admissible to interpret ambiguous terms but not to alter or add terms).
Finally, in Columbia Artists Management, LLC v. Swenson & Burnakus, Inc., No. 05 Civ. 7314, 2010 WL 1379737 (S.D.N.Y. March 3, 2010), the court stated that “[i]ndustry custom may be used to provide a missing term when a contract is silent on an issue.” Id. at *2. However, the missing term must be one without which the contract is inherently ambiguous as to some issue material to defining the relationship between the parties. Cf. Kirschten, 1997 WL 739587, at *7 (“[W]hen a contract is silent on a point that the parties dispute, evidence outside the language of the contract itself may be considered only if the point in issue is one that is
7

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 8 of 10
‘essential’ to the contract, i.e., without which a contract could not be found.”). In Columbia Artists Management, for example, the contract did not specify whether an opera singer was obligated to pay royalties to her agent for engagements booked prior to the termination of the contract but performed thereafter. 2010 WL 1379737, at *2. Similarly, in VistaTech Enterprises, Ltd. v. Brother International Corp., 677 F. Supp. 178, 180 (S.D.N.Y. 1988), the case cited by the court in Columbia Artists, the missing term was the duration of the contract; consequently, it was necessary to rely on extrinsic evidence to determine whether the agreement was at will or lasted for a particular period or, indeed, forever. 677 F. Supp. at 180. In other words, the relationship between the parties to the contract was not adequately determined without supplying the missing term.
C. Application In this case, the absence of a term in the Employment Agreement addressing class arbitration creates no inherent ambiguity. Ms. Parisi’s rights and obligations with respect to arbitration of her individual claims are clear irrespective of whether the Agreement is ultimately construed to permit arbitration of the claims of other employees on a classwide basis. And, because the Employment Agreement is unambiguous, extrinsic evidence is inadmissible; the discovery propounded by the plaintiffs
8

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 9 of 10
therefore seeks irrelevant information.
Conclusion
For the reasons set forth above, plaintiff's motion to compel
discovery (Docket no. 41) is denied.
SO ORDERED.
~ ~~~~~ JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York March I, 2010
Copies mailed this date:
Adam T. Klein, Esq. Cara E, Greene, Esq. Jennier L. Liu, Esq. Mariko Hirose, Esq. Outten & Golden, LLP 3 Park Avenue, 29th Floor New York, New York 10016
Kelly Dermody, Esq. Anne B. Shaver, Esq. Heather H. Wong, Esq. Alison M. Stocking, Esq. 275 Battery Street, 30th Floor San Francisco, CA 94111
Theodore O. Rogers, Jr., Esq. John F. Fullerton, III, Esq. Margaret E. Bartlett, Esq. Suhana S. Han, Esq.
Sullivan & Cromwell, LLP
125 Broad Street New York, New York 10004
9

Case 1:10-cv-06950-AT-JCF Document 46 Filed 03/01/11 Page 10 of 10
Barbara B. Brown, Esq. 
 Paul, Hasting, Janofsky & Walker, LLP 
 875 15th Street N.W. 
 Washington, DC 20005 
 C. Geoffrey Weirich, Esq. Paul, Hastings, Janofsky & Walker, LLP 600 Peachtree Sreet, NE Suite 2400 Atlanta, GA 30308 Zachary D. Fasman, Esq. Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022
10 


 
 Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 1 of 35

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

:

PARISI; and SHANNA ORLICH,

:

:

Plaintiffs,

:

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

(ECF)
10 Civ. 6950 (LBS) (JCF) MEMORANDUM AND ORDER

This is a putative class action in which the plaintiffs allege

that their employer, Goldman, Sachs & Co. and The Goldman Sachs

Group, Inc. (collectively, “Goldman Sachs”), has engaged in a

pattern of gender discrimination against its female professional

employees in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and New York City Human Rights

Law, N.Y.C. Admin. Code § 8-107 et seq. Goldman Sachs has moved to

stay the action with respect to one representative plaintiff, Lisa

Parisi, and to compel arbitration of her claims.

Ms. Parisi’s individual claims are subject to an arbitration

clause signed as part of her employment agreement, and, pursuant to

that agreement, Goldman Sachs cannot be required to arbitrate on a

class basis. However, because an arbitration clause may not be

enforced if it precludes the vindication of substantive rights, and

1

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 2 of 35
because a pattern or practice claim under Title VII can only be brought in the context of a class action, Ms. Parisi’s Title VII claim cannot be committed to arbitration lest she be deprived of her substantive rights. Therefore, as discussed more fully below, the defendants’ motion to stay this action and compel arbitration is denied. Background
The plaintiffs are three women who worked for Goldman Sachs between 1997 and 2008. (Complaint (“Compl.”), ¶¶ 13-18). Plaintiff H. Cristina Chen-Oster was hired in March 1997 and promoted to the position of Vice President in June of that year. (Compl., ¶ 70). She remained in that position for the next eight years, until her resignation from the firm. (Compl., ¶¶ 70, 102). Plaintiff Shanna Orlich was hired as a Summer Associate by Goldman Sachs in 2006, and then as a full-time Associate in July 2007. (Compl., ¶ 115). She remained in that position until she was terminated, in November 2008. (Compl., ¶ 134). Plaintiff Lisa Parisi (the “plaintiff”) was hired by Goldman Sachs as a Vice President in August 2001. (Compl., ¶ 104). In 2003, Ms. Parisi was promoted to the position of Managing Director at Goldman Sachs. (Compl., ¶ 104). As a condition of her promotion, Ms. Parisi signed an employment contract. (Letter of Henry M. Paulson, Jr., dated Nov. 4, 2003 (the “Employment Agreement”), attached as Exh.
2

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 3 of 35
1 to Declaration of Erin E. LaRuffa dated Nov. 22, 2010). The
Employment Agreement contains an arbitration clause that provides
as follows:
[A]ny dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters will be finally settled by arbitration in New York City before, and in accordance with the rules then obtaining of, the New York Stock Exchange, Inc. (“NYSE”) or if the matter is not arbitrable before the NYSE, the National Association of Securities Dealers (“NASD”). If both the NYSE and the NASD decline to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any arbitration decision and/or award will be final and binding upon the parties and may be entered as a judgment in any appropriate court.
(Employment Agreement, § 4). The Employment Agreement defines
“Employment Related Matters” as “matters arising out of or relating
to or concerning this Agreement, your hire by or employment with
the Firm or the termination thereof, or otherwise concerning any
rights, obligations or other aspects of your employment
relationship in respect of the Firm.” (Employment Agreement, § 3).
Ms. Parisi continued as a Managing Director until her employment
was terminated by Goldman Sachs in November 2008. (Compl., ¶¶ 104,
113).
Following their separation from Goldman Sachs, each of the
plaintiffs filed charges with the Equal Employment Opportunity
Commission (the “EEOC”), alleging gender discrimination and
3

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 4 of 35
retaliation. (Compl., ¶¶ 103, 114, 135). The plaintiffs filed this suit on September 16, 2010 “on behalf of themselves individually and all similarly situated female Associates, Vice Presidents, and Managing Directors in the United States.” (Compl., ¶ 60). The plaintiffs’ complaint asserts eight claims for relief, including two claims that Goldman Sachs intentionally discriminated against the plaintiffs and other members of the purported class by engaging in an “intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents, and Managing Directors.” (Compl., ¶¶ 138, 154). It also asserts two claims that “company-wide policies, patterns, and/or practices of determining compensation and eligibility for promotion based on subjective criteria applied by predominantly male reviewers” and of delegating “unchecked and standardless discretion to its overwhelmingly male managers to distribute business opportunities, determine levels of professional support, evaluate employee performance, set compensation, and select individuals for promotion, and determine other terms and conditions of employment” had a disparate impact on putative class members and on the plaintiffs themselves. (Compl., ¶¶ 147, 163).
At the same time that it answered the complaint, on November 22, 2010, Goldman Sachs filed the instant motion to stay Ms. Parisi’s claims and compel individual arbitration. (Notice of
4

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 5 of 35
Motion dated Nov. 22, 2010). In response, the plaintiff sought limited discovery related to Goldman Sachs’ custom and practice with respect to arbitration, ultimately filing a motion to compel disclosure of exemplar credit card and employment agreements. (Memorandum and Order dated March 1, 2011 (“3/1/11 Order”) at 1-2, 3). I denied that motion on March 1, 2011, finding that, because there was no ambiguity in Ms. Parisi’s employment contract, New York law prohibited consideration of extrinsic evidence in interpreting its provisions, and the requested discovery was therefore irrelevant. (3/1/11 Order at 5-8). The parties subsequently completed briefing of Goldman Sachs’ motion to stay and compel arbitration, including the filing of a sur-reply by the plaintiff addressing the Second Circuit’s decision in In re American Express Merchants’ Litigation, 634 F.3d 187 (2d Cir. 2011) (“American Express II”), issued on March 8, 2011. Discussion1
1 There is some disagreement among district courts in this circuit over whether motions to compel arbitration are dispositive, and therefore require that a magistrate judge issue a report and recommendation to a district judge, or are non-dispositive, and may be decided by a magistrate judge by means of a memorandum and order. Compare Kiewit Constructors, Inc. v. Franbilt, Inc., No. 07 CV 121A, 2007 WL 2461919, at *1 n.1 (W.D.N.Y. Aug. 24, 2007) (“[T]hat portion of the motion relating to arbitration is non-dispositive, and may be determined by [a magistrate judge].”), Zouras v. Goldman Sachs Group, Inc., No. 02 Civ. 9249, 2003 WL 21997745, at *1 (S.D.N.Y. Aug. 22, 2003) (“Because a motion to compel arbitration and stay an action is not a dispositive motion
5

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 6 of 35
A. Proper Decisionmaker
As an initial matter, the defendants note that the
arbitrability of Ms. Parisi’s claims is for this Court, rather
than an arbitrator, to determine. (Memorandum of Law in Support of
Defendants’ Motion to Stay Plaintiff Parisi’s Claims and Compel
Individual Arbitration (“Def. Memo.”) at 9-10). Indeed, both
parties agree that, pursuant to the Supreme Court’s holding in
Rent-A-Center, West, Inc. v. Jackson, __ U.S. __, 130 S. Ct. 2772
(2010), “the Court decides the question of arbitrability because
the arbitration agreement does not clearly and unmistakably
delegate that question to the arbitrator.” (Plaintiffs’ Memorandum
of Law in Support of Opposition to Defendants’ Motion to Compel
Arbitration (“Pl. Memo.”) at 12 n.6); see Rent-A-Center, West,
Inc., __ U.S. at __, 130 S. Ct. at 2777 n.1. However, while “any
under 28 U.S.C. § 636(b)(1)(A), [the magistrate judge] will decide the defendants’ motion pursuant to an opinion and order.”), and Herko v. Metropolitan Life Insurance Co., 978 F. Supp. 141, 142 n.1 (W.D.N.Y. 1997) (“The court has considered whether a motion to compel arbitration is a dispositive motion and has concluded it is not.”), with ECOR Solutions, Inc. v. Malcolm Pirnie, Inc., No. 02 CV 1103, 2009 WL 2424553, at n.1 (N.D.N.Y. Jan. 21, 2009) (finding that “[i]n this circuit, motions to compel arbitration are treated as dispositive motions which may be referred to a magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)” and collecting cases). Because I find persuasive those cases concluding that motions to compel arbitration are not casedispositive, and because the instant motion was referred to me by the Honorable Leonard B. Sand, U.S.D.J., as a non-dispositive motion, I will address it by memorandum and order.
6

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 7 of 35
potentially dispositive gateway question” might be termed a “question of arbitrability,” “[t]he Court’s case law [] makes clear that, for purposes of applying the interpretive rule, the phrase ‘question of arbitrability’ has a far more limited scope.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). Furthermore, a plurality of the Supreme Court has specifically held that the question of whether a contract “forbid[s] class arbitration [] does not fall into this narrow exception,” but rather is an issue of contract interpretation properly left to the arbitrator. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 452-53 (2003).
In this case, part of the dispute centers on whether the contract at issue forbids class arbitration -- precisely the issue deemed to be one of contract interpretation by the plurality in Bazzle. However, the motion is appropriately resolved by this Court for two reasons. First, as both parties are in agreement that the Court is the appropriate forum for resolution of this dispute, it seems plain that the dispute fits into the
narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.
7

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Howsam, 537 U.S. at 83-84; see also Skirchak v. Dynamics Research Corp., 508 F.3d 49, 56 (1st Cir. 2007) (“An agreement to arbitrate does not divest a court of its jurisdiction.”). Second, the balance of the parties’ dispute is over “whether [they] have agreed to submi[t] a particular dispute to arbitration,” a question that is generally resolved by the courts. Granite Rock Co. v. International Brotherhood of Teamsters, __ U.S. __, __, 130 S. Ct. 2847, 2855 (2010) (second alteration in original) (internal quotation marks omitted). The questions raised by the parties require determination of the scope and enforceability of the arbitration clause, and therefore the issue is appropriately characterized as a dispute over arbitrability. See Rent-A-Center, West, Inc., __ U.S. at __, 130 S. Ct. at 2778 (“If a party challenges the validity . . . of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement.”); In re American Express Merchants’ Litigation, 554 F.3d 300, 311 (2d Cir. 2009) (“American Express I”) (“[I]f there is a challenge to the arbitration clause itself -- an issue which goes to the making of the agreement to arbitrate -- the federal court may proceed to adjudicate it.” (internal quotation marks omitted)), vacated sub nom. American Express Co. v. Italian Colors Restaurant, __ U.S. __, 130 S. Ct. 2401 (2010), reaff’d, 634 F.3d 187 (2d Cir. 2011); see also
8

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 9 of 35
Stolt-Nielsen S.A. v. AnimalFeeds International Corp., __ U.S. __, __, 130 S. Ct. 1758, 1772 (2010) (agreeing that Bazzle held “contract interpretation issue is left up to the arbitrator” but noting that “only the plurality decided that question”).
B. Applicable Law Arbitration clauses in employment contracts are generally subject to the provisions set forth in the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1 et seq. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) (finding all employment contracts subject to FAA except those of “transportation workers”). Under the FAA, If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C. § 3. In deciding whether to stay an action and compel arbitration, four factors are relevant: (1) whether the parties agreed to arbitrate; (2) the scope of the agreement to arbitrate; (3) whether Congress intended any asserted federal statutory claims to be nonarbitrable; and (4) whether a stay is appropriate. Reynolds v. de Silva, No. 09 Civ. 9218, 2010 WL 743510, at *2
9

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 10 of 35
(S.D.N.Y. Feb. 24, 2010) (citing Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir. 1987)).
“[W]hen determining whether a contract to arbitrate has been established for the purposes of the FAA, federal courts should apply ‘ordinary state-law principles that govern the formation of contracts’ to decide ‘whether the parties agreed to arbitrate a certain matter.’” Sinnett v. Friendly Ice Cream Corp., 319 F. Supp. 2d 439, 443 (S.D.N.Y. 2004) (quoting First Options, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). Nonetheless, “the FAA imposes certain rules of fundamental importance, including the basic precept that arbitration ‘is a matter of consent, not coercion.’” Stolt-Nielsen, __ U.S. at __, 130 S. Ct. at 1773 (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 479 (1989)). Given the preference for arbitration embodied in the FAA and Supreme Court case law, federal courts construe arbitration clauses broadly and apply a “presumption of arbitrability.” Sinnett, 319 F. Supp. 2d at 444; see also 9 U.S.C. § 2 (“An agreement in writing to submit to arbitration . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”).
C. Scope of Arbitration Clause In opposing the motion to compel arbitration, the plaintiff
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argues that, although the Employment Agreement contains an arbitration clause, that clause does not apply to her class claims because the Employment Agreement also contains a judicial forum selection clause that “anticipates that some matters will not be subject to arbitration and should be brought in court”; she asserts that these provisions create an ambiguity that “should be read to provide [the plaintiff] with her forum of choice for class claims.” (Pl. Memo. at 10-11). This argument depends upon a determination that there is, in fact, ambiguity on the face of the Employment Agreement, which would then require construction of the ambiguity against the defendants, who drafted the Agreement. (Pl. Memo. at 10-11).
However, the existence of a judicial forum selection provision does not render the arbitration clause ambiguous or susceptible to any alternative interpretation.2 See, e.g., Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278, 284-85 (2d Cir. 2005) (finding forum selection clause “complementary to an agreement to arbitrate”); Applied Energetics, Inc. v. NewOak Capital Markets,
2 Any argument that the Employment Agreement is ambiguous because of its silence regarding the arbitrability of class-based claims is foreclosed by my earlier determination that “the absence of a term in the Employment Agreement addressing class arbitration creates no inherent ambiguity” because “silence with respect to a particular issue does not generally render a contract ambiguous” under New York law. (3/1/11 Order at 5, 8).
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LLC, No. 10 Civ. 1669, 2010 WL 4968186, at *3 & n.8 (S.D.N.Y. Dec. 3, 2010) (same). First, the forum selection provision by its own terms applies only to “any suit, action or proceeding arising out of or relating to Employment Related Matters . . . which is not otherwise arbitrated,” evidencing a clear preference for arbitration of such claims. (Employment Agreement, § 5); cf. Bank Julius Baer, 424 F.3d at 285 (finding forum selection clause ambiguous because it “makes no reference to arbitration”). Second, the Employment Agreement expressly identifies motions to compel arbitration and to enforce arbitration awards as the types of court action to which the forum selection clause might be applicable, avoiding the conclusion that the full application of the arbitration clause in Section 4 would render Section 5 superfluous. See Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 27 (2d Cir. 1988) (noting that interpretation rendering part of contract superfluous or meaningless “is not preferred and will be avoided if possible”); see also Edgewater Growth Capital Partners, L.P. v. Greenstar North America Holdings, Inc., 69 A.D.3d 439, 439, 891 N.Y.S.2d 278, 278-79 (1st Dep’t 2010) (reconciling arbitration clause with “general jurisdiction provision” and granting motion to compel arbitration); Isaacs v. Westchester Wood Works, Inc., 278 A.D.2d 184, 185, 718 N.Y.S.2d 338, 339 (1st Dep’t 2000) (enforcing “express provision in the parties’ agreement to arbitrate disputes”
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although there was “an additional clause in the agreement vesting the courts of this State with exclusive jurisdiction in all actions and proceedings,” since “there was no express denial of the agreement to arbitrate” and “conflicting contract provisions should be harmonized, if reasonably possible, so as not to leave any provision without force and effect”).
Even if the co-existence of a forum selection clause and an arbitration clause rendered the intent to arbitrate ambiguous under state contract law, both federal and state case law require resolving any such ambiguity in favor of arbitration. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995) (“‘[A]mbiguities as to the scope of the arbitration clause itself [must be] resolved in favor of arbitration.’” (quoting Volt Information Sciences, 489 U.S. at 475)); Kelso Enterprises Ltd. v. A.P. Moller-Maersk, 375 Fed. Appx. 48, 49-50 (2d Cir. 2010) (resolving facial ambiguity in favor of arbitration and noting that “we cannot nullify an arbitration clause unless the forum selection clause specifically precludes arbitration” (internal quotation marks omitted)); Applied Energetics, 2010 WL 4968186, at *3 (“‘Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’” (quoting Guyden v. Aetna, Inc., 544 F.3d 376, 382 (2d Cir. 2008))); Bear Stearns & Co. v. Gordon, Nos. 08 Civ. 8596, 8597, 2009 WL 1904567, at *3 (S.D.N.Y. July 1, 2009)
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(same); Tong v. S.A.C. Capital Management, LLC, 52 A.D.3d 386, 387,
860 N.Y.S.2d 84, 85 (1st Dep’t 2008) (“Even if the arbitration
provision were, as plaintiff contends, ambiguous in scope, since
its construction is governed by the Federal Arbitration Act, any
such ambiguities would be properly resolved in favor of arbitration.”).3
Thus, in this case there is an operational agreement to
arbitrate. Because that agreement applies to all “Employment
Related Matters,” the plaintiff’s claims of gender-based employment
discrimination and retaliation are encompassed by the clause.
D. Availability of Class Arbitration
The plaintiff argues in the alternative that the Employment
Agreement allows for the arbitration of her claims on a class
3 Although, as the plaintiff points out, ambiguities should generally be construed against the drafter, (Pl. Memo. at 10); see also Mastrobuono, 514 U.S. at 62-63, this common law rule of contract interpretation cannot overcome the strong preference for arbitrability embodied in the FAA and federal and state case law. See Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 155 F. Supp. 2d 1, 33 n.53 (S.D.N.Y. 2001) (noting that this canon of construction “applies only as a tie breaker, when other canons fail to dispel uncertainty”), aff’d in relevant part, 277 F.3d 253 (2d Cir. 2002); Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193, 200-01, 623 N.Y.S.2d 800, 804 (1995) (“In enacting the FAA, Congress established a Federal policy favoring arbitration agreements, which is to be advanced by rigorous judicial enforcement of arbitration agreements and by resolution of any ambiguities as to the scope of the arbitration clause itself . . . in favor of arbitration.” (alteration in original) (internal quotation marks and citations omitted)).
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basis. However, this interpretation of the Agreement is foreclosed by the Supreme Court’s recent holding in Stolt-Nielsen that
[a]n implicit agreement to authorize class-action arbitration [] is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate . . . because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator. __ U.S. at __, 130 S. Ct. at 1775. In other words, “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. In this case, the Employment Agreement is undisputedly silent with respect to the availability of class arbitration. (Employment Agreement, § 4; Def. Memo. at 8-9; Pl. Memo. at 13). The plaintiff contends that the agreement may nonetheless be interpreted to allow arbitration of class claims because the majority in Stolt-Nielsen did not require “that an agreement must expressly authorize class arbitration,” and “the circumstances of [the parties’] relationship” and “the relevant customs, practices, usages and terminology” indicate class arbitration was intended. (Pl. Memo. at 12, 15-16). Indeed, the Supreme Court in Stolt-Nielsen had “no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration” because the
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parties in that case had stipulated that there was “no agreement” to allow arbitration on a class basis. __ U.S. at __, 130 S. Ct. at 1776 n.10. Further, the Court criticized the arbitrator in that case for failing to inquire whether “New York law contains a ‘default rule’” for the construction of agreements to arbitrate on a class-wide basis. Id. at __, 130 S. Ct. at 1768-69; (see also 3/1/11 Order at 4-5).
However, there is no clear “default rule” under New York contract law for determining if the parties intended to submit to class arbitration.4 Prior to Rent-A-Center, New York courts generally applied Bazzle and left resolution of this issue to the arbitrators. See Flynn v. Labor Ready, Inc., 6 A.D.3d 492, 493-94, 775 N.Y.S.2d 357, 359 (2d Dep’t 2004) (compelling arbitration under employment contract and finding permissibility of class-action arbitration in face of contractual silence was “for the arbitrator to decide”); Advanced Medical and Alternative Care, P.C. v. New York Energy Savings Corp., 21 Misc. 3d 1145(A), 875 N.Y.S.2d 818, No. 9693/08, 2008 WL 5235390, at *7 (N.Y. Sup. Ct. Dec. 15, 2008)
4 The Employment Agreement provides that it “will be governed by and construed in accordance with the laws of the state of New York,” and neither party has contested the application of New York law to this dispute. (Employment Agreement, § 5; Pl. Memo. at 3; Defendants’ Reply Memorandum in Support of Motion to Stay Plaintiff Parisi’s Claims and Compel Individual Arbitration (“Def. Reply Memo.”) at 2).
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(unpublished table decision) (“The Customer Agreement is silent as to whether class action arbitration is permissible, and the question of whether these claims may be submitted to arbitration as a class action is for the arbitrators to decide.”). The question has not been addressed by New York courts since Rent-A-Center and Stolt-Nielsen opened the door to judicial determination of the issue, and earlier state court decisions offer limited guidance. See Cheng v. Oxford Health Plans, Inc., 45 A.D.3d 356, 357-58, 846 N.Y.S.2d 16, 18 (1st Dep’t 2007) (not “manifest disregard” of the law to find that “defendants could not successfully demonstrate that New York law prohibited class arbitrations”).
Additionally, more general principles of New York contract law do not allow the conclusion that the parties in this case intended to submit to class arbitration. As I already determined in denying the plaintiff’s motion to compel, there is no ambiguity on the face of the contract; it is simply silent with respect to class arbitration. (3/1/11 Order at 8); see also Wyly v. CA, Inc., No. 05 CV 4430, 2009 WL 3128034, at *9 (E.D.N.Y. Sept. 29, 2009) (“‘[S]ilence alone does not equate to ambiguity.’” (quoting Henrich v. Phazar Antenna Corp., 33 A.D.3d 864, 867, 827 N.Y.S.2d 58, 61 (2d Dep’t 2006)). Thus, the plaintiff’s arguments that industry custom and the relationship between the parties demonstrate an intent to arbitrate on a class basis impermissibly rely on
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extrinsic evidence, and they therefore fail. (Pl. Memo. at 13-14, 15-16); Millgard Corp. v. E.E. Cruz/Nab/Fronier-Kemper, No. 99 Civ. 2952, 2003 WL 22741664, at *2 (S.D.N.Y. Nov. 18, 2003) (“‘Only when the language of the contract is ambiguous may a court turn to extrinsic evidence of the contracting parties’ intent.’” (quoting Curry Road Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir. 1990)).
Further, to the extent that New York courts have weighed the right to proceed judicially on a class basis against an agreement to arbitrate, they have upheld the arbitration clauses even when doing so effectively foreclosed the ability to proceed as a class. See, e.g., Hayes v. County Bank, 26 A.D.3d 465, 467, 811 N.Y.S.2d 741, 743 (2d Dep’t 2006) (“[T]he fact that the arbitration agreements effectively preclude her from pursuing a class action does not alone render them substantively unconscionable.”); Tsadilas v. Providian National Bank, 13 A.D.3d 190, 191, 786 N.Y.S.2d 478, 480 (1st Dep’t 2004) (“The arbitration provision is enforceable even though it waives plaintiff’s right to bring a class action.”). Thus, any argument that class arbitration must be read into a silent contract because the plaintiff did not understand that, by agreeing to arbitrate, she “would be waiving her right to assert substantive class claims in any forum” (Pl. Memo. at 14), must fail, especially in light of the Supreme Court’s affirmative statement that “[a]n implicit agreement to authorize
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class-action arbitration [] is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate,” Stolt-Nielsen, __ U.S. at __, 130 S. Ct. at 1775.
Finally, other judges sitting in this district have rejected arguments that rely on the circumstances of the parties’ relationship or relevant customs and practices to establish an implied agreement to arbitrate on a class basis. See Jock v. Sterling Jewelers, Inc., 725 F. Supp. 2d 444, 450 (S.D.N.Y. 2010) (“While contextual factors such as the sophistication of the parties, their relative bargaining position with respect to the arbitration clauses, and any pertinent tradition of dispute resolution might aid in construing ambiguous manifestations of the parties’ intentions, they cannot establish assent to class arbitration where, as here, the contract itself provides no reason to believe the parties reached any agreement on that issue.”). In this case, as in Jock, there is simply no evidence on the face of the contract that the parties agreed to submit to class-based arbitration. See also Fensterstock v. Education Finance Partners, 611 F.3d 124, 141 (2d Cir. 2010) (“[E]xcising the Note’s class action and class arbitration waiver clause leaves the Note silent as to the permissibility of class-based arbitration, and under Stolt-Nielsen we have no authority to order class-based arbitration.”); Sutherland v. Ernst & Young LLP, __ F. Supp. 2d __,
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__, No. 10 Civ. 3332, 2011 WL 838900, at *7 (S.D.N.Y. March 3, 2011) (“In accordance with Stolt-Nielsen, class arbitration may not be imposed on parties whose arbitration agreements are silent on the permissibility of class proceedings.”). Therefore, under Stolt-Nielsen and New York contract law, the defendant cannot be compelled to submit to class arbitration; the Employment Agreement’s arbitrability clause thus operates as an implied waiver of the plaintiff’s class claims in this action.
E. Vindication of Statutory Rights It is well established that Congress intended claims under Title VII to be arbitrable. See Circuit City, 532 U.S. at 123 (“The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law.”); Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 147 (2d Cir. 2004) (“Courts have consistently found that [statutory claims of employment discrimination] can be subject to mandatory arbitration.” (citing Desiderio v. National Association of Securities Dealers, Inc., 191 F.3d 198, 206 (2d Cir. 1999))); Henry v. Turner Construction Co., No. 09 Civ. 9366, 2010 WL 2399423, at *2 (S.D.N.Y. June 14, 2010) (“It is well settled that Congress intends Title VII claims to be arbitrable.” (citing 14 Penn Plaza
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LLC v. Pyett, __ U.S. __, __, 129 S. Ct. 1456, 1467 (2009)). However, “‘[b]y agreeing to arbitrate a statutory claim, a
party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’” Circuit City, 532 U.S. at 123 (alteration in original) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)); Desiderio, 191 F.3d at 205-06 (“Moreover, the substantive rights found in the statute are not in any way diminished by our holding that arbitration may be compelled in this case, since only the forum -- an arbitral rather than a judicial one -- is affected, and plaintiff’s rights may be as fully vindicated in the former as in the latter.”); see also Mastrobuono, 514 U.S. at 63-64 (refusing to enforce choice-of-law clause that would have practical effect of prohibiting arbitrator from awarding punitive damages because “it seems unlikely that petitioners were actually aware . . . that by signing a standard-form agreement to arbitrate disputes they might be giving up an important substantive right”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985) (noting that if arbitration clause and other contractual provisions “operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies,” “we would have little hesitation in condemning the agreement as against public policy”). Indeed, “the arbitration of
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a statutory claim will be compelled only if that claim can be effectively vindicated in the arbitral forum.” Sutherland, 2011 WL 838900, at *2; see also Herrera v. Katz Communications, Inc., 532 F. Supp. 2d 644, 646 (S.D.N.Y. 2008) (“[A] statutory cause of action will not be appropriate for arbitration if ‘the prospective litigant [cannot] effectively . . . vindicate [his or her] statutory cause of action in the arbitral forum.’” (alterations in original) (quoting Gilmer, 500 U.S. at 28)); Pyett, __ U.S. at __, 129 S. Ct. at 1474 (“[A] substantive waiver of federally protected civil rights will not be upheld.”).
When a plaintiff’s statutory rights are not capable of vindication through arbitration, the “federal substantive law of arbitrability,” grounded in the FAA, allows federal courts to declare otherwise operative arbitration clauses unenforceable through a “vindication of statutory rights analysis.” American Express II, 634 F.3d at 194; see also American Express I, 554 F.3d at 320 (“We do not follow these cases because they all rely on findings of unconscionability under state law, while we have relied here on a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability.”); Sutherland, 2011 WL 838900, at *7 (“[T]he Court finds that the class waiver provision here at issue is unenforceable because it prevents [the plaintiff] from vindicating her statutory rights.”); see also
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Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir. 2006) (severing as unenforceable provision of arbitration agreement limiting availability of treble damages under antitrust statute); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n.14 (5th Cir. 2003) (severing restriction on available remedies from arbitration agreement after finding that “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir. 1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute, [] the arbitration clause is not enforceable” and finding that insulation of employer from damages and equitable relief rendered clause unenforceable); DeGaetano v. Smith Barney, Inc., 983 F. Supp. 459, 464-65 (S.D.N.Y. 1997) (“[The defendant’s] Arbitration Policy -- to the extent that it prevents prevailing plaintiffs from obtaining an award of attorney’s fees in employment discrimination cases -- is void as a matter of public policy.”); cf. Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 15-16 (1st Cir. 1999) (finding possibility of high forum fees or refusal to award statutory attorneys’ fees not fatal to arbitration agreement where arbitrator has capacity to award all remedies and court could review arbitrator’s imposition of “unreasonable fees” on employee).
In American Express I, the Second Circuit concluded that a
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class action waiver contained within an arbitration agreement was unenforceable because, given the great expense of pursuing antitrust litigation and the small individual recovery each plaintiff could expect, the waiver would have the practical effect of ensuring no claims would be brought at all, granting the defendant “de facto immunity from . . . liability.” 554 F.3d at 320. The court found that this was a “valid ground” for the revocation of the class waiver under Section 2 of the FAA, and as such the provision was unenforceable. Id. at 320. Although the Supreme Court vacated this decision and remanded it for reconsideration in light of its decision in Stolt-Nielsen, __ U.S. __, 130 S. Ct. 2401, on further review the Second Circuit upheld its conclusion that “as the class action waiver in this case precludes plaintiffs from enforcing their statutory rights, we find the arbitration provision unenforceable.” 634 F.3d at 199. The court distinguished Stolt-Nielsen, finding that it established “that parties cannot be forced to engage in a class arbitration absent a contractual agreement to do so,” but did not render “a contractual clause barring class arbitration [] per se enforceable.” Id. at 193-94. The court again cited Supreme Court dicta indicating there might be “instances in which an arbitration agreement contained provisions that would be unenforceable because they would prevent a prospective litigant from vindicating its
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rights . . . in an arbitral forum,” id. at 197 (citing Mitsubishi Motors Corp., 473 U.S. at 637), and reaffirmed that the prohibitive cost of litigating the plaintiff’s claims on an individual basis rendered the class action waiver unenforceable, id. at 197-99.
In fact, the Second Circuit has recently evinced a strong commitment to the vindication of statutory rights analysis, indicating in dicta a willingness to declare unenforceable an arbitration agreement containing a shortened statute of limitations and a fee-shifting provision that would “significantly diminish a litigant’s rights under Title VII.” Ragone v. Atlantic Video at Manhattan Center, 595 F.3d 115, 125-26 (2d Cir. 2010). The court in that case reiterated that
a federal court will compel arbitration of a statutory claim only if it is clear that “the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum,” such that the statute under which its claims are brought “will continue to serve both its remedial and deterrent function.” Id. at 125 (quoting Mitsubishi Motors Corp., 473 U.S. at 637). The court did not have occasion to apply this rule because the defendants had waived enforcement of the offending provisions of the agreement. Id. Though only dicta, these statements shed light on the Second Circuit’s holdings in American Express by demonstrating, first, that the vindication of statutory rights analysis may apply with equal force to enforcement of Title VII
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rights as to effectuation of antitrust prohibitions under the Sherman Act. E.g., American Express I, 554 F.3d at 319 (citing “a firm principle of antitrust law” that “an agreement which in practice acts as a waiver of future liability under the federal antitrust statutes is void as a matter of public policy”); see also 14 Penn Plaza LLC, __ U.S. at __, 129 S. Ct. at 1469 (“[F]ederal antidiscrimination rights may not be prospectively waived.”). Second, they show that the holdings of American Express not apply only to “negative value” class action claims, that is, claims that are so small in value that it is not economically viable to pursue them as individual claims. (Def. Reply Memo. at 3-6). The Second Circuit is plainly willing to apply the federal substantive law of arbitrability to a variety of claims that fall under the FAA.
In this case, the plaintiff has alleged that the defendants violated Title VII by engaging “in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents, and Managing Directors.” (Compl., ¶ 138). “Disparate treatment claims under Title VII generally are of two types: (1) individual disparate treatment claims . . . and (2) pattern-or-practice disparate treatment claims that center on group-wide allegations of intentional discrimination.” Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147, 158 n.3 (2d Cir. 2001). “Pattern-or-
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practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals. To succeed on a pattern-or-practice claim, plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s ‘standard operating procedure.’” Id. at 158 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977)).
Although Title VII initially envisioned that pattern or practice claims would be made by the government, 42 U.S.C. § 2000e6; International Brotherhood of Teamsters, 431 U.S. at 328 n.1, courts have unequivocally granted private individuals the right to vindicate those claims, Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984); see also Tucker v. Gonzales, No. 03 Civ. 3106, 2005 WL 2385844, at *3 (S.D.N.Y. Sept. 27, 2005); Melani v. Board of Higher Education, 561 F. Supp. 769, 773 n.5 (S.D.N.Y. 1983). However, there is a consensus among courts in this district that pattern or practice claims may not be brought by a single individual, but rather must be pursued by a class. Houston v. Manheim-New York, No. 09 Civ. 4544, 2010 WL 6121688, at *5-6 (S.D.N.Y. July 7, 2010) (“Pattern or practice discrimination claims . . . must be made as a class action.”), report and recommendation adopted, 2011 WL 924199 (S.D.N.Y. March 16, 2011); United States v.
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City of New York, 631 F. Supp. 2d 419, 427 (S.D.N.Y. 2009) (“[T]his Court holds that individuals cannot maintain a private, non-class, pattern-or-practice claim.”); Marrow v. Potter, No. 06 Civ. 13681, 2010 WL 6334856, at *7 (S.D.N.Y. May 27, 2010) (same); see also Garrett v. Mazza, No. 97 Civ. 9148, 2010 WL 653489, at *11 n.8 (S.D.N.Y. Feb. 22, 2010) (“While neither the Supreme Court nor the Second Circuit have specifically addressed the question of whether an individual plaintiff can maintain a private, non-class action pattern or practice claim, district courts within this circuit have suggested that they cannot.”); Tucker, 2005 WL 2385844, at *4-5 (finding same and dismissing individual plaintiff’s pattern or practice claim); cf. Davis v. Coca-Cola Bottling Co. Consolidated, 516 F.3d 955, 964-67 (11th Cir. 2008) (finding pattern or practice claims may be brought by the EEOC or as a class action pursuant to Rule 23 “by one or more of the similarly situated employees”); Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106-08 (10th Cir. 2001) (noting differences between pattern or practice and individualized discrimination claims and finding decertification of class improper where trial court did not recognize plaintiffs were making pattern or practice claim).
Under the Supreme Court’s initial formulation of the burdenshifting scheme in pattern or practice claims, plaintiffs need not establish individual instances of discrimination; they need only
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establish that a pattern or practice of discrimination exists. International Brotherhood of Teamsters, 431 U.S. at 360 & n.46. Plaintiffs generally rely on statistical evidence and “testimony from protected class members” to meet this burden; even if an employer then rebuts individual instances of discrimination, it must demonstrate that statistical evidence “‘is either inaccurate or insignificant’” in order to escape liability.5 Robinson, 267 F.3d at 158-59 (quoting International Brotherhood of Teamsters, 431 U.S. at 360). Once a pattern or practice of discrimination is found, an individual plaintiff carries a rebuttable presumption that she was the victim of discrimination into the second phase of trial at which damages are established. International Brotherhood of Teamsters, 431 U.S. at 359, n.45, 361-62; see also Robinson, 267 F.3d at 159. Additionally, the existence of a pattern or practice is sufficient to allow an award of prospective relief, without any evidence related to individual victims of discrimination. International Brotherhood of Teamsters, 431 U.S. at 361.
Thus, the difference between the showings required for individual and pattern or practice discrimination claims is
5 The plaintiff also notes that it is exceedingly difficult to prove a pattern or practice of discrimination as an individual because individuals are not afforded the broad-based discovery that is necessary for development of this statistical proof. (Pl. Memo. at 6-7).
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substantive: first, because in establishing a prima facie pattern or practice case a plaintiff may rely entirely on statistical evidence, and, second, because “[t]he effect of the presumption from the liability stage is to substantially lessen each class member’s evidentiary burden relative to that which would be required if the employee were proceeding separately with an individual disparate treatment claim under the McDonnell Douglas framework.” Robinson, 267 F.3d at 159; see also Glass v. IDS Financial Services, Inc., 798 F. Supp. 1411, 1416 (D. Minn. 1992) (finding that “burdens of proof also vary significantly between” individual and pattern or practice discrimination claims). Although a Rule 23 class action alone “neither change[s] plaintiffs’ separate entitlements to relief nor abridge[s] defendants’ rights,” Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., __ U.S. __, __, 130 S. Ct. 1431, 1443 (2010), and is “ancillary to the litigation of substantive claims,” Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980); (Def. Reply Memo. at 7), Title VII, as construed in the case law, makes substantively distinct claims available to those victims of alleged discrimination proceeding individually and those proceeding as a class.6 For this reason, finding that the plaintiff impliedly
6 Although the case law plainly precludes individuals from bringing pattern or practice claims, the theoretical basis for this
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agreed to waive her right to proceed on a class basis by agreeing
to arbitrate any Employment Related Matters would prevent the
plaintiff from vindicating her statutory cause of action.7 Only by
is unclear. Most courts simply state the rule as ipse dixit without further analysis. See, e.g., Baron v. New York City Department of Education, No. 06 CV 2816, 2009 WL 1938975, at *6 (E.D.N.Y. July 7, 2009) (“This case, however, is neither a pattern-or-practice nor a disparate-impact case; rather, it presents an individual claim of disparate treatment. As the Court has previously observed, ‘[s]tatistics alone are insufficient in a disparate-treatment claim because an individual plaintiff must prove that he or she in particular has been discriminated against.’” (quoting Drake v. Delta Air Lines, Inc., No. 94 CV 5944, 2005 WL 1743816, at *6 (E.D.N.Y. July 21, 2005)); Krish v. Connecticut Ear, Nose & Throat, Sinus & Allergy Specialists, P.C., 607 F. Supp. 2d 324, 331 (D. Conn. 2009) (dismissing plaintiff’s pattern or practice discrimination claim as untenable because “[a]s the case law makes clear, the nature of proof that a plaintiff must offer in a pattern and practice claim differs from that in an individual claim”). The Eleventh Circuit has suggested that permitting individual pattern or practice claims would create problems of issue preclusion for other employees who might later seek to sue. See Davis, 516 F.3d at 968-69. In any event, even if there were no jurisprudential bar to bringing such claims on an individual basis, there are substantial practical ones. Specifically, a plaintiff would face obstacles obtaining discovery broad enough to make the prima facie showing required in a pattern or practice case. (Pl. Memo. at 67). She may also have difficulty marshaling the resources to prosecute such a complex claim on her own, thus implicating the same analysis under which the Second Circuit found arbitration to be precluded in American Express.
7 Indeed, the plaintiff’s ability to vindicate her statutory rights appears even more threatened in this case than was the ability of the plaintiffs in the American Express cases, for whom the class action waiver had the “practical effect” of ensuring they would not bring claims against the defendant. American Express II, 634 F.3d at 196. Given the case law in this district indicating the plaintiff may not bring a pattern or practice claim as an individual, she would have absolutely no recourse for proving her claim.
31

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 32 of 35
proceeding on a class basis can the totality of her substantive
claims against the defendants be adjudicated.8
F. Proper Disposition
In most cases where one portion of an otherwise valid
agreement is held to be unenforceable, that portion will be severed
from the agreement, leaving the remainder of the agreement’s terms
in place. Herrera, 532 F. Supp. 2d at 647 (“[T]he proper remedy
[for unenforceable attorneys’ fees clause] would be to sever the
invalid provision of the arbitration clause and compel arbitration
of the underlying dispute, rather than to invalidate the entire
arbitration clause.”); Beletsis v. Credit Suisse First Boston,
Corp., No. 01 Civ. 6266, 2002 WL 2031610, at *6 (S.D.N.Y. Sept. 4,
2002) (“When a contract contains both lawful and unlawful
8 Importantly, this determination does not rest on any suggestion that an arbitrator is less competent than a court, is less able to find facts than a court, or is generally unable to vindicate statutory rights. See 14 Penn Plaza LLC, __ U.S. at __, 129 S. Ct. at 1471. Case law from the Supreme Court and this Circuit makes plain that arbitrators are capable of vindicating the bulk of Title VII discrimination claims. Id. (“At bottom, objections centered on the nature of arbitration do not offer a credible basis for discrediting the choice of that forum to resolve statutory antidiscrimination claims.”); Circuit City, 532 U.S. at 123; Gold, 365 F.3d at 147-48; Desiderio, 191 F.3d at 205-06; Henry, 2010 WL 2399423, at *2. However, each of these cases involved individualized claims of discrimination, not class-based pattern or practice claims. It is only in the context of cases raising such claims -- considered in light of the skepticism of allowing class-based arbitration expressed by Stolt-Nielsen -- that arbitration clauses do not fully vindicate the plaintiff’s statutory rights.
32

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 33 of 35
objectives, courts typically enforce legal components of an agreement where the illegal provisions are incidental to the legal aspects and are not the main objective of the agreement.”). However, where, as here, the unenforceability stems from an inability to arbitrate on a class basis, the Supreme Court’s determination in Stolt-Nielsen that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so,” __ U.S. at __, 130 S. Ct. at 1775, “plainly precludes us from ordering class-wide arbitration,” American Express II, 634 F.3d at 200. Thus, the appropriate resolution is to deny the defendants’ motion to compel arbitration. See Fensterstock, 611 F.3d at 141 (“[T]he parties plainly did not agree that arbitration may be conducted on a classwide basis, and we do not see that an order for classwide arbitration can be premised on the Note’s severability provision . . . . Thus, excising the Note’s class action and class arbitration waiver clause leaves the Note silent as to the permissibility of class-based arbitration, and under Stolt-Nielsen we have no authority to order class-based arbitration.”); Sutherland, 2011 WL 838900, at *7 (“In accordance with Stolt-Nielsen, class arbitration may not be imposed on parties whose arbitration agreements are silent on the permissibility of class proceedings. The Court must accordingly deny [the
33

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 34 of 35
defendant] 's motion to compel arbitration. II (internal citations
omitted)) .
Conclusion
For the reasons set forth above, the defendants' motion to
stay the case and compel arbitration of Ms. Pari's claims (Docket
no. 23) is denied.
SO ORDERED.
~c~~:Es~ )Y'
~~ii~D STATES MAGISTRATE JUDGE
Dated: New York, New York April 28, 2010
Copies mailed this date: 

Adam T. Klein, Esq. 
 Cara E, Greene, Esq. 
 Jennifer L. Liu, Esq. 
 Mariko Hirose, Esq. 
 Outten & Golden, LLP 
 3 Park Avenue, 29th Floor 
 New York, New York 10016 

Kelly Dermody, Esq. 
 Anne B. Shaver, Esq. 
 Heather H. Wong, Esq. 
 Alison M. Stocking, Esq. 
 275 Battery Street, 30th Floor 
 San Francisco, CA 94111 

Theodore O. Rogers, Jr., Esq. 
 John F. Fullerton, III, Esq. 
 Margaret E. Bartlett, Esq. 

Suhana S. Han, Esq. 

Sullivan & Cromwell, LLP 
 125 Broad Street 
 New York, New York 10004 

34

Case 1:10-cv-06950-LBS -JCF Document 59 Filed 04/28/11 Page 35 of 35
Barbara B. Brown, Esq. 
 Paul, Hasting, Janofsky & Walker, LLP 
 875 15th Street N.W. 
 Washington, DC 20005 
 C. Geoffrey Weirich, Esq. Paul, Hastings, Janofsky & Walker, LLP 600 Peachtree Sreet, NE Suite 2400 Atlanta, GA 30308 Zachary D. Fasrnan, Esq. Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022
35 


 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

:

PARISI; and SHANNA ORLICH,

:

:

Plaintiffs,

:

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

(ECF)
10 Civ. 6950 (LBS) (JCF) MEMORANDUM AND ORDER

This is a putative class action in which the plaintiffs allege

that their employer, Goldman, Sachs & Co. and The Goldman Sachs

Group, Inc. (collectively, “Goldman Sachs”), has engaged in a

pattern of gender discrimination against its female professional

employees in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and New York City Human Rights

Law, N.Y.C. Admin. Code § 8-107 et seq. On November 22, 2010,

Goldman Sachs moved to stay the action with respect to one

representative plaintiff, Lisa Parisi (the “plaintiff”), and to

compel arbitration of her individual claims. On April 27, 2011,

the Supreme Court issued an opinion related to the enforcement of

arbitration clauses, AT&T Mobility LLC v. Concepcion, 563 U.S. __,

131 S. Ct. 1740 (2011). The next day, I issued a Memorandum and

Order denying the defendants’ motion. Chen-Oster v. Goldman, Sachs

& Co.,

F. Supp. 2d , No. 10 Civ. 6950, 2011 WL 1795297

(S.D.N.Y. April 28, 2011) (the “April 28 Order”). The defendants

have filed a motion for reconsideration of that Order in light of

1

the Supreme Court’s holding in Concepcion. For the reasons that follow, the motion for reconsideration is denied. Background
In the April 28 Order, after finding that this Court was the proper forum to determine the arbitrability of the plaintiff’s claims, Chen-Oster, 2011 WL 1795297, at *3, I held that the plaintiff’s employment contract included a binding arbitration agreement that encompassed her claims of gender discrimination pursuant to Title VII. Id. at *4-6. I further found that, under the Supreme Court’s holding in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. __, 130 S. Ct. 1758 (2010), the arbitration clause’s silence with respect to class arbitration rendered class arbitration unavailable to the plaintiff. ChenOster, 2011 WL 1795297, at *6-7. Nonetheless, I held that under Second Circuit precedent as set forth in In re American Express Merchants’ Litigation, 634 F.3d 187 (2d Cir. 2011) (“American Express II”), the federal common law of arbitrability precludes enforcement of an arbitration clause when doing so would interfere with a substantive federal statutory right. Chen-Oster, 2011 WL 1795297, at *8-10. Upon review of cases in which the plaintiff asserted that the defendant had engaged in a “pattern or practice” of employment discrimination in violation of Title VII, I determined that federal law creates a substantive right to be free from a “pattern or practice” of discrimination by an employer; I further concluded that, absent the ability to arbitrate on a class basis, mandating arbitration would preclude the plaintiff from
2

enforcing this right. Id. at *10-12. I therefore denied the

defendants’ motion to stay the case and compel arbitration. Id. at

*12-13.

On May 12, 2011, the defendants filed the instant motion for

reconsideration. They contend that the April 28 Order is

“fundamentally incompatible” with the Supreme Court’s ruling in

Concepcion, which established that “it is contrary to the intent of

Congress to decline to enforce per se arbitration agreements that

preclude class arbitration.” (Defendants’ Memorandum of Law in

Support of Motion for Reconsideration of Order Denying Motion to

Stay Plaintiff Parisi’s Claims and Compel Individual Arbitration

(“Def. Memo.”) at 1). Although recognizing that “the standard for

granting a motion for reconsideration in this Court is strict,” the

defendants note that the decision in Concepcion was issued very

shortly before the April 28 Order, which makes no mention of

Concepcion, and they therefore suggest that it is a “‘controlling

decision[] . . . that the court overlooked . . . that might

reasonably be expected to alter the conclusion reached by the

court.’”

(Def. Memo. at 1-2 (quoting Shrader v. CSX

Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995)). They argue

that Concepcion is controlling even though it “dealt with state law

and federal preemption issues, [while] the present case deals with

the application of two federal statutes” because it reinforces the

broad and consistent commitment of the Supreme Court, under the

Federal Arbitration Act (the “FAA”), to allowing enforcement of

arbitration agreements, even where enforcement prevents plaintiffs

3

from proceeding as a class. (Def. Memo. at 3-4). They go on to argue that Ms. Parisi has no substantive right to assert a pattern or practice claim, and that the conclusion that she does is incorrect, “[p]articularly in the wake of Concepcion.” (Def. Memo. at 3, 5-9). Discussion
A. Reconsideration “‘Reconsideration of a previous order by the court is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.’” Anderson News, L.L.C. v. American Media, Inc., 732 F. Supp. 2d 389, 406 (S.D.N.Y. 2010) (quoting Hinds County, Miss. v. Wachovia Bank N.A., 700 F. Supp. 2d 378, 407 (S.D.N.Y. 2010)). To prevail, a party “‘must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion.’” Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (quoting Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)); accord Local Civil Rule 6.3 (authorizing motion for reconsideration when there are “matters or controlling decisions which . . . the court has overlooked”); Lesch v. United States, 372 Fed. Appx. 182, 183 (2d Cir. 2010). “The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted). “A motion for
4

reconsideration is not an ‘opportunity for making new arguments that could have been previously advanced,’ nor is it a substitute for appeal.” Nieves v. New York City Police Department, 716 F. Supp. 2d 299, 303 (S.D.N.Y. 2010) (quoting Associated Press v. United States Department of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005)). Local Civil Rule 6.3, which provides for reconsideration, “‘must be narrowly construed and strictly applied.’” John Wiley & Sons, Inc. v. Swancoat, No. 08 Civ. 5672, 2011 WL 165420, at *1 (S.D.N.Y. Jan. 15, 2011) (quoting Newton v. City of New York, 07 Civ. 6211, 2010 WL 329891, at *1 (S.D.N.Y. Jan. 27, 2010)).
B. Concepcion The plaintiff surmises that I examined the Supreme Court’s decision in Concepcion prior to issuing the April 28 Order “and found it inapplicable.” (Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Reconsideration (“Pl. Memo.”) at 1). She is correct. Nevertheless, the impact of that decision on the already fluid law of arbitrability in the Second Circuit merits further discussion. The Supreme Court in Concepcion considered “whether the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.” 563 U.S. at __, 131 S. Ct. at 1744. Under the California common law contract rule at issue, arbitration clauses that contained class action waivers were frequently found to be unconscionable, provided that they met certain other requirements,
5

including that the waiver operated in practice to exempt one party from liability for particular wrongs. Id. at __, 131 S. Ct. at 1746. Writing for the Court, Justice Scalia noted that, pursuant to the “‘liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary,’” id. at __, 131 S. Ct. at 1749 (emphasis added) (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983)), the FAA preempts any state law that “prohibits outright the arbitration of a particular type of claim,” id. at __, 131 S. Ct. at 1747. Although the state law at issue in Concepcion was a law of unconscionability “normally thought to be generally applicable,” id. at __, 131 S. Ct. at 1747, Justice Scalia held that the rule, which “[r]equir[ed] the availability of classwide arbitration[,] interfere[d] with fundamental attributes of arbitration and thus create[d] a scheme inconsistent with the FAA,” id. at __, 131 S. Ct. at 1748. Justice Scalia determined that nonconsensual class arbitration was contrary to the goals of the FAA, id. at __, 131 S. Ct. at 1751-53, and held that “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons,” id. at __, 131 S. Ct. at 1753 (emphasis added). Thus, the California unconscionability rule was preempted as incompatible with both the “‘enforcement of private agreements and encouragement of efficient and speedy dispute resolution.’” Id. at __, 131 S. Ct. at 1749, 1753 (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)).
But, Concepcion involved the preemption of state contract law
6

by a federal preference for arbitration embodied in a federal
statute, the FAA. The Court’s analysis focused on the FAA’s
savings clause (allowing “arbitration agreements to be declared
unenforceable ‘upon such grounds as exist at law or in equity for
the revocation of any contract,’” id. at __, 131 S. Ct. at 1746
(quoting 9 U.S.C. § 2)), emphasizing that it did not save the state
contract law at issue in the case because “nothing in it suggests
an intent to preserve state-law rules that stand as an obstacle to
the accomplishment of the FAA’s objectives.” Concepcion, 563 U.S.
at __, 131 S. Ct. at 1748. This case demands consideration of a
separate issue: whether the FAA’s objectives are also paramount
when, as here, rights created by a competing federal statute are
infringed by an agreement to arbitrate.12 The Court’s analysis in
1 The defendants note that “it has long been held that the underlying purposes of Title VII and the FAA are consistent,” (Def. Memo. at 4 (citing Desiderio v. National Association of Securities Dealers, Inc., 191 F.3d 198, 205 (2d Cir. 1999)), and that Title VII itself provides for the use of arbitration “‘to resolve disputes arising under’” the statute (Def. Memo. at 4 (quoting Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071 (1991)). However, the Civil Rights Act provides for arbitration “where appropriate,” and the case law establishing the compatibility of the FAA and Title VII -- as laid out in the April 28 Order, Chen-Oster, 2011 WL 1795297, at *8 -- does not consider that compatibility in the context of pattern or practice claims. Furthermore, it is disingenuous for the defendants to assert that the plaintiff’s admission that “it is ‘widely accepted’ that arbitration of Title VII claims does not diminish ‘substantive rights found in the statute’” is dispositive, when the plaintiff only did so in the context of pointing out that such holdings have only come outside of the pattern or practice context. (Defendants’ Reply Memorandum of Law in Support of Motion for Reconsideration (“Def. Reply Memo.”) at 1-2; Pl. Memo. at 4).
2 The defendants contend that focusing on this distinction “misses the point” because “[f]ederal courts routinely look to preemption cases, and in particular to the federal policies identified in them, for guidance in harmonizing federal statutes.”
7

Concepcion relied in part on the idea that, because class
arbitration is an awkward procedure that cannot be read into
arbitration contracts, “class arbitration, to the extent it is
manufactured by [state common law] rather than consensual, is
inconsistent with the FAA,” and therefore preempted by it. 563
U.S. at __, 131 S. Ct. at 1750-51 (citing Stolt-Nielsen S.A., 559
U.S. at __, 129 S. Ct. at 1773-76)). In this case, as discussed in
the April 28 Order, what is at issue is not a right to proceed,
procedurally, as a class, but rather the right, guaranteed by Title
VII, to be free from discriminatory employment practices. Chen-
Oster, 2011 WL 1795297, at *12. Because arbitrators will apply the
same substantive law of Title VII as would be applied by a federal
court, see Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 27 (2d
Cir. 2000), and the substantive law of Title VII as applied by the
federal courts prohibits individuals from bringing pattern or
practice claims, Chen-Oster, 2011 WL 1795297, at *11, *12 n.6, this
(Def. Reply Memo. at 3). However, even the authorities the defendants cite for this proposition acknowledge that “preemption does not describe the effect of one federal law upon another; it refers to the supremacy of federal law over state law when Congress, acting within its enumerated powers, intends one to displace the other.” Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 608 (6th Cir. 2004). Further, both cases cited by the defendants apply a sui generis Supreme Court decision controlling the field of labor relations. See Adkins v. Mireles, 526 F.3d 531, 542 (9th Cir. 2008); Trollinger, 370 F.3d at 607-12. Existing Supreme Court precedent in the field of arbitration, to the extent that it considers the intersection of the FAA with federal statutory rights, suggests that the FAA may be subjugated to competing federal statutory rights, see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985), and existing Second Circuit precedent holds the same, as will be discussed below. Concepcion does not countermand this rule.
8

case implicates federal statutory (Congressionally-created) rights, not the “judicially-created obstacle[] to the enforcement of agreements to arbitrate” that was at issue in Concepcion. (See Def. Reply Memo. at 4). In other words, the discussion in Concepcion is more analogous to the discussion in the April 28 Order of the plaintiff’s desire to proceed as class representative under Rule 23, Chen-Oster, 2011 WL 1795297, at *12 -- which does not create a federal statutory right to proceed on a class basis -than to the determination of her substantive right under Title VII to bring a pattern or practice claim under Title VII, id. at *1012. Although the defendants note that the April 28 Order, like the result that was overturned in Concepcion, “invalidat[ed] [] an arbitration agreement because it does not allow for class arbitration,” the right at the center of this case is not the right to proceed on a class basis but rather the right to vindicate a claim that an employer has engaged in a pattern or practice of discrimination. (Def. Memo. at 3). Under the law as it currently stands, the plaintiff may not do so individually. Chen-Oster, 2011 WL 1795297, at *11.
Certainly, the Court’s opinion in Concepcion raises a question as to whether the Supreme Court, faced squarely with the issue presented here, would protect the full robustness of a federal right -- particularly when that right requires proceeding on a class basis -- or would mandate arbitration provided that some equivalent, individual right would be protected in that sphere. Nonetheless, the Supreme Court has not been presented with that
9

question, and it has indicated in the past that “statutory claims may be the subject of an arbitration agreement” only because “‘[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’” Gilmer, 500 U.S. at 26 (alteration in original) (quoting Mitsubishi Motors Corp., 473 U.S. at 628). Indeed,
[j]ust as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate will be held unenforceable. Mitsubishi Motors Corp., 473 U.S. at 627. Furthermore, it remains the law of the Second Circuit that an arbitration provision which “precludes plaintiffs from enforcing their statutory rights” is unenforceable. American Express II, 634 F.3d at 199; accord Ragone v. Atlantic Video at Manhattan Center, 595 F.3d 115, 125 (2d Cir. 2010). This case law is clear, and I remain obligated to follow it. See D’Antuono v. Service Road Corp., F. Supp. 2d , , No. 3:11 CV 33, 2011 WL 2175932, at *27, *29 (D. Conn. May 25, 2011) (noting “doubts about the continuing validity” of American Express II and Ragone in light of Concepcion but holding that “[u]nless and until either the Second Circuit or the United States Supreme Court disavows [their holdings], this Court will continue to follow” them). Indeed, the plaintiff’s claims present an even stronger case for application of the federal common law of arbitrability than did the arbitration
10

clause at issue in American Express II. In that case, the class action waiver “effectively” interfered with the vindication of statutory rights because it was unlikely that plaintiffs would bring their “negative-value” claims under the statute except as a class. 634 F.3d at 194-99. In this case, the plaintiff would be foreclosed from bringing her pattern or practice claim not only by the practicality of economic pressures limiting the value of her claim compared with the cost of prosecuting it, but also by the actuality of federal case law interpreting Title VII. To the extent that she has a substantive right under Title VII to bring a pattern or practice claim rather than an individual disparate impact claim, she would be precluded from enforcing that right by the arbitration clause in her employment contract.
The Second Circuit may ultimately determine that Concepcion warrants a further modification in the law of arbitrability in this Circuit; however, no change relevant to this case is clearly mandated.3 For that reason, Concepcion does not constitute a “controlling decision” that justifies reconsideration. See Lesch,
3 I take note that the Supreme Court has vacated and remanded the Second Circuit’s decision in Fensterstock v. Education Finance Partners, 611 F.3d 124 (2010), in light of Concepcion. See Affiliated Computer Services v. Fensterstock, __ S. Ct. __, No. 10987, 2011 WL 338870 (June 13, 2011). Fensterstock applied the same California rule of unconscionability that was found to be preempted in Concepcion and did not consider the federal common law of arbitrability, nor the intersection between the FAA and federal statutory rights. See Fensterstock, 611 F.3d at 132-38. Therefore, for the same reasons that Concepcion does not dictate a contrary result in this case, the vacatur of Fensterstock also does not.
11

372 Fed. Appx. at 183.4
C. Substantive Nature of Pattern or Practice Claims
In arguing this motion, the parties have thoroughly briefed
the question of whether the plaintiff has a substantive right to
bring a pattern or practice claim under Title VII, rather than
solely pursuing an individual disparate impact claim. (Def. Memo.
at 5-9; Pl. Memo. at 5-10).5 However, this issue was raised by the
parties in their initial briefs (Plaintiffs’ Memorandum of Law in
Support of Opposition to Defendants’ Motion to Compel Arbitration
at 3-10; Defendants’ Reply Memorandum in Support of Motion to Stay
Plaintiff Parisi’s Claims and Compel Individual Arbitration at 3-
8). I then addressed it fully in the April 28 Order. Chen-Oster,
2011 WL 1795297, at *10-12. “[A] motion to reconsider should not
4 On June 28, 2011, the defendants submitted a Notice of Supplemental Authority attaching a copy of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, No. 10–277, 2011 WL 2437013 (June 20, 2011). They contend that “the Supreme Court’s articulation in Dukes of the standards applicable to class certification under Fed. R. Civ. P. 23(a) and 23(b)(2) is directly relevant to this Court’s analysis of whether Plaintiff Parisi has a substantive statutory right to bring claims on behalf of putative class members.” (Notice of Supplemental Authority in Support of Defendants’ Motion for Reconsideration of Order Denying Defendants’ Motion to Stay Plaintiff Parisi’s Claims and Compel Individual Arbitration at 1). This authority may be relevant to the substance of the plaintiff’s pattern or practice claim and her ability to obtain certification of a class under Rule 23, but it is not pertinent to her ability or right to bring a pattern or practice claim to the court. See Dukes, __ U.S. at __, 2011 WL 2437013, at *9-10.
5 The related question raised by the defendants in this motion of whether an arbitrator is the proper authority to decide whether or not the plaintiff may utilize the “pattern-or-practice method of proof” is subsumed in the question of whether Title VII and related case law create a substantive pattern or practice claim, or merely a procedural pattern or practice “method of proof.”
12

be granted where the moving party seeks solely to

itigate an

issue already decided. If Shrader, 70 F.3d at 257; accord Hinds

County, Miss., 700 F. Supp. 2d at 407. The defendants have not

pointed to authority that was overlooked upon initial consideration

of the issue, nor am I persuaded that my determination was

erroneous. See Anderson News, L.L.C., 732 F. Supp. 2d at 406. The

defendants' arguments therefore do not merit employing the

"extraordinary remedy" of reconsideration. See Hinds County, 


Miss., 700 F. Supp. 2d at 407. 


Conclusion 


For the reasons discussed above, the defendants' motion for

reconsideration is denied.

SO ORDERED.

-(-V-..

AMES C. FRANCIS IV ITED STATES MAGISTRATE JUDGE

Dated:

New York, New York July 7, 2011

Copies mailed this date: 


Cara E, Greene, Esq. 

Adam T. Klein, Esq. 
 Jennier L. Liu, Esq. 
 Justin M. Swartz, Esq. 
 Mariko Hirose, Esq. 
 Outten & Golden, LLP 
 3 Park Avenue, 29th Floor 
 New York, New York 10016 


Paul W. Mollica, Esq. 
 Outten & Golden, LLP 

203 North LaSalle Street. 
 Suite 2100 
 Chicago, IL 60603 


13 


Alison M. Stocking, Esq. 
 Anne B. Shaver, Esq. 
 Heather H. Wong, Esq. 
 Kelly Dermody, Esq. 
 Lieff Cabraser Heimann & Bernstein LLP 
 275 Battery Street, 30th Floor 
 San Francisco, CA 94111 
 Theodore O. Rogers, Jr., Esq. 
 John F. Fullerton, III, Esq. 
 Margaret E. Bartlett, Esq. 
 Suhana S. Han, Esq. 
 Sullivan & Cromwell, LLP 
 125 Broad Street 
 New York, New York 10004 
 Barbara B. Brown, Esq. 
 Paul, Hasting, Janofsky & Walker, LLP 
 875 15th Street N.W. 
 Washington, DC 20005 
 C. Geoffrey Weirich, Esq. Paul, Hastings, Janofsky & Walker, LLP 600 Peachtree Sreet, NE Suite 2400 Atlanta, GA 30308 Zachary D. Fasman, Esq. Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022
14 


 
 Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 1 of 71

OUTTEN && GOLDEN LLP Adam T. Klein Cannelyn P. Malalis Carma E. Greene Jennifer L. Liu 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005

LIEFF, CABRASER, HEIMMANN & BERNSTEIN, LLP
Kelly M. Dermody (admitted pro hac vice) Anne B. Shaver (admitted pro hac vice) Alison M. Stocking (admitted pro hac vice) 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

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

H. CRISTINA CHEN-OSTER; LISA PARISI; and SHANNA ORLICH,
Plainttiffs, - against-
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,
Defenndants.

No. 10 Civ. 6950 (LBS) (JCF)
FIRST AMENDED CLASS ACTION COMPLAINT (Trial bvy Jury Demanded)

Individual and Representative Plaintiffs H. Cristina Chen-Oster, Lisa Parisi, and Shanna

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.D.,l(t t:t This is a class actio;;n;;.b";r,;o;;u,og;:,h=.t..b;",y-==f-e;;m;;..a.;l;e;;.p.-"r,o-"=-,,s,,.s,~(~lif.'_.Jo..-~-.:•J:,>;,n-.;".l..;;~,""~la;r~'lt."."~"'.· ~~",<'~~-"~i'f".\.e·:'~'!~ 6WVtii!l";.''dg.- :":•.:.a-t_SNS-•: 'n•::f-.t-- .(·":..-.)Gi.-- ,;.-·_-o,_."l_.d-_-\\.1.~mI an,

Sachs & Co. ("GS") and Defendant The Goldman Sachs Group, Inc. ("GS Group") (collectively,

"Goldman Sachs"), alleging violations of Title VII of the Civil Rights Act of 1964,42 U.S.c.

§§ 2000e et seq. ("Title VII"); and the New York City Human Rights Law, Administrative Code

ofthe City of New York § 8-107 et seq. ("NYCHRL").

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2. Goldman Sachs is a global investment banking, securities and investment management finn. The fIrm is famously secretive. Until its IPO and conversion to a corporation in 1999, the fIrm operated as a partnership with relatively little public oversight and regulation. Its culture has been described as insular, and its employees intensely loyal. The fiIrm is also famously profItable. In 2009, Goldman Sachs generated $45 billion in net revenues and $13 billion in net earnings. Goldman Sachs credits its employees as "a major strength and principal reason" for its success on Wall Street. And it pays them accordingly-in 2009, it spent $16 billion on employee compensation and benefIts alone.
3. Goldman Sachs has distributed the benefIts of its enormous success unequaUllysystematically favoring male professionals at the expense of their female counterparts. At nearly all levels of its management ranks, it has paid its female professionals less than similarly situated male professionals, even though they hold equivalent positions and perform the same or substantially similar work with similar or in some cases superior results.
4. Goldman maintains policies and practices for promoting its employees that result in the disproportionate promotion of men over equally or more qualifIied women. As a result, female professionals have been systematically circumvented and excluded from promotion opportunities that are routinely afforded to their male counterparts.
5. The resulting underrepresentation of women in Goldman Sachs' management ranks is stark. The number of women in management positions at Goldman Sachs dwindles as the level of management rises-from Associates, to Vice Presidents, to Managing Directors, to Partners, and fIinally to the fIirm's management committee and executive offIcers. According to fIgures released by Goldman Sachs in 2009, women made up only 29% of the fIrm's Vice Presidents and 17% of Managing Directors. According to 2008 fIigures, women were only 14%

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of its Partners. Today, only 4 members of its 30-person management committee (roughly 13%) are women. Of its nine executive officers, only a single one is female; she co-heads the Legal Department with the firm's other General Counsel, a man.
6. Women at Goldman Sachs have received less compensation and have been promoted less frequently than their male counterparts as a result of the firm's discriminatory policies, patterns, and/or practices. The violations of its female employees' rights are systemic, are based upon company-wide policies and practices, and are the result of unchecked gender bias that pervades Goldman Sachs' corporate culture. They have not been isolated or exceptional incidents, but rather the regular and predictable result of Goldman Sachs' company-wide policies and practices and lack of proper accountability measures to ensure fairness.
7. Goldman Sachs' employment practices have a disparate impact on women. Specifically, the dual-track performance review process results in disproportionately higher rankings for male professional employees than their female comparators. In addition, Goldman Sachs' uniform, secretive procedure for determining employees' compensation has a disparate impact on female professional employees. There are no published criteria for determining compensation, and compensation is not determined by any objective measure of performance, such as an employee's profits and losses or performance evaluation score. The compensation procedure results in a disproportionately low compensation rate for women compared with similarly situated males.
8. Furthermore, these policies, patterns, and/or practices are no accident. Rather, they are part and parcel of an outdated corporate culture. Goldman Sachs has intentionally implemented these company-wide policies and practices in order to pay their male employees more money than their female counterparts, and to promote them more frequently.

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9. These company-wide policies and practices, while facially neutral, have had an adverse impact on the compensation, promotion, and performance evaluations of female employees as compared to their male counterparts. Moreover, because other terms and conditions of employment, such as business opportunities and professional support, are determined by an employee's quartile ranking, Goldman Sachs' discriminatory practices adversely affect women in these arenas as well.
10. Accordingly, in addition to bringing this action on their own behalf, Plaintiffs also bring this action on behalf of a class of similarly situated current and former female Associates, Vice Presidents, and Managing Directors employed by Goldman Sachs in revenue-generating divisionsI ("the Class"), in order to end Goldman Sachs' discriminatory policies and/or practices and to make the Class whole.
PARTIES Plaintiffs
H Cristina Chen-Oster 11. PlaintiffH. Cristina Chen-Oster ("Chen-Oster") is a woman who lives in Monmouth County, in the State of New Jersey. She is a citizen ofthe United States. 12. Chen-Oster was employed by Goldman Sachs from approximately March 1997 to March 2005 in New York, New York. Lisa Parisi 13. Plaintiff Lisa Parisi ("Parisi") is a woman who lives in Fulton County, in the State of Georgia. She is a citizen of the United States.

1 Revenue-generating divisions at Goldman Sachs include Investment Banking, Investment Management, Securities, and Merchant BankinglPrivate Equity.

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14. Parisi was employed by Goldman Sachs from approximately August 2001 to March 2006 in New York, New York, and from approximately March 2006 to November 2008 in Atlanta, Georgia.
Shanna Orlich 15. PlaintiffShanna Orlich ("Orlich") is a woman who lives in Hudson County, in the State of New Jersey. She is a citizen of the United States. 16. Orlich was employed by Goldman Sachs during the summer of 2006 and from approximately July 2007 to November 2008 in New York, New York. Defendants Goldman. Sachs & Co. 17. Upon information and belief, Defendant Goldman, Sachs & Co. ("GS") is a limited partnership formed under the laws of the State of New York with a place of business within the City and County of New York at 200 West Street, New York, New York 10282. 18. Upon information and belief, Defendant GS maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 19. During all relevant times, Defendant GS was Plaintiffs' employer within the meaning of all applicable statutes. 20. On information and belief, at all times pertinent hereto, Defendant GS has employed more than five hundred people. GS is a wholly owned subsidiary of The Goldman Sachs Group, Inc. The Goldman Sachs Group. Inc. 21. Upon information and belieeff, Defendant The Goldman Sachs Group, Inc. ("GS Group") is a Delaware corporation doing business within New York County in the State of New

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York and maintains corporate headquarters within the City and County of New York at 200 West Street, New York, New York 10282.
22. Upon information and belief, Defendant GS Group maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
23. During all relevant times, Defendant GS Group was Plaintiffs' employer within the meaning of all applicable statutes.
24. On information and belief, at all times pertinent hereto, Defendant GS Group has employed more than five hundred people.
JJURISDICTION AND VENUE 25. This Court has original subject matter jurisdiction over the Title VII claims pursuant to 28 U.S..Cc. §§ 1331 and 1343, because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights. 26. This Court has original jurisdiction over the NYCHRL claims in this action under the Class Action Fairness Act, 28 U.S.C. § 1332(d). 1Tbhis is a putative class action in which: (1) there are 100 or more members in the Class; (2) at least some members of the proposed class have a different citizenship from at least one Defendant; and (3) the claims ofthe proposed class members exceed $5,000,000.00 in the aggregate. 27. In addition, this Court has supplemental jurisdiction over the NYCHRL claims under 28 U.S.C. § 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution. 28. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.c. § 2000e-5(f)(3), because Defendants conduct business and can be found in this district and a substantial part of the events and omissions giving rise to the claims alleged herein

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occurred in this district, and because the alleged unlawful employment practice was committed here, and employment records relevant to that practice are maintained and administered here.
29. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII claims. Chen-Oster filed a charge of gender discrimination and retaliation individually and on behalf of all similarly situated women employed by Goldman Sachs with the Equal Employment Opportunity Commission ("EEOC") on or about July 7,2005. Pursuant to the EEOC's worksharing agreement with the New York City Commission on Human Rights ("NYCCHR"), her charge is considered dually filed with the NYCCHR. By notice dated June 15,2010, the EEOC dismissed Chen-Oster's case and issued a Notice of Right to Sue.
30. On or about January 7,2010, Parisi filed a charge of gender discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC's worksharing agreement with the NYCCHR, her charge is considered dually filed with the NYCCHR.
31. On or about January 12, 2010, Orlich filed a charge of gender discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to the EEOC's worksharing agreement with the NYCCHR, her charge is considered dually filed with the NYCCHR.
32. Contemporaneously with the filing of this Complaint, Plaintiffs have mailed a copy to the New York City Commission of Human Rights and the Office of the Corporation Counsel ofthe City ofNew York, thereby satisfying the notice requirements of § 8-502 ofthe New York City Administrative Code.
33. Any and all other prerequisites to the filing of this suit have been met.

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FACTUAL ALLEGATIONS 34. Goldman Sachs maintains uniform employment, compensation, performance review, and promotion policies throughout the United States. Likewise, it cultivates and promotes a common corporate culture. Indeed, Goldman Sachs prides itself on "instilling the Goldman Sachs culture" in all of its employees through initiation programs, training, seminars, and Goldman Sachs' "360-degree" performance review process. 35. Goldman Sachs' offices throughout the country use a common organizational structure, organizing finance professionals as follows. Entry-level employees, typically straight out of college, hold the position of Analyst. Analysts can be promoted to Associate, which typically includes employees with two to five years of relevant experience and/or an MBA degree. The next position to which Associates can be promoted is Vice President. Above Vice Presidents are Managing Directors, and above Managing Directors are Partners. Finally, at the top of Goldman's management hierarchy sits a 30-person management committee, which includes its nine executive officers. 36. At the Associate, Vice President, and Managing Director levels, Goldman Sachs discriminates against women in (1) performance evaluations; (2) compensation; (3) promotions; (4) business opportunities; and (5) professional support, including but not limited to administrative support, training, and mentoring. Performance Evaluations 37. Goldman Sachs employs uniform procedures for evaluating employee performance that systematically underrate female professionals relative to their similarly situated male peers. 38. Upon information and belief, Goldman Sachs uses a "360-degree" employee review process, by which an employee's supervisors, co-workers, and subordinates review the

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employee's perfonnance for the year. Reviewers give the employee a numerical rating on a scale of 1 to 5, with 1 being the lowest score, and 5 being the highest. Reviewers also write comments about the employee's perfonnance.
39. After the 360-degree review process is complete, Goldman Sachs uses a computer algorithm to adjust for the leniency and harshness of reviewers. TIhlils adjustment produces the employee's "adjusted score," which supposedly determines the employee's quartile ranking.
40. Goldman Sachs managers are able to unduly influence the 360-degree evaluation process by requesting or requiring which superior, co-workers, and subordinates will evaluate an employee. Managers have the ability to add or remove a reviewer at their election.
41. More significantly, even though the adjusted perfonnance scores supposedly reflect perfonnance, Goldman Sachs requires its managers to place employees into quartiles that are forced ranked (i.e., managers must assign an equal number of people to each quartile), largely untethered to the perfonnance score. In this process, a manager can move an employee to a higher or lower quartile, without regard to the absolute values of the perfonnance evaluations or to the initial quartile ranking the employee earned in the public 360-degree review. There are a limited number of slots in the top quartile, and these spots most often go to male employees. It is these unvalidated quartile rankings that determine employees' compensation, eligibility for transfer and promotion, business opportunities, and professional support.
42. Together, Goldman Sachs' dual-track perfonnance evaluation procedures systematically underrate female employees relative to male emppllooyyeeeess-- that is, women, on average, receive lower 360-degree review scores, more negative reviews, and lower quartile

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rankings than men in similar positions who have delivered similar or worse objective performance. Compensation
43. Because female professionals at Goldman Sachs systematically receive worse performance reviews and rankings, they have fewer opportunities to earn similar levels of compensation than their male peers. Accordingly, female Associates, Vice Presidents, and Managing Directors earn less, on average, than their similarly situated male peers.
44. Goldman Sachs employs uniform, unvalidated procedures for determining employees' compensation that disparately impact female professionals. Goldman Sachs' compensation decisions are tightly controlled and extremely secretive. Goldman Sachs does not inform the employee how it arrived at his or her amount of compensation.
45. Goldman Sachs also allows a small corps of managers to employ standardless, unvalidated, andl/or illegitimate criteria without accountability measures to determine how credit is allocated to employees who share assets, accounts, or responsibility for a particular business. TIbIriis process is unvalidated and favors male employees who systematically receive more credit for generating revenues for the firm than their female co-workers.
46. Upon information and belief, an employee's quartile ranking is the major determinant of compensation. As described above, the quartile process is a common, unvalidated procedure through which discrimination occurs. Moreover, managers have discretion to pay one employee in a given quartile more than another employee in that same quartile, without reliance on legitimate, validated rationales.
47. Associates, Vice Presidents, and Managing Directors typically receive a base salary as well as a year-end bonus. In an average year, the year-end bonus can be many multiples of an employee's base salary. Goldman Sachs refers to total compensation, which

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includes base salary and bonus, as "Per Annum Total Compensation," or "PATC." Goldman Sachs' common, unvalidated, discriminatory compensation procedures have resulted in female professionals receiving lower PATC than their male peers for the same or substantially similar work.
48. Moreover, these gender disparities in compensation permanently depress the earnings potential of female finance professionals. Goldman Sachs compensates its finance professionals in each year as a percentage increase from their prior year's PATC. Because an employee's PATC is linked to her past levels of compensation, each discriminatory compensation decision further widens the pay gap between male and female finance professionals at Goldman Sachs. As a result of these discriminatory compensation policies and practices, female finance professionals at Goldman Sachs have earned less compensation during the liability period than their similarly situated male peers. Promotions
49. Goldman Sachs also employs unvalidated, and discriminatory procedures for selecting individuals for promotion.
50. Goldman Sachs does not employ legitimate, validated and/or objective criteria for promotion to Managing Director or Partner. To receive a promotion from Vice President to Managing Director, a Managing Director or Partner must nominate you, and the firm must approve the promotion. Similarly, Managing Directors must be nominated by a Partner to be eligible for a promotion, and the firm must decide to approve it. Promotions are not determined by objective performance measures.
51. The promotion process is tightly controlled among a small corps of managers whose decisions are based on inaccurate and unvalidated performance measures using a tap on

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the shoulder system. As a result, Goldman Sachs nominates and promotes an overwhelmingly disproportionate number of men, and passes over equally or more qualified women. Business Opportunities
52. Business opportunities are determined, at least in part, by the discriminatory quartiling system. Only employees in the top two quartiles will be chosen for the high-growth potential assignments. Because women are systematically underrepresented in the top two quartiles, they are given these types of opportunities less frequently than their male comparators.
53. Goldman Sachs also discriminates against its female employees by denying them opportunities offered to men to move laterally into other areas of the firm. Lateral transfers are made based on unvalidated criteria and a tap on the shoulder system. On information and belief, Goldman Sachs transfers an overwhelmingly disproportionate number of men into the most lucrative positions, and passes over equally or more qualified women without regard to accurate measures ofperformance.
54. These gender disparities in the allocation of business opportunities at Goldman Sachs perpetuate the disparities in performance evaluations, compensation, and promotions. Because women receive fewer and less lucrative opportunities than their male counterparts, it is more difficult for them to achieve the same level of performance. As a result, female financial professionals systematically receive worse performance evaluations, lower compensation, and fewer promotions despite equal or superior performance than their male comparators. Professional Support
55. Professional support is also influenced by the quartiling system. Goldman Sachs assigns the majority of its support resources to high-growth potential desks and strategic initiatives. Only employees in the top two quartiles will be chosen for these choice assignments. Because women are systematically underrepresented in the top two quartiles, they receive less

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professional support and resources than their male comparators. For example, female professionals at Goldman Sachs receive fewer junior employees to assist them with their work as a function of the discriminatory performance-evaluation process.
56. Female Associates, Vice Presidents, and Managing Directors also receive less training and mentorship than similarly situated men in the same positions. Goldman Sachs managers disproportionately select male professionals to be paired with more senior mentors, to receive hands-on training, and to be included in social events where they have access to or visibility among senior management. In many areas, Goldman Sachs also discriminates against female finance professionals in seating assignments. For example, on trading floors, Goldman Sachs often places women at the periphery while seating similarly situated or more junior males near the center of the floor. Men thus have more access to the most senior managers who regularly sit in the middle oftthe floor, and are able to cultivate relationships with them more easily. Women lack this same access and face greater difficulties in cultivating the same relationships. These employment practices are the product of common policies and practices tied to discriminatory performance measures that systematically disadvantage the putative class Conclusion
57. Accordingly, Chen-Oster, Parisi, and Orlich bring this class action on behalf of themselves individually and all similarly situated female Associates, Vice Presidents, and Managing Directors in the United States. This action seeks to end Goldman Sachs' discriminatory policies, patterns, andl/or practices, and to make the Class whole by requesting the following remedies: injunctive relief to remedy systemic sex discrimination; an award ofbback pay and front pay; compensatory and punitive damages; and attorneys' fees.

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CLASS ACTION ALLEGATIONS 58. Plaintiffs bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a Class of all female financial-services employees who are at the Associate, Vice President, and Managing Director corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in the United States at any time from September 10, 2004 through the resolution of this action for claims under Title VII. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) seeking monetary damages and other make-whole relief on behalf of a Class of all female financial-services employees who are at the Associate, Vice President, and Managing Director corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in the United States at any time from September 10, 2004 through the resolution of this action for claims under Title VII. Plaintiffs reserve the right to amend the definition of the Class based on discovery or legal developments. 59. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a Class of all female financial-services employees who are at the Associate, Vice President, and Managing Director corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in New York at any time from July 7,2002 through the resolution of this action for claims under the NYCHRL. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) seeking monetary damages and other make-whole relief on behalf of a Class of all female financial-services employees who are at the Associate, Vice President, and Managing Director

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corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in New York at any time from July 7, 2002 through the resolution ofthis action for claims under the NYCHRL. Plaintiffs reserve the right to amend the definition ofthe Class based on discovery or legal developments.
60. All Plaintiffs are members of the Classes they seek to represent. 61. The members of the Class identified herein are so numerous that joinder of all members is impracticable. As of December 2009, Goldman Sachs employs approximately 32,500 employees worldwide and approximately 18,900 in its Americas region (North and South America). Although Plaintiffs do not know the precise number of female financial-services employees at the Associate, Vice President, and Managing Director levels at Goldman Sachs, the number is far greater than can be feasibly addressed through joinder. 62. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others:
(a) whether Goldman Sachs' policies or practices discriminate against female Associates, Vice Presidents, and Managing Directors;
(b) whether Goldman Sachs' policies and practices violate Title VII and/or the NYCHRL; and
(c) whether Goldman Sachs' performance evaluation system discriminates against women;
(d) whether Goldman Sachs' compensation system discriminates against women;
(e) whether Goldman Sachs' promotion system discriminates against women; (f) whether equitable remedies, injunctive relief, compensatory damages, and
punitive damages for the Class are warranted; and

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(g) whether Goldman Sachs has failed to implement policies and procedures to prevent retaliation against employees who challenge perceived gender bias in the workplace, has failed to address complaints, and has failed to conduct proper investigations.
63. The Representative Plaintiffs' claims are typical of the claims of the Class. 64. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection therreeooff. 65. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because Goldman Sachs has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class Members are entitled to injunctive relief to end Goldman Sachs' common, uniform, unfair, and discriminatory policies and practices. 66. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The Class Members have been damaged and are entitled to recovery as a result of Goldman Sachs' common, uniform, unfair, and discriminatory policies and practices. Goldman Sachs has computerized account data, payroll data, and personnel data that will make calculation of damages for specific Class Members relatively simple. The propriety and amount of punitive damages are based on Goldman Sachs' conduct, making these issues common to the Class.

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CLAIMS OF REPRESENTATIVE PLAINTIFFS H. Cristina Chen-Oster
67. In March 1997, PlaintiffH. Cristina Chen-Oster began working for Goldman Sachs in the firm's Convertible Bonds Department, in the position of senior convertible bond salesperson. Goldman did not give her a title initially, despite the fact that Chen-Oster had held the title of Vice President for the same function with her previous employer. In June 1997, Goldman promoted Chen-Oster to Vice President from having no title. This was Chen-Oasstter's only promotion at Goldman Sachs during her eight-year tenure at the firm..
68. During her employment, Goldman Sachs repeatedly denied Chen-Oster business opportunities, training and mentorship, and other terms and conditions of employment that it made available to similarly situated males. Additionally, throughout Chen-Oasstter's tenure at the firm, Goldman Sachs consistently reviewed her performance more harshly than it did similarly performing males, paid her less in base compensation and bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.
69. In late 1997, Chen--Oasstter's direct supervisor, a male Managing Director, took away Chen--Oasstter's fastest growing account base - convertible bond arbitrage accounts - and transferred them to the firm's London desk. A male Associate who was also a convertible bond salesperson had the same account base as Chen-Oster did, and had also shared with her responsibility for some of the same arbitrage accounts. Her supervisor permitted the male Associate to continue covering the arbitrage accounts, but did not allow Chen-Oster to keep her coverage of the accounts, even though, as a Vice President, she was more senior than the male Associate.

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70. In the fiscal year ending in November 1997, Chen-Oster earned significant revenues for Goldman Sachs. Nonetheless, Goldman Sachs paid her less that year than similarly situated males in her department who had generated less revenues. For example, upon information and belief, Goldman Sachs paid another male salesperson in the Convertible Bonds Department who had also been promoted to Vice President in June 1997 approximately 50% more than it paid Chen-Oster, even though this male salesperson had generated less revenues in both that year and the previous year.
71. In early 1998, Chen-Oster's supervisor asked her to train a newly hired male Associate and to introduce him to her clients, telling her that she would be evaluated and rewarded based on how well she trained him. Chen-Oster invested significant time and energy on training the new male Associate, which she did well, and acted as a team player in sharing her client relationships with him.
72. Despite her training efforts and strong sales performance, Goldman Sachs again paid Chen-Oster less in 1998 than it paid similarly situated men in her department. For example, the same male salesperson who had received more compensation than Chen-Oster in 1997 again received approximately 50% higher compensation than her in 1998, even though he again had generated less revenue that year, and had not shouldered the burden of training a new Associate.
73. In 1998, Goldman Sachs promoted the male colleague who had been allowed to continue covering the arbitrage accounts to Vice President.
74. In or around May 1999, Chen-Oster told her supervisor about an incident that had occurred in 1997, shortly after she joined Goldman Sachs. In the fall of 1997, Goldman Sachs sponsored a dinner for a male employee who had just been promoted to Managing Director. Part of the evening took place at Scores, a topless bar, and all employees in the group were

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encouraged to join. At the end of the evening, a married male Associate in her group insisted that he escort her to her boyfriend's apartment building a few blocks away. In the hallway outside the apartment, the male colleague surprised Chen-Oster by pinning her against a wall, kissing and groping her, and attempting to engage in a sexual act with her. Chen-Oster did not invite or welcome the attempt, and had to physically defend herself. The next morning, the male colleague apologized profusely to Chen-Oster and asked her not to say anything about the incident to anyone. On the same day, the male colleague also told his supervisor what had happened the night before. This supervisor was also Chen-Oster's supervisor. The supervisor and the male colleague had been friends and sat next to each other on the trading floor. The male colleague was also the same Associate who her supervisor had permitted to continue covering the arbitrage accounts in late 1997, and who had been promoted to Vice President in 1998. Chen-Oster later learned that her male colleague had told their supervisor about the incident on the morning after it occurred.
75. After reporting the 1997 incident to her supervisor, Chen-Oster began to experience increased hostility and marginalization at the firm. In mid-1999, Goldman Sachs took away some of her job duties and responsibilities, including responsibility for new Asian deal allocations in the United States and for giving feedback on new deal pricing prior to new deal announcements. Chen-Oster had been managing new Asian deal allocations successfully in the United States for the previous two years.
76. At the end of 1999, Goldman Sachs again paid Chen-Oster less than it paid similarly situated men in her department. For example, upon information and belief, the male salesperson who had received more compensation than her in 1997 and 1998 again received over 50% more compensation than her in 1999. The male colleague involved in the 1997 incident

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also received over 50% more compensation than Chen-Oster, despite having been promoted to Vice President one year after Chen-Oster had been promoted. Both men had generated greater revenues in 1999 than Chen-Oster, but the difference resulted primarily from Chen-Oster's supervisor removing higher production accounts from her coverage, but not removing any accounts from either of the two similarly situated men in her department, and giving major new accounts to the men.
77. In 2000, her supervisor rearranged seating assignments on the convertible bonds trading floor. In the trading world, seat assignments near the senior manager are highly coveted, as they signify people's rank and help them cultivate relationships with the most senior managers in the group. In the rearrangement, Chen-Oster's supervisor moved her to the seat farthest from him among all of the salespeople in the convertible bond department. In contrast, the supervisor placed the male colleague involved in the 1997 incident and the male Associate who Chen-Oster had trained - both of whom were more junior than her - near the center of the seating scheme where the supervisor sat.
78. Goldman Sachs also restricted Chen-Oster's supervisory responsibilities. Goldman Sachs excluded her from delivering performance reviews and compensation numbers to the male Associate whom she had trained, even though employees with similar seniority typically performed this role with Associates they had trained. Goldman Sachs similarly excluded her from delivering performance reviews to her direct subordinate by scheduling the review for the day before Chen-Oster returned from her honeymoon, which was highly unusual and which even her direct subordinate perceived as strange. Instead, two male salespersons gave Chen-Oster's direct subordinate the performance review. Typically, performance reviews are delayed for days or even weeks so that an employee's direct supervisor can participate.

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79. In or about October 2000, Goldman Sachs promoted two male salespersons in her department to Managing Director: the salesperson who had consistently received higher compensation than Chen-Oster even in years in which he generated fewer revenues, and the male colleague involved in the 1997 incident. Both of these men were friends of Chen-aster's direct supervisor.
80. At the end of2000, both men who had been promoted to Managing Director received at least 100% more in compensation than Chen-Oster.
81. In January 2001, Chen-Oster spoke to her supervisor and another Managing Director, both men, to ask for opportunities to advance her career. She indicated to them that her assigned area of business, Southeast Asian and Japanese convertible bonds, was low on her supervisor's priority list since her fastest growing accounts, the convertible arbitrage accounts, had been taken away from her. Neither Managing Director offered her any help.
82. In March 2001, Chen-Oster told her supervisor that the women in the Convertible Bonds Department felt that Goldman Sachs did not treat them equally and that several of them felt uncomfortable with the sexist banter that regularly occurred on the trading floor.
83. In March 2001, her supervisor announced that the male salesperson that had received higher compensation than Chen-Oster in the past, now a Managing Director, would be Chen-aster's direct supervisor. This new supervisor had previously undermined and denigrated Chen-Oster in front of others when they had been peers, and he continued to do so as her manager. In addition, the male colleague involved in the 1997 incident was made the sole head of u.S. convertible bond sales, effectively making him Chen-aster's indirect supervisor.
84. In July 2001, Chen-Oster conducted an analysis of her business area and concluded that the area was small and had few prospects for growth since it had been

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restructured to remove large accounts and those that had significant growth potential. She spoke with her new supervisor in an attempt to obtain more promising market opportunities, but the new supervisor instead directed her to continue working on her existing accounts.
85. In late 2001, Chen-Oster's previous supervisor and new supervisor assigned the male salesperson who Chen-Oster had trained to assess a new market opportunity involving high-yield, distressed convertible bonds. Even though Chen-Oster was more qualified to take on the opportunity and had asked her supervisors for greater business opportunities, her supervisors intentionally excluded her from the project, even telling a Financial Analyst who worked directly for Chen-Oster not to inform Chen-Oster ofthe project. When Chen-Oster finally learned of the project and asked her new supervisor why she was never offered the opportunity, he responded that his opinion was that the male salesperson whom she had trained was better suited for the opportunity.
86. In March 2002, Chen-Oster's subordinate, a Financial Analyst, transferred to London, leaving her without any dedicated support. Instead of finding a new Financial Analyst to support Chen-Oster, Goldman Sachs assigned her a more junior Sales Assistant, who worked only a fraction of his time with her. During the same period, the other male salespeople in the Convertible Bonds Department continued to have a dedicated Analyst to support them, in addition to a Sales Assistant.
87. In June 2002, Chen-Oster's new supervisor replaced nearly half of the individuals on Chen-Oster's peer review list with employees in Europe who are known to give their peers lower scores, as is the typical practice in Europe. Moreover, because these employees were located in Europe, they had little familiarity with Chen-Oster and her performance. One of the people designated as her reviewer was a male salesperson who had no clients in common with

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Chen-Oster and whom her new supervisor knew had sent racially offensive emails around the group, including one entitled, "Learn Chinese in 5 Minutes," which included statements such as "Our meeting is scheduled for next week ... Wai Yu Cum Nao?" and "Great ... Fu Kin Su Pah." Chen-Oster is Chinese.
88. Following this change to her peer review list, Chen-Oster submitted a written complaint to her new supervisor and one of Goldman Sachs' Leadership and Diversity Managers.
89. Shortly afterward, Goldman Sachs asked Chen-Oster to transfer to a marketing position in a newly formed group, Synthetic Convertibles. The new position was effectively a demotion, because Chen-Oster would be reporting to another Vice President, also a woman, instead of to a Managing Director for the first time in her entire five year tenure at the firm. Nonetheless, Chen-Oster agreed to transfer to try to escape the discrimination she was expenencmg.
90. In 2002, Goldman Sachs promoted the male colleague who had been involved in the 1997 incident from Managing Director to Partner. Goldman Sachs did not promote ChenOster or the female Vice President who was Chen-aster's supervisor to Managing Director.
91. At the end of 2002, Chen-Oster again received significantly less compensation than her similarly situated male peers. The male Associate whom she had trained, for example, earned significantly more in compensation than Chen-Oster, despite having generated fewer gross sales credits than she had in that year.
92. From March to July 2003, Chen-Oster took maternity leave.

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93. At the end of2003, Goldman Sachs again paid Chen-Oster less than her similarly situated male peers. For example, the male salesperson she had once trained received substantially greater compensation than she did for 2003.
94. From July to November 2004, Chen-Oster again took maternity leave. When she returned, Goldman Sachs removed her former accounts and failed to provide her with any meaningful responsibilities or accounts. Goldman Sachs also moved Chen-Oster's seat from the trading floor to a location among the administrative assistants, all of whom were female. Upon information and belief, Chen-Oster was the only Vice President-level professional who had been assigned to sit among support staff. The seating arrangement also had the effect of removing Chen-Oster from the visibility of managers and creating the perception that she was a junior person.
95. In December 2004, Chen-Oster again received less compensation than her similarly situated male peers, including but not limited to the male salesperson she had trained.
96. In February 2005, Goldman Sachs relocated Chen-Oster to a sales group that was known by managers to have lower average compensation than the convertible bonds sales group at Goldman Sachs. In this new group, her supervising Partner, a male, assigned her less favorable accounts than he assigned to male employees.
97. The inferior business opportunities and treatment that Goldman Sachs gave ChenOster relative to her similarly situated male peers severely impacted her career growth and compensation at Goldman Sachs. After being promoted to Vice President, Chen-Oster was never promoted again. Between 1997 and 2004, her compensation increased by only 27%, far lower than comparable males. While Chen-Oster's career growth stagnated, the male colleague

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involved in the 1997 incident was promoted to Managing Director and [mally Partner. Over the same period, he saw his compensation increase by more than 400%.
98. Throughout Chen-Oster's employment, Goldman Sachs also discriminated against her by reviewing her performance more negatively than her similarly situated male peers. Although she received good 360 degree scores from her peers, these scores nevertheless did not fully reflect her contributions to the firm. Moreover, although they provided her with regular positive feedback, her supervisors reviewed her more negatively than her similarly situated male peers in their private evaluations of her, as is evidenced by the fact that she repeatedly received less compensation than male peers who had underperformed her.
99. On March 10,2005, Chen-Oster resigned due to the consistent and systematic discrimination she had suffered over her eight years at Goldman Sachs.
100. On or about July 6,2005, Chen-Oster filed a charge of gender discrimination and retaliation with the EEOC (attached hereto as Exhibit 1) and on June 22,2010, she received a Notice of Right to Sue? Lisa Parisi
101. In August 2001, Plaintiff Lisa Parisi began working for Goldman Sachs as a Vice President in the firm's asset management division, Goldman Sachs Asset Management ("GSAM"). In 2003, Goldman Sachs promoted Parisi to Managing Director in the Value Group. This was Parisi's only promotion at Goldman Sachs in her seven-year tenure at the firnmn.
102. During her employment, Goldman Sachs repeatedly denied Parisi business opportunities, training and mentorship, and other ternmns and conditions of employment which it made available to similarly situated males. Additionally, Goldman Sachs consistently reviewed her performance more harshly than it did similarly perfornmning males, paid her less in total 2 Chen-aster's attorneys received a copy of her Notice of Right to Sue from the EEOC on June 18, 2010.

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compensation than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.
103. Despite her objective record of superior performance, Goldman Sachs paid her less than similarly situated men throughout her career at Goldman Sachs. For example, a male employee who began at Goldman Sachs around the same time as Parisi experienced the same growth in assets under management as Parisi - from approximately $4 billion in 2001 to between $40 and $50 billion in 2007. This similarly situated man, however, received compensation much higher than Parisi. From 2001 to 2007, his compensation doubled. In contrast, Parisi's compensation dropped 60% from 2005 to 2007 despite her continued high performance and similar assets under management. Other male employees with whom Parisi worked also received larger increases in their compensation than Parisi did.
104. At Goldman Sachs, Parisi was a top performer and consistently outperformed the industry. Her job as a portfolio manager required her to work on several portfolios, each of which had a benchmark. During her tenure at Goldman Sachs, Parisi achieved or surpassed each of these benchmarks. Parisi also consistently generated strong returns on both "long" investments and more difficult "short" investments. She was one of the few people in her group at Goldman Sachs who generated profits on such "short" investments.
105. When Parisi asked her superiors why Goldman Sachs had lowered her compensation, her supervising Partner told her that, while her objective performance numbers were good, the Small Cap Group of which she was a member did not outperform. However, the other two senior members of her team, both men, did not suffer any decline in compensation. In fact, they both received an increase in compensation. Parisi's supervising Partner also stated that Goldman lowered her compensation because her 360-degree review scores had declined. After

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hearing this, Parisi spoke to her colleagues, all of whom confmned that they had not had any negative experiences with her.
106. During Parisii' s entire tenure as a Goldman Sachs Managing Director, similarly situated male Managing Directors received significantly higher increases in total compensation than her.
107. In 2006, Parisi requested a relocation to Atlanta so that she could be closer to her fiance and his school-age children. Goldman Sachs approved her request. In or around March 2006, she moved to Atlanta, paying her own relocation expenses, which is not typical for employees being transferred to other offices. Following her move, Parisi continued to be a top performer at Goldman Sachs.
108. While Parisi had previously received uniformly positive reviews, Goldman Sachs began evaluating her harshly in 2006. Goldman Sachs claimed that Parisii' s support staffhad negative experiences with her. When Parisi approached her support staff, analysts, and the head trader to inquire about these purported negative experiences, however, they refuted Goldman Sachs' claims and confirnmned that none of them had had any negative experiences with her.
109. In 2006, Parisi's supervising Partner informed her that Goldman Sachs intended to take retail industry stock investments away from her. The Partner did not give Parisi a reason for taking away these investments. When Parisi's colleagues learned about these plans, they expressed shock. Several of them praised her as one of the best retail stock pickers in the industry. Parisi brought the issue to the attention of the head of her group and pointed out that she had made significant profits for Goldman Sachs in the retail sector. Only then did Goldman Sachs allow her to keep her coverage of the retail sector. Parisi learned from a colleague that her

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supervising Partner wanted to take her retail investments away from her because the Partner wanted to give them to a male Vice President who had just joined the Value Group.
110. As Parisi's work situation became untenable, she approached her supervising Partner in November 2007 and expressed an interest in receiving a separation agreement. She did not receive one. Instead, in November 2008, Goldman Sachs terminated Parisii's employment.
111. On or about January 6,2010, Parisi filed a charge of gender discrimination and retaliation with the EEOC and the New York State Division of Human Rights. Parisi's charge is attached to this Complaint as Exhibit 2 and is incorporated by reference. Parisi is requesting a Notice of Right to Sue from the EEOC, to which she is entitled. Shanna Orlich
112. Plaintiff Sharnmna Orlich first began working for Goldman Sachs as a Summer Associate in 2006 while a student in the JDIMBA program at Columbia University. As a Summer Associate, Orlich did rotations in several trading departments of Goldman. After graduation, Orlich returned to Goldman Sachs in July 2007 and began working as an Associate in the Capital Structure Franchise Trading ("CSFT") Group, a unit within the firm's Fixed Income, Currencies, and Commodities ("FICC") Division.
113. During her employment, Goldman Sachs repeatedly denied Orlich business opportunities, training and mentorship, and other terms and conditions of employment that it made available to similarly situated males. Additionally, throughout Orlich's tenure at the firm, Goldman Sachs consistently reviewed her performance more harshly than it did similarly performing males, paid her less in bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.

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114. At the time Orlich joined the CSFT group, the group consisted of 12 employees10 male and 2 female, including herself.
115. In her first performance review, in December 2007, Orlich's direct supervisor, a male Managing Director, gave her only positive feedback and praise for the work she had done to date.
116. Nonetheless, Goldman Sachs gave Orlich fewer opportunities to become a junior trader than it gave similarly situated males. Although Orlich joined Goldman to be a trader, when she arrived at the CSFT desk, her direct supervisor told her that there was no trading seat available, and that she would have to rotate with traders and serve as a desk analyst, a less desirable position.
117. However, at the same time Goldman Sachs hired Orlich, it also hired a man who had been Orlich's business school classmate. Goldman Sachs' managers would challenge this male classmate to do push-up contests on the trading floor. When he arrived at Goldman Sachs, Goldman Sachs allowed him to start directly as a trader in the High Yield group.
118. In October 2007, Orlich's male Managing Director, who was responsible for both the High Yield and CSFT groups, decided to take on a junior trading partner in CSFT. He offered the position to Orlich's male classmate but not to Orlich, even though she was a member oftthe CSFT desk and Orlich's male classmate was not.
119. Around the same time Orlich was hired, Goldman Sachs also hired a male Analyst directly from college. Even though the new Analyst was junior to her, Goldman Sachs allowed him to begin working as a trader in the CSFT group immediately.
120. In December 2007, Orlich complained to her direct supervisor that she had not been put in a trading seat. She pointed out to him that her male classmate and the new Analyst

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were already trading. When Orlich pressed him for a reason why she had not been put in a trading seat, he replied that she did not have enough experience in trading. However, Orlich's male classmate, like her, did not have any trading experience prior to his summer internship at Goldman in 2006. Likewise, the new Analyst also did not have any trading experience prior to his summer internship at Goldman in 2006. Nevertheless, Goldman Sachs readily placed her two male colleagues in trading positions, despite their lack of experience.
121. As a desk analyst, Orlich essentially had no defined role and had to work on whatever assignments her superiors asked her to do. While her male classmate and the male Analyst received hands-on training and mentorship, Orlich was professionally and socially isolated in her role and did not receive similar levels of support, training, or mentorship from her managers.
122. In January 2008, Orlich spoke to a more senior female trader about not having opportunities to trade. After this conversation, her direct supervisor agreed to assign her to a junior trader role with a male trader in CSFT. Days later, her direct supervisor left Goldman Sachs. In April 2008, the male trader to whom Orlich had been assigned also left the firm. After the male trader's and his trading partner's departures, Goldman Sachs did not assign Orlich a new trading partner. As a result, she continued to have no opportunities to trade.
123. In July 2008, Orlich reached out to a male Managing Director of Sales to complain that she did not have a trading partner and was not being given an opportunity to trade. The male Managing Director expressed surprise that Orlich had been hired to be a trader and told Orlich that he did not see her as the "right fit" to be a trader. He also told her that he saw her as an analyst, even though he had told a male colleague of hers that taking the analyst position

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would not be a good career move. He further told Orlich that because he had not hired her, he did not view her as his responsibility.
124. Orlich then reached out to other members of Goldman Sachs' senior management team. A senior male Partner told Orlich to be a "'tteam player" and to stay in the analyst role.
125. After Orlich's direct supervisor, who was also her male classmate's trading partner, left Goldman Sachs, Orlich's male classmate also reached out to the same senior male Partner. When Orlich's male classmate sought his help, the senior male Partner assigned her male classmate to be a junior trader with a highly successful trader in High Yield.
126. Throughout her employment at Goldman Sachs, Orlich worked in an environment in which her colleagues did not treat her and other women with the same respect that they gave to their male peers. This was true for work assignments and for social outings where relationships between managers and employees were cemented.
127. For example, Goldman organized frequent golf outings and other social events to which female employees, including Orlich, were not invited. On one occasion, a senior analyst on the CSFT desk asked every male person in Orlich's department and in neighboring groups to be his partner at a golf outing, including individuals more junior to Orlich. However, he did not ask Orlich, the only female on the fixed income side of the CSFT trading desk. Orlich has played golf since childhood and also played varsity golf for her high school team.
128. Orlich also learned of a golf outing attended by approximately 80 Goldman Sachs employees, only one of whom was a female employee. Orlich was told that she was not invited because she was too junior, but she later learned that several male analysts straight out of college attended the outing.

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129. Orlich's superiors at Goldman Sachs also asked her to perform clerical and administrative work that they did not give to male Associates, or even to male Analysts. For example, a senior male analyst on the CSFT desk often gave her demeaning and menial assignments, such as setting up his blackberry, making photocopies, and answering calls from his wife. Similarly situated male Associates and even more junior male analysts were not asked to perform such work.
130. During Orlich's employment, Goldman Sachs also discriminated against her by reviewing her performance more negatively than her similarly situated male peers. For example, Orlich worked long hours during her employment and was often the fIrst person to arrive at the office and the last person to leave. Nevertheless, a senior male analyst to whom Orlich reported criticized her for not working hard enough. In mid-2008, Orlich was given performance review scores that penalized her for being given an undefIned role as a desk analyst and for not having had opportunities to develop trading expertise. However, Orlich never received a formal review from any of her superiors.
131. These disparities in the business opportunities and treatment that Goldman gave to Orlich's male peers but denied to her severely impacted her career growth and compensation at Goldman Sachs. In November 2008, Goldman Sachs terminated Orlich' s employment.
132. On or about January 7, 2010, Orlich fIled a charge of gender discrimination and retaliation with the EEOC and the New York State Division of Human Rights.. Orlich's charge is attached to this Complaint as Exhibit 3 and is incorporated by reference. Orlich is requesting a Notice of Right to Sue from the EEOC, to which she is entitled.

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CAUSES OF ACTION FIRST CLAIM FOR RELIEF
Intentional Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)
(On Behalf of All Plaintiffs and the Class) 133. Plaintiffs incorporate the preceding paragraphs as alleged above. 134. This Claim is brought by all Representative Plaintiffs on behalf ofthemselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 135. Goldman Sachs has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents, and Managing Directors. Goldman Sachs has intentionally discriminated against Plaintiffs and the Class in violation of Title VII by, among other things:
(a) Utilizing a biased performance system; (b) Utilizing a biased compensation system; (c) Utilizing a biased promotion system; (d) Systematically and intentionally undervaluing their aptitude and
performance; and (e) Failing and refusing to take reasonable and adequate steps to prevent and
correct the use of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment. 136. These company-wide policies are intended to and do have the effect of: (a) Denying Plaintiffs and Class Members business opportunities because of their gender; (b) Compensating them less because oftheir gender; (c) Failing to promote them because oftheir gender; (d) Evaluating their performance more negatively because of their gender;

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(e) Offering them less administrative support, training, and mentorship as a result of discriminatory perfornmnance measures that systematically disadvantaged them because of their gender; and
(f) Providing them with inferior ternmns and conditions of employment as a result of discriminatory perfornmnance measures that systematically disadvantaged them because oftheir gender.
137. The discriminatory acts that constitute Goldman Sachs' pattern and/or practice of
discrimination have occurred both within and outside the liability period in this case. 138. As a direct result of Goldman Sachs' discriminatory policies andlor practices as
described above, Plaintiffs and the Class have suffered damages including, but not limited to,
lost past and future income, compensation, and benefits.
139. The foregoing conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by 42 U.S.C. §§ 2000e et seq.
140. Plaintiffs request relief as hereinafter described.
SECOND CLAIM FOR RELIEF Disparate Impact Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of All Plaintiffs and the Class) 141. Plaintiffs incorporate the preceding paragraphs as alleged above.
142. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus
exhausted their administrative remedies. 143. Goldman Sachs' reliance on illegitimate and unvalidated systems and criteria to
distribute business opportunities, determine levels of professional support, evaluate employee
performance, set compensation, and select individuals for promotion, and determine other terms
and conditions of employment have an adverse impact on female Associates, Vice Presidents,
and Managing Directors in violation of Title VII and are not, and cannot be, justified by business

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necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
144. Goldman Sachs has maintained these discriminatory policies, patterns, and/or practices both within and outside the liability period in this case.
145. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
146. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of 42 U.S.C. §§ 2000e et seq.
147. Plaintiffs request relief as hereinafter described. THIRD CLAIM FOR RELIEF Intentional Discrimination
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of All Plaintiffs and the Class)
148. Plaintiffs incorporate the preceding paragraphs as alleged above. 149. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. 150. Goldman Sachs has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents, and Managing Directors. Goldman Sachs has intentionally discriminated against Plaintiffs and the Class in violation of the NYCHRL by, among other things:
(a) Utilizing a biased performance system; (b) Utilizing a biased compensation system; (c) Utilizing a biased promotion system;

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(d) Systematically and intentionally undervaluing their aptitude and performance; and
(e) Failing and refusing to take reasonable and adequate steps to prevent and correct the use of standardless, unvalidated, and/or illegitimate criteria to deternmnine the ternmns and conditions of employment.
151. These company-wide policies are intended to and do have the effect of: (a) Denying Plaintiffs and Class Members business opportunities because of their gender; (b) Compensating them less because of their gender; (c) Failing to promote them because of their gender; (d) Evaluating their perfornmnance more negatively because of their gender; (e) Offering them less administrative support, training, and mentorship because of their gender; and (f) Providing them with inferior terms and conditions of employment because of their gender.
152. The discriminatory acts that constitute Goldman Sachs' pattern and/or practice of discrimination has occurred both within and outside the liability period in this case.
153. Goldman Sachs has set and/or maintained these discriminatory policies, patterns, and/or practices during the liability period within the City of New York, and the discriminatory policies, patterns, and/or practices have had a discriminatory impact on female employees of Goldman Sachs within the City of New York.
154. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
155. The foregoing conduct constitutes illegal, intentional discrimination prohibited by the Administrative Code of the City of New York § 8-107 et seq.
156. Plaintiffs request relief as hereinafter described.

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FOURTH CLAIM FOR RELIEF Disparate Impact Discrimination (NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of All Plaintiffs and the Class) 157. Plaintiffs incorporate the preceding paragraphs as alleged above. 158. This Claim is brought by all Representative Plaintiffs on behalf ofthemselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 159. Goldman Sachs' reliance on illegitimate and unvalidated systems and criteria to distribute business opportunities, determine levels of professional support, evaluate employee performance, set compensation, and select individuals for promotion, and determine other terms and conditions of employment have an adverse impact on female Associates, Vice Presidents, and Managing Directors in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 160. Goldman Sachs has maintained these discriminatory policies, patterns, and/or practices both within and outside the liability period in this case. 161. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 162. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of 42 U.S.C. §§ 2000e et seq. 163. Plaintiffs request relief as hereinafter described.

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FIFTH CLAIM FOR RELIEF Retaliation
(Title VII of the Civil Rights Act of 1964, 42 U.S.c. §§ 2000e et seq.) (On Behalf of All Plaintiffs Individually)
164. Plaintiffs incorporate the preceding paragraphs as alleged above. 165. This Claim is brought by Plaintiffs Chen-Oster, Parisi, and Orlich individually. Plaintiffs have timely filed charges with the EEOC alleging retaliation claims and have thus exhausted their administrative remedies. 166. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and NYSDHR complaining of Goldman Sachs' discriminatory policies and practices. 167. Goldman Sachs took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct. 168. Plaintiffs request relief as hereinafter described.
SIXTH CLAIM FOR RELIEF Retaliation
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of All Plaintiffs Individually)
169. Plaintiffs incorporate the preceding paragraphs as alleged above. 170. This Claim is brought by Plaintiffs Chen-Oster, Parisi, and Orlich individually. 171. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and NYSDHR complaining of Goldman Sachs' discriminatory policies and practices.

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172. Goldman Sachs took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct.
173. Plaintiffs request relief as hereinafter described. SEVENTH CLAIM FOR RELIEF Pregnancy Discrimination
(Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)) (On Behalf of Plaintiff Chen-Oster Individually)
174. Plaintiff Chen-Oster incorporates the preceding paragraphs as alleged above. 175. This Claim is brought by Plaintiff Chen-Oster individually. 176. Goldman Sachs has discriminated against Chen-Oster in the terms and conditions of their employment on the basis of their status as pregnant women and as women with children, in violation of Title VII ofthe Civil Rights Act of 1964,42 U.S.C. § 2000e et seq., specifically the Pregnancy Discrimination Act, 42 U.S.C. § 2000ee((kk:). 177. Goldman Sachs knew that its actions constituted unlawful discrimination and showed willful and/or reckless disregard for Chen-aster's statutorily protected rights. 178. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above, Chen-Oster has suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 179. Plaintiff Chen-Oster requests relief as hereinafter described.
EIGHTH CLAIM FOR RELIEF Pregnancy Discrimination
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of Plaintiff Chen-Oster Individually)
180. Plaintiff Chen-Oster incorporate the preceding paragraphs as alleged above.

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181. This Claim is brought by Plaintiff Chen-Oster individually. 182. Goldman Sachs has discriminated against Chen-Oster in the terms and conditions of their employment on the basis of their status as pregnant women and as women with children, in violation ofthe Administrative Code of the City of New York § 8-107 et seq. 183. Goldman Sachs knew that its actions constituted unlawful discrimination and showed willful and/or reckless disregard for Chen-Oster's statutorily protected rights. 184. Goldman Sachs engaged in the discriminatory conduct alleged above during the liability period within the City of New York. 185. As a direct result of Goldman Sachs' discriminatory policies and/or practices as described above, Chen-Oster has suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 186. Plaintiff Chen-Oster requests relief as hereinafter described.
ALLEGATIONS REGARDING RELIEF 187. Plaintiffs and the Classes they seek to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive reliefthey seek in this action is the only means of securing complete and adequate relief. Plaintiffs and the Classes they seek to represent are now suffering, and will continue to suffer, irreparable injury from Goldman Sachs' discriminatory acts and omissions. 188. Goldman Sachs' actions have caused and continue to cause Plaintiffs and all Class Members substantial losses in earnings and other employment benefits. 189. In addition, Plaintiffs and Class Members suffer and continue to suffer emotional distress, humiliation, embarrassment, and anguish, all to their damage in an amount according to proof.

931510.3

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Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 41 of 71
190. Goldman Sachs perfornmned the acts herein alleged with malice or reckless
indifference. Plaintiffs and Class Members are thus entitled to recover punitive damages in an
amount according to proof.
PRAYER FOR RELIEF
191. WHEREFORE, Plaintiffs and the Class pray for relief as follows:
(a) Certification of the case as a class action on behalf of the proposed Classes;
(b) Designation of Representative Plaintiffs H. Cristina Chen-Oster, Lisa Parisi, and Shanna Orlich as representatives of the Classes;
(c) Designation of Representative Plaintiffs' counsel of record as Class Counsel;
(d) A declaratory judgment that the practices complained of herein are unlawful and violate 42 U.S.C. §§ 2000e, et seq.; and the Administrative Code of the City of New York § 8-107 et seq.;
(e) A preliminary and pernmnanent injunction against Goldman Sachs and its officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in policies, patterns, and/or practices that discriminate against Plaintiffs or the Class because of their gender or participation in this lawsuit;
(f) An order that Goldman Sachs institute and carry out policies, practices, and programs that provide equal employment opportunities for all employees regardless of gender, and that it eradicate the effects of their past and present unlawful employment practices;
(g) An order requiring Goldman Sachs to develop and institute accurate and validated standards for evaluating perfornmnance, assigning job opportunities, deternmnining pay, and making promotion decisions;
(h) An order appointing a monitor to ensure that Goldman Sachs complies with the injunction provisions of any decree that the Court orders;
(i) An order retaining jurisdiction over this action to ensure that Goldman Sachs complies with such a decree;
0(j) An order restoring Plaintiffs and Class Members to their rightful positions
at Goldman Sachs, or in lieu of reinstatements, an order for front pay benefits;

931510.3

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Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 42 of 71
(k) Back pay (including interest and benefits) for the Representative Plaintiffs and Class Members;
(1) All damages sustained as a result of Goldman Sachs' conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof;
(m) Exemplary and punitive damages in an amount commensurate with Goldman Sachs' ability to pay and to deter future conduct;
(n) Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law;
(0) Pre-judgment and post-judgment interest, as provided by law; and (P) Such other and further legal and equitable relief as this Court deems
necessary, just, and proper. JURy DEMAND
192. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand
a trial by jury in this action.
Dated: New York, New York September .14,2011

931510.3

Carmelyn P. Malalis Cara E. Greene Jennifer L. Liu 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody (admitted pro hac vice) Anne B. Shaver (admitted pro hac vice) Alison M. Stocking (admitted pro hac vice)
-42-

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 43 of 71
275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Attorneys for Plaintiffs and the Putative Class

931510.3

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Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 44 of 71
EXHIBIT 1

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 45 of 71

CHARGE OF DISCRIMINATION
This [form is affected by the PriivvaaCc}y' Ad oj 1~i74; See FPrjiyvac)y, i\ctlSSttaatteemem before rompleting this form.

EEOC

CHARGE Nm-mER

-- --._-.- --.....__------------------_-.-_----------- -------------_-._....- -._- ________llIlnd EEOC Slatt.e: or local Agency, if any NNAAMMEE ((llrrllddiicc!!llttee AA·iirr..,, MM.ss..,, '}J.,-1;;:r1~;s;5.:).')-·-----·-------Timw:;;:;;:ml'iDiirThr~r:::1:_:::;:_:;=:_r;:::w;_----------__j
H. Cristina Chen-Oster
-===-=-=-::====-=----- ..--- _.- -. . - ---- .-----.,.-±::=-:-=::::-:-:==--:-:=-:::-:=;;---~=:-:--:=-=~==-------{

NAME LOCAL GOVERNMENT AGENCY WHO DJSCRIMINATED AGAINST ME (If more ihan one lis! below.)

STATE OR

NA1\1E
Goldman, Sachs & Co,.

- NUMBER OFEI\1PLOYEF:S, MIVlEr.M,"B'.E>"R~'S" TELEPHONE (II1c1f1de Area Code)

Over 20,000

212-902-1000

STREET ADDRESS

CITY, STATE, .A4.ND ZIP CODE

1 New York Plaza, 50th Fl. New YYoork,,NY 10004

NA,.l'vlE

ATeaCad~l

STREET ADDRESS

CITY, STATE, ZIP CODE

COUNTY

(7 ,,[proprTc CAUUSSEE-OF DJlSSCCRI!I-Jl:"!ATIlON BSASED ON (ChCeCck 'TproprTc oooxx{{c«sj)

D D RARCACEE D

CL J COI.OR

SEX

RELlIlGGJON D AGE

IGJIX HRET}\UATION DD

NATIONALl. DDDllSSAABBTJUnDoTHER

ORfCIN

DATE DLliI'S'C'_RlUI'M.V1!IJIN''rAl,~Tl'I'-O-'lN... TOOK PLACE

EARLLlIEE.ST (edea{fepa)

LATEST (ALL)

March 10, 2005

(speci!Yl. __ .'_____ .. -:;:-o,-,:-...,...,,..,....---,--..,--'--:-:---:--;c-.--,--:-.--:-:-::---------'-----..- . - - - - - - - - - - -
THE PARTICULARS ARE (If Addition:>! paper is nc<X\cd, a!la~h eXxttr.",.' shh<;,:et (s))}):

- - - - - _._.<

Please see~ attached statement_

I

i

~~=-__~~~~~~~~~~~_~____J_J 1I wwant this charge filed with bolh Itlle EEOC and Ithe Slat<: or locoal Ag~~l"lccyy_.llff a~nnyy.. 1I wWi!~'':jijdj:::;:;;se- ----;;;;""

~'~.!::.:.;:!:":":.-<-c""-"="-"='"-''"f-T'f'f,"---",,:LLooccaall Requirements)

I

!frbIe a.ggeenndes if J ch:mgc my address or lclkt.""pphhtt.11'!.C numher and i will coop~r.:.!{e fully Wl tll them in Itllc: proce"s,"sing of my charge itinl accordance. with ilJllec"i, il'rr<<>lcC~~dduurr,",s>_.

I ~

I SJC>JAll.!REOf Cor.1FLAh'lA:'iT

!

I

(

SUBSCCRRIIBED ;\1\:D S5W'NORIL;', TO BEEFfOORPE ME1HH1ISS DATE

(Dialll}j. I1I1K1<m",11ih1, dnd lyJeCnllrr)

O1arguinlg Party ((SS~~gglrJ~rt~;tlrair!~.))

1I 77(7( 7((00::;;-

MELANIE L. CRiSTOl Notary Publk:. State of New York
Noo..01CR61tf9348 Quuaallifiieec in NN~eww York County ._
Commission Explres Ncwmber229, 200(D)';i(

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 46 of 71
The particulars are:
I. My name is H. Cristina Chen-Oster. 1I was born
2. From March 3, 1997 to March 10,,2005, 1I was an employee in the Equi ties Division of Goldman, Sachs & Co. ("Goldman"). 1 worked as a senior international convertible bond salesperson from March 1997 to September 2002 and as a senior synthetics convertible marketer from September 2002 to July 2004. I was promoted to Vice President in June 1997; that was my only promotion at Goldman.
3. Goldman discriminated against me on the basis of my gender with respect to pay, promotion, and other terms and conditions of employment; this included discrimination based on my pregnancy. Goldman retaliated against me when I complained about this discrimination.
4. This pattern of discrimination and retaliation began after a Goldma.11 employee - a senior saleessppeelr"son in my group arId a friend of my manager at the time assaulted me in the fall of 1997.
5. The discrimjnation, harassment and retaliation included, bui was not limited to, the follo\wving:
(a) Throughout my career at Goldman, I was paid less than similarly-situated mer.., I was initially n(lt given any formal evaluation unli,.'<e similarlysituated men and w.vas later evaluated more harshly than similarly-situated men, I was treated Jess favorably regarding promotions than similarlysituated meenn., and I was given less favorable a<:count assi.gnments than similarly-situated men.
(b) When I reported the sexual assault in May 1999 to my manager, the Partner in charge ofttbhe global convertible group, he advised me not to pursue the matier with Employee Relations.
(c) After I eventually disclosed the sexual assault to Human Resources, my perfoffilance evaluators and evaluations were manipulated so that I received artificially negative reviews, and my seat assigmnent was such that I was physically isolated from members of my desk and cut off from the flow of infonnation.
(d) I took maternity leaves [TOm about March 24, 2003 to about July 23, 20m and from about July 6, 2004 to about November 5, 2(0}t0lv44. After my return in about November 2004, GOollddman provided me with no meaningful responsibilities and I was given no accounts -- not even those that I had handled before mymmaattemrnity leave. In addition, my seat was moved to a

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 47 of 71
location among the administrative assistants. Upon information and belief, no male Vice President level professional has ever been assigned a seat among a group of administrative staff in the Equities Division. The group o0 ff administrative staff was all female. (e) On about February 1IS8,,2005, after having spent three months without any substantive assignments or position, I was given no choice but to take a
much lesser-valued job in U.S. Research Sales. ·WWhhiile I was told 1r could
continue to seek another position witihin Goldman on my own time, I was simultaneously told that there were no other positions available for me. As a result, I involuntarily accepted the position. Over the next few weeks, I was given basic account assignments that were far less favorable than accounts given to similarly-situated men. 6. On March 10, 2005, 11 resigned irom Goldman because of the discrimination and retaliation. 7. I seek compensation from Goldman Sachs for the discrimination and retaliation, including compensation for loSt earnings, pain and suffering, and attorney's fees. 8. I file this charge on behalf of myself and otber simi1arly-situated women at Gollddmmaa.'n1 Sachs.
2

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 48 of 71

Supplement of EEOC Cbarge ()f
H. Cristina Chen-Oster

STATE OF NEW YORK

)

) ss:

COUNTY OF NEW YORK

)

H. Cristina Chen-Oster, being duly swoam, deposes and says:

1. My name is Cristina Chen-Oster. I was bom on _

2. From March 3, 1997 to March 10,2005, I \>',:,:aas an employee in the Equities Division of Goldman, Sachs & Co. ("Goldman"). I worked as a senior international convertible bond saJesperson from March 1997 to September 2002 and as a senior synthetics convertible marketer from September 2002 to Jul!y 2004. I was promoted to Vice President in June 1997; that was my only promotion at Goldman.
3~ Goldman discriminated against me on the basis of my gender throughout my emploY1nent with respect to pay, promotion, and other tenns and conditions ofemployment; this included discrimination based on my pregnancy. Goltlman also retaliated against me because I complained of the discrimination.

4. This pattern of discrimination and retaliation began after a Goldman employee,• • •

• . sexually assaulted me in the tall of) 997. Mr.

was a senior

salesperson on the U.,S., converltible bond desk and a close friend of my manager at the

time,

, who was also the most seniQr Managing Director on the convertible

bond desk. Mr. __rermeamianineedd my manager until about Augu~11999. Thereafter, Mr.

__ccoonntitniunueedd to be involved in decisions and discussions surrounding my performa'1ce

evaluations, supervisi.on, compensation and promotion.

5. While Mr., _routinely provided my male peers infonnai career support and an arnunmua)l perfonnance evaluation, 1~<11r.r. _gave me only minimal, infomm1lal feedback in 1997 and 1998.. All feedback from Mr. _ and my peers during this period was positive and included phrases from Mr._such as "best hire I ever made" in about July 1997,
before the sexual assault.

6. In the months follOoWWing Mr..

s assaUult, Mr. _ took away my fastest

growing account base {specjfically, convertible bond arbitrage accounts) and transferred

it to Goldman's London desk without any notice or explanation. Although Mr.
••••••••Ihhaad the same account base and shared responsibility with me for some of

these acc-.Oouunnts, Mr. _perumnitted Mr.

to continue covering all offhh1iSs

arbitrage accounts, including those that I had been directed to transfer to London

coverage,. This change severely restricted my professional growth but gave Mr.

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 49 of 71

•• •••••••Iaann opportunity to advance his career more quickly. For instance, from 1997

to 2004, my compensation increased by 27%. Upon information and belief, during this

same period, Mr.

s compensation increased by more than 400%. He waas

promoted to Vice President in 1998 (one year after my promotion to Vice President),

ManagLl1g Director in 2000, and Partner in 2002.

7. After the 1997 assault, I was forced to deaJl \.vith Mr.

s reguJar and unchecked

disparagement of my contributions to the business. V\Vvhheennever 1 spoke at group meetings,

Mr.

ano wouJld hold side conversations and laugh with another salesperson on our

desk,

• who was his mend and who became my boss i.n 2001. I was

frequently one of a few women - ijf not the only woman - at these meetings offttwweenty to

thirty people. :vir.

and Mr.

did not engage in such behavior when

men spoke during the meetings. Their conduct towards me undermined my credibility

and signalled to my peers that my views were not important.

S. At the end of 1997, I was paid $375,000, which was significantily Jess than similarJly-

situated men, including those I had out-performed. At the time, I was responsible for all

international convertible bond sales to U.S.. accounts. Under my direction, this business

generated S$115.3 million in gross sales credits in 1997. Upon information and beliet: Mr.

s compensation for 1997 was approximately 50% more than mine, even though

Mr.

had generated fewer sales credits than I had and had produced only $7

million in gross sales credits the year before. Goldman continued to pay me less than my

male counterparts in the ensuing years, notwithstanding my comparable or superior

performance. See ~~11,> 19, 25, 37,47,49, and 53.

9. In late 1997 and early] 998, I orrggaanniiL~;ed a conference that was helid in February 1998 on "Emerging Markets" and which drew more than 200 attendees, induding Goldman emp1looyees, corporate clients, and investors. I was 11ighiy praised for my initiative and success with the conference, and no other convertible bond salesperson undertook such efforts again until several years later. Nevertheless!, I received no additional job responsibilities, no significant monetary re:mmmu.lrc;crraattiion, and no promotion in 1998.

10O..In early 1998, ~,v,11LL__aasskkccd me to train a newly hired male Associate, • • •••••

_to market European convertible bonds to U.S. accounts. This area was widely

expected to be the largest and fastest-growing regional segment of the international

convertible bond business due to the launch of the EBuro currency in January 1999.

Desppii.te my seniority, seven-years of finance experience, and lIecadcerslhlip in the

international convertible bond hbusiness in the U.S., Mr. _direGted me to treat IMvIrL.
• • ••••Iaas a '«<ppaarrttnner." Mr._fUrLner infonned me that I would be evaluated and

rewarded by how welnl I trained Mr.

whose background was in management

consulting and who had never before worked in finance. I trained and taught Mr.

• • •well, and we as a team generated $17.6 million in gross sales credits in 1998.

11. Despite my various accomplishments in 1998, my compensation for the year was

$475,000, significantly less than that of similarly-situated men. Upon infonnation and

belief, Goldman paid Mr.

at least 50% more, despite Mr.

s record of

2

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 50 of 71

fewer gross sales credits. Mr.

also did not train anyone that year, as he was still

developing his knowledge of the U.S. convertible market and his client relationships.

12. In May 1999, 1I had several conversations witb Mr._about the possibility of transferring to Goldman's Menlo P3ark office. By then, I was frustrated by how my managers and predominantly male peers undervalued my work, even though I ...vas a high producer on our sales desk. I believed I would have greater opportunities for career advancement and cDommppeennsation in the Menlo Parle office in a private wealth management rolie, where I would be compensated by a defmed commission rate instead of subjective salary plus bonus scheme in my institutional sales job.

13. Initially, M Mr.r_._ssaaiidd he was surprised by my request to transicJ and did not support my

move. On abbooLt.>,'t May 26,1999, Mr._asked me to stay at least until Febbrruuaar.y: 2000.

During this conversation, I told Mr. _that Mr.

had sexually assaulted me

in the fall off1199997. To my amazement, Y \1rl. r_._ssaaiidd that Mr..

had already

tolid him about the assault, though not the victim's identity. Mr. _said tlhl<alt now that I

had reported the attack, he was obligated to inform Employee Relations about the assault.

However, at the same time, Mr. _told me not to pursue an internal investigation by

Goldman into the assault and strongly recommended that I seek outside counseliL,g

instead..

1]4. After I infomled Mr. _ of Mr.

.s assault, ::VvIlrr.. _stopped insisting that 1

stay in New York and, even though he knew I had not finalized any transfer, began acting

as though I was on my way out By late June 1999, he began urging Mr.

who

previously had expressed interest in transferring with me to MerJo Park, to stay in New

York and continue working with the convertible bonds group. Although I was still the

senior salesperson 1in charge orfitlhle international convertible bond sales business to U.S .

outright accounts and MNITr.

was only a second-year Associate, Mr. _also

began talking to Mr.

about replacing me as the head ofthis business and about

recruiting additional support for Mr. • • •

]5. I w~yaass apprehensive about trusting Mr. _after he told me that he had Imown about 1h1r.
• lIIiil s • • •t assault for months and afte:' he advised me not to pursue the matter with
Employee Relations. However, Mr. _was one of the most senior Partners at
Goldman, and rI was hesitant to go against his .''.v''lord and reputation, especially since the
perpetrator was his friend. In addition, from 1997 until12002, M Mr.r_._wwaass responsible for detelmi ning compensation levels for everyone on the global convertible bond team,
including minnceo. Mr. _retired 1-in November 2002, but continued to be involved with
Goldman as an advisor.

1]6. Wben I met with Employee Relations in July 1999 to discuss Mr.

s assault, I

asked several times whether Mr. _would be told what I ssaruid if! mentioned his name.

When the Employee Relations representative indicated yes, I stated only that :Mr.

• • • •Ihad engaged in very inappropriate behavior that would have led to rape, had I

not fought him off

3

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 51 of 71

17. In the weeks after my meeting with Employee Relations,

replaced Mr.

_ a s my manager. (Mr.

,,'as a Managing Director in London who reported to

II\V.1fr._) In addition, a significant portion of my job responsibilities was gradually

siphoned away; I was no longer responsible for determining new Asian deal allocations

in the U.S. nor for giving feedback on new deal pricing prior to new deal announcements,

tasks I regularly undertook before I had reported the sexual assault.

18. In about August 1999, nvo and a half years after my start at Goldman, 1I received my frIrst perforrmnance evaluation. The evaluation was delivered by Mr. _ a.'1d Mr. • • • • a Managing Director in charge of U.S. convertible bond trading. My peer review score summary was 3.83 out ofa maximum score of5.00. I was told that although my score ,wvas within the average range, it 'would likely have been hbig.~er had I not been reviewed by European employees, who culturally tend to give lower scores.

19. At the end of 1999, 1 was paid $650,000. Upon information and belief, my male

colleagues, Mrr.

and Mr.

) each received at least 50% more than I did

hiI.) 1999. Although their sales credits fOoTr U.S. convertible sales may have been higher than mine, this difference was partly tth~ee result ofMr. _removing higher yield

accounts from my coverage, but not making a comparable change in the accounts covered

by Mrr.

and Mr.. ••••••• •

20. In early 2000, Mr. _ rearranged our seat assignments. Seat assignments were
changed infrequently and signified a person's rank on the desk. Seats closest to the desk manager and in the center of the group were most coveted, since they enabled an individual to build relationships with senior managers, gave individuals direct acecess to infonnation, and allowed greater involvement in the overall business.

2 i. With the new seating arrangement in 2000, Mr. _moved me to the seat farthest from

him among the convertible bond salespeopJle, even though 1 co-covered accounts with

other salespeople at our desk and it would have made sense to place me closer to the

center. In contrast, M,._assigned Mr.

to a seat near him and placed Mr.

• • • who was still an Associate and my subordinate, near the center of the seating

scheme.

22_ While My. _and others on the desk helped Mr.

advance at Goldman, they

restIicted my supervisory responsibilities over him considerably after I had trained him

and introduced him to my clients. J was excluded from co-delivering perfonnance

reviews and annual compensation numbers, even though senior professionals like myself

typically had this role with respect to associates they had trained. 1] was further excluded

fTroOmm assessing Mr.

's candidacy for Financial Analyst Training Program

Manager, despite my substantive knowledge ofbis abii1l:iittiies and the significant addition to

Mr.

s job responsibilities this position entailed.

23. In about September 2000, M Mr.r_._aanndd Mr.

delivered myppeerrffoonnnnaannce review.

received a score of 3.53 out of 5.0, and 9 out of 1] 2 revjewers ranked me among the top

50% aofmy peers. In spite of my perfonnance, I was not promoted in 2000. In contrast,

4

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 52 of 71

two of my male peers, Mr. • • •and Mr. • • • • •,:, were promoted to Managing Director in about October 20000.

24. My supervisory responsibilities were also undercut with regard to my Financial Analyst,

Tn December 2000, one day before my scheduled return from my

honeymoon, Mr.

and Mr.

met with Ms. • to deliver her performance

review without my input. I raised the issue oafmmy exclusion with Mr. _ but he

dismissed my compJlaint, simply stating that Mr.

probably had his reasons fOoTr

doing so and could do as he wished as Managing Director.

25. My compensation for 2000 was $800,000. Upon infOlmation and belief, Mr.

and

Mr.

each received at !icast 100% more.

26.. In January 2001, I spoke to Mr. _and Mr.

about opportunities for career

advancement at Goidman. I statte:d that my assigned area ofbusiness, SOouUtifleie'd'dsst Asian

and Japanese convertible bonds, was of low priority in the overall business strategy of the
u.s. convertible bond desk since Goldman's emphasis was on US. and European convertible

bond sales. In addition, my fastest growing accounts, the convertible arbitrage accounts,

had been taken a\wvay from me despite their significant .E!;,'Towth while under my coverage.

I asked specifically what I needed to do to advance my career, but MLr. _and Mr.

• • • gave me only vague responses. Neither Mr. _nor Mr.

took aIily

tanggiibb1le action to address my concerns.

21. I regularly nrised the issues ofrinequnitabJe treatment towards women on the convertible

bond deesskk. On about March 9, 2001, I spjJ<Q>ke again to Mrr. _about the poorttrreeaatmentl

of women, including mysellff?, in the convertible bonds sales group. I infonned him that

several women who worked in the London convertibles desk were uncomfortable with

the sexist banter t..'1at regularly occcclll...>lTTccd in the workpilace. 1 also reported to M Iv1rr..__

that

a Managing Director, had repeatedly brushed up against me, stood

within an uncomfortably close range, and had expressed personal interest in dating mce.

lJ\\..11r._thankcd me for raising these issues with him, but took no discernible actiioonn.,

and the work environment did not change after this conversation.

28. On about March 15, 200 1I, !~vlIrr. _ a1lilounccd that Mr.

was moving to a new

iPp.oO.sSil.t·tiio.o.nn and wou1d be replaced by {MvIrr.

I would now be reporting directly to Mr.

• • •, Mr.

s friend and my former peer who I had outperformed in sales

when we bad begun our careers at Goldman.. Mr. _also an.i'10ounced that Mr.

• • • • •would be the sole head ofU.S. convertible bond sallees.,. effecthively making

him my indirect supervissoorr. By this time, Mr. _had known about Mr.

s

assault on me for nearly two years. This reportling line created a negative and hostile

work envirrooInT...mmeent, in which I would fuce extreme difficulty in advancing at the firnmn..

29.. Once Mr.

became my manager, he continued to undermine me in front of others,

just as he and Mr.

had when we were peers. From 2001 tluough 2002, as my

direcft manager, Mr.

regularly denigrated my perfornmnance during our London

5

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 53 of 71

convertible bond sales desk meetings when I was not present, regardless ofmy actual perfonnance levels.

30. In July 2001, I completed a market analysis of the business area for which I was

responsible. The analysis indicated that this area was very small and had little prospect

for growth. r shared these conclusions with Mr.

ilnl yet another attempt to obtain

more promising market opportunities. However, Mr.

only directed me to

continue working on my existing accounts.

31. I also shared the results with Mr. . . ... asking him to tlm'3TIsfer me to a different position.

Like Mr.

,) Mr. _ d i d not respond to my request.

32. Despite my clear indication to Mr. _ and Mr.

that I sought greater work

responsibilities and avenues for career groo':'.>'..11h, I was not given such opportunities when

they arose, even though I was qualified. In contrast, between 1999 and 2002, my

managers appointed at least three men to the position of Financial Analyst Manager-
• • • •Ii • • • •, • • • • • • • • •,' a n d _ - despite my credentials, avowed interest in

such work, and positrivee peer reviews.

33. In the fan of2001, Mr.

delivered my annual performance review. My score had

increased from the previous year to 3.63 out of 5.0.

34. About one month later, I met "\\'it.h someone in Employee Relations to discuss another job

opening at Goldman. Among other things, I discussed the lUlit.,ffavorable treatment of

women on the convertible bond desk and the fact that Mrr.. _had directed me not to

encourage Goldman to investigate Mr.

s sexual assault on me..

35. Y\VVhhiille none of my managers had responded affirmatively to my requests for greater

business opportunities at Goldman, a few weeks after my meeting wHith Employee

ReJlations, Mrr..

and Mr. _assigned !vir.

to 8 "seeccrreet"r' project that

involved assessing whether high-yield, distressed convertible bonds provided a viable

market opportunittyy. To complete Ithis project, Mr.

enlisted the assistance of Ms.

• without consulting me, even thouugg.1.':l she was the Financial Analyst assigned to

support my team. Furthermore, Mr.

told Ms. _ specifically that she was not to

discuss this project with me, even though she reported to me. As a result, i was the only

member of our team who did not know about thjs project.

36. The results of this secret analysis gave Mr.

the chance to work with high-yield,

distressed convertible bonds, tappp:ing a market potential of$20 million, even though I

was clearly more qualified for such work. 1 had three years of relevant work experience

in fixed-income sales, while Mr.

had none. Most of the business contacts Mr.

• _ _ • _ •had in this field were those that I had given him during his training. When I

asked Mr.

why I was not offered this opportunity in light of my superior

qualifications and experience, Mr.

stated only that Mr.

,V,'ia'as somehow

better-suited.

6

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 54 of 71

37. In December 2001, I was paid $450,000 - a 44% drop from the previous year.

38. In about March 2002, Ms. _transferred to London, leaving me without any dedicated

support, unlike my male counterparts. Every salesperson was typicalJy assigned one

Financial Analyst who was responsible for analyzing trade ideas, tracking trades,

answering client calls, and executing trades. Although my business had doubled from

2001 levels, instead of giving me a new Financial Analyst, Mr.

and_

• • • • .. head of Global Convertible Bond Trading, alIlowed only one SaJles Assistant to

spend 10% of his time helping me. Sales Assistants were junior to FinaIlcial Analysts

a..'1d were nonnally involved in more administrative tasks, such as answering phones and

booking trades.

39. Consequently, for the rest of2002, I worked more hours than anyone else on my desk.

came into LtI1lCe office nearly every weekend ami occasionally arrived alone at 2:00 a.m. to

sell new ijntermnational convertible bond deals. In contrast, within about a month of Ms.

•• s$ departure, Mr.

was assigned a new Associate,

to support

him in his new convertible bond business. Associates are typically recent business school

.graduates and are therefore more senior than Financial Analysts, who generally are recent

college graduates.

40. With Ms.• 's dep&"iure, my seat was surrounded by six empty desks, sending the

message tlh)at my work was not valued and dijstancing me from the flow of intonnation

about the convertible bond business. Mr.

and Mr.

did not change my

seat, even after I made repeated requests to be seated closer to the one Sales Assistant

who had been pcnnitted to support me (albeit on a limited basis). I was also one ofthe

few professional women left in convertible bond sales at Goldman offices world-wide.

41 . hl.Tl March 2002, Mr.

presented an overnvriew for U.S. Convertible Sales to the

convertible bond desk. I was the only convertible bond salesperson in the U.S. whose

name did not appear in the presentation, despite imll)y' coverage ofU..S. convertible clients

for convertible products.

42. Since there ·'were so few women in the convertible bond group, 1 became involved with the Women's Network. In the fall 01'2001. I was asked to co-head the Leadership and Development Committee within the Women' s Network in the Equities Division. WWe organized a full day Women's Leadership Conference held on about May 3, 2002 for a group of female Vice Presidents in the division. My managers, incdluudding Mr.• • • \vere aware of my work with the Women's Network.

43. In about June 2002, Mr.

repJaced nearly half of the 15 individuals on my peer

review list who had substantive knowledge of my work, with people who had little

familiarity with me.. Almost all of the new re·vviieewers worked in Europe and generally

give lower average scores, as is typical in Europe. Perfonnance reviews were not usually

conducied by individuals who worked in a different geographic location. Thus, by

making these changes, Mr.

effectively lowered my quantitative perfonnance

reviev",.: from the previous year. Following this change, I submitted a written complaint to

7

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 55 of 71

Mr.

. On about August 23,2002, IJ also spoke 10

l, the Leadership

and Diversity Manager of the Equities Division about!!vvfir.

's changes tomy

review and about the overall discriminatory and hostile work environment towards

to_ women at our desk. I aiso provided Mr. _
ttoo MMrr.._ • •_ •

\.vjth a copy of the complaint I had given

44. Within about one week, Mr.

asked me to transfer to a senior marketing

position with Synthetic Convertibles and repOlt to.

'wwho had less seniority

than me as she had been promoted to Vice President two years after mec. TI1is marketing

position \\'as a dcleeaar demotion from my previous job 1in both structure and substance.

45. J requested that Ms.

and I co-head the Synthetics Convertibles group together,

sincee (a) Ms.

was my peer, if not my junior; (b) Ms. _

would be out on

maternity leave within the month and the group would need a manager in h\l:,."-T'[ absence; (c)

1 had siggrn..i.fifiiceaant experience training and managing small groups; at..d (d) many other

small groups in the Equities Division were managed by two people. However, Mr.

, who was a rising Managjng Director in the Equities Division with senior

management aspirations, persuaded me to accept the lesser position and promised to

become my mentor. Though we ostensibly set up monthly lunncc1h1es to discuss my career,

over the next two and a half years, Mr.

and I met approximately three times for

such talks.

46. In about September 2002, Mr.

and Mr.

delivered my annual

performance review. I :received a rating of 3.4 out of 5..Q0 overall, which was the same as

th.e overal1 team mean. Mr.

and M:M.ss.

emphasized that this qUw!mmttiittaattive

score was lower than would be expected. given the more positive comments JI received in

the qualitative part of my review.

47. In December 2002, ! was paid the same as the year before ($450,000), even though I bad

dramatically increased my business from 2001 levels in spite ofhaving lost the fJII-time

support of two professionals. Upon jnfonnation and belief, Mr.

perfornmned

worse yet was paid significantly more than me. I generated $9.5 minion in sales credits

from Jan 2002 tr...:rroouugg.h~ August 2002 (S$12.7? miHllion annuaiized for the ftlscal year) w\vhen 1I

transferred to synthetic convertibles, laqigsely on my own, compared to Mr.

, who

generated, as a team together .\..\.i'itthh Mr.

, $1i 1.75 million in sales credits for the

2002 fiscal year.

48.1 took maternity leave from about March 24, 2003 to about July 23,2003. Aftermy return in about August 2003, Ms._delivered my performance review. I received a score of3.88 out of5.0.

49. In December 2003, I was paid $475,000. Upon infonnation and belief, Mr. • • • recei'v:ed substantially greater compensation than me for 2003 .

50. I took maternity leave from about July 6,2004 to about November 5, 2004. After my return in about November 2004, Goldman provided me w-ith no meaningful

8

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 56 of 71

responsibiJlitices or accounts. I was not even pernmnitted 1to0 cover the accounts rhad handJled

before my maternity leave, even tthhouugg..~' Mr.

had stated numerous times that r

had successfully grown the synthetic convertible business and perfonned well wwjtit.1~ those

accounts.

51. In addition, one month before I returnnled from maternity leave, my scat was moved to a location among the administrative assistants, and I remained seated thereuntil about December 2004. I was the only Vice President-level professional at that time ',wvho was assigned a seat among support staff. Upon linfornmnation and belief, no male Vice President-level prmofessionali in the Equities Division has ever been made to sit among administrative staff. The group of administrative staff was all female.

52. Ms.

and

my temporary manager, dellvered my perforlmance

review on about October 29, 2004. My score was 3.92 out of 5.0, and I was told that my

ratings pJlaced me fmnly in the seocond qua.rrttile of my peers.

53_ Nevecrtheless, in December 2004, iI was paid $475,000, the same as the previoluls yee--<alr.

My compensation level remained stagnant despite 40% growth in our business from 2003

levels (an increase that surpassed our revenue targets) and despite 60% annualized

growth in our business during 1he four months I led the group during my manager's

maternity leave. Additli0onally, my pay for 2004 did not track t.h."a'at of employees in the

Equities Division generally, for whom compensation levels had increased by about 20%

on average. Upon information and belief, Mr.

s compensation for 2004 was

substantially greater than mine.

54. On about February 4, 2005, after I had waited about three months for Goldman to assign

me any substantive work.

the head ofOD.S. Sales and a Partner, gave

me a much lesser-valued job in U.S. Research Sales.

55. On Febrmuary 18,2005, Mr.

gave me basic account assignments that were far

lJess favorable that1l accounts given to similarly-situated men (malec Vice Presidents of

comparabJe professional history who transferred into U.S. Research Sales, \-vith no sales

experience specifically in U.S. Research Sales). Although Mr.

said I could

continue to seek another position within Goldman on my own time, he also cautioned that

there were no other poSsiitions available for me. As a re:s:;uult Mr.

essentially

gave me no choice but to take the much-lesser val\ueddjob in U.S. Research Sales, and I

involuntarily accepted the position. On February 25,2005,

, a ParLtnier in

U.S. Research Sales, gave me my remaining account assignments. These were again far

less favorable than the assignments given to male employees wwii.th even less finfu!cc

experience than me.

56. By February 2005, most of the women who had worked on the convertible bond desk in
anall of Goldman's offices globally had transferred within thee:firnmn or had left Goldman
allttooggettl~:!eerr.. ~v1faannyy of these women had moved or resigned because of their frustration with working in a male-dominated environment, where women were treated less
favorably than their male peers, regardless of performance. Upon infonnation and belieeff,

9

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 57 of 71

the global convertible bond desk has never had a female managing director. The most

senior female on the global convertible bond desk in March 2005 was

-a

single, 29-yeaT old, second-yeaT Vice President.

57. On March 10,,22005, I resigned from Goldman because of the discrimination and retaliation to whhii-c·h 1 waSs subjected on acc-.ounti of my gender.

58. I seck compensation from Goldman for the discrimination and retaliation, including compensation for lost earoings, pain and suffering, and attorneys' fees.

59. I file this charge on behalf of myself and other similarly-situated women at Goldman.

60. Based upon the above, 1] charge Goldman, Sachs & Co. with discriminating against me
because of my gender and retaliating against me, ijn violation of Title vn of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as welnl as the New York State and Cjty
Human Rights Laws, NY Exec. L. §§ 290 et seq. and N.Y.C. Admin. Code §§ 8-11001 et
~. respectively.

Dated:

JulY.~.,

/I-t!t.-C-
200S5

New York, New York

V«9.
/}.

h'
~/(j :///''C,'

~/ '
,~~&' ,

/

/

.
-

'

a (:

{

;

i

-

-.

H. Cristina Chen-Oster

..A'1.W1'11l1!<: I.. CRISTo<_
".' !:tlie, :.itate of New York . <$t11CCRRSS11119348
., Nil;;! York COouUnlltIy ~ ·'•,..-.vembcer229, 20_

Nolta MELANIE l.. CRlSTOL

IY
.

P~QU.b{lf}lc11, CCstRRa6t6e11o9f mNew

YQrk

C{())<'lnlmQIlSsUusSaiaollinfieEdxPti·lif_N~$ewN·..-oV_Yrv.oou€r"rrkenmC.~~oru2n9ty,20116

10

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 58 of 71

EEOC Fonn 16Jl-.!!(11109)
To:

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

From:

New York District Office 33 Whitehall Street 5th Fflloooor New York. NY 10004

o

On behalf of (pJe<.'IS!sOon(s) aggrieved whose iden1Uiiy is

CONFIDENTIAL (29 CFR §1601.7((a))

EEOC Charge No.

EEOC Representative

Telephone No.

160-2005-03069

Lawrence M. Angelo, IInnvveestigator

(212) 336-3763

NoOnncCeE: TO THE P5RSON At;;;;GGRRI1~~VV!S;D;

(See al/so the additional informmaaUtion enclosed with tihis form.)

Title VII! of the Civil Rights A<;t of 1964. 1ihhe Americans with Disabilities Act ({ADA}, or the Genetic fnformation NondlscrlimlnatiO()l1 Act (GINA): This is your Notice of Right to Sue. issued under Title VII. Ithe ADA or GINA based on the above-·numbered charge. It has

been issued at youurr..request. Your lawsuit under TIlle VII, the ADA or GiNA must be filed in a federal or s1taate court 'WlI1lITTIIiiIlN 9SQ9 DAYS of your receipt of this notice; or your right 1\00 sue based on thlis c!h1a3rrge wili be lost. (The time limit for filing suit based on a claim under

state law may be different)

o

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

D

less Ihan 180 days have passed since the ffiiu~nngg oflhis Charge, buUil!I have determined !that rit. is unlikely that lhe EEOC will

m
D

be able to complete its administrative proce6ssing within 180 days from the tiling of this charge.
The EEOC is terminatlng its processing of this charge.
The EEOC will continue to process this charge.

Age Discrimination in Employment Act {ADEA): You may sue under the ADEA at any time from 60 days after the charge was fliiled until

90 days after you receive notice that we have completed action on Ithe charge. In this regard. theppaarraaggrraapnh marked below appUes to

oD your case:

The EEOC is closing your case. Therefore. your lawsuit under the ADEA must be filed in f~deral or state court W1lTTHHlN

90 DAYS of your receipt of this Notice. Otherwise. your rig hi to sue based on the aobove-numbei€d charge 'vtlill be lost

o

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

you may file suiit in fecdleral or state court under the ADEA at this time.

Eq-<lal Pay Act {EPA}: You already have the right to sue under tne EPA (filing an EEOC charge is not r~quired.) EPA suits must be brought ijn federal or state court \'Vithin 2 years (3 years for willful violations) of the alleged EPA underpayment This means that backpay due for any violations that oc~cuurrrreedd more than 2 years {3 yearrss}' before you file suit may I1'lQot be collectible.

Enclosures(s}

...I/

cc:

GOLDMAN SACHS & CO.

1 New York Plaza

50th Floor

New York, NY 10004

~On bohal~"io"
~"7---- ""'""", ....., , ' = ' . - ; V L -

.'

Jpencer H. Lewis, Jr.,. Dir~tor

/

\
"-. '-

~
Cara Greene, Esq. Outten & Golden, llP S Park Avenue, 29th Floor
New 'Yfccrk, NY 10016

(Date M-aaiilleed)

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 59 of 71
EXHIBIT 2

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 60 of 71

Lisa Parisi EEOC Charge (final).doc
nI~'."..'.'.'..'u''.'v"Vo'';'. OF DISCRIMINATION Cfuonnn is affected by the Privacy Act of 1974 ;Sec Privacy Act SlaWrncntbefomre
IC(Jlm~ller!ing Ithis form.

Page J of4
Nlt.:"'M-,19ER

S1atr:: or (",at

TELEPHONE (1n(b:"~ area

AADDDDRREESSS CcrrrT¥¥..SSTTAATTE AND lIIPP CODE

THE EMPLOYER, I.ABORORGANIZATfON,

AGENCY, A

COMM£frrEE,OR

WCAL GOVVEERRNN:\:-\{iEE::-IT AGE:'IiCY THAT I BELIEVE ODJfSSCRIMMIINA TED AGAINST ME OR OTHF.-.RftS. {<IIff .lO..."" lb,n

New

NY 10005

RACE 0 COLOR~ SEX 0 REUGION0 NATIONAtORIGJN 3~1 RETAALLllAA..TTJJOOi'< 0 AGE 0 DISABILITY 0 OTHBER (specify)

see attached statement. wanlt !<hhis chaarrgg<e: filed with both the EEOC and the St~e (o)r' local Agency, if any.
advise the agencies if [I change my .".cdtd'e5s or ielephnofle number and cooperate fully ith them in t!he processing of my charge in accorrddlalInlce wirh t1he!ir procedturre.
declare under penalty of perjury that the foregoing is true and corrrreecctt.
2J!J/!(})

November CONTINUTI,G AC110N
necessary fo' S~d{e andt~al
p,~t...j)n~

http:;/l/mmaaiill..ggooooggllee..ccoommllmmaaiilll??uuii==22&&iikk==bb3333ff110099ccee99&&vviieeww==aatt&t&thth==112266004488fefcebc6b5685c86c96&9&atatit.t.i....11/6/6//2200110

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 61 of 71

Lisa Parisi Charge of Discrimination

The Particulars Are (continued):

I. OVERVlEW OF ALLEGATIONS

1L. I am female. This sex djscrimination charge is tiled on behaallffof myself, Lisa
Parisi, and all others similarly situated. LUikke other female professionals at Goldman, Sachs & Co. (C"'Goltdman'")),, I have been hanned by a continuiinnggpattermn and practice or policy of discrimination with respect to pay, promotion, and other ternmns and conditions of employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C §§ 2000e et g~.g,., as well as the New York State and City Human Rights Laws, N ,Y. Exec. L. §§ 290 et seq. and NYC Admin. Code §§ 8-10011 et scq~ respectively. Goldman retaliated against and
teITPjnated me and other females who complained about this discrirmrrination.

II. WORK HISTORY

2,

1 was hired by Goldman in or around 2001 .. Since November 2003, Goldman

employed me as a Managing Director in the Value Group. In recent years, I

focused primarily on the retail industry's stock investments. During my tenure at

Goldman, I was a top perfornmner and consiSstently outperformed !t:hhe industry. My

job required me to work on several portfolios, each of which had a benchmark.

During my tenure at Goldman, I[aacchhiieved or sUurIppaassed each of these benchmarks.

I consistently made money on both long-term investments and more-diiffffikcult,

short-side investments. I was one of the few people in my group at Goldman who

made money on such short-side investments.

3. lv\I1ly objective performance record has been congsijstent with high praise..

III. DISCRIMINATION

Compensation

4. Goldman paid me less than ::;imjiJarly situated males throughout my career at Goldman. F{o)r example, a male employee who began at Goldman around the same time as me expernienced a similar rise in assets under management - from approximately $4 billion in 2001 to between $40 and $50 billion in 2007. This similarly situated male., however, received compensation much higher tha.ni me. From 2001 to 2007, his compensation doubled. My compensation, in contrast, dropped 60% from 2005 t{o) 2007 despite my continued high performance and similar assets under management. During my final year at Goldman, I received
only a base salary without any bonus..

5. When I asked why Goldmai1lowered my salary, my supervising partner told me that, while my objective perfonnance numbers were good, the Small Cap Group

822222233C6>..1

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 62 of 71

ofwhich I was a member did not outperfonn. The other two senior members of my team, however, did Dnoot suffer any decline in salary. In fact, they received an increase in salary. My supervising partner also stated that Goldmat., lowered my compensation because my scores on Goldman's subjective 360 review declined. . But, my colleagues reflultied my supervising partner's claims and confirmed that none of them had any negative experiences with me.
6o. During my entire tenure as a Goldman Sachs Managing Director, similarly situated males received significantly higher base compensation and bonuses than me.

Promotion

7. Goldman treated me less favorably regarding promotions than similarly situated men. There is no clear path or any objective criteria for promotion to partner at Goldman. Rather, to receive a promotion from managing director to partner at Goldman, a current paru:!ttner must nominate you and the company must approve t.he promotion. "When a paai".-1trn.'1eer position came open, Goldman nominated and promoted a male managing director with several years less experience than me. Prior to receiving this promotion, this male managing director also had significantly less experience than Ootthher maln1.aging directors in the team.
Hostile WW9...r9rk.kJ~Ennvviirroonnmmeentt//FFaammiHly Responsibilitvy Discriimmiinnaattiioo:q

8.

In my experience with Goldman, male Goldman employees who start families

receive higher pay and better treatment iheamn women who start families.

9.

LrJ 2006, I requested that Goldman allow me to relocate to Atlanta to be closer to

my fiance and his school-age children. I moved to Atlanta in or around March of

2006. I paid my own expenses to relocate and travel to New York for business..

Following my move to Atlanta, 1 continued to be a top perfornmner at Goldman.

10. While I had previously received unifonnly positive reviews, Goldman began evaluating me negatively in 2006. Goldman claimed that my Sstl.t.tppppoort staff had negative experiences with me. When I approached my support staff to inquire about these purported issues, however, the support staffrefuted Goldman's claims and confimled that none of them had any negative experiences wi1h me.

11. Also in 2006, my supervising partner approached me to inform me that Golidli.-c-lnJan planned to take the retail indUStry' s stock investments away from mc. When my colleagues heard this news, they expressed shock. Several ofthem, including the junior male managing director Lt.het Goldman had promoted, praised me as one of the best retail stock pickers in the industry. I brought this issue to the attention of the head of my group and pointed out that 1 made large amounts of money for Goldman in retail. Only then did Goldman decide to keep me on the retail industry's stock investments.

82"22:3>0..11

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 63 of 71
Retaliation 12. When I have brought the repeated instances of discrimination to Goldman's attention, the company has not acted to remedy the situation, but instead has retaliated against me by reviewing me negatively, lowering my compensation, and threatening to take me offof retail. Goldman further retaliated against me by terminating mee.
Ternmnination 13. As my work situation had become untenable, 1I approached my supervising partner in November 2007 and stated that, while I did not intend to resign, I hoped that we could negotiate a mutual separation agreement. Goldman agreed to discuss a mutual separation agreement with me. My supervising partner then asked me to remain at Goldman through the first quarter of2008. While Goldman terminated several employees in early 2008, Goidman did not tcerminate me and did not follow up with my requueesstt. In November 2008, Goldman sent me a ternmnination notice due to a mass reduction in force (RIlF).
IV. CLASS CLAIMS 14. It is my understanding and belief that Goldman has engaged in a connttLL1TllUUing pattern and practice of discrimination based on sex against female Managing Directors, Vice Presidents, and Associates with respect to compensation, business aHocations, promotions, and other terms and conditions of employment in Golili-l1nan facilities nationally. Goldman implements this pattern and practice of discrimination through subjective and unvaihidated criteria in evaluating the distribution of benefits and opportunities, including base compensation, bonus amounts, promotions, and ot.h'ler terms and conditions of employment. Goldman also retaliates against womecn and disproportionately seilects females for reductions in force.
I swear lulni,der penalty of perjury that I have read the above charge a.nt1d that it is true and correct to the best of my knowledge, infonnation and belief This charge is not intended to be exhaustive, but is representative of the treatment to which Goldman has subjected me.
822236.1

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 64 of 71
EXHIBIT 3

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 65 of 71

CHARGE OF DIlSCRIMINAnON
Tnhis form is affected by tne Privacy Act of 1974; See Privacy Act Statement before completing this form.

AGENCY
o FEPA
• EEOC

New York State Division of Human Rights and EEOC

Ms. Sba..'1.'1a Orlich

CIFl"/AARRGENUMBER

o COLOR

• SEX DAGE

o RELIGION o0 NATIOONNAALLORIlGIN
D DISABILITI [0] OOTTHHEERR'~'~~"" "

Please see a~tltached statement.

o CONTiNUING AACTION

• ji wa.'lt this chnarge filed with bot.'lthe EEOC and !the State or iccea! Agency, if
"a,n,"y . I will aavise the agencies ijf i change my address or telephone number and cooperate fully with LLll}Jem in the procceessssii!n1g of mroy charge in accordance with tihJee;;ijr procedure.

1 declare under penalty

correct.

for State and Local Requirementss})

read the above cnh2arIge aDnd information and beJlieLf.
SIGNATURE OF COMPLAINANT

it is true

,/h1l1.,.i,;O0
Dale

/(1~J..vL.f-i)vv.".~.B.
Charrgging P.many (s.,igaature)

SUBSCRIBED AND SWORN TO BEFORE ME THiS DATE' (Day. montl). and year)
/-1) -;1l"",t/"

EDDIE A ZAKARIAN
Notary Public - New Jersey Afi}y' Commission Expires Jtumn~ 7, 2011

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 66 of 71

Shanna Orlich Chame ofDiscrimination

The Particulars Are:

I. OVERVIEW OF ALLEGATIONS

1. This sex discrimination charge is fltled on behalf of myself, Shhaa...--mma Orliicchh., and others similarly situated. Like other female professionals at Goldman, Sachs & Co. ("Goldman"), I have been harmed by a contii.nnuing policy, pattern or practice of sex discrimIniL.,l.ation "\\r\tJftlhb respect to pay, promotion, and other terms and conditions of employment in violation of Title VII of the Civil Rights Act of 1964, as a..mended, 42 U.S.c. §§ 2000e~. as weBll as the New York State and City Huummfua'n1 Rights Laws. N.Y. Exec. L §§ 290 et seq. and NYC Admin. Code §§ 8-101 ~ respectively. Goldman retahated agaaii.."''lst me and other females who complained about discrimination and terminated my employment.

lIlI. WORK HISTORY

2.

I began working at Goldman as a Summer Associate in the summer of 2006 while

a student in the JJDD//MMBA program at Columbia University. As a Summer

Associate, I did rotations in several trading depar"'lullnlents of Gollddmmaai'i1j. In August

2006, Goldman offered me a fuHIi-time position for the foUHowwii.ng year, and I

accepted. 1I graduated from Columbia in 2007 and began working at Goldman in

the summer of 2007. After completing training, I began as an Associate in the

Capital Structure Franchise Trading ("CSFT") group in October 2007.

3. My first and only performance review at Goldman was overwhelmingly positive.

In November 2007, I met with my direct supervisor,

• who was head

of both the CSFT and High Yield desks. In my review, he gave me only positive

feedback and praise for the work I had done to date.

ID. DlSCRIM1INATlON

Promotion/Work Assignments

4. At the time I joined Goldma..i. Sachs in 2007, the CFST group was comprised of2 females, jncIuding myself, and 10 males.

5.. Goltdman gave me fewer opportunities to become a junior trader than it gave

similarly situated males. Although I joined Goldman to be a trader, when I

arrived at the CSFT desk, Mr. _ t o l d me there was no trading seat available

and thai I would have to rotate with traders and serve as a desk analyst. However,

Goldman also hired my business school classmate,

who started

directly as a trader in the High Yield group. Mr.

was a fornmner Navy

Seal, and Goldman's ma.n'1aaggeemment team often challenged him to do push-up

contests on the trading floor and to engage in other displays of masculinity.

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 67 of 71

6.

When Mr. ~eciddeceidded to take on a junior trading partner in CSFT, he offered

the position to MMJr-.

even though Mr.

was not even a member of

t~heCC~ SF~ T.

.

7. When I complained to Mr.

and asked why I had not been put in a trading

s.ea.t..Mr.. 2 told me that I did not have enough experience in trading. Mr.

•

did not have a.tl1lYY trading experience prior to his summer internship at

Goldman iiII"1.220006.

8., Around the same time I was hired, Goldman also hired • • • • • • •

directly from college. Even though l1v'vIfrr.

was junior to me, Goldman

allowed Mr.

to begin working as a trader in the CSFT group

immediately. Mr.

did not have any trading experience prior to his

summer internship at Goldman in 2006.

9. In January 2008, after I complained to a more senior female trader, MMr..

to assign me to be a junior trader with

Days later, Mar.

left the firm. In April 2008. Mr. _ a l s o lefit the firm.. After Mr.

s departure, Goldman did not assign me a new trading partner, and as a

result, I did not have the opportunity to trade.

10. In July 2008, I reaaccrh.ted out to

, the Managing Director of Sales, to

complain that I had no trading partner and was not being given an opportunity to

trade. Mr.

expressed surprise that Mr.

had hired me to trade and

told me that he did not see me as the "right fit" for a trader. He told me that he

saw me as an analyst., and that he had told a male colleague of lwJ1.-iL.nne who was

interested in the analyst posii.ttion that it would not be a good choice for him

because i.it would not be a good career move. He also said that because he had not

lh-ired me, he did not view me as his responsibility.

1J]. I also reached out to other members of Goldman's senior management with my

concerns. One of these was

a senior Partner. IVu.

told

me to stay put in the analyst role and to be a "team player," and that changes were

coming to the group and not to worry. Mr.

also reached Qut to 1\.11"'•

• • •aftteeTr :Mtvfr:r.

his trading partner, left the .flirnmn.. Mr. _ __

assigned:Mr. .

to be a junior trader with a highly successful trader in High

Yield.

12. Although the CSFT desk has an executive assistant, I was often asked by more

seniicoTr males to perform clerical and administrative work not glven to other male

Associates. For example, _

a more senior Analyst on the CSFT desk,

often gave me demeaning and menial assignments, such as setting up his

blackberry, making photocopies, and answering calls from his wife. SimiLarly-

situated male Associates and more junior male Analysts were not asked to

perform such work.

Hostile Work Environment

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 68 of 71

13. Goldman permits an environment to flourish that excludes and is hostile to ,•women. For example, in December 2007, a male Mai.'.1,aging Director hired female escorts to attend Goldman's Distressed SaleslCSFT holiday party. The female escorts arrived weeaarri.i.ln1g short black skirts, strapless tops, and Santa hats and socialized with male guests during the event..

14. Goldman also orgall'l1lzed frequent golf outings and other social events to which

female employees weree not invited. On one occasion, l'v1r. _

asked every

male person in my department and in neighboring groups to be his partner at a

golf outing, indcluucdling irnlividuals more jur...ior to me. However, he did not ask

me, the only female on the fixed income side of the CSFT trading desk. ] have

played golf since childhood and aiso played varsity golffor my high school teeaa..m'11.

15. I also lea..--ned of a golf outing attended byaapppprrooxxiimateiy 80 Goldman employees, only one of which was a female employee. I was told that I was not invited because I was too junior, but I later learned that several male analysts straight out of college attended the outing.

Retaliation

16. '\NVhen I brought the repeated instan<:es of gender discrimination to Goldman's attention, the company did not act to remedy the situation. Instead, Goldman retaliated against me by failing to give me advancement opporttumnities and then by terminating my employment.

Termination/Compensation

17. ln November 2008, Goldman sent me a terrmmiri>r..a.attiion notice due to a mass

reduction in force (RIp). Males who were similarly~situated to me or more junior

to me were not selected for the RIF, including Mr.

and Mr.•••I•iI1..

18. In 2008, Goldman paid me less than slimilarly-situated males. At the time I was terminated. Goldman did not pay me a bonus, even though I had worked for almost the entire year, and the amoouunnttoofmy severance package was based upon my base salary rate for 2008.

Family Responsibility Discrimination

19. At the time Goldman terminated my employment, I was three months pregnant.. Although I did not publicly fu-lmRounce that I was pregnant, I made Cc(<)Jlrllssppiiccuous
changes to my behavior, such as not drinking at work events as I had in the past.
One week before Goldman terminated my employment, I spoke to the executive
assistant to the Partners ofthe High Yield, CSFT, and Investment Grade groups.
She told me that she had seen the list of people to be terminated as part of the
RIlF, and that I was not on the list. r told her thatt]1 was pregnant, and she
responded that she had thought that I was pregnant based on my behavior. This conversation occurred on the trading floor. One week later, Goldman terminated
my employment.

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 69 of 71
20. After Goldman terminated my employment, an HR representative from Goldman called me to ask if I wanted to work in a temporary position for less pay. When I told the HR representative that I was pregnant and that I would need maternity leave during the period that they needed someone for the temporary position, the HR representative responded that "that would be a p1roObblleem." Later, the HR representative called to ask me to disregard those comments and to go ahead and interview for the temporary position if I was interested in it
IV. CL~ASSSS CLAIMS
21!.. It is my understanding and belief that Goldman has engaged in a continuing pattern and practice of diSscCPP-I111LinTalattiioon based on sex against female Managing Directors, Vice Presidents, and Associates with respect to compensation, business allocations, promotions, and other terms and conditions of employment i..l"1l Goldman facilities nationally. Goldman implements this pattem and practice of discrimination through subjective and unvaJidated criteria in evaluating the distribution of opportunities and benefits, including base compensation, bonus amounts, promotions, and other WtenrlI1nSs and conditions of employment Goldman also retaliates against women and disproportionately selects females for reductions in force.
I swear under penalty ofperjury that I have read the above charge and that it is true and cnorrect to the best of my knowledge, information and hbelief. This charge ijs noo1t intended to be exhaustive. but is representative of the treatment to which Goldman has subjected me.

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 70 of 71

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

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Kelly M. Dermody (admitted pro hac vice) Anne B. Shaver (admitted pro hac vice) Alison M. Stocking (admitted proc hac vice) 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

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

H. CRISTINA CHEN-OSTER; LISA PARISI; and SHANNA ORLICH,
Plaintiffs,
-against-
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,
Defendants.

AFFIDAVIT OF SERVICE

I, Jennifer Escobar, under penalties of peIrjury, certify the following as true and correct: I
am not a party to this action; arnid I am over 18 years of age. On this 19th day of September 2011, I
served a true and correct copy of the foregoing First Amended Class Action Complaint on
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC., defendants in this
action, whose last known addresses are:
Theodore O. Rogers, Jr. (via email and fIrst class mail) Suhana S. Han SULLIVAN & CROMWELL, LLP 125 Broad Street New York, NY 10004 rogerst@suUllcrom.com hans@sullcrom.com

Case 1:10-cv-06950-JMF-JCF Document 104 Filed 09/19/11 Page 71 of 71
Barbara B. Brown (via email and first class mail) PAUL, HASTINGS, JANOFSKY & WALKER LLP 875 15th Street, N.W. Washington, DC 20005 barbarabrown@paulhastings.coimn
Zachary D. Fasman (via email and first class mail) PAUL, HASTINGS, JANOFSKY & WALKER LLP 75 East 55th Street New York, NY 10022 zacharyfasman@paulhastings.com
C. Geoffrey Weirich (via email and first class mail) PAUL, HASTINGS, JANOFSKY & WALKER LLP Paul Hastings LLP (GA) · 600 Peachtree Street, NE .· Suite 2400 Atlanta, GA 30308 geoffweirich@paulhastings.com

Dated: September 19, 2011 New York, New York

-..J.~..~.~.~:Jf;e~~~rffeZ~sS~~~'f~oC:O::·:tr":£b1:~:..~LLd:.::::::::::::::-------J,

· (.1 g Sworn to before me this day of September, 2011
CCjj))~~J~A

Paralegal Outten & Golden LLP 3 Park Avenue, 29th Floor New York, NY 10016

NOTARY PUBLIC

DOIANE FISHER

Notary public, State of New York

NeD 0 Quallfledin

1RFicI6h1m1o66n9d5co~~tY20

/

~

Ccoommmmiisssion Expires October • -

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

H. CRISTINA CHEN -OSTER; LISA and SHAN~'lA ORLICH,

Plaintiffs,

10 Civ. 6950 (LBS) OCF)

v.
GOLDMAN, SACHS & CO. and THE GOLDMAK SACHS GROUP, INC.,

MEMORANDUM
& ORDER

Defendants.

SAND, J.

Defendants Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. (collectively,
"Goldman Sachs") object to Magistrate Judge James c. Francis's Report and Recommendation

("R&R") denying their motion to strike the class allegations of H. Cristina Chen-Oster, one of the

named Plaintiffs. Having reviewed the R&R and the copious objections and counter-objections

thereto, we affirm.

1. Background

We assume that the parties are familiar with the facts and the procedural history of this

case. lhe uninitiated reader is directed to the R&R (Dkt. # 105).

II. Standard of Review

A district court reviewing a magistrate judge's report and recommendation "may accept,
reject, or modify [it] in whole or in pare' 28 U.s.c. § 636(b)(l)(C). The court reviews de novo

any portions of a report and recommendation to which a party has objected; all else is reviewed

for clear error. Gary Friedrich Enters., LLe v. A1arvel Enters., 713 F. Supp. 2d 215, 219 (S.D.N.Y. 2010).

III. Discussion

1 


Defendants urge this Court to strike Chen-Oster's class allegations "on the ground that she raised exclusively individual claims in her administrative complaint before the Equal Employment Opportunity Commission (the "EEOC") and so failed to satisfy exhaustion requirements with respect to any class claims:' R&R at 1-2.
It is well-settled that a plaintiff may sue in federal court under Title VII only after she has exhausted her administrative remedies by filing a timely complaint with the EEOC and obtaining a right-to-sue letter. See Williams v. N. Y. City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006). Exhaustion only occurs if a plaintiffs "Title VII claims ... either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge:' Butts v. New 'lork Dep't ofHous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cif. 1993). "[TJhe purpose of the exhaustion requirement ... is to give the administrative agency the opportunity to investigate, mediate, and take remedial action:' Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cif. 1985).
The Second Circuit recognizes three instances in which claims not alleged in the EEOC charge are "reasonably related" to a plaintiffs Title VII claims. 'nle first-and the only one that is relevant to this case-is as follows:
Recognizing that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims she is suffering, we have allowed claims not raised in the charge to be brought in a civil action where the conduct complained of would fall with the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.
2 


Butts, 990 F.2d at 1402. (citations and internal quotation marks omitted). Defendants argue that the foregoing reference to "employees without the benefit of counsel" means that this exception is only available to plaintiffs who filed their EEOC charges without the advice of counsel. We disagree.
In Brown v. Coach Stores, 163 F.3d 706 (2d Cir. 1998), the plaintiff, Marva Brown, filed her EEOC charge "through her attorney:' Id. at 708. In her subsequent Title VII action in federal court, Brown, for the first time, asserted a disparate impact claim. Though Brown had not filed her EEOC charge pro se, the Second Circuit nonetheless applied the first "reasonably related" exception, finding that her disparate impact claim was "reasonably related" to a failure to promote claim that she had, in fact, included in her EEOC charge. Id. at 712. "Ibis case controls, and we must therefore reject Defendants' argument that the exception is not available to plaintiffs who are represented by counsel when they file an EEOC charge.
As an initial matter, then, we are satisfied that the first "reasonably related" exception both applies to this case and is, as Butts makes clear, "essentially an allowance of loose pleading:' Butts, 990 F.2d at 1402. Claims not brought in an EEOC charge may be brought in federal court "where the conduct complained of would fall with the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination:' Id. (quotation marks and citation omitted).
Defendants further assert, citing Williams, that Chen-Oster's statement in her EEOC charge that she "file[s] this charge on behalf of [herself] and other similarly situated women at Goldman Sachs;' Defs: Objection to the R&R, Ex. 1, cannot be considered an exhaustion of her class claims because she did not assert any "factual allegations ... even hinting at a class claim:' Defs: Objection to the R&R at 1. In Williams the Second Circuit found that when determining whether a claim is "reasonably related" to allegations in the EEOC charge "the focus should be on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct

about which a plaintiff is grieving:' Williams, 458 E3d at 70 (emphasis, supplied). Seizing on this, Defendants argue that if she is to maintain a later class action, a plaint,ff must proffer "facts" not only about the discrimination she herself suffered, but additional facts about the discrimination suffered by others.
We disagree - for several reasons. First, the same paragraph in Williams makes clear that the "central question is whether the complaint filed with the EEOC gave the agency adequate notice to investigate discrimination on both bases:' Id. (quoting Deravin v. Kerik, 335 F.3d 195, 201 (2d CiT. 2003)). Applied to this case, the question is whether Chen-Oster's EEOC charge gave the agency "adequate notice" that it ought to expand its investigation to include not just the plaintiff but other female employees of Goldman Sachs. We find that it did, for surely Chen­ Oster's statement that she "file[s] this charge on behalf of [herself] and other similarly situated woman at Goldman Sachs" put the EEOC on notice that her claims were not solely individuaL The "central question" must, we find, be answered in Chen-Oster's favor.
Second, the "factual allegation" language, proposed in Deravin v. Kerik, was developed to further loosen the pleading requirements in Title VII cases. In Deravin, the plaintiff, Eric Deravin, asserted race-based discrimination in federal court. 'The district court dismissed Deravin's case because he had alleged only national origin discrimination in his EEOC charge, and had therefore failed to satisfy his administrative exhaustion requirement with respect to his subsequent race-based claim. The Second Circuit reversed. Noting that "precise pleading is not required for Title VII exhaustion purposes;' Judge Chester Straub wrote that "facts alleged by a plaintiff in his or her EEOC complaint may suggest both [race and national origin] forms of discrimination, so that the agency received adequate notice to investigate discrimination on both bases:' Deravin, 335 F.3d at 202. Read in context, the meaning of this case is clear. Where a plaintiff brings claims in federal court that have not been asserted in the predicate EEOC charge, the court will look to see whether the claims are reasonablv related. In such a case the court will
I
4 


---------.--­ -- .....

.....~-.-- ...

survey the facts alleged, guided by the underlying premise that "it is the substance of the charge and not its label that controls:' Alonzo v. Chase Manhattan Bank, N.A, 25 F. Supp. 2d 455, 458 (S.D.N.Y. 1998) (cited by Deravin, 335 F.3d at 201). To repeat: the purpose of the "factual allegation" requirement is not-as Defendants would have it-to exclude, but rather to include. "[\V]e decline to hold that the failure to place a check mark in the correct box is a fatal error. In the context of Title VII, no one-not even the unschooled-should be boxed out:' Id. at 458-459 (citation omitted). See also Williams, 458 F.3d at 68-71 (holding that an EEOC "complaint alleging retaliation can also contain enough factual allegation to put the agency on notice of a potential sex discrimination claim, even though that claim was not alleged formally on the EEOC form:'). But where, as here, the plaintiff has checked the correct box, she has placed the EEOC on notice and has satisfied the exhaustion requirement.
Finally, no case presented to this Court-nor, we add, identified by this Court after an exhaustive inquiry-supports Defendants' interpretation that a plaintiff must, as a threshold requirement to a later class action, allege facts in her EEOC charge about herself and about other co-workers. Every case since Deravin in which the "factual allegations" language appears, involves, broadly speaking, one of two situations. The first situation is where a plaintiff brings claims in federal court based on an entirely different type of discrimination than initially asserted in the EEOC charge. For instance, a plaintiff alleges only retaliation claims in the EEOC charge, but brings suit based on race or gender discrimination. See, e.g., Little v. NBC, Inc., 210 F. Supp. 2d 330, 375 (S.D.NY 2002); Walsh v. Nat'l Westminster Bancorp Inc., 921 F. Supp. 168,172 (S.D.N.Y. 1995). The second situation is where, as in vVilliarns, a plaintiff has failed to "check the box" alleging a particular form of discrimination but has alleged facts indicating as much. But as far as we can tell no cases directly support Defendants' reading that a plaintiff must, in addition to declaring that she "file[s] this charge on behalf of [herself] and other Similarly situated women;' allege facts about the discrimination suffered by other, putative members of a future class.
5 


IV. Conclusion For the above reasons, we affirm Judge Francis' R&R denying Defendants' motion to strike
H. Cristina Chen-Oster's class allegations.~ SO ORDERED. January 10, 2012 
 New York, N.Y. 

'This Court has considered all of the parties' other arguments and found them to be moot or without merit.
6

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
H. CRISTINA CHEN-OSTER, LISA PARISI, and SHANNA ORLICH,
Plaintiffs,
v.
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,
Defendants.

10 Civ. 6950 (LBS) (JCF) OPINION & ORDER

APPEARANCES
For Plaintiffs:
OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, NY 10016 ADAM T. KLEIN CYRUS E. DUGGER JENNIFER L. LIU
LIEFF, CABRASER, HEIMANN & BERNSTEIN LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 KELLY M. DERMODY ANNE B. SHAVER ALISON M. STOCKING
For Defendants:
PAUL HASTINGS LLP 75 East 55th Street New York, NY 10022 BARBARA B. BROWN ZACHARY D. FASMAN C. GEOFFREY WEIRICH

SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 THEODORE O. ROGERS, JR. SUHANA S. HAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

H. CRISTINA CHEN-OSTER, LISA PARISI, and SHANNA ORLICH,

Plaintiffs,

10 Civ. 6950 (LBS) (JCF)

v.

OPINION & ORDER

GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

Defendants.

SAND, J. Defendants Goldman, Sachs & Co. and The Goldman Sachs
Group, Inc. (collectively, "Goldman") object to Magistrate Judge James C. Francis's January 19, 2012, Report and Recommendation ("R&R") denying Defendants' motion to strike all class allegations as well as their motion for partial summary judgment.
For the reasons that follow, Judge Francis's R&R is affirmed in part and reversed in part. I. BACKGROUND
The Court assumes familiarity with the facts of the case, which are laid out in detail in the R&R. See R&R (Dkt. No. 134) 2–8. II. STANDARD OF REVIEW
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify [it] in whole or in part." 28 U.S.C. § 636(b)(1)(C). The court reviews de novo any portions of a report and recommendation to which a party has objected; all else is reviewed for clear

1

error. Gary Friedrich Enters., LLC v. Marvel Enters., 713 F. Supp. 2d 215, 219 (S.D.N.Y. 2010). III. DISCUSSION
a. Rule 23(a)(2) Commonality Goldman moves the Court to strike Plaintiffs' class allegations on the grounds that Plaintiffs cannot, as a matter of law, satisfy Federal Rule of Civil Procedure 23(a) (2), which requires that plaintiffs seeking class certification establish that "there are questions of law or fact common to the class." Defs.' Objections (Dkt. No. 135) 6. In Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court ("Supreme Court") held that, in order to satisfy commonality, a plaintiff's claims "must depend on a common contention...of such a nature that it is capable of classwide resolution——which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke." 131 S. Ct. 2541, 2551 (2011). As Goldman construes them, Plaintiffs' class allegations are based on the "assertion that Goldman Sachs permits individual managers unbridled freedom to make employment decisions regarding their subordinates." Defs.' Objections 2. Dukes, Defendants argue, foreclosed certification based on managerial discretion of this sort because such discretion is "just the opposite of a uniform employment practice that would provide the commonality needed for a class action." Dukes, 131 S. Ct. at 2554. This argument is unpersuasive for two reasons. First, Goldman's motion is procedurally premature; second, Dukes is
2

distinguishable on the facts. Pls.' Resp. to Defs.' Objections (Docket No. 140) 2–9. Judge Francis denied Goldman's motion on both grounds.
1. Procedure "Motions to strike are generally looked upon with disfavor [and] a motion to strike class allegations...is even more disfavored because it requires a reviewing court to preemptively terminate the class aspects of...litigation, solely on the basis of what is alleged in the complaint and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification." Chenensky v. New York Life Ins. Co., No. 07 Civ. 11504, 2011 U.S. Dist. LEXIS 48199, at *3–4 (S.D.N.Y. Apr. 27, 2011) (citations and internal quotation marks omitted). See also Barghout v. Bayer Healthcare Pharms., No. 11 Civ. 1576, 2012 U.S. Dist. LEXIS 46197, at *30 (D.N.J. Mar. 30, 2012) (denying pre-discovery motion to strike class allegations). Generally speaking, then, motions of this kind are deemed procedurally premature. There is an exception to this general rule, but it does not apply to this case. The exception is this: a motion to strike that addresses issues "separate and apart from the issues that will be decided on a class certification motion" is not procedurally premature. Rahman v. Smith & Wollensky Rest. Group, Inc., 06 Civ. 6198, 2008 U.S. Dist. LEXIS 2932, at *11 (S.D.N.Y. Jan. 16, 2008). As Judge Francis noted in the R&R, "all of the defendants' arguments are indistinguishable from the issues that would be decided in the context of a motion for class certification." R&R at 10.
3

The Court agrees: Goldman's objections address Rule 23(a) (2)'s commonality requirement, which is exactly the sort of issue that would be litigated and decided in the context of a motion for class certification.
This ought to settle the matter, at least for the time being, but Goldman is adamant that Plaintiffs' class allegations fail as a matter of law. Goldman asserts, in essence, that no discoverable facts exist that might distinguish this case from Dukes. Defs.' Objections 6; see also Mot. to Strike Hr'g Tr. 3, May 22, 2012. We are, therefore, obligated to address this issue because "when a claim cannot succeed as a matter of law, the Court should not certify a class on the issue." McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 228 (2d Cir. 2008) (quoting Velez v. Novartis Pharms. Corp., 244 F.R.D. 243, 257 (S.D.N.Y. 2007)).
2. Substance In Dukes, the Supreme Court suggested at least two ways in which a plaintiff alleging employment discrimination on behalf of a putative class might satisfy commonality. It could (1) show that an "employer used a biased testing procedure" or (2) present "[s]ignificant proof that an employer operated under a general policy of discrimination [that] manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes." Dukes, 131 S. Ct. at 2553 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 n. 15 (1982)). The Dukes plaintiffs were unable to show that Wal-Mart used a biased testing procedure because, quite simply, there
4

was "no testing procedure or other companywide evaluation." Id. The Dukes plaintiffs were also unable to point to a specific companywide corporate policy apart from supervisors' total discretion over employment decisions. But this discretion, the Supreme Court determined, was "just the opposite of a uniform employment practice that would provide commonality." Id. at 2554.
Not so Plaintiffs in this case. As Judge Francis found ——correctly, we believe——Plaintiffs have identified a number of specific, companywide "employment practices" and "testing procedure[s]." These include the "360-degree review" process, the forced-quartile ranking of employees, and the "tap on the shoulder" system for selecting employees for promotion. R&R at 13. As opposed to hiring and promotion at Wal-Mart, which was committed to "local managers' broad discretion," based on managers' "own subjective criteria," and "exercised in a largely subjective manner," Dukes, 131 S. Ct. at 2547, the employment practices in this case, together or individually, might well——with the benefit of discovery—— comprise a "common mode of exercising discretion that pervades the entire company," id. at 2554–2555.
What was missing in Dukes, but is present here, are "specific employment practice[s]" (the 360-degree review, for example) that "tie[] all [of Plaintiffs'] claims together." Id. at 2555–2556. It is true that an individual manager's decision might be more or less discretionary, but this, as the Supreme Court made clear in Dukes, does not doom a class, since this discretion would have been exercised under the rubric of a company-wide employment practice. Id. at 2554.
5

See also McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 489 (7th Cir. 2012) (Posner, J.) (permitting class certification in employment discrimination case where managerial discretion was "influenced by [] company-wide policies.").
Goldman's reliance on Bell v. Lockheed Martin Corp., No. 08 Civ. 6292, 2011 U.S. Dist. LEXIS 143657 (D.N.J. Dec. 14, 2011), is unavailing. In Bell, as in Dukes, the proposed class was not united by any "common contention" because Lockheed Martin did not make employment decisions based on a companywide evaluation procedure akin to Goldman's 360-degree review. Rather, each of Lockheed Martin's "Business Areas and Business Units" was given "discretion to implement [employment] policies, practices, and procedures ...." Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 190 (D.N.J. 2010). It is true that Lockheed Martin set minimum qualifications for each employment level, Bell, 270 F.R.D. at 192 n.8., but this is largely true of any employer, including Wal-Mart, Dukes, 131 S. Ct. at 2547. What characterized Lockheed Martin's (and Wal-Mart's) employment procedures was fragmented discretion untethered to any companywide policy and procedure. This is, we find, readily distinguishable from the case at bar.
On this basis alone, Goldman has failed to show that, with the benefit of discovery, Plaintiffs would be unable to allege facts and circumstances that would take this case out of the Dukes ruling.
Yet Dukes is distinguishable in another way. Time after time the Supreme Court circled back to the issue of scale.
6

"We are," the majority opinion begins, "presented with one of the most expansive class actions ever." Id. at 2547. The Supreme Court suggested (when not explicitly stating) that the sheer size of the class and the vast number and diffusion of challenged employment decisions was key to the commonality decision. This makes a great deal of sense when the purpose of the commonality enquiry is to identify "some glue holding the alleged reasons for all of [the challenged] employment decisions together." Dukes, 131 S. Ct. at 2552 (emphasis omitted).
Thus the Supreme Court observed that the Dukes plaintiffs numbered in the millions. Dukes, 131 S. Ct. at 2547. These plaintiffs, moreover, "held a multitude of different jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed." Id. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (Kozinski, J., dissenting)). In addition, plaintiffs brought suit about "literally millions of employment decisions." Id. at 2552, 2556 n. 9. Thus, wrote Justice Scalia, the members of the class in Dukes had "little in common but their sex and this lawsuit." Id. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (Kozinski, J., dissenting)).
Not so Plaintiffs in this case. Plaintiffs do not number in the millions; Plaintiffs all worked at——and the allegations all center around——Goldman's New York office;
7

Plaintiffs were all members of a circumscribed category of Goldman employees; and Plaintiffs do not challenge literally millions of employment decisions. These factual distinctions are critical. Here, in contrast to the scattershot claims in Dukes, the possibility exists that class members' claims will be based on a "common contention," id. at 2551, thereby meeting the commonality requirement. See Cronas v. Willis Group Holdings, Ltd., No. 06 Civ. 15295, 2011 U.S. Dist. LEXIS 122736, at *9 (S.D.N.Y. Oct. 18, 2011) (distinguishing Dukes based on, inter alia, small size of class and consolidated employment location).
For the reasons above, both of which are independently adequate to support this Court's holding, Goldman's motion to strike is denied.
b. Rule 23(b)(3) Predominance Goldman also argues that, in light of its objections regarding commonality, Plaintiffs cannot meet Rule 23(b)(3)'s "far more demanding" predominance requirement. Defs.' Objections 20–21 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 624 (1994)). The predominance requirement, to be clear, requires that "the court find[] that the questions of law and fact common to class members predominate over any questions affecting only individual members...." Fed. R. Civ. P. 23(b)(3). Goldman is correct that if Plaintiffs cannot meet the Rule 23(a)(2) commonality requirement, they cannot meet the Rule 23(b)(3) predominance requirement. R&R at 22–23; see also Kendler v. Federated Dep't Stores, Inc., 88 F.R.D. 688, 693 (S.D.N.Y. 1981) ("[I]n the absence of a showing of
8

identifiable common issues, amenable to proof on a class-wide
basis, ... common issues of law and fact not predominate herein and plaintiffs have not satisfied the requirements of
Rules 23(a)(2) and 23(b)(3)."). But Goldman's argument succeeds if (but only if) the Court agrees that Plaintiffs
have failed as a matter of law to meet Rule 23(a)(2)'s commonality requirement. We do not. See supra IIIa2.
Goldman's motion to strike is denied as premature. c. 23(b)(2) Standing
In the context of its discussion (and ultimate invalidation) of the Ninth Circuit's "predominance test,"1
the Dukes majority noted that "[t]he Ninth Circuit...concluded that those plaintiffs no longer employed
by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices." Dukes, 131 S. Ct.
at 2560. The Dukes majority agreed, finding that "about half the members of the class approved by the Ninth Circuit[,
i.e., those who left their jobs after the complaint was filed,] have no claim for injunctive or declaratory relief at
all." Id. The remainder of the Supreme Court, dissenting
1 The Ninth Circuit's "predominance test" is not to be confused with the identically named Rule 23(b)(3) predominance test. The Ninth Circuit's "predominance test" was, before Dukes struck it down, applied in class certification analyses involving both injunctive relief and monetary relief. The rule held that certification of a 23(b)(2) class seeking mixed remedies was appropriate unless the "monetary relief sought [was] 'predominant' over injunctive or declaratory relief." Dukes v. Wal-Mart, 603 F.3d 571, 617 (9th Cir. 2010). Prior to Dukes, the Second Circuit applied a similar rule. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 164 (2d Cir. 2001) (a district court could use Rule 23(b)(2) to certify a class seeking both injunctive and monetary relief so long as, first, the value to plaintiff of the injunctive relief was predominant over the value of the monetary relief and, second, class treatment was efficient and manageable).
9

with respect to much of the majority's opinion, appeared agreed on this particular point, at least on the facts in Dukes. See id. at 2561 (Ginsburg, J., concurring) ("The class in this case...should not have been certified under Federal Rule of Civil Procedure 23(b)(2).") (emphasis supplied).
Goldman seizes on this language to argue that Plaintiffs, none of whom are currently employed by Goldman, are barred from certification under 23(b)(2) for lack of standing. Defs.' Objections 13–15. Plaintiffs respond that this rule does not apply to them because they specifically requested reinstatement in their prayer for relief. Pls.' Resp. to Defs.' Objections 9–11. Judge Francis, citing authority predating Dukes, agreed with Plaintiffs. R&R 13– 16.
1. Procedure Goldman's motion to strike Plaintiffs' Rule 23(b)(2) class allegations on the grounds that Plaintiffs lack standing is not procedurally premature because one way in which a claim for class certification can fail as a matter of law is lack of standing. See Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 (1982) (noting that courts may not certify a class whose representatives have no standing to sue). Indeed, standing is so basic a requirement that even if Goldman had not raised the issue, this Court would have been obligated to address it sua sponte. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (asserting federal courts' "independent obligation to examine their own jurisdiction," standing in particular).
10

2. Substance Before Dukes, federal courts took opposing positions on the question of ex-employee standing to sue for injunctive and declaratory relief. Compare Levin v. Madigan, 697 F. Supp. 2d 958, 975 (ex-employee plaintiffs who seek reinstatement and for whom such request is possible have standing to sue for injunctive or declaratory relief), with Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007 (11th Cir. 1997) (ex-employees have no standing to sue for injunctive relief because they cannot show a likelihood of future discrimination by former employer). Parties have not brought to our attention Second Circuit case law that is directly on point, although we note, for the record, that courts in this circuit have certified classes consisting of former and current employees under 23(b)(2) and, significantly, have done so since Dukes was handed down. E.g., Cronas v. Willis Group Holdings, Ltd., No. 06 Civ. 15295, 2011 U.S. Dist. LEXIS 122736 (S.D.N.Y. Oct. 18, 2011). The question of ex-employee standing after Dukes appears, then, to be one of first impression in this circuit. Upon due consideration, this Court holds, with significant reservations, that Dukes forecloses certification under 23(b) (2). Our holding is based on the following. First, like the Plaintiffs here, the plaintiffs in Dukes sought reinstatement. See Plaintiffs' Third Amended Complaint at 25, Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) (No. C 01-02252) (plaintiffs sought an "order restoring class members to their rightful positions at Wal-Mart"). In
11

this respect, then, the facts of this case cannot be meaningfully differentiated from the facts in Dukes. Second, the issue of ex-employee standing was fully briefed and, we presume, fully considered by the Supreme Court. See Brief for Petitioner at 51–52, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (No. 10-277), 2011 WL 201045. Third, the Supreme Court's analysis of this issue, and its blanket denial of standing to ex-employees, is not dictum: it was necessary to the resolution of this case insofar as it undergirded the invalidation of the Ninth Circuit's "predominance test" and foreclosed certification under 23(b) (2). See Dukes, 131 S. Ct. at 2559–2560. We are therefore obligated to follow the rule, notwithstanding misgivings about its wisdom, which we turn to now.
Rule 23(b)(2) certification is appropriate where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). The Dukes majority found that because some class members were no longer employed by Wal-Mart, injunctive relief was not appropriate to the class "as a whole." Dukes, 131 S. Ct. at 2560 (emphasis omitted). The Supreme Court's reasoning, simply put, is that ex-employees have no material stake in whether their former employer is or is not enjoined from continuing the allegedly discriminatory employment practices since they are no longer there.
With all due respect, this is true only sometimes. Where ex-employees do not seek (or cannot seek) reemployment
12

with their former employer, they have no real (though they may have a moral or metaphysical) interest in an injunction. But where class members seek reinstatement, as Plaintiffs do here, it is certainly possible that "final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed R. Civ. P. 23(b)(2). The reason, as Judge Francis wrote, is that a specific request for "reinstatement absent a corresponding injunction would expose plaintiffs to the immediate threat of further discrimination." R&R at 15. In other words, should plaintiffs prevail, and should a court grant them reinstatement, they have a very real interest in a courtissued injunction preventing their employer from engaging in the same or substantially identical discriminatory behavior. See Levin, 697 F. Supp. 2d 958, 975 ("Plaintiff requests reinstatement .... If Plaintiff's employment is reinstated, he may indeed be subject to the same allegedly discriminatory policy that he challenges in this lawsuit. To the extent that Plaintiff seeks an injunction requiring Defendants to cease engaging in sex or age discrimination, such relief would remedy a harm Plaintiff is likely to suffer again.") (emphasis omitted). In this sense, the Dukes majority's blanket rule that always denies standing to ex-employees cuts too broad a swath.
Furthermore, 23(b)(2) specifies that an injunction is appropriate where "the party opposing the class has acted or refused to act on grounds that apply generally to the class." Or, in the Supreme Court's rendering, "[t]he key to the (b) (2) class is the indivisible nature of the injunctive or
13

declaratory remedy warranted——the notion that the conduct is such that is can be enjoined or declared unlawful only as to all of the class members or as to none of them." Dukes, Dukes, 131 S. Ct. at 2557 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
In Dukes the Court found that Wal-Mart had no companywide employment policy, but instead granted individual managers total discretion to make employment decisions. Logically, then, Wal-Mart could not be said to have "acted or refused to act on grounds that apply generally to the class," since each decision by each manager was arguably unique. But, as we explain above, Plaintiffs allege——and might well succeed in proving——that Goldman does have a companywide employment policy. And if the evidence bears this out, it is certainly possible that Goldman's "conduct is such that it can be enjoined or declared unlawful...as to all of the class members," in which case injunctive relief would be appropriate. The Supreme Court's sweeping rule, however, deprives Plaintiffs of any opportunity to prove this.
One need not engage in freewheeling "slippery slope" analyses to foresee some potential consequences of the Court's new rule. Plaintiffs who wish to certify a class under 23(b)(2) will be forced to remain employed, sometimes under very difficult conditions, to ensure standing. Employers who wish to forestall employees from certifying a class under the otherwise defendant-unfriendly Rule 23(b)(2), see Dukes, 131 S. Ct. at 2558, will be encouraged to terminate them. Neither outcome is desirable.
14

In sum, while we disagree with the Supreme Court's reasoning we are oathbound to abide by its commands. We hold, therefore, that Dukes strips Plaintiffs of standing to seek 23(b)(2) certification.
c. 23(b)(2) and Monetary Damages Because we hold that Plaintiffs do not have standing to seek 23(b)(2) certification, we need not (and do not) decide whether Plaintiffs claims for monetary relief are incidental to the injunctive or declaratory relief. Dukes, 131 S. Ct. at 2557. d. Failure to Exhaust Goldman's final argument is that Plaintiffs have failed to exhaust their administrative remedies because, Goldman contends, they have failed to identify, in their respective EEOC charges, "the disparate impact theory, in name or in substance [or] any of the essential elements of a disparate impact claim." Defs.' Objections 23. A plaintiff may sue in federal court under Title VII only after she has exhausted her administrative remedies by filing a timely complaint with the EEOC and obtaining a Dismissal and Notice of Rights, colloquially known as a "right-to-sue letter." See Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006). Exhaustion only occurs if a plaintiff's "Title VII claims...either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993).
15

It is positively not the case that a plaintiff must use the words "disparate impact" or "facially neutral" to exhaust available administrative remedies. Deravin v. Kerik, 335 F. 3d 195, 202 (2d Cir. 2003) (holding that "precise pleading is not required for Title VII exhaustion purposes ...."). The Second Circuit, moreover, has declined to find that a "plaintiff's failure, in an EEOC complaint, to properly identify a theory of discrimination barred a subsequent suit in federal court relating to the precise incident challenged in the EEOC complaint." Gomes v. AVCO Corp., 964 F.2d 1330, 1335 (2d Cir. 1992).
As the Gomes court makes clear, the exhaustion inquiry is factual. Courts must determine whether the facts alleged support the various theories of relief sought. Id.; see also Woodman v. WWOR-TV, Inc., 293 F. Supp. 2d 381, 390 (S.D.N.Y. 2003) (citation omitted), aff'd on other grounds, 411 F.3d 69 (2d Cir. 2005) ("[I]t is necessary to focus on the factual allegations of discrimination to ensure that the substance of the charge, and not the label controls."). Hence the "reasonably related" exception, which "allow[s] claims not raised in the charge to be brought in a civil action where the conduct complained of would fall with the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Butts, 990 F.2d at 1402. (citations and internal quotation marks omitted).
We agree with Judge Francis that Plaintiffs' EEOC charges identify facially neutral policies sufficient "to give the administrative agency the opportunity to investigate, mediate, and take remedial action.” Stewart v.
16

United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985). Thus:

Ms. Parisi's charge describes a facially neutral policy for promotions to partner level whereby a "current partner must nominate you and the company must approve the promotion" and alleges that the policy had a discriminating effect on her and similarly situated women at Goldman Sachs. (Parisi Charge, ~~ 4-7). With regard to compensation, both Ms. Chen Oster's and Ms. Parisi's charges refer to the role of Goldman Sachs' facially neutral, but allegedly discriminatory, performance review and account assignment practices and make clear that those charges are brought on behalf of similarly situated women at the firm. (Parisi ~~ 4-12; Chen­ Oster Charge, ~~ 2, 5, 8).

R&R at 24-25.

Goldman's argument that Plaintiffs have failed to

exhaust their administrative remed s with respect to their

disparate impact claim is without merit.

IV. CONCLUSION

For the foregoing reasons, Goldman's motion to strike

Plaintiffs 23(b)(2) class allegations is GRANTED. Goldman's

motions are DENIED

all other respects.

SO ORDERED.
July -'-f:!, 2012
New York, NY

17 


 
 Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 1 of 41

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

:

PARISI; and SHANNA ORLICH,

:

:

Plaintiffs,

:

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

(ECF)
10 Civ. 6950 (LBS) (JCF) MEMORANDUM AND ORDER

This case illustrates some of the practical difficulties in

implementing three of the principles intended to reduce the burden

of discovery generally, and electronic discovery in particular:

phasing, sampling, and proportionality. In this putative class

action, the plaintiffs allege that their employers, Goldman, Sachs

& Co. and The Goldman Sachs Group, Inc. (colle ctively, “Goldman

Sachs”), engaged in a pattern of gender discrimination against

female professional employees in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New

York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq.

Specifically, the plaintiffs contend that they have been

discriminated against in evaluation, compensation, and promotion.

The plaintiffs seek to represent “a Class of all female financial-

services employees who are at the Associate, Vice President, and

1

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 2 of 41
Managing Director corporate level” at Goldman Sachs. (First Amended Class Action Complaint (“Am. Compl.”), ¶ 58). They now move pursuant to Rule 26(b) of the Federal Rules of Civil Procedure for an order compelling Goldman Sachs to produce (1) computerized compensation, promotion, and performance evaluation data from 2002 to the present which are contained in databases, and (2) nondatabase materials including policy and complaint documents from July 2000 to the present. Background
A. The Plaintiffs’ Employment The plaintiffs are three women who worked for Goldman Sachs between 1997 and 2008. (Am. Compl., ¶¶ 12-18). Goldman Sachs hired H. Cristina Chen-Oster in March 1997 as a salesperson in the Convertible Bonds Department, a unit of the Securities Division, and she was promoted to Vice President the following June. (Am. Compl., ¶ 67; Letter of Theodore O. Rogers, Jr. dated Sept. 1, 2005 (“Def. 9/1/05 EEOC Letter”), attached as Exh. B to Declaration of Theodore O. Rogers, Jr. dated July 25, 2011 (“Rogers 7/25/11 Decl.”), at 2). She transferred to the Synthetics Convertibles group in 2002 and ultimately resigned from the firm in 2005, having remained in the position of Vice President. (Am. Compl., ¶¶ 67, 89, 99; Def. 9/1/05 EEOC Letter at 3-4). Shanna Orlich began work as a Summer Associate at Goldman Sachs in 2006 and became a full-
2

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 3 of 41
time Associate in the Capital Structure Franchise Trading Group, another unit of the Securities Division, in July 2007. (Am. Compl., ¶ 112). She was terminated from that position in November 2008. (Am. Compl., ¶ 131). Goldman Sachs hired Lisa Parisi as a Vice President in the Asset Management Division1 in August 2001. (Am. Compl., ¶ 101). She was promoted to the position of Managing Director in 2003 and continued in that capacity until Goldman Sachs terminated her employment in November 2008. (Am. Compl., ¶¶ 101, 110).
B. Goldman Sachs’ Data Management System Goldman Sachs maintains information relevant to the plaintiffs’ requests for database information in four different systems. PeopleSoft is Goldman Sachs’ primary Human Resources database. (Affidavit of Cathy Obradovich (“Obradovich Aff.”), excerpts attached as part of Exh. 3 to Declaration of Barbara Brown dated May 30, 2012 (“Brown Decl.”), ¶ 2). In effect, it is two separate databases. The first contains data collected in and before September 2004. (Obradovich Aff., ¶ 2). Beginning in that month, Hewitt Associates LLC (“Aon Hewitt”) assumed responsibility for
1 The parties also refer to this unit as the Investment Management Division. (Defendants’ Opposition to Plaintiffs’ Motion to Compel Discovery of Data and Documents (“Def. Memo.”) at 4).
3

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 4 of 41
hosting the Goldman Sachs’ information. (Declaration of Vishali Chandramouli dated May 30, 2012 (“Chandramouli Decl.”), attached as Exh. 4 to Brown Decl., ¶ 2). The new database retained more organizational information about employees than the older version had, and complete data were not migrated from the original database to the new one. (Obradovich Aff., ¶ 8). As a result, although data on the new PeopleSoft program for a current employee may include information about employment at Goldman Sachs prior to 2004, that information may be incomplete. (Deposition of Cathy Obradovich dated April 18, 2012 (“Obradovich Dep.”), excerpts attached as Exh. G to Declaration of Anne B. Shaver dated May 2, 2012 (“Shaver Decl.”), and as Exh. 2 to Brown Decl., at 42-43).
In addition, different protocols are used to extract information from the two systems. Reports can be obtained from the current PeopleSoft database using a tool known as Query Studio. (Obradovich Dep. at 48). This tool allows the user to choose relevant fields of information and use a “drag and drop” feature to incorporate the information into a report. (Obradovich Dep. at 5355). By contrast, no such tool is associated with the preSeptember 2004 database. As a consequence, any report derived from that database would have to be created by developing inquiries from scratch using SQL, a programming language. (Obradovich Dep. at 7274).
4

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 5 of 41
The second relevant database is the Compensation Recommendation System (“CRS”), which tracks the results of the annual year-end compensation review process. (Obradovich Aff., ¶ 17). This database is used to generate Total Cost Reconciliation (“TCR”) files, which include various elements of employee compensation that add up to the employee’s annual total compensation. (Obradovich Dep. at 116-17). According to Goldman Sachs, TCR reports were not generated prior to December 2005. (Def. Memo. at 10). Data can be extracted from the CRS system independent of the TCR reports, but, according to Goldman Sachs, any such project would require significant quality control efforts because the data is not maintained in a “user-friendly” format. (Obradovich Aff., ¶¶ 17-18).
The Firmwide Review System (“FRS”) database contains ratings, comments, and results from Goldman Sachs’ employee performance evaluation program, known as the 360 review process. (Affidavit of Ankur Pathak dated March 30, 2012 (“Pathak Aff.”), attached as part of Exh. 3 to Brown Decl., ¶ 2; Deposition of Ankur Pathak dated April 19, 2012 (“Pathak Dep.”), portions attached as Exh. H to Shaver Decl., at 24). The FRS database contains no data for the period prior to January 1, 2003. (Pathak Aff., ¶ 2; Pathak Dep. at 30-31). The Talent Assessment Group (“TAG”) at Goldman Sachs does have electronic data concerning performance reviews in 2002, but
5

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 6 of 41
that information is limited to the Equities section of the Securities Division and may not be complete. (Pathak Aff., ¶¶ 1, 3). In addition, TAG does not possess the criteria or rating scales used to generate the 2002 evaluations. (Pathak Aff., ¶ 3).
Finally, Goldman Sachs utilizes something known as the MD Selection Database to track information pertinent to the consideration and selection of Vice Presidents for promotion to the position of Extended Managing Director (“EMD”). (Pathak Aff., ¶ 9). This database contains information from January 1, 2002, forward. (Pathak Aff., ¶ 9).
I will address additional facts as they are pertinent to the legal analysis.
C. Procedural History From time to time, discovery in this case has been stayed by agreement of the parties or by court order pending decision on motions that would likely determine the scope of relevant information. For example, the parties agreed to hold in abeyance discovery on the claims of plaintiff Parisi while they litigated Goldman Sachs’ motion to compel arbitration of her claims. (Letter of Adam T. Klein dated June 21, 2011 (“Klein 6/21/11 Letter”), attached as Exh. B to Shaver Decl., at 1 n.1). That motion has since been denied. (Chen-Oster v. Goldman, Sachs & Co. , 785 F. Supp. 2d 394 (S.D.N.Y. 2011) (denying motion); Chen-Oster v.
6

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 7 of 41
Goldman, Sachs & Co., No. 10 Civ. 6950, 2011 WL 2671813 (S.D.N.Y. July 7, 2011) (denying reconsideration); Memorandum Endorsement dated Nov. 14, 2011 (denying appeal of denial of motion)). Subsequently, Goldman S achs moved to strike the class claims of plaintiff Chen-Oster on the ground that she had not exhausted them in the preceding administrative proceedings. In response to that motion, I issued a partial stay of class discovery, holding that “[u]ntil the ability of plaintiffs Parisi and Chen-Oster to assert class claims is finally determined, class discovery shall be limited to the period after January 1, 2007, to the Securities Division, and to the positions of Associate and Vice President.” (Memorandum Endorsement dated Oct. 4, 2011). Thereafter, the motion to strike Ms. Chen-Oster’s class claims was denied. (ChenOster v. Goldman, Sachs & Co. , No. 10 Civ. 6950, 2011 WL 6372786 (S.D.N.Y. Sept. 29, 2011) (recommending denial of motion); ChenOster v. Goldman, Sachs & Co. , No. 10 Civ. 6950, 2012 WL 76915 (S.D.N.Y. Jan. 10, 2012) (affirming report and recommendation). Finally, Goldman Sachs moved to strike all class allegations on the ground that they are barred by the Supreme Court’s determination in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541 (2011). The Court recently denied that motion in substantial part. (ChenOster v. Goldman, Sachs & Co. , No. 10 Civ. 6950, 2012 WL 205875 (S.D.N.Y. Jan. 19, 2012) (recommending denial of motion); Chen-
7

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 8 of 41
Oster v. Goldman, Sachs & Co., __ F. Supp. 2d __, 2012 WL 2912741 (S.D.N.Y. 2012) (affirming report and recommendation except dismissing claims for injunctive relief). No pending motions now impede proceeding with discovery.
D. The Parties’ Contentions The plaintiffs seek Goldman Sachs’ compensation, promotion, and performance evaluation database information for the period from 2002 to the resolution of this lawsuit for its revenue-generating units, which are the Securities, Investment Banking, Investment Management, and Merchant Banking Divisions. They also request other documents responsive to their Requests for Production for the period from July 7, 2000 until this case is resolved. (Memorandum of Law in Support of Plaintiffs’ Motion to Compel Discovery of Data and Documents (“Pl. Memo.”) at 24). They argue that this information is relevant both to class certification and to the merits, that it is necessary for any statistical analysis of Goldman Sachs’ employment practices, that it is reasonably accessible, and that its disclosure involves no undue burden. (Pl. Memo. at 6-20). With respect to the information sought which is not contained in databases, the plaintiffs seek data going back to the year 2000, two years prior to the beginning of the class period, in order to analyze the development of the challenged policies. (Pl. Memo. at 20-21). They contend that the defendants
8

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 9 of 41
must search for this information systematically, and not merely produce that which they find in the course of seeking more recent materials. (Pl. Memo. at 21-23).
For its part, Goldman Sachs presents a two-tier argument. First, it maintains that, in light of Dukes , discovery of the statistical information in the databases should be deferred altogether until after deposition and other discovery is taken with respect to its policies concerning employee evaluation, compensation, and promotion. (Def. Memo. at 5-8). According to Goldman Sachs, if the non-statistical discovery were to reveal information insufficient to support certification, there would be no need to take discovery of the databases. (Def. Memo. at 8).
Second, Goldman Sachs argues that even if discovery of the databases is not deferred altogether, it should be limited. The defendants maintain that certain of the data sources are not reasonably accessible, and that searching them would involve undue burden and expense. (Def. Memo. at 11-13). With these considerations in mind, Goldman Sachs proposes to produce from the PeopleSoft database information from January 1, 2007 to December 2011 for Associates and Vice Presidents in the Securities and Investment Management Divisions, as well as information back to 2002 for the Convertible Sales and Equities Research groups within the Securities Division. (Def. Memo. at 10). With respect to the
9

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 10 of 41

Compensation Recommendation System, Goldman Sachs would produce

Total Cost Reconciliation reports for Associates and Vice

Presidents in the Securities and Investment Management Divisions

from December 2005 through December 2011. (Def. Memo. at 10). It

would likewise produce information from the FRS database for

Associates and Vice Presidents in the Securities and Investment

Management Divisions from 2003 through 2011. (Def. Memo. at 11).

And, it would disclose data from the MD Selection database for the

Securities and Investment Management Divisions for some unspecified

period. (Def. Memo. at 11).

Finally, Goldman Sachs does not object to producing policy-

related documents dating back to 2000 as long as they are obtained

from custodians whose files are otherwise being reviewed. It does

object to conducting a systematic search for documents pre-dating

2005. (Def. Memo. at 21-22).

Discussion

A. Databases

1. Impact of Dukes on Sequencing Discovery

There is no doubt that Dukes

has raised the bar that

plaintiffs must clear in order to qualify for class certification.

However, it does not, as Goldman Sachs suggests, militate in favor

of bifurcating discovery prior to certification. On the contrary,

if anything, Dukes illustrates the need to develop the record fully

10

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 11 of 41
before a class motion is considered. Dukes involved “one of the most expansive class actions ever.”
Dukes, __ U.S. at __, 131 S. Ct. at 2547. The plaintiffs, challenging gender discrimination in pay and promotion in violation of Title VII, sought certification of a class consisting of “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subject to WalMart’s challenged pay and management track promotions policies and practices.” Id. at __, 131 S. Ct. at 2549 (internal quotation marks, citation, and alteration omitted). The proposed class comprised about one and a half million current and former female employees. Id. at __, 131 S. Ct. at 2547.
The record showed that “[p]ay and promotion decisions at WalMart are generally committed to local managers’ broad discretion, which is exercised in a largely subjective manner.” Id.at __, 131 S. Ct. at 2547 (internal quotation marks and citation omitted). Nevertheless, the plaintiffs’ “basic theory” was that “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers -- thereby making every woman at the company the victim of one discriminatory practice.” Id. at __, 131 S. Ct. at 2548. In order to show that there were “questions of law or fact common to the class” as required for
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certification by Rule 23(a)(2) of the Federal Rules of Civil Procedure, the plaintiffs presented statistical evidence showing pay disparities between male and female employees, anecdotal reports of discrimination, and expert testimony from a sociologist to the effect that Wal-Mart’s “culture” and personnel practices rendered it vulnerable to gender discrimination. Id.at __, 131 S. Ct. at 2549.
The Supreme Court overturned the order granting class certification, finding that the requirement of commonality had not been met. It held that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Id. at __, 131 S. Ct. at 2551 (quoting General Telephone Co. of Southwest v. Falcon , 457 U.S. 147, 157 (1982)). In particular, the plaintiffs’ claims “must depend on a common contention . . . of such a nature that it is capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at __, 131 S. Ct. at 2551. The Supreme Court directed lower courts to engage in a “rigorous analysis” to determine whether the prerequisites for certification have been satisfied, an analysis that frequently “will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Id. at __, 131 S. Ct.
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at 2551. It noted that such an overlap is inevitable in an employment case based on a theory of a pattern or practice of discrimination. Id. at __, 131 S. Ct. at 2552.
The Supreme Court found the plaintiffs’ evidence of a companywide practice of discrimination at Wal-Mart to be inadequate. It acknowledged that “‘an employer’s undisciplined system of subjective decisionmaking’” can be the predicate for a disparate impact claim under Title VII. Id. at __, 131 S. Ct. at 2554 (quoting Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 990 (1988)). However, the Court found that the plaintiffs lacked proof to connect any Wal-Mart policy to specific instances of biased decisionmaking. In particular, the “only evidence of a ‘general policy of discrimination’” was the testimony of the plaintiffs’ sociological expert; yet he could not estimate, in even the most general way, what percentage of the employment decisions at WalMart were determined by the “stereotyped thinking” that he identified as the source of discrimination. Id. at __, 131 S. Ct. at 2553.
Goldman Sachs relies on a number of cases that, consistent with Dukes, deny class certification where the plaintiffs were unable to demonstrate that a common policy or practice affected the class as a whole. SeeIn re Countrywide Financial Mortgage Lending Practices Litigation, No. 08-MD-1974, 2011 WL 4862174, at *2-4
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(W.D. Ky. Oct. 13, 2011) (rejecting statistical evidence of racial disparities in mortgage financing where plaintiffs challenged only discretionary pricing and not underlying company-wide policy); In re Wells Fargo Residential Mortgage Lending Discrimination Litigation, No. 08-MD-1930, 2011 WL 3903117, at *3 (N.D. Cal. Sept. 6, 2011) (same); cf. Rodriguez v. National City Bank , 277 F.R.D. 148, 154-55 (E.D. Pa. 2011) (same; rejecting class settlement). In each of those cases, however, the court made its determination on the basis of a complete record.
In two other cases cited by Goldman Sachs, the court denied class-related discovery, but in both instances the circumstances were unique. In Bell v. Lockheed Martin Corp., Civ. No. 08-6292, 2011 WL 6256978 (D.N.J. Dec. 14, 2011), the court rejected additional discovery relating to the plaintiffs’ theories of employment discrimination, which it found were “substantially the same as the proofs rejected in Dukes .” Id. at *8. Yet, the plaintiffs had already conceded that discovery was “substantially complete.” Id. Similarly, in Windisch v. Hometown Health Plan, Inc., No. 3:08-cv-664, 2012 WL 115670 (D. Nev. Jan. 13, 2012), the court rejected the plaintiffs’ demand for statistical data to support class claims of health care providers suing an insurer where the plaintiffs had disclaimed the need for that very information, id. at *2, and where they had failed to seek to reopen
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discovery to obtain it, id. at *10. Other cases subsequent to Dukes emphasize the importance of
adjudicating a class motion only after class-related discovery is complete, discovery that often overlaps substantially with the merits. In In re Federal Home Loan Mortgage Corp. (Freddie Mac) Securities Litigation, 281 F.R.D. 174, 176 (S.D.N.Y. 2012), the court identified the ultimate goal: “[a] trial court must receive enough evidence to be satisfied that each Rule 23 requirement has been met.” Thus, because of the “rigorous analysis” required by Dukes, courts are reluctant to bifurcate class-related discovery from discovery on the merits. See, e.g., In re Community Bank of Northern Virginia Mortgage Lending Practices Litigation , Civ. A. Nos. 02-1201, 03-425, 05-688, 05-1386, MDL No. 1674, 2011 WL 4382942, at *3 (denying bifurcation in light of Dukes). In Burton v. District of Columbia , 277 F.R.D. 224 (D. D.C. 2011), while denying an initial motion for certification of a class of employees challenging allegedly discriminatory discipline and promotion practices because the plaintiffs had failed to meet the commonality requirement, id. at 228-30, the court nevertheless permitted additional discovery to enable them to satisfy their burden, id.at 230-31. The court reasoned that “[t]he Supreme Court’s ruling in [Dukes] confirms that pre-certification discovery should ordinarily be available where a plaintiff has alleged a potentially viable
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class claim because [Dukes ] emphasizes that the district court’s class certification determination must rest on a ‘rigorous analysis’ to ensure ‘[a]ctual, not presumed, conformance’ with Rule 23.” Id. (quoting Dukes , __ U.S. at __, 131 S. Ct. at 2551). Similarly, in Johnson v. Flakeboard America Ltd., C/A No. 4:112607, 2012 WL 2237004 (D.S.C. March 26, 2012), the court denied the defendant’s motion to dismiss class claims in an employment discrimination case on the basis of Dukes , finding that the plaintiffs were entitled to take discovery to support commonality where the gravamen of the complaint was that the defendant’s system of promotion was infected by “excessive subjectivity.” Id.at *6. Cf. Feske v. MHC Thousand Trails Ltd. Partnership, No. 11-CV-4124, 2012 WL 1123587, at *2 (N.D. Cal. April 3, 2012) (holding that disclosure of members of putative class “even more appropriate in the wake of Dukes”).
To be sure, in this case Goldman Sachs does not argue that the plaintiffs should be foreclosed from pre-certification discovery altogether. Rather, it contends that they should be allowed to take depositions and document discovery directed toward general policies but denied, for the time being, employee data that would provide the basis for a statistical analysis. According to Goldman Sachs, if, after the initial phase, the plaintiffs are unable to show a company-wide policy with a discriminatory impact, then,
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under Dukes, a class motion would be futile, and there would be no need to disclose detailed data.
But the plaintiffs have already identified specific employment practices that they allege contribute to discrimination in evaluation, compensation, and promotion, in particular “the ‘360degree review’ process, the forced quartile ranking of employees, and the ‘tap on the shoulder’ system for selecting employees for promotion.” Chen-Oster, __ F. Supp. 2d at __, 2012 WL 2912741, at *2 (internal quotation marks omitted). It is highly unlikely that class certification could be finally resolved on the basis of depositions and document discovery alone. Employment policies do not operate in a vacuum. A seemingly neutral policy may have a discriminatory impact. See Watson, 487 U.S. at 986-87. That is the case even when the employment process includes some element of subjectivity. Id. at 990-91. In order to determine whether there is such an impact and to ascertain whether it is attributable to a common policy or practice, it is necessary to acquire data about the class and analyze it. That analysis may show no discriminatory impact; it may show bias but fail to attribute it to any particular policies; it may show that there is evidence of discrimination in some segments of the defendant organization but not others. But without such an analysis, the link that Dukes requires between an employment policy and discriminatory impact in order to support a
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finding of commonality can neither be proved nor disproved.
Dukes does not suggest that statistics are irrelevant to the
issue of commonality. Rather, it holds that statistics about
multiple employment decisions, standing alone, will not satisfy the
commonality requirement. Rather there must be some “glue,” some
common practice that binds the decisions together. Dukes, __ U.S.
at __, 131 S. Ct. at 2552. The plaintiffs here have identified
such practices. They are therefore entitled to obtain individualized personnel data without further delay.2
2. Accessibility of the Data
Goldman Sachs contends that even if discovery of the databases
is not deferred, it should be limited because the information
requested is not reasonably accessible as defined in Rule
26(b)(2)(B). (Def. Memo. at 11-12). That rule provides:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because

2 This is not to say that

discovery related to class

certification should never be phased. Where it is likely that

targeted discovery on a particular issue may be dispositive of

class certification, it is entirely proper to take that discovery

first. For example, if there is doubt about numerosity, discovery

limited to that issue could result in an early determination of the

viability of class claims. Phased discovery, however, is less

likely to be efficient with respect to the issue of commonality,

especially after Dukes.

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of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
Fed. R. Civ. P. 26(b)(2)(B); seeCapitol Records, Inc. v. MP3tunes,
LLC, 261 F.R.D. 44, 51 (S.D.N.Y. 2009) (describing shifting burden
under Rule 26(b)(2)(B)).
Rule 26(b)(2)(B) takes a categorical approach: it invites the
classification of electronically stored information (“ESI”) as either “accessible” or “not reasonably accessible.” 3 While cost
and burden are critical elements in determining accessibility, a
showing of undue burden is not sufficient by itself to trigger a
finding of inaccessibility. For example, the sheer volume of data
may make its production expensive, but that alone does not bring it
within the scope of Rule 26(b)(2)(B). Rather, the cost or burden
must be associated with some technological feature that inhibits accessibility.4 In Zubulake v. UBS Warburg LLC , 217 F.R.D. 309,
318-19 (S.D.N.Y. 2003), a case that predated the Rule, the
3 At the risk of imprecision, I will use the term “inaccessible” interchangeably with “not reasonably accessible.”
4 A few cases appear to suggest otherwise. In Thermal Design, Inc. v. Guardian Building Products, Inc. , No. 08-C-828, 2011 WL 1527025, at *1 (E.D. Wis. April 20, 2011), for example, the court found archived e-mail and shared network drives not to be reasonably accessible based exclusively on the time and expense of searching and indexing them. To the extent that Thermal Designand similar cases do not consider some systemic barrier necessary to a finding of inaccessibility, I respectfully disagree with them.
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Honorable Shira A. Scheindlin, U.S.D.J., held that “[w]hether

electronic data is accessible or inaccessible turns largely on the

media on which it is stored.” Id. at 318. She then identified

five categories of sources of ESI in descending order of

accessibility: (1) active, on-line data; (2) near-line data; (3)

data that is archived or stored off-line; (4) backup media designed

for disaster recovery rather than routine use; and (5) erased,

fragmented, or damaged data. Id. at 318-19. Of these, Judge

Scheindlin considered the first three categories to be generally

accessible and the last two to be presumptively inaccessible. Id.

at 319-20.

Although the Rules Advisory Committee did not incorporate such

specific classifications in Rule 26(b)(2)(B), it retained the

concept that cost and burden are related to the source of the ESI.

Thus, the committee notes state that “some sources

of

electronically stored information can be accessed only with

substantial burden and cost. In a particular case, these burdens

and costs may make the information on such sources not reasonably

accessible.” Fed. R. Civ. P. 26 advisory committee’s note (2006

Amendment) (emphases added). The committee further observed that

“[i]t is not possible to define in a rule the different types of

technological features that may affect the burdens of costs of

accessing electronically stored information.” Id. Thus, decisions

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subsequent to the enactment of Rule 26(b)(2)(B) address accessibility by anal yzing the interplay between any alleged technological impediment and the resulting cost and burden. For instance in W.E. Aubuchon Co. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007), the court found data to be inaccessible because, although it was stored on a server, the method of storage and lack of indexing rendered it extremely costly to search. Id. at 42-43; see also General Electric Co. v. Wilkins, No. 1:10-cv-674, 2012 WL 570048, at *5 (E.D. Cal. Feb. 21, 2012) (holding that accessibility generally turns on format in which ESI is stored); General Steel Domestic Sales, LLC v. Chumley, No 10-cv-1398, 2011 WL 2415715, at *2 (D. Colo. June 15, 2011) (finding ESI inaccessible because of inability to s earch it except manually); Johnson v. Neiman , No. 4:09CV00689, 2010 WL 4065368, at *1 (E.D. Mo. Oct. 18, 2010) (holding that accessibility depends largely on nature of media); Helmert v. Butterball, LLC , No. 4:08CV00342, 2010 WL 2179180, at *1, *8 (E.D. Ark. May 27, 2010) (same); Capitol Records , 261 F.R.D. at 51 (same); Semsroth v. City of Wichita, 239 F.R.D. 630, 637 (D. Kan. 2006) (same).
The Sedona Conference, too, recognizes the technological dimension of accessibility:
Reasonable accessible sources generally include, but are not limited to, files available on or from a computer user’s desktop, or on a company’s network, in the
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ordinary course of operation. The converse is information that is “not reasonably accessible” because of undue burden or cost. Examples of such sources may include, according to the Advisory Committee, backup tapes that are intended for disaster recovery purposes and are not indexed, organized, or susceptible to electronic searching; legacy data that remains from obsolete systems and is unintelligible on the successor systems; and data that was “deleted” but remains in fragmented form, requiring a modern version of forensics to restore and review. The Sedona Conference, The Sedona Principles, Second Edition: Best Practices Recommendations & Principles for Addressing Electronic Document Production, Comment 2.c. at 42 (2007 Annotated Version) (hereafter, “Sedona Principles”). Here, Goldman Sachs has not demonstrated that the cost and burden associated with extracting ESI from any of the relevant databases is a function of the means of storage. The current version of PeopleSoft, for example, is accessed in the regular course of business by Goldman Sachs employees using the Query Studio tool. (Obradovich Aff., ¶ 8; Obradovich Dep. at 22). Where a more substantial project is undertaken, Goldman Sachs relies on Aon Hewitt to create programming code to select the desired fields of information. (Chandramouli Decl., ¶ 8; Deposition of Vishala Chandramouli dated June 21, 2012 (“Chandramouli Dep.”), attached as Exh. A to Declaration of Adam T. Klein dated June 27, 2012, at 4749). The older PeopleSoft database is also searchable, but only
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with some newly c reated program, since it is not linked to Query
Studio. (Obradovich Aff., ¶ 9; Obradovich Dep. at 72). Once
employee identifiers are obtained through a search of PeopleSoft,
they can then be used to extract corresponding data from the CRS
system. (Obradovich Aff., ¶ 17). The FRS system and MDS selection
database are likewise technically accessible. (Def. Memo. at 11).
Accordingly, Rule 26(b)(2)(B) presents no barrier to discovery of
the databases.5
3. Proportionality
A party may nevertheless resist discovery of non-computerized
documents or of ESI that is reasonably accessible on the ground
5 Even if the information on the databases were not reasonably accessible, I would find that the plaintiffs have nevertheless generally demonstrated good cause to obtain it to the extent that the requested discovery is not disproportionate, which is the issue discussed in the following section. Courts that have analyzed good cause under Rule 26(b)(2)(B) have generally considered the same types of factors relevant to a proportionality determination under Rule 26(b)(2)(C). See, e.g. , Tucker v. American International Group, Inc., 281 F.R.D. 85, 99 (D. Conn. 2012); Brocade Communications Systems, Inc. v. A10 Networks, Inc,. No. 10-CV-3428, 2012 WL 70428, at *1-3 (N.D. Cal. Jan. 9, 2012) (finding good cause for forensic imaging of otherwise inaccessible data where it was relevant to misappropriation claim and efforts to obtain it elsewhere had failed); General Steel Domestic Sales , 2011 WL 2415715, at *3 (finding no good cause where importance of evidence did not justify extreme burden and where information likely available elsewhere); Helmert, 2010 WL 2179180, at *8 (finding no good cause where likelihood of obtaining relevant information insubstantial); Johnson, 2010 WL 4065368, at *1-2; Major Tours, Inc. v. Colorel, Civ. No. 05-3091, 2009 WL 3446761, at *2-4 (D.N.J. Oct. 20, 2009).
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that the discovery sought is disproportionate. The concept of
proportionality is embodied in Rule 26(b)(2)(C). Tucker , 281
F.R.D. at 91. That rule provides:
On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). “The ‘metrics' set forth in Rule
26(b)(2)(C)(iii) provide courts significant flexibility and
discretion to assess the circumstances of the case and limit
discovery accordingly to ensure that the scope and duration of
discovery is reasonably proportional to the value of the requested
information, the needs of the case, and the parties' resources.”
The Sedona Conference, The Sedona Conference Commentary on
Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289,
294 (2010); accord Tamburo v. Dworkin , No. 04 C 3317, 2010 WL
4867346, at *3 (N.D. Ill. Nov. 17, 2010).
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Goldman Sachs personnel estimate that it would require between 90 and 150 hours to extract the information that the plaintiffs seek from the current PeopleSoft database using the Query Studio tool. (Obradovich Aff., ¶ 5). Performing a quality check of the resulting data would then take another 40 to 80 hours. (Obradovich Aff., ¶ 6).
Because Query Studio is unavailable for extracting data from the older PeopleSoft database, Goldman Sachs projects that the burden of searching there would be more substantial. An analyst would have to write computer code to create the necessary queries before pulling the information and then checking for accuracy. (Obradovich Aff., ¶ 9; Obradovich Dep. at 72-73). Goldman Sachs maintains that progr amming and extraction would take 160 to 240 hours and quality control another 40 to 80 hours, for a total of 200 to 320 hours. (Obradovich Aff., ¶¶ 9-11).
The CRS database presents a different challenge. Goldman Sachs believes that it would require 40 hours of work to extract the requested information from this database for employees who worked as Associates or Vice Presidents in the revenue-generating divisions between January 1, 2002 and December 31, 2011. (Obradovich Aff., ¶ 17). However, Goldman Sachs suggests that quality control would be more time-consuming “because the CRS data is not maintained in a user-friendly format” and would have to be
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manually reviewed, requiring at least an additional 240 hours of work. (Obradovich Aff., ¶ 18).
For the FRS database, Goldman Sachs estimates that it would take five to ten work days (presumably 40 to 80 hours) to write queries for the requested information, confirm the accuracy of the resulting computer code, extract the data, and perform a sample check to verify formatting and the like. (Pathak Aff., ¶ 4). An additional five days, or 40 hours, would be devoted to quality control, comparing the extracted data to available hard copy documents. (Pathak Aff., ¶ 5). These estimates relate only to the period from 2003 forward. (Pathak Aff., ¶ 2). There is data from 2002, but it relates solely to the Equities section of the Securities Division and my not be complete in any event. (Pathak Aff., ¶ 3). Extracting that data would require an addition four days or 32 hours, but no quality control could be done because Goldman Sachs does not have the hard copy documents necessary to use as reference. (Pathak Aff., ¶ 8).
Finally, obtaining the requested information from the MD Selection Database would, according to Goldman Sachs, take 32 to 40 hours. (Pathak Aff., ¶ 9). Another 16 to 24 hours would be needed for quality control. (Pathak Aff., ¶ 9).
There are two potential strategies that could reduce the burden that Goldman Sachs complains of. First, a sample of the
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requested information might be obtained from each database and then utilized to draw inferences about the population as a whole. Neither party has endorsed this approach. The plaintiffs seem to fear that the use of sampling might result in an analysis that will not be accepted by the Court as accurately reflecting the extent of any discriminatory impact from Goldman Sachs’ policies. They argue that “[t]he data is relevant in the aggregate to perform the applicable analyses to show patterns of statistically significant shortfalls or effects of challenged policies.” (Pl. Memo. at 7). In support of this contention, they cite two cases containing language that could be taken to discourage sampling. In Gutierrez v. Johnson & Johnson, Inc., No. 01 Civ. 5302, 2002 WL 34717245, at *5 (D.N.J. Aug. 13, 2002), the court rejected the defendant’s effort to “artificially limit the data available to plaintiffs” because broader discovery would “present a more complete and reliable picture of the effects of [the defendant’s] practices.” Similarly, in Smith v. Xerox Corp., 196 F.3d 358, 368-69 (2d Cir. 1999), overruled on other grounds byMeacham v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006), rev’,d 554 U.S. 84 (2008), the Second Circuit expressed concern that “[i]n any large population a subset can be chosen that will make it appear as though the complained of practice produced a disparate impact. Yet when the entire group is analyzed any observed differential may
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disappear.” For its part, Goldman Sachs contends that sampling requires a homogeneous population in order to form the basis for a valid analysis, and the population here is heterogeneous because it includes employees from different divisions with many different job titles and responsibilities. (Def. Memo. at 19-20).
I would not be so quick to abandon sampling, particularly since neither party has offered any expert evidence to the effect that sampling would invalidate any analysis in this case. The parties’ objections seem to assume random sampling across the entire universe rather than use of stratified sampling. The latter technique would take into account the heterogeneity of the population by dividing it into subgroups that are each homogeneous with respect to the relevant variables, after which a random sample would be drawn from each subgroup. See Michigan Department of Education v. United States Department of Education, 875 F. 2d 1196, 1205 (6th Cir. 1989) (endorsing stratified sampling as reliable); Spears v. First American eAppraiseIT , No. C-08-868, 2012 WL 1438709, at *6 (N.D. Cal. April 25, 2012) (finding that criticism of expert analysis might be cured with further stratification of sample); Feske, 2012 WL 1123587, at *2 (suggesting parties use stratified sampling “to assure a statistically significant representation of the population” of the putative class); Schaefer v. State Farm Fire & Casualty Co., Civil Action No. 06-8262, 2009
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WL 799978, at *5 (E.D. La. March 25, 2009) (relying on stratified sampling); McReynolds v. Sodexho Marriott Services, Inc. 349 F. Supp. 2d 1, 23 (D.D.C. 2004) (relying on stratified sampling in Title VII case); Chavez v. IBP, Inc. , No. CV-01-5093, 2004 WL 5520002, at *10-11 (E.D. Wash. Dec. 8, 2004) (rejecting expert analysis because of failure to utilize stratified sampling). Nevertheless, I lack the expertise to impose any particular sampling technique on the parties unilaterally. Moreover, there is some reason to believe that the savings to be realized from sampling here are not as great as they may be in other circumstances. To the extent that the burden on Goldman Sachs is a consequence of the time that would be spent on developing queries and writing programming code, that work would be largely necessary regardless of the size of the population subject to the search.
The other alternative -- and one that the plaintiffs advocate -- would require Goldman Sachs to produce in digital form all of the information contained in each of the databases. Goldman Sachs acknowledges that, at least in the short run, such a “data dump” would impose less of a burden on it than a more targeted production. (Chandramouli Dep. at 48-49, 51-52).
There is no legal impediment to ordering production in that form. See High Point SARL v. Sprint Nextel Corp. , No. 09-2269, 2011 WL 4526770, at *12 (D. Kan. Sept. 28, 2011) (requiring
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production of entire database over objection that irrelevant information would be included); Goshawk Dedicated Ltd. v. American Viatical Services, LLC, No. 1:05-CV-2343, 2007 WL 3492762, at *1 (N.D. Ga. Nov. 5, 2007) (requiring production of database over objections based on relevance and confidentiality); but see Daugherty v. Murphy, No. 1:06-cv-878, 2010 WL 4877720, at *7 n.5 (S.D. Ind. Nov. 23, 2010) (rejecting production of entire database as infeasible); Nicholas J. Murlas Living Trust v. Mobil Oil Corp., No. 93 C 6956, 1995 WL 124186, at *5 (N.D. Ill. March 20, 1995) (denying production of entire database on grounds of relevance and burden). There is no suggestion here that the databases at issue contain information that is privileged or subject to the work product doctrine or data that might constitute a trade secret. To the extent that they include personal information of employees, any production could be made pursuant to a strict confidentiality order.
Nevertheless, any short term savings from disclosure of the entire databases are likely to be offset by the costs involved in converting the mass of unorganized data provided into useable information. As Goldman Sachs’ witness described the problem, “it would be hard for anybody getting it to interpret it because they would need to have the business knowledge to link up all of the information that we provide.” (Chandramouli Dep. at 49). Thus,
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the time required to draft a report to impart the necessary knowledge to the plaintiffs’ counsel and their experts could well approach the time otherwise saved. (Chandramouli Dep. at 49). Furthermore, because the plaintiffs would be receiving something more akin to “raw” data, there would be a greater likelihood of future disputes regarding whether the parties’ respective experts were utilizing equivalent, appropriately validated information.
While Goldman Sachs remains free to respond to the plaintiffs’ pending discovery demands by producing all of the information from the databases if, on reflection, it determines that this approach is less burdensome, I will not order it to do so. Although a court may certainly consider the existence of a less costly alternative in evaluating a producing party’s claim of burden, it has limited authority and expertise to dictate the means by which a party complies with its production obligations.
Ultimately, then, I must determine whether the plaintiffs’ discovery demands are appropriate in light of the criteria set forth in Rule 26(b)(2)(C). The plaintiffs have not previously had the opportunity to obtain the information contained in the databases, and that information is not available from other sources. Thus, Rule 26(b)(2)(C), subsections i and ii do not favor limiting discovery. Rather, it must be ascertained whether the burden of the discovery outweighs its likely benefit in light of
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the factors set forth in subsection iii. There is little doubt that the needs of this case justify the
discovery sought by the plaintiffs. The information in the databases is central to the plaintiffs’ claims of gender discrimination in compensation, promotion, and evaluation. The amount in controversy, while not specifically quantified, is surely substantial. The plaintiffs represent that Goldman Sachs employs approximately 32,500 persons worldwide and 18,900 in North and South America. (First Amended Class Action Complaint (“FACAC”), ¶ 61). While it is unknown how many are female Associates, Vice Presidents, and Managing Directors in the revenue-producing divisions (FACAC, ¶ 61), the class would certainly number at least in the hundreds. Each class member would have a claim for back pay, some for a subst antial period of time. Thus, the financial stakes here are high. At the same time, Goldman Sachs has ample resources to respond in discovery. Indeed, at its direction, Aon Hewitt is regularly performing special projects on the PeopleSoft database similar to the search requested by the plaintiffs, some of which require more than 200 hours of employee time. (Chandramouli Dep. at 42). Of course, the importance of this litigation is not measured in dollars alone; the plaintiffs seek to vindicate the civil rights of the class members, and thus further an important public interest. As the Rules Advisory Committee observed, “[Rule
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26(b)(2)(C)(iii)] recognizes that many cases in public policy
spheres, such as employment practices, free speech, and other
matters, may have importance far beyond the monetary amount
involved.” Fed. R. Civ. P. 26 advisory committee’s note (1983
Amendment); see also John L. Carroll, “Proportionality in
Discovery: A Cautionary Tale,” 32 Campbell L. Rev. 455, 464 (2010)
(“A more fundamental problem with proportionality needs to be
discussed: the danger that monetary value of a case, alone, will
control the proportionality analysis, impeding the discovery
efforts of parties with limited resources and failing to
acknowledge the non-pecuniary importance of public policy-related
suits, such as those involving allegations of discrimination.”).
Against these considerations, I must weigh the burden imposed
on Goldman Sachs with respect to each database, taking into account both monetary and non-monetary components.6
Costs cannot be calculated solely in terms of the expense of computer technicians to retrieve the data but must factor in other litigation costs, including the interruption and disruption of routine business practices and the costs of reviewing the information. Moreover, burdens on information technology personnel and the
6 The Aon Hewitt representative states that a project valued at $5,000 represents approximately 75 to 100 hours of work, “depend[ing] on the complexity and the people involved.” (Chandramouli Dep. at 38-39). Even assuming that the discovery projects here are complex enough to warrant an hourly rate two or three times higher, the total cost, in terms of dollars, would be modest relative to the scale of the litigation.
33

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 34 of 41
resources required to review documents for relevance, privilege, confidentiality, and privacy should be considered in any calculus of whether to allow discovery, and, if so, under what terms. In addition, the nonmonetary costs (such as the invasion of privacy rights, risks to business and legal confidences, and risks to privileges) should be considered. Sedona Principles at 38. Goldman Sachs exaggerates the burden associated with extracting data from the current PeopleSoft database, and the restrictions in scope that it proposes are unjustified. First, Goldman Sachs based its estimate of the time necessary to respond to the plaintiffs’ requests on its use of Query Studio, a tool designed for individualized database searches. (Obradovich Dep. at 61). When Goldman Sachs requires comprehensive searches, as would be the case here, it normally delegates responsibility to Aon Hewitt to develop the appropriate programming code, presumably because this methodology is more efficient. Furthermore, a substantial portion of Goldman Sachs’ time estimate -- between 40 and 80 hours -- is allocated to quality assurance. (Obradovich Aff., ¶ 6). This estimate, which is rather conclusory, appears to be based on a goal of providing a pristine set of data. However, the standard for the production of ESI is not perfection. Rather, “[a] responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.” The Sedona Conference, The
34

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 35 of 41
Sedona Conference Database Principles: Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, March 2011 Public Comment Version, at 32 (emphasis added). Thus, it would be sufficient, and far less burdensome, to sample the data extracted to determine if there are systematic errors requiring further attention rather than to implement the comprehensive quality review apparently contemplated by Goldman Sachs.
At the same time, the limitations suggested by Goldman Sachs are artificial. It argues for restrictions by date and employment unit based on the employment history of each individual plaintiff. (Def. Memo. at 10). However, the plaintiffs are litigating more than their individual claims; they seek to represent a class that covers all divisions in which the challenged evaluation policies are utilized and to assert claims for the entire class period. Moreover, Goldman Sachs has not shown that the limitations it proposes would reduce its burden. The plaintiffs are therefore entitled to the full range of information they seek from the current PeopleSoft database d ating back to September 2004. Any disputes concerning which specific data fields are responsive to the plaintiffs’ requests will be addressed as they arise.
Searching the older PeopleSoft database, however, would likely entail a significant incremental burden. It could not be searched
35

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 36 of 41

with Query Studio, and any computer code written to search the

current database would not be directly transferable, since the two

databases do not have identical fields of information. (Obradovich

Aff., ¶ 8). And, while information for the period prior to

September 2004, which is available only on the older database, may

ultimately be necessary for evaluating the merits and determining

appropriate relief, it is not apparent why it would be critical to

issues of class certification. In

all likelihood, if the

plaintiffs can meet the requirement for commonality for the period

after September 2004, it can be inferred that they could meet it

with respect to the earlier period as well. Thus, the burden of

extracting the requested information from the older PeopleSoft

database at this time outweighs the benefit. Nevertheless, the

plaintiffs fear that Goldman Sachs will dispute the

representativeness of data obtained for less than the full class

period. (Transcript of Proceedings dated Aug. 8, 2012 (“Tr.”) at

22-23). This objection is readily resolved: Goldman Sachs shall be

relieved at this juncture of the obligation to produce information

from the older PeopleSoft database only if it stipulates that it

will not challenge the representativeness of data obtained from the

current database for purposes of class certification.

As noted above, the CRS database contains information about

compensation recommendations. Again, Goldman Sachs’ estimate of

36

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 37 of 41
the time required to respond to the plaintiffs’ requests is overblown, and its proposed alternative is inadequate. Although it projects that it would need only 40 hours to extract the requested information, Goldman Sachs complains that it would take six times that long for quality assurance. (Obradovich Aff., ¶¶ 17-18). Yet it has provided no detail to support this number, and nor has it done sampling or conducted a pilot search. Its offer to provide TCR reports for the full period during which they have been generated is insufficient. These documents show only the ultimate compensation determinations. (Obradovich Dep. at 116-17). In order to attempt to ascertain whether any gender di sparities in compensation are the result of Goldman Sachs’ policies on one hand or individual supervisory decisions on the other on, it is critical to identify not only the final pay or bonus determination, but also the intermediate recommendations reflecting those factors (and others). (Tr. at 60-61). Providing only the year-end information in the TCR reports would make it more difficult to distinguish among such causal variables, 7 and Goldman Sachs shall therefore provide the CRS database information requested from January 1,
7 Goldman Sachs argues that it is not possible to determine what factors influence the recommendations at different stages. (Tr. at 65-66). What inferences can be drawn from the data is yet to be determined, but the plaintiffs cannot be precluded altogether from obtaining the relevant evidence.
37

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 38 of 41
2002. (Obradovich Aff., ¶ 17). Goldman Sachs has not suggested that it would be burdensome to
extract the requested information from the FRS database. Rather, it seeks to limit its production to the Securities and Investment Management Divisions. (Def. Memo. at 11). As discussed above, any such limitation is unwarranted, since it would impair the plaintiffs’ ability to establish the prerequisites for certification of the entire class that they seek to represent. The data shall therefore be produced for employees in Investment Banking and Merchant Banking Divisions as well. The information shall be provided for the period after January 1, 2003, when the database was created. (Pathak Aff., ¶ 2).8
Similarly, Goldman Sachs has agreed to produce the requested information from the MD Selection Database “consistent with its other data proposals.” (Def. Memo. at 10). Again, in order to give the plaintiffs a fair opportunity to demonstrate their entitlement to certification of a class, Goldman Sachs shall extract the requested information for all of the revenue generating divisions from January 1, 2002 forward.
8 The information maintained by TAG for the year 2002 need not be produced because it is incomplete and potentially unreliable. (Pathak Aff., ¶ 3).
38

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 39 of 41
B. Policy Documents There is no doubt that the plaintiffs are entitled to documents, whether in electronic or hard copy form, concerning Goldman Sachs’ compensation, promotion, and evaluation policies going back to 2000, two years prior to the beginning of the class period. The only dispute is the degree of effort that Goldman Sachs must expend in locating such documents, a question that cannot be answered in the abstract. Goldman Sachs argues that because of changes in personnel and organizational structure over time, it will be more burdensome to locate documents created or maintained during the earlier portion of the period at issue. (Tr. at 51-52). That is no doubt true. But Goldman Sachs’ obligation is to make rea sonable efforts to locate and produce information responsive to the plaintiffs’ legitimate discovery demands. Furthermore, how reasonable those efforts are will depend in part on the importance of the documents; a cursory search may be all that is required with respect to marginally relevant documents, while a far more diligent search may be necessary where core documents are at stake. Until Goldman Sachs has conducted its search and the parties have identified with some specificity the alleged shortcomings of that effort and the types of documents at issue, there is no basis for a ruling.
39

Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 40 of 41

Conclusion For the reasons set forth above, the plaintiffs' motion to
compel (Docket no. 145) is granted to the extent that Goldman Sachs shall provide the requested information for employees in the revenue-generating divisions from the current PeopleSoft database, the CRS database, the FRS database, and the MD Selection database, for the time periods identified above. Provided that Goldman Sachs agrees not to argue for purposes of class certification that information in the older PeopleSoft database is materially different from that in the current database, it need not now produce information from the earlier database. With respect to the non-database documents, the plaintiffs' motion is denied without prejudice to renewal when it can be demonstrated that Goldman Sachs has failed to produce specific types of relevant documents.
SO ORDERED.

Dated: New York, New York September 10, 2012

C. FRANCIS IV STATES MAGISTRATE JUDGE

40 


Case 1:10-cv-06950-AT-JCF Document 159 Filed 09/10/12 Page 41 of 41

Copies mailed this date: 


Adam T. Klein, Esq. 
 Carmelyn Malal ,Esq. 
 Cara E. Greene, Esq. 
 Cyrus E. Dugger, Esq. 
 Jennier L. Liu, 
 Dana G. sussman, Esq. 
 Outten & Golden, LLP 
 3 Park Avenue, 29th Floor 
 New York, New York 10016 


Kelly Dermody, Esq. 
 Anne B. Shaver, Esq. 
 Alison M. stocking, 
 275 Battery Street, 30th Floor 
 San Francisco, CA 94111 


Theodore O. Rogers, Jr., Esq. 
 Suhana S. Han, Esq. 
 Michael P. Reis, Esq. 
 Sullivan & Cromwell, LLP 
 125 Broad Street 
 New York, New York 10004 


Barbara B. Brown, Esq. 
 Paul, Hasting, Janofsky 875 15th Street N.W. 
 Washington, DC 20005 


& Walker,

LLP 


C. Geoffrey Weirich, Esq. Paul, Hastings, Janofsky & Walker, LLP 600 Peachtree Sreet, NE Suite 2400 Atlanta, GA 30308

Zachary D. Fasman, Esq. Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022

41 


 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

:

PARISI; and SHANNA ORLICH,

:

:

Plaintiffs,

:

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

(ECF)
10 Civ. 6950 (AT) (JCF) MEMORANDUM AND ORDER

Privileged information can be communicated in myriad ways:

orally, in writing, by e-mail, with text messages, or even through

social media. This opinion addresses the circumstances under which

information contained in a database may be protected from

disclosure by either the attorney-client privilege or the work

product doctrine.

Background

The plaintiffs allege that their employers, Goldman, Sachs &

Co. and The Goldman Sachs Group, Inc. (collectively, “Goldman

Sachs”), engaged in a pattern of gender discrimination against

female professional employees in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New

York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. In

particular, the plaintiffs contend that they have been

1

discriminated against in evaluation, compensation, and promotion. They seek to represent “a Class of all female financial-services employees who are at the Associate, Vice President, and Managing Director corporate level” at Goldman Sachs. (First Amended Class Action Complaint (“Am. Compl.”), ¶ 58).
In a prior opinion, I determined that information from certain of Goldman Sachs’ human resources databases was relevant to the issues in this case and that the cost and burden of producing that information was generally not disproportionate to its importance to the litigation. Chen-Oster v. Goldman, Sachs & Co,. 285 F.R.D. 294 (S.D.N.Y. 2012). Two of the databases within Goldman Sachs’ data management system are particularly relevant to the current dispute. The PeopleSoft database is the company’s comprehensive repository for human resources i nformation. Id. at 296. The Compensation Recommendation System, or “CRS,” database has a more specific function: it contains the results of the annual year-end compensation review process. Id.
In the course of complying with my prior order and producing information from the CRS database, Goldman Sachs disclosed the names of thousands of data “fields,” each of which refers to a category of data elements. (E-mail of Geoff Weirich dated Dec. 29, 2012 (“Weirich E-mail”), attached as Exh. B to Letter of Adam T. Klein dated April 11, 2013 (“Klein 4/11/13 Letter”); List of
2

fields, attached as Exh. A to Klein 4/11/13 Letter). These categories can be linked to generate reports containing information relevant to business decisions. To give a simple example, one field may consist of employee names, while another comprises current job titles. A report d rawing from just these two fields would list every Goldman Sachs employee together with his or her title.
After producing a spreadsheet of CRS fields, defendants’ counsel discovered that they had inadvertently disclosed the names of a group of fields collectively referred to as the “Diversity Objects.” (Weirich E-mail). Arguing that these fields were created at the behest of counsel, Goldman Sachs maintained that their “very existence” is “privileged and reflects attorney work product” and demanded that the spreadsheet be returned for redaction. (Weirich E-mail). The plaintiffs agreed to sequester the spreadsheet and refrain from making use of it until its legal status was resolved, as required by Rule 502(b) of the Federal Rules of Evidence and Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure. (Letter of Adam T. Klein dated Jan. 4, 2013 (“Klein 1/4/13 Letter”), attached as Exh. C to Klein 4/11/13 Letter, at 1). They also requested that Goldman Sachs provide an affidavit establishing the basis for any asserted privilege. (Klein 1/4/13 Letter at 1-2).
3

In response, Goldman Sachs profferred a declaration from Gena
Palumbo, an employment attorney in the firm’s legal department
since 2001, who became head of the Employment Law Group in 2012.
(Declaration of Gena Palumbo dated Feb. 8, 2013 (“Palumbo Decl.”),
attached as part of Exh. D to Klein 4/11/13 Letter, at 1).
According to Ms. Palumbo, the legal department was often asked “for
advice about the legal risks that might be posed by the tentative
compensation decisions that the managers within [the revenue
division] had proposed.” (Palumbo Decl. at 2). The legal
department ultimately formulated a system for responding to such
inquiries:
In approximately 2003 or 2004, the Employment Law Group decided to establish a set of data fields to assist us in providing such legal advice when requested to do so. Therefore, I asked the Human Capital Management Division (“HCM”) to create reports for the lawyers from data in the Compensation Recommendation System (“CRS”) database. HCM created special data fields for this purpose and housed them in a data category called Diversity Objects in the CRS database. We identified several categories of information for these reports that would identify certain tentative decisions (e.g., absolute or relative increases or decreases in tentative compensation for an individual) on which we wanted to focus in assessing risk. [The then-head of the Employment Law Group] and I were the ones who decided on the parameters for the Diversity Objects data fields when we began these analyses; they were based on our mental impressions about the manner in which the data could help us identify circumstances in which the legal department could provide useful advice to the divisions. The field names reflect the criteria and parameters that we set for the requested reports, and they reveal our thinking about the factual circumstances we consider most important to identify for further
4

investigation and assessment of legal risk. (Palumbo Decl. at 2). In reviewing tentative compensation decisions, the lawyers in the Employment Law Group begin with reports that are generated from the Diversity Objects fields and may then solicit additional information about particular individuals in connection with providing legal advice. (Palumbo Decl. at 3). They engage in a similar process in order to evaluate legal risks involved in the designation of managers by quartile. (Palumbo Decl. at 4). The lawyers’ role is confined to the provision of legal advice; they do not make compensation or other personnel decisions. (Palumbo Decl. at 3).
There are, then, effectively three types of information related to the CRS database. First, there are the names of the fields of data, such as the Diversity Objects. Then there are the data elements themselves, the information that populates the fields. And, finally, there are reports generated from the database. The current dispute involves the Diversity Objects fields and the data elements contained in them. Goldman Sachs maintains that both are protected from discovery by the work product doctrine and the attorney-client privilege. Discussion
A. Work Product The burden of establishing any right to work product
5

protection is on the party asserting it. In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (party asserting work product protection faces “heavy” burden). The protection claimed must be narrowly construed and its application must be consistent with the purposes underlying the asserted immunity. Id.
The work product doctrine “shields from disclosure materials prepared ‘in anticipation of litigation’ by a party or the party’s representative, absent a showing of substantial need.” United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995) (quoting Fed R. Civ. P. 26(b)(3)). It is designed to protect “mental impressions, conclusions, opinions or theories concerning [] litigation.” United States v. Adlman , 134 F.3d 1194, 1194 (2d Cir. 1998). A document is prepared “in anticipation of litigation” if “in light of the nature of the document and the factual situation in the particular case, [it] can fairly be said to have been prepared or obtained because of the prospect of litigation.” Id. at 1202 (internal quotation marks omitted). Although a document “does not lose protection . . . merely because it is created in order to assist with a business decision,” id. , “[i]f, regardless of the prospect of litigation, the document would have been prepared anyway, in the ordinary course of business . . . , it is not entitled to work product protection,” Clarke v. J.P. Morgan Chase
6

& Co., No. 08 Civ. 2400, 2009 WL 970940, at *7 (S.D.N.Y. April 10,

2009) (citing Adlman, 134 F.3d at 1202).

While legal risks may ripen into litigation, not all risk

management qualifies as anticipation of litigation. Generalized

steps to avoid non-specific litigation are not accorded work

product protection. See Montgomery County v. MicroVote Corp., 175

F.3d 296, 305 (3d Cir. 1999) (Greenberg, J., concurring) (“A party

must show that there existed an identifiable specific claim or

impending litigation when the materials were prepared.” (internal

quotation marks and citation omitted)); Prowess, Inc. v. Raysearch

Laboratories AB, No. WDQ-11-1357, 2013 WL 509021, at *7 (D. Md.

Feb. 11, 2013) (“The work product protection only extends to

documents created because a specific litigation is anticipated, and

[i]t is not enough . . . that the mere possibility of litigation

exists.” (alterations in original) (internal quotation marks and

citations omitted)); In re Grand Jury Proceedings , No. M-11-189,

2001 WL 1167497, at *15 (S.D.N.Y. Oct. 3, 2001) (“[A] generalized

desire to avoid litigation is insufficient to meet the ‘in

anticipation of litigation’ requirement.”); see also

Skurka

Aerospace, Inc. v. Eaton Aerospace, L.L.C., No. 08 Civ. 1565, 2011

WL 5008571, at *2 (N.D. Ohio Oct. 20, 2011) (quoting In re Grand

Jury Proceedings, 2001 WL 1167497, at *15).

The point at which the threat of litigation becomes

7

sufficiently concrete to trigger work product protection is not
always obvious, but the Second Circuit has provided some guidance:
If, for example, a party expects to be sued by a particular adverse claimant in the event it undertakes to trade under a disputed mark or publishes a book the copyright of which is contested, we see no reason why work-product protection should not apply to preparatory litigation studies undertaken by that party (or its representatives) before it begins to trade under the contested mark or publishes the book. Nor should the answer be different for a party that prepares to initiate the lawsuit in the expectation that another is about to begin trade under the party’s mark, or about to publish a work to which the party claims the copyright.
Adlman, 68 F.3d at 1501. Although in these illustrations there may
be many contingencies that would need to be met before a litigation
were actually commenced, there is at a minimum an identifiable
potential adversary and a defined legal claim.
In this case, Goldman Sachs has proffered no such specifics.
Ms. Palumbo states that the Diversity Objects data fields are
utilized to provide advice concerning “the legal risk that might be
imposed by [] tentative compensation decisions.” (Palumbo Decl. at
2). Tellingly, she does not characterize the risk as the prospect
of litigation. Nor does she specify the nature of the potential
claim or identify any individual or group of individuals who might
file a lawsuit. As the court observed in In re Grand Jury
Proceedings, “[T]o find that avoidance of litigation without more
constitutes ‘in anticipation of litigation’ would represent an
8

insurmountable barrier to normal discovery and could subsume all compliance activities by a company as protected from discovery.” 2001 WL 11 67497, at *15 (internal quotation marks and citations omitted). Wherever the precise boundary between general risk management and anticipation of litigation may lie, the information at issue here falls outside the protection of the work product doctrine.
This conclusion does not, however, preclude a determination that the information at issue is protected from discovery by the attorney-client privilege. “The attorney-client privilege and the work product rule serve different objectives.” Adlman, 134 F.3d at 1200 n.4; accord Prowess v. Raysearch Laboratories AB, No. WDQ11-1357, 2013 WL 1856348, at *2 (D. Md. April 30, 2013) (“[T]he work product protection . . . arises from different circumstances and protects different interests than the attorney-client privilege.” (internal quotation marks and citations omitted)); Trustees of Electrical Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc. , 266 F.R.D. 1, 13-14 (D.D.C. 2010); Stoffels v. SBC Communications, Inc. , 263 F.R.D. 406, 412 (W.D. Tex. 2009). I will therefore turn to the privilege.
B. Attorney-Client Privilege The attorney-client privilege protects from disclosure “(1) a communication between client and counsel that (2) was intended to
9

be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.” In re County of
Erie, 473 F.3d 413, 419 (2d Cir. 2007) (citing United States v.
Construction Products R esearch, Inc., 73 F.3d 464, 473 (2d Cir.
1996)); accord United States v. Mejia, 655 F.3d 126, 132 (2d Cir.
2011); United States v. Ghavami, 882 F. Supp. 2d 532, 536 (S.D.N.Y.
2012); National Immigration Project of the National Lawyers Guild
v. United States Department of Homeland Security, 842 F. Supp. 2d
720, 728 (S.D.N.Y. 2012). 1 The privilege protects not only the
advice of the attorney to the client, but also the information
communicated by the client that provides a basis for giving advice.
See Upjohn Co. v. United States , 449 U.S. 383, 390 (1981); In re
Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir. 1992); Oak-
1 An alternative and more detailed articulation of the attorney-client privilege provides that:
(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.
United States v. International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, AFL-CIO, 119 F.3d 210, 214 (2d Cir. 1997) (quotation marks and citation omitted); see also Kingsway Financial Services, Inc. v. PricewaterhouseCoopers LLP, No. 03 Civ. 5560, 2007 WL 473726, at *7 (S.D.N.Y. Feb. 14, 2007); In re Rivastigmine Patent Litigation, 237 F.R.D. 69, 73-74 (S.D.N.Y. 2006); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995).
10

Jin Oh v. Sim & Park, LLP , No. 12 MC 66, 2012 WL 1193755, at *1 (S.D.N.Y. April 10, 2012). “It is axiomatic that the burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship, a burden not discharged by mere conclusory or ipse dixit assertions.” In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224-25 (2d Cir. 1984) (citations and internal quotation marks omitted); accord von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987); Ghavami, 882 F. Supp. 2d at 536; Schanfield v. Sojitz Corp. of America, 258 F.R.D. 211, 214 (S.D.N.Y. 2009).
1. Database Information as Communication The plaintiffs contend that Goldman Sachs’ assertion of privilege fails in several respects. At the outset, they note that the privilege protects only communications and argue that “[t]he CRS Diversity Objects fields . . . are not communications -- they are database fields -- that are ‘not shared with anyone other than members of the [Employment Lawyers Group],’ and, therefore, not provided to the firm’s business managers when the ELG provides legal advice.” (Klein 4/11/13 Letter at 5-6 (quoting Palumbo Decl. at 3)). This analysis is flawed. Communication is very simply “a process by which information is exchanged between individuals
11

through a common system of symbols, signs, or behavior.” MerriamWebster’s Collegiate Dictionary 251 (11th ed. 2003). In this instance, when the Human Capital Management Division populates the database with information in the Diversity Objects fields, it is taking the initial step in communicating that information to counsel for the purpose of obtaining legal advice. That the information then resides in the database for some period of time before being passed on to the attorneys is of no moment. Likewise, the Diversity Objects fields -- the names of the data categories -are communications. They are the organizational prin ciples, dictated by counsel, that the client uses to sort and package the information provided to the attorneys. In effect, they are the syntactical structure for the communication of privileged information, and syntax is an indispensable aspect of the way verbal communication transmits meaning. Were the Diversity Objects fields to be disclosed, the ability of the client to seek legal advice would be chilled, which is precisely the result that the privilege is intended to avoid.
Furthermore, the plaintiffs’ observation that the Diversity Objects fields are not provided to Goldman Sachs’ business people when the lawyers are giving advice is immaterial. As noted above, the privilege protects certain communications between attorney and client regardless of the direction in which the information flows.
12

See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). Here, the Diversity Objects fields are an integral part of the exchange of information between in-house counsel and their business clients at Goldman Sachs.
The plaintiffs also argue that the Diversity Objects fields and their contents are simply “facts” and, as such, cannot be subject to the privilege. (Klein 4/11/13 Letter at 6). The plaintiffs are correct about the legal principle: “[t]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn , 449 U.S. at 395; accord Federal Housing Finance Agency v. UBS Americas, Inc., Nos. 11 Civ. 5201, 11 Civ. 6188, 11 Civ. 6189, 11 Civ. 6190, 11 Civ. 6192, 11 Civ. 6193, 11 Civ. 6195, 11 Civ. 6196, 11 Civ. 6198, 11 Civ. 6200, 11 Civ. 6201, 11 Civ. 6202, 11 Civ. 6203, 11 Civ. 6739, 11 Civ. 7010, 2013 WL 1700923, at *1 (S.D.N.Y. April 16, 2013); Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58, 70 (S.D.N.Y. 2010). But the facts here are the attributes of Goldman Sachs employees, not the collection and communication of those facts through the Diversity Objects fields. The attributes -- the facts -- are available in the PeopleSoft database, which is not cloaked by the attorneyclient privilege, and which has been disclosed to the plaintiffs.
13

2. Confidential Legal Advice

Of course, identifying something as a communication is only

the first step in establishing the applicability of the attorney-

client privilege. The communication must have been made in

confidence for the purpose of providing legal advice. Here,

Goldman Sachs has made a prima facie showing that these two

prerequisites are met. It has represented that the information at

issue is “not shared with anyone other than members of the

Employment Law Group and those in [Human Capital Management] who

work at [the lawyers’] direction to collect facts relevant to [the

lawyers’] review.” (Palumbo Decl. at 3). This satisfies the

requirement of confidentiality. Similarly, Goldman Sachs has

characterized counsel as utilizing the information from the

Diversity Objects fields exclusively to provide legal advice,

meeting the second requirement. (Palumbo Decl. at 3).

The plaintiffs challenge these representations, arguing that

the Diversity Objects fields contain “information that is used for

the business operations of Goldman Sachs.” (Tr. at 7).2 But this

contention, unsupported by evidence, does not overcome the sworn

testimony of a witness with personal knowledge. Should evidence

obtained during the course of

discovery undermine the

2 “Tr.” refers to the transcript of the oral argument held on May 31, 2013.
14

representations made by Goldman Sachs, these issues may be revisited. The plaintiffs are entitled, for example, to test whether managers have access to the CRS database, and specifically to the Diversity Objects fields, a fact that could militate in favor of finding that these fields are maintained for business purposes and would not be privileged. But until such evidence comes to light, the privilege must be respected.
3. Forfeiture Finally, the plaintiffs contend that even if the information related to the Diversity Objects fields is privileged, Goldman Sachs has forfeited any protection by placing it at issue in this litigation. It is well-established that “the privilege may implicitly be waived when defendant asserts a claim that in fairness requires examination of protected communications.” United States v. Bilzerian , 926 F.2d 1285, 1292 (2d Cir. 1991). The plaintiffs’ theory is that by denying corporate liability under the New York City Human Rights Law (the “NYCHRL”), Goldman Sachs has placed at issue its corporate knowledge, including that of its attorneys. Specifically, section 8-107(1)(a) of the NYCHRL prohibits discrimination on the basis of gender, and section 8107(13)(b) imposes vicarious liability on an employer for discriminatory acts by its employees or agents where: (1) the employee or agent exercised managerial or
15

supervisory responsibility; or

(2) the employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee’s or agent’s discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or

(3) the employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.

According to the plaintiffs, Goldman Sachs’ Forty-Fourth

Affirmative Defense, addressed to the NYCHRL claims, implicates the

Diversity Objects information. That defense states:

If any employee of Goldman Sachs engaged in any unlawful discriminatory practice, which Goldman Sachs expressly denies, Goldman Sachs is not liable with respect to any and/or all of Plaintiffs’ purported NYCHRL claims because: (1) Goldman Sachs did not know of or acquiesce to any employee’s or agent’s discriminatory conduct; (2) Goldman Sachs did not fail to take immediate and appropriate corrective action upon learning of any discriminatory conduct; (3) there is no basis for concluding that Goldman Sachs should have known of the employee’s or agent’s discriminatory conduct; and (4) Goldman Sachs did not fail to exercise reasonable diligence to prevent such discriminatory conduct.

(Answer to First Amended Class Action Complaint, ¶ 236).

The Second Circuit has made clear that “[t]he key to a finding

of implied waiver . . . is some showing by the party arguing for a

waiver that the opposing party relies

on the privileged

communication as a claim or defense or as an element of a claim or

16

defense. County of Erie, 546 F.3d at 228. Assertion of an advice of counsel defense is the “quintessential example” of an implied waiver. Id. (internal quotation marks and citation omitted). On the other hand, the fact that a privileged communication may simply be relevant to a claim or defense is insufficient to effect forfeiture of the privilege. Id. at 229; accord Aiossa v. Bank of America, N.A., No. 10 CV 1275, 2011 WL 4026902, at *2 (E.D.N.Y. Sept. 12, 2011).
Here, the plaintiffs contend that Goldman Sachs has asserted a good faith defense that implicates i ts state of mind. (Klein 4/11/13 Letter at 6-7). When a defendant places at issue what it knew or believed regarding the conduct in question, it implicitly waives the privilege because its adversary, in fairness, must be allowed inquiry into the basis of that knowledge or belief. See County of Erie, 546 F.3d at 228-29; Bilzerian, 926 F.2d at 1292; Xuedan Wang v. Hearst Corp., No. 12 Civ. 793, 2012 WL 6621717, at *2 (S.D.N.Y. Dec. 19, 2012); MBIA Insurance Corp. v. Patriarch Partners VIII, LLC , No. 09 Civ. 3255, 2012 WL 2568972, at *6-7 (S.D.N.Y. July 3, 2012); Arista Records, LLC v. Lime Group, LLC , No. 06 Civ. 5936, 2011 WL 1642434, at *2-3 (S.D.N.Y. April 20, 2011); Leviton Manufacturing Co. v. Greenberg Traurig LLP, No. 09 Civ. 8083, 2010 WL 4983183, at *3-5 (S.D.N.Y. Dec. 6, 2010).
But the claim that the plai ntiffs advance under the NYCHRL
17

simply does not allow for a good faith defense. They assert that Goldman Sachs has systematically discriminated against its female employees in compensation and promotion based on their gender. Thus, the illegal conduct alleged is that of its management personnel. This falls within the first subdivision of NYCHRL section 8-107(13)(b), which imposes liability on the employer for the discriminatory acts of an employee where the employee “exercised managerial or supervisory responsibility.” By its terms, this is a strict liability provision that holds the employer legally responsible without regard to whether the employer knew or should have known of the conduct of the managerial employee. Zakrzewska v. New School, 14 N.Y.3d 469, 479-80, 902 N.Y.S.2d 838, 841-42 (2010); see also Caravantes v. 53rd Street Partners, LLC , No. 09 Civ. 7821, 2012 WL 3631276, at *25 (S.D.N.Y. Aug. 23, 2012); Chisholm v. Memorial Sloan-Kettering Cancer Center, 824 F. Supp. 2d 573, 579 (S.D.N.Y. 2011); Zakrzewska v. New Schoo,l 598 F. Supp. 2d 426, 434 (S.D.N.Y. 2009).
The other two paths to liability under the NYCHRL -- that the employer “knew of the . . . discriminatory conduct,” NYCHRL § 8107(13)(b)(2), or “should have known of the . . . discriminatory conduct,” NYCHRL § 8-107(13)(b)(3) -- do require a showing of knowledge and could lead to an implied waiver of privilege in appropriate circumstances. But these provisions relate to
18

discriminatory conduct by co-workers, not by managers. The
legislative history as set forth in the report of the New York City
Council’s Committee on General Welfare makes this clear; it
characterized section 8-107(13) as providing for “[s]trict
liability in employment context for acts of managers and
supervisors; also liability in employment context for acts of co-
workers where employer knew of act and failed to take prompt and
effective remedial action or should have known and had not
exercised reasonable diligence to prevent.” (1991 N.Y. City Legis.
Ann. at 187 (quoted in Zakrzewska, 14 N.Y.3d at 480, 902 N.Y.S.2d
at 842-43). In this case, the discrimination alleged is that of
managerial personnel, and the knowledge or good faith of Goldman Sachs is not at issue.3
Thus, the Diversity Objects information is protected by the
attorney-client privilege and that privilege has not been waived.
3 The plaintiffs cite Johnston v. Apple, Inc., No. 11 Civ. 3321, 2011 WL 4916305, at *5 (S.D.N.Y. Oct. 14, 2011), for the proposition that “vicarious liability under NYCHRL ‘require[s] showing some level of [actual or constructive] knowledge on the part of the employer.’” (Klein 4/11/13 Letter at 6 (alterations in original)). The plaintiffs’ quotation of Johnston, however, is incomplete in a significant respect. The court there referred to the requirement of “some level of knowledge on the part of the employer (implicitly when the employee is a manager).” Id. (emphasis supplied). In other words, when the discriminatory conduct is that of a manager, knowledge is automatically and irrebuttably attributed to the employer, establishing vicarious liability.
19

Conclusion

For the reasons discussed above, the plaintiffs' applic tion

for an order compelling Goldman Sachs to disclose inform

relating to the Diversity Objects fields is denied wi

prejudice to renewal if and when the plaintiffs are able to pr ffer

evidence that would negate Goldman Sachs' claim of privilege

SO ORDERED.
~~.·E~~~·
~ ~~~D STATES MAGISTRATE JUDGE

Dated: New York, New York June 18, 2013

Copies mailed this date: 


Adam T. Klein, Esq. 
 Carmelyn Malalis, Esq. 
 Cara E. Greene, Esq. 
 Cyrus E. Dugger, Esq. 
 Jennier L. Liu, Esq. 
 Dana G. Sussman, Esq. 
 Outten & Golden LLP 
 3 Park Avenue, 29th Floor 
 New York, New York 10016 


Kelly Dermody, Esq. 
 Anne B. Shaver, Esq. 
 Alison M. Stocking, Esq. 
 Lief, Cabraser, Heimann & Bernstein, 275 Battery Street, 30th Floor San Francisco, CA 94111

LLP 


20

Theodore O. Rogers, Jr., Esq. 
 Suhana S. Han, Esq. 
 Michael P. Reis, Esq. 
 Sullivan & Cromwell LLP 
 125 Broad Street 
 New York, New York 10004 
 Barbara B. Brown, Esq. 

Paul, Hastings, Janofsky & Walker LLP 

875 15th Street N.W. 
 washington, DC 20005 
 C. Geoffrey wei ch, Esq. Paul, Hastings, Janofsky & Walker LLP 600 Peachtree Sreet, NE Suite 2400 Atlanta, GA 30308 Zachary D. Fasman, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street New York, New York 10022
21 


 
 Case:11:10-5-c2v2-90695D0o-cAuTm-JeCnFt: 1D28ocumPeangte1: 711 F03ile/2d10/230/2113/13 8P83a2g4e91 of 8
N.Y.S.D. Case # 10-cv-6950(LBS)

11-5229

Parisi v. Goldman, Sachs & Co.

1

2

UNITED STATES COURT OF APPEALS

3

FOR THE SECOND CIRCUIT

4

_____________________

5

6

August Term, 2012

7

8

9

(Argued: November 7, 2012

Decided: March 21, 2013)

10

11

Docket No. 11-5229-cv

12

_____________________

13

14

LISA PARISI, SHANNA ORLICH, H. CHRISTINA CHEN-OSTER

15

16

Plaintiffs-Appellees,

17

18

v.

19

20

GOLDMAN, SACHS & CO., THE GOLDMAN SACHS GROUP,

21

22

Defendants-Appellants.

23

24

Before: B.D. PARKER, RAGGI, LYNCH, Circuit Judges.

25 ___________________

26

27

Appeal from an order of the United States District Court for the Southern District of New

28 York (Sand, J.) denying Defendants’ motion to compel arbitration. The district court denied the

29 motion because it believed that individual arbitration would preclude the Plaintiff from

30 vindicating a right under Title VII to be free from a pattern or practice of discrimination.

31

32

REVERSED.

33 ___________________

34

ROBERT GIUFFRA, Theodore O. Rogers, Jr.,

35

Suhana S. Han, Sullivan & Cromwell, LLP,

36

USDC SDNY

New York, NY; Zachary D. Fasman,

37

DOCUMENT

38

ELECTRONICALLY FILED

39 40 41

DOC #: _________________ DATE FILED: _M_a_r_c_h_2_1_,_2_0_1_3__

Barbara B. Brown, Paul Hastings, LLP, New York, NY, for Defendants-Appellants.
F. PAUL BLAND, JR., Public Justice, Washington, D.C.; Adam T. Klein, Outten &

42

Golden LLP, New York, NY; Paul W .

43

Mollica, Outten & Golden, Chicago, IL; Kelly

44

M. Dermody, Anne B. Shaver, Li eff,

45

Cabraser, Heimann & Bernstein, LLP, San

46

Francisco, CA, for Plaintiffs-Appellees.

CERTIFIED COPY ISSUED ON 03/21/2013

Case:11:10-5-c2v2-90695D0o-cAuTm-JeCnFt: 1D28ocumPeangte1: 721 F03ile/2d10/230/2113/13 8P83a2g4e92 of 8

1 ______________________________________________________________________________

2

3 BARRINGTON D. PARKER, Circuit Judge:

4

5

Defendants-Appellants Goldman, Sachs & Co. and The Goldman Sachs Group (“Goldman

6 Sachs”) appeal from an order of the United States District Court for the Southern District of New

7 York (Sand, J.) denying their motion to compel arbitration of Plaintiff-Appellee Lisa Parisi’s claims

8 of gender discrimination. Parisi, a former managing director, and two other former female

9 employees, Shanna Orlich, an associate, and H. Christina Chen-Oster, a vice president, sued

10 Goldman Sachs, individually and on behalf of a putative class, alleging that Goldman Sachs

11 engaged in “a continuing pattern and practice of discrimination based on sex against female

12 Managing Directors, Vice Presidents, and Associates with respect to compensation, business

13 allocations, promotions, and other terms and conditions” of employment in violation of Title VII of

14 the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the New York City

15 Human Rights Law, Administrative Code of the City of New York § 8-107 et seq.

16

Parisi became a managing director in 2003 and was terminated in November 2008. On

17 being promoted to managing director, she signed a Managing Director Agreement that contained an

18 arbitration clause. The clause provides that

19

any dispute, controversy or claim arising out of or based upon or relating to Em ployment

20

Related Matters will be f inally settled by arbitration in New York City bef ore, and in

21

accordance with the rules . . . of, th e New York Stock Exchange, I nc. (“NYSE”) or . . . the

22

National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline

23

to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association

24

(“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any

25

arbitration decision and/or award will be final and binding . . . .

26

27 In the agreement, “employment related matters” are defined as “matters arising out of or relating to

28 or concerning this Agreement, your hire by or employment with the Firm or the termination thereof,

29 or otherwise concerning any rights, obligations or other aspects of your employment relationship in

30 respect of the Firm.”

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1

In November 2010 Goldman Sachs moved, pursuant to the Federal Arbitration Act

2 (“FAA”), 9 U.S.C. §§ 3 and 4, to enforce Parisi’s arbitration agreement. Goldman Sachs contended

3 that, in light of the Supreme Court’s holding in Stolt-Nielsen S.A. v. AnimalFeeds International

4 Corp., 130 S. Ct. 1758 (2010), that a party cannot be compelled to arbitrate on a class-wide basis

5 where the relevant arbitration clause is silent as to the arbitration of class claims, Parisi’s claims

6 must be arbitrated individually. Parisi opposed individual arbitration on the grounds that, in signing

7 her employment agreement, she did not understand it to require a ban on class claims, nor did she

8 waive her substantive right to challenge systemic discrimination at Goldman Sachs.

9

In April 2011 the magistrate judge (Francis, MJ.), to whom the motion had been referred,

10 denied the motion. He acknowledged that the arbitration clause in Parisi’s employment agreement

11 was fully valid, that it covered Parisi’s employment discrimination claims and that it did not

12 provide for arbitration on a class-wide basis. However, he also concluded that the agreement’s

13 preclusion of class arbitration would make it impossible for Parisi to arbitrate a Title VII pattern-or-

14 practice claim, and that consequently, the clause effectively operated as a waiver of a substantive

15 right under Title VII. See Italian Colors Rest. v. Am. Express Travel Related Servs. Co. (In re Am.

16 Express Merchants’ Litig.), 667 F.3d 204, 219 (2d Cir. 2012). Goldman Sachs objected to the

17 district court, which adopted the magistrate judge’s recommendations and denied Goldman Sachs’

18 motion to compel arbitration. This appeal followed. Because we disagree that a substantive

19 statutory right to pursue a pattern-or-practice claim exists, we reverse.

20

21

DISCUSSION

22

The FAA authorizes interlocutory appeals from a district court’s denial of a motion to

23 compel arbitration. 9 U.S.C. § 16(a)(1)(A)-(B). We review de novo a district court’s refusal to

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1 compel arbitration. Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir. 2006). We also

2 review de novo the district court’s ruling that Parisi has a substantive right to bring a Title VII class

3 action utilizing the pattern-or-practice method of proof. See United States v. Lyttle, 667 F.3d 220,

4 223 (2d Cir. 2012) (holding that we review a district court’s interpretation of a statute de novo).

5

I.

6

There is no dispute that the agreement promoting Parisi to managing director contains a

7 broad arbitration clause that covers her Title VII claims. Since her claim is a statutory claim, we

8 must next consider whether or not Congress intended for the claim to be arbitrated, or whether the

9 district court was correct that arbitration was barred because it effectively precluded Parisi’s Title

10 VII claim. See JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 1994) (holding that

11 a court considering a motion to compel arbitration of statutory claims must consider whether

12 Congress intended those claims to be nonarbitrable).

13

Parisi contends that she has a substantive right under Title VII to pursue a pattern-or-

14 practice claim, which is available only to class plaintiffs. She argues that because she cannot

15 proceed on a class-wide basis in arbitration without Goldman’s agreement, she must be permitted to

16 proceed in court as a class plaintiff. In other words, she contends that the arbitration clause in her

17 agreement must be invalidated because arbitration would preclude her from vindicating a statutory

18 right. Goldman Sachs, on the other hand, contends that there is no substantive statutory right to

19 pursue a pattern-or-practice claim. We agree with Goldman Sachs.

20

The Supreme Court has consistently interpreted the FAA as establishing a “federal policy

21 favoring arbitration agreements.” CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012)

22 (internal quotation marks omitted); see also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740,

4

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1 1746 (2011); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991); Dean Witter

2 Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985); Moses H. Cone Mem’l Hosp. v. Mercury Constr.

3 Corp., 460 U.S. 1, 24 (1983). This preference for enforcing arbitration agreements applies even

4 when the claims at issue are federal statutory claims, unless the FAA’s mandate has been

5 “overridden by a contrary congressional command.” CompuCredit, 132 S. Ct. at 669 (internal

6 quotation marks omitted); see also Gilmer, 500 U.S. at 26. “By agreeing to arbitrate a statutory

7 claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their

8 resolution in an arbitral, rather than a judicial forum.” Mitsubishi Motors Corp. v. Soler Chrysler-

9 Plymouth, Inc., 473 U.S. 614, 628 (1995). Moreover, even claims arising under a statute designed

10 to further important social policies may be arbitrated because “so long as the prospective litigant

11 effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue

12 to serve both its remedial and deterrent function.” Gilmer, 500 U.S. at 28 (emphasis added).

13

In line with Mitsubishi, this Court and other Circuit courts have found two circumstances in

14 which motions to compel arbitration must be denied because arbitration would prevent plaintiffs

15 from vindicating their statutory rights. First, in In re American Express Merchants’ Litigation, this

16 Court held that an arbitration agreement was unenforceable because it contained a class waiver

17 forcing Plaintiff merchants into individual arbitration of Sherman Act claims. 667 F.3d at 219. We

18 concluded that given the complexities of antitrust litigation, individual arbitration would render the

19 costs associated with these actions prohibitive and would effectively preclude plaintiffs from

20 bringing such claims. Id.

21

Second, a number of Circuits have altered or invalidated arbitration agreements where they

22 interfered with the recovery of statutorily authorized damages. See, e.g., Kristian v. Comcast

5

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1 Corp., 446 F.3d 25, 47-48 (1st Cir. 2006) (severing as unenforceable a provision of an arbitration

2 agreement limiting availability of treble damages under the Sherman Act); Hadnot v. Bay, Ltd., 344

3 F.3d 474, 478 n.14 (5th Cir. 2003) (severing a restriction on available remedies from an arbitration

4 agreement after finding that a “ban on punitive and exemplary damages is unenforceable in a Title

5 VII case”); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir. 1998) (holding

6 that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute . . .

7 the arbitration clause is not enforceable” and that the language insulating an employer from

8 damages and equitable relief renders the clause unenforceable).

9

Parisi asserts Title VII claims and, as a general matter, “[c]ourts have consistently found

10 that such claims can be subject to mandatory arbitration.” Ragone v. Atl. Video, 595 F.3d 115, 120

11 (2d Cir. 2010). Congress specifically approved arbitration of Title VII claims in the Civil Rights

12 Act of 1991, expressly stating that the “use of alternative means of dispute resolution, including . . .

13 arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law

14 amended by this title.” Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071

15 (1991). Moreover, Parisi does not claim that prohibitive costs of individual arbitration would

16 effectively prevent her from bringing her Title VII claims, nor does she claim that arbitration would

17 interfere with her access to statutorily authorized damages.

18

Instead, Parisi contends, and the district court agreed, that individual arbitration would

19 preclude her from vindicating her right to bring a substantive“pattern-or-practice” claim under Title

20 VII. But such a right does not exist. In Chin v. Port Authority of New York, 685 F.3d 135 (2d Cir.

21 2012), we concluded that in Title VII jurisprudence “pattern-or-practice” simply refers to a method

22 of proof and does not constitute a “freestanding cause of action.” 685 F.3d at 148, n.8. In so doing,

6

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1 we joined the Fifth Circuit which reached the same conclusion. See Celestine v. Petroleos de

2 Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001) (“A pattern or practice case is not a separate and

3 free-standing cause of action . . . but is really merely another method by which disparate treatment

4 can be shown”). Our conclusion was based on the Supreme Court’s observation in Int’l Bhd. of

5 Teamsters v. United States, 431 U.S. 343 (1977), that references to “pattern-or-practice” in the

6 statute do not confer a particular right per se—rather they enable the government to enforce Title

7 VII on behalf of groups of employees by alleging a “regular procedure or policy” of unlawful

8 employment discrimination under § 2000e-2. 431 U.S. at 360. Moreover, we also recognized that

9 the pattern-or-practice method of proof had, in the past, been viewed as “no more than an

10 application of the McDonnell Douglas “burden-shifting framework” to claims brought either by the

11 government on behalf of a group of employees or by class plaintiffs. 685 F.3d at 147-148.

12

Parisi recognizes that non-government plaintiffs can use the pattern-or-practice method only

13 in class actions and argues that she is therefore entitled to pursue a class action in court. This logic

14 is flawed. The availability of the class action Rule 23 mechanism presupposes the existence of a

15 claim; Rule 23 cannot create a non-waivable, substantive right to bring such a claim. Wal-Mart

16 Stores v. Dukes, 131 S. Ct. 2541, 2561 (2011) (holding that the Rules Enabling Act precludes Rule

17 23 from abridging, enlarging or modifying any substantive right). “[T]he right of a litigant to

18 employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims.” Deposit

19 Guar. Nat’l Bank v. Roper, 445 U.S. 326, 332 (1980). Since private plaintiffs do not have a right to

20 bring a pattern-or-practice claim of discrimination, there can be no entitlement to the ancillary class

21 action procedural mechanism.

22

7

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1

Finally, in order to obtain relief on her claims, ultimately Parisi must prove to the arbitrators

2 that Goldman Sachs discriminated against her on the basis of sex in violation of Title VII. The

3 rules of the fora in which her claims may be arbitrated, the Financial Industry Regulatory Authority

4 (“FINRA”) and the American Arbitration Association (“AAA”), afford flexibility and informality

5 to parties adducing relevant evidence. See FINRA Rule 13604; AAA Rule 30. Consequently, we

6 have little difficulty in concluding, as Goldman Sachs concedes, that in proving her statutory

7 claims, Parisi may offer to the arbitrators evidence of discriminatory patterns, practices or policies

8 at Goldman Sachs that she contends affected her.

9

For the foregoing reasons, we see no reason to deviate from the liberal federal policy in

10 favor of arbitration and conclude that the district court erred in denying the motion to compel

11 arbitration.

12

CONCLUSION

13

We reverse the district court’s ruling and remand for further proceedings consistent

14 with this opinion.

15

8

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

:

PARISI; and SHANNA ORLICH, on

:

behalf of themselves and all

:

others similarly situated,

:

:

Plaintiffs,

:

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

10 Civ. 6950 (AT) (JCF)
MEMORANDUM AND ORDER

This is an employment discrimination action in which the

plaintiffs allege that their former employers, defendants Goldman,

Sachs & Co. and The Goldman Sachs Group, Inc. (collectively,

“Goldman Sachs” or the “defendants”), denied them equal

compensation and opportunity for promotion in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and

New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.

The plaintiffs have moved for certification of a class of similarly

situated employees, and the parties have submitted expert evidence

in connection with the motion. Each side now moves to exclude part

of the other’s expert testimony on the basis that it is

inadmissible pursuant to Rule 702 of the Federal Rules of Evidence

and the principles set forth in Daubert v. Merrell Dow

1

Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). After discussing the relevant legal principles, I will address each challenged expert in turn.1 Legal Framework
A. Applicability of Daubert to Class Certification Neither the Supreme Court nor the Second Circuit has definitively decided whether the Daubert standard governs the admissibility of expert evidence submitted at the class certification stage. See Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, __, 131 S. Ct. 2541, 2553-54 (2011); In re U.S. Foodservice Inc. Pricing Litigation, 729 F.3d 108, 129 (2d Cir. 2013). Most courts that have addressed the issue have concluded that the Daubert test does apply in this context. See Sher v. Raytheon Co., 419 F. App’x 887, 890-91 (11th Cir. 2011); American Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010) (“We hold that when an expert’s report or testimony is critical to class certification, as it is here, . . . a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion.”); see also Ge Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086, 2013 WL 5658790, at
1 This Memorandum and Order should be read in conjunction with the Report and Recommendation filed today, which addresses the class certification motion.
2

*13 (S.D.N.Y. Oct. 17, 2013). Several rationales support this view. First, Daubert is an amplification of Rule 702, and the Federal Rules of Evidence apply generally to “proceedings” in the courts of the United States, with certain exceptions not applicable here. Fed. R. Evid. 101, 1101. Second, the Supreme Court has directed district courts to conduct a “rigorous analysis” in class certification proceedings to determine whether the requirements of Rule 23 of the Federal Rules of Civil Procedure are met, General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982), and relaxed evidentiary standards would be inconsistent with this prescription. Finally, the Supreme Court itself has expressed skepticism at the suggestion that Daubert would not apply to expert testimony at the class certification stage. Dukes, __ U.S. at __, 131 S. Ct. at 2553-54; see U.S. Foodservice, 729 F.3d at 129 (characterizing Dukes as “suggesting that a Daubert analysis may be required at least in some circumstances”). While the Supreme Court’s observation was plainly dicta, a district court is welladvised to heed it. See Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 108 (2d Cir. 2010) (finding Supreme Court dicta to be persuasive authority).
Courts that do not find Daubert applicable to class certification generally rely on two arguments. First, they note that a class determination motion is “inherently tentative” and
3

subject to later revision. See In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604, 613 (8th Cir. 2011) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 11 (1978)). But this rationale must yield to the mandate to conduct a rigorous analysis prior to certifying a class. Second, some courts reason that the Daubert standard need not be enforced at the time of class certification because, at that stage, the expert opinion is being submitted to a judge and not to a jury. See id. Certainly, a court may delay a Daubert determination in order to consider all the testimony proffered, but that does not mean that a court can rely on inadmissible evidence in making its ultimate determination.
The cases that hold Daubert to be applicable at the class certification stage, then, are more persuasive. However, the scope of the Daubert analysis is cabined by its purpose at this stage: “the inquiry is limited to whether or not the expert reports are admissible to establish the requirements of Rule 23.” Ge Dandong, 2013 WL 5658790, at *13 (brackets and internal quotation marks omitted). It would be premature to decide whether aspects of an expert opinion that go exclusively to the merits and not to the elements of Rule 23 would be admissible in subsequent proceedings.
B. Legal Standard Rule 702 of the Federal Rules of Evidence provides: A witness who is qualified as an expert by knowledge,
4

skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Daubert reaffirmed that “the trial judge [has] the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Performing its function as “gatekeeper” of expert testimony requires the court to conduct a “rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand.” Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). This filtering role applies “not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). However, in such cases “‘the reliability inquiry may instead focus upon personal knowledge and experience of the expert.’” Davis v. Carroll, 937 F. Supp. 2d 390, 412 (S.D.N.Y.
5

2013) (quoting Bah v. Nordson Corp., No. 00 Civ. 9060, 2005 WL 1813023, at *7 (S.D.N.Y. Aug. 1, 2005)).
The proponent of expert testimony must establish its reliability and admissibility under Rule 702 by a preponderance of the evidence. United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). There is a presumption that expert evidence is admissible, Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995), and “the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note (2000); accord Floyd v. City of New York, 861 F. Supp. 2d 274, 287 (S.D.N.Y. 2012). However, “when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.” Amorgianos, 303 F.3d at 266. The Challenged Experts
A. Dr. Henry S. Farber Goldman Sachs moves to exclude the report of Dr. Henry S. Farber, a statistician who analyzed the impact of gender on compensation and promotion at the firm. Dr. Farber is the HughesRogers Professor of Economics at Princeton University, where he has been on the faculty since 1991 and teaches courses in labor economics and econometrics. (Expert Report of Henry S. Farber in Connection with Chen-Oster v. Goldman Sachs dated Feb. 17, 2014
6

(“Farber Report”), attached as Exh. 8 to Declaration of Barbara B. Brown dated June 13, 2014 (“Brown Decl.”), ¶ 2). Dr. Farber received a B.S. degree in economics from Rensselaer Polytechnic Institute in 1972, an M.S. in industrial and labor relations from Cornell University in 1974, and a Ph.D. from Princeton in 1977, after which he taught economics at the Massachusetts Institute of Technology before joining the faculty at Princeton. (Farber Report, ¶ 2).
Dr. Farber utilized multiple regression analysis as his primary statistical tool in studying Goldman Sachs’ work force. (Farber Report, ¶ 36). He first created a model in which he sought to predict the compensation of employees based on a number of factors, which included the year, the division in which the employee worked,2 geographic office, education, prior related work experience, experience at Goldman Sachs,3 lateral or direct hiring status, and job group. (Farber Report, ¶¶ 44-46). When the regression is performed, a coefficient is derived for each factor, which represents the relative impact of that factor on compensation. (Farber Report, ¶ 36). However, there is
2 Dr. Farber only studied data from the three divisions containing members of the putative class.
3 Dr. Farber included both the number of years of work experience and the square of that number to allow for a non-linear relationship between experience and pay. (Farber Report, ¶ 35 n.40, ¶ 44).
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substantial variation in pay that is not explained by the factors included in the model, and the deviation between predicted and actual compensation for any individual is identified as the residual. (Farber Report ¶¶ 37-38). To the extent that the residuals are systematically related to the employees’ genders and indicate that women are paid less than men even after taking into consideration the other factors included in the model, discrimination may be inferred. (Farber Report, ¶ 39). Dr. Farber tested how likely it was that the residual differences in compensation were due to random variation or other unmeasurable factors, rather than to discrimination, by including gender as a variable in his model and then ascertaining whether being a woman had a statistically significant impact. (Farber Report, ¶¶ 40-43).
Based on this methodology, Dr. Farber found that female Associates at Goldman Sachs earned 7.6 percent less than male Associates after accounting for the factors in his model. (Farber Report, ¶ 55 & Table 6). The t-statistic for this figure is 5.10, which exceeds the generally accepted threshold for statistical significance of 1.96.4 (Farber Report, ¶ 43 & Table 6).
4 The t-statistic is the ratio of the chosen regression coefficient to its standard error. Franklin M. Fisher, Multiple Regression in Legal Proceedings, 80 Col. L. Rev. 702, 716 (1980) (hereinafter “Fisher”). “In large samples, a t-statistic of approximately two means that the chances are less than one in twenty that the true coefficient is actually zero and that we are
8

Similarly, Dr. Farber determined that female Vice Presidents were paid 21.36 percent less than similarly-situated male Vice Presidents, and that this figure was also statistically significant, with a t-statistic of 9.88. (Farber Report, ¶ 56 & Table 7).
Dr. Farber also studied the relationship between gender and promotion from Vice President to Managing Director. The analysis was much the same as in his study of compensation, in that he controlled for the same predictive factors. (Farber Report, ¶ 84). However, because the question of whether someone is promoted or not has a binary answer, he used what is known as a probit model. (Farber Report, ¶ 84). First, he created a benchmark model of promotion for male Vice Presidents from which he could project the probability of promotion for similarly-situated females in the absence of discrimination. (Farber Report, ¶¶ 86-87). He found that while the promotion rate for men was 5.33 percent and the expected promotion rate for women was 5.12 percent after controlling for the predictive factors, the actual promotion rate for women was 3.96 percent. (Farber Report, Table 20). In absolute terms, his benchmark model showed that while 82 women would be expected to receive promotions, only 63 did, a shortfall
observing a larger coefficient just by chance.” Id. at 717. 9

of 19 promotions. (Farber Report, ¶ 89 & Table 20). These results were statistically significant, with a t-statistic of 2.59. (Farber Report, ¶ 89).
Finally, Dr. Farber analyzed the relationship between gender and the two primary performance measures utilized by Goldman Sachs, as well as the relationship between those measures and compensation. As discussed in greater detail in connection with the motion for class certification, Goldman Sachs evaluates its professionals using programs known as “360 review” and “quartiling.” The former involves the derivation of a performance score from interviews with a range of managers, peers, and internal clients. The latter is a policy by which a supervisor is required to classify an established percentage of subordinates in one of five categories based on performance.
Dr. Farber again utilized his regression model and found that, after controlling for the predictive factors, women Associates and Vice Presidents were scored lower on the 360 review than their male counterparts and that these results were statistically significant. (Farber Report, ¶¶ 67-70 & Tables 14, 15).5 Similarly, using a probit model to study quartiling, Dr. Farber determined that, after
5 Dr. Farber ran separate regressions for two different time periods because the numerical scale for the 360 review was changed in the interim. (Farber Report, ¶ 67).
10

taking into account the predictive factors, female Associates were
7.1 percentage points less likely to be assigned to the top
quartile than male Associates, that female Vice Presidents were 4.5
percentage points less likely to be assigned to the top quartile
than male Vice Presidents, and that these figures were
statistically significant. (Farber Report, ¶¶ 60, 63-64 & Tables
10, 11).
Finally, Dr. Farber analyzed the impact of 360 review scores,
quartile placement, and a combination of the two on compensation.6
In each case, the addition of the performance variables reduced but
did not eliminate the pay gap ascribed to gender. When both the
360 review score and quartile were taken into account, the
differential in compensation between female Associates and male
Associates declined from 7.7 percent to 3.3 percent. (Farber
Report, ¶ 77 & Table 16). Similarly, when those factors were
included in the analysis for Vice Presidents, the pay differential
6 Dr. Farber included these factors somewhat hesitantly, since performance data was missing for almost 25 percent of the sample. (Farber Report, ¶ 71). His solution, which he considered lessthan-optimal, was to eliminate from the analysis those individuals for whom he did not have complete information. (Farber Report, ¶¶ 72, 76). Nevertheless, the fact that the basic estimated pay difference for both Associates and Vice Presidents did not change materially when the incomplete data was removed indicates that the use of the smaller sample likely did not introduce bias into the analysis. (Farber Report, ¶¶ 76, 78). I note that while “data” is the plural of “datum,” I follow conventional usage here and treat “data” as singular.
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declined from 21.8 percent to 16.9 percent. (Farber Report, ¶ 79 & Table 17). The gender pay gaps remained statistically significant, however, even after including the performance measures in the model. (Farber Report, ¶¶ 77, 79 & Tables 16, 17). Thus, Dr. Farber concluded that the 360 review and quartiling tools contribute to gender differences in compensation at Goldman Sachs. (Farber Report, ¶ 82).
The defendants’ challenges to Dr. Farber’s report can be grouped into three broad arguments: (1) he has failed to include important measures of performance and productivity that would potentially explain the differentials that he instead attributes to gender discrimination; (2) he does not adequately account for job function; and (3) his model improperly aggregates data from disparate business units. I will address each contention in turn.
1. Performance & Productivity There are two straightforward answers to the complaint that Dr. Farber failed to include in his model two measures of performance -- 360 review and quartile placement -- that might be considered predictors of compensation and promotion. First, Dr. Farber reasonably suspected that these variables were tainted, that is, that they themselves are affected by gender bias. (Farber Report, ¶ 58). Second, he did, in fact, incorporate these factors into one iteration of his analysis, and doing so did not
12

substantively alter his conclusions. “Regression analyses in discrimination cases attempt to
control for the legitimate reasons for pay disparities through the use of explanatory variables. But, illegitimate reasons -- reasons themselves representative of the unlawful discrimination at issue -- should be excluded from the regression (or otherwise dealt with) to avoid underestimating the significance of a disparity.” Morgan v. United Parcel Service of America, Inc., 380 F.3d 459, 469-70 (8th Cir. 2004); see Smith v. Xerox Corp., 196 F.3d 358, 371 n.11 (2d Cir. 1999), overruled on other grounds by Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 131 (2d Cir. 2006); Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 524 (N.D. Cal. 2012); McReynolds v. Sodexho Marriott Services, Inc., 349 F. Supp. 2d 1, 26 (D.D.C. 2004); D. James Greiner, Causal Inference in Civil Rights Litigation, 122 Harv. L. Rev. 533, 546-49 (2008). Of course, merely assuming that a variable is tainted is not a sufficient basis for omitting it from a regression model if it would otherwise add explanatory power. See Morgan, 380 F.3d at 470-71; Valentino v. U.S. Postal Service, 511 F. Supp. 917, 944 (D.D.C. 1981). But here, Dr. Farber demonstrated that women were graded lower in both the 360 review and the quartiling process even after controlling for measurable and consistently available predictors of performance. Thus, there was a legitimate basis for
13

him to omit these performance measures from his analysis on the ground that they were themselves subject to bias and would therefore mask discrimination.
More to the point, notwithstanding his qualms, Dr. Farber conducted a study in which he did incorporate Goldman Sachs’ performance measures in his model, both separately and in tandem. As discussed above, although the analyses that control for the performance variables result in a less dramatic disparity in compensation between men and women, a statistically significant pay differential remains.
The defendants also argue that Dr. Farber should have incorporated productivity measures such as number of trades, sales credits, or deal fees in his model, since these are critical factors in determining compensation and promotion. (Defendants’ Reply Memorandum in Support of Their Motion to Strike Reports, Opinion, and Testimony of Plaintiffs’ Expert Dr. Henry S. Farber (“Def. Farber Reply”) at 7-8). But there are practical barriers to this approach. First, these types of measures only apply to onethird of Goldman Sachs’ professional employees (Def. Reply at 8), so there would be concerns about the completeness of the data to an even greater degree than was the case with respect to the performance metrics. Second, these measures are not likely to be comparable to one another; for example, number of trades is
14

measured on a wholly different scale than the value realized from a deal. Third, these measures would introduce a problem of multicollinearity. “In statistical analysis, multi-colinearity [sic] is a correlation between two independent variables that is so strong that it is impossible statistically to separate them out and tell which of those two effects the dependent variable; which of those two is the cause.” United States v. Charleston County, 316 F. Supp. 2d 268, 300 n.36 (D.S.C. 2003) (internal quotation marks and citation omitted); see Gartenberg v. Merrill Lynch Asset Management, Inc., 573 F. Supp. 1293, 1313 n.19 (S.D.N.Y. 1983); Fisher, supra at 713 (“[T]he less multicollinearity is present, the better able one will be to separate out the effects of interest.”). If the defendants are correct and productivity is central to how employees are evaluated, then this factor would likely be collinear with the 360 review and quartiling measures, which Dr. Farber has accounted for.
This last point is more than simply a technical statistical issue. In the 360 review, professionals are supposed to be evaluated on the basis of overall commercial effectiveness and professional performance, among other factors. (Deposition of Jessica Kung (“Kung Dep.”), attached as Exhs. 9 and 9A to Declaration of Theodore O. Rogers, Jr., dated July 3, 2014 (“Rogers Decl.”), at 305-07). Moreover, the functional definition of these
15

traits varies depending upon the types of skills most relevant to a particular business unit. (Deposition of Caroline Heller Sberloti (“Heller Dep.”), attached as Exhs. 16 and 16A to Rogers Decl., at 271-72; Deposition of Bruce Larson, attached as Exh. 11 to Rogers Decl., at 169-70). Similarly, quartiling designations are based on the employee’s relative “performance, contribution and potential,” including “[l]ong term commercial impact.” (Guidelines for Manager Performance Rank, attached as part of Exh. 10C to Rogers Decl., at 1; see also Manager Performance Rating Toolkit, attached as Exh. 10B to Rogers Decl., at 3-4). Thus, the productivity that Goldman Sachs considers a crucial variable is already part of Dr. Farber’s model in the form of the performance measures.
2. Job Function One of the factors that Dr. Farber included in his model was the affirmative action job group classification, referred to as the AAP code. The defendants argue that the AAP code is irrelevant because it is not used to make evaluation, compensation, or promotion decisions and because 70 percent of the professionals in the putative class fall into one of three AAP job codes. (Def. Farber Reply at 9-10). According to Goldman Sachs, Dr. Farber should have used more granular job functions as a variable. (Def. Farber Reply at 9).
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The AAP job codes are assigned pursuant to a United States Department of Labor regulation:
In the job group analysis, jobs at the establishment with similar content, wage rates, and opportunities, must be combined to form job groups. Similarity of content refers to the duties and responsibilities of the job titles which make up the job group. Similarity of opportunities refers to training, transfers, promotions, pay, mobility, and other career enhancement opportunities offered by the jobs within the job group. 41 C.F.R. § 60-2.12(b). Since Goldman Sachs was required to classify its employees into AAP job groups precisely on the basis of both similarity of duties and responsibilities and opportunities for compensation and promotion, the defendants cannot now reject that classification system as an input in creating a model for calculating expected pay and advancement. To be sure, the defendants may be able to identify a different variable that perhaps leads to a better fit between a model and the data, but that is an issue that goes to the weight of the evidence; it does not render Dr. Farber’s report inadmissible.
3. Aggregation The defendants contend that Dr. Farber improperly aggregated data across the firm’s myriad business units. This position is based both on Goldman Sachs’ view of the appropriate relationship between its firm structure and a statistical model and on two technical statistical arguments.
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Goldman Sachs maintains that because its decisions about compensation and promotion are made at the business unit level, it was misleading for Dr. Farber to construct a model that fails to take these units into account. (Def. Farber Memo. at 10-11). Indeed, Goldman Sachs’ statistical expert, Dr. Michael Ward, has offered evidence that, if the data is broken down by business unit, it becomes apparent that in many units women are compensated at a higher rate than similarly situated men, and in most units there is no statistically significant difference. (Expert Report of Michael P. Ward, Ph.D. in the Matter of Chen-Oster et al. vs. Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. dated July 3, 2014 (“Ward Report”) at 55-61). This is a typical argument in many employment discrimination cases. “In equal employment cases involving an employer with a number of locations or subunits, defendants may argue that the data should be examined separately for each unit, while plaintiffs may pool the data into one or several large samples or focus on a few units in which statistical significance was observed.” Joseph L. Gastwirth and Efstathia Bura, Some Important Statistical Issues Courts Should Consider in Their Assessment of Statistical Analyses Submitted in Class Certification Motions: Implications for Dukes v. Wal-Mart, 10 Law, Probability and Risk 225, 225 (2011).
Here, Dr. Farber’s decision to pool the data across the three
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Goldman Sachs’ divisions at issue is fully supportable. The design of a statistical model must necessarily follow the structure of the entity being studied in light of the questions sought to be answered. In this case, there is substantial evidence that Goldman Sachs utilizes 360 review and quartiling in each division and every business unit. Therefore, it is appropriate to examine these policies across the entire population, even if the effects of those policies may vary in different business units, and even if those effects may not be statistically significant in many individual units.
The difficulty with analyzing data on the business unit level, as Goldman Sachs advocates, is that such disaggregation tends to mask common mechanisms because the sample size in each unit is so small. As a general matter, “[statistical] power increases with sample size. A gender gap of a specific magnitude (say 15%) is more likely to show up as statistically significant in a regression analysis based on 1,000 observations than in one based on 100 observations.” William T. Bielby and Pamela Coukos, “Statistical Dueling” with Unconventional Weapons: What Courts Should Know About Experts in Employment Discrimination Class Actions, 56 Emory L.J. 1563, 1597 (2007). Bielby and Coukas demonstrate the significance of this principle using simulated data. They generated theoretical earnings reflecting a gender gap of 11 percent across all offices
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within a hypothetical firm. Id. at 1599. But when separate
regressions are run for each office, this gap in pay apparently
disappears.
The results of the statistical analysis -- seemingly random disparity -- fail to line up with empirical reality -- uniform disparity -- because of lowered statistical power. By breaking up the dataset into much smaller units, the amount of “noise,” or random variation, is elevated over any pattern that exists. In this case, any particular individual man or woman might have especially high or low earnings because of factors not measured in the analysis, factors that vary randomly among employees irrespective of their gender. Because individual salaries will tend to vary for a host of reasons, looking at smaller groups will tend to diminish evidence that women as a group are harmed more than men.
Further, the presence of this kind of random variation does not mean that the average is deceptive. A woman may be the highest earner in her particular office but may be paid far lower than a host of equally or lesser-qualified men in other offices. Isolating the comparison to only those in a particular office could unfairly exclude relevant evidence of gender-based compensation disparities. Conversely, a woman who is penalized because of her gender to the same extent as any other class member could still end up being more highly compensated than the vast majority of men or even be the highest-paid person in the entire company, due to the impact of unmeasured factors. Absent discrimination, her high salary would have been even higher.
Id. at 1602 (footnotes omitted).
Dr. Farber’s decision to aggregate data, then, was reasonable
both in light of the evidence that Goldman Sachs applies common
performance measures that influence pay and promotion across
business units and in light of the statistical pitfalls of
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disaggregation.
Nevertheless, the defendants argue that the impropriety of
combining data from all three divisions and for lateral hires as
well as employees promoted from within the ranks is demonstrated by
application of statistical standards known collectively as the
“Chow test.”7 (Def. Farber Memo. at 18-20). This test, developed
by Professor Gregory C. Chow, is designed to determine the extent
to which statistical relationships are identical across different
populations or within the same population over different time
periods. Gregory C. Chow, Tests of Equality Between Sets of
Coefficients in Two Linear Regressions, 28 Econometrica 591, 591
(1960).
When a linear regression is used to represent an economic relationship, the question often arises as to whether the relationship remains stable in two periods of time, or whether the same relationship holds for two different groups of economic units . . . . Statistically, these questions can be answered by testing whether two sets of observations can be regarded as belonging to the same regression model.
Often there is no economic rationale for assuming that two relationships are completely the same. It may be more reasonable to suppose that only parts of the relationships are identical in two periods, or for two groups . . . . Statistically, we are asking whether subsets of coefficients in two regressions are equal.
7 Initially, Goldman Sachs also objected to the aggregation of data for Associates and Vice Presidents; however, Dr. Farber later ran separate regressions for these groups. (Def. Farber Memo. at 19).
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Id. In common and, perhaps, imprecise parlance, the Chow test determines whether data can be pooled. Goldman Sachs maintains that because combining data across divisions and combining lateral and non-lateral hires “fails” the Chow test, Dr. Farber’s model must be rejected.
But the case law does not support the contention that passing the Chow test is an absolute prerequisite for including different data sets in the same regression. See, e.g., Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33, 43 (D.D.C. 2007) (rejecting claim that aggregating data across different pay plans was improper because it did not satisfy Chow test); Dukes v. WalMart Stores, Inc., 222 F.R.D. 137, 157-58 (N.D. Cal. 2004), aff’d, 509 F.3d 1168 (9th Cir. 2007), aff’d in part and remanded in part en banc, 603 F.3d 571 (9th Cir. 2010), rev’d on other grounds, __ U.S. __, 131 S. Ct. 2541 (2011); Rossini v. Olgivy & Mather, Inc., 615 F. Supp. 1520, 1522-23 (S.D.N.Y. 1985), vacated and remanded on other grounds, 798 F.2d 590 (2d Cir. 1986) (holding “categorical rejection” of regression analysis combining data for two different periods not warranted despite adverse Chow test); Vuyanich v. Republic National Bank of Dallas, 505 F. Supp. 224, 299, 314 (N.D. Tex. 1980), vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984) (finding aggregation to be “genuine conflict between the experts” notwithstanding failure of plaintiff’s model to meet Chow test);
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but see Reed Construction Data, Inc. v. McGraw-Hill Companies, Inc, __ F. Supp. 3d __, __, 2014 WL 4746130, at *12-13 (S.D.N.Y. Sept. 24, 2014) (excluding expert report that aggregated data but failed Chow test). Where there is a rational basis for aggregation, as there is here, the Chow test is not a basis for categorically rejecting a model that does not meet its requirements.
There are also sound statistical reasons for being cautious about using the Chow test alone to reject a model. In effect, the Chow test measures whether the coefficients of all variables in separate regressions are the same. Efstathia Bura, Joseph L. Gastwirth, and Hiroyuki Hikawa, The Use of Peters-Belson Regression in Legal Cases at 13, available at http://ssrn.com/abstract=1721123 (last visited March 9, 2015). Thus, an analysis could fail the Chow test even if the coefficient for the variable of interest was identical in each regression on disaggregated data, if the coefficients for other variables were dissimilar. Id. For example, regressions might indicate that education or experience has a different impact on compensation, that is, has a different coefficient in each business unit regression, but that gender has a consistent impact. Yet, in this hypothetical, the Chow test would counsel against combining business units in the same regression. More importantly, an analysis could fail the Chow test where the coefficient for the variable of interest varies in
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magnitude but not in the direction of impact. For instance, if being female is always negatively associated with compensation, even if not always to the same magnitude, it may be appropriate to utilize a unitary model notwithstanding failure to satisfy the Chow test. See id. at 14-15. The fact that a Chow test might indicate that the coefficients for variables conducted on subgroups of the putative class are not equal therefore does not render Dr. Farber’s opinion inadmissible.
Finally, Goldman Sachs complains that “Dr. Farber’s models have very poor explanatory power.” (Def. Farber Reply at 6). Specifically, the defendants note that the correlation coefficients for Dr. Farber’s models range from 0.23 to 0.33, meaning that the predictive variables he has utilized explain only about one-quarter to one-third of the differences in compensation in the population of employees studied. (Def. Farber Reply at 6 n.7). But the correlation coefficient is simply a normalized form of the standard error of estimate, and “a large standard error of estimate does not tell one anything at all about the accuracy with which the effects of the independent variables are measured.” Fisher, supra at 71920. In other words, “a large standard error of estimate of the regression tells you that you do not know everything. This is not the same as telling you that you do not know anything.” Id. at 720. Thus, what is important to Dr. Farber’s analysis is that
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certain predictive variables have a statistically significant impact on compensation, not that a large portion of the variation in compensation remains unexplained.
For these reasons, the defendants’ motion to exclude Dr. Farber’s evidence is denied.
B. Dr. Michael P. Ward The plaintiffs seek to exclude one aspect of the expert report of Dr. Ward, Goldman Sachs’ statistical expert. Dr. Ward is Vice President and Senior Analyst at Welch Consulting, a firm specializing in economic and statistical research. (Ward Report at 1). Dr. Ward received his B.A. in economics from the University of California, Santa Barbara, and his M.A. and Ph.D. degrees in economics from the University of Chicago. (Ward Report at 1). He taught economics and statistics at Santa Barbara from 1973 to 1975 and at the University of California, Los Angeles from 1975 to 1980. (Ward Report at 1). From 1980 to 1984 he was employed as a Senior Analyst at the Rand Corporation, after which he joined Welch Consulting. (Ward Report at 1). The plaintiffs do not seek to exclude the regressions performed by Dr. Ward, which constitute the bulk of his expert report. Rather, they challenge two exercises that he conducted which are characterized as matching pair analyses. (Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Expert Testimony of
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Dr. Michael P. Ward at 1). Goldman Sachs denominates these studies the “Farber-Flaw” analysis and the “Investigative Pairs” analysis. (Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Exclude Expert Testimony of Dr. Michael P. Ward (“Def. Ward Memo.”) at 6-9). The first consisted of comparing two pairs of male Vice Presidents who shared similar characteristics according to the factors utilized by Dr. Farber in his regressions, but who worked in different business units. (Ward Report at 24-25). Although Dr. Farber’s model would have predicted that the two employees in each pair would have similar compensation, in fact their earnings were very different. (Ward Report at 24-25). Dr. Ward then interviewed the Vice Presidents’ managers and determined that there were additional factors not captured by Dr. Farber’s model, such as the nature of the business unit and the employee’s specific job function, that could explain the discrepancies. (Ward Report at 24-25). According to Goldman Sachs, this is significant because “if the lower-paid Vice President in this pair had been female, Dr. Farber would have erroneously attributed the compensation difference between them to gender.” (Def. Ward Memo. at 7 (emphasis omitted)).
Dr. Ward’s Investigative Pairs analysis examined pairs of Vice Presidents who, without accounting for gender, shared similar characteristics according to the factors he used in his own
26

regressions -- business unit, department, job junction, tenure at Goldman Sachs, quartile, and whether the employee was hired laterally -- but who had very different compensation. (Ward Report at 49). Dr. Ward then interviewed the employees’ managers to try to ascertain what could account for the pay discrepancies; some of these managers submitted declarations that are appended to Dr. Ward’s report. (Ward Report at 49-52 & App. F). From this exercise, Dr. Ward concluded that there are factors that reflect an employee’s value to the firm and explain pay differences but are not captured in computerized data and cannot be included in a regression analysis. (Ward Report at 52).
As statistical analyses, Dr. Ward’s matched pairs studies are unreliable for a number of reasons. First, he has made no effort to determine the statistical significance of his findings, and it is self-evident that his sample size of two pairs in the “FarberFlaw” exercise is too small to serve as the basis for any statistical inference. Second, the selection of which matched pairs were analyzed was subject to bias. Although Dr. Ward may have utilized objective criteria in determining which employees “matched,” he submitted “dozens” of such pairs to defense counsel, who then chose which pairs were to be examined further. (Deposition of Michael P. Ward, Ph.D., dated Jan. 6, 2014 (“Ward Dep.”), excerpts attached as Exh. 3 to Declaration of Cara A.
27

Greene dated July 29, 2014, at 265-67, 310). Finally, there is a significant danger of reporting bias, particularly on the part of the managers who were effectively asked to justify their own decisions to compensate seemingly similar employees differently. A manager may well be expected to attribute such differential treatment to qualities like “leadership potential” rather than gender. See Arredondo v. Delano Farms Co., 301 F.R.D. 493, 512 (E.D. Cal. 2014) (finding expert’s statistical analysis of alleged wage and hour violations that only evaluated declarations submitted by plaintiffs to be “based upon a limited pool of information” and irrelevant to class certification); In re Front Loading Washing Machine Class Action Litigation, No. 08 Civ. 51, 2013 WL 3466821, at *7 (D.N.J. July 10, 2013) (excluding unreliable consumer survey); York v. Starbucks Corp., No. 08 Civ. 7919, 2011 WL 8199987, at *12-13 (C.D. Cal. Nov. 23, 2011) (excluding survey of class members that “failed to comply with well established principles and procedures designed to insure the reliability of survey data”).
Goldman Sachs contends that these arguments are beside the point because the matched pairs analyses were only designed to be “illustrative,” and they were not intended to be the basis for any statistical inference. (Def. Ward Memo. at 8; Ward Dep. at 26768). But a witness must either have first-hand knowledge of the
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matter about which he testifies, and so testify as a percipient witness, or he must utilize expertise in order to aid the finder of fact in understanding esoteric or complex evidence. See United States v. Mejia, 545 F.3d 179, 194-96 (2d Cir. 2008) (finding that “[t]estimony is properly characterized as ‘expert’ only if it concerns matters that the average juror is not capable of understanding on his or her own”); Schwartz v. Fortune Magazine, 193 F.R.D. 144, 147 (S.D.N.Y. 2000) (excluding testimony of accounting expert not based on specialized expertise but only on “basic calculations”). Here, Dr. Ward falls into neither category. He disavows using his expertise as a statistician in conducting the matched pairs analysis, and it is the employees and managers who have first-hand knowledge of the compensation-related information that Goldman Sachs proffers. It is inappropriate to present that evidence with the imprimatur of an expert witness. Accordingly, the plaintiffs’ motion to exclude Dr. Ward’s matched pairs analyses is granted. The defendants, however, are not precluded from relying on the underlying factual matter to the extent it is otherwise admissible.
C. Dr. Wayne F. Cascio Next, Goldman Sachs seeks to exclude the expert testimony of Dr. Wayne F. Cascio. Dr. Cascio has been the Robert H. Reynolds Distinguished Chair in Global Leadership in the Graduate School of
29

Business Administration at the University of Colorado Denver since 1981. (Expert Report in the Matter of Chen-Oster, et al., v. Goldman Sachs & Co. dated Feb. 18, 2014 (“Cascio Report”)8, ¶ 1). He received his Ph.D. in industrial and organizational psychology from the University of Rochester in 1973 and subsequently taught at a number of universities before receiving his current appointment. (Cascio Report, ¶ 3).
Dr. Cascio was engaged by plaintiffs’ counsel to evaluate the performance assessment and compensation recommendation processes at Goldman Sachs. (Cascio Report, ¶ 12). He concluded that the measures lack reliability, clear standards for decision making, and proper accountability systems, and were not adequately implemented. (Cascio Report, ¶¶ 16-17). Further, he determined that the processes lacked procedural safeguards. (Cascio Report, ¶ 19). Accordingly, Dr. Cascio found that Goldman Sachs’ policies do not meet the basic standards of practice in the field of industrial and organizational psychology and do not justify the resulting gender differences in compensation. (Cascio Report, ¶ 21).
In order to be admissible under Rule 702 and Daubert, an
8 Although Dr. Cascio has prepared other expert reports in connection with this litigation, the February 18 report is the one submitted by the plaintiffs in support of their motion for class certification and is therefore the only one addressed in this decision.
30

expert opinion must be “relevant to the task at hand,” Amorgianos, 303 F.3d at 265, and the task here is to determine the appropriateness of certifying a class. The defendants argue that Dr. Cascio makes no attempt to draw a causal connection between the flaws he identifies in Goldman Sachs’ evaluation processes and gender disparities in compensation, an issue that would be relevant to determining whether the commonality requirement for class certification has been met. (Defendants’ Memorandum of Law in Support of Motion to Strike Reports, Opinion, and any Testimony of Plaintiffs’ Expert Dr. Wayne F. Cascio at 2, 9-10). It is certainly true that Dr. Cascio has disavowed making any such causal connection. (Deposition of Wayne Cascio dated Nov. 16, 2013, excerpts attached as Exh. 4 to Declaration of Barbara B. Brown dated June 13, 2014, at 149, 181-82). But it is not necessary for each expert to provide evidence establishing every element of a party’s case, and the plaintiffs have proffered Dr. Farber’s analyses in order to prove causation.
Dr. Cascio’s opinion is directed instead to rebutting any claim by Goldman Sachs that its evaluation processes must be allowed even if they have a disparate impact on women. Under Title VII,
[a]n unlawful employment practice based on disparate impact is established under this subchapter only if [] a complaining party demonstrates that a respondent
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uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity[.] 42 U.S.C. § 2000e-2(k)(1)(A)(i). Thus, expert evidence that addresses the reliability of Goldman Sachs’ evaluation processes goes to the business necessity defense and is relevant at the class certification stage to the question of commonality. See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 489 (7th Cir. 2012) (finding that whether “teaming” policy is justified by business necessity is an issue “common to the entire class and therefore appropriate for class-wide determination”); Houser v. Pritzker, 28 F. Supp. 3d 222, 243 (S.D.N.Y. 2014) (holding commonality established by defenses applicable to all class members). It is true, as the defendants suggest, that the merits of Dr. Cascio’s opinion will only be tested at trial if the plaintiffs first carry their burden of demonstrating that the firm’s evaluative processes have a disparate impact. (Defendants’ Reply Memorandum in Support of Their Motion to Strike Reports, Opinion, and Any Testimony of Plaintiffs’ Expert Dr. Wayne F. Cascio at 7-8). But that does not make his evidence any less relevant at the class certification stage, as the cases cited above demonstrate. Accordingly, Goldman Sachs’ motion is denied.
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D. Dr. Michael A. Campion Dr. Michael A. Campion has a Ph.D. in industrial and organizational psychology and has been a Professor of Management at Purdue University since 1986. (Report of Michael A. Campion, Ph.D. on Performance Evaluation (360 Feedback and Quartiling) and Incentive Bonus Compensation in Chen-Oster v. Goldman Sachs dated Dec. 11, 2013 (“Campion Report”), ¶ 4). Prior to joining the Purdue faculty, Dr. Campion worked for four years each at IBM Corporation and Weyerhaeuser Company as a human relations and management analyst. (Campion Report, ¶ 7). Dr. Campion’s expert report on behalf of Goldman Sachs is effectively a mirror image of the report submitted by Dr. Cascio. Dr. Campion concluded that the 360 review and quartiling processes utilized by Goldman Sachs are valid and conform with best practices. (Campion Report, ¶¶ 14-20). He also found that not only is providing incentive bonuses valid, it is a best practice and is particularly common in the financial services industry. (Campion Report, ¶¶ 21-23). Finally, Dr. Campion took issue with Dr. Cascio’s criticisms of Goldman Sachs’ performance evaluation techniques. (Campion Report, ¶ 24). The plaintiffs assert that Dr. Campion’s analysis is flawed in two respects. First, they contend that his methodology for determining best practices -- essentially a meta-analysis of
33

journal articles concerning performance evaluation techniques -- is inherently unsound and that, in any event, he applied it to Goldman Sachs’ policies in an unreliable manner. (Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Expert Testimony of Dr. Michael A. Campion (“Pl. Campion Memo.”) at 1, 10-13; Campion Report, ¶¶ 15, 19, 32-35, 51-54, 59-63). Second, the plaintiffs question the validity of Dr. Campion’s suggestion that Dr. Cascio inferred bias merely from differential performance evaluations, without taking into account potential gender differences such as relative competitiveness in “extreme jobs” such as those held by professionals at Goldman Sachs. (Pl. Campion Memo. at 1, 6-8; Campion Report, ¶¶ 100-104).
Whatever the merit of the plaintiffs’ arguments, they go exclusively to Dr. Campion’s opinions on the merits of their claims and not to issues of class certification. Accordingly, it is premature to assess the plaintiffs’ challenges, and their motion is denied.
E. Michael P. Curran Michael P. Curran is a Director of Towers Watson, a business consulting firm, where he specializes in providing advice concerning compensation and related matters to financial services firms. (Report of Michael P. Curran in Chen-Oster, et al. v. Goldman, Sachs & Co, et al. (“Curran Report”), ¶ 1). After
34

receiving a B.S. degree in industrial & labor relations from Cornell University in 1979, Mr. Curran worked in the paper industry and for Morgan Stanley until 1983, when he joined McLagan Partners, a consulting firm focused on the financial services industry. (Curran Report, ¶¶ 2-4). In 2003, he became President of MGMC, a boutique compensation consulting firm serving banks and investment banks. (Curran Report, ¶ 5). When the corporate predecessor to Towers Watson acquired MGMC in 2007, Mr. Curran became the head of global finance for the firm. (Curran Report, ¶ 6).
Mr. Curran submitted an expert report on behalf of Goldman Sachs in which he expressed opinions about the structure of compensation in the financial services industry. Specifically, he concluded that (1) Associates and Vice Presidents in the industry hold a wide variety of jobs, which differ by type of product, activity of the employer, required skill set, and nature of the clients served; (2) compensation varies widely, depending on the success of the firm and of the employee’s business unit, individual productivity, and market demand; (3) lateral hiring can have a significant impact on compensation; (4) managers in the industry typically and necessarily exercise significant judgment in setting compensation; and (5) firms in the industry strive to link compensation with each employee’s contribution. (Curran Report, ¶¶ 11-15).
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The plaintiffs seek to exclude Mr. Curran’s evidence on two grounds. First, they contend that it is irrelevant because it relates to the financial services industry as a whole rather than to Goldman Sachs specifically. (Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Expert Testimony of Michael P. Curran (“Pl. Curran Memo.”) at 9-10; Reply Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Expert Testimony of Michael P. Curran (“Pl. Curran Reply”) at 2-4). Second, the plaintiffs argue that Mr. Curran’s opinions are unreliable in that they are based on Towers Watson surveys, the validity of which cannot be tested because the defendants have not disclosed the data underlying those studies. (Pl. Curran Memo. at 5-7; Pl. Curran Reply at 4-7).
The first of these arguments is fully dispositive for present purposes. The defendants assert that “Mr. Curran’s testimony is relevant not to show what Goldman Sachs does, but rather to show practices in the financial services industry generally . . . .” (Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Exclude Expert Testimony of Michael P. Curran (“Def. Curran Memo.”) at 7). It is certainly the case, as Goldman Sachs contends, that expert testimony is admissible to show industry practice. (Def. Curran Memo. at 7). See Reach Music Publishing, Inc. v. Warner Chappell Music, Inc., 988 F. Supp. 2d 395, 403 (S.D.N.Y. 2013); Teevee Toons, Inc. v. Rep Sales, Inc., No. 03 Civ. 10148, 2007 WL
36

5011652, at *1 (S.D.N.Y. Oct. 19, 2007). But industry practice must itself be relevant to the issues under consideration. See Sompo Japan Insurance Co. of America v. Norfolk Southern Railway Co., 762 F.3d 165, 180-81 (2d Cir. 2014) (upholding exclusion of evidence of industry practice found irrelevant); Travelers Indemnity Co. v. Northrop Grumman Corp., No. 12 Civ. 3040, 2014 WL 464769, at *5 (S.D.N.Y. Jan. 28, 2014) (excluding expert testimony when industry practice “not an issue in this case”). Here, industry practice concerning compensation might ultimately be relevant, for example, to support a business necessity defense. However, it is not pertinent to class certification. What is important at this stage is whether there are common issues relating to Goldman Sachs and the claims against it. As Mr. Curran does not purport to address such issues, his evidence is excluded.
F. Dr. David L. Yermack Dr. David L. Yermack is the Albert Fingerhut Professor of Finance and Business at New York University’s Stern School of Business. (Rebuttal Report of David L. Yermack, Expert Witness for Plaintiffs (“Yermack Report”), ¶ 2). He received a Bachelor of Economics, M.B.A., J.D., Master of Business Economics, and Ph.D. in business economics, all from Harvard University. (Yermack Report, ¶ 2). After receiving his doctorate, he immediately joined the faculty of the Stern School, and he received tenure in 2001.
37

(Yermack Report, ¶ 2). Dr. Yermack’s expert report is a rebuttal to the opinions of
Mr. Curran. In summary, he concludes that financial services firms have similar ranges of jobs and that staff at the Associate and Vice President level are comparable across firms. (Yermack Report, ¶ 13). According to Dr. Yermack, the compensation of such employees is far less variable than that of more senior professionals. (Yermack Report, ¶ 14). Similarly, the link between compensation and the employee’s perceived contribution to the firm is stronger at the more senior levels. (Yermack Report, ¶ 17).
Goldman Sachs challenges Dr. Yermack’s evidence in several respects. It argues that to the extent Dr. Yermack is offering an opinion about the diversity of jobs at Goldman Sachs, this is not a proper subject for expert testimony. (Defendants’ Memorandum in Support of Their Motion to Exclude Expert Testimony of David L. Yermack (“Def. Yermack Memo.”) at 5-6; Defendants’ Reply Memorandum in Support of Their Motion to Exclude Expert Testimony of David L. Yermack (“Def. Yermack Reply”) at 2-3). The defendants further contend that, as an academician, Dr. Yermack lacks the expertise to opine on the “nuts and bolts” of the financial industry. (Def. Yermack Memo. at 6-7; Def. Yermack Reply at 4-6). Finally, Goldman Sachs posits that Dr. Yermack’s conclusions are not based on
38

sufficient facts and data. (Def. Yermack Memo. at 7-13; Def. Yermack Reply at 7-9).
For present purposes, these issues are moot. The plaintiffs acknowledge that Dr. Yermack is a rebuttal expert, whose evidence will only be offered to the extent it is necessary to controvert the opinions of Mr. Curran. (Pl. Curran Reply at 1 n.1). Since those opinions have been excluded from consideration in connection with the motion for class certification, Dr. Yermack’s shall be as well. If appropriate, these questions will be revisited at the merits stage. Non-Expert Evidence
Finally, the plaintiffs move to strike declarations submitted by Goldman Sachs managers as well as an exhibit identified as Appendix A and attached to the defendants’ memorandum in opposition to class certification. I will address these issues separately.
A. Manager Declarations In opposing the class certification motion, Goldman Sachs submitted a number of declarations by firm managers to support the arguments that Goldman Sachs professionals hold a variety of disparate positions in many different business units and that managers exercise broad discretion in making compensation and promotion decisions within each unit. The plaintiffs seek to
39

exclude most of those declarations9 on the ground that Goldman
Sachs breached its disclosure obligations by failing to identify
the declarants prior to proffering their statements. This
application is without merit.
Pursuant to Rule 37(c)(1) of the Federal Rules of Civil
Procedure,
[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Rule 26(a), in turn, requires that, at the outset of the
litigation, each party must identify “each individual likely to
have discoverable information,” while Rule 26(e) creates an
obligation to supplement those disclosures as additional
information becomes available. In assessing whether preclusion is
warranted under Rule 37(c), a court must consider
(1) the party’s explanation for the failure to comply with the [disclosure requirement]; (2) the importance of
9 The plaintiffs do not request preclusion of the declarations of five members of the putative class, of one manager who was previously identified as a custodian of documents, or of three employees in Goldman Sachs’ Human Capital Management unit. (Memorandum of Law in Support of Plaintiffs’ Motion to Strike the Declarations of Susan Benz, Jean Marie Bohm, Donald Casturo, Darren Cohen, Stephanie Cohen, Nora Creedon, Samantha Davidson, Celeste Guth, Marie Louise Kirk, John Levene, Todd Lopez, James McNamara, Craig Packer, Stephen Pierce, Laura Robertson, Peter Craig Russell, Susan Jane Scher, and Megan Taylor (“Pl. Preclusion Memo.”) at 1 n.1).
40

the testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (internal quotation marks and citation omitted) (alterations in original). Here, it is doubtful that Goldman Sachs breached any disclosure obligation in the first place. Rule 26(a)(1)(A)(i) requires identification of persons that a party “may use” to support its claims or defenses, not everyone with knowledge about the subject matter. See Fed. R. Civ. P. 26(a)(1) advisory committee’s note (2000); Government Benefits Analysts, Inc. v. Gradient Insurance Brokerage, Inc., Civ. A. No. 10-2558, 2012 WL 3292850, at *5-6 (D. Kan. Aug. 13, 2012). In a case such as this that concerns firm-wide structure and policies, every manager, and, indeed, every employee, is a potential witness; yet it would hardly further the purpose of the rule if counsel were to produce a roster of the entire firm as part of its initial disclosure. To the extent that the plaintiffs argue that Goldman Sachs should have supplemented its initial disclosure at some subsequent point when it had decided whose declarations it was going to use, the argument is foreclosed by the plaintiffs’ own conduct. They rejected the defendants’ suggestion that the parties exchange draft declarations or lists of declarants at some time in advance of the time that the
41

declarations were filed. (Letter of Barbara Berish Brown and Theodore O. Rogers, Jr., dated Oct. 18, 2013, attached as Exh. 3 to Declaration of Theodore O. Rogers, Jr., dated Aug. 12, 2014 (“Rogers 8/12/14 Decl.”). Furthermore, the plaintiffs themselves never identified their witnesses prior to filing their declarations. The plaintiffs are bound by this (at least implicit) agreement not to identify the declarants in advance.
Even if the defendants had violated the rules, preclusion would not be warranted in light of the factors enumerated in Patterson. First, for the reasons already discussed, Goldman Sachs has substantial justification for any “non-compliance.” Next, the evidence of Goldman Sachs’ declarants is plainly important: the firm’s structure and its compensation and promotion policies are central to a determination of issues such as commonality and predominance. Third, the plaintiffs suffered no prejudice, since they could have taken the depositions of the Goldman Sachs declarants but eschewed that opportunity when they did not receive all of the documentary information they had demanded. (Rogers 8/12/14 Decl., Exhs. 5-15). Finally, an extension of the class certification briefing schedule to accommodate additional discovery with respect to the declarants, while hardly ideal, would have been feasible. Accordingly, the motion to exclude the declarations of the Goldman Sachs managers is denied.
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B. Appendix A The document identified as Appendix A is a schematic of the three Goldman Sachs divisions at issue in the class certifcation motion and subsidiary business units. Again, the plaintiffs seek to preclude it on the ground that it was not previously disclosed. (Pl. Preclusion Memo. at 10-11). They also argue that it in fact misrepresents the underlying facts that it purports to illustrate because it conflates the firm’s corporate structure at different points in time into a single visual representation. (Reply Memorandum of Law in Support of Plaintiffs’ Motion to Strike the Declarations of Susan Benz, Jean Marie Bohm, Donald Casturo, Darren Cohen, Stephanie Cohen, Nora Creedon, Samantha Davidson, Celeste Guth, Marie Louise Kirk, John Levene, Todd Lopez, James McNamara, Craig Packer, Stephen Pierce, Laura Robertson, Peter Craig Russell, Susan Jane Scher, and Megan Taylor, and to Exclude Appendix A to Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification at 7-8). Appendix A is essentially a demonstrative exhibit; it has no probative value apart from the underlying evidence on which it is based. As such, it does not fit comfortably within the disclosure requirements of Rule 26(a)(1)(A)(ii), since it would not normally exist at the outset of the case. And, to the extent that the plaintiffs argue that the exhibit is misleading, this is a
43

contention that may be considered in connection with its weight rather than its admissibility, since class certification issues are heard by the court rather than by a jury. The application to preclude Appendix A is therefore denied. Conclusion
For the reasons discussed above, the motion to exclude the expert testimony of Dr. Farber (Docket no. 356) is denied; the motion to exclude in part the expert testimony of Dr. Ward (Docket no. 307) is granted; the motion to exclude the expert testimony of Dr. Cascio (Docket no. 350) is denied; the motion to exclude the expert testimony of Dr. Campion (Docket no. 303) is denied; the motion to exclude the expert testimony of Mr. Curran (Docket no. 305) is granted; the motion to exclude the expert testimony of Dr. Yermack (Docket no. 323) is granted; and the motion to preclude the declarations of Goldman Sachs’ managers and Appendix A to Goldman Sachs’ memorandum in opposition to class certification (Docket no. 299) is denied. It bears repeating that these determinations are made solely with respect to the submission of this evidence in connection with the class certification motion; admissibility in connection with dispositive motions or trial is subject to further analysis.
44

SO ORDERED.

G C..,-1rJ..A.A. I ud-1

~ ~

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York March 10, 2015

Copies transmitted this date:

Adam T. Klein, Esq. Cara E. Greene, Esq. Justin M. Swartz, Esq. Melissa L. Stewart, Esq. Outten & Golden, LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016

Alison M. Stocking, Esq. Anne B. Shaver, Esq. Heather H. Wong, Esq. Kelly Dermody, Esq. Lisa J. Cisneros, Esq. Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339

Theodore 0. Rogers, Jr., Esq. Margaret E. Bartlett, Esq. Michael P. Reis, Esq. Suhana S. Han, Esq. Robin D. Fessel, Esq. Sullivan and Cromwell, LLP 125 Broad Street New York, NY 10004

Barbara B. Brown, Esq. Neal D. Mollen, Esq. Paul Hastings LLP 875 15th Street N.W. Washington, DC 20005

45

C. Geoffrey Weirich, Esq. Paul Hastings LLP 1170 Peachtree Street, NE Suite 2400 Atlanta, GA 30308
46

 
 Case 1:10-cv-06950-AT-JCF Document 364 Filed 03/10/15 Page 1 of 46

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -:

H. CRISTINA CHEN-OSTER; LISA

: 10 Civ. 6950 (AT) (JCF)

PARISI; and SHANNA ORLICH, on

:

behalf of themselves and all

:

others similarly situated,

:

:

REPORT AND

Plaintiffs,

:

RECOMMENDATION

:

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

- - - - - - - - - - - - - - - - - -:

TO THE HONORABLE ANALISA TORRES, U.S.D.J.:

The plaintiffs in this case allege that Goldman, Sachs & Co.

and The Goldman Sachs Group, Inc. (collectively, “Goldman Sachs” or

the “defendants”), by whom they were formerly employed, engage in

a pattern of gender discrimination against female professional

employees in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and the New York City Human Rights

Law, N.Y.C. Admin. Code § 8-101 et seq. The plaintiffs now move

for certification of a class consisting of:

All female Associates and Vice Presidents who have worked in Goldman Sachs’ Investment Banking, Investment Management, and/or Securities Divisions in the United States at any time from September 10, 2004 to present, and in New York City from July 7, 2002 to the present.

(Memorandum in Support of Plaintiffs’ Motion for Class

Certification (“Pl. Memo.”) at 34). They seek to certify the class

1

Case 1:10-cv-06950-AT-JCF Document 364 Filed 03/10/15 Page 2 of 46
for purposes of injunctive and declaratory relief pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and for monetary damages pursuant to Rule 23(b)(3). In the alternative, the plaintiffs seek certification of a class pursuant to Rule 23(c)(4) only for the purpose of establishing liability. For the reasons set forth below, I recommend that the motion be denied.1 Background
The facts set forth here are limited to those relevant to determination of the class certification motion. Where the parties contest any material facts, those disputes will be resolved in the analysis that follows.
A. Individual Plaintiffs H. Cristina Chen-Oster and Shanna Orlich seek to represent the proposed class.2 Ms. Chen-Oster worked in Goldman Sachs’ New York office in the Equities Area of the Securities Division from March 1997 until March 2005, first in the Convertible Sales Business Unit and later in U.S. Research Sales. (Declaration of H. Cristina Chen-Oster dated Feb. 18, 2014 (“Chen-Oster Decl.”), ¶ 3;
1 This Report and Recommendation should be considered together with the Memorandum and Order filed today in which I address the parties’ motions to exclude certain evidence submitted in connection with the class certification motion.
2 The claims of a third plaintiff, Lisa Parisi, are subject to an arbitration agreement. See Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013).
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Case 1:10-cv-06950-AT-JCF Document 364 Filed 03/10/15 Page 3 of 46
Deposition of H. Cristina Chen-Oster (“Chen-Oster Dep.”), excerpts attached as Exh. 4 to Declaration of Theodore O. Rogers, Jr. dated July 3, 2014 (“Rogers Decl.”), at 440). She held the title of Vice President from June 1997 until she left the firm eight years later. (Chen-Oster Decl., ¶ 3). Ms. Chen-Oster contends that during her tenure, she was denied compensation as well as promotion from Vice President to Managing Director on the basis of her gender. (ChenOster Decl., ¶ 4). Indeed, she maintains that she did not resign willingly from the firm, but was constructively terminated. (ChenOster Decl., ¶ 3). She is currently a Managing Director at Deutsche Bank. (Chen-Oster Decl., ¶ 16; Tr. at 113).3
Ms. Orlich first worked at Goldman Sachs as a Summer Associate in 2006. (Declaration of Shanna Orlich dated Feb. 16, 2014 (“Orlich Decl.”), ¶ 2). In July 2007, she was hired as an Associate in the Securities Division and worked there until she was laid off in November 2008. (Orlich Decl., ¶ 3; Deposition of Shanna Orlich (“Orlich Dep.”), excerpts attached as Exh. 14 to Rogers Decl., at 457-58). Ms. Orlich contends that she was denied compensation because of her gender and that she was terminated in retaliation for having complained about gender discrimination. (Orlich Decl., ¶¶ 8, 11).
3 “Tr.” refers to the transcript of the hearing on class certification held on October 22 and 23, 2014.
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B. Class Claims The plaintiffs claim that, like the individual named plaintiffs, the women who make up the putative class have been discriminated against in promotion and compensation on the basis of their gender. (First Amended Class Action Complaint (“FAC”), ¶¶ 36, 43-51). According to the plaintiffs, this occurs in several ways. First, the plaintiffs maintain that Goldman Sachs’ facially neutral evaluation policies have a disparate impact on women. (FAC, ¶¶ 7, 9, 37-42). The two specific policies at issue, known as the “360 review” and “quartiling,” will be discussed in detail hereafter. Second, the plaintiffs allege that Goldman Sachs has intentionally adopted these policies in order to disadvantage women. (FAC, ¶ 8). And, finally, the plaintiffs assert that a “corporate culture” of bias favoring men (and undermining women) exists at Goldman Sachs, fostering a pattern of discrimination. (FAC, ¶¶ 8, 52-56, 126-129). C. The Structure of Goldman Sachs Three of Goldman Sachs’ four revenue-generating divisions contain members of the proposed class. The Securities Division consists of two subdivisions: Fixed Income, Currencies and Commodities (“FICC”) and Equities. Employees in this division conduct transactions in stocks, options, futures, interest rate products, credit products, mortgages, currencies, and commodities.
4

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(Deposition of Rodney Miller, excerpts attached as Exh. 13 to Rogers Decl., at 50-53, 58-59; Declaration of Marie Louise Kirk dated July 2, 2014 (“Kirk Decl.”), ¶ 3; Declaration of John Levene dated June 30, 2014 (“Levene Decl.”), ¶¶ 2, 4). The Investment Banking Division is divided between Classic Banking and Financing. In Classic Banking, employees specialize in particular industries, advising the directors and managers of Goldman’s clients on strategic matters such as mergers, debt offerings, and equity offerings. (Declaration of Susan Benz dated July 3, 2014, ¶¶ 3, 10; Declaration of Craig Packer dated July 2, 2014 (“Packer Decl.”), ¶¶ 3-4). Employees in Financing are responsible for specific financing transactions such as the issuance of leveraged financing, structured financing, or equity. (Packer Decl., ¶ 3). Finally, the Investment Management Division also has two subdivisions: Private Wealth Management (“PWM”) and Goldman Sachs Asset Management (“GSAM”). PWM provides wealth advisory and investment management services to high net-worth individuals and certain foundations and endowments (Declaration of Megan Taylor dated June 30, 2014 (“Taylor Decl.”), ¶ 3), while GSAM manages asset funds for institutional and PWM clients (Declaration of James McNamara dated June 30, 2014, ¶ 3).
Within each division there are myriad smaller business units that specialize in particular activities. These units have evolved
5

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over time, sometimes numbering less than 100 and at other times more than double that number. (Tr. at 218). The units also vary in size, with some as small as five or fewer employees. (Tr. at 218). The diversity of the business units’ activities can be illustrated with a few examples. In the FICC Strats Business Unit, employees deal with technical, quantitative problems and questions posed by clients across a broad range of products. (Kirk Decl., ¶¶ 4-5). The Sales and Relationship Management Department within the Prime Brokerage Business Unit in the Securities Division, by contrast, is responsible for generating business, as by “prospecting” for new hedge fund clients. (Levene Decl., ¶¶ 4, 6). Employees on the Syndicate Desk of the Leveraged Finance Business Unit within the Investment Banking Division make decisions about the marketing, pricing, and distribution of leveraged finance products. (Packer Decl., ¶¶ 7, 11).
D. Personnel Policies 1. Employee Evaluations a. 360 Reviews
Goldman Sachs utilizes two related processes for evaluating employees. The first is the annual “360 review”. Every Goldman Sachs professional proposes between eight and twelve evaluators, who may be internal clients, subordinates, peers, or senior colleagues who have recently worked with her. (Deposition of
6

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Jessica Kung (“Kung Dep.”), attached as Exhs. 9 and 9A to Rogers Decl., at 280-81; Deposition of Caroline Heller Sberloti (“Heller Dep.”), attached as Exhs. 16 and 16A to Rogers Decl., at 265-70). The professional’s supervisor reviews the list of suggested evaluators and may modify it, typically after consultation with the employee. (Kung Dep. at 281-85; Heller Dep. at 268). The evaluators who are ultimately selected then rate the employee across a range of categories using a numerical scale. (Kung Dep. at 290-91). For example, in one year, all Goldman Sachs professionals were evaluated on the basis of technical skills, communications skills, judgment, problem solving, team work, compliance, diversity, leadership, overall commercial effectiveness, and overall professional performance. (Kung Dep. at 305-07). The employee’s direct manager collects the information from the evaluators in a “feedback book” and creates a manager summary that also includes his or her own assessment of the employee. (Kung Dep. at 279-80, 289-90). The 360 review process was used across each of Goldman Sachs’ divisions throughout the class period, though the functional definition of any particular category varied, depending on the types of skills most relevant to any particular business unit. (Heller Dep. at 271-72; Deposition of Bruce Larson, attached as Exh. 11 to Rogers Decl., at 169-70).
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b. Manager Quartiling The second evaluation tool utilized across the divisions of Goldman Sachs is manager quartiling.4 Every year, the manager of each business unit is required to rank each of his or her employees by placing them in one of five categories based on the manager’s evaluation of the employee’s “performance, contribution and potential relative to: (1) expectations for that individual’s level of experience and position; and (2) that individual’s peers.” (Guidelines for the Manager Performance Rank (“Ranking Guidelines”), attached as part of Exh. 10C to Rogers Decl., at 1; see also Manager Performance Rating Toolkit (“Toolkit”), attached as Exh. 10B to Rogers Decl., at 3-4; Kung Dep. at 316-17).5 The manager is directed to assign the top 25% of his or her employees to Quartile 1, the next 25% to Quartile 2, the next 25% to Quartile 3, the next 15% to Quartile 4, and the bottom 10% to Quartile 5. (Kung Dep. at 316-18).6 “Rankings should approximate a forced
4 Manager quartiling, which will be further described, is distinct from performance quartiling, which is a ranking of employees based exclusively on the numerical average of their 360 reviews.
5 Goldman Sachs utilizes the terms “quartile” and “quartiling” notwithstanding the fact that the evaluation template consists of five, rather than four, categories.
6 Previously, the manager had discretion whether and how to distribute employees from the 25th to the 75th percentiles between Quartiles 2 and 3. (Toolkit at 4; Kung Dep. II at 318-19).
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distribution over the entire division, but need not be exact. (For example, Rank 1 may be applied somewhat loosely to cover 23-27% of the population.)” (Ranking Guidelines at 1). In assessing employees, the manager is supposed to consider 360 review data, the quality of the employee’s performance, long-term commercial impact or contribution, technical and functional expertise, potential to assume greater responsibility, leadership and management skills, and diversity and citizenship-related activities. (Ranking Guideline at 1; Toolkit at 3). There is no formula dictating how these factors are to be weighted relative to one another (Deposition of David Landman (“Landman Dep.”), attached as Exh. 10A to Rogers Decl., at 37-38), and an employee’s quartile ranking can deviate from the ranking that might be expected based on the 360 review alone (Landman Dep. at 26-28; Kung Dep. at 320-23; Larson Dep. at 187). A manager’s tentative ranking is subject to adjustment at the division level and by Human Capital Management, Goldman Sachs’ human resources department. (Heller Dep. at 314-27; Larson Dep. at 70, 187-88). These modifications may be triggered by discrepancies between 360 review scores and the initial quartiling, by the desire to enforce the quartile distribution to prevent “grade inflation,” or by other considerations. (Heller Dep. at 320-21; Kung Dep. at 322, 332; Larson Dep. at 161-62, 18788).
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2. Compensation Professionals at Goldman Sachs generally receive a salary and a year-end bonus,7 with the bonus frequently being the largest component of compensation. (Deposition of Mehling, excerpts attached as Exh. 12 to Rogers Decl., at 226-27). The process of setting annual employee compensation begins with the firmwide compensation committee allocating a budget to each of Goldman Sachs’ divisions. (Kung Dep. at 56-57; Larson Dep. at 60). Division management, generally each division’s Chief Operating Officer and Chief Financial Officer, further allocates the available funding among the division’s business units, based on their relative performance and contribution during the previous year. (Kung Dep. at 57-59; Larson Dep. at 61). Each manager then recommends compensation for specific employees. (Kung Dep. at 5859; Larson Dep. at 61). These recommendations then work their way back up the chain. The manager’s proposals are reviewed by the business unit head. (Kung Dep. at 59-60). To the extent that the business unit manager has any concerns with the recommendations, he or she will discuss
7 Some professionals, notably Private Wealth Advisors (“PWAs”) within the Private Wealth Management Subdivision of the Investment Management Division, are paid entirely by commission. (Taylor Decl., ¶ 9). PWAs have discretion to provide supplemental compensation to members of their team who do not work on commission. (Taylor Decl., ¶ 11).
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them with the managers and attempt to reach consensus, though the business unit manager would make the final determination. (Kung Dep. at 59-62). The business unit leader recommendations are reviewed, in turn, by a compensation committee within the division. (Kung Dep. at 64-67; Heller Dep. at 24; Larson Dep. at 62-63). Finally, each division’s compensation recommendations are forwarded to the firmwide compensation committee. (Kung Dep. at 68-70; Larson Dep. at 63). Because the budget changes over time and because an employee’s performance may fluctuate, there are generally at least two rounds of compensation setting in any annual cycle. (Heller Dep. at 27-32; Larson Dep. at 66-67; Kung Dep. at 111-13, 115).
3. Promotion Promotion from Vice President to Managing Director at Goldman Sachs is accomplished through a process known as “cross-ruffing.” (Kung Dep. at 398; Heller Dep. at 80; Larson Dep. at 227). At the initial step, each business unit head, in consultation with other managers, develops a list of candidates for promotion; there is no application process as such (Larson Dep. at 227; Kung Dep. at 41415, 432-33; Heller Dep. at 203-04), and there are no formal qualifications for promotion other than that, at least in the Securities Division, the candidate generally must have served as a Vice President for a minimum of two years. (Heller Dep. at 205-
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06). The list is then submitted to the division heads and the chief operating officer of the division for review, often with some ranking to indicate which candidates are seen as priorities for promotion. (Kung Dep. at 415-18, Larson Dep. at 227-32; Heller Dep. at 205-08). During this review, additional candidates may be added to the list, some may be deleted, and the priority order may be changed. (Kung Dep at 417-21; Larson Dep. at 232-35). Consideration of candidates who are low on the list may be deferred until the next promotion cycle. (Kung Dep. at 418). The final list is then submitted for the cross-ruffing process.
“Cross-ruffers” are Managing Directors who evaluate the candidates for promotion. A list of proposed cross-ruffers is initially generated by the head of the Human Capital Division within each operating division. (Larson Dep. at 235). After the division heads approve a list of proposed cross-ruffers, it is submitted to the firmwide talent assessment group. (Larson Dep. at 240). The cross-ruffers are then trained in their responsibilities by the talent assessment group and by someone within the relevant operating division, such as the head of Human Capital Management for that division, as well as a cross-ruffing team captain who has previously participated in the process. (Larson Dep. at 241-42; Heller Dep. at 219). Each cross-ruffer is then assigned to a number of candidates outside of his or her own business unit.
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(Larson Dep. at 242-43; Kung Dep. at 439-40). The cross-ruffer interviews approximately a dozen persons familiar with each candidate, such as managers, peers, and internal clients. (Heller Dep. at 218, 224; Larson Dep. at 244; Kung Dep. at 440-42). The cross-ruffers utilize standard templates or questionnaires to frame their inquiries and record their findings. (Larson Dep. at 245; Kung Dep. at 442-43; Heller Dep. at 218-20). Once the interview process is completed, all of the cross-ruffers within a division, together with the cross-ruffing captain and the head of Human Capital Management for the division, develop a rank-ordered list of candidates. (Larson Dep. at 244-45; Heller Dep. at 226; Kung Dep. at 448). That list is then submitted to the firmwide talent assessment group and the division heads. (Larson Dep. at 245-46; Heller Dep. at 226; Kung Dep. II at 448-49). The division heads also submit their own ranking lists to the talent assessment group. (Larson Dep. at 246-47; Heller Dep. at 227, 229-30; Kung Dep. at 449-50, 453). The cross-ruffing captain and the division heads then meet with the subcommittee of the firm’s management committee responsible for promotions in order to explain the rationale for their respective rankings. (Larson Dep. at 247-48; Heller Dep. at 230-31, 241). Ultimately, the division heads submit a final ranked list of candidates for the approval of the firm’s management committee. (Larson Dep. at 248; Heller Dep. at 242; Kung Dep. at
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454). That committee then determines how many candidates from the list will be promoted in any given year. (Larson Dep. at 248-50). Legal Framework
A. Title VII Certain requirements for class certification, including the elements of commonality, typicality, and predominance, can only be assessed in light of the substantive law governing a case. In this instance, the plaintiffs assert claims of both disparate impact and disparate treatment under Title VII. The core provision of Title VII states that: It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Under a disparate impact theory of liability, a plaintiff may prevail by demonstrating that the employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). Thus, Title VII prohibits some employment practices “that are not intended to discriminate but in fact have a disproportionately adverse effect” on a protected class. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). To prove disparate impact discrimination, a plaintiff must
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“(1) ‘identify a specific employment practice’ or policy, Malave v. Potter, 320 F.3d 321, 326 (2d Cir. 2003); ‘(2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two.’ Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001)[, abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, U.S. , 131 S. Ct. 2541 (2011)].” Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 151 (2d Cir. 2012). Disparity and causation are often proven by means of statistical analysis.
The statistics must reveal that the disparity is substantial or significant, and must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity. To rebut a plaintiff’s statistics, a defendant may introduce evidence showing that either no statistical disparity in fact exists or the challenged practice did not cause the disparity. Id. (internal quotation marks and citations omitted). Alternatively, an employer can defeat the plaintiff’s prima facie case by demonstrating that the challenged practice or policy is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e–2(k)(1)(A)(i). Even if the employer demonstrates business necessity, however, “plaintiffs may still succeed if they show that the employer has refused to adopt an available alternative employment practice that would reduce the level of disparate impact while still serving the employer’s
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legitimate needs.” Houser v. Pritzker, 28 F. Supp. 3d 222, 234-35 (S.D.N.Y. 2014) (citing 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (k)(1)(C)).
If the evidence establishes a disparate impact violation of Title VII, an individual seeking relief “need only show that he or she suffered an adverse employment action ‘and therefore was a potential victim of the proved [] discrimination.’” Robinson, 267 F.3d at 159 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362 (1977)). The burden then shifts to the employer to show that there were legitimate reasons for the adverse action. Chin, 685 F.3d at 151. If the employer fails to carry that burden, “the employee is entitled to individualized relief, which may include back pay, front pay, and compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other nonpecuniary losses.” Id. at 151-52 (internal quotation marks and citations omitted) (alteration in original).
In contrast to disparate impact, where the employer’s practice or policy is facially neutral, a disparate treatment claim is based on the allegation that the defendant engaged in intentional discrimination. In order to establish a prima facie case of disparate treatment, a plaintiff must show “‘(1) that he belonged to a protected class; (2) that he was qualified for the position he
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held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.’” Id. at 151 (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)). The burden then shifts to the employer to offer a legitimate, nondiscriminatory basis for the adverse action. Id. Ultimately, the plaintiff must prove that the defendant’s employment decision was based in whole or in part on intentional discrimination. Id.
In a disparate treatment class action (though not in an individual case), the plaintiffs may present evidence based on “pattern-or-practice.” Id. at 148-49. In order to establish a prima facie case using this method, the plaintiffs “need not initially show discrimination against any particular present or prospective employee.” United States v. City of New York, 717 F.3d 72, 84 (2d Cir. 2013). Rather, they “must make a prima facie showing of a pervasive policy of intentional discrimination.” Id. As in a disparate impact case, statistics play an important role in establishing a pattern or practice of disparate treatment, see Hazelwood School District v. United States, 433 U.S. 299, 307-08 (1977) (holding that “gross statistical disparities” may be sufficient for prima facie proof of pattern or practice of discrimination), but “instances of discrimination against particular employees are [also] relevant to show a policy of
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intentional discrimination,” City of New York, 717 F.3d at 84. As in an individual disparate treatment case, if the plaintiff class makes out a prima facie case, the burden then shifts to the employer, but in a pattern or practice case, that burden is to proffer “‘a nondiscriminatory explanation for the apparently discriminatory result.’” Id. (quoting Teamsters, 431 U.S. at 360 n.46). If the defendant comes forward with such an explanation, the burden shifts back to the plaintiffs to prove the ultimate fact at issue: that intentional discrimination was the defendant’s “standard operating procedure.” Teamsters, 431 U.S. at 336; see City of New York, 717 F.3d at 87. The defendant may attempt to counter the plaintiffs’ statistical evidence with its own quantitative analysis or with non-statistical proof such as adherence to an affirmative action program. City of New York, 717 F.3d at 86-87.
If liability is established in a pattern-or-practice case, a presumption arises that “any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.” Teamsters, 431 U.S. at 362; accord City of New York, 717 F.3d at 87-88. Thus, as to any individual class member’s claim for relief, “the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Teamsters,
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431 U.S. at 362. The presumption that any individual employment decision was the result of a pervasive policy of discrimination is thus a rebuttable inference. Dukes, __ U.S. at __, 131 S. Ct. at 2552 n.7.
B. Class Certification In order to be certified, a proposed class must generally meet all of the standards of Rule 23(a) and then satisfy the requirements of one of the three categories in Rule 23(b).
1. Rule 23(a) As set forth in Rule 23(a), the prerequisites for any class action are that: (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. The plaintiffs bear the burden of demonstrating numerosity, but “they need not present a precise calculation of the number of class members, and a court may rely on reasonable inferences from available facts in drawing its conclusion.” Houser, 28 F. Supp. 3d at 241 (internal quotations marks and citation omitted); accord McIntire v. China MediaExpress Holdings, Inc., 38 F. Supp. 3d 415, 423 (S.D.N.Y. 2014). Numerosity is presumed where the proposed class includes more than 40 members. Consolidated Rail Corp. v.
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Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Shepard v. Rhea, No. 12 Civ. 7220, 2014 WL 5801415, at *4 (S.D.N.Y. Nov. 7, 2014).
“[A]n issue is common to the class when it is susceptible to generalized, class-wide proof.” In re Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). Accordingly, a court must determine whether the class members’ claims “will in fact depend on the answers to common questions,” Dukes, __ U.S. at __, 131 S. Ct. at 2554, and whether a class action is likely to “generate common answers apt to drive the resolution of the litigation,” id. at __, 131 S. Ct. at 2551. (internal quotation marks and citation omitted). In the context of employment discrimination, the commonality requirement will be met if the class members’ claims
depend upon a common contention -- for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. at __, 131 S. Ct. at 2551. However, “for purposes of Rule 23(a)(2) even a single common question will do.” Id. at __, 131 S. Ct. at 2556 (internal quotation marks, citation, and alteration omitted). “Typicality requires that the claims or defenses of the class representatives be typical of the claims and defenses of the class
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members. This requirement is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) (internal quotation marks and citation omitted). “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993).
Finally, “adequacy of representation entails inquiry as to whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52, 60 (2d Cir. 2000). Furthermore, the “class representative must . . . possess the same interest and suffer the same injury as the class members.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) (internal quotation marks omitted).
The requirements of commonality, typicality, and adequacy of representation tend to merge with one another and “serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff’s claim and
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the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id. at 626 n.20 (internal quotation marks and citation omitted).
2. Rule 23(b) The plaintiffs here propose certification of an injunctive class pursuant to Rule 23(b)(2) and a damages class under Rule 23(b)(3). A 23(b)(2) class is appropriate where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The fundamental characteristic of a class properly certified under Rule 23(b)(2) is ‘the indivisible nature of the injunctive or declaratory remedy warranted -- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Houser, 28 F. Supp. 3d at 249 (quoting Dukes, __ U.S. at __, 131 S. Ct. at 2557). Civil rights cases alleging class-based discrimination are “prime examples” of the type of case properly certified under Rule 23(b)(2). Amchem, 521 U.S. at 614. Rule 23(b)(3) provides for certification of classes that seek individualized relief such as back pay or compensatory damages.
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Consistent with the potentially greater variability in the interests of members of a 23(b)(3) class, class members must be provided with notice of the pendency of the litigation and an opportunity to exclude themselves from it. Fed. R. Civ. P. 23(c)(2)(B). In addition to satisfying the requirements of Rule 23(a), certification under Rule 23(b)(3) requires that common questions “predominate over any questions affecting only individual members,” and class resolution must be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In assessing the predominance and superiority of class treatment, courts must consider:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3).
3. Rule 23(c)(4) Finally, even where it is inappropriate to certify a class exclusively under Rule 23(b)(2) or 23(b)(3), a court may certify a class for particular issues under Rule 23(c)(4). Nassau County
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Strip Search Cases, 461 F.3d at 221. This frequently entails creating a “hybrid” class, certifying claims for declaratory and injunctive relief under Rule 23(b)(2) and damages claims under Rule 23(b)(3). See Robinson, 267 F.3d at 162 n.7; Gulino v. Board of Education, 907 F. Supp. 2d 492, 505-06 (S.D.N.Y. 2012); Jones v. Ford Motor Credit Co., No. 00 Civ. 8330, 2005 WL 743213, at *19-20 (S.D.N.Y. March 31, 2005).
4. Burden of Proof “[P]laintiffs wishing to proceed through a class action must actually prove -- not simply plead -- that their proposed class satisfies each requirement of Rule 23.” Halliburton Co. v. Erica P. John Fund, Inc., __ U.S. __, __, 134 S. Ct. 2398, 2412 (2014) (emphasis in original). Accordingly, a court must engage in a “rigorous analysis” to ascertain whether the prerequisites for certification have been met, and that analysis “will entail some overlap with the merits of the plaintiff’s underlying claim.” Dukes, __ U.S. at __, 131 S. Ct. at 2551. Discussion A. Rule 23(a)
1. Numerosity The plaintiffs calculate that there are approximately 1,762 members of the putative class (Expert Report of Henry S. Farber In Connection with Chen-Oster v. Goldman Sachs dated Feb. 17, 2014
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(“Farber Report”), attached as Exh. 8 to Declaration of Barbara B. Brown dated June 13, 2014 (“Brown Decl.”), Table 1), a number that Goldman Sachs does not dispute. Joinder of all class members would plainly be impracticable, and the numerosity requirement of Rule 23(a)(1) is therefore met.
2. Commonality a. Disparate Impact
“[E]ven a single common question will do” to satisfy the commonality requirement of Rule 23(a)(2). Dukes, __ U.S. at __, 131 U.S. at 2556 (internal quotation marks, citation, and alterations omitted). Here, there is such a question: whether the evaluation processes utilized by Goldman Sachs -- 360 review and quartiling -- have a discriminatory impact on women.
The Supreme Court’s discussion in Dukes of its earlier decision in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982), is particularly instructive:
This Court’s opinion in Falcon describes how the commonality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class comprising all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U.S. at 152. We rejected that composite class for lack of commonality and typicality, explaining:
Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported
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allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims. Id. at 157–158.
Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id. at 159 n. 15. Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid.
Dukes, __ U.S. at __, 131 S. Ct. at 2552-53.
In Dukes, the Court also observed that
in resolving an individual’s Title VII claim, the crux of the inquiry is the reason for a particular employment decision. Here [the plaintiffs] wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
Id. at __, 131 S. Ct. at 2552 (internal quotation marks and
citation omitted). In this case, the 360 review and quartiling
procedures provide the “glue” that was absent in Dukes and link
together the otherwise disparate decisions with respect to
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compensation and promotion at Goldman Sachs. There is no dispute that each of the class members was subject to these processes. Rather, Goldman Sachs contends that there is no link between these evaluation devices and any common injury to the class members, as illustrated by the fact that, in many business units, women received increased compensation or promotions at a higher rate than men. (Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (“Def. Memo.”) at 32; Expert Report of Michael P. Ward, Ph.D. in the Matter of Chen-Oster et al. vs. Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. dated July 3, 2014 (“Ward Report”) at 2, 5, 6 & App. A).
In a disparate impact case, however, it is not the plaintiffs’ obligation to show that every class member suffered an identical injury as the result of a policy with a discriminatory impact. To be sure, in some instances that will be the case. For example, if a test that is biased against African-Americans, say, is used as a filter such that no one who receives less than a particular score is promoted, then the class of African-Americans who failed the test will all have been injured in the same manner and will present a common question appropriate for class treatment. See, e.g., Gulino v. New York State Education Department, 460 F.3d 361, 369 (2d Cir. 2006) (challenging test required for teaching certification).
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Yet class treatment is no less appropriate where the same test is used not as an absolute screen, but as merely one factor in determining which employees receive a benefit. See Waisome v. Port Authority of New York and New Jersey, 948 F.2d 1370, 1377-78 (2d Cir. 1991) (finding potential disparate impact claim where “candidates’s scores on the [allegedly biased] test were factored into the composite scores that were then used to compute a candidate’s rank on the [e]ligibility [l]ist”); cf. McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488-89 (7th Cir. 2012) (approving class certification for disparate impact claims where plaintiffs challenged employer’s teaming and account distribution policies, even though managers maintained “a measure of discretion” regarding implementation of policies). Of course, the manifestations of the test’s bias may not be as obvious in this circumstance because some supervisors may give little or no weight to the biased scores while others rely heavily on them. As a result, some employees who do poorly on the test may get promoted while others who do well may not. But that does not undermine the fact that the alleged bias of the test is a common issue, nor does it call into question the appropriateness of enjoining use of the test if disparate impact is proven.
Here, the plaintiffs have demonstrated that the 360 review and quartiling programs are used across the putative class. Their
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statistical expert, Dr. Henry S. Farber, has presented evidence that gender bias causes women to score less well than men in both types of evaluations. Dr. Farber utilized multiple regression and probit analyses, and his models controlled for such factors as division, education, experience at Goldman Sachs, experience prior to joining the firm, job grouping, and whether the individual was hired laterally. (Farber Report, ¶¶ 53, 63, 68, 84). Dr. Farber found that women Associates and Vice Presidents were scored significantly lower than otherwise similar men on the 360 review. (Farber Report, ¶¶ 69-70 & Tables 14, 15). Similarly, he found that female Associates and female Vice Presidents were, respectively, 7.1 percentage points and 4.5 percentage points less likely than their male counterparts to be placed in the top quartile. (Farber Report, ¶¶ 63-65 & Tables 10, 11).
Dr. Farber conducted similar analyses of earnings and promotion. Again, he controlled for a range of factors. He did not, however, initially use the “performance” measures -- the 360 review scores and the quartile rankings -- as predictive variables, because he considered them potentially “tainted.” (Farber Report, ¶ 49; Expert Rebuttal Report of Henry S. Farber dated July 29, 2014 (“Farber Rebuttal Report”), ¶ 28). In other words, he believed that since the results of 360 reviews and quartiling may themselves be affected by gender bias, those results should not be used as
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explanatory variables in a model designed to measure the impact of discrimination. (Farber Rebuttal Report, ¶ 28). Dr. Farber calculated that, taking account of the other factors he considered, female Associates earn 7.6% less than their male counterparts, while female Vice Presidents earn 21.4% less than comparable males, with both differences being statistically significant. (Farber Report ¶¶ 55-56 & Tables 6, 7). Similarly, he found that while the expected rate of promotion from Vice President to Managing Partner was 5.12% for women, the actual rate was 3.96%, resulting in a shortfall of 19 promotions for women, compared to what would be expected if women were promoted according to the same model as men; again this was a statistically significant difference. (Farber Report, ¶ 89 & Table 20).
In response to the concern that he improperly omitted performance measures from his model, Dr. Farber performed alternative calculations in which, notwithstanding his misgivings, he included 360 review scores and quartiling results among his predictive variables. (Farber Report, ¶¶ 73-75; Farber Rebuttal Report, ¶ 29). His sample was somewhat more restricted than in his initial model because complete performance data was not available for all employees. (Farber Report, ¶¶ 71-72, 74, 76). Dr. Farber found that, after including both performance measures, female Associates earn 3.3% less than their male counterparts, while
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female Vice Presidents earn 16.9% less than comparable males. (Farber Report ¶¶ 77, 79 & Tables 16, 17). While these differentials are less than those in the model omitting performance variables, they remain statistically significant. (Farber Report, ¶¶ 77, 79; Farber Rebuttal Report, ¶ 29).
Goldman Sachs maintains that Dr. Farber’s analysis is flawed because it aggregates data for employees from many different business units within the firm. The defendants’ statistical expert observed that “Dr. Farber’s regression models combine large numbers of very dissimilar employees: employees hired laterally and those promoted internally into their positions; those who work in different Divisions; and those who serve in different functions.” (Ward Report at 9). The validity of this criticism depends upon the question the model purports to answer. See Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 523 (N.D. Cal. 2012) (crediting model that did not break data down by region because “unlike in Dukes, here Plaintiffs’ statistical analysis conforms to the level of decision for the challenged practices, including the adoption of the many companywide policies”). In that respect, it is perfectly appropriate for the model to include data across business units when it is being used to explore the impact of a firm-wide policy such as 360 review or quartiling.
The plaintiffs have thus met their burden of demonstrating the
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existence of common issues of law and fact. b. Disparate Treatment
Determination of the appropriateness of class certification is necessarily claim-specific. See Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir. 2000) (“Certification on a claim-by-claim, rather than holistic, basis is necessary to preserve the efficiencies of the class action device without sacrificing the procedural protections it affords to unnamed class members.”); Karhu v. Vital Pharmaceuticals, Inc., No. 13-60768-CIV, 2014 WL 815253, at *6 (S.D. Fla. March 3, 2014) (assessing predominance on claim-by-claim basis); Ellis, 285 F.R.D. at 510 (analyzing commonality separately for disparate impact and disparate treatment claims). Thus, while the commonality requirement is satisfied with respect to the plaintiffs’ disparate impact claim, their disparate treatment claims must be separately assessed.
One of those claims flows directly from the disparate impact analysis. The plaintiffs contend that Goldman Sachs is aware of the discriminatory impact of the 360 review and quartiling processes, but nevertheless directs its managers to continue to rely on these instruments in making compensation and promotion decisions. (Pl. Memo. at 5). According to the plaintiffs, this is intentional disparate treatment. The issues underlying this claim therefore include those common to the class in the disparate impact
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discussion, and thus satisfy the commonality requirement. The plaintiffs also advance a disparate treatment claim that
is not as directly related to Goldman Sachs’ performance measures. They contend that Goldman Sachs maintains a “boys’ club” atmosphere, characterized by such things as a focus on sports and drinking. (Pl. Memo. at 20-22). Further, the plaintiffs argue that Goldman Sachs condones the sexualization of women at the firm (Pl. Memo. at 22-25) and retaliates against women who complain of harassment or discrimination (Pl. Memo. at 32-34). With respect to each of these assertions, the plaintiffs have proffered substantial evidence. Of course, in any large organization, there will be some, perhaps many, instances of discriminatory conduct, whether by supervisors or by co-workers, and Goldman Sachs has presented evidence that it takes steps to counteract instances of gender bias. But this is not the stage at which to decide whether there is in fact a pattern of pervasive discrimination at Goldman Sachs. It is enough for purposes of assessing commonality that the plaintiffs have submitted significant evidence in support of their claims.
3. Typicality The named plaintiffs, Ms. Chen-Oster and Ms. Orlich, were evaluated pursuant to the 360 review and quartiling procedures. Nevertheless, Goldman Sachs maintains that Ms. Orlich is not
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typical of other class members because, as a junior Associate, she “was paid in lockstep with others of her tenure” and was not yet eligible to be considered for promotion. (Def. Memo. at 63-64). Similarly, Goldman Sachs contends that Ms. Chen-Oster cannot represent the class because she asserts a unique retaliation claim. (Def. Memo. at 64). These arguments are not persuasive.
“‘Since the claims only need to share the same essential characteristics, and need not be identical, the typicality requirement is not highly demanding.’” In re Platinum and Palladium Commodities Litigation, No. 10 Civ. 3617, 2014 WL 3500655, at *9 (S.D.N.Y. July 15, 2014) (quoting Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 155 (S.D.N.Y. 2002)). Thus, “[w]hen it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux, 987 F.2d at 936–37. Here, the fact that Ms. Orlich may not have been injured to the same extent as some other class members does not diminish her ability to serve as class representative; she was evaluated by the same challenged processes as all class members, and, at a minimum, her annual bonus was set as a result of those processes. Nor does Ms. Chen-Oster’s retaliation claim render her atypical of the class. See Spencer v.
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No Parking Today, Inc., No. 12 Civ. 6323, 2013 WL 1040052, at *19 (S.D.N.Y. March 15, 2013). Accordingly, the typicality requirement is satisfied.
4. Adequacy Goldman Sachs does not challenge the ability of plaintiffs’ counsel to represent the class adequately. It does, however, contend that Ms. Chen-Oster is not an adequate class representative because her deposition testimony is “in direct conflict with the claims that she seeks to litigate on behalf of the class.” (Def. Memo. at 64). In particular, she testified that she believed that Goldman Sachs’ processes are characterized by unbridled management discretion (Chen-Oster Dep. at 436-37, 556-57), while the plaintiffs assert in their papers that discretion is constrained in ways that promote discrimination. This discrepancy is a matter of semantic shading and, in any event, there will be ample evidence from a host of sources concerning the extent of manager discretion. The plaintiffs, then, meet all of the requirements of Rule 23(a). B. Rule 23(b)(2) In a prior determination in this case, the Honorable Leonard B. Sand, U.S.D.J., determined that, because the named plaintiffs are not currently employed by Goldman Sachs, “Dukes forecloses certification under 23(b)(2),” despite the plaintiffs’ claim for
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reinstatement. Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 121 (S.D.N.Y. 2012). Judge Sand indicated that he was obligated to follow the rule that he understood to have been announced in Dukes, “notwithstanding misgivings about its wisdom,” which he discussed at length. Id. at 121-22. The plaintiffs now ask that Judge Sand’s determination be revisited on the basis of three subsequent decisions in this district that interpreted Dukes more narrowly and reached a conclusion different from Judge Sand’s. (Pl. Memo. at 43-44). Those decisions are Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 467-68 (S.D.N.Y. 2013), Robinson v. Blank, No. 11 Civ. 2480, 2013 WL 2156040, at 12 & n.3 (S.D.N.Y. Feb. 22, 2013) (incorporating and adopting report and recommendation), and Kubicek v. Westchester County, No. 08 Civ. 372, 2013 WL 5423961, at *8 (S.D.N.Y. Sept. 27, 2013) (dicta, citing Kassman).
Not surprisingly, if I were considering this issue for the first time, I would adopt the plaintiffs’ interpretation of Dukes as I did in the report and recommendation that Judge Sand reviewed. And, consequently, I would recommend certifying a class under Rule 23(b)(2) since, were the plaintiffs to prevail on the disparate impact claim, they would be entitled to an order enjoining Goldman Sachs’ use of the 360 review and quartiling processes. But I am not writing on a clean slate; Judge Sand’s determination is entitled to deference as law of the case.
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The law of the case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). “Application of the doctrine is ‘discretionary and does not limit a court's power to reconsider its own decisions prior to final judgment.’” U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811, 13 Civ. 1580, 2014 WL 998358, at *3 (S.D.N.Y. March 14, 2014) (quoting DiLaura v. Power Authority of New York, 982 F.2d 73, 76 (2d Cir. 1992)). At the same time, while “[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, [] as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’” Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona, 460 U.S. at 618 n.8).
There are no such extraordinary circumstances here. The plaintiffs argued to Judge Sand that Dukes does not foreclose injunctive relief for plaintiffs who are seeking reinstatement. He rejected that argument. The fact that subsequent decisions by parallel courts have accepted it is not a sufficient basis for overriding the law of the case. If it were, the law of the case doctrine would have little meaning in an unsettled area of law such
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as this, since each new district court decision would prompt an
application to revisit the issue in each case where it had
previously been decided differently. Furthermore, in the context
of class certification, the law of the case doctrine can be
enforced with less fear of causing injustice, since an erroneous
certification determination by the district court can be promptly
corrected by the Court of Appeals on interlocutory appeal. See
Fed. R. Civ. P. 23(f).
Therefore, the proposed class should not be certified pursuant
to Rule 23(b)(2).
C. Rule 23(b)(3)
The Second Circuit recently expounded on the requirement of
predominance that must be met in order to certify a class under
Rule 23(b)(3):
With respect to common issues, Rule 23(b)(3), by its plain terms, imposes a “far more demanding” inquiry into the common issues which serve as the basis for class certification. [Amchem, 521 U.S.] at 623-24. While the inquiry may be more demanding, the Supreme Court has also instructed that Rule 23(b)(3) “does not require a plaintiff seeking class certification to prove that each elemen[t] of [her] claim [is] susceptible to classwide proof.” Amgen Inc. v. Conn. Ret. Plans and Trust Funds, __ U.S. __, __, 133 S. Ct. 1184, 1196 (2013) (internal quotation marks omitted) (alterations in original). Rather, all that is required is that a class plaintiff show that “common questions ‘predominate.’” Id. (quoting Fed. R. Civ. P. 23(b)(3)). That is, “[i]ndividual questions need not be absent. The text of Rule 23(b)(3) itself contemplates that such individual questions will be present. The rule requires only that those questions
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not predominate over the common questions affecting the class as a whole.” Messner v. Northshore Uni. HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012). Sykes v. Mel S. Harris and Associates LLC, __ F.3d __, __, 2015 WL 525904, at *8 (2d Cir. 2015) (some alterations in original). Here, Goldman Sachs contends that this standard cannot be met because both causation and damages require highly individualized determinations. (Def. Memo. at 66-70). In another case decided the same day as Sykes, the Second Circuit considered “the question of whether the Supreme Court’s decision in Comcast Corp. v. Behrend, __ U.S. __, 133 S. Ct. 1426 (2013), overruled the law of this Circuit that class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be denied merely because damages have to be ascertained on an individual basis.” Roach v. T.L. Cannon Corp., __ F.3d __, __, 2015 WL 528125, at *1 (2d Cir. 2015). The court held that Second Circuit precedent remained viable. It reiterated the general principle that “[p]redominance is satisfied ‘if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.’” Id. at *3 (quoting In re Foodservice Inc. Pricing Litigation, 729 F.3d 108, 118 (2d Cir. 2013)). It went on to conclude as follows:
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To be sure, Comcast reiterated that damages questions should be considered at the certification stage when weighing predominance issues, but this requirement is entirely consistent with our prior holding that “the fact that damages may have to be ascertained on an individual basis is . . . a factor that we must consider in deciding whether issues susceptible to generalized proof ‘outweigh’ individual issues.” McLaughlin [v. American Tobacco Co.], 522 F.3d [215, 231 (2d Cir. 2008), partially abrogated on other grounds by Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008)]. The Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations.
Id. at *6. Thus, while the prospect of calculating individual
damages in the instant case is daunting, it does not, by itself,
necessarily preclude class certification.
More troublesome is the issue of causation. Because the
plaintiffs’ strongest argument for predominance arises from their
disparate impact claim, I will focus on that cause of action.
While proof that the 360 review or quartiling processes have a
disparate impact would create a presumptive causal link between
those processes and an individual class member’s injury, Goldman
Sachs would retain the right to demonstrate that there were other,
legitimate explanations for any shortfall in compensation or
failure to be promoted. See Chin, 685 F.3d at 151. At that point,
evidence of the individualized factors that inform Goldman Sachs’
compensation and promotion decisions -- the class member’s
particular skills, the nature of the work in her business unit, the
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unit’s profitability relative to other units, and, indeed, the extent to which the employee’s manager considered 360 review and quartiling evaluations -- would effectively swamp the common question of whether the evaluative policies have, on average a discriminatory impact.
This distinction between the common and the individualized issues is reflected in the statistical analyses. Dr. Farber’s regression model provides substantial evidence that 360 review and quartiling have a disparate impact. His model does not demonstrate what impact those processes may have had on any individual decision regarding compensation or promotion. Dr. Ward’s analysis, by contrast, tells us less about the overall impact of the policies, but it suggests that, in many business units, any causal relationship between those policies and apparent gender discrepancies is a complex issue, subject to individualized proof. For example, in his analysis of Vice Presidents in thirty business units within the Securities Division, Dr. Ward found that in fifteen of the units, women were better compensated than men, controlling for other relevant factors, and that this was statistically significant for four of the units. (Ward Report at 55-57 & Figure 8). In the other fifteen units, women were less well compensated than similarly situated men, and this was statistically significant for four of the units. (Ward Report at
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55-57 & Figure 8). This variability does not mean that there was no discrimination, and, indeed, dividing the data into many small samples may mask biased decision making, but Dr. Ward’s analysis does show that demonstrating causation in any individual instance would require highly specific proof. Take a hypothetical business unit with four Vice Presidents, all women, who, according to the plaintiffs’ statistical analysis, are each paid less than similarly situated male Vice Presidents. This could reflect their manager’s adherence to discriminatory performance measures. But quite plausibly, the budget for this business unit might simply be constrained as a result of the unit’s poor financial performance in the prior year; the women would appear to be victims of discrimination even in the absence of any biased decision making. Without specific information about the manager and the business unit, it could not be determined whether the apparent genderrelated disparity in compensation was caused by bias in the 360 review or quartiling processes or by some other factor.
In this respect, this case is distinguishable from Sykes. Although the defendants there also argued that causation is necessarily an individualized determination, the court found otherwise. While the plaintiffs contended that the defendants had violated their rights under the Fair Debt Collection Practices Act (the “FDCPA”), the defendants maintained that they should be able
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to demonstrate that any given plaintiff actually owed a valid debt. Sykes, __ F.3d at __, 2015 WL 525904, at *18. Yet, the FDCPA claims were based on the defendants’ submissions of false affidavits of merit, which “were allegedly fraudulent in attesting to ‘personal knowledge’ of the existence of [the] underlying debt, and were also necessary to obtaining the default judgments that plaintiffs allege were fraudulently obtained.” Id. In this context, the court concluded, “We fail to recognize any individualized causation issues with respect to plaintiffs’ claims under the FDCPA.” Id. The plaintiffs also brought claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) on the basis that the defendants had obtained default judgements through “sewer service,” that is, false representations that the debtor had been served with the summons and complaint. Id. at *3. On this issue, the court acknowledged that there might be an individual causation issue “if a debt was actually owed, and a default judgment was achieved by means of proper service,” but the court nevertheless concluded that this “remains a single arguably individual issue among [] myriad common issues.” Id. at *18. Here, there is a different balance. While the validity or bias of Goldman Sachs’ performance measures is a common issue, there are countless individualized factors that influence whether those performance measures cause legally cognizable injury. The common
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issues therefore are not predominant,8 as is required for certification under Rule 23(b)(3).9
D. Rule 23(c)(4) Even where the predominance requirement is not met, a court may certify a class with respect to common issues that do exist. See McLaughlin, 522 F.3d at 234 (2d Cir. 2008); Nassau County Strip Search Cases, 461 F.3d at 226-27. However, in that circumstance, the possibility of certification should be weighed with an eye toward the end game. For example, in McReynolds, the court endorsed certification for purposes of determining liability for purportedly discriminatory firm-wide employment policies where a determination in favor of the plaintiffs could lead to injunctive relief. 672 F.3d at 490-92. But, for the reasons discussed above, no such relief is available here. In contrast to McReynolds, then, this is a case where the inability to obtain injunctive relief, together with highly individualized causation and damages issues, preclude certification under Rule 23(c)(4).
8 Accordingly, there is no need to address whether, if the predominance requirement were met, a class action would be superior to other alternatives.
9 Common issues are even less likely to predominate with respect to the plaintiffs’ disparate treatment claims based on Goldman Sachs’ corporate culture, and I will therefore not discuss those claims separately.
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Conclusion This is a close case. But for the fact that the law of the
case doctrine dissuades me from revisiting the appropriateness of injunctive relief, I would recommend that the plaintiff class be certified pursuant to Rules 23 (b) (2) and 23 (c) (4) in order to obtain a final determination as to the allegedly discriminatory impact of Goldman Sachs' employee evaluation processes. But, because such relief has been held to be unavailable, I recommend that the plaintiffs' motion for class certification (Docket no. 246) be denied. Pursuant to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file writ ten objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Analisa Torres, Room 2210, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
~·~~JY-
s C. FRANCIS IV
ED STATES MAGISTRATE JUDGE
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Dated:

New York, New York March 10, 2015

Copies mailed this date to:

Adam T. Klein, Esq. Cara E. Greene, Esq. Justin M. Swartz, Esq. Melissa L. Stewart, Esq. Outten & Golden, LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016

Alison M. Stocking, Esq. Anne B. Shaver, Esq. Heather H. Wong, Esq. Kelly Dermody, Esq. Lisa J. Cisneros, Esq. Lief f Cabraser Heimann & Bernstein, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339

Theodore 0. Rogers, Jr., Esq. Margaret E. Bartlett, Esq. Michael P. Reis, Esq. Suhana S. Han, Esq. Robin D. Fessel, Esq. Sullivan and Cromwell, LLP 125 Broad Street New York, NY 10004

Barbara B. Brown, Esq. Neal D. Mallen, Esq. Paul Hastings LLP 875 15th Street N.W. Washington, DC 20005

C. Geoffrey Weirich, Esq. Paul Hastings LLP 1170 Peachtree Street, NE Suite 2400 Atlanta, GA 30308

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 Case 1:10-cv-06950-AT-JCF Document 411 Filed 08/03/15 Page 1 of 45

OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005
OUTTEN & GOLDEN LLP Paul W. Mollica 161 North Clark St., Suite 4700 Chicago, Illinois 60601 Telephone: (312) 809-7010 Facsimile: (312) 809-7011

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

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK _______________________________________________

H. CRISTINA CHEN-OSTER; SHANNA ORLICH; ALLISON GAMBA; and MARY DE LUIS,

Plaintiffs,

No. 10 Civ. 6950 (AT) (JCF)

- against -
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

SECOND AMENDED CLASS ACTION COMPLAINT (Trial by Jury Demanded)

Defendants. ________________________________________________

Individual and Representative Plaintiffs H. Cristina Chen-Oster, Shanna Orlich, Allison

Gamba, and Mary De Luis (collectively “Plaintiffs”), on behalf of themselves and all others

similarly situated, allege, upon personal knowledge as to themselves and upon information and

belief as to other matters, as follows:

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NATURE OF THE CLAIM 1. This is a class action brought by female professionals of Defendant Goldman, Sachs & Co. (“GS”) and Defendant The Goldman Sachs Group, Inc. (“GS Group”) (collectively, “Goldman Sachs”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); and the New York City Human Rights Law, Administrative Code of the City of New York § 8-107 et seq. (“NYCHRL”). 2. Goldman Sachs is a global investment banking, securities and investment management firm. The firm is famously secretive. Until its IPO and conversion to a corporation in 1999, the firm operated as a partnership with relatively little public oversight and regulation. Its culture has been described as insular, and its employees intensely loyal. The firm is also famously profitable. In 2009, Goldman Sachs generated $45 billion in net revenues and $13 billion in net earnings. Goldman Sachs credits its employees as “a major strength and principal reason” for its success on Wall Street. And it pays them accordingly—in 2009, it spent $16 billion on employee compensation and benefits alone. 3. Goldman Sachs has distributed the benefits of its enormous success unequally – systematically favoring male professionals at the expense of their female counterparts. At nearly all levels of its management ranks, it has paid its female professionals less than similarly situated male professionals, even though they hold equivalent positions and perform the same or substantially similar work with similar or in some cases superior results. 4. Goldman maintains policies and practices for promoting its employees that result in the disproportionate promotion of men over equally or more qualified women. As a result, female professionals have been systematically circumvented and excluded from promotion opportunities that are routinely afforded to their male counterparts.
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5. The resulting underrepresentation of women in Goldman Sachs’s management ranks is stark. The number of women in management positions at Goldman Sachs dwindles as the level of management rises—from Associates, to Vice Presidents, to Managing Directors, to Partners, and finally to the firm’s management committee and executive officers. According to figures released by Goldman Sachs in 2009, women made up only 29% of the firm’s Vice Presidents and 17% of Managing Directors. According to 2008 figures, women were only 14% of its Partners. Today, only 4 members of its 30-person management committee (roughly 13%) are women. Of its nine executive officers, only a single one is female; she co-heads the Legal Department with the firm’s other General Counsel, a man.
6. Women at Goldman Sachs have received less compensation and have been promoted less frequently than their male counterparts as a result of the firm’s discriminatory policies, patterns, and/or practices. The violations of its female employees’ rights are systemic, are based upon company-wide policies and practices, and are the result of unchecked gender bias that pervades Goldman Sachs’s corporate culture. They have not been isolated or exceptional incidents, but rather the regular and predictable result of Goldman Sachs’s company-wide policies and practices and lack of proper accountability measures to ensure fairness.
7. Goldman Sachs’s employment practices have a disparate impact on women. Specifically, the dual-track performance review process results in disproportionately higher rankings for male professional employees than their female comparators. In addition, Goldman Sachs’s uniform, secretive procedure for determining employees’ compensation has a disparate impact on female professional employees. There are no published criteria for determining compensation, and compensation is not determined by any objective measure of performance, such as an employee’s profits and losses or performance evaluation score. The compensation
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procedure results in a disproportionately low compensation rate for women compared with similarly situated males.
8. Furthermore, these policies, patterns, and/or practices are no accident. Rather, they are part and parcel of an outdated corporate culture. Goldman Sachs has intentionally implemented these company-wide policies and practices in order to pay their male employees more money than their female counterparts, and to promote them more frequently.
9. These company-wide policies and practices, while facially neutral, have had an adverse impact on the compensation, promotion, and performance evaluations of female employees as compared to their male counterparts. Moreover, because other terms and conditions of employment, such as business opportunities and professional support, are determined by an employee’s quartile ranking, Goldman Sachs’s discriminatory practices adversely affect women in these arenas as well.
10. Accordingly, in addition to bringing this action on their own behalf, Plaintiffs also bring this action on behalf of a class of similarly situated current and former female Associates and Vice Presidents employed by Goldman Sachs in revenue-generating divisions1 (“the Class”), in order to end Goldman Sachs’s discriminatory policies and/or practices and to make the Class whole.
PARTIES Plaintiffs
H. Cristina Chen-Oster 11. Plaintiff H. Cristina Chen-Oster (“Chen-Oster”) is a woman who lives in Monmouth County, in the State of New Jersey. She is a citizen of the United States.
1 Revenue-generating divisions at Goldman Sachs include Investment Banking, Investment Management, Securities, and Merchant Banking/Private Equity.
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12. Chen-Oster was employed by Goldman Sachs from approximately March 1997 to March 2005 in New York, New York.
Shanna Orlich 13. Plaintiff Shanna Orlich (“Orlich”) is a woman who lives in Hudson County, in the State of New Jersey. She is a citizen of the United States. 14. Orlich was employed by Goldman Sachs during the summer of 2006 and from approximately July 2007 to November 2008 in New York, New York. Allison Gamba 15. Plaintiff Allison Gamba (“Gamba”) is a woman who lives in Nassau County, in the State of New York. She is a citizen of the United States. 16. Gamba was employed by Goldman Sachs in New York, New York from approximately 2001 to August 2014, when Goldman Sachs divested itself of the department in which she worked. Mary De Luis 17. Plaintiff Mary De Luis (“De Luis”) is a woman who lives in Dallas County, in the State of Texas. She is a citizen of the United States. 18. De Luis has been employed by Goldman Sachs since June 2010, first in Miami, Florida and then in Dallas, Texas. She also travels to and works out of Goldman Sachs’s New York, New York office. Defendants Goldman, Sachs & Co. 19. Upon information and belief, Defendant Goldman, Sachs & Co. (“GS”) is a limited partnership formed under the laws of the State of New York with a place of business within the City and County of New York at 200 West Street, New York, New York 10282.
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20. Upon information and belief, Defendant GS maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
21. During all relevant times, Defendant GS was Plaintiffs’ employer within the meaning of all applicable statutes.
22. On information and belief, at all times pertinent hereto, Defendant GS has employed more than five hundred people. GS is a wholly owned subsidiary of The Goldman Sachs Group, Inc.
The Goldman Sachs Group, Inc. 23. Upon information and belief, Defendant The Goldman Sachs Group, Inc. (“GS Group”) is a Delaware corporation doing business within New York County in the State of New York and maintains corporate headquarters within the City and County of New York at 200 West Street, New York, New York 10282. 24. Upon information and belief, Defendant GS Group maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 25. During all relevant times, Defendant GS Group was Plaintiffs’ employer within the meaning of all applicable statutes. 26. On information and belief, at all times pertinent hereto, Defendant GS Group has employed more than five hundred people.
JURISDICTION AND VENUE 27. This Court has original subject matter jurisdiction over the Title VII claims pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 2000e–5(f)(3), because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights. 28. This Court has original jurisdiction over the NYCHRL claims in this action under the Class Action Fairness Act, 28 U.S.C. § 1332(d). This is a putative class action in which: (1)
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there are 100 or more members in the Class; (2) at least some members of the proposed class have a different citizenship from at least one Defendant; and (3) the claims of the proposed class members exceed $5,000,000.00 in the aggregate.
29. In addition, this Court has supplemental jurisdiction over the NYCHRL claims under 28 U.S.C. § 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution.
30. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Defendants conduct business and can be found in this district and a substantial part of the events and omissions giving rise to the claims alleged herein occurred in this district, and because the alleged unlawful employment practice was committed here, and employment records relevant to that practice are maintained and administered here.
31. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII claims. Chen-Oster filed a charge of gender discrimination and retaliation individually and on behalf of all similarly situated women employed by Goldman Sachs with the Equal Employment Opportunity Commission (“EEOC”) on or about July 7, 2005. Pursuant to the EEOC’s worksharing agreement with the New York City Commission on Human Rights (“NYCCHR”), her charge is considered dually filed with the NYCCHR. By notice dated June 15, 2010, the EEOC dismissed Chen-Oster’s case and issued a Notice of Right to Sue.
32. On or about January 12, 2010, Orlich filed a charge of gender discrimination and retaliation with the EEOC individually and on behalf of all others similarly situated. Pursuant to
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the EEOC’s worksharing agreement with the NYCCHR, her charge is considered dually filed with the NYCCHR.
33. Where applicable, under the Second Circuit’s application of the single-filing rule, Gamba is not required to have filed a charge of gender discrimination and retaliation with the EEOC, but instead may piggy-back off the previous filings of Chen-Oster and Orlich, because those charges relate to the same claims that Gamba asserts.
34. Where applicable, under the Second Circuit’s application of the single-filing rule, De Luis is not required to have filed a charge of gender discrimination and retaliation with the EEOC, but instead may piggy-back off the previous filings of Chen-Oster and Orlich, because those charges relate to the same claims that De Luis asserts.
35. Contemporaneously with the filing of this Complaint, Plaintiffs have mailed a copy to the New York City Commission of Human Rights and the Office of the Corporation Counsel of the City of New York, thereby satisfying the notice requirements of § 8-502 of the New York City Administrative Code.
36. Any and all other prerequisites to the filing of this suit have been met. FACTUAL ALLEGATIONS
37. Goldman Sachs maintains uniform employment, compensation, performance review, and promotion policies throughout the United States. Likewise, it cultivates and promotes a common corporate culture. Indeed, Goldman Sachs prides itself on “instilling the Goldman Sachs culture” in all of its employees through initiation programs, training, seminars, and Goldman Sachs’s “360-degree” performance review process.
38. Goldman Sachs’s offices throughout the country use a common organizational structure, organizing finance professionals as follows. Entry-level employees, typically straight out of college, hold the position of Analyst. Analysts can be promoted to Associate, which
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typically includes employees with two to five years of relevant experience and/or an MBA degree. The next position to which Associates can be promoted is Vice President. Above Vice Presidents are Managing Directors, and above Managing Directors are Partners. Finally, at the top of Goldman’s management hierarchy sits a 30-person management committee, which includes its nine executive officers.
39. At the Associate andVice President levels, Goldman Sachs discriminates against women in (1) performance evaluations; (2) compensation; (3) promotions; (4) business opportunities; and (5) professional support, including but not limited to administrative support, training, and mentoring. Performance Evaluations
40. Goldman Sachs employs uniform procedures for evaluating employee performance that systematically underrate female professionals relative to their similarly situated male peers.
41. Upon information and belief, Goldman Sachs uses a “360-degree” employee review process, by which an employee’s supervisors, co-workers, and subordinates review the employee’s performance for the year. Reviewers give the employee a numerical rating on a scale of 1 to 5, with 1 being the lowest score, and 5 being the highest. Reviewers also write comments about the employee’s performance.
42. After the 360-degree review process is complete, Goldman Sachs uses a computer algorithm to adjust for the leniency and harshness of reviewers. This adjustment produces the employee’s “adjusted score,” which supposedly determines the employee’s quartile ranking.
43. Goldman Sachs managers are able to unduly influence the 360-degree evaluation process by requesting or requiring which superior, co-workers, and subordinates will evaluate an employee. Managers have the ability to add or remove a reviewer at their election.
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44. More significantly, even though the adjusted performance scores supposedly reflect performance, Goldman Sachs requires its managers to place employees into quartiles that are forced ranked (i.e., managers must assign an equal number of people to each quartile), largely untethered to the performance score. In this process, a manager can move an employee to a higher or lower quartile, without regard to the absolute values of the performance evaluations or to the initial quartile ranking the employee earned in the public 360-degree review. There are a limited number of slots in the top quartile, and these spots most often go to male employees. It is these unvalidated quartile rankings that determine employees’ compensation, eligibility for transfer and promotion, business opportunities, and professional support.
45. Together, Goldman Sachs’s dual-track performance evaluation procedures systematically underrate female employees relative to male employees – that is, women, on average, receive lower 360-degree review scores, more negative reviews, and lower quartile rankings than men in similar positions who have delivered similar or worse objective performance. Compensation
46. Because female professionals at Goldman Sachs systematically receive worse performance reviews and rankings, they have fewer opportunities to earn similar levels of compensation than their male peers. Accordingly, female Associates and Vice Presidents earn less, on average, than their similarly situated male peers.
47. Goldman Sachs employs uniform, unvalidated procedures for determining employees’ compensation that disparately impact female professionals. Goldman Sachs’s compensation decisions are tightly controlled and extremely secretive. Goldman Sachs does not inform the employee how it arrived at his or her amount of compensation.
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48. Goldman Sachs also allows a small corps of managers to employ standardless, unvalidated, and/or illegitimate criteria without accountability measures to determine how credit is allocated to employees who share assets, accounts, or responsibility for a particular business. This process is unvalidated and favors male employees who systematically receive more credit for generating revenues for the firm than their female co-workers.
49. Upon information and belief, an employee’s quartile ranking is the major determinant of compensation. As described above, the quartile process is a common, unvalidated procedure through which discrimination occurs. Moreover, managers have discretion to pay one employee in a given quartile more than another employee in that same quartile, without reliance on legitimate, validated rationales.
50. Associates and Vice Presidents typically receive a base salary as well as a yearend bonus. In an average year, the year-end bonus can be many multiples of an employee’s base salary. Goldman Sachs refers to total compensation, which includes base salary and bonus, as “Per Annum Total Compensation,” or “PATC.” Goldman Sachs’s common, unvalidated, discriminatory compensation procedures have resulted in female professionals receiving lower PATC than their male peers for the same or substantially similar work.
51. Moreover, these gender disparities in compensation permanently depress the earnings potential of female finance professionals. Goldman Sachs compensates its finance professionals in each year as a percentage increase from their prior year’s PATC. Because an employee’s PATC is linked to her past levels of compensation, each discriminatory compensation decision further widens the pay gap between male and female finance professionals at Goldman Sachs. As a result of these discriminatory compensation policies and
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practices, female finance professionals at Goldman Sachs have earned less compensation during the liability period than their similarly situated male peers. Promotions
52. Goldman Sachs also employs unvalidated, and discriminatory procedures for selecting individuals for promotion.
53. Goldman Sachs does not employ legitimate, validated and/or objective criteria for promotion to Managing Director or Partner. To receive a promotion from Vice President to Managing Director, a Managing Director or Partner must nominate you, and the firm must approve the promotion. Promotions are not determined by objective performance measures.
54. The promotion process is tightly controlled among a small corps of managers whose decisions are based on inaccurate and unvalidated performance measures using a tap on the shoulder system. As a result, Goldman Sachs nominates and promotes an overwhelmingly disproportionate number of men, and passes over equally or more qualified women. Business Opportunities
55. Business opportunities are determined, at least in part, by the discriminatory quartiling system. Only employees in the top two quartiles will be chosen for the high-growth potential assignments. Because women are systematically underrepresented in the top two quartiles, they are given these types of opportunities less frequently than their male comparators.
56. Goldman Sachs also discriminates against its female employees by denying them opportunities offered to men to move laterally into other areas of the firm. Lateral transfers are made based on unvalidated criteria and a tap on the shoulder system. On information and belief, Goldman Sachs transfers an overwhelmingly disproportionate number of men into the most lucrative positions, and passes over equally or more qualified women without regard to accurate measures of performance.
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57. These gender disparities in the allocation of business opportunities at Goldman Sachs perpetuate the disparities in performance evaluations, compensation, and promotions. Because women receive fewer and less lucrative opportunities than their male counterparts, it is more difficult for them to achieve the same level of performance. As a result, female financial professionals systematically receive worse performance evaluations, lower compensation, and fewer promotions despite equal or superior performance than their male comparators. Professional Support
58. Professional support is also influenced by the quartiling system. Goldman Sachs assigns the majority of its support resources to high-growth potential desks and strategic initiatives. Only employees in the top two quartiles will be chosen for these choice assignments. Because women are systematically underrepresented in the top two quartiles, they receive less professional support and resources than their male comparators. For example, female professionals at Goldman Sachs receive fewer junior employees to assist them with their work as a function of the discriminatory performance-evaluation process.
59. Female Associates and Vice Presidents also receive less training and mentorship than similarly situated men in the same positions. Goldman Sachs managers disproportionately select male professionals to be paired with more senior mentors, to receive hands-on training, and to be included in social events where they have access to or visibility among senior management. In many areas, Goldman Sachs also discriminates against female finance professionals in seating assignments. For example, on trading floors, Goldman Sachs often places women at the periphery while seating similarly situated or more junior males near the center of the floor. Men thus have more access to the most senior managers who regularly sit in the middle of the floor, and are able to cultivate relationships with them more easily. Women lack this same access and face greater difficulties in cultivating the same relationships. These
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employment practices are the product of common policies and practices tied to discriminatory performance measures that systematically disadvantage the putative class Conclusion
60. Accordingly, Chen-Oster,Orlich, Gamba, and De Luis bring this class action on behalf of themselves individually and all similarly situated female Associates and Vice Presidents in the United States. This action seeks to end Goldman Sachs’s discriminatory policies, patterns, and/or practices, and to make the Class whole by requesting the following remedies: injunctive relief to remedy systemic sex discrimination; an award of back pay and front pay; compensatory and punitive damages; and attorneys’ fees.
CLASS ACTION ALLEGATIONS 61. Plaintiffs bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a Class of all female financial-services employees who are at the Associates and Vice President corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in the United States at any time from September 10, 2004 through the resolution of this action for claims under Title VII. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) seeking monetary damages and other make-whole relief on behalf of a Class of all female financial-services employees who are at the Associates and Vice President corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in the United States at any time from September 10, 2004 through the resolution of this action for claims under Title VII. Plaintiffs reserve the right to amend the definition of the Class based on discovery or legal developments.
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62. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a Class of all female financial-services employees who are at the Associates and Vice President corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in New York at any time from July 7, 2002 through the resolution of this action for claims under the NYCHRL. Plaintiffs also bring this Class Action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) seeking monetary damages and other make-whole relief on behalf of a Class of all female financial-services employees who are at the Associates and Vice President corporate level and employed by Goldman, Sachs & Co. Inc. and its predecessors; and The Goldman Sachs Group, Inc. and its predecessors; in New York at any time from July 7, 2002 through the resolution of this action for claims under the NYCHRL. Plaintiffs reserve the right to amend the definition of the Class based on discovery or legal developments.
63. All Plaintiffs are members of the Classes they seek to represent. 64. The members of the Class identified herein are so numerous that joinder of all members is impracticable. As of December 2009, Goldman Sachs employs approximately 32,500 employees worldwide and approximately 18,900 in its Americas region (North and South America). Although Plaintiffs do not know the precise number of female financial-services employees at the Associates and Vice President levels at Goldman Sachs, the number is far greater than can be feasibly addressed through joinder. 65. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others:
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(a) whether Goldman Sachs’s policies or practices discriminate against female Associates and Vice Presidents;
(b) whether Goldman Sachs’s policies and practices violate Title VII and/or the NYCHRL; and
(c) whether Goldman Sachs’s performance evaluation system discriminates against women;
(d) whether Goldman Sachs’s compensation system discriminates against women;
(e) whether Goldman Sachs’s promotion system discriminates against women;
(f) whether equitable remedies, injunctive relief, compensatory damages, and punitive damages for the Class are warranted; and
(g) whether Goldman Sachs has failed to implement policies and procedures to prevent retaliation against employees who challenge perceived gender bias in the workplace, has failed to address complaints, and has failed to conduct proper investigations.
66. The Representative Plaintiffs’ claims are typical of the claims of the Class. 67. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof. 68. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because Goldman Sachs has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class Members are entitled to injunctive relief to end Goldman Sachs’s common, uniform, unfair, and discriminatory policies and practices. 69. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting
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only individual members of the Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The Class Members have been damaged and are entitled to recovery as a result of Goldman Sachs’s common, uniform, unfair, and discriminatory policies and practices. Goldman Sachs has computerized account data, payroll data, and personnel data that will make calculation of damages for specific Class Members relatively simple. The propriety and amount of punitive damages are based on Goldman Sachs’s conduct, making these issues common to the Class.
CLAIMS OF REPRESENTATIVE PLAINTIFFS H. Cristina Chen-Oster
70. In March 1997, Plaintiff H. Cristina Chen-Oster began working for Goldman Sachs in the firm’s Convertible Bonds Department, in the position of senior convertible bond salesperson. Goldman did not give her a title initially, despite the fact that Chen-Oster had held the title of Vice President for the same function with her previous employer. In June 1997, Goldman promoted Chen-Oster to Vice President from having no title. This was Chen-Oster’s only promotion at Goldman Sachs during her eight-year tenure at the firm.
71. During her employment, Goldman Sachs repeatedly denied Chen-Oster business opportunities, training and mentorship, and other terms and conditions of employment that it made available to similarly situated males. Additionally, throughout Chen-Oster’s tenure at the firm, Goldman Sachs consistently reviewed her performance more harshly than it did similarly performing males, paid her less in base compensation and bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.
72. In late 1997, Chen-Oster’s direct supervisor, a male Managing Director, took away Chen-Oster’s fastest growing account base – convertible bond arbitrage accounts – and
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transferred them to the firm’s London desk. A male Associate who was also a convertible bond salesperson had the same account base as Chen-Oster did, and had also shared with her responsibility for some of the same arbitrage accounts. Her supervisor permitted the male Associate to continue covering the arbitrage accounts, but did not allow Chen-Oster to keep her coverage of the accounts, even though, as a Vice President, she was more senior than the male Associate.
73. In the fiscal year ending in November 1997, Chen-Oster earned significant revenues for Goldman Sachs. Nonetheless, Goldman Sachs paid her less that year than similarly situated males in her department who had generated less revenues. For example, upon information and belief, Goldman Sachs paid another male salesperson in the Convertible Bonds Department who had also been promoted to Vice President in June 1997 approximately 50% more than it paid Chen-Oster, even though this male salesperson had generated less revenues in both that year and the previous year.
74. In early 1998, Chen-Oster’s supervisor asked her to train a newly hired male Associate and to introduce him to her clients, telling her that she would be evaluated and rewarded based on how well she trained him. Chen-Oster invested significant time and energy on training the new male Associate, which she did well, and acted as a team player in sharing her client relationships with him.
75. Despite her training efforts and strong sales performance, Goldman Sachs again paid Chen-Oster less in 1998 than it paid similarly situated men in her department. For example, the same male salesperson who had received more compensation than Chen-Oster in 1997 again received approximately 50% higher compensation than her in 1998, even though he again had generated less revenue that year, and had not shouldered the burden of training a new Associate.
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76. In 1998, Goldman Sachs promoted the male colleague who had been allowed to continue covering the arbitrage accounts to Vice President.
77. In or around May 1999, Chen-Oster told her supervisor about an incident that had occurred in 1997, shortly after she joined Goldman Sachs. In the fall of 1997, Goldman Sachs sponsored a dinner for a male employee who had just been promoted to Managing Director. Part of the evening took place at Scores, a topless bar, and all employees in the group were encouraged to join. At the end of the evening, a married male Associate in her group insisted that he escort her to her boyfriend’s apartment building a few blocks away. In the hallway outside the apartment, the male colleague surprised Chen-Oster by pinning her against a wall, kissing and groping her, and attempting to engage in a sexual act with her. Chen-Oster did not invite or welcome the attempt, and had to physically defend herself. The next morning, the male colleague apologized profusely to Chen-Oster and asked her not to say anything about the incident to anyone. On the same day, the male colleague also told his supervisor what had happened the night before. This supervisor was also Chen-Oster’s supervisor. The supervisor and the male colleague had been friends and sat next to each other on the trading floor. The male colleague was also the same Associate who her supervisor had permitted to continue covering the arbitrage accounts in late 1997, and who had been promoted to Vice President in 1998. Chen-Oster later learned that her male colleague had told their supervisor about the incident on the morning after it occurred.
78. After reporting the 1997 incident to her supervisor, Chen-Oster began to experience increased hostility and marginalization at the firm. In mid-1999, Goldman Sachs took away some of her job duties and responsibilities, including responsibility for new Asian deal allocations in the United States and for giving feedback on new deal pricing prior to new deal
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announcements. Chen-Oster had been managing new Asian deal allocations successfully in the United States for the previous two years.
79. At the end of 1999, Goldman Sachs again paid Chen-Oster less than it paid similarly situated men in her department. For example, upon information and belief, the male salesperson who had received more compensation than her in 1997 and 1998 again received over 50% more compensation than her in 1999. The male colleague involved in the 1997 incident also received over 50% more compensation than Chen-Oster, despite having been promoted to Vice President one year after Chen-Oster had been promoted. Both men had generated greater revenues in 1999 than Chen-Oster, but the difference resulted primarily from Chen-Oster’s supervisor removing higher production accounts from her coverage, but not removing any accounts from either of the two similarly situated men in her department, and giving major new accounts to the men.
80. In 2000, her supervisor rearranged seating assignments on the convertible bonds trading floor. In the trading world, seat assignments near the senior manager are highly coveted, as they signify people’s rank and help them cultivate relationships with the most senior managers in the group. In the rearrangement, Chen-Oster’s supervisor moved her to the seat farthest from him among all of the salespeople in the convertible bond department. In contrast, the supervisor placed the male colleague involved in the 1997 incident and the male Associate who Chen-Oster had trained – both of whom were more junior than her – near the center of the seating scheme where the supervisor sat.
81. Goldman Sachs also restricted Chen-Oster’s supervisory responsibilities. Goldman Sachs excluded her from delivering performance reviews and compensation numbers to the male Associate whom she had trained, even though employees with similar seniority
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typically performed this role with Associates they had trained. Goldman Sachs similarly excluded her from delivering performance reviews to her direct subordinate by scheduling the review for the day before Chen-Oster returned from her honeymoon, which was highly unusual and which even her direct subordinate perceived as strange. Instead, two male salespersons gave Chen-Oster’s direct subordinate the performance review. Typically, performance reviews are delayed for days or even weeks so that an employee’s direct supervisor can participate.
82. In or about October 2000, Goldman Sachs promoted two male salespersons in her department to Managing Director: the salesperson who had consistently received higher compensation than Chen-Oster even in years in which he generated fewer revenues, and the male colleague involved in the 1997 incident. Both of these men were friends of Chen-Oster’s direct supervisor.
83. At the end of 2000, both men who had been promoted to Managing Director received at least 100% more in compensation than Chen-Oster.
84. In January 2001, Chen-Oster spoke to her supervisor and another Managing Director, both men, to ask for opportunities to advance her career. She indicated to them that her assigned area of business, Southeast Asian and Japanese convertible bonds, was low on her supervisor’s priority list since her fastest growing accounts, the convertible arbitrage accounts, had been taken away from her. Neither Managing Director offered her any help.
85. In March 2001, Chen-Oster told her supervisor that the women in the Convertible Bonds Department felt that Goldman Sachs did not treat them equally and that several of them felt uncomfortable with the sexist banter that regularly occurred on the trading floor.
86. In March 2001, her supervisor announced that the male salesperson that had received higher compensation than Chen-Oster in the past, now a Managing Director, would be
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Chen-Oster’s direct supervisor. This new supervisor had previously undermined and denigrated Chen-Oster in front of others when they had been peers, and he continued to do so as her manager. In addition, the male colleague involved in the 1997 incident was made the sole head of U.S. convertible bond sales, effectively making him Chen-Oster’s indirect supervisor.
87. In July 2001, Chen-Oster conducted an analysis of her business area and concluded that the area was small and had few prospects for growth since it had been restructured to remove large accounts and those that had significant growth potential. She spoke with her new supervisor in an attempt to obtain more promising market opportunities, but the new supervisor instead directed her to continue working on her existing accounts.
88. In late 2001, Chen-Oster’s previous supervisor and new supervisor assigned the male salesperson who Chen-Oster had trained to assess a new market opportunity involving high-yield, distressed convertible bonds. Even though Chen-Oster was more qualified to take on the opportunity and had asked her supervisors for greater business opportunities, her supervisors intentionally excluded her from the project, even telling a Financial Analyst who worked directly for Chen-Oster not to inform Chen-Oster of the project. When Chen-Oster finally learned of the project and asked her new supervisor why she was never offered the opportunity, he responded that his opinion was that the male salesperson whom she had trained was better suited for the opportunity.
89. In March 2002, Chen-Oster’s subordinate, a Financial Analyst, transferred to London, leaving her without any dedicated support. Instead of finding a new Financial Analyst to support Chen-Oster, Goldman Sachs assigned her a more junior Sales Assistant, who worked only a fraction of his time with her. During the same period, the other male salespeople in the
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Convertible Bonds Department continued to have a dedicated Analyst to support them, in addition to a Sales Assistant.
90. In June 2002, Chen-Oster’s new supervisor replaced nearly half of the individuals on Chen-Oster’s peer review list with employees in Europe who are known to give their peers lower scores, as is the typical practice in Europe. Moreover, because these employees were located in Europe, they had little familiarity with Chen-Oster and her performance. One of the people designated as her reviewer was a male salesperson who had no clients in common with Chen-Oster and whom her new supervisor knew had sent racially offensive emails around the group, including one entitled, “Learn Chinese in 5 Minutes,” which included statements such as “Our meeting is scheduled for next week . . . Wai Yu Cum Nao?” and “Great . . . Fu Kin Su Pah.” Chen-Oster is Chinese.
91. Following this change to her peer review list, Chen-Oster submitted a written complaint to her new supervisor and one of Goldman Sachs’s Leadership and Diversity Managers.
92. Shortly afterward, Goldman Sachs asked Chen-Oster to transfer to a marketing position in a newly formed group, Synthetic Convertibles. The new position was effectively a demotion, because Chen-Oster would be reporting to another Vice President, also a woman, instead of to a Managing Director for the first time in her entire five year tenure at the firm. Nonetheless, Chen-Oster agreed to transfer to try to escape the discrimination she was experiencing.
93. In 2002, Goldman Sachs promoted the male colleague who had been involved in the 1997 incident from Managing Director to Partner. Goldman Sachs did not promote ChenOster or the female Vice President who was Chen-Oster’s supervisor to Managing Director.
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94. At the end of 2002, Chen-Oster again received significantly less compensation than her similarly situated male peers. The male Associate whom she had trained, for example, earned significantly more in compensation than Chen-Oster, despite having generated fewer gross sales credits than she had in that year.
95. From March to July 2003, Chen-Oster took maternity leave. 96. At the end of 2003, Goldman Sachs again paid Chen-Oster less than her similarly situated male peers. For example, the male salesperson she had once trained received substantially greater compensation than she did for 2003. 97. From July to November 2004, Chen-Oster again took maternity leave. When she returned, Goldman Sachs removed her former accounts and failed to provide her with any meaningful responsibilities or accounts. Goldman Sachs also moved Chen-Oster’s seat from the trading floor to a location among the administrative assistants, all of whom were female. Upon information and belief, Chen-Oster was the only Vice President-level professional who had been assigned to sit among support staff. The seating arrangement also had the effect of removing Chen-Oster from the visibility of managers and creating the perception that she was a junior person. 98. In December 2004, Chen-Oster again received less compensation than her similarly situated male peers, including but not limited to the male salesperson she had trained. 99. In February 2005, Goldman Sachs relocated Chen-Oster to a sales group that was known by managers to have lower average compensation than the convertible bonds sales group at Goldman Sachs. In this new group, her supervising Partner, a male, assigned her less favorable accounts than he assigned to male employees.
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100. The inferior business opportunities and treatment that Goldman Sachs gave ChenOster relative to her similarly situated male peers severely impacted her career growth and compensation at Goldman Sachs. After being promoted to Vice President, Chen-Oster was never promoted again. Between 1997 and 2004, her compensation increased by only 27%, far lower than comparable males. While Chen-Oster’s career growth stagnated, the male colleague involved in the 1997 incident was promoted to Managing Director and finally Partner. Over the same period, he saw his compensation increase by more than 400%.
101. Throughout Chen-Oster’s employment, Goldman Sachs also discriminated against her by reviewing her performance more negatively than her similarly situated male peers. Although she received good 360 degree scores from her peers, these scores nevertheless did not fully reflect her contributions to the firm. Moreover, although they provided her with regular positive feedback, her supervisors reviewed her more negatively than her similarly situated male peers in their private evaluations of her, as is evidenced by the fact that she repeatedly received less compensation than male peers who had underperformed her.
102. On March 10, 2005, Chen-Oster resigned due to the consistent and systematic discrimination she had suffered over her eight years at Goldman Sachs.
103. On or about July 6, 2005, Chen-Oster filed a charge of gender discrimination and retaliation with the EEOC (attached hereto as Exhibit 1) and on June 22, 2010, she received a Notice of Right to Sue.2 Shanna Orlich
104. Plaintiff Shanna Orlich first began working for Goldman Sachs as a Summer Associate in 2006 while a student in the JD/MBA program at Columbia University. As a Summer Associate, Orlich did rotations in several trading departments of Goldman. After
2 Chen-Oster’s attorneys received a copy of her Notice of Right to Sue from the EEOC on June 18, 2010.
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graduation, Orlich returned to Goldman Sachs in July 2007 and began working as an Associate in the Capital Structure Franchise Trading (“CSFT”) Group, a unit within the firm’s Fixed Income, Currencies, and Commodities (“FICC”) Division.
105. During her employment, Goldman Sachs repeatedly denied Orlich business opportunities, training and mentorship, and other terms and conditions of employment that it made available to similarly situated males. Additionally, throughout Orlich’s tenure at the firm, Goldman Sachs consistently reviewed her performance more harshly than it did similarly performing males, paid her less in bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.
106. At the time Orlich joined the CSFT group, the group consisted of 12 employees – 10 male and 2 female, including herself.
107. In her first performance review, in December 2007, Orlich’s direct supervisor, a male Managing Director, gave her only positive feedback and praise for the work she had done to date.
108. Nonetheless, Goldman Sachs gave Orlich fewer opportunities to become a junior trader than it gave similarly situated males. Although Orlich joined Goldman to be a trader, when she arrived at the CSFT desk, her direct supervisor told her that there was no trading seat available, and that she would have to rotate with traders and serve as a desk analyst, a less desirable position.
109. However, at the same time Goldman Sachs hired Orlich, it also hired a man who had been Orlich’s business school classmate. Goldman Sachs’s managers would challenge this male classmate to do push-up contests on the trading floor. When he arrived at Goldman Sachs, Goldman Sachs allowed him to start directly as a trader in the High Yield group.
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110. In October 2007, Orlich’s male Managing Director, who was responsible for both the High Yield and CSFT groups, decided to take on a junior trading partner in CSFT. He offered the position to Orlich’s male classmate but not to Orlich, even though she was a member of the CSFT desk and Orlich’s male classmate was not.
111. Around the same time Orlich was hired, Goldman Sachs also hired a male Analyst directly from college. Even though the new Analyst was junior to her, Goldman Sachs allowed him to begin working as a trader in the CSFT group immediately.
112. In December 2007, Orlich complained to her direct supervisor that she had not been put in a trading seat. She pointed out to him that her male classmate and the new Analyst were already trading. When Orlich pressed him for a reason why she had not been put in a trading seat, he replied that she did not have enough experience in trading. However, Orlich’s male classmate, like her, did not have any trading experience prior to his summer internship at Goldman in 2006. Likewise, the new Analyst also did not have any trading experience prior to his summer internship at Goldman in 2006. Nevertheless, Goldman Sachs readily placed her two male colleagues in trading positions, despite their lack of experience.
113. As a desk analyst, Orlich essentially had no defined role and had to work on whatever assignments her superiors asked her to do. While her male classmate and the male Analyst received hands-on training and mentorship, Orlich was professionally and socially isolated in her role and did not receive similar levels of support, training, or mentorship from her managers.
114. In January 2008, Orlich spoke to a more senior female trader about not having opportunities to trade. After this conversation, her direct supervisor agreed to assign her to a junior trader role with a male trader in CSFT. Days later, her direct supervisor left Goldman
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Sachs. In April 2008, the male trader to whom Orlich had been assigned also left the firm. After the male trader’s and his trading partner’s departures, Goldman Sachs did not assign Orlich a new trading partner. As a result, she continued to have no opportunities to trade.
115. In July 2008, Orlich reached out to a male Managing Director of Sales to complain that she did not have a trading partner and was not being given an opportunity to trade. The male Managing Director expressed surprise that Orlich had been hired to be a trader and told Orlich that he did not see her as the “right fit” to be a trader. He also told her that he saw her as an analyst, even though he had told a male colleague of hers that taking the analyst position would not be a good career move. He further told Orlich that because he had not hired her, he did not view her as his responsibility.
116. Orlich then reached out to other members of Goldman Sachs’s senior management team. A senior male Partner told Orlich to be a “team player” and to stay in the analyst role.
117. After Orlich’s direct supervisor, who was also her male classmate’s trading partner, left Goldman Sachs, Orlich’s male classmate also reached out to the same senior male Partner. When Orlich’s male classmate sought his help, the senior male Partner assigned her male classmate to be a junior trader with a highly successful trader in High Yield.
118. Throughout her employment at Goldman Sachs, Orlich worked in an environment in which her colleagues did not treat her and other women with the same respect that they gave to their male peers. This was true for work assignments and for social outings where relationships between managers and employees were cemented.
119. For example, Goldman organized frequent golf outings and other social events to which female employees, including Orlich, were not invited. On one occasion, a senior analyst
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on the CSFT desk asked every male person in Orlich’s department and in neighboring groups to be his partner at a golf outing, including individuals more junior to Orlich. However, he did not ask Orlich, the only female on the fixed income side of the CSFT trading desk. Orlich has played golf since childhood and also played varsity golf for her high school team.
120. Orlich also learned of a golf outing attended by approximately 80 Goldman Sachs employees, only one of whom was a female employee. Orlich was told that she was not invited because she was too junior, but she later learned that several male analysts straight out of college attended the outing.
121. Orlich’s superiors at Goldman Sachs also asked her to perform clerical and administrative work that they did not give to male Associates, or even to male Analysts. For example, a senior male analyst on the CSFT desk often gave her demeaning and menial assignments, such as setting up his blackberry, making photocopies, and answering calls from his wife. Similarly situated male Associates and even more junior male analysts were not asked to perform such work.
122. During Orlich’s employment, Goldman Sachs also discriminated against her by reviewing her performance more negatively than her similarly situated male peers. For example, Orlich worked long hours during her employment and was often the first person to arrive at the office and the last person to leave. Nevertheless, a senior male analyst to whom Orlich reported criticized her for not working hard enough. In mid-2008, Orlich was given performance review scores that penalized her for being given an undefined role as a desk analyst and for not having had opportunities to develop trading expertise. However, Orlich never received a formal review from any of her superiors.
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123. These disparities in the business opportunities and treatment that Goldman gave to Orlich’s male peers but denied to her severely impacted her career growth and compensation at Goldman Sachs. In November 2008, Goldman Sachs terminated Orlich’s employment.
124. On or about January 7, 2010, Orlich filed a charge of gender discrimination and retaliation with the EEOC and the New York State Division of Human Rights. Orlich’s charge is attached to this Complaint as Exhibit 3 and is incorporated by reference. Orlich is requesting a Notice of Right to Sue from the EEOC, to which she is entitled. Allison Gamba
125. In January 2001, Plaintiff Allison Gamba began working for Goldman Sachs after the Firm took over her then-employer, Spear, Leeds & Kellogg, L.P. After joining Goldman Sachs, Gamba worked as a trader, and in 2003, Gamba joined Goldman Sachs’s New York Stock Exchange Equities Department, within the Securities Division. In 2003, Gamba was promoted to Vice President. This was Gamba’s only promotion at Goldman Sachs during her thirteen-year tenure at the firm.
126. During her employment with Goldman Sachs, Gamba was subjected to the performance evaluation, compensation, and promotion systems and practices that are challenged in this action. Goldman Sachs denied Gamba business opportunities, training and mentorship, and other terms and conditions of employment that it made available to similarly situated males. Additionally, throughout Gamba’s tenure at the firm, Goldman Sachs evaluated her performance more harshly than it did similarly performing males, paid her less in base compensation and bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was qualified to hold.
127. Between 2005 and 2007, Gamba more than quadrupled earnings from her stock portfolio – from $1.2 million in 2005 to over $6 million in 2007. In 2007, her male manager
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indicated that Gamba would be nominated for promotion to Managing Director, but suggested that she consider “adopting” instead of becoming pregnant. Gamba had never discussed the possibility of having children with her Managing Director or co-workers.
128. Shortly thereafter, Gamba shared the comment about adoption and pregnancy with a more senior male manager because she was concerned that it could impact her advancement within the Firm. That senior male manager escalated the issue to the President and Chief Executive Officer of Goldman Sachs’s New York Stock Exchange Equities Department, a man. Gamba met with the President/CEO and discussed the comments that had been made to her. Although Gamba had asked that her concerns be kept confidential, her complaint was widely disseminated within her department and her colleagues approached her about it and treated her negatively as a result.
129. In 2008, Gamba increased her revenues to $9.5 million, even though she had her first child that year and was out on maternity leave for a portion of the year.
130. In 2008, Goldman Sachs considered and rejected Gamba for promotion to Managing Director. Instead, Goldman Sachs promoted to Managing Director a male trader whose trading performance was not as good as Gamba’s.
131. The CFO of her Department instructed Gamba that in order to improve her chances of being promoted to Managing Director, she should undertake additional efforts to meet with Managing Directors and Partners outside of her Department and take on additional firm non-work activities. On information and belief, men were not instructed to undertake such efforts in order to be promoted, nor were such efforts necessary for men to be promoted.
132. In 2010, Gamba took maternity leave for the birth of her second child. She was not promoted to Managing Director that year. When Gamba raised the issue with the CEO of her
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Department and asked if she had been nominated for promotion to Managing Director, he said no and that he would have been a laughing stock if he had nominated her.
133. Between 2005 and 2014, during which period she was qualified for promotion, the Firm did not promote Gamba to Managing Director. As a result of not being promoted, Gamba was denied compensation that she otherwise would have received. Goldman Sachs never promoted a woman to Managing Director out of Gamba’s Department.
134. Goldman Sachs evaluated Gamba more negatively than her male colleagues as part of the performance evaluation process. Further, after Gamba raised concerns about the pregnancy comment and took maternity leave, her performance evaluation scores were negatively impacted. In 2010 and 2011, reviewers were added to her 360 performance evaluation without her knowledge and she received unwarranted and unsubstantiated low review scores.
135. Over her 13 years with Goldman Sachs, Gamba was regularly subjected to a discriminatory “Boys Club” environment. For instance, even though Gamba is an avid golfer, she was excluded from an annual golf outing hosted by her manager to which all the male golfers were invited and she was excluded from a “meat fest,” to which only men were invited. On another occasion, she was berated by a male broker and called “Sweetheart” in front of her team captain, who did nothing to address the issue.
136. The Goldman Sachs corporate culture required socializing as a means to move up within the firm and encouraged “after-hours” drinking as a means of socializing. The culture not only put women, like Gamba, at physical risk, it operated as a double-edged sword for women – women could not advance in their careers without networking, but those who participated in socializing networking activities were labeled “party girls” and were not well-regarded or
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respected by their male peers. Indeed, at one such function in 2004, she was pinned against the wall and forcefully kissed by a male colleague. Mary De Luis
137. Plaintiff Mary De Luis first began working for Goldman Sachs in 2010 as a Senior Analyst in the Investment Management Division. In 2012, she was promoted to the position of Associate, and she was subsequently promoted to the position of Vice President in the same division in December 2014.
138. De Luis works out of Goldman Sachs’s Dallas, Texas office and regularly travels to and works from the Goldman Sachs’s New York, New York office, where the Partner and one of the Managing Directors who supervise her group are located. De Luis holds Series 7 and 66 licenses and is registered in New York and Texas, since she services clients in both states. In addition, decisions regarding De Luis’s compensation are made out of the New York office.
139. During her employment with Goldman Sachs, De Luis has been subjected to the performance evaluation and compensation systems and practices that are challenged in this action. On information and belief, she has received lower compensation, and has been evaluated unfairly, due to her gender.
140. Although Goldman Sachs promoted De Luis from Analyst to Associate and from Associate to Vice-President, Goldman Sachs has not paid De Luis equally to her male colleagues throughout her employment, including as both an Associate and Vice-President. De Luis has raised concerns to her supervisors about the fairness of her compensation on numerous occasions since December 2010.
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141. In September 2014, De Luis approached her male supervisors to discuss the fact that she was undercompensated compared to the market and her male colleagues. In response, her supervisors promised to increase her compensation in 2015.
142. In January 2015, De Luis again raised questions about the fairness of her compensation with her managers at Goldman Sachs. In response, her supervisors told her they had decided not to increase her base salary in 2015 to the level that they had previously promised her, but instead would gradually increase her compensation over two years. In explaining why they were not raising De Luis’s compensation at once, her supervisors suggested that it would not harm De Luis to achieve the higher promised salary over a longer time frame because her male domestic partner is an oncologist (and presumably she could rely on him to make up the difference in household income).
143. On March 17, 2015, while she was in New York, New York for business, De Luis met with her supervisors’ manager to discuss her career advancement at Goldman Sachs. He promised to consider the matter and discuss it with her supervisors.
144. On March 24, 2015, De Luis met one final time with her two supervisors to address a proposed 2015 compensation plan. Her supervisors informed her that there would be no salary increase for 2015.
145. After De Luis came forward in this action, Goldman Sachs indicated that it would increase her base salary for 2015, but its action does not address the full compensation disparity to which De Luis has been subjected and will continue to be subjected under Goldman Sachs’s compensation policy. Its action does not address the historical underpayments to De Luis that were compounded each year, nor does it address the system that caused the unequal treatment in the first place and will continue to cause disparities going forward.
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CAUSES OF ACTION FIRST CLAIM FOR RELIEF
Intentional Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)
(On Behalf of All Plaintiffs and the Class) 146. Plaintiffs incorporate the preceding paragraphs as alleged above. 147. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 148. Goldman Sachs has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates and Vice Presidents. Goldman Sachs has intentionally discriminated against Plaintiffs and the Class in violation of Title VII by, among other things:
(a) Utilizing a biased performance system; (b) Utilizing a biased compensation system; (c) Utilizing a biased promotion system; (d) Systematically and intentionally undervaluing their aptitude and
performance; and (e) Failing and refusing to take reasonable and adequate steps to prevent and
correct the use of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment. 149. These company-wide policies are intended to and do have the effect of: (a) Denying Plaintiffs and Class Members business opportunities because of their gender; (b) Compensating them less because of their gender; (c) Failing to promote them because of their gender; (d) Evaluating their performance more negatively because of their gender;
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(e) Offering them less administrative support, training, and mentorship as a result of discriminatory performance measures that systematically disadvantaged them because of their gender; and
(f) Providing them with inferior terms and conditions of employment as a result of discriminatory performance measures that systematically disadvantaged them because of their gender.
150. The discriminatory acts that constitute Goldman Sachs’s pattern and/or practice of discrimination have occurred both within and outside the liability period in this case.
151. As a direct result of Goldman Sachs’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
152. The foregoing conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by 42 U.S.C. §§ 2000e et seq.
153. Plaintiffs request relief as hereinafter described. SECOND CLAIM FOR RELIEF Disparate Impact Discrimination
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of All Plaintiffs and the Class)
154. Plaintiffs incorporate the preceding paragraphs as alleged above. 155. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 156. Goldman Sachs’s reliance on illegitimate and unvalidated systems and criteria to distribute business opportunities, determine levels of professional support, evaluate employee performance, set compensation, and select individuals for promotion, and determine other terms and conditions of employment have an adverse impact on female Associates and Vice Presidents in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such
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system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
157. Goldman Sachs has maintained these discriminatory policies, patterns, and/or practices both within and outside the liability period in this case.
158. As a direct result of Goldman Sachs’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
159. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of 42 U.S.C. §§ 2000e et seq.
160. Plaintiffs request relief as hereinafter described. THIRD CLAIM FOR RELIEF Intentional Discrimination
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of All Plaintiffs and the Class)
161. Plaintiffs incorporate the preceding paragraphs as alleged above. 162. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. 163. Goldman Sachs has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates and Vice Presidents. Goldman Sachs has intentionally discriminated against Plaintiffs and the Class in violation of the NYCHRL by, among other things:
(a) Utilizing a biased performance system; (b) Utilizing a biased compensation system; (c) Utilizing a biased promotion system;
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(d) Systematically and intentionally undervaluing their aptitude and performance; and
(e) Failing and refusing to take reasonable and adequate steps to prevent and correct the use of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment.
164. These company-wide policies are intended to and do have the effect of: (a) Denying Plaintiffs and Class Members business opportunities because of their gender; (b) Compensating them less because of their gender; (c) Failing to promote them because of their gender; (d) Evaluating their performance more negatively because of their gender; (e) Offering them less administrative support, training, and mentorship because of their gender; and (f) Providing them with inferior terms and conditions of employment because of their gender.
165. The discriminatory acts that constitute Goldman Sachs’s pattern and/or practice of discrimination has occurred both within and outside the liability period in this case.
166. Goldman Sachs has set and/or maintained these discriminatory policies, patterns, and/or practices during the liability period within the City of New York, and the discriminatory policies, patterns, and/or practices have had a discriminatory impact on female employees of Goldman Sachs within the City of New York.
167. As a direct result of Goldman Sachs’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
168. The foregoing conduct constitutes illegal, intentional discrimination prohibited by the Administrative Code of the City of New York § 8-107 et seq.
169. Plaintiffs request relief as hereinafter described.
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FOURTH CLAIM FOR RELIEF Disparate Impact Discrimination (NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of All Plaintiffs and the Class) 170. Plaintiffs incorporate the preceding paragraphs as alleged above. 171. This Claim is brought by all Representative Plaintiffs on behalf of themselves and the Class they represent. Plaintiffs have timely filed charges with the EEOC and have thus exhausted their administrative remedies. 172. Goldman Sachs’s reliance on illegitimate and unvalidated systems and criteria to distribute business opportunities, determine levels of professional support, evaluate employee performance, set compensation, and select individuals for promotion, and determine other terms and conditions of employment have an adverse impact on female Associates and Vice Presidents in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 173. Goldman Sachs has maintained these discriminatory policies, patterns, and/or practices both within and outside the liability period in this case, and the discriminatory policies, patterns, and/or practices have had a discriminatory impact on female employees of Goldman Sachs within the City of New York. 174. As a direct result of Goldman Sachs’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 175. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of the Administrative Code of the City of New York § 8-107 et seq.
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176. Plaintiffs request relief as hereinafter described. FIFTH CLAIM FOR RELIEF Retaliation
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) (On Behalf of Plaintiffs Chen-Oster, Orlich, and Gamba Individually) 177. Plaintiffs incorporate the preceding paragraphs as alleged above. 178. This Claim is brought by Plaintiffs Chen-Oster, Orlich, and Gamba individually. Plaintiffs have timely filed charges with the EEOC alleging retaliation claims and have thus exhausted their administrative remedies. 179. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and NYCCHR complaining of Goldman Sachs’s discriminatory policies and practices. 180. Goldman Sachs took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct. 181. Plaintiffs request relief as hereinafter described.
SIXTH CLAIM FOR RELIEF Retaliation
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of Plaintiffs Chen-Oster, Orlich, and Gamba Individually) 182. Plaintiffs incorporate the preceding paragraphs as alleged above. 183. This Claim is brought by Plaintiffs Chen-Oster, Orlich, and Gamba individually. 184. Plaintiffs engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and NYCCHR complaining of Goldman Sachs’s discriminatory policies and practices.
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185. Goldman Sachs took adverse actions against the Plaintiffs with the purpose of retaliating against them because of their participation in protected activities, and Plaintiffs suffered damages as a result of that conduct.
186. Goldman Sachs engaged in the retaliatory conduct alleged above during the liability period within the City of New York, and the retaliatory conduct had an impact within the City of New York
187. Plaintiffs request relief as hereinafter described. SEVENTH CLAIM FOR RELIEF Pregnancy Discrimination
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k))
(On Behalf of Plaintiffs Chen-Oster and Gamba Individually) 188. Plaintiffs Chen-Oster and Gamba incorporate the preceding paragraphs as alleged above. 189. This Claim is brought by Plaintiffs Chen-Oster and Gamba individually. 190. Goldman Sachs has discriminated against Chen-Oster and Gamba in the terms and conditions of their employment on the basis of their status as pregnant women and as women with children, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., specifically the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). 191. Goldman Sachs knew that its actions constituted unlawful discrimination and showed willful and/or reckless disregard for Chen-Oster’s and Gamba’s statutorily protected rights. 192. As a direct result of Goldman Sachs’s discriminatory policies and/or practices as described above, Chen-Oster and Gamba have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
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193. Plaintiffs Chen-Oster and Gamba request relief as hereinafter described. EIGHTH CLAIM FOR RELIEF Pregnancy Discrimination
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of Plaintiffs Chen-Oster and Gamba Individually)
194. Plaintiffs Chen-Oster and Gamba incorporate the preceding paragraphs as alleged above.
195. This Claim is brought by Plaintiffs Chen-Oster and Gamba individually. 196. Goldman Sachs has discriminated against Chen-Oster and Gamba in the terms and conditions of their employment on the basis of their status as pregnant women and as women with children, in violation of the Administrative Code of the City of New York § 8-107 et seq. 197. Goldman Sachs knew that its actions constituted unlawful discrimination and showed willful and/or reckless disregard for Chen-Oster’s and Gamba’s statutorily protected rights. 198. Goldman Sachs engaged in the discriminatory conduct alleged above during the liability period within the City of New York, and the discriminatory conduct had an impact on Chen-Oster and Gamba within the City of New York. 199. As a direct result of Goldman Sachs’s discriminatory policies and/or practices as described above, Chen-Oster and Gamba have suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 200. Plaintiffs Chen-Oster and Gamba request relief as hereinafter described.
ALLEGATIONS REGARDING RELIEF 201. Plaintiffs and the Classes they seek to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief they seek in this action is the only means of securing complete and adequate relief. Plaintiffs and the
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Classes they seek to represent are now suffering, and will continue to suffer, irreparable injury from Goldman Sachs’s discriminatory acts and omissions.
202. Goldman Sachs’s actions have caused and continue to cause Plaintiffs and all Class Members substantial losses in earnings and other employment benefits.
203. In addition, Plaintiffs and Class Members suffer and continue to suffer emotional distress, humiliation, embarrassment, and anguish, all to their damage in an amount according to proof.
204. Goldman Sachs performed the acts herein alleged with malice or reckless indifference. Plaintiffs and Class Members are thus entitled to recover punitive damages in an amount according to proof.
PRAYER FOR RELIEF 205. WHEREFORE, Plaintiffs and the Class pray for relief as follows:
(a) Certification of the case as a class action on behalf of the proposed Classes;
(b) Designation of Representative Plaintiffs H. Cristina Chen-Oster, Shanna Orlich, Allison Gamba, and Mary De Luis as representatives of the Classes;
(c) Designation of Representative Plaintiffs’ counsel of record as Class Counsel;
(d) A declaratory judgment that the practices complained of herein are unlawful and violate 42 U.S.C. §§ 2000e, et seq.; and the Administrative Code of the City of New York § 8-107 et seq.;
(e) A preliminary and permanent injunction against Goldman Sachs and its officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in policies, patterns, and/or practices that discriminate against Plaintiffs or the Class because of their gender or participation in this lawsuit;
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(f) An order that Goldman Sachs institute and carry out policies, practices, and programs that provide equal employment opportunities for all employees regardless of gender, and that it eradicate the effects of their past and present unlawful employment practices;

(g) An order requiring Goldman Sachs to develop and institute accurate and validated standards for evaluating performance, assigning job opportunities, determining pay, and making promotion decisions;

(h) An order appointing a monitor to ensure that Goldman Sachs complies with the injunction provisions of any decree that the Court orders;

(i) An order retaining jurisdiction over this action to ensure that Goldman Sachs complies with such a decree;

(j) An order restoring Plaintiffs and Class Members to their rightful positions at Goldman Sachs, or in lieu of reinstatements, an order for front pay benefits;

(k) Back pay (including interest and benefits) for the Representative Plaintiffs and Class Members;

(l) All damages sustained as a result of Goldman Sachs’s conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof;

(m) Exemplary and punitive damages in an amount commensurate with Goldman Sachs’s ability to pay and to deter future conduct;

(n) Costs incurred herein, including reasonable attorneys’ fees to the extent allowable by law;

(o) Pre-judgment and post-judgment interest, as provided by law; and

(p) Such other and further legal and equitable relief as this Court deems necessary, just, and proper.

JURY DEMAND

206. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand

a trial by jury in this action.

Dated: New York, New York May 8, 2015

Respectfully submitted,

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By:

/s/ Adam T. Klein_______

Adam T. Klein

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

OUTTEN & GOLDEN LLP Paul W. Mollica 161 North Clark Street, Suite 4700 Chicago, Illinois 60601 Telephone: (312) 809-7010 Facsimile: (312) 809-7011

By: /s/ Kelly M. Dermody Kelly M. Dermody
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody (admitted pro hac vice) Anne B. Shaver (admitted pro hac vice) Martin D. Quinones (admitted pro hac vice) 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Rachel Geman 250 Hudson St., 8th Floor New York, New York 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
Attorneys for Plaintiffs and the Putative Class

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 Case 1:10-cv-06950-AT-JCF Document 479 Filed 04/12/17 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK H. CRISTINA CHEN-OSTER, LISA PARISI, SHANNA ORLICH, ALLISON GAMBA, and MARY DE LUIS,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC#:
DATE FILED: 4,,/ I <1--/1 <1--

Plaintiffs,

-against-

10 Civ. 6950 (AT) (JCF)

GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

MEMORANDUM OPINION AND ORDER

Defendants. ANALISA TORRES, District Judge:

In this employment discrimination case, Plaintiffs, H. Christina Chen-Oster, Lisa Parisi,

Shanna Orlich, Allison Gamba, and Mary De Luis, allege that their former employer, Defendants

Goldman, Sachs & Co. and the Goldman Sachs Group, Inc. (collectively, "Goldman Sachs"),

violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and

the New York City Human Rights Law, N.Y.C. Admin. Code§ 8-101 et seq. ("NYCHRL"), by

systematically disfavoring female employees and denying them equal compensation and

advancement opportunities based on their gender. Defendants move to dismiss Gamba's and De

Luis' claims for injunctive and declaratory relief. Plaintiffs move to file a supplemental

complaint. For the reasons stated below, both motions to dismiss are DENIED, and Plaintiffs'

motion to file a supplemental complaint is GRANTED.

BACKGROUND

I. Relevant Procedural History

The Court assumes familiarity with facts of the case and recites only briefly the

procedural history relevant to these motions. On September 16, 201 0, Plaintiffs Chen-Oster,

Parisi, and Orlich brought this putative class action alleging intentional discrimination, disparate

impact discrimination, retaliation, and pregnancy discrimination under Title VII and the

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NYCHRL. ECF No.5. On April13, 2015, Plaintiffs Gamba and De Luis moved to intervene, ECF No. 377, which the Honorable James C. Francis granted on August 3, 2015, ECF No. 410. Defendants appealed Magistrate Judge Francis' order and, on June 6, 2016, this Court affirmed the order. ECF No. 450.
Plaintiffs filed a second amended complaint on August 3, 2015, which included allegations regarding Gamba and De Luis. ECF No. 411. On September 28, 2015, Defendants moved to dismiss Gamba's claims for injunctive and declaratory relief. ECF No. 441. By letter dated May 9, 2016, Defendants notified the Court that De Luis no longer worked for Goldman Sachs, ECF No. 446, and subsequently moved to dismiss De Luis' claims for injunctive and declaratory relief, ECF No. 457.
On July 1, 2016, Plaintiffs filed a motion to file a supplement to the second amended complaint pursuant to Federal Rule of Civil Procedure 15(d) to add factual allegations and causes of action related to De Luis' departure from Goldman Sachs. ECF No. 455. Finally, on March 9, 2017, Plaintiffs requested to amend their proposed supplement to include that De Luis received a right to sue letter from the Equal Employment Opportunity Commission. ECF No. 477; see also ECF No. 477-1 ("Am. Suppl. Compl."). Defendants oppose the initial motion to file a supplement to the second amended complaint, ECF No. 456, but do not oppose the substitution of the new proposed supplement for the old, ECF No. 478. II. Gamba
Gamba worked for Goldman Sachs in New York from 2001 to August 2014. Second Am. Compl. ~ 16. In 2003, Gamba joined the New York Stock Exchange Equities Department. Id. ~ 125. That year, she was promoted to Vice President. Id. Although she was eligible to be promoted to Managing Director in 2005, she was never promoted again. !d.~ 133.
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Gamba claims that Goldman Sachs "evaluated her performance more harshly than it did similarly performing males, paid her less in base compensation and bonuses than it paid similarly situated men, and promoted equally or less qualified men instead of her to positions she was
qualified to hold." Id. ,-r 126. For instance, she states that in 2007, her manager "indicated that
Gamba would be nominated for promotion to Managing Director, but suggested that she consider
'adopting' instead of becoming pregnant." Id. ,-r 127. Gamba took maternity leave for part of 2008. Id. ,-r 129. That same year, Goldman considered and rejected Gamba for a promotion to
Managing Director, promoting a male trader whose "trading performance was not as good as"
hers, id. ,-r 130, despite the fact that Gamba's revenue from her stock portfolio rose from $1.2 million in 2005 to over $6 million in 2007 and to $9.5 million in 2008, id. ,-r,-r 127, 129. In
August 2014, her employment with Goldman Sachs ended when Goldman Sachs "divested itself of the department in which she worked." Id. ,-r,-r 16. Among other remedies, Gamba seeks reinstatement to her "rightful position[] at Goldman Sachs." Id. ,-r 205(j). III. De Luis
De Luis began working at Goldman Sachs in June 2010 as a Senior Analyst in the Investment Management Division. Id. ,-r,-r 18, 137. She worked first out of Miami, Florida and then in Dallas, Texas, but regularly "travel[ed] to and works from the Goldman Sachs's New York, New York office." Id. ,-r 18. In 2012, she was promoted to the position of Associate. Id. ,-r 137. In 2014, she was made a Vice President. Id. However, De Luis alleges that she has been evaluated unfairly based on her gender, id. ,-r 139, and paid less than her male colleagues throughout her employment, id. ,-r 140.
In March 2016, De Luis requested a transfer from Goldman Sachs' Dallas office to its Miami office, due to the relocation of her significant other. Am. Suppl. Compl. ,-r 5. Prior to her
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participation in the present lawsuit, De Luis "had been assured by Goldman Sachs in March 2012 and September 2014 ... that relocation to Miami in 2016 would be possible." Id. ,-r 6. However, after requesting the transfer, De Luis was informed that she could work in Dallas or New York "or apply and be considered for an inferior position in Miami." Id. ,-r,-r 5-6. De Luis claims that Goldman Sachs denied her transfer request because "her supervisory function could not be carried out remotely," even though coordination of her team was being done remotely "as many members of the team were located in New York or regional offices." Id. ,-r 8. De Luis claims that Goldman Sachs denied her transfer request in retaliation for her role as a plaintiff in this case. Id. ,-r,-r 9, 10. De Luis resigned on May 2, 2016. Id. ,-r 11. The amended supplemental complaint states causes of action for retaliation under Title VII and the NYCHRL. Id. ,-r,-r 12-21. She seeks reinstatement. I d. ,-r,-r 16, 21, 22.
DISCUSSION I. Legal Principles
Defendants have moved to dismiss Gamba's and De Luis' claims for injunctive and declaratory relief pursuant to Federal Rule of Civil Procedure 12(b)(1 ). Before turning to each motion, the Court addresses certain legal issues raised in both motions.
A. 12(b)(l) Motion In resolving a motion to dismiss for lack of subject matter jurisdiction, "the district court must take all uncontroverted facts in the complaint ... as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, "[w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to
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evidence outside the pleadings, such as affidavits." APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)).
B. Standing A central issue to both motions to dismiss is an opinion issued by the Honorable Leonard B. Sand, dated July 12, 2012. Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113 (S.D.N.Y. 2012), ECF No. 158. Judge Sand held that, under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), a former employee lacks standing to bring claims against her former employer for injunctive and declaratory relief. See Chen-Oster, 877 F. Supp. 2d at 121-22. Plaintiffs contend that former employees, such as Gamba or De Luis, may have standing for injunctive and declaratory relief if they seek reinstatement, and ask this Court to reconsider Judge Sand's ruling. The parties agree that this request implicates the law of the case doctrine, which applies when a court "reconsiders its own ruling on an issue in the absence of an intervening ruling on the issue by a higher court." United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). The law of the case doctrine instructs '"that when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case' unless 'cogent' and 'compelling' reasons militate otherwise." Id. (citation omitted) (first quoting United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991); and then quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)). Reconsideration of a prior decision may be "justified in compelling circumstances, consisting principally of (1) an intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error oflaw or to prevent manifest injustice." United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009). The doctrine is "driven by considerations of fairness to the parties, judicial economy, and the societal interest in finality." Id. However, "the efficiency concerns that underlie the doctrine do not support its application in
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cases where the original ruling is clearly erroneous." Strauch v. Demskie, 892 F. Supp. 503, 506 (S.D.N.Y. 1995); see also Virgin Atl. Airways, Ltd. v. Nat'! Mediation Bd., 956 F.2d 1245, 125455 (2d Cir. 1992) ("[A] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law ...." (quoting Cooter & Gel! v. Hartmarx Corp., 496 U.S. 384, 405 (1990))).
With "significant reservations" and "misgivings," Judge Sand held, as a matter of "first impression in this circuit," that Dukes serves as a "blanket denial of standing to ex-employees." Chen-Oster, 877 F. Supp. 2d at 121-22. Despite his "disagree[ment] with the Supreme Court's reasoning," he concluded that "[t]he Supreme Court's reasoning, simply put, is that ex-employee have no material stake in whether their former employer is or is not enjoined from continuing the allegedly discriminatory employment practices since they are no longer there." Id.
At issue in Dukes, a gender discrimination class action brought by current and former Wal-Mart employees who sought backpay as well as injunctive and declaratory relief, was the applicability ofRule 23(b)(2) and (b)(3) to plaintiffs' backpay claim. 564 U.S. at 360. 1 The Court held that claims for backpay were improperly certified under Rule 23(b)(2), "at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief." I d. at 360. The Court focused on the fact that the claims for monetary relief were individualized, stating that this individual review is "precisely why [Rule 23](b)(3) requires the judge to make findings about predominance and superiority before allowing the class." Id. at 363.
1 Rule 23 (b)(2) allows certification of a class when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.'' Rule 23(b)(3) allows certification of a class "when the court finds that the questions oflaw or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."
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The Dukes plaintiffs argued for the application of the Ninth Circuit's "predominance
test," which finds that a Rule 23(b)(2) class is appropriate for backpay claims as long as the
money damages claims "do not 'predominate' over [plaintiffs'] requests for injunctive and
declaratory relief." !d. In rejecting this predominance test, the Supreme Court stated:
The predominance test would also require the District Court to reevaluate the roster of class members continually. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices. The Court of Appeals' response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company's employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the validity of a (b)(2) class depends on whether "final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole," Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declaratory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court's time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plaintiffs backpay claim as part of the class would not tum on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certified under Rule 23 (b)(2) at all.
!d. at 364-65.
Judge Sand, interpreting this paragraph, concluded that the Supreme Court created a
blanket prohibition of former employees seeking injunctive and declaratory reliefunder Rule
23(b)(2). Chen-Oster, 877 F. Supp. 2d at 121-22.
Judge Sand read Dukes too broadly. The Supreme Court did not itself reach the
conclusion that the former employees lacked standing-agreeing, instead, with the Ninth
Circuit's determination that the former employees, as a group, did not have standing-but
wanted to show the ineffective nature of the predominance test. See Dukes, 564 U.S. at 364-65.
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The Court's conclusion was primarily that Rule 23(b)(2) was incorrectly applied, not that the former employees lacked standing. See id.
Although Judge Sand found that "the Supreme Court's analysis of this issue, and its blanket denial of standing to ex-employees, is not dictum," Chen-Oster, 877 F. Supp. 2d at 121, other judges in this district have disagreed. The Honorable Jesse M. Furman, examining the same passage in Dukes, concluded that "the [Supreme] Court did not need to reach the question of whether a former employee seeking reinstatement would have standing to seek injunctive relief for its point-that some members of the class in Dukes lacked such standing-to be valid.... [T]he Court's point about class members' standing was not necessary to its conclusion that claims for monetary relief may not generally be certified under Rule 23(b)(2)." Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 468 (S.D.N.Y. 2013). Dukes did not address the impact of a request for reinstatement on standing: even though reinstatement was pleaded by the plaintiffs in Dukes, this question was "not part of the questions on which the Court granted certiorari." Id. (citing Petition for a Writ of Certiorari, Dukes, 564 U.S. 338 (No. 10-277), 2010 WL 3355820, at *1). As "it is not substantive discussion of a question or lack thereof that distinguishes holding from dictum, but rather whether resolution of the question is necessary for the decision of the case," Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011), the Court find that this language in Dukes is not controlling precedent here.
Other judges in this district have similarly disagreed with Judge Sand's conclusion. See, e.g., Robinson v. Blank, No. 11 Civ. 2849, 2013 U.S. Dist. Lexis 72068, at *17 n.3 (S.D.N.Y. Feb. 22, 2013) ("Despite Chen-Oster's reading of Dukes as precluding injunctive relief for any fonner employees (even those seeking reinstatement), this Court does not agree that Dukes reached so far."), adopted by 2013 U.S. Dist. Lexis 71471, at *3 (S.D.N.Y. May 20, 2013);
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Kubicek v. Westchester Cty., No. 08 Civ. 372, 2013 WL 5423961, at *8 (S.D.N.Y. Sept. 27, 2013) (summarizing Kassman in dicta); see also, e.g., Levin v. Madigan, 697 F. Supp. 2d 958, 975 (N.D. Ill. 2010) ("If Plaintiff's employment is reinstated, he may indeed be subject to the same allegedly discriminatory policy that he challenges in this lawsuit. To the extent that Plaintiff seeks an injunction requiring Defendants to cease engaging in sex or age discrimination, such relief would remedy a harm that Plaintiff is likely to suffer again." (citing City ofLos Angeles v. Lyons, 461 U.S. 95, 103 (1983))). Judge Francis has made his disagreement with Judge Sand's conclusion clear. Chen-Oster, 2012 WL 205875, at *8 (S.D.N.Y. Jan. 19, 2012); id., 2015 WL 1566722, at *15-16 (S.D.N.Y. Mar. 10, 2015); id., 2015 WL 4619663, at *2-4 (S.D.N.Y. Aug. 3, 2015). Moreover, despite the years since Dukes and Judge Sand's 2012 opinion, Defendants have not pointed to any other authority in this circuit that has read Dukes as broadly as Judge Sand did.2
And as Judge Sand recognized, a former employee's request for reinstatement opens the door to the possibility that a plaintiff may be injured in the future by the employer's discriminatory policy or practice. Chen-Oster, 877 F. Supp. 2d at 121-22 ("[W]here class members seek reinstatement, as Plaintiffs do here, it is certainly possible that 'final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.'" (quoting Fed. R. Civ. P. 23(b)(2))). Indeed, Judge Sand observed that the rule he adopted has significant policy ramifications:
2 The Honorable Colleen McMahon's opinion in Oakley v. Verizon Communications Inc. is not to the contrary. No. 09 Civ. 9175,2012 WL 335657 (S.D.N.Y. Feb. 1, 2012). In Oakley, the class included former employees and sought to "enjoin policies and practices that the company discontinued several years ago." !d. at *15. On that basis, Judge McMahon stated that the "[t]ormer employees lack standing to obtain injunctive relief because they are no longer affected by the challenged policies, and an injunction would do nothing to remedy their past injuries." !d. Judge McMahon did not discuss whether the former employees sought reinstatement; but even if the plaintiffs were seeking reinstatement, the former employees would lack standing to seek injunctive relief because they would not be injured by the challenged practice if reinstated.
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One need not engage in freewheeling "slippery slope" analyses to foresee some potential consequences of the Court's new rule. Plaintiffs who wish to certify a class under 23(b)(2) will be forced to remain employed, sometimes under very difficult conditions, to ensure standing. Employers who wish to forestall employees from certifying a class under the otherwise defendant-unfriendly Rule 23(b)(2), see Dukes, 131 S. Ct. at 2558, will be encouraged to terminate them. Neither outcome is desirable. Id. at 122. Accordingly, the Court now finds that Judge Sand's determination that Dukes categorically foreclosed former employees from seeking injunctive and declaratory relief is clearly erroneous, and that cogent and compelling reasons exist that require this Court to exercise its discretionary power to revisit Judge Sand's ruling. See Quintieri, 306 F.3d at 1225. "[C]onsiderations of fairness to the parties, judicial economy, and the societal interest in finality" do not outweigh this Court's interest in correcting the law and preventing manifest injustice. Carr, 557 F.3d at 102. The Court, therefore, joins the chorus of opinions in this district that hold that a former employee seeking reinstatement has standing to seek injunctive and declaratory relief. Standing is generally determined when the complaint is filed. See Friends ofthe Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 175(2000). The parties dispute whether an intervenor's standing is determined at the time of intervention, as Defendants suggest, or whether standing can relate back to the time of filing of the original complaint, as Plaintiffs argue. As the Second Circuit has made clear, an intervenor's standing is determined as of the date the motion to intervene was filed. See Comer v. Cisnero, 37 F.3d 775, 801 (2d Cir. 1994) ("[T]he intervenors certainly had standing at the time they filed their motions to intervene."); Robidoux v. Celani, 987 F.2d 931,938 (2d Cir. 1993) ("[T]he original plaintiff at the time the complaint was filed, and each intervenor at the time of her motion to intervene, was
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suffering ... injury capable of being redressed by declaratory or injunctive relief."); see also, e.g., Dillard v. Chilton Cty. Comm 'n, 495 F.3d 1324, 1339 (11th Cir. 2007) (citing Comer, 37 F.3d at 801).
The Court rejects Plaintiffs' argument that the intervenors' standing should be evaluated at the time of the filing of the original complaint, when Gamba and De Luis worked at Goldman Sachs, under the relation back doctrine. Although the relation back doctrine is typically applied in the context of Rule 15, which governs a party's amended pleadings, some courts have interpreted Rule 24 to "provide that an intervenor's claim may relate back to the case's original complaint for purposes ofthe statute oflimitations." ACORN v. County ofNassau, 270 F.R.D. 123, 125-26 (E.D.N.Y. 2010) (emphasis added) (citing New York v. Gutierrez, No. 08 Civ. 2503, 2008 WL 5000493, at *13 (E.D.N.Y. Nov. 20, 2008)). The relation back doctrine, however, does not apply to standing. Cf Police & Fire Ret. Sys. ofCity ofDetroit v. IndyMac MBS, Inc., 721 F.3d 95, 111-12 (2d Cir. 2013) (holding that relation back doctrine cannot rescue an intervenor's claim brought outside the statute of repose); Dupree v. Prudential Ins. Co. of America, No 99 Civ. 8337, 2007 WL 2263892, at *33 (S.D. Fla. Aug. 10, 2007) ("Standing does not 'relate back' to an earlier complaint: '[t]he only significance of relation back is avoidance of the bar of the statute of limitations."' (alteration in original) (quoting Morlan v. Universal Guar. Life Ins. Co, 298 F.3d 609, 617 (7th Cir. 2002))); 6A Wright, Miller, et al., Federal Practice & Procedure§ 1496 (3d ed.) ("Rule 15(c) is based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection ofthe statute oflimitations ...."). Plaintiffs cite no authority in this circuit where the relation back doctrine has been applied to establish standing, and the Court
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declines to do so here. Accordingly, the Court will measure each intervenor's standing from the date of her motion to intervene.
C. Mootness "While the standing doctrine evaluates a litigant's personal stake at the onset of a case, 'the mootness doctrine ensures that the litigant's interest in the outcome continues throughout the life of the lawsuit."' Comer, 37 F.3d at 797-98 (citation omitted) (quoting Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993)) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992)). Whether an "injunctive relief [claim] can continue ... is a question of mootness, not standing." Jones v. Goard, 435 F. Supp. 2d 221, 255 (S.D.N.Y. 2006). "[A] case 'becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.' 'As long as the parties have a concrete interest, however small, in the outcome ofthe litigation, the case is not moot."' Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (citation omitted) (quoting Knox v. Serv. Employees Int'l Union, LocallOOO, 132 S. Ct. 2277,2287 (2012)). "[T]he party seeking to have the case dismissed bears the burden of demonstrating mootness and that burden is a heavy one." Robinson v. Blank, No. 11 Civ. 2480, 2013 WL 2156040, at *13 (S.D.N.Y. May 20, 2013) (alteration in original) (quoting Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1997)). D. Reinstatement The Second Circuit has long expressed its "overarching preference in employment discrimination cases for reinstatement" as a remedy for Title VII violations. Reiter v. MTA NYC Transit Auth., 457 F.3d 224,230 (2d Cir. 2006) (citing NLRB v. Thalbo Corp., 171 F.3d 102, 110 (2d Cir. 1999)). "Reinstatement advances the policy goals of make-whole relief and deterrence in a way which money damages cannot." Id. (quoting Squires v. Bonser, 54 F.3d 168,
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172-73 (3d Cir. 1995)). Congress intended that Title VII "make the victims of unlawful discrimination whole, and ... the attainment of this objective ... requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination." Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 582 n.15 (1984) (quoting 118 Cong. Rec. 7168 (1972)). "Mindful ofthis admonition, courts have ordered the reinstatement of employees in different positions for which they are qualified where their original position was eliminated, or to positions in different geographic locations." Robinson, 2013 U.S. Dist. Lexis 71471, at *13.
"Reinstatement, however, may not always be possible." Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir. 1984). To determine if reinstatement is appropriate, courts conduct a fact-based assessment of feasibility. See Greenbaum v. Svenska Handelsbanken, 979 F. Supp. 973, 986 (S.D.N.Y. 1997) (Reinstatement "is an equitable remedy whose appropriateness depends upon the discretion of the court in the light of the facts of each individual case." (quoting EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 926-27 (S.D.N.Y. 1976)); see also Zakre v. Norddeutsche Landesbank Girozentrale, 541 F. Supp. 2d 555, 570 (S.D.N.Y. 2008)("[R]einstatement may be denied where the plaintiffs employment term would have already ended by the time ofjudgment, where reinstatement would displace an innocent third party, or where the[] employer-employee relationship may have been irreparably damaged." (internal quotation marks and citations omitted)).
Defendants argue that allegations of unlawful discharge are required for a plaintiff to be eligible for reinstatement. The Court cannot identify any such requirement. Reinstatement is, of course, most commonly employed to remedy unlawful discharge. However, courts in this circuit
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have granted reinstatement in a variety of other circumstances. See e.g., Muller v. Costello, 187 F.3d 298, 315 (2d Cir. 1999) (finding that "reinstatement and back pay may be ordered to remedy unlawful retaliation"); Carrero v. N.Y. C Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1987) (affirming district court's award of reinstatement after plaintiff was wrongfully demoted); Reiter v. Metro. Transp. Auth. ofNY., No. 01 Civ. 2762,2003 WL 22271223, at *13 (S.D.N.Y. Sept. 30, 2003) (awarding reinstatement to plaintiff who had been transferred to a less desirable position but retained the same title and salary); Shea v. Icelandair, 925 F. Supp. 1014, 1033-34 (S.D.N.Y. 1996) (ordering reinstatement following unlawful demotion, even where plaintiff voluntarily resigned thereafter); Nobler v. Beth Israel Med. Ctr., 715 F. Supp. 570, 574 (S.D.N.Y. 1989) (finding front pay appropriate to remedy discrimination claim only because reinstatement was impossible as unique position had been filled). Defendants repeatedly cite McPartland v. Am. Broadcasting Companies, Inc. for the proposition that "[r]einstatement is appropriate, however, only upon a finding that the plaintiff was unlawfully or retaliatorily discharged." No. 83 Civ. 0471, 1987 WL 14907, at *1 (S.D.N.Y. July 21, 1987). However, in light of the Second Circuit's decisions in Muller, which allowed reinstatement based on a retaliation cause of action where the plaintiffs "retaliation claim was not limited to his discharge but could include any adverse actions throughout his employment", 187 F.3d at 315, and Carrero, which affirmed an award of reinstatement following discriminatory demotion, 890 F.2d at 579, McPartland clearly can no longer be considered good law. 3
* * *
With these legal principles in mind, the Court now turns to the parties' motions.
3 McPartland cites only out-of-district case law for this proposition and, indeed, this McPartland opinion does not appear to have ever been cited by any court since being issued nearly thirty years ago.
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II. De Luis A. Defendants' Motion to Dismiss Defendants have moved to dismiss De Luis' claims for injunctive and declaratory relief.
De Luis intervened in April2015, ECF No. 377, and her last day of employment at Goldman Sachs was May 13, 2016, ECF No. 446. As a current employee at the time ofher intervention, De Luis had standing to seek injunctive and declaratory relief. See Comer, 37 F.3d at 801. Defendants contend that De Luis' claim became moot when she resigned from her position at Goldman Sachs. Defendants are incorrect.
First, in the second amended complaint, De Luis plausibly pleaded unlawful discrimination sufficient to support a request for reinstatement. To prove that De Luis' claim is moot, Defendants must satisfy a "heavy" burden, which they have not, to show that it would be "impossible" to grant De Luis reinstatement. Kassman v. KPMG LLP, No. 11 Civ. 3743, 2014 WL 3298884, at *10 (S.D.N.Y. July 8, 2014) ("[I]n order to demonstrate that [plaintiffs'] claims for injunctive relief are moot, Defendant must show, ... that at the time of class certification, it would be 'impossible' for [plaintiffs] to be seeking reinstatement ... [or] to be eligible for rehire."). Although De Luis was employed by Goldman Sachs at the time the second amended complaint was filed, De Luis alleged that she was consistently denied equal pay and fair performance evaluations, Second Am. Compl. ,-r 139, and the complaint states that Plaintiffs, including De Luis, seek an "order restoring Plaintiffs and Class Members to their rightful positions at Goldman Sachs," id. ,-r 205(j). A former employee may seek reinstatement-and, therefore, also have standing to seek declaratory and injunctive relief-even after voluntarily resigning. See Shea, 925 F. Supp. at 1018-19, 1033-34. On the basis ofthe second amended
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complaint, the Court cannot find that it is "impossible" that De Luis could be entitled to reinstatement, and her claims are, therefore, not moot.
Second, De Luis' proposed supplemental complaint, which addresses her departure from Goldman Sachs, also supports a potential remedy of reinstatement. De Luis states that she was "assured" that relocation to Miami would be possible in both March 2012 and September 2014, prior to her participation in the lawsuit. Am. Suppl. Compl. ~ 6. De Luis claims that "[c]oordination of [her] team ... was already being done remotely, as many members of the team were located inNew York or regional offices," id. ~ 8, and that "Goldman Sachs's reason for denying [her] transfer is pretext for its retaliatory conduct," id. ~ 9. Thus, De Luis resigned from Goldman Sachs "due to the consistent and systematic discrimination she had suffered over her nearly six years at Goldman Sachs, and faced with the choice of being separated from her significant other or sidelining her own career." Id. ~ 11. On that basis, De Luis seeks reinstatement to her rightful position at Goldman Sachs, id. ~~ 16, 21, 22, for which she may be entitled. Therefore, if the Court grants Plaintiffs' motion to file a supplemental complaint, then De Luis would have an additional basis to seek reinstatement. The Court now turns to Plaintiffs' motion.
B. Plaintiffs' Motion to Supplement Federal Rule of Civil Procedure 15(d) "permit[s] a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." A district court may grant a motion to file a supplemental pleading "in the exercise of its discretion, upon reasonable notice and upon such terms as may be just." Quaratino v. T(ffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). "Absent undue delay, bad faith, dilatory tactics, and undue prejudice to the party to be served with the proposed pleading, or
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futility, the motion should be freely granted." !d. The claims in the proposed supplemental pleading arose after Plaintiffs filed their second amended complaint, and Plaintiffs have not engaged in undue delay, bad faith, or dilatory tactics. Because discovery has not yet taken place on De Luis' claims, and because Defendants address the proposed supplemental pleading in their motion to dismiss, the proposed supplemental pleading will not cause undue prejudice. See Blockv. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). In opposition, Defendants contend that the supplemental pleading is futile. A supplemental pleading is futile when the "proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town ofN Hempstead Bd. OfZoning Appeals, 282 F.3d 83, 88 (2d. Cir. 2008).
Defendants first argue that De Luis has failed to state a claim for retaliation under Title VII. To establish a prima facie case of retaliation under Title VII, a plaintiff must show "(1) participation in a protected activity, (2) that the defendant knew ofthe protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). De Luis has met the first and second elements. See Am. Suppl. Compl. ~~ 4-6, 8-11. Defendants argue that De Luis' retaliation claim cannot satisfy the second two elements.
On what constitutes an adverse employment action, the Second Circuit has explained: The Supreme Court has held that in the context of a Title VII retaliation claim, an adverse employment action is any action that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." This definition covers a broader range of conduct than does the adverse-action standard for claims of discrimination under Title VII: "[T]he antiretaliation provision, unlike the substantive [discrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 20 15) (alterations in original) (citation omitted) (quoting Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
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An adverse employment action must be "more disruptive than a mere inconvenience or an alteration ofjob responsibilities," and can include "a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Chung v. City Univ. ofNY., 605 F. App'x 20,22 (2d Cir. 2015) (alteration in original) (quoting Sanders v. NY. C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)). De Luis satisfies this standard. After being "assured" that her transfer to Miami-where, indeed, she was hired initially-was possible, she was instead informed only that she would be "considered for an inferior position" there. Am. Suppl. Compl. ~~ 1, 6. Drawing all inferences in her favor, De Luis would suffer, at the least, a "less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities" in this inferior position. Chung, 605 F. App'x at 22. Accordingly, De Luis has plausibly alleged an adverse employment action.
As to causation, on a motion to dismiss, a plaintiff need only "suggest[] a plausible causal connection between two events." Perry v. NYSARC, Inc., 424 F. App'x 23, 26 (2d Cir. 2011). It is true that the Supreme Court has ruled that "temporal proximity cannot support an inference of causal connection unless the alleged retaliatory action and the protected activity were 'very close' in time." Id. (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,273-74 (2001)). However, unlike the complaint in Perry, De Luis pleads additional facts to support an inference of a causal connection, and need not rely solely on the temporal proximity: she pleads that other employees have been granted transfers or flexible work arrangements, that she received multiple assurances over multiple years that she would be allowed to transfer back to Miami, and that Goldman Sachs' purported reason for denying the request is undermined by the fact that other team members worked remotely. Compare Am. Suppl. Compl. ~~ 6-9, with Complaint, Perry,
18

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10 Civ. 6337 (W.D.N.Y. June 22, 2010), ECF No.1,~~ 27. 29. Accordingly, De Luis has adequately pleaded retaliation under Title VII.
Finally, Defendants contend that De Luis cannot state a claim for retaliation under the NYCHRL because she neither works inNew York City nor alleges that the discriminatory conduct impacted her in New York City. See Hoffman v. Parade Publ 'ns, 15 N.Y.3d 285, 291 (2010). The "impact" requirement "does not exclude all nonresidents from its protection; rather, it expands those protections to nonresidents who work in the city, while concomitantly narrowing the class of nonresident plaintiffs who may invoke its protection." Id. at 290. "Under the NYCHRL the impact ofthe employment action must be felt by the plaintiffin NYC." Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 183 (2d Cir. 2016) (NYCHRL claim properly dismissed where plaintiffworked, was supervised, and was terminated outside New York City and did not allege that she ever went to New York City for work). To succeed on a motion to dismiss, a defendant must show "that there is no possibility that there was an impact in New York." Chin v. CH2M Hill Companies, Ltd., No. 12 Civ. 4010,2012 WL 4473293, at *3 (S.D.N.Y. Sept. 28, 2012). They have not. De Luis pleaded that she "regularly travels to and works from the Goldman Sachs's New York, New York office," serves clients in New York, and that she had at least one meeting to discuss her career advancement at Goldman Sachs while in the New York office. Second Am. Compl. ~~ 138, 143. Such facts are sufficient, on a motion to dismiss, to plausibly suggest that she felt Goldman Sachs' alleged retaliation in New York. See, e.g., Regan v. Benchmark Co. LLC, No. 11 Civ. 451, 2012 WL 692056, at *14 (S.D.N.Y. Mar. 1, 20 12) (denying motion to dismiss where plaintiff worked out of theNew York office for part of her employment, "service[d] New York City-based clientele and remained under the management and supervision of [defendants'] New York City office"); see also Anderson v.
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HotelsAB, LLC, No. 15 Civ. 712, 2015 WL 5008771, at *3 (S.D.N.Y. Aug. 24, 2015) (denying motion to dismiss "where Plaintiff's employment responsibilities would have brought her within the boundaries ofNew York City"). Because it is plausible that De Luis felt Goldman Sachs' alleged retaliation, at least in part, in New York, her NYCHRL retaliation claim is not futile.
* * *
For the reasons stated above, Plaintiffs' motion to file a supplemental complaint, as amended, is GRANTED, and Defendants' motion to dismiss De Luis' claims for injunctive and declaratory relief is DENIED. III. Gamba
Defendants, relying on Judge Sand's opinion, move to dismiss Gamba's claims for injunctive and declaratory relief on the ground that Gamba does not have standing to bring a claim for injunctive and declaratory relief as a former employee. Gamba was employed at Goldman Sachs until August 2014, Second Am. Compl. ,-r 16, and her motion to intervene was filed in April2015, ECF No. 377. Because Gamba was no longer employed by Goldman Sachs at the time her motion to intervene was filed, the Court turns to whether Gamba had standing under the reinstatement exception described above. See Kassman, 925 F. Supp. 2d at 466.
Defendants argue that reinstatement is not feasible because Gamba's division, where she currently works, is no longer a part of Goldman Sachs. However, Gamba seeks reinstatement to her "rightful position[]" at Goldman Sachs. Second Am. Compl. ,-r 205(j). Gamba claims that Goldman Sachs' discriminatory policies included denying women opportunities to lateral into other areas of the firm, id. ,-r 56, disfavoring women in the distribution ofbusiness opportunities, id. ,-r,-r 156, 172, and providing women with less training and mentorship, id. ,-r 59. It is "the responsibility of a court that finds a [Title VII] violation ... to fashion equitable relief to make
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the claimant whole." Reiter, 457 F.3d at 230 (first alteration in original) (quoting Thalbo Corp.,

171 F.3d at 110). "A court can grant reinstatement where a comparable job exists even if it bears

a different title." Shea, 925 F. Supp. at 1030. As reinstatement "is an equitable remedy whose

appropriateness depends upon the discretion of the court in the light of the facts of each

individual case," Greenbaum, 979 F. Supp. at 986 (quoting Kallir, 420 F. Supp. at 926-27), and

drawing all inferences in her favor, it is premature to foreclose the possibility that Gamba may be

entitled to reinstatement at Goldman Sachs. Similarly, the Court cannot find that reinstatement is

"impossible," and thus cannot find Gamba's claims moot. See Kassman, 2014 WL 3298884, at

*10.

Accordingly, Defendants' motion to dismiss Gamba's claims for injunctive and

declaratory relief is DENIED.

CONCLUSION

For the reasons stated above, Plaintiffs' motion seeking to file a supplemental complaint

is GRANTED, and Defendants' motions to dismiss Gamba's and De Luis' injunctive and

declaratory relief are DENIED.

By April 26, 2017, the parties shall jointly write to the Court with a proposal on how to

proceed regarding Judge Francis' memorandum and order on the parties' Daubert motions, and

regarding Judge Francis' report and recommendation on Plaintiffs' motion for class certification,

both dated March 10, 2015. ECF Nos. 363, 364.

The Clerk of Court is directed to terminate the motions at ECF Nos. 441 and 457.

SO ORDERED.

Dated: April 12, 201 7 New York, New York

ANALISA TORRES United States District Judge

21

 
 Case 1:10-cv-06950-AT-JCF Document 486 Filed 04/25/17 Page 1 of 6

OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene Ossai Miazad 685 Third Avenue, 25th Floor New York, New York 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060
OUTTEN & GOLDEN LLP Paul W. Mollica 161 North Clark Street, Suite 1600 Chicago, Illinois 60601 Telephone: (312) 809-7010 Facsimile: (312) 809-7011

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

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK _______________________________________________

H. CRISTINA CHEN-OSTER; SHANNA ORLICH; ALLISON GAMBA; and MARY DE LUIS,

Plaintiffs,

10 Civ. 6950 (AT) (JCF)

- against -
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

SUPPLEMENTAL COMPLAINT (Trial by Jury Demanded)

Defendants. ________________________________________________

Pursuant to Federal Rule of Civil Procedure 15(d), Individual and Representative

Plaintiffs H. Cristina Chen-Oster, Shanna Orlich, Allison Gamba, and Mary De Luis

(collectively “Plaintiffs”) file this Supplemental Complaint regarding facts pertaining to Plaintiff

Mary De Luis (“Plaintiff De Luis”) arising after the Second Amended Complaint was filed and

plead claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and the

-1-

Case 1:10-cv-06950-AT-JCF Document 486 Filed 04/25/17 Page 2 of 6
New York City Human Rights Law (“NYCHRL”), New York City Administrative Code § 8-107 et seq. against Defendant Goldman, Sachs & Co. (“GS”) and Defendant The Goldman Sachs Group, Inc. (“GS Group”) (collectively “Goldman Sachs”) that could not have been pled before those jurisdictional facts occurred. Plaintiffs incorporate by reference the allegations of the Second Amended Complaint (Dkt. 411.) and allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
PARTIES Plaintiffs
Mary De Luis 1. Plaintiff De Luis was employed by Goldman Sachs from June 2010 to May 2016, first in Miami, Florida and then in Dallas, Texas. She also traveled to and worked out of Goldman Sachs’s New York, New York office. Defendants Goldman, Sachs & Co. 2. During all relevant times, Defendant GS was Plaintiff De Luis’s employer within the meaning of all applicable statutes. The Goldman Sachs Group, Inc. 3. During all relevant times, Defendant GS Group was Plaintiff De Luis’s employer within the meaning of all applicable statutes.
FACTUAL ALLEGATIONS 4. On August 2, 2015, Magistrate Judge James Francis permitted Plaintiff De Luis and Plaintiff Allison Gamba to intervene in the instant lawsuit as named plaintiffs. (Dkt. 410.) Goldman Sachs appealed the decision, and the motion was fully briefed on September 8, 2015.
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Case 1:10-cv-06950-AT-JCF Document 486 Filed 04/25/17 Page 3 of 6
(Dkt. 417.) On June 6, 2016, the District Court affirmed Magistrate Judge Francis’s decision permitting intervention. (Dkt. 453.)
5. In March 2016, during the pendency of Goldman Sach’s appeal, Plaintiff De Luis requested a transfer from Goldman Sachs’s Dallas office to its Miami office, due to the relocation of her significant other.
6. Although Plaintiff De Luis had been assured by Goldman Sachs in March 2012 and September 2014, prior to her participation in this lawsuit, that relocation to Miami in 2016 would be possible, her request was denied by her two male supervisors. The only options Plaintiff De Luis’s supervisors presented to her were to continue to work in Dallas or New York, away from her family, or apply and be considered for an inferior position in Miami.
7. Upon information and belief, employees in Plaintiff De Luis’s group and others have been granted transfers or flexible work arrangements due to personal or family constraints.
8. The reason Goldman Sachs provided to Plaintiff De Luis for the denial of her transfer request was that her supervisory function could not be carried out remotely. Coordination of Plaintiff De Luis’s team, however, was already being done remotely, as many members of the team were located in New York or regional offices. In addition, Plaintiff De Luis presented multiple reasons why her relocation to Miami would benefit the team and company.
9. Upon information and belief, Goldman Sachs’s reason for denying Plaintiff De Luis’s transfer request is pretext for its retaliatory conduct.
10. Upon information and belief, Goldman Sachs was aware of Plaintiff De Luis’s role as a named plaintiff in the instant lawsuit at the time they denied her request to transfer offices.
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Case 1:10-cv-06950-AT-JCF Document 486 Filed 04/25/17 Page 4 of 6
11. On May 2, 2016, due to the consistent and systematic discrimination she had suffered over her nearly six years at Goldman Sachs and faced with the choice of being separated from her significant other or sidelining her own career, Plaintiff De Luis was forced to resign.
CAUSES OF ACTION NINTH CLAIM FOR RELIEF
Retaliation (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)
(On Behalf of Plaintiff De Luis) 12. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as alleged above. 13. Plaintiff De Luis has exhausted her administrative remedies. Under the Second Circuit’s Single-Filing Rule, Plaintiff De Luis is entitled to piggy-back off the previous EEOC filings of the Named Plaintiffs in this case because those charges relate to the same claims that Plaintiff De Luis asserts. On June 7, 2016, Plaintiff De Luis also filed a charge of retaliation with the EEOC. On February 21, 2017, Plaintiff De Luis received a Dismissal and Notice of Rights from the EEOC for the claims alleged herein. 14. Plaintiff De Luis engaged in protected activities, including by joining in the instant lawsuit as a named plaintiff. 15. Goldman Sachs took adverse actions against Plaintiff De Luis with the purpose of retaliating against her because of her participation in protected activities, and Plaintiff De Luis suffered damages as a result of that conduct. 16. Plaintiff De Luis requests relief as hereinafter described, including reinstatement to her position at Goldman Sachs.
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Case 1:10-cv-06950-AT-JCF Document 486 Filed 04/25/17 Page 5 of 6
TENTH CLAIM FOR RELIEF Retaliation
(NYCHRL, New York City Administrative Code § 8-107 et seq.) (On Behalf of Plaintiff De Luis)
17. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as alleged above.
18. Plaintiff De Luis engaged in protected activities, including by joining in the instant lawsuit as a named plaintiff.
19. Goldman Sachs took adverse actions against Plaintiff De Luis with the purpose of retaliating against her because of her participation in protected activities, and Plaintiff De Luis suffered damages as a result of that conduct.
20. Goldman Sachs engaged in the retaliatory conduct alleged above during the liability period within the City of New York, and the retaliatory conduct had an impact within the City of New York
21. Plaintiff De Luis requests relief as hereinafter described, including reinstatement to her position at Goldman Sachs.
PRAYER FOR RELIEF 22. WHEREFORE, Plaintiffs prays for relief as follows:
(a) An order restoring Plaintiff De Luis to her rightful position at Goldman Sachs, or in lieu of reinstatement, an order for front pay benefits. JURY DEMAND
23. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury in this action. Dated: New York, New York
April 24, 2017
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Case 1:10-cv-06950-AT-JCF Document 486 Filed 04/25/17 Page 6 of 6
Respectfully submitted,
By: /s/ Adam T. Klein Adam T. Klein
OUTTEN & GOLDEN LLP Adam T. Klein Cara E. Greene Ossai Miazad 685 Third Avenue, 25th Floor New York, New York 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060
OUTTEN & GOLDEN LLP Paul W. Mollica 161 North Clark Street, Suite 1600 Chicago, Illinois 60601 Telephone: (312) 809-7010 Facsimile: (312) 809-7011
By: /s/ Kelly M. Dermody Kelly M. Dermody
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Kelly M. Dermody (admitted pro hac vice) Anne B. Shaver (admitted pro hac vice) 275 Battery Street, 29th Floor San Francisco, California 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Rachel Geman 250 Hudson Street, 8th Floor New York, New York 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
Attorneys for Plaintiffs and the Putative Class
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 Case 1:10-cv-06950-AT-RWL Document 578 Filed 03/30/18 Page 1 of 49

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK H. CRISTINA CHEN-OSTER, LISA PARISI, SHANNA ORLICH, ALLISON GAMBA, and MARY DE LUIS,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: 3/30/2018

Plaintiffs,

-against-

10 Civ. 6950 (AT) (RWL)

GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

OPINION AND ORDER

Defendants. ANALISA TORRES, District Judge:

On September 16, 2010, Plaintiffs, a group of women who worked at Goldman, Sachs &

Co. and The Goldman Sachs Group, Inc. (collectively, “Goldman Sachs” or “Defendants”), filed

this putative class action alleging gender discrimination under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq., and the New York City Human Rights Law (“NYCHRL”),

N.Y.C. Admin. Code § 8-101 et seq. On March 10, 2015, the Honorable James C. Francis issued

a Memorandum and Order (“M&O”) excluding some, but not all, expert testimony submitted in

connection with Plaintiffs’ motion for class certification. Francis M&O, ECF No. 363. On the

same day, Judge Francis issued a Report and Recommendation (“R&R”) recommending that the

Court deny Plaintiffs’ motion. Francis R&R, ECF No. 364. The Court held in abeyance briefing

on objections to Judge Francis’ M&O and R&R as to Rule 23(b)(3) class certification while it

addressed other motions. See ECF Nos. 370, 437, 454. On April 28, 2017, the Court set a

briefing schedule for objections to the M&O and R&R, see ECF No. 488, and briefs were fully

submitted on August 1, 2017, see ECF Nos. 522, 531–35. For the reasons stated below, the

parties’ objections on expert testimony are OVERRULED. Objections on class certification are

SUSTAINED in part and OVERRULED in part. Accordingly, Plaintiffs’ motion to certify the

class pursuant to Rule 23(b)(3) is GRANTED in part and DENIED in part.

Case 1:10-cv-06950-AT-RWL Document 578 Filed 03/30/18 Page 2 of 49
BACKGROUND I. Individual Plaintiffs
A. H. Christina Chen-Oster Plaintiff H. Chen-Oster joined Goldman Sachs in March 1997. She worked as a salesperson in the firm’s Securities Division—first in the Convertible Sales Business Unit and later in U.S. Research Sales. Francis R&R, at 2. She held the title of Vice President from June 1997 until she resigned in March 2005. Chen-Oster Decl. ¶ 3, ECF No. 253. Chen-Oster claims she that was constructively discharged as a result of systemic discrimination at the firm, id. ¶¶ 3, 13, and that, because of her gender, she was denied a fair performance review, denied fair pay, and denied promotion to Managing Director, id. ¶ 4. At the time of the R&R, Chen-Oster still worked in the financial services industry as a Managing Director for Deutsche Bank. Id. ¶ 16; Class Cert. Hr’g Tr. I, at 113, ECF No. 343; Francis R&R, at 3.
B. Shanna Orlich Plaintiff Shanna Orlich began working at Goldman Sachs in 2006 as a summer associate, where she rotated through various trading departments. Orlich Decl. ¶ 2, ECF No. 255. Orlich returned to the firm in July 2007, working as an Associate in the Securities Division. Id. ¶ 3. In November 2008, she was laid off. Id. at ¶ 4; Francis R&R, at 3. Orlich contends that during her time at the firm she was subjected to an unfair performance review and lower pay because of her gender. Orlich Decl. ¶¶ 4, 6–8. She also reports a culture that is “hostile to women.” Id. ¶ 9. She cites examples such as her male Managing Director hiring scantily clad female escorts to attend a holiday party, and a Vice President inviting every man in her department to attend a golf game, but not Orlich, despite Orlich having played varsity golf in high school. Id.
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C. Allison Gamba Plaintiff Allison Gamba joined Goldman Sachs as a trader in 2001 when it acquired her then-employer Spear, Leeds & Kellogg, L.P. Gamba Decl. ¶ 3, ECF No. 254; Second Am. Compl. ¶ 16, ECF No. 411. In 2003, she began working in the Securities Exchange Equities unit, and in about 2005 or 2006, she was promoted to Vice President of that unit. Id. Gamba avers that, because of her gender, she faced discriminatory performance reviews and compensation, and that she was passed over in 2008 for a promotion to Managing Partner— despite earning the firm significant profits during her tenure as Vice President. Id. ¶¶ 5–9, 11. After she assumed control of her section in 2006, for example, stock earnings quadrupled to $4 million. Id. ¶ 11. Likewise, profits rose to $6 million in 2007 and $9.5 million in 2008. Id. Like Orlich, Gamba also reports experiencing what she calls a “boy’s club” culture at the firm, such as exclusion from events such as barbeques and golf outings organized and attended by her male colleagues. Id. ¶ 18. She left the firm in August 2014, when Goldman Sachs sold the business unit in which she worked. Second Am. Compl. ¶ 16; Answer ¶ 16, ECF No. 426.
D. Mary De Luis Plaintiff Mary De Luis began working for Goldman Sachs in 2010 as a Senior Analyst in the Investment Management Division. Second Am. Compl. ¶ 137.1 In 2012, she was promoted to the position of Associate, and later to Vice President in December 2014. Id. De Luis believes that her gender influenced unfair performance evaluations and a smaller bonus. Id. ¶ 139. For example, De Luis alleges that when she told her male supervisors that she was
1 Plaintiffs have not submitted a declaration for De Luis and she has not yet been deposed. Accordingly, the Court relies on the Second Amended Complaint’s allegations about her employment history, which do not appear to be in substantial dispute. See Answer ¶¶ 137– 141. Goldman Sachs denies that De Luis’ supervisors referenced her domestic partner’s occupation. Id. ¶ 142.
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undercompensated compared to the market, they brought up the career of her male domestic partner, who is an oncologist. Id. ¶¶ 141–42.
E. The Class Plaintiffs bring this action on behalf of a class of similarly situated current and former female Associates and Vice Presidents employed by Goldman Sachs in revenue-generating divisions: Investment Banking, Investment Management, and Securities. Id. ¶ 10 n.1. The class covers employees at Goldman Sachs and its predecessors in the United States from September 10, 2004 through the resolution of this action, id. ¶ 61, and employees working in New York City from July 7, 2002 through the resolution of this action, id. ¶ 62. Although “the precise number of female financial-services employees at the Associate[] and Vice President levels at Goldman Sachs” is not known, id. ¶ 64, the parties estimate the class size is between approximately 1,762 and 2,300 persons. Plaintiffs allege that Goldman Sachs has discriminated against class members in evaluation, compensation, and promotion. See generally Second Am. Compl. Specifically, Plaintiffs claim that Goldman Sachs (1) employs multiple facially neutral policies that have a disparate impact on women, (2) continues to employ those policies despite knowledge of their disparate impact on women, and (3) maintains a “boy’s club” culture that discriminates against women. Id. II. Goldman Sachs Goldman Sachs is a leading financial services company headquartered in New York. The named Plaintiffs have worked in three out of four of Goldman Sachs’ revenue-generating divisions: Investment Banking, Investment Management, and Securities. These divisions are ach split into two subdivisions. The Securities Division is divided into Fixed Income, Currencies and
4

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Commodities (“FICC”) and Equities. Kirk Decl. ¶ 3, ECF No. 279; Levene Decl. ¶ 2, ECF No. 280. The Investment Banking Division contains Classic Banking and Financing. Francis R&R, at 5; Packer Decl. ¶ 3, ECF No. 284; Benz Decl. ¶ 3, ECF No. 266. And the Investment Management Division is divided into Private Wealth Management and Goldman Sachs Asset Management. Francis R&R, at 4–5; Taylor Decl. ¶ 3, ECF No. 291.
Within each of these subdivisions are even more specialized business units. See Schematic of Business Units, ECF No. 264-1. For example, within the Financing subdivision are business units organized by product, such as Leveraged Finance, Structured Finance, and Equity Capital Markets. Benz Decl. ¶ 3. Business units in the Classic Banking Subdivision are organized by industry, including Industrials, Consumer Retail, and Technology/Media and Telecommunications. Id.
Business units are not stable; they move between divisions and subdivisions and can be eliminated or consolidated. The Public Sector & Infrastructure business unit, for instance, which is currently housed in the Investment Banking Division, Benz Decl. ¶ 2, has moved from the FICC subdivision (itself housed within a different overall division, Securities), to the Classic Banking subdivision, to the Financing subdivision, id. ¶ 13. In a similar vein, in 2003, there were as many as 227 business units, but as few as 94 two years later in 2005. Farber Rebuttal ¶ 32, ECF No. 314; Class Cert. Hr’g Tr. II, at 218, ECF No. 345. Across business units, Goldman Sachs employed two systems for evaluating its employees, known as “360 review” and “manager quartiling.”
A. Performance Evaluation 1. 360 Review
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Each year, every Goldman Sachs professional undergoes the 360 review process. At the outset, each employee performs a self-evaluation and names 8 to 12 evaluators—subordinates, bosses, peers, and internal clients—with whom he or she has recently worked. Kung Dep. at 280–81, ECF Nos. 265-11, 265-12, 265-13. An employee’s direct manager may modify the list of evaluators, typically in consultation with that employee. Id. at 281–85. The evaluators, who are pulled from both the employee’s business unit and other units, Geman Decl. ¶¶ 5–6, ECF No. 311, then assign a numerical value to a range of criteria. In one year, all Goldman Sachs professionals were evaluated on these criteria: “Technical Skills,” “Communication Skills,” “Judgment,” “Teamwork,” “Compliance,” “Diversity,” “Leadership,” “Overall Commercial Effectiveness,” and “Overall Professional Performance.” Francis R&R, at 7; see also Kung Dep. at 305–07. The 360 review process was employed across each of Goldman Sachs’ divisions throughout the class period. After the 360 review process is complete, managers receive the reviews and then add their own evaluations and narrative summaries. Kung Dep. at 321.
2. Quartiling The second evaluation procedure Goldman Sachs uses is “quartiling,” or what Plaintiffs refer to as “forced ranking.” Managers assign each professional to one of five “quartiles.” The top 25% of employees go to quartile 1, the next 25% to quartile 2, the next 25% to quartile 3, the next 15% to quartile 4, and the bottom 10% to quartile 5. Kung Dep. 316–18; Francis R&R, at 8. Goldman Sachs instructed its managers to place employees in one of the five quartiles based on seven factors: (1) 360 review data, (2) quality of performance, (3) long-term commercial impact or contribution, (4) technical and functional expertise, (5) potential to assume increasing responsibility, (6) leadership and management skills, and (7) diversity and citizenshiprelated activities. Manager Performance Rating Toolkit, ECF No. 265-16; see also Guidelines
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for the Manager Performance Rank, ECF No. 265-17 (instructing managers to rank employees based on their “performance, contribution, and potential relative to: (1) expectations for that individual’s level of experience and position; and (2) that individual’s peers”). Generally, quartile ranking “relies heavily on the results of the 360 review process and on production numbers, where present.” Ward Report, at 32, ECF Nos. 298, 298-1; see also Guidelines for the Manager Performance Rank (“Comments and ratings from 360 reviewers and any relevant midyear comments should be a key input for your ranking decisions.”). Goldman Sachs guidelines also advise that rankings “should approximate a forced distribution over the entire division, but need not be exact.” Guidelines for the Manager Performance Rank; see also Heller Dep. at 322, ECF No. 248-21 (noting that quartiles have “soft edges”).
At the conclusion of the quartiling process, managers ensure the units have complied with distribution goals. See Heller Dep. 84:15–85:2, 90:17–91:1, 320–21; Landman Dep. at 15:3–11, ECF Nos. 248–13, 265–14; Larson Dep. at 191:23–192:10, ECF Nos. 248-24, 265-19, 358-5; Kung Dep. at 311:16–312:8. That is, managers may move employees to different quartiles in order to enforce the distribution and avoid “grade inflation.” Francis R&R, at 9; Heller Dep. at 320–21; Kung Dep. at 322, 332; Larson Dep. at 161–62, 187–88; see also Campion Report ¶¶ 50, 59, ECF No. 294 (forced ranking “mitigates the tendency to homogenize evaluation scores” and to award everyone “an above-average rating”). In a similar vein, Human Capital Management—Goldman Sachs’ human resources department—will inquire and adjust rankings if there are great discrepancies between the 360 reviews and the quartile. Kung Dep. at 325–27.
B. Compensation Professionals at Goldman Sachs are typically compensated with a base salary and a yearend bonus, with the bonus representing the largest portion of a professional’s annual
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compensation. Francis R&R, at 10; Mehling Dep. at 226–27, ECF Nos. 248-25, 265-22, 358-6. Some professionals, such as Private Wealth Advisors, receive a cut of commissions rather than a year-end bonus.
The process of determining compensation begins with Goldman Sachs allocating a budget to each division in the company. Francis R&R, at 10; Kung Dep. at 56–57; Larson Dep. at 60. Managers at the division level, typically the Chief Operating Officer and Chief Financial Officer, then further divide the budget among the various business units. Francis R&R, at 10; Kung Dep. at 56–57; Larson Dep. at 61. Managers then recommend compensation for specific employees. Francis R&R, at 10; Kung Dep. at 58–59; Larson Dep. at 61. Compensation recommendations then wind their way back up the chain, Francis R&R, at 10, with compensation proposals reviewed by the business unit head, then reviewed by a division-wide compensation committee, and finally, by the firm-wide compensation committee, id. at 10–11; Kung Dep. at 59–60, 64–67, 68–70; Heller Dep. at 24; Larson Dep. at 62–63. Quartile scores informed but were not determinative of compensation decisions. See, e.g., Casturo Decl. ¶ 17, ECF No. 268 (“[W]e consider manager quartile in making compensation decisions for both sales representatives and traders . . . . [but] it is just one input into compensation determinations.”); McNamara Decl. ¶ 18 n.5, ECF No. 282.
C. Promotion At Goldman Sachs, the vetting process for promoting Vice Presidents to Managing Directors is known as “cross-ruffing.” Francis R&R, at 11; Kung Dep. at 398; Heller Dep. at 80; Larson Dep. at 227. Cross-ruffing does not involve an application process; rather, the firm selects Vice Presidents to promote through cross-ruffing. Vice Presidents generally need to rank
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in the first or second quartile to be promoted. Kung Dep. at 429 (“[O]ur strongest performers are promoted and typically they would be ranked Q1s and Q2s.”).
At the outset, human resources staff work with business unit heads and other managers to develop a division-wide list of candidates for promotion. Heller Dep. at 205:18–23, 234:1–3; Larson Dep. at 227:15–21; Kung Dep. at 414–15, 419:5–24; see also Ward Report, at 73. The list is often ranked to emphasize priority candidates. There is significant overlap between the persons on the compensation committee and the persons on the cross-ruffing committee that determines eligibility for promotion. Larson Dep. at 228.
This list of candidates then goes to division heads. Larson Dep. at 232. Division heads may remove or add a candidate, and they may modify their relative rank. Kung Dep. at 417–21; Larson Dep. at 232–35. Following approval by the division head, the list goes onto the firmwide talent assessment group. Larson Dep. at 240.
In addition to compiling a list of candidates for promotion, the firm develops a list of “cross-ruffers.” Cross-ruffers are Managing Directors at the firm who evaluate the candidates. Heller Dep. at 218, 224; Larson Dep. at 224; Kung Dep. at 440–42. Human resources initially generates a list of proposed cross-ruffers in consultation with the division heads, which is then submitted to the firmwide talent assessment group. Larson Dep. at 235, 240. After the crossruffers are chosen, they are trained by the firm-wide talent assessment group. Id. at 241.
The process of evaluating the candidates primarily involves interviewing about a dozen persons familiar with the candidate’s work, including managers, peers, and internal clients. Id. at 242–44. Cross-ruffers will be assigned a handful of candidates for evaluation who are outside the cross-ruffer’s business unit. In the course of their interviews, cross-ruffers complete standardized forms and criteria to be discussed in the interviews. Id. at 245. After the interviews
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are complete, the cross-ruffers meet for a day-long meeting to develop a ranked list of candidates, which is ultimately submitted to the firm-wide talent assessment group and division heads. Larson Dep. at 245–46; Heller Dep. at 226; Kung Dep. at 448–49. Ultimately, Goldman Sachs’ management committee decides who is promoted. Larson Dep. at 248–50; Francis R&R, at 13–14. III. Procedural History
On September 16, 2010, Plaintiffs H. Christina Chen-Oster and Shanna Orlich2 filed this putative class action alleging intentional discrimination, disparate impact discrimination, retaliation, and pregnancy discrimination under Title VII and the NYCHRL. ECF No. 5. The Honorable Leonard B. Sand originally presided over this case, before it was reassigned to the undersigned on May 24, 2013. ECF No. 181.
A. Standing This case’s long and circuitous history is largely attributable to a dispute over whether former Goldman Sachs employees can obtain injunctive and declaratory relief against the firm. In 2012, Judge Sand ruled that they could not, granting Goldman Sachs’ motion to strike Plaintiffs’ Rule 23(b)(2) class allegations for want of standing. ECF No. 158 at 14; Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 122 (S.D.N.Y. 2012). That is, Judge Sand held that Plaintiffs who no longer worked at Goldman Sachs lacked standing as a class to enjoin or declare unlawful the firm’s practices that allegedly discriminated against women. Chen-Oster, 877 F. Supp. 2d at 122.
2 Originally, Lisa Parisi was also a named plaintiff. Because Parisi’s claims are subject to a binding arbitration agreement, however, ECF No. 171; see Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013), she is no longer a named Plaintiff, see generally Second Am. Compl.
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On April 13, 2015, Plaintiffs filed a motion to add two additional named Plaintiffs, Allison Gamba and Mary De Luis, ECF No. 377, which was granted on August 3, 2015, ECF No. 410; see also ECF No. 450 (affirming magistrate order at ECF No. 410). That same day, Plaintiffs filed a second amended complaint that included Gamba’s and De Luis’ claims. ECF No. 411.
Relying on Judge Sand’s 2012 order, ECF No. 158, Defendants moved to dismiss Gamba’s claims for injunctive and declaratory relief on September 28, 2015, ECF No. 441. In a similar vein, by letter dated May 9, 2016, Defendants notified the Court that De Luis no longer worked for Goldman Sachs, ECF No. 446, and subsequently moved to dismiss her claims on the same ground, ECF No. 457.
On April 12, 2017, the Court denied Goldman Sachs’ motion to dismiss Gamba and De Luis’ claims for injunctive and declaratory relief, and permitted Plaintiffs to file a supplemental complaint, ECF No. 479, which they did on April 12, 2017, ECF No. 486. Because the rule of law announced in Judge Sand’s 2012 order relied on dicta and was in conflict with several other decisions considering the issue, the Court abrogated it and revived Plaintiffs’ claims for declaratory and injunctive relief. ECF No. 479, at 5–11. In effect, the Court reasoned that because a former employee may face the same allegedly discriminatory policy after she is reinstated, she has standing to sue for injunctive and declaratory relief. See id.
Goldman Sachs sought interlocutory review of this ruling on April 25, 2017. ECF No. 484. On June 14, 2017, the Court granted Goldman Sachs’ request and certified two questions for appeal: (1) whether former employees lack standing to seek injunctive or declaratory relief against their former employer, and (2) whether a former employee who has not alleged unlawful discharge can seek the remedy of reinstatement under Title VII. ECF No. 500. On August 29,
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2017, the Second Circuit denied Goldman Sachs’ petition for interlocutory review. ECF No. 539.
B. Class Certification and Daubert Motions Plaintiffs filed their motion for class certification on May 19, 2014, ECF No. 246, and the Court referred it to the Honorable James C. Francis for a Report and Recommendation, ECF No. 240. Judge Francis held a two-day hearing on the admissibility of expert testimony and class certification. See generally Class Cert. Hr’g Tr. I; Class Cert. Hr’g Tr. II. The M&O on expert testimony excluded some, but not all, expert testimony submitted in connection with Plaintiffs’ motion for class certification. See generally Francis M&O. The R&R determined that all factors of Rule 23(a)—numerosity, commonality, typicality, and adequacy—had been satisfied. Yet, Judge Francis ultimately recommended against certifying a class pursuant to Rule 23(b)(3) because individual causation issues would predominate over class-wide issues. Francis R&R, at 6–14, 24–35. And in reliance on Judge Sand’s 2012 order, the R&R also recommended that former employees could not seek injunctive or declaratory relief. On August 30, 2017, the Court revived Plaintiffs’ injunctive and declaratory class claims after the Second Circuit’s denial of interlocutory review, and vacated those parts of the R&R that, in reliance upon Judge Sand’s earlier ruling, recommended that Rule 23(b)(2) and (c)(4) class certification were unavailable to Plaintiffs. ECF No. 540. As a result, this opinion addresses only the portion of Plaintiffs’ motion that seeks class certification under Rule 23(b)(3). Class claims for injunctive and declaratory relief under Rule
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23(b)(2) and (c)(4) are now being pursued on a separate track—currently scheduled to be fully submitted in late 2018.3 See ECF No. 568.
DISCUSSION I. Expert Testimony
A. Legal Standards 1. Rule 702
Under Rule 702 of the Federal Rules of Evidence, expert testimony may be admitted if it (1) “help[s] the trier of fact to understand the evidence or to determine a fact in issue,” (2) “is based on sufficient facts or data,” (3) “is the product of reliable principles and methods,” and (4) “the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. In other words, Rule 702 requires expert testimony to “be not only relevant, but reliable.” United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015).
The Supreme Court’s decision in Daubert detailed factors for district courts to consider in determining reliability, “includ[ing] the theory’s testability, the extent to which it ‘has been subjected to peer review and publication,’ the extent to which a technique is subject to ‘standards controlling the technique’s operation,’ the ‘known or potential rate of error,’ and the ‘degree of acceptance’ within the ‘relevant scientific community.’” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993)). “Under Daubert and Rule 702, expert testimony should be excluded if the witness is not actually applying expert methodology.” United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003).
2. Standard of Review
3 In their objections, Plaintiffs alternatively argue for the Court to certify a class pursuant to Rule 23(c)(4). The Court declines to consider (c)(4) arguments in the context of this opinion on Rule 23(b)(3).
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A district court reviews a magistrate judge’s decision to admit or exclude expert testimony under the “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); see also Sansalone v. Bon Secours Charity Health Sys., Inc., No. 05 Civ. 8606, 2009 WL 1649597, at *1 (S.D.N.Y. June 11, 2009) (explaining that “the decision to admit or exclude expert testimony is considered nondispositive of an action” and, therefore, the “‘clearly erroneous or contrary to law’ standard of review . . . [of] Federal Rule of Civil Procedure 72” applies). “An order is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Lifeguard Licensing Corp. v. Ann Arbor T-Shirt Co., LLC, No. 15 Civ. 8459, 2017 WL 3142072, at *1 (S.D.N.Y. July 24, 2017) (internal quotation marks omitted). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Id. Here, the Court concludes that the M&O does not contain clear error and is not contrary to law.
B. Michael A. Campion Judge Francis denied Plaintiffs’ motion to strike portions of an expert report prepared for Defendants by Michael A. Campion, Ph.D., a Professor of Management at Purdue University. See Francis M&O, at 33–34. Judge Francis reasoned that Plaintiffs’ argument went “exclusively to Dr. Campion’s opinions on the merits of their claims and not to issues of class certification,” and, accordingly, denied their motion as premature. Id. at 34. In their objections, Plaintiffs do not argue that Dr. Campion’s opinions do, in fact, go to class certification. Rather, they argue only that “another Court may determine otherwise” and Judge Francis’ ruling thereby “opens the possibility that starkly unreliable opinions . . . will inform the record at a later stage of the case, or even at certification.” Pls. Objs. Campion, at 3–4, ECF No. 501.
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Even if Plaintiffs are correct, the Court cannot infer that Judge Francis’ ruling on prematurity was clear error or contrary to law. The Daubert inquiry is limited by the stage of the litigation. See, e.g., In re NYSE Specialists Sec. Litig., 260 F.R.D. 55, 66 (S.D.N.Y. 2009) (explaining that, at the certification stage, “the Court may only examine the expert reports as far as they bear on the Rule 23 determination”). And even if, as Plaintiffs argue, “the Court has the authority to exclude unreliable opinions that do not go to disputed issues,” Pls. Objs. Campion, at 5 (emphasis added), Judge Francis’ decision not to exercise that authority is not clearly erroneous.
C. Michael P. Curran In his M&O, Judge Francis excluded the expert report that Michael P. Curran, a director of Towers Watson, a business consulting firm, prepared on behalf of Defendants (the “Curran Report”). Francis M&O, at 34–37. In his report, Curran “expressed opinions about the structure of compensation in the financial services industry” at large. Id. at 35. In their motion to strike the Curran Report, ECF No. 306, Plaintiffs explained, first and foremost, that, by his own admission, Curran “did not consider, much less rely on, any Goldman-specific documents in connection with any of his opinions,” id. at 2. As a result, Plaintiffs argued, the Curran Report was irrelevant at this stage of the litigation. Id. Judge Francis agreed, ruling that the fact that the report was not Goldman-specific was “fully dispositive” because industry practice was “not pertinent to class certification.” Francis M&O, at 36–37. Defendants largely argue that Judge Francis committed “clear error” because the Curran Report’s opinions on industry practice (1) buttress the other testimony Defendants submitted, especially the testimony of their statistical expert, Michael P. Ward, Ph.D., on the impact of
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gender at Goldman, and (2) undermine the testimony of Plaintiffs’ rival statistical expert, Henry S. Farber, Ph.D. See Defs. Objs. Curran, at 3–6, ECF No. 503. Defendants are incorrect.
Because the Curran Report discusses only industry practice, the Court finds it unlikely that it can either support or undermine Dr. Ward’s or Dr. Farber’s statistical analyses of Goldman Sachs, specifically. General knowledge about the financial services industry (or, indeed, uninformed speculation about Goldman Sachs) could hardly be relevant or reliable on the question of whether a statistician’s methodology is sound or supported. See SEC v. Tourre, 950 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2013) (excluding testimony because the expert’s knowledge and expertise was in “so broad a category as to become meaningless when particularized” to the issues of the case). To be sure, the Court agrees with Judge Francis and Defendants that, as a general matter, expert testimony on industry practice may be admissible at the class certification stage. See Defs. Objs. Curran, at 6–8. But as Judge Francis explained, the Curran Report does not address the question at hand: “whether there are common issues relating to Goldman Sachs and the claims against it.” Francis M&O, at 37. Accordingly, excluding the report was not clear error.
D. Michael P. Ward Judge Francis also granted Plaintiffs’ motion to strike a portion of the expert report of Dr. Ward, Defendants’ statistical expert on gender. Id. at 25–29. Specifically, Judge Francis excluded two studies consisting of “matching pair” analyses. Id. In both exercises, Dr. Ward examined pairs of similarly situated Vice Presidents at Goldman Sachs who, despite their similarity, had ended up with “very different” compensation. Id. at 26–27. Dr. Ward then spoke with the Vice Presidents’ managers, and, ultimately, concluded that there were factors contributing to the difference in compensation that the parties’ statistical models did not capture.
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For the first study, Dr. Ward looked to Dr. Farber’s factors to match “similarly situated” pairs. Id. at 26–27. For the second study, Dr. Ward matched pairs based on his own factors. Id.
Judge Francis ruled that Dr. Ward’s matching pair studies were unreliable because (1) Dr. Ward made no findings on the statistical significance of the studies, (2) his sample size of only 2 pairs in the first study could not be statistically significant, (3) his analysis was “subject to bias” because it was Defendants’ counsel who hand-picked the pairs Dr. Ward discussed in his report, and (4) his analysis suffered from “a significant danger of reporting bias,” given Dr. Ward’s reliance on interviews with the Vice Presidents’ managers. Id. at 27–28. Finally, in response to Defendants’ argument that the studies were not proffered as statistical evidence, Judge Francis concluded that, if true, the studies were not properly “expert” testimony and should be excluded. Id. at 29 (“It is inappropriate to present that evidence with the imprimatur of an expert witness.”).
Defendants argue that Judge Francis’ ruling was “clear error” because (1) each study “was not itself a ‘statistical analysis,’” but was a “a real world check” on the reliability of his and Dr. Farber’s statistical analyses, and that such a “real world check” permitted Dr. Ward to “render an expert opinion on the competency of those models,” (2) Dr. Ward was acting as an expert when conducting the studies, (3) Dr. Ward was permitted to rely on historical facts that had already come into the case, and (4) Dr. Ward was permitted to rely on biased witnesses. Defs. Objs. Ward, at 8–12, ECF No. 504.
As an initial matter, as far as the Court is aware, it is undisputed that matching is a type of statistical technique. See id. at 10 (“The use of matched pairs also is routine in the field.”); id. at 13 (arguing that matching is “a valid mechanism commonly used by statisticians”). Defendants cannot circumvent the requirements of Rule 702 and Daubert by labeling a statistical expert’s statistical exercises a “real world check.” See id. at 9. A wolf in sheep’s clothing is still
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a wolf. Under Daubert, the Court must exercise its gatekeeping function accordingly, and “exclude unreliable expert testimony and junk science from the courtroom.” See Almeciga v. Ctr. for Investigative Reporting, Inc., 185 F. Supp. 3d 401, 415 (S.D.N.Y. 2016); see also F.D.I.C. v. Suna Assoc., Inc., 80 F.3d 681, 686 (2d Cir. 1996) (“[E]xpert testimony must be based upon reliable theories or principles.”). For all the reasons Judge Francis outlined, therefore, the matching pair studies are unreliable. Excluding the studies was not clear error.4
E. Henry S. Farber Defendants moved to exclude all the testimony of Dr. Farber, the Plaintiffs’ statistical expert on the impact of gender at Goldman Sachs,5 for two primary reasons: (1) “Dr. Farber
4 Even if Dr. Ward were permitted to testify that the matching pairs are simply a “meaningful lens” through which to consider his and Dr. Farber’s statistical analysis, Defs. Objs. Ward, at 9, Defendants would still be caught in an untenable position. In effect, they would be using junk science to argue that Plaintiffs’ expert analysis is based on junk science. Id. at 9–10. This argument is akin to pointing to a flying bird to refute the law of gravity—it is grounded in neither logic nor science.
5 In his report, Dr. Farber tested: a. Whether there is statistical evidence of discrimination in pay against women who are
members of this class. b. To the extent that I find statistical evidence of discrimination in pay against women
who are members of the class, the extent to which these differences in pay can be explained by differences between how men and women far in Goldman’s performance review system. c. Whether there is statistical evidence of a difference in how men and women fare in Goldman’s performance review system. d. Whether there is statistical evidence of disparities between men and women in promotion rates from Vice President positions to positions as Managing Directors through 2008. Farber Report, ¶ 6, ECF No. 259.
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impermissibly aggregated across three distinct Divisions in building his model,” thereby failing both to pass the “Chow”6 test for aggregate analysis and to provide proof of Rule 23(a) commonality, and (2) “Dr. Farber’s regression analysis omitted the key variables that drove evaluation, compensation, and promotion decisions at Goldman Sachs,” including the effect of the 360 review and quartiling processes on compensation and promotion. Defs. Objs. Farber, at 8, ECF No. 505.
Judge Francis rejected both arguments. On Defendants’ aggregation argument, Judge Francis reasoned that (1) aggregate analysis was appropriate because “Goldman Sachs utilizes 360 review and quartiling in each division and every business unit,” (2) disaggregation “tends to mask common mechanisms because the sample size in each unit is so small,” (3) Dr. Farber’s analysis, under the law, was not required to pass the “Chow test,” especially because there was a rational basis for aggregation, and (4) the large “standard error of estimate” of Dr. Farber’s analysis was irrelevant because he had demonstrated the statistical significance of his analysis. Francis M&O, at 17–25.
On Defendants’ “key variable” argument, Judge Francis reasoned (1) Dr. Farber reasonably excluded the 360 review and quartile placement from his analysis because those factors, themselves, were tainted by gender disparities, (2) Dr. Farber nonetheless incorporated these two factors “into one iteration of his analysis, and doing so did not substantively alter his conclusions,” (3) Dr. Farber reasonably excluded certain productivity measures from his analysis
6 As the M&O explains, the “Chow” test “is designed to determine the extent to which statistical relationships are identical across different populations or within the same population over different time periods.” Francis M&O, at 21; see also Ward Report, at 3 (The Chow test “tells statisticians whether or not the models for such groups are sufficiently homogenous to be analyzed together.”). In layman’s terms, “the Chow test determines whether data can be pooled.” Francis M&O, at 22.
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because of “practical barriers,” (4) “the productivity that Goldman Sachs considers a crucial variable is already part of Dr. Farber’s model in the form of the performance measures,” and (5) the fact that Defendants would have used a different proxy for job function than the job codes assigned pursuant to U.S. Department of Labor regulations “does not render Dr. Farber’s report inadmissible.” Id. at 12–17.
In their objections, Defendants reiterate their claim that Dr. Farber’s aggregate analysis does not follow the structure of Goldman Sachs’ business—specifically, its business units—and Defendants ask the Court to draw two distinct yet related conclusions from this fact. First, Dr. Farber’s failure to control for Goldman Sachs’ business units and his use of aggregation, Defendants argue, does not comport with Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), because the Supreme Court rejected such analysis. Defs. Objs. Farber, at 11–15. But, as the Court details more fully below, Dukes involved the use of anecdotal and statistical evidence in the absence of common policies, which is not the case here. See infra Part II. Defendants provide no authority for their objection that “the Rule 23 question on commonality is not answered by the fact that the Firm used the same high-level personnel tools” across business units. Id. at 17. Accordingly, any argument that Dr. Farber’s aggregation violates Dukes is incorrect.
Second, Defendants ask the Court to conclude that Dr. Farber’s aggregate analysis does not satisfy the reliability standards under Daubert. As Judge Francis ruled, however, “Dr. Farber’s decision to aggregate data . . . was reasonable both in light of the evidence that Goldman Sachs applies common performance measures that influence pay and promotion across business units and in light of the statistical pitfalls of disaggregation.” Francis M&O, at 21. Even if it were true that Dr. Farber’s analysis would be improved if it controlled for business
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units, the Court cannot conclude that it is so unreliable as to justify preclusion. Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (“[T]he rejection of expert testimony is the exception rather than the rule.”). Nor do these arguments persuade the Court that Judge Francis committed clear error.7
Defendants next repeat that Dr. Farber’s analysis violates Daubert because it did not properly account for “key” variables: business units, job function, and employee productivity. Defs. Objs. Farber, at 20–29. The Court disagrees. At bottom, none of Defendants’ arguments go to admissibility. “[T]o be admissible, a regression analysis must control for the ‘major factors’ that might influence the dependent variable. But, ‘[n]ormally, failure to include variables will affect the analysis’ probativeness, not its admissibility.’” Reed Const. Data Inc. v. McGraw-Hill Cos., Inc., 49 F. Supp. 3d 385, 400–01 (S.D.N.Y. 2014) (internal citation omitted) (quoting Bazemore v. Friday, 478 U.S. 385, 400 (1986)), aff’d, 638 F. App’x 43 (2d Cir. 2016). Especially in light of the fact that Dr. Farber accounted for divisions (rather than the less stable business units, as discussed in Part II) and job function via Department of Labor job codes, Judge Francis’ ruling on the disputed factors was not clear error.8 “Whether [Dr. Farber’s] omissions impermissibly biased the results [is] a matter for the jury to decide.” Id. at 401.
F. Wayne F. Cascio
7 On the question of the Chow test, Defendants’ only answer to Judge Francis’ determination that passing the Chow test was not definitively required was to argue that Judge Francis’ “point is irrelevant because, in this case, the Chow test results merely provide an emphatic confirmation of what the undisputed evidence already establishes.” Defs. Objs. Farber, at 19–20. This unsupported argument does not demonstrate clear error.
8 Additionally, at least as to the Investment Banking Division, Dr. Ward also recognized the analytical issues of using the “productivity” variable. Ward Report, at 66 (“I found the statistical impact of production in IBD to be erratic, sometimes showing negative (nonsense) patterns, i.e. more production meaning lower [total compensation].”).
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Finally, Judge Francis denied Defendants’ motion to strike the expert report prepared for Plaintiffs by Wayne F. Cascio, Ph.D. (“the Cascio Report”). The Cascio Report “evaluate[s] the performance assessment and compensation recommendation processes at Goldman Sachs,” ultimately concluding that the processes were deficient for a number of reasons. Francis M&O, at 30. Judge Francis ruled that because the Cascio Report is relevant to “rebutting any claim by Goldman Sachs that its evaluation processes must be allowed even if they have a disparate impact on women,” the report went “to the business necessity defense and is relevant at the class certification stage to the question of commonality.” Id. at 31–32.
Defendants first object that the Cascio Report does not address all the required elements of a business necessity defense. Defs. Objs. Cascio, at 8–9, ECF No. 506. To that end, Defendants, once again, argue that the Cascio Report does not address the processes on a job-byjob basis. Id. at 8. Additionally, Defendants argue that, even if the Cascio Report bears on business necessity, it does not bear on the question of commonality. Id. at 10–12. These arguments are without merit.
Defendants’ contention that the Dr. Cascio’s report does not adequately address the specific elements of business necessity is, at best, a matter for the jury to decide, and, at worst, wrong on the law of business necessity. The same holds true for Defendants’ argument that the report does not bear on commonality, and, in fact, undermines a finding of commonality. Accordingly, the Court concludes that Judge Francis did not commit clear error. II. Class Certification
A. Legal Standard A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “Courts review de
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novo those parts of a report and recommendation to which objections are made, and the remainder for clear error on the face of the record.” Mulosmanaj v. Colvin, No. 14 Civ. 6122, 2016 WL 4775613, at *2 (S.D.N.Y. Sept. 14, 2016) (internal quotation marks omitted).
B. Rule 23(a) Prerequisites A class may only be certified under Rule 23(b)(3) if it meets the requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. See Fed. R. Civ. P. 23(a)–(b). Although Judge Francis concluded that the proposed class satisfies all four of Rule 23(a)’s requirements, see Francis R&R, at 24–38, Defendants object to Judge Francis’ recommendation on the grounds of commonality, typicality, and adequacy. 9 The Court disagrees. Defendants’ Rule 23(a) objections are, therefore, overruled.
1. Commonality The crux of the commonality prerequisite is simpler than the parties’ briefing make it out to be. As the Supreme Court explained in Dukes, a putative class action against Wal-Mart, commonality is not merely a matter of common questions, “but, rather[,] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). The Dukes court identified two ways that a class may, as relevant here, demonstrate commonality: (1) the employer’s use of “biased testing procedure[s],” and (2) “significant proof” that the employer “operated under a general policy of discrimination.” Dukes, 564 U.S at 353 (internal quotation marks omitted). Here,
9 Because no party objected to Judge Francis’ finding on numerosity, the Court reviews it for clear error. The Court concludes that Judge Francis did not commit clear error in determining that the putative class is sufficiently numerous for the purposes of Rule 23(a)(1).
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Plaintiffs argue that they have met the requirements of this second standard—significant proof of a general policy of discrimination—for the purposes their disparate impact and disparate treatment claims.10
First, as to Plaintiffs’ disparate impact claims, the central question is whether a “general policy of discrimination” can exist where Goldman Sachs’ managers use discretion in making employment decisions. Defs. Objs. at 25–27, ECF No. 502. Dukes holds that “a policy of allowing discretion by local supervisors over employment matters” is, “[o]n its face, of course, . . . just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.” Dukes, 564 U.S at 355. But beyond the “face” of a discretion-based system of supervision, “giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparateimpact theory.” Id. That is, “a common mode of exercising discretion that pervades the entire company” can constitute a general policy. Id. at 356. Identifying this “common mode,” id., is where Plaintiffs “must begin,” id. at 357 (“[T]he plaintiff must begin by identifying the specific employment practice that is challenged.” (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988))). Once Plaintiffs have identified a common mode, they must offer “significant proof” of disparate impact to demonstrate commonality.
The question of a “common mode” is irrelevant, however, for the purposes of pattern-orpractice disparate treatment claims. Davis v. District of Columbia, 246 F. Supp. 3d 367, 393 (D.D.C. 2017) (“[D]isparate impact plaintiffs identify particular employment practices that are
10 Disparate treatment claims concern “allegations of widespread acts of intentional discrimination.” Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001). Disparate impact claims, by comparison, involve “employment policies . . . that are neutral on their face and were not intended to discriminate” but that “have nevertheless had a disparate effect on the protected group.” Id. at 160.
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allegedly responsible for those disparities, while ‘pattern or practice’ plaintiffs do not.”). This is because, if Plaintiffs can prove at the merits stage that Defendants had a common intention to discriminate, it is of no moment whether Defendants carried out their intention through a “common mode.” Accord Hill v. City of New York, 136 F. Supp. 3d 304, 354 (E.D.N.Y. 2015) (“[I]f Defendants are correct that Plaintiffs cannot show discriminatory intent, the class racial discrimination claims will be resolved in a single stroke.”). Notably, however, “evidence of intent can be circumstantial, including evidence that is entirely statistical in nature.” Davis, 246 F. Supp. 3d at 393 (internal quotation marks omitted).
a. Disparate Impact i. Common Mode
Here, Defendants argue that Dukes requires Plaintiffs to show that Goldman Sachs managers, in making compensation and promotion decisions, applied the 360 review, quartiling, and cross-ruffing processes uniformly. Defs. Objs. at 26–30. They further argue that Plaintiffs cannot make that showing because the challenged processes “contained general criteria” that “individual managers applied . . . in highly individualized ways.” Id. at 25 (emphasis omitted). Defendants’ objections stretch Dukes far beyond its meaning.
For the purposes of a disparate impact claim, Plaintiffs must first show that Defendants used “a common mode of exercising discretion.” Dukes, 564 U.S. at 356 (emphasis added). In other words, a common mode need not strip managers of all flexibility in compensation and promotion decisions. Contra Defs. Objs. at 26. That is because, if “common mode” were so defined, it would divest lower-level managers of all discretion, and, as a result, would render the phrase “common mode of exercising discretion” oxymoronic. The Court declines to indulge Defendants’ semantic somersaults.
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In Dukes, despite Defendants’ arguments to the contrary, Defs. Objs. Reply, at 7–9, ECF No. 522, it was “the absence of a common job evaluation procedure” that precluded class certification on the plaintiffs’ disparate impact claim, Brown v. Nucor Corp., 785 F.3d 895, 909 (4th Cir. 2015) (discussing Dukes). As the Dukes court explained, the Wal-Mart employees in that case were “subject to a variety of regional policies that all differed,” rather than common policies or processes. Dukes, 564 U.S. at 359–60 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th Cir. 2010) (Kozinski, J., dissenting)); see also id. at 356 (explaining that plaintiffs had “not identified a common mode of exercising discretion,” but only “statistical and anecdotal evidence”). As a result, because “respondents [in Dukes] . . . identified no ‘specific employment practice,” the “mere[] showing” of “an overall sex-based disparity d[id] not suffice.” Id. at 357.
The Supreme Court has since reiterated this holding in Dukes. See, e.g., Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048 (2016) (“The plaintiffs in [Dukes] did not provide significant proof of a common policy of discrimination to which each employee was subject. The only corporate policy that the plaintiffs’ evidence convincingly establishe[d was] Wal-Mart’s policy of allowing discretion by local supervisors over employment matters; and even then, the plaintiffs could not identify a common mode of exercising discretion that pervade[d] the entire company.” (internal quotation marks omitted)).
Other courts have likewise interpreted Dukes to stand for the proposition that the absence of a company-wide policy was fatal to establishing commonality. Brown, 785 F.3d at 909; McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488 (7th Cir. 2012) (“[B]ecause there was no company-wide policy to challenge in [Dukes] . . . there was no common issue to justify class treatment.”); Houser v. Pritzker, 28 F. Supp. 3d 222, 242
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(S.D.N.Y. 2014) (“The Court ultimately determined that the plaintiffs had not satisfied the commonality requirement because Wal-Mart did not use a uniform ‘testing procedure or other companywide evaluation’ in making pay and promotion decisions, but rather left those decisions to regional managers’ discretion.” (quoting Dukes, 564 US. at 353)); Calibuso v. Bank of Am. Corp., 893 F. Supp. 2d 374, 377 (E.D.N.Y. 2012) (“The fatal flaw identified by the Supreme Court in Dukes was that the class claims alleged discrimination by local managers exercising their broad, subjective discretion in the absence of any policies, which by its very nature could not satisfy the commonality requirement of Rule 23(a)(2).” (emphasis added)).
Here, however, “[t]here is no dispute that each of the class members was subject to [the 360 review and quartiling] processes,” Francis R&R, at 27, or that all promotions from Vice President were awarded through the cross-ruffing process, Kung Dep. 398:11–21. Nor is it disputed that 360 reviews inform quartiling decisions, which, in turn, inform promotion decisions.
These critical facts distinguish the instant case from Dukes, as well as from the other cases upon which Defendants rely. Cf. Breen v. Chao, 253 F. Supp. 3d 244, 266 (D.D.C. 2017) (explaining that the “specific employment practice” plaintiffs identify for the purposes of a disparate impact claim had to be an “employment policy or practice . . . that defendants . . . repeat over and over with respect to different employees”).11 For example, Defendants rely on
11 Dukes is inapplicable to this case in yet another way. The Dukes court repeatedly returned to the massive scale of the class. Indeed, the first sentence of the opinion begins by calling the case “one of the most expansive class actions ever.” Dukes, 564 U.S. at 342. The class in Dukes, the Court emphasized, comprised 1.5 million plaintiffs. Id. Here, however, there are not millions of class members, only about 2,000—an average number for class actions. See Employment Class and Collective Actions: Proceedings of the New York University 56th Annual Conference on Labor, at 122–23 (“For a race claim, the average class size is 1,285, for a sex claim it is 6,432 and for an age claim it is only 761.”).
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Ruiz v. Citibank, N.A. without explaining that the district court in that case understood the plaintiffs to be attempting to prove commonality via “anecdotal evidence that reaches a certain critical mass” in light of “the absence of an express company policy.” 93 F. Supp. 3d 279, 289 (S.D.N.Y. 2015). The instant case is not merely an “anecdotal evidence” case. Plaintiffs’ disparate impact claims are predicated on express company policies. See Menocal v. GEO Grp., Inc., 882 F.3d 905, 916 (10th Cir. 2018) (finding commonality “[b]ecause all members of the . . . class base their claims on the [same] [p]olicy”). These common policies include: (1) the job evaluation processes developed by a central Goldman Sachs committee and applied to every single member of the class, Francis R&R, at 6–11, and (2) the cross-ruffing process applied to every single possible promotion from Vice President, id. at 11–14.
These processes permitted managers to exercise discretion, but, as explained above, Dukes specifically anticipated a case where a discretion-based policy that “pervades the entire company” would support a disparate impact claim. Dukes, 564 U.S at 356. Managerial discretion does not destroy Plaintiffs’ claims. Whether Goldman Sachs discriminated against the class via its use of 360 reviews, quartiling, or cross-ruffing raises yes-or-no questions that can each be answered “in one stroke.” Id. at 350. Plaintiffs have, therefore, demonstrated that Defendants employed “common mode[s] of exercising discretion” for the purposes of Dukes.
ii. Significant Proof
The Supreme Court also noted that the class members “held a multitude of different jobs[] at different levels of Wal-Mart’s hierarchy [and] for variable lengths of time” such that they had “little in common but their sex and this lawsuit.” Id. at 359–60 (quoting Dukes, 603 F.3d at 652 (Kozinski, J., dissenting)). Not so here. Plaintiffs hold only one of two jobs: Associate or Vice President, and worked in one of the three revenue-generating divisions largely centered in one office in New York City: Investment Banking, Investment Management, or Securities, from 2002 to the present. These factual distinctions are critical, and place this case outside Dukes’ ambit.
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Defendants next challenge Plaintiffs’ “significant proof” that these “common modes” were discriminatory. The significant proof, offered by Plaintiffs, is contained in the expert report of Dr. Farber, which analyzed the impact of gender on evaluation, compensation, and promotion at Goldman Sachs and found statistically significant gender disparities. Farber Report ¶¶ 7(a) (“Women are paid less than otherwise similar men, on average, and the difference in pay is statistically significant.”), 7(b) (“Women are evaluated lower on the 360-degree review and are less likely to be ranked in the top quartile than otherwise similar men[.]”), 7(c) (“Women are paid less than similar men even when they receive the same quartile score.”), 7(d) (“[D]ifferences between women’s and men’s quartile and 360-degree review ratings explain” some of the pay difference.), 7(f) (“[W]omen were promoted from Vice President to Managing Director at a lower rate than one would expect if they were promoted in the same pattern as men were promoted.”).
As with their motion to preclude Dr. Farber’s testimony, see supra Part I, Defendants argue here that Dr. Farber should have tested whether the gender disparities “were the result of anomalies specific to individual Business Units.” Defs. Objs. at 31. Defendants take issue with Dr. Farber’s aggregate analysis, which controlled for divisions, but not business units. Id. Additionally, Defendants maintain that Dr. Farber “failed to account for the factors that individual Goldman Sachs managers actually relied on in making evaluation and compensation decisions across the putative class.” Id. The Court disagrees, concluding that Plaintiffs have established “significant proof” of disparate impact.
As an initial matter, Defendants’ emphasis on business units is misguided. First, the business units are not stable or permanent. Over the years, Goldman Sachs has transferred business units from division to division, e.g., Benz Decl. ¶ 13, or eliminated units altogether. For
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example, 20% of units disappeared from one year to the next. Farber Rebuttal ¶ 32. And “there were as many as 227 business units in 2003 and as few as 94 in 2005.” Id. Even if the units had been stable, the record shows Goldman Sachs employees were not. “Approximately 11 percent of Goldman Associates and Vice Presidents change business units in each year.” Id. (emphasis added). The volatility of the business units and their personnel counsel against analysis at the unit level.
Additionally, the challenged performance evaluation processes do not occur on a unit-byunit basis. The record shows that, for the 360 review process, 81.6% of class members received at least one review from a reviewer outside her business unit. Geman Decl. ¶ 5. In total, 37.4% of all 360 reviews of class members were conducted by reviewers from other business units. Id. ¶ 6. Meanwhile, for quartiling, a business unit manager’s “tentative [quartile] ranking is subject to adjustment at the division level and by Human Capital Management, Goldman Sachs’ human resources department.” Francis R&R, at 9. “These modifications may be triggered by discrepancies between 360 review scores and the initial quartiling, by the desire to enforce the quartile distribution to prevent ‘grade inflation,’ or by other considerations.” Id. In other words, 360 reviews were the product of cross-unit collaboration, and division heads enforced quality control of ranking to be consistent with those reviews.
Similarly, cross-ruffing is an inter-business unit undertaking. Indeed, cross-ruffers are not permitted to evaluate candidates in their own business unit. See, e.g., Kung Dep. at 398 (“[C]ross-ruffer[s] will be assigned to interview candidates in a business area outside of their own.”). In addition, no conclusive promotion decisions are made at the business unit level— division heads, the firm-wide talent assessment group, and the firm’s senior management wield a great deal more influence. Managers across business units develop the first iteration of a list of
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promotion candidates with human resources, which division heads then have free reign to review or modify. Kung Dep. at 417–21; Larson Dep. at 232–35. The division-approved list then goes onto the firm-wide talent assessment group, and ultimately, decisions are made by the firm’s management committee. Larson Dep. at 240, 248–50. Tellingly, Defendants’ own expert did not control for business units on the question of promotion. Ward Report, at 74–75.
Still, Defendants’ briefs emphasize the role of business unit managers in these processes. See generally Defs. Objs. But the question is not whether business unit managers were involved in the evaluation, compensation, and promotion processes. Obviously, managers were involved. The question is whether Dr. Farber’s analysis controlling for divisions provides “significant proof” of discrimination. Given the instability of the business unit designation, the cross-unit evaluation of class members, and the funneling of virtually all final decision-making to division heads and either division-wide or firm-wide committees, the Court finds that Dr. Farber’s aggregate analysis is more than adequate proof.
Indeed, Dr. Farber controlled for the following variables: division, year, office, education, affirmative action (“AA”) job group, experience at Goldman, experience at Goldman squared (both from the most recent hire date), relevant experience prior to most recent date at Goldman (including experience in prior employment spells at Goldman), relevant experience squared, whether a direct hire into the Associate or Vice President position and whether a direct hire into the Associate or Vice President position in the current year. Farber Report ¶ 7(a). These are reasonable factors when testing for gender discrimination at the three relevant divisions within Goldman Sachs. The Court agrees with Judge Francis that, for the reasons discussed above, “it is perfectly appropriate for the model to include data across business units when it is being used to explore the impact of a firm-wide policy such as 360 review or quartiling.” Francis R&R, at 31. Accordingly, Plaintiffs have established commonality for the purposes of their disparate impact claims.
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b. Disparate Treatment Defendants spend the majority of their argument on the commonality of Plaintiffs’ disparate treatment claims debating the merits of the claims. Defs. Objs. at 36–46. But “this is not the stage at which to decide whether there is in fact a pattern of pervasive discrimination at Goldman Sachs.” Francis R&R, at 33; see also Hill, 136 F. Supp. 3d at 352 (explaining that the commonality “analysis will frequently entail overlap with the merits of the plaintiff’s underlying claims . . . . [but that] FRCP 23 does not grant the Court license to engage in free-ranging merits inquiries; merits questions are to be considered only to the extent that they are relevant to the FRCP 23(a) inquiry” (internal quotation marks and citations omitted)). Here, Plaintiffs have provided “significant proof” on their disparate treatment claims via statistical and anecdotal evidence. As to statistical evidence, Dr. Farber’s report shows that Defendants pay female Vice Presidents 21% less and Associates 8% less, on average, than their male counterparts. Farber Report ¶ 7(a). The report explains that approximately 22% and 50% of the observed pay differences, respectively, can be explained by the differences in female and male 360 review and quartile ratings. Id. ¶ 7(d). These pay differences are statistically significant by several standard deviations, see Farber Report, Tables 10, 14, 15, and are sufficient to meet the “significant proof” standard at the class certification stage of litigation. As to anecdotal evidence, Plaintiffs have submitted internal complaints, external complaints, survey answers, emails, articles, business records, and declarations from class members. Pls. Objs. at 13–28. This evidence details how women at Goldman Sachs have been subject to sexual assault, e.g., Chen-Oster Decl. ¶ 10 (“I was sexually assaulted by a married male co-worker.”), sexual harassment, e.g., ECF No. 248-6 (“I told [a male co-worker] how it made me uncomfortable how the guys were touching me, and he was really supportive and
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giving me advice on what to do, and the next thing I know, his hand is on my ass, too!”), sexualization, e.g., id. (managers made comments that women are “no good after [age] 27”), physical endangerment, e.g., id. (male manager followed female employee into her room during a firm retreat, tried to get in her bed, and did not leave until she was able to lock the door), private verbal abuse, e.g., ECF No. 248-7 (“How did the bitch session go?”), public verbal abuse, e.g., ECF No. 248-6 (head of Private Wealth Management, told his female assistant she would be a “trophy wife” once she marries), slander and libel, e.g., ECF No. 248-12 (male employee perpetuated a rumor that a sex tape of him with an unidentified woman was actually of him and a female co-worker), gender favoritism, e.g., ECF No. 248-6 (“I have to compensate the men better. They are heads of households.”), pregnancy stereotyping, e.g., Albanese Decl. ¶ 12, ECF No. 251 (“During my pregnancy, Goldman Sachs removed my duties and took away my assistants. I was told that I would be transferred to a department of one person (me) with no advancement opportunities.”), motherhood stereotyping, e.g., ECF No. 248-6 (“At one point my boss suggested that I might want to speak with the women’s committee and go into a job that would not be as demanding” because of new role as a mother.), denial of employment opportunities, e.g., Gamba Decl. ¶ 15 (“Since returning from maternity leave for my second child, I have never again been nominated for promotion despite a record of achievements . . . . [My manager] sa[id] he would be ridiculed if he [supported me].”), e.g., Orlich Decl. ¶ 9 (“[A] Vice President asked every man in my department and neighboring groups to join him on a golf outing, but did not ask me . . . . [although] I have played golf since childhood and played varsity golf on my high school team.”), and retaliation, e.g., ECF No 248-6 (“[A]fter I raised complaints of gender discrimination, [my manager] questioned my ‘work ethic’ and said I was not working hard enough.”).
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Plaintiffs have also provided proof that Defendants were aware of gender disparities and gender bias at Goldman Sachs, but did not adjust their policies or practices to account for the discrimination women faced. Plaintiffs provide documents demonstrating that Goldman Sachs recognized the bias of its processes, e.g., ECF No. 248-7 (“The underlying assessment of individuals that feed into the firm’s processes are colored and impacted by gender differences.”), that women at Goldman Sachs suffered professionally because of the firm’s policies and processes, e.g., ECF No. 248-8 (“We have limited experience in dealing with the issues surrounding managing a professional on maternity leave, and some of our experience has proven that we are not very good at it.”), and that Goldman Sachs did not adequately apply corrective measures, e.g., ECF No. 248-7 (“Our recommendation is that he be issued a strongly worded written warning” for having “perpetuated” rumors that he had recorded a sex tape of him with a female co-worker.).
Plaintiffs have, therefore, provided “significant proof” of discriminatory disparate treatment. Whether Plaintiffs’ evidence conclusively proves discrimination is a matter for trial. Cf. Hnot v. Willis Grp. Holdings Ltd., 241 F.R.D. 204, 211 (S.D.N.Y. 2007) (observing that even where “the merits and the Rule 23(a) commonality determination significantly overlap” the question of whether defendants actually discriminated is a question for trial).
2. Typicality and Adequacy Typicality “is satisfied when the lead plaintiffs’ claims arise from the same series of events and find support in the same legal theories as the claims of all of the remaining class members.” Houser, 28 F. Supp. 3d at 245; see also Fed. R. Civ. P. 23(a)(3) (requiring that “the claims or defenses of the representative parties are typical of the claims or defenses of the
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class”). The lead plaintiffs’ claims do not have to be “identical” to the class members’ claims, but must “have the ‘incentive to prove all the elements of the cause of action which would be presented by the individual members of the class were they initiating individualized actions.’” Houser, 28 F. Supp. 3d at 245 (quoting In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y. 1996)). In other words, typicality “requires that the disputed issue of law or fact ‘occupy essentially the same degree of centrality to the named plaintiff’s claim as to that of other members of the proposed class.’” Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999), called into question on other grounds by In re IPO, 471 F.3d 24 (2d Cir. 2006).
Somewhat similarly, adequacy requires courts to inquire whether (1) “plaintiff’s interests are antagonistic to the interest of other members of the class,” and (2) “plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Floyd v. City of New York, 283 F.R.D. 153, 161 (S.D.N.Y. 2012) (quoting Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). Defendants do not appear to contest the latter point. On the former point, “[i]n order to defeat a motion for certification, any conflicts between the class representative and members of the putative class must be ‘fundamental.’” Ligon v. City of New York, 288 F.R.D. 72, 80 (S.D.N.Y. 2013) (quoting In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009)).
Although Rule 23(a) commonality, typicality, and adequacy are technically distinct from one another, they tend to blur in certain contexts:
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation
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requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest. Dukes, 564 U.S at 349 n.5 (quoting Falcon, 457 U.S. at 157–58 n.13). Accordingly, and given that Defendants in the instant case argue about typicality and adequacy together, the Court will address both “in tandem.” See, e.g., Floyd, 283 F.R.D. 175 (discussing typicality and adequacy argument “in tandem” because “Defendants make overlapping objections on the basis of typicality and adequacy”). The Court concludes that each of the named Plaintiffs meet the typicality and adequacy requirements.
a. Shanna Orlich Defendants argue that each of the named Plaintiffs is atypical of the class and, at least some, if not all, are inadequate representatives.12 First, Defendants argue that Orlich was a firstyear associate whose compensation was in “lockstep” with her peers, and, as a result, not based on the 360 review or quartiling process.13 Defs. Objs. at 47. Indeed, Defendants state that Plaintiffs’ claim that Orlich was subjected to the challenged processes is “incorrect[].” Defs. Objs. Reply, at 36. As Plaintiffs point out, however, just because Orlich’s initial starting salary and sign-on bonus were in lockstep with her peers does not make her atypical of the class. Pls. Opp. Defs. Objs. at 28. Orlich’s declaration states that she participated in the 360-review process and was ranked by her manager through the quartiling system, Orlich Decl. ¶¶ 5–6, before being fired, id. ¶ 11. Her claims, therefore, “arise from the same series of events and find
12 In instances where Defendants appear to have challenged a named Plaintiff’s typicality but not adequacy, or vice-versa, the Court deems Defendants to have conceded the unchallenged ground.
13 Defendants further argue that Orlich was not eligible for a promotion and, therefore, she is atypical of the class. Defs. Objs. at 47. But a named plaintiff is not required, individually, to be typical of the class in every respect. Rather, the named plaintiffs, in aggregate, must cover each of the class claims.
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support in the same legal theories as the claims of all of the remaining class members.” Houser, 28 F. Supp. 3d at 245.
b. H. Christina Chen-Oster Second, Defendants take issue with Chen-Oster’s claim that Defendants retaliated against her for reporting that a male Goldman Sachs co-worker sexually assaulted her in 1997. Defs. Objs. 47–48. Defendants argue that “Judge Francis brushed aside the idiosyncratic nature of Mr. Chen-Oster’s [sic] claim with the conclusory statement that it does not render her atypical of the class.” Id. at 48. Defendants maintain that Chen-Oster is atypical because her “retaliation allegations are the core of her claim.” Id. at 48 n.36. Plaintiffs respond that “[i]t is wellestablished, however, that a class representative’s individual retaliation claim does not defeat typicality.” Pls. Opp. Defs. Objs. at 29. Although Plaintiffs are correct that an individual retaliation claim is not disqualifying for a class representative, Spencer v. No Parking Today, Inc., No. 12 Civ. 6323, 2013 WL 1040052, at *19 (S.D.N.Y. Mar. 15, 2013), adopted by 2013 WL 2473039 (S.D.N.Y. June 7, 2013), Plaintiffs gloss over the nuance of Defendants’ argument. The problem, Defendants argue, is not that Chen-Oster has an individual retaliation claim, but that her “retaliation allegations are the core of her claim.” Defs. Objs. at 48 n.36. Still, Defendants’ objection is overruled. Chen-Oster participated in the 360 review process and was ranked through the quartiling process. ChenOster Decl. ¶¶ 5–6. She claims that she was “treated unfairly in the 360 review process and the forced ranking system,” “was also denied compensation [and promotions] because of [her] gender,” and that “Goldman Sachs maintains a culture that is hostile to women.” Id. ¶¶ 7–10. Her class claims are, therefore, entirely typical.
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Defendants also seek to disqualify Chen-Oster on adequacy grounds; namely, that she “testified that Goldman Sachs’ processes were marked by unbounded manager discretion.” Defs. Objs. at 48. Defendants argue that this testimony puts Chen-Oster “in conflict with the claims that she seeks to litigate on behalf of the class.” Id. Defendants, however, mischaracterize Chen-Oster’s testimony. Chen-Oster was discussing the “boy’s club” culture at Goldman Sachs that concentrates power in men, who then give that power to other men, when Defendants asked her if “then the power is given to the managers to exercise unchecked discretion.” Chen-Oster Dep. at 436–37. The Court agrees with Judge Francis that Chen-Oster’s affirmative answer “is a matter of semantic shading.” Francis R&R, at 35. This stray comment does not place ChenOster at “fundamental” odds with the interests of the class. Ligon, 288 F.R.D. at 80.14 She is an adequate class representative.
c. Allison Gamba Third, Defendants challenge Gamba as atypical because “Gamba conceded that her claims are limited to 2010, and in that year ‘nobody from [her] business unit was promoted to managing director,’ male or female.” Defs. Objs. at 49 (quoting Gamba Dep. 103:18–20, ECF No. 265-10). Again, Defendants distort the actual testimony. Gamba did not concede that all her claims were limited to 2010, Pls. Opp. Defs. Objs. at 29–30, but only that her claims related to the change in her 360 reviewer list was limited to 2010, see Gamba Dep. 102–20. But it is undisputed that Gamba participated in the 360 review and quartiling processes in years prior to 2010, and, accordingly, her claims of gender discrimination are not limited to that time period.
14 In a footnote, Defendants also argue that “Chen-Oster’s credibility is in serious question” because she, at some point, recorded the conversations of Goldman Sachs employees. Defs. Objs. at 48 n.37. Given that Chen-Oster does not rely on these recordings, this argument is without merit.
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See generally Gamba Decl. The fact that she also argues gender discrimination based on a change to her 360 reviewer list in 2010 does not make her atypical of the class.
d. Mary De Luis Finally, Defendants argue that De Luis’ claims “are entirely individualized and in no way typical” because her “compensation allegations are unrelated to the 360 review and manager quartile processes.” Defs. Objs. at 50. The Court is not persuaded. De Luis participated in the 360 review and quartile processes and alleges being compensated less than her male peers. Second Am. Compl. ¶¶ 137–45. The fact that De Luis attempted to address the alleged pay discrepancy with her superiors, id., does not render her claims atypical. Additionally, somewhat similar to their arguments against Chen-Oster, Defendants argue that De Luis’ “retaliation claims are not brought on behalf of a putative class.” Defs. Obj. at 50. Although Plaintiffs concede that De Luis brings an individual retaliation claim, Pls. Opp. Defs. Objs. at 30, they do not, as Defendants suggest, Defs. Objs. Reply, at 38, concede that De Luis’ claims all “arise[]” from her individual retaliation claim, id. As discussed above, a unique retaliation claim does not defeat the typicality of De Luis’ other class claims.
C. Rule 23(b) Requirements Under Rule 23(b)(3), a district court may certify a class that meets the Rule 23(a) requirements if (1) “questions of law or fact common to class members predominate over any questions affecting only individual members,” and (2) “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Judge Francis recommended denying certification on the ground that Plaintiffs had not met the predominance requirement. He, therefore, did not reach the question of superiority.
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This Court concludes that Plaintiffs have met both the predominance and superiority requirements for some, but not all, of their claims.
1. Predominance The predominance requirement “ensures that the class will be certified only when it would ‘achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 104 (2d Cir. 2007) (internal alteration omitted) (quoting Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 615 (1997)). Importantly, Plaintiffs meet this requirement “if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002) (emphasis added). In other words, “[t]he predominance requirement calls only for predominance, not exclusivity, of common questions.” In re LIBOR-Based Fin. Instruments Antitrust Litig., __ F. Supp. 3d __, No. 11 Civ. 5450, 2018 WL 1229761, at *5 (S.D.N.Y. Feb. 28, 2018) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001)). Still, it is “more demanding” than the commonality requirement under Rule 23(a). Id. (quoting Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 138 (2d Cir. 2015)). To that end, on the question of predominance, courts “must assess (1) the ‘elements of the claims and defenses to be litigated’; and (2) ‘whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member’s entitlement to relief.’” Nextel, 780 F.3d at 138. This assessment is “more qualitative than quantitative, and must account for the nature and significance of the
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material common and individual issues in the case.” In re LIBOR, 2018 WL 1229761, at *5 (internal quotation marks and alterations omitted).
Ultimately, “[w]hen ‘one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.’” Tyson Foods, 136 S. Ct. at 1045 (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1778, pp. 123–24 (3d ed. 2005)).
Here, Plaintiffs have met the predominance requirements as to some, but not all of their claims. For Plaintiffs’ (1) disparate impact claims, and (2) disparate treatment claim predicated on the statistical evidence of disparate impact, the Court concludes that common questions predominate. By contrast, the Court concludes that Plaintiffs have failed to prove predominance on their disparate treatment claim predicated on their “boy’s club” theory.
a. Elements and Defenses As an initial step in the predominance analysis, as explained above, the Court considers “the elements of the claims and defenses to be litigated.” In re LIBOR, 2018 WL 1229761, at *5. Under Title VII, the three-step McDonnell Douglas burden-shifting framework governs disparate impact and disparate treatment claims. See United States v. City of New York, 731 F. Supp. 2d 291, 299 (E.D.N.Y. 2010) (disparate impact); United States v. City of New York, 717 F.3d 72, 83 (2d Cir. 2013) (disparate treatment). At the first step of McDonnell Douglas, Plaintiffs bear the burden of making a prima facie showing of discrimination. City of New York, 717 F.3d at 84. At the second step, if Plaintiffs meet their initial burden, “the burden then shifts to the employer ‘to rebut the
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presumption of discrimination.’” Id. (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). At the third and final step, the burden shifts back to Plaintiffs. As discussed below, however, each of these steps requires a somewhat different showing depending on whether Plaintiffs are bringing a disparate impact or disparate treatment pattern-or-practice claim. Id.; see also City of New York, 731 F. Supp. 2d at 299.
b. Proof i. Disparate Impact
For the purposes of a disparate impact claim, Plaintiffs make out a prima facie claim if they “(1) ‘identify a specific employment practice’ or policy; ‘(2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two.’” Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 151 (2d Cir. 2012) (quoting Robinson, 267 F.3d at 160) (internal citation omitted). “Statistics alone can make out a prima facie case,” City of New York, 731 F. Supp. 2d at 300, but “‘[t]he statistics must reveal that the disparity is substantial or significant,’ and ‘must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity,’” Chin, 267 F.3d at 151 (quoting Robinson, 267 F.3d at 160).
Reviewing de novo, as the Court must, the question of predominance at the first step of McDonnell Douglas, the Court concludes that Plaintiffs have proven predominance.15 As an initial matter, Plaintiffs have provided statistical evidence on the 360 review and quartiling
15 Plaintiffs argue that Judge Francis misunderstood the first step of the McDonnell Douglas analysis and “missed that causation at the Rule 23 stage of a disparate impact claim may be demonstrated, as here, through expert statistical analysis.” Pls. Objs. at 42. But the Court concludes that Plaintiffs misread the R&R. Contrary to Plaintiffs’ contentions, Judge Francis implicitly recognized that Plaintiffs might be able to make out a prima facie claim of disparate impact through statistical evidence. Francis R&R, at 40.
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processes to demonstrate a gender disparity at the statistically significant levels of 2.7 to 5.15 standard deviations. See Farber Report, Tables 10, 14, 15; see also City of New York, 731 F. Supp. 2d at 301 (“The Second Circuit has repeatedly recognized that standard deviations of more than 2 or 3 units can give rise to a prima facie case of disparate impact because of the low likelihood that such disparities have resulted from chance.” (quoting United States v. City of New York, 637 F. Supp. 2d 77, 93 (E.D.N.Y. 2009) (alteration omitted)). Whether Plaintiffs’ evidence actually makes out a prima facie case is a question left for trial, but, at this first step of McDonnell Douglas, it is clear that the generalized proof of statistical evidence is sufficient for the predominance inquiry.
At the second step, under McDonnell Douglas, the burden would “shift[] to the defendant[s] to demonstrate that the challenged practice or policy is ‘job related for the position in question and consistent with business necessity.’” Id. at 299 (quoting 42 U.S.C. § 2000e2(k)(1)(A)(i)). Judge Francis found that, at this step, “Goldman Sachs would retain the right to demonstrate that there were other, legitimate explanations” for the disparate impact. Francis R&R, at 40. Specifically, Judge Francis reasoned that Defendants could successfully rebut the causation prong of a prima facie claim because “there are countless individualized factors that influence whether [the challenged processes] cause legally cognizable injury.” Id. at 43. As a result, according to Judge Francis, “any causal relationship between those policies and apparent gender discrepancies is a complex issue, subject to individualized proof.” Id. at 41.
He concluded that Defendants’ introduction of individualized proof into the case “would effectively swamp the common question of whether the evaluative policies have, on average[,] a discriminatory impact.” Id. at 40–41. In other words, under Judge Francis’ analysis,
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Defendants’ attack on Plaintiffs’ prima facie claims would shift the balance between common and individual factors. For the reasons explained below, the Court disagrees.
Whether the challenged processes are job related or consistent with business necessity is a question of generalized proof. Defendants applied the 360 review and quartiling processes to each and every member of the class, and, as discussed above, Dr. Farber’s generalized statistical proof may well prove that the processes produce statistically significant gender disparities. Defendants’ rebuttal of that proof would require Defendants to explain the business necessity of the processes, and, therefore, require proof on a general level, rather than individualized proof on a claim-by-claim basis to support its company-wide pay, promotion, and performance evaluation systems. This was the fundamental error in Judge Francis’ recommendation on the question of predominance. If Plaintiffs’ statistical evidence makes out a prima facie claim of disparate impact, Defendants are tasked not with rebutting the causal link between the challenged processes and every single class member’s claim, but rather, establishing that the challenged processes were a business necessity. This is an issue capable of generalized proof.
At the third step of a disparate impact case, “[t]he burden then shifts back to the plaintiff ‘to establish the availability of an alternative policy or practice that would also satisfy the asserted business necessity, but would do so without producing the disparate effect.’” Id. The Court sees no reason, and the Defendants have presented none, why this step would not be subject to generalized proof as well. Accordingly, the Court concludes that, on the question of predominance for Plaintiffs’ disparate impact claims, certification would “achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Cordes, 502 F.3d at 104 (internal alterations and quotation marks omitted). Plaintiffs’ objections to the
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R&R’s recommendation on predominance are, therefore, sustained as to its disparate impact claims.
ii. Disparate Treatment Plaintiffs make two claims based on disparate treatment: First, they claim that their statistical evidence of disparate impact also demonstrates disparate treatment. Pls. Objs. at 52. Second, they claim that their anecdotal evidence of a “boy’s club” culture at Goldman Sachs demonstrates disparate treatment. Id. The Court will address each claim separately.
1. Statistical Theory For the purposes of a disparate treatment pattern-or-practice claim, Plaintiffs make out a prima facie claim at the first step of McDonnell Douglas if they can show that (1) “discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice,” and (2) “the discrimination was directed at a class of victims.” City of New York, 717 F.3d at 83 (internal quotation marks omitted). For this showing, “instances of discrimination against particular employees are relevant to show a policy of intentional discrimination, [but] they are not required; a statistical showing of disparate impact might suffice.” Id. at 84. At this first step, Plaintiffs’ statistical evidence may well be able to make out a prima facie showing of disparate treatment.16 As explained above, statistical evidence of disparate
16 Plaintiffs’ style this claim as Goldman Sachs’ “aware[ness] of the discriminatory impact of its employment practices and continue[d] . . . use” of the practices. Pls. Objs. at 52. Defendants oppose their claim by quoting the Supreme Court’s case in Feeney to argue only that “‘awareness of consequences’ is insufficient to establish ‘discriminatory purpose’” as a matter of law. Defs. Opp. Pls. Objs. 33 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Even if Feeney were applicable in the instant case on the question of whether awareness would prove “discrimination was the company’s standard operating procedure,” which it is not, Feeney itself acknowledges that its statement on discriminatory purpose “is not to say that the inevitability or foreseeability of consequences of a neutral rule has no bearing upon
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impact may also be used to prove disparate treatment. See City of New York, 717 F.3d at 88 (“The statistical disparities supporting the unchallenged finding . . . [of] disparate impact also served to establish a prima facie case on the . . . claim of a pervasive pattern of discriminatory treatment.”). And as the Court already concluded, Plaintiffs’ statistical evidence of gender disparities is the type of generalized proof that satisfies the predominance requirement.
At the second step of a pattern-or-practice claim, the burden “shifts to the employer ‘to rebut the presumption of discrimination.’” City of New York, 717 F.3d at 84 (quoting Burdine, 450 U.S. at 254). “The employer need only ‘articulate some legitimate, nondiscriminatory reason for’” its presumptively discriminatory actions. Id. (quoting Burdine, 450 U.S. at 253) (emphasis omitted). As the Second Circuit has recently explained, Defendants may rebut the presumption by attacking the accuracy or adequacy of Plaintiffs’ statistics, or, alternatively, “by accepting a plaintiff’s statistics and producing non-statistical evidence to show that it lacked such an intent.” Id. at 85. Here, as with disparate impact, Defendants’ rebuttal evidence with respect to Plaintiffs’ statistics would be the subject of generalized proof.
At the third step, if the Defendants do not successfully rebut Plaintiffs’ prima facie case, “the presumption arising from an unrebutted prima facie case entitles the plaintiff to prevail on the issue of liability and proceed directly to the issue of appropriate relief.” Id. at 87. If Defendants do rebut, the presumption in favor of Plaintiffs “drops out” and the case proceeds to trial. Id. The Court sees no reason why trial (or the lack thereof) would alter the balance of the
the existence of discriminatory intent.” Feeney, 442 U.S. at 279 n.25. The only other case Defendants cite similarly acknowledges that “the failure to act [with awareness of the consequences] . . . can support an inference of discriminatory intent in some circumstances.” City of New York, 717 F.3d at 94. At this stage, it is not for the Court to say whether this is, indeed, such a case. All that matters is that Plaintiffs’ proof present common questions of law or fact that predominate over individual questions.
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evidence any further. Accordingly, the Court finds that Plaintiffs have established predominance on their first claim of disparate treatment.
2. “Boy’s Club” Theory At the first step of McDonnell Douglas, Plaintiffs’ “boy’s club” claim presents a closer question. Regardless of whether “generalized evidence [on the second claim] could be offered to prove th[e pattern-or-practice] elements” that make out a prima facie case, however, Nextel, 780 F.3d at 138 (internal quotation marks omitted), Defendants’ individualized proof on rebuttal at the second step would overwhelm the common issues. On rebuttal at the second step, unlike the disparate impact claim, the considerations and intentions of individual managers or business units may well be relevant to the question of intentional discrimination. City of New York, 717 F.3d at 85 (explaining defendants may “produc[e] non-statistical evidence to show that it lacked such an intent”). As such, the Court would likely need to make individualized inquiries into each incident of sexual assault, sexual harassment, stereotyping, impunity for male misconduct, and retaliation, to properly consider Goldman Sachs’ defenses. As a result, the balance between common and individual issues would shift. Individual issues would predominate.17 And the third step of the analysis would not alter that conclusion. The Court concludes, therefore, that Plaintiffs have not satisfied the predominance requirements on their “boy’s club” disparate treatment claim.
2. Superiority
17 In their objections to Judge Francis’ R&R, Plaintiffs acknowledge that the burdenshifting standard applies to their disparate treatment claims, but fail to address whether, at the second step of the analysis, Defendants’ opportunity to rebut would shift the balance between generalized proof and individualized proof. Pls. Objs. at 52.
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Because Judge Francis concluded that Plaintiffs did not prove predominance, he did not reach the question of superiority. As the Court has concluded otherwise, it must now consider whether “a class action is superior to other available methods for fairly and efficiently adjudicating” Plaintiffs’ surviving disparate impact and disparate treatment claims. Fed. R. Civ. P. 23(b)(3). For the purposes of the superiority inquiry, courts analyze:
(1) the interest of the class members in maintaining separate actions; (2) “the extent and nature of any litigation concerning the controversy already commenced by or against members of the class”; (3) “the desirability or undesirability of concentrating the litigation of the claims in the particular forum”; and (4) “the difficulties likely to be encountered in the management of a class action.” In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 230 (2d Cir. 2006) (quoting Fed. R. Civ. P. 23(b)(3)). Each of these factors counsel in favor of class certification. For the first factor, it would be nonsensical to disaggregate the claims into hundreds or thousands of individual proceedings. Doing so would only waste “time, effort, and expense” and increase the likelihood of conflicting outcomes for Plaintiffs. Amchem, 521 U.S. at 634. Second, the current litigation has already been ongoing for 8 years and the parties have already litigated numerous issues that would arise in any new case. In re Nassau Cty., 461 F.3d at 230 (explaining that the “action already has progressed substantially and . . . offers the benefit of a liability phase that can be resolved quickly and conclusively”). Third, “because substantive Title VII law suggests that aggregate assessment and pro rata distribution is a fairer method of affording individual relief . . . , it is clearly desirable to concentrate the litigation of the claims in this forum.” Easterling v. Conn. Dep’t of Correction, 278 F.R.D. 41, 50 (D. Conn. 2011) (internal quotation marks omitted). Fourth, “failure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.” In re Visa Check, 280 F.3d at 140 (internal quotation marks omitted). This is
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especially true given the “number of management tools available to a district court to address any individualized damages issues, such as bifurcation, the use of a magistrate or special master, alteration of the class definition, the creation of subclasses, or even decertification after a finding of liability.” In re Nassau Cty., 461 F.3d at 231 (internal quotation marks omitted).
Accordingly, the Court concludes that Plaintiffs have met the Rule 23(a) and Rule 23(b)(3) requirements for class certification on all their disparate impact and disparate treatment claims except their “boy’s club” claim.
CONCLUSION For the reasons stated above, the parties’ objections to the M&O on expert testimony are OVERRULED. The parties’ objections to the R&R are SUSTAINED in part and OVERRULED in part. Plaintiffs’ motion to certify the class is GRANTED in part and DENIED in part. The Clerk of Court is directed to terminate the motions at ECF Nos. 501, 502, 503, 504, 505, 506, and 511. SO ORDERED. Dated: March 30, 2018 New York, New York
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 Case 1:10-cv-06950-AT-RWL Document 983 Filed 03/26/20 Page 1 of 88

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------X

3/26/2020

H. CRISTINA CHEN-OSTER, SHANNA

:

ORLICH, ALLISON GAMBA, and MARY DE :

10 Civ. 6950 (AT) (RWL)

LUIS, on behalf of themselves and all others :

similarly situated,

:

:

Plaintiffs,

:

DECISION AND ORDER:

: MOTION TO COMPEL ARBITRATION

: AND CROSS-MOTION TO VOID

:

ARBITRATION AGREEMENTS

- against -

:

:

GOLDMAN, SACHS & CO. and THE

:

GOLDMAN SACHS GROUP, INC.,

:

:

Defendants.

:

---------------------------------------------------------------X

ROBERT W. LEHRBURGER, United States Magistrate Judge.

In this class action, Plaintiffs allege that Defendants Goldman Sachs & Co. and

The Goldman Sachs Group, Inc. (collectively, “Goldman” or “Defendants”) engaged in

disparate impact and disparate treatment discrimination against female employees in

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

and the New York City Human Rights Law (“NYCHRL”), Administrative Code § 8-107 et

seq. On March 30, 2018, the Honorable Analisa Torres, U.S.D.J., granted Plaintiffs’

motion for class certification, certifying a class of female employees in particular positions

across three Goldman divisions. Chen-Oster v. Goldman, Sachs & Co., 325 F.R.D. 55

(S.D.N.Y. 2018) (the “Certification Order”). The parties have since been actively engaged

in merits discovery, which currently is set to conclude on June 2, 2020. (Dkt. 943.)

Goldman now moves the Court for an order staying the claims of approximately

fifty-six percent of the more than 3,000 class members, excluding them from the class,

and compelling them to individually arbitrate their discrimination claims. (Dkt. 715.)

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Goldman argues that the majority of class members previously agreed to arbitrate, rather than litigate, their claims when they signed various severance, promotion, and equity compensation agreements. Plaintiffs contend that Goldman has waived its right to compel arbitration, and additionally that arbitration clauses in one category of agreements – equity compensation agreements – are unconscionable and therefore unenforceable.
Plaintiffs simultaneously cross-move, pursuant to Federal Rule of Civil Procedure 23(d) governing class actions (“Rule 23(d)”), seeking a judicial order voiding the arbitration clauses (and releases in severance agreements) contained in agreements executed after the filing of this case on September 15, 2010. (Dkt. 717.) Plaintiffs argue that Goldman has improperly attempted to narrow the scope of the class by having putative class members execute agreements to arbitrate and release their claims without notifying them of the existence of this action. In opposition, Goldman contends that it has not coerced or misled class members with its agreements and that relief pursuant to Rule 23(d) is neither authorized nor warranted. (Dkt. 758.)
This Decision and Order resolves both motions concurrently. As set forth below, the Court finds that the four categories of arbitration agreements at issue are enforceable as a matter of contract law. The arbitration clauses in one category of agreements – equity award agreements – nevertheless warrant remedial action under Rule 23(d). Accordingly, for the reasons that follow, Defendants’ Motion to Compel and Stay Pending Arbitration is GRANTED IN PART and CONDITIONALLY GRANTED IN PART, and Plaintiffs’ Cross-Motion is GRANTED IN PART and DENIED IN PART.1
1 District courts in this Circuit regularly have concluded that a motion to compel arbitration and stay litigation pending arbitration is non-dispositive and therefore within a Magistrate Judge’s purview to decide without issuing a report and recommendation pursuant to 28
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The Parties’ Submissions
A. Goldman’s Motion to Compel Arbitration
Goldman filed its Motion to Compel Arbitration on April 12, 2019 (“Motion to
Compel” or “Motion”). (Dkt. 715.) The Notice of Motion’s “Appendix A” lists 1,852 class
members whose claims Goldman seeks to stay and compel into arbitration.2 (Id.) The
motion includes the Declaration of Robert J. Giuffra, Jr. (Dkt. 716, “Giuffra Decl.”) with
Appendices A-F and Exhibits 1-1475 (which collectively include the agreements Goldman
seeks to enforce). The Motion also is supported by the declarations of five Goldman
employees describing various aspects of Goldman’s employment procedures.3 (Dkt. 721-
725.) Defendants submit a Memorandum of Law in Support (Dkt. 726, “Def. Mem.”) and
a Reply Memorandum of Law (Dkt. 779, “Def. Reply”).
U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b). Indeed, the Honorable James Francis IV, U.S.M.J., came to that conclusion in an earlier stage of this case on Goldman’s motion to compel arbitration of a then-named plaintiff. Chen-Oster v. Goldman, Sachs & Co., 785 F. Supp. 2d 394, 399 n.1 (S.D.N.Y. 2011); see also Marcus v. Collins, No. 16 Civ. 4221, 2016 WL 8201629, at *1 n.1 (S.D.N.Y. Dec. 30, 2016) (collecting cases and observing that the only Courts of Appeal to have decided the issue, the First and Third Circuits, both held that orders granting or denying motions to compel arbitration and stay litigation pending arbitration are non-dispositive); Zouras v. The Goldman Sachs Group, Inc., No. 02 Civ. 9249, 2003 WL 21997745, at *1 (S.D.N.Y. Aug. 22, 2003) (in Title VII employment discrimination action, granting motion to compel arbitration, dismissing action without prejudice to reopen, and acknowledging that “a motion to compel arbitration and stay an action is not a dispositive motion”).
2 By agreement following oral argument, the parties stipulated that the number of class members that Goldman seeks to compel to arbitrate is now 1,850. (Dkt. 959.) The parties’ stipulation also clarified the specific number of agreements at issue in particular categories. (Id.) The Court incorporates those agreed-upon numbers into this decision, replacing the corresponding initial numbers set forth in the parties’ motion papers.
3 These individuals are: Kathleen Cupertino (“Cupertino Decl.”) (Dkt. 721); David Landman (Dkt. 722, “Landman Decl.”); Eric Dias (Dkt. 723, “Dias Decl.”); Joseph Yanagisawa (Dkt. 724, “Yanagisawa Decl.”); and Michael Becker (Dkt. 725, “Becker Decl.”)
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In opposition, Plaintiffs submit the Declaration of Michelle A. Lamy (Dkt. 757, “Lamy Decl.”) with Appendix A and Exhibits 1-2. They also submit a Memorandum of Law in Opposition (Dkt. 756, “Pl. Mem.”) and a Sur-Reply Memorandum of Law (Dkt. 806, “Pl. Sur-Reply”). B. Plaintiffs’ Cross-Motion to Void Arbitration Clauses and Releases
Concurrently with Goldman’s Motion to Compel, Plaintiffs filed their Cross-Motion for Relief under Rule 23(d) (Dkt. 717, the “Cross-Motion”). The Cross-Motion seeks an order: (1) voiding the arbitration clauses contained in agreements between Goldman and the class members “to arbitrate employment claims and/or waive participation in a class action that were purportedly executed after the filing of this lawsuit on September 15, 2010”; and (2) voiding releases of claims contained in Separation Agreements between Goldman and class members executed after the filing of this lawsuit on September 15, 2010 “to the extent the releases purport to cover claims that are the subject of this lawsuit.” (Cross Motion at 1.) In support of their Cross-Motion, Plaintiffs include the Declaration of Michael Levin-Gesundheit (Dkt. 719, “Levin-Gesundheit Decl.”) attaching Exhibits A-C, as well as a Memorandum of Law in Support (Dkt. 718, “Cross-Motion Mem.”). On July 11, 2019, Plaintiffs filed a Reply Memorandum of Law in Support. (Dkt. 778, “Cross Motion Reply”.)
In opposition, Goldman filed the Declaration of Robert J. Giuffra, Jr. (Dkt. 759, “Giuffra Cross-Motion Decl.”) with Appendices A-B and Exhibits 1-140. Goldman includes declarations by the same five Goldman employees who submitted declarations in connection with its Motion to Compel. (Dkt. 760-764.) Goldman also submits a Memorandum of Law in Opposition (Dkt. 758, “Cross-Motion Opp.”). On August 9, 2019,
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Defendants filed a Sur-Reply Memorandum of Law (Dkt. 807, “Def. Sur-Reply”). The Court held oral argument on both motions on January 16, 2020. (See
Transcript, Dkt. 940, hereinafter “T. at __”.) Factual Background
The Court presumes the parties’ familiarity with the factual and procedural history of this case, which has been recounted in prior decisions and orders.4 This section focuses only on the background most relevant to the instant motions. A. The Class
The Certification Order certified a damages class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3).5 The class consists of current and former female Associates and Vice Presidents employed by Defendants in certain revenue-generating divisions from July 7, 2002 (for employees in New York City) and from September 10, 2004 (for employees in the United States outside of New York City), through the resolution of this lawsuit (collectively, the “Class Members”). There are 3,322 known members of the class (the “Class Members”). (See Pl. Mem. at 1.)
The Certification Order and subsequent case management orders provide that the trial will be conducted in two stages. “Phase I” of the trial will determine whether Goldman discriminated against Class Members in implementing three specific evaluation
4 See, e.g., Chen-Oster, 325 F.R.D. at 62-67 (S.D.N.Y. 2018) (describing factual and procedural history). 5 Chen-Oster, 325 F.R.D. at 55. Plaintiffs initially moved to also certify an injunctive class pursuant to Fed. R. Civ. P. 23(b)(2) but later withdrew their application to do so. (See Dkt. 627.)
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processes known as 360 Reviews, Quartiling and Cross-Ruffing.6 (Certification Order at
28, 44, 46; see also Dkt. 630.) Plaintiffs allege that these practices are instruments of
discrimination that favor men over women with respect to evaluation, compensation and
promotion. (Certification Order at 32.) To determine whether discrimination resulted from
these processes, the Phase I trial will include statistical evidence of a generalized nature.
Phase II will focus on individualized Class Member issues and damages. (Certification
Order at 41-47.)
B. The Arbitration Agreements
Goldman alleges that it entered into severance, promotion, compensation, and
equity agreements, which included broad arbitration clauses, with over 1,800 Class
Members. These types of agreements “appl[ied] to all divisions, all jobs, all titles, [and]
all genders” and were not solely offered to, or accepted by, Class Members. (T. at 4.)
The agreements can be divided into four discreet categories: (1) Separation Agreements,
(2) Managing Director (“MD”) Promotion Agreements, (3) Private Wealth Advisor (“PWA”)
Agreements, and (4) Equity Award Agreements.7
6 In “360 Reviews,” employees evaluate themselves and then solicit eight to twelve evaluators (including subordinates, bosses, peers, and internal clients) to rate them on a variety of metrics. (Certification Order at 6.) In “quartiling,” managers assign each professional to one of five ranked “quartiles” based upon comparative performance relative to other employees across another set of metrics. (Certification Order at 7-8.) In “cross-ruffing,” employees are evaluated by Managing Directors selected from outside of that employee’s specific business unit based on interviews with the employee’s managers, peers, and internal clients. (Certification Order at 9.)
7 Some Class Members executed multiple arbitration agreements with Goldman. For example, 46 employees who executed Separation Agreements and MD Promotion Agreements containing arbitration clauses after filing of the Complaint had already signed agreements to arbitrate before the Complaint was filed. (Def. Mem. at 7; Giuffra Decl., App. E-4.) Additionally, 30 Managing Directors who executed Separation Agreements had previously signed contracts that included agreements to arbitrate. (Giuffra Decl., Ex.
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1. Separation Agreements: In 769 agreements, Class Members agreed to arbitrate employment-related disputes and release claims in exchange for lump-sum severance payments as well as other valuable benefits, such as continuation of base salary payments for months after the employee’s departure, the payment of year-end bonuses after the employee’s departure, access to job placement services, and/or continuation of health and other benefits. (See Giuffra Decl., App. A, Columns G-J.) Taken together, these payments and benefits ranged in value from thousands to hundreds of thousands to millions of dollars. (Id.)
Goldman has used the same form Separation Agreements since approximately 2002, all of which include a general release of claims and an agreement to arbitrate disputes. (See Def. Mem. at 7.) Those same terms are also included in the company’s Employee Handbook. (Id.; see also Giuffra Decl., Ex. 1301-1303.) Pursuant to the release provision, each employee who entered into a Separation Agreement agreed to “voluntarily waive and release forever whatever claims, whether known or unknown, [she] ever had or now ha[s] against Goldman Sachs . . . based upon any matter, cause or thing occurring through the date of [her] signature on this agreement.” (See, e.g., Giuffra Decl., Ex. 362 at § 5.1.) The releases extend to “claims based upon or relating to your hire by Goldman Sachs, any aspect of the work you performed, your employment relationship with the firm, or the termination of your employment” and include claims “for discrimination based upon . . . sex.” (Id.) As for dispute resolution, the Separation Agreements require arbitration of “[a]ny dispute or claim arising out of or based upon or relating in any way to
416 at § 9.1; Giuffra Decl., App. E-5 (providing that “[d]isputes arising out of or relating to this agreement are subject to the provisions of the [MD Agreement] with respect to such matters as arbitration, injunctive relief and jurisdiction”).)
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th[e] [Separation] [A]greement, or to your employment or other association with the firm, or the termination of your employment.” (Id. at § 9.1.) Of the 769 Separation Agreements, 491 were executed before the lawsuit.8 (Dkt. 959 at 3.)
2. MD Promotion Agreements: In 200 agreements, Class Members agreed to arbitrate in exchange for increased compensation and promotion to Extended Managing Director or Participating Managing Director (“Partner”) (collectively, “MD”). (Dkt. 959 at 3.) Since 2002, Goldman has required all employees promoted to Extended Managing Director or Partner to execute MD Promotion Agreements that require arbitration of disputes. (See, e.g., Giuffra Decl., Ex. 883, 989.) All of the 200 MD Promotion Agreements at issue here include a provision virtually identical to that in the Separation Agreements requiring arbitration of “any dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters.”9 (Giuffra Decl., App. B, Column I, Ex. 883 at 5.) The MD Promotion Agreements were supported by substantial consideration in the form of sought-after titles along with an increase in base salary to at least $400,000 per year as well as other financial benefits including discretionary annual bonuses.10 (Landman Decl., ¶ 7.) Of the 200 MD Promotion Agreements, 60 were
8 Plaintiffs do not oppose arbitration of a relative handful of Separation Agreements where the putative Class Members each were represented by counsel. (Dkt. 959 at 3, n.2-3.) 9 “Employment Related Matters” are defined as “matters arising out of or relating to or concerning this Agreement, your employment with the Firm or the termination thereof, or otherwise concerning any rights, obligations, or other aspects of your employment relationship in respect of the Firm.” (Giuffra Decl., Ex. 883 at 5.) 10 Goldman emphasizes that the individuals who achieve the rank of Executive Managing Director or Partner are “highly educated, experienced and sophisticated professionals,” over forty percent of whom have at least one advanced degree. (Def. Mem. at 9; Landman Decl., ¶¶ 4-6.) Promotion to Extended Managing Director is a significant achievement within the financial services industry; less than ten percent of Goldman’s global workforce
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executed before filing of the Complaint. (Dkt. 959 at 3.) 3. PWA Agreements: In 187 agreements, Class Members who served as
Private Wealth Advisors agreed to arbitration in exchange for their placement “in a role with significant career and compensation benefit – which includes access to the Firm’s high-net-worth clients, extensive training and placement in an existing PWA team.” (Def. Mem. at 6; see also Dkt. 959; Cupertino Decl., ¶¶ 9-13.) Of the 187 PWA Agreements, 95 were executed before the Complaint was filed. (Dkt. 959.)
All Goldman PWAs are required to register with the Financial Industry Regulatory Authority (“FINRA”) (or, prior to 2007, its predecessor entities the National Association of Securities Dealers and New York Stock Exchange Member Regulation). (Cupertino Decl. ¶ 4.) Registered representatives must agree “to arbitrate any dispute, claim or controversy that may arise between me and my firm” in the Form U4 required for FINRA registration. (Uniform Application for Securities Industry Registration or Transfer § 15A, ¶ 5 (2009).) Since 1998, Goldman Sachs has required all PWAs to enter into a standard PWA Agreement specifying certain conditions of their employment, including that “[a]ny dispute or claim arising out of, based upon or relating in any way to . . . your employment at Goldman Sachs or the termination of your employment, will be settled and finally determined by arbitration.” (Giuffra Decl., Ex. 1156 at § 9; Cupertino Decl. ¶ 7.) Like MDs, PWAs are well-educated and experienced professionals; PWAs also have passed FINRA’s registration examinations for investment advisors. (Cupertino Decl., ¶¶ 3-6.)
4. Equity Award Agreements: Starting more than five years after
has achieved the rank of Extended Managing Director and less than two percent has achieved the rank of Partner. (Landman Decl., ¶¶ 4–5.)
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commencement of this litigation, 694 Class Members agreed to a broad arbitration clause while receiving discretionary equity-based compensation awards. (Dkt. 959; Lamy Decl. ¶¶ 5-6.) Individuals who entered into Equity Award Agreements generally received grants of Restricted Stock Units, which are promises to deliver Goldman Sachs stock at specific times in the future, subject to certain conditions. (Giuffra Decl., App. D; Dias Decl., ¶ 5.) The approximate value of individual equity awards, based on the stock price on the date of grant, ranged from $1,461 to over $1.3 million, with an average value of approximately $37,000. (Def. Mem. at 12; Dias Decl. ¶ 36, Ex. 61.) To be eligible for the equity awards, employees each had total annual compensation of at least $200,000, of which at least $15,000 was a discretionary bonus. (Dias Decl. ¶ 7.)
Goldman’s employee equity program initially was set forth in a written Equity Award agreement. (Giuffra Decl., App. D; Dias Decl. ¶¶ 4-8.) The form Equity Award agreement included an arbitration provision limited to disputes related to the Equity Award agreement itself. The document also incorporated by reference Goldman’s Stock Incentive Plan, which has its own documentation similarly requiring arbitration of disputes specifically related to the Equity Award program. (Dias Decl., Ex. 6.) In 2016, however, Goldman introduced an additional document into its electronic process for accepting equity benefits: an electronic Signature Card. (Dias Decl. ¶¶ 16-28; Lamy Decl., ¶¶ 5-6.) In contrast to the Equity Award agreements, which still contained their equity programspecific arbitration clauses, the Signature Card incorporated a broader arbitration provision applicable to all aspects of an employee’s relationship with Goldman.11 (See.,
11 The disputed arbitration provision at issue here appears in the Signature Card, not the underlying Equity Award agreement. Accordingly, the Court refers to Equity Award agreements and Signature Card together as “Equity Award Agreements,” with a capital
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e.g., Dias Decl., Ex. 14 at 1.) The intricacies, and implications, of this change and manner of acceptance are discussed later in this decision. C. Notice to Class Members
Goldman delineates various ways by which it contends Class Members received actual notice, or should have been on constructive notice, of the pendency of this action by the time they entered into their respective agreements containing arbitration clauses and releases. (Def. Mem. at 14-18.) The parties disagree on the legal import of these events, but the Court will describe three methods of notice that are potentially relevant.
First, beginning on September 20, 2010, five days after the Complaint was filed, Goldman emailed document retention notices (“Hold Notices”) to all U.S.-based employees. (Yanagisawa Decl., Ex. 1.) The Hold Notices advised employees that “three former employees sued the firm asserting claims concerning their employment and making general allegations about the firm’s practices and policies with respect to female associates, vice presidents and managing directors,” and directed employees to preserve any documents related to “the firm’s practices and policies concerning compensation, promotion, assignments, support, training and mentoring and the firm’s performance review system as they relate to associates, vice presidents and managing directors.” (Id. at 1.) Since that time, Goldman has sent at least eight additional Hold Notices to individuals who were determined to possibly have relevant documents. (Yanagisawa Decl., Ex. 2-9.) Goldman notes that, in total, it has sent Hold Notices via email over 100,000 times and that many Class Members would have received Hold Notices multiple
“A” for “Agreements.” When referring to the Equity Award agreement without the Signature Card, the Court uses a lower case “a” for “agreements.”
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times. (Def. Mem. at 15; Becker Decl., Ex. 1.) Second, Goldman emphasizes the press attention that this matter has received,
including over 100 articles in media outlets such as The New York Times, Business Insider, and other industry publications since the case was filed in 2010. (See, e.g., Giuffra Decl., Ex. 1309, 1310.) At least 96 such articles have specifically referred to the case as a “class action.” (Giuffra Decl., Ex. 1304-1417.)
Third, Goldman disclosed the existence of this action in each of its Form 10-Q and 10-K filings since the third quarter of 2010 when the original Complaint was filed. The disclosure states, in relevant part, that “[o]n September 15, 2010, a putative class action was filed . . . by three former female employees alleging that Group Inc. and GS&Co. have systematically discriminated against female employees in respect of compensation, promotion, assignments, mentoring and performance evaluations.” (Giuffra Decl., Exs. 1418–1451.) This disclosure was amended in the first quarter of 2018 to reflect the Certification Order. (Ex. 1448 at 4.)
More recently, on November 30, 2018, Class Members were sent the negotiated, court-approved class action Notice (the “Notice”). (See Dkt. 618 (court approval); Giuffra Decl., Ex. 1300 (example Notice).) The Notice specifically advised that: “Goldman Sachs has asserted that . . . those who have signed agreements to arbitrate any claims they may have against the firm related to their employment should be excluded from the Class. . . . The fact that you received this Notice does not mean that you will remain in the Class if you signed a release of claims or an agreement to arbitrate.” (Giuffra Decl., Ex. 1300 at 3.) The Notice indicated that recipients had the right to opt out of the class by January 14, 2019. (Id. at 4.) During that period, 130 Class Members who had executed
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agreements with arbitration clauses or releases opted out. (Def. Mem. at 17.) However, the Class Members who are the subject of Goldman’s Motion did not. (Id.)
On February 5, 2019, Goldman sent class counsel individual arbitration demands directed to each Class Member at issue on this motion requiring that she abide by her obligation to bring her claims in arbitration and file a voluntary dismissal of her claims in this action. (Giuffra Decl., Ex. 1290–1294.) Goldman further advised that if no response was received by March 7, 2019, it would assume its demands had been refused and would move to compel arbitration. (Id.) Plaintiffs did not directly respond to Goldman, instead addressing their views on the arbitration clauses and releases to the Court. (Dkt. 667, 671.) Briefing of the Motion and Cross-Motion followed.
Discussion The Court begins its analysis by addressing one of Plaintiffs’ primary arguments against enforcing any of the arbitration agreements at issue – that Goldman waived its right to compel arbitration because it waited too long to assert it. The Court finds otherwise, concluding that Goldman has asserted its right to arbitrate repeatedly during the litigation. Goldman moved to compel shortly after the class was certified at the earliest practicable time that it could have done so under the circumstances. Second, the Court addresses the existence, scope and enforceability of the arbitration agreements with Class Members. The Court concludes that the arbitration provisions of the Separation Agreements, MD Promotion Agreements, and PWA Agreements are enforceable under contract law and encompass the claims in suit. Absent voiding the arbitration provisions in those agreements pursuant to Rule 23(d), the individuals who signed these agreements should be compelled to arbitrate. As for
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arbitration provisions in the Equity Award Agreements, which Plaintiffs contend are unenforceable as unconscionable, the Court finds that although tainted by procedural unconscionability, those provisions are not substantively unconscionable and accordingly should be enforced, again subject to any different outcome under Rule 23(d).
Third, the Court considers Plaintiffs’ Cross-Motion, and whether the otherwise enforceable arbitration provisions (and releases) of the Separation Agreements, MD Promotion Agreements, PWA Agreements, and Equity Award Agreements should be voided under Rule 23(d) as applied to Class Members. After analyzing Rule 23(d) and relevant case law, the Court determines that none of the arbitration provisions (or releases) contained in the first three categories of agreements should be voided pursuant to Rule 23(d). The Court finds, however, that the Equity Award Agreements do raise Rule 23(d) concerns warranting remedial action and that the Class Members who agreed to arbitrate solely pursuant to these agreements should be given an opportunity to opt out of arbitration and continue as parties to this action.
I. Goldman Did Not Waive Its Right to Compel Arbitration Waiver is a gateway issue with respect to both the Motion and Cross-Motion; if Goldman’s effort to seek arbitration is untimely, both motions are effectively moot. Plaintiffs argue that Goldman waited too long to move to compel arbitration and thereby has waived its right to do so.12 (Pl. Opp. at 17-25.) Goldman counters that it has clearly
12 Plaintiffs also argue that the determination of Goldman’s request to compel arbitration is premature and should be deferred to Phase II when individual Plaintiff’s claims will be addressed. (Pl. Opp. at 15-17.) The Court disagrees. Such a process would be a rather inefficient way of managing this already-cumbersome litigation when the issue can be dealt with now. Additionally, Plaintiffs have not made a similar argument with respect to their Rule 23(d) Cross-Motion, nor offered an affidavit or declaration from any individual Class Member raising the prospect of individualized issues. Plaintiffs’ suggestion also
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stated its intention to compel arbitration since its first responsive pleading was filed in 2010, reiterated that intention repeatedly over many years, and moved to compel as soon as practicable following class certification. (Def. Reply at 7-11.) The Court agrees with Goldman and finds that Defendants did not waive their right to seek arbitration. A. Legal Standards for Waiver of Right to Arbitrate
As a general matter, waiver of the right to seek arbitration is considered against the well-established backdrop of the “emphatic federal policy in favor of arbitral dispute resolution.” Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530, 533 (2012) (internal citations omitted). The Second Circuit has repeatedly emphasized that “waiver of the right to arbitration is not to be lightly inferred.” Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 104-105 (2d Cir. 2002) (internal citations omitted); see also PPG Industries, Inc. v. Webster Auto Parts, Inc., 128 F.3d 103, 107 (2d Cir. 1997) (same). As a result, “any doubts concerning whether there has been a waiver are resolved in favor of arbitration.” Katsoris v. WME IMG, LLC, 237 F. Supp. 3d 92, 100-01 (S.D.N.Y. 2017) (internal citations omitted).
To determine whether a party has waived its right to arbitration by expressing its intent to litigate the dispute in question, courts in the Second Circuit employ a three-factor analysis, examining “(1) the time elapsed from when litigation was commenced until the request for arbitration; (2) the amount of litigation to date, including motion practice and discovery; and (3) proof of prejudice.” Louisiana Stadium & Exposition District v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156, 159 (2d Cir. 2010) (quoting Louis
undermines Plaintiffs’ own argument that pursuing ongoing litigation without addressing the arbitration issue serves as evidence of Goldman’s waiver.
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Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 229 (2d Cir. 2001)). The Court analyzes these three factors with respect to Goldman’s conduct, while taking account of the “national policy favoring arbitration” and the unique procedural history of this case. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984); Katsoris, 237 F. Supp. 3d at 100 (same). B. Goldman Timely Asserted Its Right to Arbitrate
This lawsuit is now ten years old. Plaintiffs argue that Goldman’s motion comes “too late” (Pl. Sur-Reply at 1); Goldman counters that it asserted its arbitration rights “early and often.” (Def. Reply at 8.) But simply counting the years that have passed since Plaintiffs’ commenced this action does not end the Court’s analysis given the unusual and circuitous path of this complex litigation.13 Although significant time has elapsed since the Complaint was filed, Goldman made its motion to compel as soon as it was practicable and possible to do so.
In the context of class action litigation, courts repeatedly have held that the earliest time to move to compel arbitration is after class certification. At that juncture, previously putative class members first become subject to a court’s jurisdiction. See Jensen v. Cablevision Systems Corp., 372 F. Supp. 3d 95, 123 (E.D.N.Y. 2019) (before certification, the court cannot “compel absent putative class members who are not before this [c]ourt to binding arbitration or issue a ruling regarding the enforceability of the [arbitration] provision,” because “[a]ny such ruling is procedurally improper and analogous to an
13 The case was delayed at multiple junctures primarily due to interlocutory appeals concerning class certification. (Dkt. 126, 175.) It also has seen two district judges and two magistrate judges over its history, causing further administrative delays through no fault of the parties. (Dkt. 181.)
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advisory opinion”); In re Ductile Iron Pipe Fittings Direct Purchaser Antitrust Litigation, No. 12-CV-711, 2016 WL 5508843, at *2 (D.N.J. Sept. 28, 2016) (finding “[i]t is not appropriate for the Court to exclude potential class members from this class action [based on arbitration agreements] . . . prior to their being made a party in this case” after certification); Kleen Products LLC v. International Paper, 306 F.R.D. 585, 607 (N.D. Ill. 2015) (“more appropriate time” for motion to compel “is after the class is certified [when defendants] . . . can determine which specific class members are subject to potentially disqualifying contractual provisions”); Whittington v. Taco Bell of America, Inc., No. 10CV-01884, 2011 WL 1772401, at *6 (D. Colo. May 10, 2011) (“The court finds no procedure or authority . . . to compel putative class members, who are not currently before the court and, because a class has not yet been certified, have not even received notice of the litigation, to arbitrate their potential claims against Defendants.”); In re TFT-LCD (Flat Panel) Antitrust Litigation, No. 07-CV-1827, 2011 WL 1753784, at *4 (N.D. Cal. May 9, 2011) (defendants could not have moved to compel arbitration prior to certification “because . . . putative class members are not parties to an action prior to class certification”) (internal citations omitted).
A recent Eleventh Circuit case, Gutierrez v. Wells Fargo Bank, NA, 889 F.3d 1230 (11th Cir. 2018), is illustrative. There, defendant Wells Fargo asserted arbitration agreements as an affirmative defense in its answers and repeatedly notified the plaintiffs and the court of those agreements. Id. at 1234. As here, the parties proceeded through “class-related discovery and motions practice,” and Wells Fargo moved to compel absent class members to arbitration shortly after the district court granted class certification. Id. at 1234-35. Reversing the district court’s decision that Wells Fargo waived its right to
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compel arbitration, the Eleventh Circuit held, “it cannot be said that [a defendant’s] failure to seek arbitration with the unnamed class members prior to class certification manifested an inconsistency with its arbitration rights [as such a procedure] . . . would have been impossible in practice to compel arbitration against speculative plaintiffs.” Id. at 1238. The Court did not even reach a discussion of prejudice to the plaintiffs, because it found that Wells Fargo moved to compel arbitration as soon as it could. Id. at 1239 n.10.
Like Wells Fargo, Goldman moved to compel arbitration at the earliest practical time. The Certification Order was issued on March 30, 2018. Chen-Oster, 325 F.R.D. at 55. Thereafter, the parties agreed upon a Notice to the Class that was approved by the Court on November 16, 2018 (Dkt. 618, 639), and distributed on November 30, 2018. (Dkt. 647.) Notice was sent to 3,487 Class Members. (Dkt. 674.) The deadline to optout of the class was January 14, 2019 – the date by which Goldman would know which Class Members, if any, would comply with their arbitration agreements and leave the class. By that date, 165 individuals opted out of the class, resulting in a total class size of 3,322. (Dkt. 674.) About three weeks later, on February 5, 2019, Goldman served individual arbitration demands. (Id.) Goldman thus moved expeditiously.
Plaintiffs had extensive notice of Goldman’s intention to compel arbitration. Since this lawsuit began, Goldman has repeatedly stated its right to compel arbitration of all Class Members who executed arbitration agreements. Indeed, Goldman includes a detailed list of 38 references it made between 2010 and 2019 that unambiguously telegraphed its plans. (Giuffra Decl., App. F; see also Dkt. 946; T. at 8-14.) For example, Goldman included arbitration as an affirmative defense in each of its Answers, noting that “[l]itigation in this Court is precluded with respect to potential claims by those members of
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the putative Class of persons Plaintiffs purport to represent, who have executed
arbitration agreements that require employment-related disputes to be submitted to
arbitration.” (Dkt. 426 ¶¶ 246, 247; see also Dkt. 29 ¶¶ 235, 236; Dkt. 161 ¶¶ 229, 230.)
Shortly after this lawsuit was filed, in December 2010, Goldman transmitted
examples of arbitration agreements to Plaintiffs’ counsel in response to Plaintiffs’ requests
for samples. (Giuffra Decl., Ex., 1455 at 1.) Plaintiffs then sought – and received – in
discovery additional copies of the arbitration agreements covering at least some of their
clients. (See Giuffra Decl., Ex. 1458 at 7 (Plaintiffs’ document demands, dated June 18,
2013); Giuffra Decl., Ex. 1461, 1462 (Goldman’s responsive production, dated July 30,
2013 and August 2, 2013).) And the list goes on. Goldman’s offers an array of other
communications or actions that unmistakably demonstrate its longstanding intent to
arbitrate any of Plaintiffs’ claims that could be arbitrated. Plaintiffs’ argument to the
contrary – that the instant strategy represents an unfair surprise after years of litigation
that they could not have anticipated – is unavailing. No one involved in this litigation could
reasonably have been uncertain that Goldman intended to move to compel arbitration.14
14 Goldman’s conduct stands in sharp contrast to similar class action disputes where corporate defendants failed to raise their arbitration rights earlier in the case. See, e.g., Degidio v. Crazy Horse Saloon & Restaurant, 880 F.3d 135, 141 (4th Cir. 2018) (finding waiver where “[i]nstead of filing a motion to compel arbitration at an early stage,” defendant “filed multiple motions for summary judgment, served discovery, and twice asked the district court to certify questions of state law to” state Supreme Court); In re Cox Enters., Inc. Set-Top Cable Television Box Antitrust Litigation, 790 F.3d 1112, 1115, 1117, 1120 (10th Cir. 2015) (finding waiver where defendant “engaged in extensive” fact and expert merits discovery, moved to compel arbitration the “same day it moved for summary judgment,” and “fail[ed] to mention its intent to raise its arbitration rights as a defense or inform the district court of the existence of those rights”); In re Currency Conversion Antitrust Litigation, 361 F. Supp. 2d 237, 258 (S.D.N.Y. 2005) (finding waiver where defendant engaged in “[e]xtensive nationwide discovery involving nearly one hundred depositions,” and where “expert discovery [was] in full swing and the trial [was] scheduled to commence in seven months”); Edwards v. First American Corp., 289 F.R.D.
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C. The Extent of Litigation, Though Extensive, Does Not Disfavor Arbitration Plaintiffs are correct that, as a general rule, parties cannot participate in the
litigation process only to move to compel arbitration when it strategically suits them. (Pl. Opp. at 13.) The amount of litigation that took place before Goldman moved to arbitrate is indisputably significant. Plaintiffs highlight just some of the many legal filings in the case at the time of Goldman’s motion: 44 fully-briefed motions, over 100 letters, 26 court appearances, and hundreds of thousands of pages of discovery production. (Pl. Opp. at 5-6.) Judicial economy dictates that parties may not burden the courts, only to then jump ship to arbitration when the strategic timing suits their interests. See, e.g., PPG Industries, 128 F.3d at 108-09 (plaintiff waived its right to arbitrate by “engaging in discovery” and “filing substantive motions” in a related action for “approximately five months” before moving to compel arbitration, which “evidenced a preference for litigation that supports a finding of waiver”); Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 26 (2d Cir. 1995) (finding waiver where a party engaged in an “energetic pursuit of discovery,” and waited until “the eleventh hour, with trial imminent” to seek enforcement of an arbitration agreement); Louisiana Stadium & Exposition District, 626 F.3d at 159160 (finding waiver where plaintiff waited eleven months to move to compel arbitration while defendants filed procedural motions and “began work on a motion for judgment on the pleadings”).
But again, context is key. Goldman could not compel arbitration until class certification and the members of the class were determined. Moreover, Goldman did not
296, 307 (C.D. Cal. 2012) (finding waiver where “[d]efendants could have asserted their intention to raise arbitration as a defense at a much earlier stage in the proceeding.”).
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“hide the ball” with respect to its intent to compel arbitration to either Plaintiffs or the Court, having repeatedly asserted its intent to do so since it first answered Plaintiffs’ complaint. Indeed, earlier in this very litigation, Goldman successfully advanced an interlocutory appeal in the Second Circuit, winning reversal of the district court’s denial of Goldman’s motion to compel arbitration against a former named plaintiff. Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 488 (2d Cir. 2013). In short, Plaintiffs have been wholly aware of Goldman’s strategy to compel arbitration at most every significant step of this case.
Moreover, it is important to keep in mind that Goldman’s instant motion concerns only about half of the Class Members. Put differently, regardless of the outcome here, this dispute will proceed in litigation with more than a thousand remaining Plaintiffs even without those who must pursue their claims in arbitration. The great majority of the procedural history in this case, including the many motions, filings, discovery exchanged, and appearances would have occurred regardless of the size of the class and the absence of individuals who would have been in the class but for their agreement to arbitrate. Accordingly, the lengthy history of this case does not support finding waiver. D. Plaintiffs Have Not Demonstrated Prejudice
Courts acknowledge that “[t]he key to a waiver analysis is prejudice.” Thyssen, 310 F.3d at 105. Prejudice “refers to the inherent unfairness – in terms of delay, expense, or damage to a party’s legal position – that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.” PPG Industries, 128 F.3d at 107 (quoting Doctor's Associates, Inc. v. Distajo, 107 F.3d 126, 134 (2d Cir. 1997)).
The Second Circuit has identified two types of prejudice from a party's delay in compelling arbitration: “substantive prejudice and prejudice due to excessive cost and
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time delay.” Thyssen, 310 F.3d at 105. Substantive prejudice occurs when the “invocation of arbitration [creates] a threat of re-litigation” of issues already resolved in court. Jung v. Skadden, Arps, Slate, Meagher & Flom, LLP, 434 F. Supp. 2d 211, 216 (S.D.N.Y. 2006); see also Louis Dreyfus Negoce S.A., 252 F.3d at 229 (prejudice in the arbitration context “[typically] refers to the inherent unfairness . . . that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue”) (internal citation omitted). Substantive prejudice can also result from a party “secur[ing] . . . the benefits of pretrial discovery that is often unavailable in an arbitral forum.” Cotton v. Slone, 4 F.3d 176, 180 (2d Cir. 1993). Courts generally hold that “it is unfair to allow a party to gather information that will be advantageous in a later arbitration proceeding, if that information cannot be obtained in the arbitration proceeding.” Jung, 434 F. Supp. 2d at 217 (S.D.N.Y. 2006) (citing Leadertex, Inc., 67 F.3d at 26).
For the second category of prejudice, courts will consider situations “when a party too long postpones his invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay or expense.” Thyssen, Inc., 310 F.3d at 105 (internal quotations omitted); see also Polit v. Global Foods International Corp., No. 14 Civ. 7360, 2015 WL 1780161, at *5 (S.D.N.Y. April 20, 2015). However, “pretrial expense and delay – unfortunately inherent in litigation – without more, do not constitute prejudice sufficient to support a finding a waiver.” Jung, 434 F. Supp. 2d at 217 (quoting Leadertex, 67 F.3d at 26); see also Anwar v. Fairfield Greenwich Ltd., 863 F. Supp. 2d 346, 349 (S.D.N.Y. 2012) (delay and expense “does not reach the level of prejudice necessary to create waiver and overcome the ‘strong federal policy favoring arbitration’”) (internal quotations omitted).
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As indicated above, the parties have engaged in extensive and costly motion practice and pre-trial discovery. The question is whether this activity has resulted in “delay, expense, or damage to [Plaintiffs’] legal position.” Doctor’s Associates, 107 F.3d at 134. Plaintiffs’ opposition papers do not clearly articulate any demonstrable prejudice that they would face by having approximately half the class proceed to arbitration, alleging in conclusory fashion that Plaintiffs “have relied on the pleadings, rulings, and extensive discovery” described above and observing that the Second Circuit “has found prejudice in far less extreme circumstances.” (Pl. Opp. at 23-25.)
But, unlike the cases Plaintiffs cite, Goldman does not seek to “[engage] in discovery procedures not available in arbitration, [make] motions going to the merits of [Plaintiffs’] claims, or [purposely delay] invoking arbitration rights while the adversary incurs unnecessary delay or expense.” S&R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83-84 (2d Cir. 1998). Goldman has not taken discovery of any non-named Plaintiffs who are subject to arbitration agreements. Nor has it caused unnecessary expense. Given that the instant motion covers only approximately half the class, the parties would have had to engage in most of the same discovery, motion practice and litigation regardless of when Goldman filed the instant motion. Thus, Goldman has not gained the benefit of discovery procedures not available in arbitration or caused delay or expense that would not otherwise have been incurred had Goldman moved earlier, which it could not have done in any event. See Allied Sanitation, Inc. v. Waste Management Holdings, Inc., 97 F. Supp. 2d 320, 328-29 (E.D.N.Y. 2000) (no prejudice where defendant engaged in motion practice and first raised arbitration agreement two months post-certification because absent class member “was neither an actual nor putative
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litigant” prior to certification). Plaintiffs argue that “[i]f Goldman’s ‘heads I win, tails you lose’ gamesmanship
were permitted, any employer could sit on its purported arbitration rights throughout the entire course of a litigation . . . and then jump to a friendlier forum if the court disagreed with its positions, or roll out arbitration agreements years after the start of the case to create a one-way escape hatch from court.” (Pl. Opp. at 24-25.) This Court does not endorse such a strategy, nor does this Decision and Order allow it. A party can only “sit on its purported arbitration rights” to the extent that party can actually move to compel arbitration. As discussed above, Goldman could not do so until the class was certified.
Moreover, it is not accurate that arbitration necessarily constitutes a “friendlier forum” for employers. As the Second Circuit noted in Parisi,
[Plaintiffs] must prove to the arbitrators that Goldman Sachs discriminated against [them] on the basis of sex in violation of Title VII. The rules of the fora in which [their] claims may be arbitrated, the Financial Industry Regulatory Authority (“FINRA”) and the American Arbitration Association (“AAA”), afford flexibility and informality to parties adducing relevant evidence. See FINRA Rule 13604; AAA Rule 30. Consequently, we have little difficulty in concluding, as Goldman Sachs concedes, that in proving her statutory claims, [Plaintiffs] may offer to the arbitrators evidence of discriminatory patterns, practices or policies at Goldman Sachs that [they contend] affected [them]. Parisi, 710 F.3d at 488. In sum, Goldman consistently asserted its intent to move to compel arbitration, timely did so following certification of the class, and did not waive its right to do so.
II. Arbitration Clauses in All Four Categories of Agreements are Enforceable as a Matter of Contract Law
Having disposed of the waiver question, the Court turns to the enforceability of the arbitration agreements. The analysis begins by considering federal arbitration law and the three inquiries required by the Second Circuit in assessing motions to compel
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arbitration: (1) whether the parties agreed to arbitrate; (2) whether the scope of that agreement includes the dispute at hand; and, (3) if federal statutory claims are asserted, whether Congress intended those claims to be arbitrable. Daly v. Citigroup Inc., 939 F.3d 415, 421 (2d Cir. 2019). The Court answers all three questions in the affirmative. A. Motions to Compel Arbitration and Stay Litigation
Under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., parties may contract to arbitrate their disputes rather than litigate them. Such agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” FAA § 2. For decades, the U.S. Supreme Court has held that, through the FAA, “Congress declared a national policy favoring arbitration.” Southland Corp. v. Keating, 465 U.S. 1, 10 (1984); see also Doctor's Associates, Inc. v. Alemayehu, 934 F.3d 245, 250 (2d Cir. 2019) (“The FAA ‘embodies a national policy favoring arbitration’ founded upon ‘a desire to preserve the parties’ ability to agree to arbitrate, rather than litigate, [their] disputes’”) (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110, 118 (2d Cir. 2012) (internal citations and quotations omitted); Preston v. Ferrer, 552 U.S. 346, 349 (2008) (quoting Southland).
Enacted in 1925, the FAA sought to counteract traditional judicial hostility toward arbitration, which often overrode the parties’ contractual intentions. See Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 270-72 (1995) (explaining legislative history). In this way, the FAA places arbitration agreements “upon the same footing as other contracts.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974) (internal quotations omitted); see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (noting that the Supreme Court has “long recognized and enforced a liberal federal
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policy favoring arbitration agreements”) (internal citations and quotations omitted); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 344 (2011) (reiterating that it is a “fundamental principle” of the FAA that “arbitration is a matter of contract” and that its “overarching purpose . . . is to ensure the enforcement of arbitration agreements according to their terms”); Sole Resort, S.A. de C.V. v. Allure Resorts Management, LLC, 450 F.3d 100, 104 (2d Cir. 2006) (“The rules governing arbitration, its location, the law the arbitrators will apply, indeed, even which disputes are subject to arbitration, are determined entirely by an agreement between the parties. Any arbitration proceeding is thus an extension of the parties’ contract with one another, a mechanism through which they attempt to ensure compliance with the terms of that contract.”).
Where a party to an arbitration agreement refuses to comply with that agreement, and instead attempts to proceed in litigation, the other party may move to stay the litigation, FAA § 3,15 and compel arbitration. FAA § 4.16 In reviewing a motion to compel arbitration, a court “must therefore determine: (1) ‘whether the parties agreed to arbitrate’; (2) ‘the scope of that agreement’; and, (3) ‘if federal statutory claims are asserted, . . . whether Congress intended those claims to be nonarbitrable.’” Daly, 939 F.3d at 421 (quoting Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir. 1987)). In
15 FAA § 3 states, in relevant part: “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement . . . .” 16 FAA § 4 states, in relevant part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement.”
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accordance with the “strong federal policy favoring arbitration as an alternative means of dispute resolution,” any doubts concerning the scope of arbitrable issues are resolved “in favor of arbitrability.” State of New York v. Oneida Indian Nation of New York, 90 F.3d 58, 61 (2d Cir. 1996). A court thus “will compel arbitration unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. (internal citations and quotations omitted).
“Courts deciding motions to compel apply ‘a standard similar to that applicable for a motion for summary judgment.’” Meyer v. Uber Technologies, Inc., 868 F.3d 66, 74 (2d Cir. 2017) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016)). The party moving to compel arbitration “must make a prima facie initial showing that an agreement to arbitrate existed before the burden shifts to the party opposing arbitration to put the making of that agreement ‘in issue.’” Hines v. Overstock.com, Inc., 380 F. App'x 22, 24 (2d Cir. 2010) (summary order).
The moving party need not “show initially that the agreement would be enforceable, merely that one existed.” Id. (emphasis in original). Thereafter, the party “seeking to avoid arbitration generally bears the burden of showing the agreement to be inapplicable or invalid.” Harrington v. Atlantic Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir. 2010) (citing Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 91–92 (2000)); see also Porcelli v. JetSmarter, Inc., No. 19 Civ. 2537, 2019 WL 2371896, at *3 (S.D.N.Y. June 5, 2019) (applying summary judgment-like standard to motion to compel). Ultimately, a court faced with a motion under FAA § 3 and FAA § 4 must determine whether “there is a valid contract to arbitrate between the [parties],” and whether the parties’ dispute “is covered by the contract.” Unique Woodworking, Inc. v. New York City
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District Council of Carpenters’ Pension Fund, No. 07 Civ. 1951, 2007 WL 4267632, at *4 (S.D.N.Y. Nov. 30, 2007). If so, “the role of the court ends and the matter is one for arbitration.”17 Id. B. Goldman Has Established the Existence of Binding Obligations to Arbitrate
Goldman makes a strong prima facie showing that each category of agreements contains binding arbitration provisions under governing principles of contract law. All the agreements were in writing and signed and accepted by Class Members. And, there is no dispute that the consideration exchanged was substantial. Courts have held that an offer of continuing employment alone is sufficient consideration to support an agreement for arbitration. See, e.g., Stern v. Espeed, Inc., 2006 WL 2741635, at *2 (S.D.N.Y. Sept. 22, 2006) (“In the specific context of post-employment arbitration agreements, several courts in this District have held that continuation of employment alone is sufficient consideration to enforce such an agreement”). Here, Class Members who remained employed by Goldman (i.e., those who did not execute a Separation Agreement) received continued employment and much more. For example, some received promotion to highly remunerative positions as MDs or employment as financial professionals serving highnet-worth clients as PWAs, while others received valuable equity awards. (Guiffra Decl., App. B, Column F; Id., App. D, Columns P-R.) Those who executed Separation
17 In recent years, scholars have raised concerns about the collateral consequences of compelling arbitration of discrimination claims. See, e.g., Jean R. Sternlight, Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where To, #MeToo?, 54 HARVARD CIV. RIGHTS-CIV. LIBERTIES L. REV. 155 (2019), Imre S. Szalai, A New Legal Framework for Employee and Consumer Arbitration Agreements, 19 CARDOZO J. CONFLICT RESOL. 653 (2018); Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 MICH. L. REV. 373 (2005). The Court recognizes these public policy concerns, but they do not provide a basis to set aside the agreements here.
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Agreements received lump-sum payments and discretionary severance benefits,
including continued salary for a period following employment, year-end bonuses, and/or
additional consideration that amounted to thousands, hundreds of thousands, or even
millions of dollars. (Giuffra Decl., App. A, Columns G-J.)
Plaintiffs offer no meaningful argument to rebut Goldman’s prima facie showing
and do not challenge the agreements’ contractual validity, with the exception of the Equity
Award Agreements (discussed separately below). Indeed, “New York contract law
presumes that a written agreement is valid and that it accurately reflects the intention of
the parties, and imposes a heavy burden on the party seeking to disprove those
presumptions.”18 Aviall, Inc. v. Ryder System, Inc., 913 F. Supp. 826, 831 (S.D.N.Y.
1996). Under those principles, “a party who signs or accepts a written contract . . . is
18 “[W]hether the parties entered into a binding arbitration agreement is governed by state contract law principles.” Frydman v. Diamond, No. 14 Civ. 8741, 2015 WL 5294790, at *4 (S.D.N.Y. Sept. 10, 2015) (citing Specht v. Netscape Communications Corp., 306 F.3d 17, 27 (2d Cir.2002)); see also Raiola v. Union Bank of Switzerland, LLC, 47 F. Supp. 2d 499, 502, 503 (S.D.N.Y. 1999) (on motion to compel arbitration of Title VII claims against employer, “the Court must apply the federal substantive law of arbitrability, which comprises generally accepted principles of contract law” and applying New York law) (internal citations and quotations omitted).” The agreements here have different provisions with respect to governing law. Both the PWA and Equity Award Agreements provide for application of New York law without regard to New York’s choice of law principles. (See, e.g., Giuffra Decl., Ex. 364; Dias Decl., Ex. 2.) Neither the Separation Agreements nor MD Promotion Agreements explicitly invoke New York law but do designate New York fora for dispute resolution. (See, e.g., Giuffra Decl., Ex. 1; Giuffra, Decl., Ex. 424.) Goldman cites New York law as governing enforceability of the arbitration clauses, noting that “[c]ourts in this District regularly rely on New York law for ‘generally accepted principles of contract law’ to resolve questions of validity under the FAA.” (Def. Mem. at 20 n.20 (quoting Gold, 365 F.3d at 149.).) Plaintiffs do not concede the applicability of New York law, but do not explain what other substantive law they believe should be applied or suggest that the analysis would be any different. (Pl. Opp. at 25 n.16.) Accordingly, the Court finds no basis to deviate from application of New York contract law.
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conclusively presumed to know its contents and to assent to them.” Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 149 (2d Cir. 2004) (compelling arbitration of claims by financial adviser who signed form contract and noting that “it was ultimately [the employee’s] responsibility to ensure he understood the document that he signed”). Moreover, any “[q]uestions concerning the language or construction of an arbitration agreement ‘must be addressed with a healthy regard for the federal policy favoring arbitration.’” Pagaduan v. Carnival Corp., 709 F. App’x 713, 715 (2d Cir. 2017) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985) and Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983)).
Courts apply the presumption of contractual validity “with even greater force” where the parties are “sophisticated.”19 Cellular Telephone Co. v. 210 E. 86th Street Corp., 44 A.D.3d 77, 83 (1st Dep’t 2007) (internal citations omitted); see also Branker v. Pfizer, Inc., 981 F. Supp. 862, 866 (S.D.N.Y. 1997) (enforcing release of discrimination claims where plaintiff who executed the release was “educated and sophisticated”); Berger v. Cantor Fitzgerald Securities, 967 F. Supp. 91, 94 (S.D.N.Y. 1997) (compelling
19 While sophistication is a factor weighing in favor of enforceability of the arbitration clauses, it is by no means required. See Ragone v. Atlantic Video at Manhattan Center, 595 F.3d 115, 122 (2d Cir. 2010) (enforcing arbitration clause in form agreement despite the fact that Title VII plaintiff claimed she did not read it and noting that “New York law . . . does not absolve Ragone of [her] obligation because she does not have a college degree and has no experience or background in business or human resources. On the contrary, New York courts have repeatedly ruled that even the fact that a prospective employee possesses an imperfect grasp of the English language will not relieve the employee of making a reasonable effort to have the document explained to him.”) (internal citations and quotations omitted).
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arbitration of securities dealer’s claims and rejecting argument that he “lacked the sophistication required to understand the meaning of the arbitration clause”).
Goldman thus emphasizes that the Class Members who executed the agreements at issue were generally well educated and highly compensated, both indicative of sophistication for purposes of entry into contract. Indeed, MDs at Goldman generally have anywhere from 10 to 16 years of industry experience and often have advanced degrees. (Landman Decl. ¶¶ 4-6.) PWAs are similarly highly educated, credentialed financial professionals who provide investment and wealth management advice to Goldman’s high-net-worth clients. (Cupertino Decl. ¶¶ 4-5.) And, all Class Members who entered into Separation Agreements were well-educated professionals in revenueproducing roles. (Giuffra Decl., App. A, Column O.)
In short, Goldman has satisfied the first element required to compel arbitration, having demonstrated the existence of valid agreements to arbitrate. Daly, 939 F.3d at 421; Genesco, 815 F.2d at 844. C. Plaintiffs’ Claims Fall Within the Scope of the Arbitration Clauses
After finding that valid arbitration agreements exist, the Court must evaluate their scope. Daly, 939 F.3d at 421. The relevant question is whether the arbitration clauses contained in the agreements executed between Plaintiffs and Goldman cover the claims at issue in this litigation, namely claims of gender-based discrimination under Title VII and the NYCHRL. The answer is yes.
Each category of agreement contains broad language as to what must be arbitrated:
• Separation Agreements: “Any dispute or claim arising out of or based upon or relating in any way to this agreement, or to your employment or other association
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with the firm, or the termination of your employment, will be settled by arbitration.” (Giuffra Decl., Ex. 385 at 4.).
• MD Promotion Agreements: “[A]ny dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters will be finally settled by arbitration. . . .” (Giuffra Decl., Ex. 961 at § 8).
• PWA Agreements: “[A]ny dispute or claim arising out of, based upon or relating in any way to . . . your employment at Goldman Sachs or the termination of your employment, will be settled and finally determined by arbitration.” (Giuffra Decl., Ex. 1196 at § 11).
• Equity Agreements: “[a]ll claims arising out of or relating to my employment with the Firm or the termination thereof, or otherwise concerning any rights, obligations or other aspects of my employment relationship with the Firm.” (Levin-Gesundheit Decl., Ex. B, at 1.) Those clauses capture essentially any possible type of employment-related
dispute between the signatories, including claims for discrimination under Title VII and the NYCHRL. They are similar to other broad arbitration clauses that courts have found easily encompass employment discrimination-related claims. See, e.g., Borden v. Wavecrest Management Team Ltd., No. 11 Civ. 6737, 2012 WL 4094959, at *2 (S.D.N.Y. Sept. 18, 2012) (finding that “broad arbitration clause” contained in employment agreement “unambiguously mandates binding arbitration” of discrimination claims); Weiss v. Travex Corp., No. 02 Civ. 2380, 2002 WL 1543875, at *2-3 (S.D.N.Y. July 12, 2002) (granting defendants’ motion to compel arbitration of Title VII claims because plaintiff executed an employment contract with a clause specifically providing that “all disputes and/or controversies arising out of [plaintiff’s] employment . . . shall be settled by binding arbitration”); Rajjak v. McFrank & Williams, No. 01 Civ. 0493, 2001 WL 799766, at *5 (S.D.N.Y. July 13, 2001) (determining that statutory discrimination and retaliatory discharge claims were subject to arbitration where arbitration clause required arbitration of “any dispute of any kind between [parties], whether or not arising out of this
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Agreement”). Accordingly, the subject matter of this litigation falls within the ambit of the arbitration clauses. D. There are No Non-Arbitrable Claims at Issue
Third, the Court considers whether any of the claims sought to be compelled to arbitration are claims that are non-arbitrable as a matter of law.20 The answer to that inquiry is no.
Plaintiffs assert claims of gender discrimination under Title VII and the NYCHRL. Courts have routinely held that employment and Title VII claims are arbitrable. See, e.g., Casilla v. Philip & Jack Hirth Management, 563 F. App'x 85, 86 (2d Cir. 2014) (affirming district court’s compelling of Title VII claims to arbitration); Desiderio, 191 F.3d at 204-05 (Title VII claims are subject to arbitration); Johnson v. Tishman Speyer Properties, L.P., No. 09 Civ. 1959, 2009 WL 3364038, at *2-3 (S.D.N.Y. Oct. 16, 2009) (granting motion to compel arbitration of discrimination claims under Title VII and the NYCHRL); Zouras v. Goldman Sachs Group, Inc., No. 02 Civ. 9249, 2003 WL 21997745, at *2 (S.D.N.Y. Aug. 22, 2003) (“it is now clearly settled law within the Second Circuit that arbitration clauses can be enforced in Title VII cases”) (quoting Martens v. Smith Barney, Inc., 238 F.Supp.2d 596, 601 (S.D.N.Y. 2002)). The same is true for Plaintiffs’ claims under the NYCHRL. See, e.g., Ahing v. Lehman Brothers, No. 94 Civ. 9027, 2000 WL
20 Some types of claims are non-arbitrable as a matter of law, regardless of the terms of the parties’ agreement. For example, in CompuCredit Corp. v. Greenwood, 565 U.S. 95, 103-04 (2012), the Supreme Court noted that Congress has prohibited arbitration in the context of particular statutes. See, e.g., 7 U.S.C. § 26(n)(2) (commodity whistleblower claims). New York State similarly bars arbitration for certain types of claims. See, e.g., Susquehanna Valley Central School District at Conklin v. Susquehanna Valley Teachers’ Association, 37 N.Y.2d 614, 616-17 (1975) (particular claims related to the New York Education Law were not subject to arbitration). Plaintiffs do not assert claims against Goldman that fall into any statutory exception to arbitrability.
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460443, at *4 (S.D.N.Y. April 18, 2000) (finding plaintiff's NYCHRL race and sex discrimination claims arbitrable); Rice v. Brown Brothers Harriman & Co., No. 96 Civ. 6326, 1997 WL 129396, at *3 (S.D.N.Y. March 21, 1997) (“Discrimination claims under New York City Human Rights law also are arbitrable”).
Of particular note, the Second Circuit in Parisi, 710 F.3d at 486-88 – examining this same case – held that Title VII and NYCHRL claims would be subject to arbitration. Parisi, 710 F.3d at 487. When she was a named Plaintiff in this case, Parisi contended that she had a substantive right under Title VII to pursue a pattern-or-practice claim in class action litigation, and that the court should invalidate the arbitration clause in her employment agreement. The Second Circuit disagreed, citing, inter alia, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991). In Gilmer, the Supreme Court held that “[e]ven claims arising under a statute designed to further important social policies may be arbitrated” because “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Gilmer, 500 U.S. at 28. As with Parisi, the subject matter of the claims at issue in this iteration of the litigation – discrimination based upon claims under Title VII and the NYCHRL – can be arbitrated. E. The Equity Award Agreements are Not Unenforceable as Unconscionable
The Equity Award Agreements warrant separate analysis. Unlike the Separation, MD Promotion, and PWA Agreements, the Equity Award Agreements were presented to employees in multiple parts and accepted by different means at different times. Plaintiffs advance an argument they do not make with respect to the other types of agreements, contending that the arbitration provisions of the Equity Award Agreements are
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unconscionable and therefore unenforceable. As discussed below, the Court finds that the Equity Award Agreement arbitration provisions are tainted by procedural unconscionability but not substantive unconscionability. Because both types of unconscionability are required to render an arbitration provision unenforceable under New York law, the Equity Award Agreement’s provisions cannot be voided on this basis. Before analyzing this issue, however, the Court first describes the arbitration terms and means of acceptance relevant to analyzing the Equity Award Agreements.
1. The Terms and Means of Entry into the Equity Award Agreements As noted at the outset, Goldman’s equity program for employees includes three components: the Equity Award agreement, the Stock Incentive Plan, and – beginning in 2016 – the Signature Card. The Equity Award agreement incorporates the Stock Incentive Plan by reference. (Levin-Gesundheit Decl., Ex. A at 1, 9.) It also includes an arbitration clause providing that “[a]ny dispute, controversy or claim between the Firm and you arising out of or relating to or concerning the [stock] Plan or this [equity/stock] Award Agreement will be finally settled by arbitration[.]” (Id.) The arbitration clause thus is limited, encompassing only claims related to the Stock Incentive Plan and Equity Award agreements. Similarly, the Stock Incentive Plan documentation provides: “[I]t shall be a condition of each [equity] Award that any dispute, controversy or claim between the Firm and a Grantee, arising out of or relating to or concerning the [stock] Plan or applicable [equity] Award Agreement, shall be finally settled in arbitration[.]”21 (See Dias Decl., ¶ 20
21 See U.S. S.E.C. Schedule 14A Proxy Statement of The Goldman Sachs Grp., Inc., Annex B § 3.17 (Apr. 10, 2015), available at https://www.sec.gov/Archives/edgar/data/ 886982/000119312515125238/d904615ddef14a.htm (last accessed March 26, 2020). (Cross-Motion Mem. at 6, n. 6.)
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(describing process for acceptance).) As with the Equity Award agreement, the scope of the arbitration clause in the Stock Incentive Plan encompasses only those disputes related to those programs.
Before 2016, employees manifested their acceptance of the Equity Award agreement and Stock Incentive Plan through an online portal. (Lamy Decl., ¶ 6; Opp. Mem. at 10). Beginning in 2016, however, Goldman implemented a revised procedure for employees to accept their participation in the equity program by introducing an additional document, an electronic “Signature Card.” (Id.; Dias Decl., Ex. 57.) Since then, the acceptance process for Equity Awards is as follows. Each year, employees eligible for equity participation receive a link to an internal Goldman website via email. (Dias Decl., Ex. 51.) Employees log onto the internal website using their secure credentials. (Id. at ¶ 15.) They are presented with a page showing a series of tabs, including the “Award Statement” (summarizing the contents of the benefit), followed by “Plan Documents” and “Signature Card.” (Id. at ¶ 20.) The Plan Documents tab includes hyperlinks to the Award Agreement and Award Summary documents. (Id.) This tab also includes hyperlinks to the Stock Incentive Plan, a summary of the Stock Incentive Plan, and the Goldman Sachs Annual Report for the prior year. (Id.) The website is configured so that an employee must open the Award Agreement and Award Summary by using the hyperlinks in the Plan Documents tab. (Id.) A “pop-up” error message appears if an employee clicks “Go to Next Step” on the Plan Documents tab without opening those documents. (Id.)
After opening the Award Agreement and Award Summary documents, the employee clicks “Go to Next Step” to display the next tab showing the Signature Card.
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(Dias Decl., Ex. 57, Dias Decl. ¶ 21.) However, the Signature Card tab only displays the first few lines of the Signature Card’s text, which is contained within a sub-window and contains no reference to an arbitration clause on that initial screen. (Id.) To see the full text of the Signature Card, which spans six single-spaced frames and which includes the arbitration clause, the employee would need to scroll or print the document. (Id.) At the bottom of the window, the employee must check a box stating: “I acknowledge and agree to: (i) the terms and conditions of the Award(s) granted to me contained in the Award Agreement(s) and the SIP [Stock Incentive Plan]; (ii) the agreements, representations and warranties contained in the above signature card; and (iii) the agreements, representations and warranties described above.” (Id.)
Of the 694 Class Members who executed Equity Award Agreements after 2016, 689 agreed to the terms and conditions electronically in this fashion; the remaining five elected to print and sign their Signature Card and return it to Goldman’s Equity Compensation Group. (Def. Mem. at 12, n.14; Dias Decl. ¶ 16, 24.) Whether print or digital, the Signature Card states in bold and capitalized print at the top: “YOU MUST PROPERLY EXECUTE THIS FORM TO ACKNOWLEDGE ACCEPTANCE OF THE TERMS AND CONDITIONS OF YOUR AWARD(S) AND RELATED MATTERS.” (Dias Decl., Ex. 14, 18, 24.)
The Signature Card contains a broad arbitration clause, the scope of which differs from the arbitration provision in the Equity Award agreement as well as the Stock Incentive Plan. When presented with the Signature Card on their computer screen, the employee sees only a portion of the Card and no reference to an arbitration clause; instead, the employee must scroll through to find the arbitration clause. (Dias Decl., Ex.
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57.) The broad provision says: “I . . . agree to arbitration, in accordance with the [stock plan]-related arbitration procedure and to the fullest existence permitted by law, all claims arising out of or relating to my employment with the Firm or the termination thereof, or otherwise concerning any rights, obligations or other aspects of my employment relationship with the Firm[.]” (Dias Decl., Ex. 14, 18, 24 at ¶ 1.) Unlike the circumscribed arbitration provisions in the Equity Award and Stock Incentive Plan documents, the arbitration provision incorporated into the Signature Card extends beyond the Equity Award program to all employment matters. In submitting the Signature Card, employees thus are indicating their agreement to both the terms of the underlying Equity Award agreement and Stock Incentive Plan provisions as well as the terms specifically associated with the Signature Card.
2. Unconscionability Standards At the broadest level, the doctrine of unconscionability “seeks to prevent sophisticated parties with grossly unequal bargaining power from taking advantage of less sophisticated parties.” Spinelli v. National Football League, 903 F.3d 185, 208 (2d Cir. 2018) (quoting United States v. Martinez, 151 F.3d 68, 74 (2d Cir. 1998)). An agreement to arbitrate may be set aside if it is unconscionable. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996) (“[A]pplicable contract defenses, such as . . . unconscionability, may be applied to invalidate arbitration agreements”);FAA § 2 (an agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The determination of “[w]hether a contract or any clause of the contract is unconscionable is a matter for the court to decide against the background of the contract's commercial setting, purpose, and
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effect[.]” Marvel Entertainment Group, Inc. v. Young Astronaut Council, No. 88 Civ. 5141, 1989 WL 129504, at *4 (S.D.N.Y. Oct. 27, 1989) (quoting and applying Wilson Trading Corp. v. David Ferguson, Ltd., 23 N.Y.2d 398, 403-404 (1968)).
Under New York law, a contract provision may be deemed unenforceable on unconscionability grounds “only where it is ‘both procedurally and substantively unconscionable when made.’” Spinelli, 903 F.3d at 208 (quoting Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10 (1988)); see also NML Capital v. Republic of Argentina, 621 F.3d 230, 237 (2d Cir. 2010) (noting requirement for both procedural and substantive unconscionability). While “the procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice[,] “the substantive element looks to the content of the contract, per se.” Nayal v. HIP Network Services IPA, Inc., 620 F. Supp. 2d 566, 571 (S.D.N.Y. 2009) (quoting State v. Wolowitz, 96 A.D.2d 47 (1983)); see also Zam & Zam Super Market, LLC v. Ignite Payments, LLC, 736 F. App’x 274, 277-78 (2d Cir. 2018) (same).
Procedural and substantive unconscionability are weighed on a “‘sliding scale’ . . . the more questionable the meaningfulness of choice, the less imbalance in a contract’s terms should be tolerated and vice versa.’” Mayaguez S.A. v. Citigroup, Inc., No. 16 Civ. 6788, 2018 WL 1587597, at *12 (S.D.N.Y. March 28, 2018) (internal citations omitted); see also I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. Supp. 3d 196, 211 (S.D.N.Y. 2015) (same); David v. #1 Marketing Service, Inc., 113 A.D.3d 810, 812 (2d Dep’t 2014) (same). The doctrine of unconscionability “is a flexible one” and “is intended to be sensitive to the realities and nuances of the bargaining process.” Bernardino v. Barnes & Noble Booksellers, Inc., No. 17 Civ. 4570, 2017 WL 7309893, at *11 (S.D.N.Y. Nov. 20,
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2017), report and recommendation adopted, No. 17 Civ. 4570, 2018 WL 671258 (S.D.N.Y. Jan. 31, 2018) (quoting Gillman, 73 N.Y.2d at 10). The Court will consider each of the two types of unconscionability in turn.
3. The Equity Award Agreements are Procedurally Unconscionable to Some Extent
The broad arbitration provision contained within the Equity Award Agreement Signature Card is, to some extent, procedurally unconscionable due to the way in which Goldman implemented and presented it – i.e., employing a means of securing agreement that obfuscated the scope of arbitration to which employees assented.
As the New York Court of Appeals has explained, procedural unconscionability concerns the contract formation process: “The procedural element of unconscionability requires an examination of the contract formation process and the alleged lack of meaningful choice. The focus is on such matters as the size and commercial setting of the transaction, whether deceptive or high-pressured tactics were employed, the use of fine print in the contract, the experience and education of the party claiming unconscionability, and whether there was disparity in bargaining power.” Gillman, 73 N.Y.2d at 10-11 (internal citations omitted); see also Passelaigue v. Getty Images (US), Inc., No. 16 Civ. 1362, 2018 WL 1156011, at *5 (S.D.N.Y. March 1, 2008) (same).
Some of the Gillman factors weigh in Goldman’s favor. For example, Plaintiffs do not point to any “high-pressured tactics” employed by Goldman to coerce signatures.22 They do not claim that they felt compelled to agree to arbitrate disputes merely because
22 Cf. Urtubia v. B.A. Victory Corp., 857 F. Supp. 2d 476, 485 (S.D.N.Y. 2012) (finding that defendants’ “workplace relationship with current employees” could “put them in a position to exercise strong coercion”).
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Goldman has superior bargaining power as their employer.23 Nor do they claim that a lack of experience or education prevented them from understanding the agreements.24 To the contrary, as previously set forth, the employees who signed the agreements are generally well-educated and experienced in the financial industry.
As noted above, however, unconscionability is a “sliding scale” and no one factor is determinative. Mayaguez S.A., 2018 WL 1587597 at *12. Plaintiffs argue that the Equity Award Agreements are procedurally unconscionable because of “Goldman’s decision to bury a new contract term” to expand the scope of the arbitration provision from stock-related disputes to all employment disputes. (Pl. Opp. at 26.) As discussed above, in 2016 Goldman introduced a new layer of the electronic acceptance process for Equity Award Agreement, requiring employees to submit a Signature Card acknowledging their acceptance of the terms associated with both the Signature Card and those of the Equity Award agreement and Stock Inventive Plan. To view the full terms of the Signature Card, however, the employee had to scroll through six frames of fine-print and would have had to make it to the last frame to find its sweeping arbitration provision. Even if they did
23 Cf. Arakawa v. Japan Network Group, 56 F. Supp. 2d 349, 352 (S.D.N.Y. 1999) (rejecting plaintiff’s argument that she “only signed the contract to keep her job, and, therefore, the agreement to arbitrate is . . . unenforceable” and noting that she “has not made the disturbing showing of unfairness, undue oppression or unconscionability necessary to void a contract on [that] basis . . . . [and does not allege] that she was threatened with the loss of her job unless she agreed to the arbitration policy”) (internal citations and quotations omitted). 24 Cf. Ragone v. Atlantic Video at Manhattan Center, 595 F.3d 115, 122 (2d Cir. 2010) (enforcing arbitration clause in form agreement even though Title VII plaintiff claimed she did not have a college degree and would not have understood its meaning); Victorio v. Sammy’s Fishbox Realty Co., LLC, No. 14 Civ. 8678, 2015 WL 2152703, at *13 (S.D.N.Y. May 6, 2015) (enforcing arbitration agreements despite plaintiffs’ claims that they could not read English and did not understand the agreements’ implications).
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review the provision, nothing alerted employees to the fact that the Signature Card’s arbitration provision was broader than those of the Equity Award agreement and the Stock Incentive Plan.
Undoubtedly, “neither the FAA nor New York law precludes the enforcement of employment contracts ‘which make employment conditional upon an employee’s acceptance of mandatory arbitration.’” American Family Life Assurance Co. of New York v. Baker, 778 F. App’x 24, 27 (2d Cir. 2019) (quoting Ragone, 595 F.3d at 121-22). In American Family Life Assurance Co. of New York, the court noted that the agreement in question was not “deceptive” or “procedurally unconscionable” even if the terms were “take it or leave it.” Id. Indeed, courts often decline to find procedural unconscionability in situations where the form contract has a clear statement of the arbitration agreement and its scope. See, e.g., Carr v. Credit One Bank, No. 15 Civ. 6663, 2015 WL 9077314, at *3 (S.D.N.Y. Dec. 16, 2015) (enforcing arbitration agreement in credit card contract where “arbitration clause was clear, conspicuous, and preceded by a heading written in all capital letters and bold print”); Anonymous v. JP Morgan Chase & Co., No. 05 Civ. 2442, 2005 WL 2861589, at *6 (S.D.N.Y. Oct. 31, 2005) (enforcing arbitration agreement that was “clearly set out in all-caps following a heading in all-caps and bold print titled ‘Arbitration Agreement.’”).
Likewise, the Second Circuit has held that “clickwrap” agreements – in which the terms and conditions of a transaction are displayed on a screen, and a user must accept the terms through one or more clicks – “can serve as valid consent to arbitrate because in checking a box the user must affirmatively assent to the terms of the agreement.” Porcelli v. JetSmarter, Inc., No. 19 Civ. 2537, 2019 WL 2371896, at *4
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(S.D.N.Y. June 5, 2019) (citing Meyer v. Uber Technologies, 868 F.3d 66, 75 (2d Cir. 2017)). But even with clickwrap agreements, clarity remains a significant concern. See Meyer, 868 F.3d at 775-76 (holding use of linked Terms of Service containing an arbitration clause was not procedurally unconscionable and recognizing that “clarity and conspicuousness are a function of the design and content of the relevant interface”); Mallh v. Showtime Networks Inc., No. 17 Civ. 6549, 2017 WL 5157247, at *4-5 (S.D.N.Y. Nov. 7, 2017) (citing absence of “extraneous material” on a web page, clear labeling of terms of use, and a “reasonably conspicuous” arbitration clause as support for conclusion that plaintiff had notice of arbitration provision).
Here, there was no such clarity. Although Goldman required employees to acknowledge that they had reviewed the provisions of the Signature Card, the employees had to scroll through to the sixth frame of fine-print to even come across the arbitration provision. But the particular transgression here is that Goldman did not indicate in any way to employees that the scope of the arbitration provision in the Signature Card’s terms was far broader than the limited arbitration provision associated with the equity program agreements. Without placing the agreements side-by-side and comparing arbitration provisions, employees likely would not realize that with this change in process, they were newly agreeing to arbitrate every claim related to their employment.
Taking together, the limited scope of arbitration in the Equity Award Agreement and Stock Incentive Plan documents, Goldman’s “burying” the broader provision in the Signature Card, Goldman’s failure to alert employees to the change of scope, and the
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resulting potential for confusion, the Court concludes the Signature Card’s broad
arbitration provision is tainted by procedural unconscionability.25
4. The Equity Award Agreements are Not Substantively Unconscionable
Even though the Signature Card’s arbitration provisions are to some extent
procedurally unconscionable, they are not substantively unconscionable. As noted
above, substantive unconscionability, unlike procedural unconscionability, “looks to the
content of the contract.” Nayal, 620 F. Supp. 2d at 571 (citing Wolowitz, 96 A.D.2d at 67).
It “entails an analysis of the substance of the bargain to determine whether the terms
were unreasonably favorable to the party against whom unconscionability is urged.”
Gillman, 73 N.Y.2d at 12. An unconscionable contract is one that is “so grossly
unreasonable or unconscionable in light of the mores and business practices of the time
and place as to be unenforceable according to its literal terms.” Ragone, 595 F.3d at
121-22 (quoting Gillman, 73 N.Y.2d at 10; see also Nayal, 620 F. Supp. 2d at 571 (same).
Plaintiffs advance three primary grounds for finding substantive unconscionability in the
25 That is not to say, however, that the arbitration provisions contradict one another or create a contractual ambiguity that must be construed against the drafter as Plaintiffs argue. (Pl. Mem. at 32.) To the contrary, the Signature Card’s arbitration provision expressly states that the employee agrees to arbitrate all claims under the SIP as set forth in the SIP and Award Agreement, and “further” agrees to arbitrate all employmentrelated claims. (Levin-Gesundheit Decl., Ex. B at 1.) Use of the term “further” indicates that the employee agrees to arbitration of both types of claims, not one or the other. See Further, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/ dictionary/further (March 11, 2020) (defining “further” as “in addition”). Moreover, the Signature Card expressly incorporates the arbitration procedures of the Equity Award agreements and Stock Incentive Plan, while also distinguishing between the preconditions that apply to arbitration of equity award claims versus those applicable to other employment-related claims. (Levin-Gesundheit Decl., Ex. B at 1.) Again, there is no conflict but rather harmonization within the language of the different provisions. But the specific manner in which Goldman chose to implement the acceptance procedure for the far broader provision of the Signature Card lends itself to potential confusion.
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arbitration provision of the Equity Award Agreements. The Court addresses each of these in turn.
First, Plaintiffs argue that Goldman’s change of its arbitration language “six years into [this] case . . . was clearly intended to provide Goldman with an unfair advantage in this litigation and any resulting (individual) arbitration.” (Pl. Opp. at 28.) The Court is unpersuaded by this argument. As a practical matter, this litigation has elapsed over a full decade. Over such an extended period, a company may shift its business practices, particularly in light of changing law.26 The mere existence of a class action lawsuit does not bar Goldman from altering its business practices, arbitration policies, or form agreements. Plaintiffs submit no evidence to suggest that the broader language on the Signature Cards was designed to target putative Class Members. To the contrary, Goldman asked all eligible employees, regardless of gender, to execute identical form contracts. (T. at 4.) As a result, approximately one-third of Goldman’s global workforce received these agreements. (Dias Decl., ¶ 14.) Moreover, Goldman did not introduce the new Signature Card process until 2016, six years after this case had been filed as a class action. Goldman did not introduce the new process immediately upon or even shortly after the filing of this action, which might suggest that the contracts were entered into in bad faith – a contract-based defense to agreements to arbitrate. See, e.g., Epic
26 Between the filing of this lawsuit in 2010 and the implementation of the broader arbitration language in 2016, the Supreme Court issued a series of decisions broadly interpreting the FAA and favoring class action waivers. See, e.g., AT&T Mobility LLC, 563 U.S. at 333 (holding that the FAA pre-empted a state law deeming class action waivers unconscionable); American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013) (holding that FAA does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery).
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Systems Corp. v. Lewis, 138 S. Ct. 1612, 1616 (2018) (listing common defenses under contract law and equitable principles to enforcement of arbitration agreements under FAA § 2). In short, the timing of the implementation of the amended arbitration clause does not demonstrate substantive unconscionability.
Second, Plaintiffs argue that the Equity Award Agreements eliminate access to injunctive and declaratory relief and therefore are inherently unconscionable. (Pl. Mem. at 28-29.) The premise of this argument is flawed. Paragraph 16(b) of the Equity Award agreement provides: “To the fullest extent permitted by applicable law, no arbitrator will have the authority to consider class, collective or representative claims, to order consolidation or to join different claimants or grant relief other than on an individual basis to the individual claimant involved.” (Levin-Gesundheit Decl., Ex. A at 9.) The Signature Card includes virtually identical language. (Levin-Gesundheit Decl., Ex. B at ¶ 1.) Neither of these provisions refers to or bars either declaratory or injunctive relief. Rather, they preclude class action and similar group-based arbitration. And, as the Supreme Court has held, arbitration clauses are not unconscionable merely because they preclude classwide action or relief.27 AT&T Mobility, 563 U.S. at 351-52; see also Fensterstock v.
27 Even if the Equity Award Agreement arbitration provisions did prohibit declaratory and injunctive relief, they would not necessarily be rendered unconscionable. Courts reject the notion that the trade-offs inherent to arbitration make the process less “fair.” See, Forbes v. A.G. Edwards & Sons, Inc., No. 08 Civ. 552, 2009 WL 424146, at *4 (S.D.N.Y. Feb. 18, 2009) (noting that lack of discovery available in arbitration is part of the bargained-for process, and cannot support a claim of substantive unconscionability); see also Gilmer, 500 U.S. at 31 (discovery process available to a plaintiff in arbitration is fair even though it is less extensive than it would be in federal court); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 481 (1989) (concerns about arbitration “as a method of weakening the protections afforded in the substantive law to would-be complainants . . . [are] far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes”).
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Education Finance Partners, No. 08 Civ. 3622, 2012 WL 3930647, at *7 (S.D.N.Y. Aug. 30, 2012) (applying AT&T Mobility LLC and commenting that “the one-sided effect of the class action waiver . . . does not necessarily lead to harsh or one-sided results in the ultimate arbitration” and therefore cannot be per se unconscionable); Sacchi v. Verizon Online LLC, No. 14 Civ. 423, 2015 WL 765940, at *10 (S.D.N.Y. Feb. 23, 2015) (confirming that class action waivers do not render arbitration agreements unconscionable).28
Third, Plaintiffs argue that the broad arbitration provisions found in the Signature Cards are substantively unconscionable because they “include an overbroad and onesided requirement that employees arbitrate any and all non-employment disputes with any Goldman employee or affiliate, which includes not only co-workers, but also former employees, clients, or vendors.” (Pl. Mem. at 31.) Plaintiffs claim that this could include mandatory arbitration for all disputes “irrespective of whether such actions or inactions occurred in the ordinary course of employment.” (Id.) At oral argument, Plaintiffs’ counsel suggested the provision would “sweep in” tort claims, contract claims, and other claims involving family members or other non-employees. (T. at 44-45.) The Court is dubious of such an expansive interpretation of the provision, and Goldman has not proffered one. In any event, the argument is irrelevant as this case does not present a dispute of the
28 New York courts similarly have upheld class action waivers in arbitration agreements against challenges that they are unconscionable. See, e.g., Tsadilas v. Providian National Bank, 13 A.D.3d 190, 191 (1st Dep’t 2004) (holding that “arbitration provision is enforceable even though it waives plaintiff's right to bring a class action” and explaining that “[u]nder New York law, ‘a contractual proscription against class actions . . . is neither unconscionable nor violative of public policy’”) (quoting Ranieri v. Bell Atlantic Mobile, 304 A.D.2d 353, 354 (2003)); see also Nayal, 620 F. Supp. 2d at 573 (“Courts applying New York law . . . have uniformly held that class action waivers are not unconscionable” in connection with arbitration clauses).
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nature theorized by Plaintiffs. Employment-related claims, including alleged gender
discrimination, fall squarely within the clause.
The arbitration clauses of the Equity Award Agreements are not substantively
unconscionable. Accordingly, because there is at most procedural but not substantive
unconscionability, the arbitration clauses are not unenforceable as unconscionable.
III. No Agreements Must Be Voided Under Fed. R. Civ. P. 23(d), but Opt-Out Notice is Warranted for Equity Award Agreements
Plaintiffs’ Cross-Motion posits that the arbitration provisions in 1,220 agreements
(and the releases in Separation Agreements) entered into after this case was filed should
be voided as applied to Class Members pursuant to the Court’s duty to manage communications with putative class members under Fed. R. Civ. P. 23(d).29 Plaintiffs
claim that Goldman obtained these “unlawful agreements” through a “multi-year effort”
comprised of “misleading communications” with Class Members with the goal of
purposefully “circumventing class action protections.” (Cross-Motion Mem. at 1.) Distilled
to its core, Plaintiffs’ complaint is that Goldman’s inclusion of the arbitration provisions
and releases in various employment and compensation agreements was coercive
29 The precise number of agreements targeted by the Cross-Motion has shifted a number of times. The Cross-Motion initially sought to void 1,291 agreements. (Levin-Gesundheit Decl. ¶ 4.) On Reply, Plaintiffs lowered the number to 1,274 to reflect 17 Separation Agreements that were entered into after filing of the Complaint and independently negotiated by counsel. (Pl. Reply Mem. at 1 n.1.) In a later filing, Plaintiffs indicated that 1,230 agreements were at issue. (Dkt. 957.) Of those, 1,209 were entered into after filing of the Complaint but before class certification, and 21 were entered into after class certification. (Id. at 2.) In the same filing, however, Plaintiffs made additional concessions on several agreements they no longer challenged under Rule 23(d). Taking those concessions into account, the final number is 1,220, which includes 1,200 agreements entered into after the Complaint was filed but before class certification, and the remaining 20 after class certification. (Dkt. 957 at 2 n.1.) Accordingly, the Court takes 1,220 as the number of agreements for which Plaintiffs seek relief under Rule 23(d).
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because of the employee-employer relationship between the parties, and misleading because Goldman did not identify the existence of this action or contact information for class counsel. (Cross-Motion Mem. at 12.) Accordingly, the Court must consider to what extent, if any, relief under Rule 23(d) is warranted based on the substance of the agreements and how Goldman presented the agreements to putative Class Members.
As discussed below, the Court concludes that the Separation Agreements, MD Promotion Agreements and PWA Agreements do not warrant judicial action under Rule 23(d). The Equity Award Agreements, however, do warrant relief. The Court finds that the process by which arbitration provisions in the Equity Award Agreements were obtained was procedurally problematic and that limited remedial action is required for those Class Members who entered into only Equity Award Agreements.30 A. Rule 23(d) and Communications with Putative Class Members
Pursuant to Rule 23(d) “a district court may impose conditions on the parties and their counsel in a class action.” Dodona I, LLC v. Goldman, Sachs & Co., 300 F.R.D. 182, 184 (S.D.N.Y. 2014) (citing Rule 23(d)); see also In re Prudential Securities Inc. Ltd. Partnerships Litigation, 164 F.R.D. 362, 369 at n.4 (S.D.N.Y. 1996), aff’d, 107 F.3d 3 n.4 (2d Cir. 1996) (Rule 23(d) “allows the Court to make appropriate orders to manage a class action.”). Rule 23(d)(1) provides, in relevant part, that a court supervising a class action “may issue orders” that:
(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument; (B) require – to protect class members and fairly conduct the action – giving 30 No remedial action is warranted with respect to Class Member who executed both an Equity Award Agreement and a PWA Agreement, MD Promotion Agreement or Separation Agreement, as the Court finds the latter three to be enforceable.
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appropriate notice to some or all class members of: (i) any step in the action; (ii) the proposed extent of the judgment; or (iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties or on intervenors; (D) require that the pleadings be amended to eliminate allegations about representation of absent persons . . . or (E) deal with similar procedural matters. Fed. R. Civ. P. 23(d)(1). As can be seen from its text, Rule 23(d) is discretionary, permitting, but not requiring, a court to issue orders. In Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) (“Gulf Oil”), a seminal case on Rule 23(d)’s application, the Supreme Court provided guidance for district courts to apply when deciding whether to limit communications with putative class members. Gulf Oil was a class action employment discrimination case brought by and on behalf of African American employees of Gulf Oil, the oil and gas company. Before the lawsuit commenced, and pursuant to a conciliation agreement entered into with the Equal Employment Opportunity Commission (“EEOC”), Gulf Oil began sending proposed agreements to employees offering back pay awards in exchange for releases. 452 U.S. at 92. After being served with the lawsuit, however, Gulf Oil stopped sending the offer and release forms to putative class members. Id. Even so, according to Gulf Oil, a lawyer for the class met with a group of employees recommending that they not sign the releases at issue and that they return any checks already received. Id. at 93. In response, Gulf Oil moved to limit party and counsel communications with
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putative class members with the exception that Gulf Oil be allowed to continue offering back pay awards in exchange for releases. Id. The district court adopted Gulf Oil’s proposal, issuing an order that imposed “a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court.” Id. at 94-95. But the order exempted communications initiated by clients, communications “in the regular course of business,” and, as Gulf Oil requested, Gulf Oil’s communications about the EEOC conciliation agreement and settlement process. Id. at 95.
The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s decision, recognizing that orders limiting communications fall within the powers of district courts to manage class litigation. Bernard v. Gulf Oil Co., 596 F.2d 1249, 1258-1262 (5th Cir. 1980). The Fifth Circuit then granted a rehearing en banc, reversing the panel decision. Bernard v. Gulf Oil Co., 619 F.2d 459 (1980). The en banc majority found that the district court’s order was an unconstitutional prior restraint on expression in violation of the First Amendment, and that the restraint imposed was overly broad. Id. at 467.
The Supreme Court affirmed the Fifth Circuit’s en banc decision, holding that the district court abused its discretion under Rule 23(d) by issuing the orders without basing them on “a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” 452 U.S. at 101. As the Court explained, “[o]nly such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23.” Id. at 101-02. The Court directed that district courts pay “attention to whether [a] restraint is justified by a likelihood of serious abuses.” Id. at 104.
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“[S]uch a weighing – identifying the potential abuses being addressed – should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances.” Id. at 102.
There are some important differences between Gulf Oil and the instant case. For example, the relief sought in Gulf Oil was concerned with restrictions on future communications, not, as here, remedies for past communications. The Supreme Court’s concern with prior restraints on speech is thus not at issue. And, Gulf Oil was animated in part by restrictions placed on class counsel’s communications with putative class members, whereas the present case is focused on the defendant’s communications with class members. Further, arbitration was not at issue in Gulf Oil, and accordingly the Court had no occasion to take into account the regard for the FAA and arbitration repeatedly emphasized by the Court.
That said, Gulf Oil is clearly germane. The Court expressly pronounced principles in terms applicable to plaintiffs and defendants alike, and addressed concerns at issue whether forward looking or backward looking, such as the need for a clear record, fair conduct of the action, due regard for any interference with the parties’ rights, and the breadth of any remedy imposed by the Court pursuant to Rule 23(d). Indeed, Gulf Oil has been invoked by most courts faced with disputes over the relationship between Rule 23(d) and agreements by putative class members to arbitrate or release claims. The Court now turns to a discussion of that case law. B. Rule 23(d), Arbitration Clauses and Releases
The interplay between Rule 23(d) and a defendant’s entry into arbitration agreements or releases with putative class members has been addressed in a number of
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cases, primarily outside the Second Circuit. There is no controlling decision or group of decisions, however, that dictates the outcome of this case. Indeed, Plaintiffs predominantly cite district court cases from California and elsewhere, as does Goldman.
An overview of the case law, however, reveals that courts have found arbitration clauses and releases voidable when there is a record establishing actual or potential coercion or deception.31 While there is no “test” to determine whether there is such actual or potential coercion or deception, courts generally consider and weigh a number of casespecific factors. These factors include, without limitation: (1) the relative vulnerability of the putative class members; (2) evidence of actual coercion or conditions conducive to coercion; (3) whether the defendant targeted putative class members in a purposeful effort to narrow the class; (4) whether the arbitration provision was unilaterally imposed on the putative class; and (5) evidence of misleading conduct, language, or omissions, including the extent to which the agreement does or does not mention the existence of the putative class action and related information.
No precedent before the Court has discussed all of these factors comprehensively; nor has any single factor been dispositive. But these factors consistently emerge as those most frequently in play when courts evaluate whether remedial action should be taken with respect to arbitration clauses and releases entered into with class action members. To illustrate how courts have assessed whether Rule 23(d) warrants remedial action, the Court will discuss the relevant case law grouped as follows: (1) district court decisions
31 To be clear, the Supreme Court’s decision in Gulf Oil contemplated potential measures against “abuse” and interference with the fair administration of class actions, not just coercion and deception. Gulf Oil, 452 U.S. at 104. But in cases applying Rule 23(d) and Gulf Oil, coercion and deception emerge as the leading forms of abuse.
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from within the Second Circuit; (2) decisions from Courts of Appeals; (3) and a collection of district court cases from the Ninth Circuit extensively cited by Plaintiffs.
1. District Court Decisions from Within the Second Circuit From this District, Plaintiffs place considerable weight on a case before Judge William H. Pauley III involving antitrust claims against several credit card companies and banks. See In re Currency Conversion Fee Antitrust Litigation, 265 F. Supp. 2d 385 (S.D.N.Y.2003) (“Currency Conversion I”); In re Currency Conversion Fee Antitrust Litigation, 224 F.R.D. 555 (S.D.N.Y. 2004) (“Currency Conversion II”); In re Currency Conversion Fee Antitrust Litigation, 361 F. Supp. 2d 237 (S.D.N.Y. 2005) (“Currency Conversion III”) (collectively, the “Currency Conversion decisions”).32 The Currency Conversion plaintiffs sought to certify a class of credit card holders to challenge the defendants’ alleged price-fixing conspiracy and artificially inflated credit conversion fees. Currency Conversion II, 224 F.R.D. at 564. The defendants opposed the motion for class certification arguing, in part, that most putative class members voluntarily signed binding arbitration agreements with their credit card issuers, precluding them from bringing the court action. Id. at 569. Some of the banks had added the arbitration clauses to their cardholder agreements after the putative class action was filed. Id. Judge Pauley considered whether cardholders who accepted arbitration clauses after the litigation commenced could participate in the class, and ultimately concluded that they could because the arbitration provisions should not be enforced. Id. at 570.
32 For present purposes, Currency Conversion I provides helpful procedural and factual background. Currency Conversion II addressed plaintiffs’ motion for class certification. Currency Conversion III modified the court’s decision in Currency Conversion II.
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The decision in Currency Conversion largely was grounded on three factors: substantially unequal bargaining power between the parties lending itself to coercion, the credit card issuers’ purposeful targeting of putative class members following commencement of the action, and omission of information about the action. As explained by Judge Pauley, Rule 23(d) permits a court to “exercise supervisory authority over a defendant’s communications with putative class members . . . particularly . . . where a defendant attempts to alter the contours of the litigation or the availability of remedies.” Currency Conversion II, 224 F.R.D. at 569. Judge Pauley found that the defendants had done exactly that, specifically having “contact[ed] putative class members solely for the purpose of altering the status of the pending litigation.” Id. at 570. Moreover, the potential for coercion was heightened because “the potential class consisted of cardholders who depend on defendants for their credit needs.” Currency Conversion III, 361 F. Supp. 2d at 253.
Judge Pauley also expressed concern about deception, noting that the court “must take steps to further the policies embodied in Rule 23 . . . [for the] protection of class members from ‘misleading communications from the parties or their counsel’ . . . where a party misleads class members by omitting critical information from its communications . . . that threaten[s] the choice of remedies available to class members.” 361 F. Supp. 2d at 252. Addressing the specific factual context before him, Judge Pauley opined that defendants’ addition of the arbitration clause was deceptive because “[t]here was no reasonable manner for cardholders to know that by failing to reject the arbitration clause, they were forfeiting their rights as potential plaintiffs in th[e] litigation.” Id. at 251.
In short, Currency Conversion declined to enforce arbitration provisions inserted
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into contracts after filing of the class action where the putative class was particularly
vulnerable, the new policy was specifically targeted at the putative class, and the
communication did not include information about the class action.33
The most recent word on this subject comes from another case in this District
presided over by the Honorable Gregory H. Woods, O’Conner v. Agilant Solutions, Inc.,
No. 18 Civ. 6937, 2020 WL 1233749 (S.D.N.Y. March 12, 2020).34 In Agilant – an FLSA
collective action asserting wage claims on behalf of field technicians – the defendant
employer “rolled out a new policy” soon after plaintiffs moved for conditional certification
of the collective. Id. at *1. The policy entailed asking employees to sign an agreement
requiring arbitration of all employment-related disputes. Id.
Plaintiffs moved to invalidate the signed arbitration agreements as against these
putative class members, as well as for a protective order enjoining future
communications, arguing that the court should exercise its discretionary powers to limit
33 In Currency Conversion, Judge Pauley deemed Gulf Oil inapposite, emphasizing that Gulf Oil was concerned with “restrictions imposed by the trial court on plaintiffs’ counsel’s communications with putative class members.” 361 F. Supp. 2d at 253-54 (emphasis in original). As explained in the preceding section, however, while there are distinctions between Gulf Oil and this case (and, for that matter, Currency Conversion), the Gulf Oil principles are still relevant here. And, Currency Conversion is itself distinguishable from the present case in that the Currency Conversion defendants specifically targeted putative class members with new arbitration provisions, and the putative class members were particularly vulnerable to coercion given their dependency on defendants for credit.
34 On March 17, 2020, Plaintiffs filed a Notice of Supplemental Authority in further support of their Cross-Motion to notify the Court of this recent decision. (Dkt. 980.) Goldman filed a response, contending that Agilant is distinguishable and that the decision actually demonstrates why Rule 23(d) does not warrant invalidating the agreements at issue here. (Dkt. 981.) Plaintiffs filed a brief reply letter on March 23, 2020. (Dkt. 982.) The Court will refer to this case as “Agilant” to avoid confusion with O’Connor v. Uber Technologies, Inc., No. 13-CV-3826, 2013 WL 6407583, at *1 (N.D. Cal. Dec. 6, 2013), another case involving arbitration agreements with putative class members discussed below.
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misleading, coercive and improper class communications. Id. For several reasons, Judge Woods agreed, finding that the defendant’s practice was “coercive and misleading.” Id. at *1. First, employees were required to sign the new arbitration agreements as a condition of continued employment. The employees “understood that refusing to sign the Arbitration Agreement could have a negative impact on their employment.” Id. at *2.
Second, management pressured employees into signing the agreements: “Leadership at [defendant employer] insisted that the Arbitration Agreements be returned quickly. On his call with . . . managers, [the Executive Director] asked that the managers ensure that the documents were ‘signed at their meetings.’” Id. at *2 (internal citation omitted). Those managers were further instructed to have employees execute and return the agreements “within two business days of when they were sent.” Id. at *5.
And third, “[e]vidence suggest[ed] that the purpose of the new arbitration policy rollout was to foreclose putative plaintiffs from joining this lawsuit” – a strategy that was particularly apparent given that the defendant’s same attorney in the litigation was also “intimately involved in [the policy’s] introduction.” Id. at *1. Indeed, “[c]ontemporaneous email evidence strongly suggest[ed] that . . . management intended the Arbitration Agreements to preclude [these plaintiffs] from participating in this litigation.” Id. at *3.
Finally, the Judge Woods found unconscionable the defendants’ failure to disclose that putative plaintiffs would lose their right to participate in the collective action by signing the arbitration agreements. Id. at *5-6. Considering all the circumstances – the defendant’s failure to disclose the pending action, the pressure tactics employed by
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management, the timing of the new policy, and the targeting of putative plaintiffs – Judge
Woods held the arbitration agreements could not be enforced. Id.
Another case relied on by Plaintiffs from within the Second Circuit comes from the
District of Connecticut. See Tomkins v. Amedisys, Inc., No. 3:12-CV-01082, 2014 WL
129401, at *2 (D. Conn. Jan. 13, 2014). Tompkins was a collective action brought by
employers and former employees against their employer pursuant to the Fair Labor Standards Act (“FLSA”).35 After the lawsuit was filed, the defendant employer issued a
“Dispute Resolution Agreement” to employees that was deemed to be effective “upon
receipt.” Id. at *1. That “agreement” did not require “any signature or affirmative indication
of consent from the employee.” Id. The Court was “troubled that [the defendant employer]
unilaterally issued a self-executing arbitration agreement that substantively affects the
rights of putative members in this litigation.” Id. In addition to that coercive aspect, the
Court was concerned that putative class members were misled, finding the agreement
was “vague, confusing, and written in legalistic language” and that while it identified the
collective action by name, “it d[id] not contain any other information about the case”
35 The Tompkins court did not explicitly cite Rule 23(d) inasmuch as the case was an FLSA collective action, not a class action under Fed. R. Civ. P. 23. Courts have recognized, however, that the same standards governing communications with putative plaintiffs apply to collective and class actions. See, e.g., Bernhardi v. Lowe's Companies, Inc., No. 03-CV-6372, 2005 WL 8165980, at *2 n.1 (W.D.N.Y. Apr. 11, 2005) (“While there exist substantial procedural differences between class actions brought pursuant to Rule 23 and collective actions . . . communications between parties to a collective action are evaluated in the same manner as communications between parties to a Rule 23 class action”) (citing Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 103-104 (S.D.N.Y. 2003)). Indeed, the Tomkins court relied on Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), a collective action under the Employment Age Discrimination Act, which in turn relied upon the Supreme Court’s decision in Gulf Oil. See Hoffmann-La Roche Inc., 493 U.S. at 171. It is therefore not surprising that several of the cases cited by the parties are FLSA collective action cases.
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regarding the effect of the arbitration agreement on class participation. Id. Considering “the totality of the circumstances,” the Court granted Plaintiff’s request
for a protective order invalidating the unilaterally imposed arbitration requirement. Id. at *2. Tomkins thus is an example case where the court invalidated “vague and confusing” arbitration provisions foisted upon vulnerable putative class member employees and deemed effective even without the employees’ affirmative agreement.
2. Decisions from Courts of Appeals At least two Circuit Courts of Appeal – the Fourth Circuit and the Eleventh Circuit – have considered whether remedial measures were warranted for arbitration clauses or releases entered into by defendants and putative class members. Like the cases discussed in the previous section, these two decisions underscore key factors, particularly evidence of coercion and deception, informing courts’ consideration of arbitration agreements and releases entered into with putative class members. In Billingsley v. Citi Trends, Inc., 560 F. App’x 914 (11th Cir. 2014), the Eleventh Circuit affirmed the district court’s order to void arbitration agreements where the defendant-employer obtained those agreements through coercive tactics. Billingsley was a collective FLSA action against a retail clothing store alleging that the store underpaid their store managers. Id. at 915. About three months after filing of the action, the store implemented a new dispute resolution policy that included a mandatory agreement requiring employees to arbitrate all disputes and to do so individually rather than collectively. Id. at 918. The defendant “rolled out” the new policy in a “blitzkrieg fashion,” to only putative collective action members, requiring them to attend meetings with human resource representatives under the deceitful guise of a fake purpose. Id. at 918-19.
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During these “two-on-one private meetings with each store manager in a small, back room,” the defendant had store managers sign the dispute resolution policy. Id. at 918.
The district court found these individual meetings constituted a “rushed and atypical rollout” that were merely a “pretext for presenting the [arbitration] Agreement to the [store managers] to derail their participation in th[e] lawsuit.” Id. This was particularly true given that the defendant “informed the store managers that the arbitration agreement was a condition of continued employment [and they] understood that they would be fired if they did not assent to the arbitration agreement or the new . . . policy.” Id. at 919.
The district court concluded that the defendant’s tactics were “highly coercive” “interrogation like,” and “specifically targeted at curtailing this litigation.” Id. The district court determined that it would not enforce the arbitration agreements against any opt-in plaintiffs who signed the arbitration agreement under the defendant’s coercive process. Id. The Eleventh Circuit affirmed, invoking Gulf Oil and concluding that “[w]hatever right [the defendant] may have had to ask its employees to agree to arbitrate, the district court found that its effort in the summer of 2012 was confusing, misleading, coercive, and clearly designed to thwart unfairly the right of its store managers to make an informed choice as to whether to participate in this FLSA collective action.” Id. at 922.
More recently, the Fourth Circuit affirmed a district court’s denial of an FLSA defendant’s motion to compel arbitration pursuant to agreements entered into with various plaintiffs. DeGidio v. Crazy Horse Saloon & Restaurant Inc., 880 F.3d 135 (4th Cir.), cert. denied sub nom. Crazy Horse Saloon & Restaurant, Inc. v. DeGidio, 138 S. Ct. 2666 (2018). In DeGidio, the plaintiffs – entertainers and exotic dancers – filed a putative class action for underpayment violations against a bar and gentlemen’s club. Id. at 138. The
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defendant engaged in prolonged litigation in the district court, including multiple rounds of summary judgment briefing to attempt to dismiss the action. Id. At the “very end” of the discovery period, however, the defendant began entering into arbitration agreements with its entertainers by including those agreements within a “lease” document that entertainers were required to sign in order to perform at the club. Id. The defendant also obtained statements from many of the putative class members relating to their job descriptions, all without notifying the court or plaintiffs’ counsel. Id. at 139. The district court rejected the defendant’s attempt to enforce the agreements and compel arbitration, citing the likelihood that putative plaintiffs were either coerced or misled, and noting that the defendant’s conduct would subvert the litigation process. Id. at 140.
The Fourth Circuit affirmed, finding the arbitration agreements to be a “sham.” Id. at 144. The Court based its decision primarily on three factors: the timing of the defendant’s motion, the misleading nature of the arbitration agreements, and coercion. As to timing, the Court faulted the defendant for “pursuing . . . [a] merits-based strategy for three years” and causing the court to “spend unnecessary time and resources” only to then attempt to enter into arbitration agreements when that forum appeared potentially more advantageous. Id. at 141. According to the Court, “[t]he only possible purpose of the arbitration agreements, then, was to give Crazy Horse an option to revisit the case in the event that the district court issued an unfavorable opinion. In other words, Crazy Horse did not seek to use arbitration as an efficient alternative to litigation; it instead used arbitration as an insurance policy in an attempt to give itself a second opportunity to evade liability.” Id.
The Fourth Circuit was additionally troubled by the agreements themselves, which
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“painted a false picture of the [plaintiffs’] legal posture” with incorrect or confusing
information about their employment status under the FLSA. Id. at 142. Finally, the Court
noted that the arbitration agreements “were all obtained after potential plaintiffs met with
Crazy Horse's CFO or counsel.” Id. at 144. In other words, “[t]he setting here was ripe
for duress” especially given that the defendants suggested that “participation in the
lawsuit would deprive potential plaintiffs of important professional rights” including the
ability to use the facility for entertainment. Id.
3. The Ninth Circuit District Court Cases
Plaintiffs rely extensively on an array of cases from district courts in the Ninth
Circuit, largely from California. These decisions demonstrate courts’ willingness to take
remedial action against arbitration clauses or releases entered into with putative class
members when there is actual or potential coercion or deception. The decisions also
evince courts’ consideration of the same factors identified above in making that
determination, again with the caveat that courts do not necessarily consider all those
factors, and none are dispositive.36
36 In addition to the cases discussed in the ensuing text, see also Marino v. CACafe, Inc., No. 16-CV-6291, 2017 WL 1540717, at *1 (N.D. Cal. April 28, 2017) (voiding releases in FLSA case obtained through misleading letter sent by employer to putative class members, where letter presented immediate payment as an “incentive” to cooperate with company’s “restructuring its processes” but attachment contained general release and did not mention that a lawsuit had been filed); Cheverez v. Plains All American Pipeline, LP, No. 15-CV-4113, 2016 WL 861107, at *1 (C.D. Cal. March 3, 2016) (granting motion to order curative notice and invalidate misleading releases specifically targeted to victims of oil spill through advertising that did not comply with Oil Pollution Act, did not provide sufficient information about the claim being compromised, and misrepresented disparity in extent of damages that could be obtained through settlement as compared to class action); Slavkov v. Fast Water Heater Partners I, LP, No. 14-CV-04324, 2015 WL 6674575, at *6 (N.D. Cal. Nov. 2, 2015) (invalidating settlement releases and ordering corrective notice where employer in FLSA action obtained those releases through misleading letters that “confusingly suggest[ed] [employees] could not contact Plaintiffs’
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A good example is Kater v. Churchill Downs, Inc., No. 15-CV-612, 2019 WL
6130844 (W.D. Wash. Nov. 19, 2019).37 Kater was a consolidated decision in connection
with two related class actions. The defendant company ran an online gambling platform,
and the plaintiff customers were “addicted gamblers” seeking compensation for lost
“chips” they had purchased on the site. Id. at *1. The website had always contained a
“generic arbitration agreement,” but during the pendency of the class actions, the
defendant added a new mandatory arbitration provision that displayed to users through a
pop-up window. Id. at *2. The new arbitration provision was “expressly directed at [the
counsel,” putative class consisted of plumbers unlikely to understand their legal rights, and employer did not explain that settlement would require judicial approval); Jimenez v. Menzies Aviation, Inc., No. 15-CV-02392, 2015 WL 4914727, at *1 (N.D. Cal. Aug. 17, 2015) (deeming arbitration agreements unenforceable where employer implemented “ADR Policy” after filing of the putative class action, did not inform employees of effect of the policy on the pending action, and did not provide a reasonable opportunity to opt out); Camp v. Alexander, 300 F.R.D. 617, 619 (N.D. Cal. 2014) (ordering corrective notice where employer sent “misleading, improper, and coercive” letter to employees discussing negative effects of putative class action on the business, including the possibility of layoffs, and seeking employees’ opt-outs); Gonzalez v. Preferred Freezer Services LBF, LLC, No. 12-CV-03467, 2012 WL 4466605, at *1 (C.D. Cal. Sept. 27, 2012) (ordering corrective notice where FLSA defendant obtained releases specifically targeting putative class members that were misleading in many ways and failed to include information about the pending putative class action or class counsel); County of Santa Clara v. Astra USA, Inc., No. 05-CV-03740, 2010 WL 2724512, at *1 (N.D. Cal. July 8, 2010) (voiding releases in pharmaceutical overcharge case obtained after defendant sent settlement letter, with payment, to putative class members that was misleading for numerous reasons); Guifu Li v. A Perfect Day Franchise, Inc., 270 F.R.D. 509, 515-16 (N.D. Cal. 2010) (voiding English-language opt-out forms that were presented by employer in “coercive” one-onone meetings with employees - spa workers - who were vulnerable to retaliation, had limited education, and poor command of English). As discussed below, these cases are characterized by a degree of coercion and deception not present in the instant case.
37 After the Cross-Motion was fully briefed, Plaintiffs filed a Notice of Supplemental Authority to alert the Court to this decision, arguing that it supports their position that Goldman’s arbitration clauses should be voided. (Dkt. 917.) Goldman filed a response, arguing that Kater supports the opposite conclusion. (Dkt. 921.) Although Kater is currently on appeal to the Ninth Circuit, the district court’s decision is instructive here. See Kater, Dkt. 106 (noting USCA Case Number 20-35043.)
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pending] lawsuit” to reduce the scope of the putative class. Id. at *2. The putative class members received no additional consideration for the arbitration agreement contained in the pop-up window. The pop-up window explicitly referenced the pending class actions and warned: “The mandatory arbitration provision in these Terms of Use prevents you from participating in these class action lawsuits, even if a class is certified.” Id. To use the website, users had to click “I agree.” Id.
The court ordered relief under Rule 23(d), finding that “[t]he existing pop-up is coercive and misleading” and determined that the defendant must create a revised popup window with corrective notice that gave users the ability to opt out of arbitration. Id. at *6. Kater thus is another example of a case where the court took remedial – but limited – action against an arbitration “agreement” unilaterally imposed on, and specifically targeted to, an exceptionally vulnerable group of putative class members.
Plaintiffs also rely on Balasanyan v. Nordstrom, Inc., No. 10-CV-2671, 2012 WL 760566, at *1 (S.D. Cal. March 8, 2012), which involved two putative class actions against Nordstrom alleging that the store underpaid its sales staff across the country. Nordstrom moved to compel arbitration, arguing that the plaintiffs had consented to the “Nordstrom Dispute Resolution Agreement” that was “rolled out” in August 2011. Id. By its terms, the arbitration agreement applied to all past, present and future disputes, and expressly required individual arbitration and precluded class or collective arbitration. Id. The arbitration agreement was first mailed to employees in June 2011, just two months after the putative class action was filed. Id. at *2. In August 2011, employees were given an updated version of the document, and asked to sign a form acknowledging receipt. Id. Instructions to Nordstrom’s human resource personnel explained that the arbitration
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agreement “is simply an acknowledgment reflecting [the employees] received the updated [Dispute Resolution] Program; it is not an Agreement” and that “regardless of whether [the employees sign], the updated Program applies to their employment effective immediately.” Id.
Citing Currency Conversion II, the district court acknowledged that its supervisory power “extends to [any] communications that would affect participation in the lawsuit, such as the arbitration agreement at issue here.” Id. The court then assessed the situation facing the parties: Nordstrom introduced the arbitration program shortly after the class action was filed; the method of distribution – mailing the agreement followed by an updated “acknowledgement form” – was confusing “because it led employees to believe that they were not entering into an agreement”; and Nordstrom did not mention the existence of the class actions in the arbitration agreement. Id. at *3, n.2. Considering these facts, the court ultimately concluded that Nordstrom had engaged in an “inappropriate attempt to impose a binding agreement upon [the plaintiffs].” Id. at *4.
Another California case cited by Plaintiffs is O’Connor v. Uber Technologies, Inc., No. 13-CV-3826, 2013 WL 6407583, at *1 (N.D. Cal. Dec. 6, 2013). In O’Connor, Uber drivers filed a putative class action on August 16, 2013 in connection with various wage claims. Id. At that time, Uber was already facing similar wage lawsuits in Massachusetts and Illinois. Id. Just over a month before the class action was filed, Uber informed drivers they would receive an electronic notification asking them to approve new contractual agreements, and that continued use of the Uber application was conditioned on approval of these agreements. Id. One of the agreements, titled Software Licensing and Online Services Agreement (the “Licensing Agreement”), contained an arbitration provision,
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which users accepted with their mobile phones. Id. By its terms, the Licensing Agreement gave users 30 days to opt out of the arbitration provision by sending a letter via hand delivery or overnight mail to Uber's general counsel. Id. Plaintiffs moved for a protective order, arguing that the drivers were not informed of the pendency of the current action prior to consenting to arbitration through the Licensing Agreement. They also argued that the method of opt-out – a physical letter – was unreasonably burdensome. Id.38
The court focused on three concerns: the timing of Uber’s new policy, the vulnerability of the class, and the confusing method by which the arbitration agreement was presented. First, the court found that the timing of the Licensing Agreement was suspect, and that “there is a distinct possibility that the arbitration provision and class waiver imposed by Uber was motivated at least in part by the pendency of class action lawsuits[.]” Id. at *4. In other words, the court believed that Uber had employed the arbitration agreement specifically “as a means to thwart existing class action litigation,” an estimation that was “heightened by the misleading nature of the communication and the unusually onerous procedures for opting out.” Id.
Second, the court noted that the putative class itself was particularly vulnerable. “[M]any, if not the majority of, Uber drivers are smaller outfits run by immigrants for whom English is not their native language” and they “have no meaningful way of learning of the [pending class action] lawsuit.” Id. at *6. Given their backgrounds, drivers “likely did not
38 The O’Connor court was not persuaded by Uber’s argument that its Licensing Agreement was merely a “business communication, [and] not a class communication” subject to court intervention under Rule 23(d). See 2013 WL 6407583 at *4 (“[T]he touchstone under Rule 23(d) is not whether the communication is of an ordinary business nature; rather, the inquiry is whether the communication is abusive, misleading, coercive, or otherwise affects the administration of justice in the context of a putative class action lawsuit).
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know the consequences of assenting to the Licensing Agreement . . . [and] were not aware they were losing the right to participate in this or any other lawsuit.” Id. This fact was particularly compelling because Uber made “no effort to inform drivers of the legal consequence of the arbitration provision barring them from participation in pending and future class action lawsuit brought on their behalf.” Id. Yet the drivers were required to agree to the Licensing Agreement in order to continue earning income from Uber. Id.
Third, the court highlighted the procedure by which drivers assented to arbitration, as well as the required mailing in order to opt out of arbitration. The opt-out provision was “buried” in the arbitration provision, “which itself is part of the larger, overall Licensing Agreement . . . ensconced in the penultimate paragraph of a fourteen-page agreement presented to Uber drivers electronically in a mobile phone application interface.” Id. In short, the presentation of the clause was hardly conspicuous.
Examining the overall set of circumstances, the court held that Uber’s attempt to have drivers agree to an arbitration provision during the pendency of the class action was “potentially misleading, coercive, and threatens to interfere with the rights of class members.” Id. at *7. The court directed that the parties meet and confer on a proposed protective notice to send to drivers, and further enjoined Uber from issuing any other arbitration agreement to drivers that “waives putative class members’ rights herein.” Id.
The vitality of O’Connor – and perhaps all the district other cases within the Ninth Circuit in which courts voided arbitration provisions pursuant to Rule 23(d) – may now be uncertain, however, given the Ninth Circuit’s orders reversing and vacating O’Connor. See O'Connor v. Uber Technologies, Inc., 904 F.3d 1087, 1090 (9th Cir. 2018); Mohamed v. Uber Technologies, Inc., 848 F.3d 1201, 1206 (9th Cir. 2016) (consolidated with
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O’Connor and reversing district court’s ruling that Uber’s arbitration provisions were unconscionable).39 The Ninth Circuit reversed the district court’s denial of Uber’s motion to compel arbitration, reversed certification of the class, and determined that the district court’s Rule 23(d) orders were moot as a result. O’Connor, 904 F.3d at 1090-91. While the Ninth Circuit did not substantively address the district court’s analysis of its Rule 23(d) order, the appellate decision gives this Court pause in placing substantial weight on the Ninth Circuit group of cases. That said, O’Connor and the other cases cited by Plaintiffs both within and beyond the Ninth Circuit evince the same core considerations that a court should evaluate when deciding whether Rule 23(d) relief is warranted in this context.40
To recap, the relevant cases together show that when considering whether remedial action is warranted pursuant to Rule 23(d), courts are primarily concerned with whether arbitration agreements with, or releases given by, putative class members were the result of coercion or deception. And to determine whether they are the product of coercion or deception, courts will (or should) consider the totality of circumstances, including, without limitation: (1) the relative vulnerability of the putative class members; (2) evidence of actual coercion or conditions conducive to coercion; (3) whether the
39 Curiously, neither party cited the Ninth Circuit’s opinion vacating O’Connor. 40 Other cases outside the Ninth Circuit cited by Plaintiffs are to the same effect. See, e.g., Piekarski v. Amedisys Ill, LLC, 4 F. Supp. 3d 952, 956 (N.D. Ill. 2013) (voiding arbitration agreements where FLSA defendant unilaterally implemented a company-wide arbitration policy after filing of the action and terms of the policy were “likely to confuse and mislead potential class members” – home healthcare workers – through a complex opt-out process involving multiple documents); Williams v. Securitas Security Services USA, Inc., No. 10-CV-7181, 2011 WL 2713741, at *2-3 (E.D. Pa. July 13, 2011) (invalidating arbitration “agreements” where “confusion reign[ed]” because conflicting terminology about whether document was an “agreement” or merely “acknowledgment of receipt” was “very misleading to lay persons such as the hourly-paid security guards who are its target”).
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defendant targeted putative class members in a purposeful effort to narrow the class; (4) whether the arbitration provision was unilaterally imposed on the putative class; and (5) evidence of misleading conduct, language, or omissions, including the extent to which the agreement does or does not mention the existence of the putative class action and related information. C. The Separation Agreements, MD Promotion Agreements, and PWA
Agreements Do Not Warrant Relief Under Rule 23(d) Considering all the circumstances of this case, the Court determines that the Separation Agreements, MD Promotion Agreements and PWA Agreements were not coercive, deceptive, or otherwise abusive – or susceptible to coercion, deception or other abuse – so as to warrant relief under Rule 23(d). The Court discusses the relevant considerations, organized by the non-exclusive factors identified from the case law above. 1. Putative Class Members Were Not Particularly Vulnerable Courts are more likely to take remedial measures under Rule 23(d) when putative class members are particularly vulnerable to coercion or being misled. While there is no common definition of what makes such individuals vulnerable, courts have shown concern when, for example, putative class members have poor command of the relevant language, work in low-wage jobs requiring minimal education, or are susceptible to economic coercion. See, e.g., Kater, 2019 WL 6130844 at *3-4 (addicted gamblers); Guifu Li, 270 F.R.D. at 511 (spa workers with limited education and poor language skills); O’Connor, 2013 WL 6407583, at *6 (Uber drivers, many of whom did not speak English as their native language); Piekarski, 4 F. Supp. 3d at 956 (home healthcare workers); Williams, 2011 WL 2713741 at *3 (hourly-paid security guards). Here, Plaintiffs are well-educated and well-compensated financial services
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professionals.41 While not dispositive, the Class Members’ sophistication is a factor that distinguishes this case from those where courts deemed it necessary to take action to prevent or cure likely confusion among low-wage or less-educated workers. The putative Class Members were well-positioned to understand the implications of contracts presented to them. (See Cupertino Decl. ¶¶ 3-6; Dias Decl. ¶ 4; Landman Decl. ¶¶ 4-7.) As Defendants’ counsel noted at oral argument, these individuals were “highly sophisticated bankers [and this is] [w]hat . . . they do for a living.” (T. at 21.) In short, Plaintiffs do not exhibit the vulnerability that would weigh in favor of remedial action under Rule 23(d).42
2. There Is No Evidence of Coercion Courts are apt to take remedial action under Rule 23(d) when there is evidence that putative class members entered into arbitration agreements or otherwise waived their rights because of actual or potential coercion. Examples of coercion (without limitation) as drawn from the cases discussed above include two-on-one meetings between an employer’s human resource representatives and putative class members43 an employer’s suggestion that participation in the group lawsuit would deprive potential plaintiffs of their
41 Plaintiffs have not contended otherwise. 42 The Court recognizes that unequal bargaining power in the employer-employee context is a relevant consideration and addresses it in the next subsection discussing actual or potential coercion. 43 See Billingsley, 560 F. App’x at 918; see also Guifu Li, 270 F.R.D. at 511 (coercive one-on-one meetings with employee spa workers).
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livelihood,44 and management’s insistence that employees return an arbitration agreement within two days.45
Here, Plaintiffs do not point to any coercion by Goldman in the form of pressure tactics, threats that putative Class Members had to execute arbitration agreements in order to keep their jobs, or otherwise. The record is devoid of any evidence of that nature. Instead, Plaintiffs focus more generally on the fact that the parties have an employeeemployer relationship. (Cross-Motion Mem. at 15-16.) Plaintiffs cite cases to suggest that such a relationship, by its very nature, is prone to coercion. See, e.g., Camp, 300 F.R.D. at 623-24 (“caselaw nearly universally observes that employer-employee contact is particularly prone to coercion”); Guifu Li, 270 F.R.D. at 517 (recognizing that employeremployee relationship poses “a particularly acute risk of coercion and abuse when the employer solicits opt-outs from its workers”).
The Court agrees that employees may be subject to employer coercion; after all, employees are dependent on their employers for their economic livelihood. And generally speaking, there undoubtedly is a disparity of bargaining power as between many Goldman employees and their employer. The Court is not persuaded, however, that this employment relationship alone is enough to demonstrate sufficient potential for coercion to merit relief under Rule 23(d). The Supreme Court has rejected the argument that an employer-employee relationship alone evidences the coercion necessary to overturn an arbitration agreement. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991),
44 See DeGidio, 880 F.3d at 144; see also Camp, 300 F.R.D. at 619 (letter to employees discussing negative effects of putative class action on the business, including the possibility of layoffs). 45 See Agilant, 2020 WL 1233749 at *5.
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the plaintiff argued that his agreement to arbitrate claims under the Age Discrimination in Employment Act should not be enforced because of the unequal bargaining power between himself and his employer. The Court disagreed, holding that “there often will be unequal bargaining power between employers and employees” and that “[m]ere inequality in bargaining power . . . is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context,” and noting that there was no evidence that plaintiff, “an experienced businessman, was coerced or defrauded into agreeing to the arbitration clause” at issue. Id. at 32-33.
Other courts, too, have rejected the proposition that employment relationships are inherently coercive to a degree that requires voiding otherwise-enforceable arbitration clauses. See, e.g., Stevenson v. The Great American Dream, Inc., No. 1:12-CV-3359, 2014 WL 3519184, at *3 (N.D. Ga. July 15, 2014) (rejecting FLSA plaintiff’s arguments for ignoring arbitration agreement based only on timing of when the arbitration agreement was signed and the “inherent bargaining power asymmetry found in any employeremployee relationship”); Ciago v. Ameriquest Mortgage Co., 295 F. Supp. 2d 324, 329 (S.D.N.Y. 2003) (“Standing alone, unequal bargaining power will not render an agreement to arbitrate within an employment contract invalid”); Arakawa v. Japan Network Group, 56 F. Supp. 2d 349, 352 (S.D.N.Y.1999) (same).
While many an employee-employer relationship is ripe for coercion, there is no indication in this case that Goldman’s conduct was coercive or abusive with respect to the putative Class Members. That is all the more so because (as discussed further below) there is no evidence that Goldman targeted the putative Class Members, let alone pressured them or took advantage of the disparity in bargaining power, to obtain their
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acceptance of the agreements at issue. Plaintiffs’ invocation of coercion is especially dubious given that the putative Class
Members’ acceptance of the agreements resulted in substantial severance payments or promotions to Managing Director or Private Wealth Advisors. These were hardly agreements that were foisted on putative class members against their will. Cf. Kater, 2019 WL 6130844 at *3 (“Many courts have found that a defendant’s attempt to foist a new arbitration provision on putative class members is an improper communication”). Finally, and although not dispositive on this point, Plaintiffs’ Cross-Motion does not include any evidence to show that individual putative Class Members felt coerced into executing the Separation Agreements, MD Promotion Agreements, or PWA Agreements. For example, there are no affidavits or declarations of Class Members to show that managers intimated that failure to execute these agreements would result in termination, demotion, or retaliation. Nor is there evidence of written communications attempting to strong-arm putative Class Members. In short, there is no basis to find coercion, either actual or potential.
3. The Agreements Were Not Targeted at Putative Class Members A common fact pattern in many cases cited by Plaintiffs is that the defendant in a class or collective action implemented a new arbitration policy shortly after filing of the litigation and purposefully targeted putative class members with that policy. See, e.g., Billingsley, 560 F. App’x at 919 (defendant rolled out arbitration policy aimed only at collective members in “blitzkrieg fashion” to minimize scope of class); Agilant, 2020 WL 1233749 at *5 (management “instituted its novel arbitration policy for the purpose of foreclosing” plaintiffs’ participation in the litigation); Kater, 2019 WL 6130844 at *2 (new
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arbitration provision was “expressly directed at [the pending] lawsuit” to reduce the scope of the putative class); Jimenez, 2015 WL 4914727 at *1, *6 n.5 (new dispute resolution policy imposed on airport security guards after filing of class action); Currency Conversion II 224 F.R.D. at 569 (credit card issuers “contact[ed] putative class members solely for the purpose of altering the status of the pending litigation”).
This case does not fit that fact pattern. Goldman did not target the agreements to putative Class Members, but rather extended them broadly to employees across the company to male and female alike. Indeed, the evidence establishes that Goldman had litigation-neutral reasons for entering into the agreements with their employees – namely, providing compensation and promotion in consideration for various services, or providing a separation package, in the normal course of business. Moreover, the agreements in question predominantly were based on form agreements containing mandatory arbitration clauses that pre-date this litigation.46 See Gauzza v. Prospect Medical Holdings, Inc., No. 17-3599, 2018 WL 4853294, at *2 (E.D. Pa. Oct. 4, 2018) (“continu[ing] [a] preexisting policy of requiring new hires to sign arbitration agreements as a condition for employment” is “not inherently abusive” under Rule 23(d)); In re SunTrust Banks, Inc. 401(k) Plan Affiliated Funds ERISA Litigation, No. 1:11-CV-784, 2017 WL 9884901, at *2 (N.D. Ga. Feb. 27, 2017) (finding that Plaintiffs failed to meet Rule 23(d) standard particularly “in light of the fact that the Severance Plan is longstanding, predating the litigation in this
46 For example, the Separation Agreement form agreement had been used since at least 2002, eight years prior to the commencement of this action. (See Guiffre Decl. in Opp., Ex. 10 and 12; Def. Mem. at 4.). Similarly, since at least 1998, the Goldman has used a similar agreement for all PWA Agreements. (Cupertino Decl., ¶ 7) Plaintiffs do not argue that the Separation Agreements, MD Promotion Agreements or PWA Agreements were materially altered after filing of the action.
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case and because the Severance Plan releases are widespread rather than being targeted at putative class members”). Plaintiffs have not shown that Goldman targeted putative Class Members or procured any of the agreements in an effort to subvert the class action.
4. Goldman Did Not Unilaterally Impose the Agreements Some cases cited by Plaintiffs involved scenarios where defendants imposed new arbitration policies on employees following the filing of a litigation but without seeking agreement. The defendants unilaterally implemented these policies, sometimes seeking employee acknowledgment of their having received the new “agreement” and other times announcing them by fiat. Putative class members received no additional consideration for the new terms, other than continuing their existing employment. See, e.g., Billingsley, 560 F. App’x at 918-19 (plaintiff store managers were “ordered” to attend meetings by supervisors instructed to inform plaintiffs that the arbitration agreement was condition of continued employment); Jimenez, 2015 WL 4914727 at *6 (employer provided no opportunity to opt out of new policy, making assent to the policy a condition of employment); Tomkins, 2014 WL 129401 at *2 (employer imposed arbitration agreement “without any signature or affirmative indication of consent”). Here in contrast, policies were not simply announced and imposed. Rather, arbitration provisions (and releases for Separation Agreements) were part of agreements offered to, and individually accepted by, employees providing them valuable promotions, compensation, and severance arrangements. This factor, too, weighs against remedial action under Rule 23(d).
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5. The Separation Agreements, MD Promotion Agreements, and PWA Agreements Had Some Potential to Mislead
Courts exercise their authority to manage class and collective actions where communications, including proposed agreements, are apt to cause confusion or mislead putative class members. See, e.g., DeGidio, 880 F.3d at 135 (arbitration agreements contained “blatant factual misrepresentation” painting a “false picture” of the plaintiffs’ legal posture employment status under the FLSA); Piekarski, 4 F. Supp. 3d at 956 (finding that defendant-employer’s “distribution of [Dispute Resolution Agreement] was likely to confuse and mislead potential [FLSA] class members”); Williams, 2011 WL 2713741, at *3 (characterizing document as “agreement” was “very misleading to lay persons such as the hourly-paid security guards who are its target”); County of Santa Clara, 2010 WL 2724512, at *4 (letter accompanying settlement and releases contained “factually misleading” information in several respects).
The record here does not support finding that the Separation Agreements, MD Promotion Agreements or PWA Agreements were confusing or misleading or procured in a deceptive manner. The presentation of these particular agreements was clear, and the arbitration provisions are unambiguous, as the Court explained above in connection with Goldman’s motion to compel. (See Guiffre Decl., Ex. 385 at 4; Id., Ex. 961 at § 8; Ex. 1196 at § 11.) Plaintiffs do not argue otherwise; indeed, they have not pointed to any instance of unclear, vague, incorrect, or confusing language in these agreements. Nor have they presented any evidence that Goldman secured agreement to these three categories of agreement by deceptive means.
Plaintiffs instead argue that Goldman’s failure to disclose the existence of this action and provide putative Class Members with “an opportunity to consult with Class
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Counsel to make an informed choice as to whether to waive their participation in this case” rendered the agreements misleading. (Cross-Motion Mem. at 12-15.) Courts are indeed more likely to take remedial action when the defendant presenting an arbitration agreement or release does not call attention to or provide sufficient information about a pending class or collective action. See, e.g., Agilant, 2020 WL 1233749 at *5 (arbitration agreement); Cheverez, 2016 WL 861107 at *4 (settlement agreement and release); Jimenez, 2015 WL 4914727 at *5 (arbitration agreement); Balasanyan, 2012 WL 760566 at *3 (arbitration agreement). Plaintiffs assert that Goldman should have provided this information alongside any potential arbitration clause or release presented to putative Class Members, so that employees would have been alerted to the fact that they were ceding their ability to litigate potential claims through this class action rather than in arbitration, or giving up that right completely.
Rule 23(d) itself does not expressly impose an affirmative obligation on Goldman to provide information about this action; rather, it authorizes the Court to make orders to manage class action communications.47 In light of Gulf Oil’s requirements for crafting such orders, courts “[examine] the entirety of defendant’s conduct and communications [and there is no] statutory rule or case law that requires defense counsel to give specific information and instructions to putative class members, nor [are there] any ‘magic words’ that must be disclosed [in communications].” Bobryk v. Durand Glass Manufacturing Co., Inc., No. 12-CV-5360, 2013 WL 5574504, at *6 (D.N.J. Oct. 9, 2013).
47 There was no preexisting Rule 23(d) order in place that prohibited or limited Goldman from communicating with putative Class Members, all of whom are current or former employees. Nor did Plaintiffs ever previously request such an order since this case began ten years ago.
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The Court agrees, however, that omission of any reference to the pending class action is of some concern. Employees may want to know that, in agreeing to arbitrate or release any and all claims, they are giving up the right to litigate a putative class action of which they could be a beneficiary. Absent notice obtained elsewhere, employees would not have complete information on which to base their decision to accept, reject or negotiate unless the agreement provided information about the class action or the employees otherwise knew about the action. See Currency Conversion III, 361 F. Supp.2d at 251 (“There was no reasonable manner for cardholders to know that by failing to reject the arbitration clause, they were forfeiting their rights as potential plaintiffs in th[e] litigation.”).
At the same time, however, the agreements clearly set forth that the employees being promoted and receiving greater compensation would have to arbitrate any and all claims, existing or not, and employees agreeing to severance terms would be releasing Goldman from any and all claims, known or unknown up to time of agreement. See Stevenson, 2014 WL 3519184, at *3 (“Even if [Plaintiff] was unaware of this litigation when she signed the arbitration agreement, she does not deny that the text of the arbitration agreement made it clear to her that she could not participate in an FLSA collective action suit, pre-existing or not”).
Moreover, Plaintiffs have not submitted any evidence to show that any individual putative Class Member was, or even felt, misled by the agreements. Given that there are over 1,200 agreements at issue entered into over the course of many years, there should
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have been ample opportunity to do so.48 Cf. DeGidio v. Crazy Horse Saloon and
Restaurant, Inc., No. 13-cv-2136, 2017 WL 5624310, at *6 (D.S.C. Jan. 26, 2017)
(declarations submitted from five plaintiffs who signed arbitration agreement and averred
that they were misled). Accordingly, the Court concludes that this factor somewhat favors
remedial action under Rule 23(d) but is tempered by the lack of supporting evidence in
the record, other than the omission itself, as well as by the many factors (discussed
above) otherwise countenancing against intruding on the parties’ agreements.49
6. The Totality of Circumstances
Considering all the circumstances, the Court is not persuaded that either the
arbitration provisions in the MD Promotion Agreements, PWA Agreements, and
Separation Agreements, or the releases in the Separation Agreements, were procured by
48 As Goldman noted at oral argument, “[n]othing stopped the plaintiffs from putting forward 10 or 15 or 20 declarations from class members saying, I was confused when I entered into these equity awards and they need to be voided. And then we would have an individualized issue, and you could deal with it. But they elected not to do that because they were shooting for the home run of a per-se rule.” (T. at 22.) Indeed, “[Plaintiffs] haven’t put forward a single piece of paper from anyone, any evidence to say that I was somehow confused or that I was snookered.” (T. at 24.)
49 Goldman argues that omission of any reference to the pending class action was irrelevant because putative Class Members had actual or constructive notice of the pending action from at least three sources: media coverage, document hold notices Goldman circulated internally over several years, and disclosures in Goldman SEC filings. (See Def. Mem. at 14-16.) Some significant portion, if not all, of those employees who executed the agreements may well have known of the putative class action at the time. But the extent of that actual or constructive notice remains speculative. Indeed, Goldman acknowledged that notwithstanding publication of over a hundred articles, the case had not received the degree of public attention of “some big, public case” (T. at 79); Goldman’s document hold notices did not refer to the action as a class action (see Becker Decl., Ex. 1); and there is no evidence that the putative Class Members read Goldman’s SEC filings. Earlier in this case, Judge Francis issued an order in the context of a motion to intervene holding that there is no basis for imputing constructive knowledge to putative Class Members on the basis of public information or media coverage of this case. (See Dkt. 410 at 18-21.) Goldman has not presented any basis to revisit that holding.
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means that were, or had sufficient potential to be, coercive, deceptive, or otherwise abusive. The weightiest fact in Plaintiffs’ favor is omission of any information about the pending class action. The Court agrees that better practice would have been for Goldman to include that information in conjunction with agreements proposed to putative class members.
But standing alone, in the circumstances of this case, that fact does not warrant voiding or taking other remedial action with respect to those agreements. There is no evidence of deceptive conduct, no evidence of coercion, no evidence of targeting putative Class Members, no evidence of imposing arbitration without agreement or without additional consideration. To the contrary, Plaintiffs, who are well-educated and experienced professionals, received substantial rewards through promotion, compensation or severance pay, and entered into agreements based on standard forms that Goldman had been using long before the lawsuit was filed and which were extended to both men and women.
The cases relied upon by Plaintiffs are all distinguishable from the instant case because they involved evidence of potential or actual coercion, deception and abuse to a far more substantial degree than that present here. Several of those cases dealt with agreements omitting any mention of the pending class action, but in each instance, other factors came into play such as coercion or targeting that are not present here. See, e.g., Billingsley, 560 Fed. Appx. at 918 (new dispute resolution policy rolled out in “blitzkrieg fashion” following filing of action; targeted specifically to putative class members; acceptances obtained in coercive two-on-one meetings under deceptive pretenses); Agilant, 2020 WL 1233749 at *5-6 (new arbitration policy rolled out after action filed;
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management pressure on employees to quickly sign agreement; and evidence of intent to prevent participation in the action); Currency Conversion III, 361 F Supp. 2d at 253 (vulnerable consumers dependent on plaintiffs for credit, arbitration requirement introduced after lawsuit filed; purposeful targeting of putative class members); Tomkins, 2014 WL 129401 at *1-2 (unilateral imposition of arbitration agreement on home health workers “without any signature or affirmative indication of consent from the employee”); O’Connor, 2013 WL 6407583 at *4-6 (new arbitration clause introduced after class action filed; vulnerable Uber drivers, many of whom did not speak English as native language; and unduly cumbersome opt-out procedure); Balsanyan, 2012 WL 760566 at *3 (arbitration agreement rolled out after action filed, and employees misled into believing they were not entering into an agreement); cf. Lillehagen v. Alorica, Inc., No. SACV 130092-DOC, 2014 WL 12768156, at *7 (C.D. Ca. Dec. 18, 2014) (upholding arbitration agreement that made no mention of pending collective action because “[m]ost cases finding improper communication in employment class or collective actions involve communications with existing employees and involve more misleading or coercive behavior by the employer than appears in the record in this case.”).
In the end, Plaintiffs have not provided a sufficient record of potential or actual abuse to warrant remedial action pursuant to Rule 23(d) against the arbitration or release provisions contained in the MD Promotion Agreements, PWA Agreements, or Separation Agreements. D. The Equity Award Agreements Warrant Remedial Action
Just as the Court analyzed the Equity Award Agreements separately in the context of Goldman’s Motion to Compel, it does so as well in the context of Plaintiffs’ Cross-
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Motion. Like the other three types of agreements, there is no basis for finding that the Equity Award Agreements were secured through coercion, targeting, or unilateral imposition. The Equity Award Agreements were desirable and lucrative. Nearly one-third of Goldman’s global workforce received them, the vast majority of whom were not putative Class Members. (Dias Decl., ¶ 14.)
While the Equity Award Agreements were not obtained through coercive means, however, the Court does find that they were procured in a confusing and potentially misleading fashion. As explained previously, starting in 2016 Goldman obtained employees’ agreement to the Equity Award Agreements using a new electronic procedure that obfuscated the expanded scope of mandatory arbitration.50
The Court has already concluded that that procedure did not rise to a level of unconscionability that would bar enforcement of the arbitration provisions pursuant to contract law. But the standards for what is unconscionable and what merits remediation pursuant to Rule 23(d) are not the same. Unconscionability is a contract doctrine. Rule 23(d) is a means of managing class actions. A procedure that does not “shock the conscience” or cannot bar enforcement in the absence of substantive unconscionability may still be one that so lends itself to potential for confusion or being misled as to merit the Court’s discretionary relief under Rule 23(d). See O’Connor, 2013 WL 6407583 at *2-3 (declining to act on and distinguishing unconscionability as issue of enforceability while proceeding to decide whether relief should be granted pursuant to Rule 23(d)); cf. Currency Conversion III, 361 F. Supp. at 252-54 (finding arbitration provision both
50 The Court incorporates here its earlier analysis of the Equity Agreement Signature Card process in determining whether the arbitration provisions of the Equity Award Agreements are unenforceable as unconscionable.
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unenforceable as unconscionable and unenforceable pursuant to Rule 23(d)). That is so for the Signature Card process, which Goldman implemented to procure agreement to Equity Award Agreements.
Accordingly, the Court finds that the arbitration provisions of the Equity Award Agreements entered into between introduction of the Signature Card acceptance procedure and notice of class certification warrant a remedy with respect to Class Members. E. Opt-Out Remedy for Equity Award Agreement Signatories
Having determined that the Equity Award Agreements warrant remedial action, the Court turns to determining the appropriate relief. Courts have variously exercised their discretion to redress Rule 23(d) transgressions with measures that range from voiding arbitration clauses altogether, to ordering notice and opportunity for class members to opt out of arbitration and remain in the class action (or vice-versa), to merely warning parties to refrain from specified future activity.
Any remedy should be fashioned consistent with the Supreme Court’s directive that remedies under Rule 23(d) should be narrow and limit speech “as little as possible, consistent with the rights of the parties under the circumstances.” Gulf Oil, 452 U.S. at 102. Concerns for speech are not present here inasmuch as the relief will be applied to past, not future, events. Nonetheless, it remains appropriate to narrowly tailor relief to the particular problem to be remedied with due regard for the rights of the parties under the circumstances of this case.
The Court concludes that the most appropriate remedy is providing notice to relevant Class Members that gives them the opportunity to opt out of arbitration and
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remain in the class litigation. See Devries v. Morgan Stanley & Co. LLC, No. 12-CV81223, 2015 WL 11237669, at *3 (S.D. Fla. Aug. 18, 2015) (requiring notice to putative class members providing notice of opportunity to opt out of arbitration agreements); cf. O’Connor, 2013 WL 6407583 at *7 (ordering that class members who, when they were putative members, accepted agreements with arbitration provisions must be given “clear notice” of the arbitration provision, the effect of assenting to arbitration on their participation in the class action lawsuit at issue, and a 30-day period to accept arbitration provision anew).
This remedy avoids outright invaliding the arbitration provisions (as applied to Class Members) and provides individual Class Members with a choice that should have been theirs to make at an earlier time. See Tolmasoff v. General Motors, LLC, No. 1611747, 2016 WL 3548219, at *15 (E.D. Mich. June 30, 2016) (rejecting voiding releases in favor of notice and opportunity to opt out of them because choice should be left to the putative class members). In this Court’s view, pre-emptively concluding that all relevant Class Members will prefer class action litigation to individual arbitration is presumptive and broader than necessary. At the other end of the spectrum, merely warning Goldman to modify its Signature Card procedures in the future would be meaningless as the class already has been certified.
As for the relevant Class Members to whom notice should be sent, they are those employees who accepted Equity Award Agreements following introduction of the Signature Card process. However, if a Class Member executed both an Equity Award Agreement and also a Separation Agreement, MD Promotion Agreement, or PWA Agreement, that individual should not be provided with opt-out notice because they have
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separately agreed to arbitrate the claims at issue in this action through a document that does not pose a problem under Rule 23(d).
The parties will be directed to meet and confer as to the form and means of notice and to provide a 45-day opt-out period.
IV. There is No Conflict with the Rules Enabling Act Goldman additionally argues that the Rules Enabling Act bars this Court from voiding the parties’ agreements to arbitrate. The Rules Enabling Act commands that a procedural rule cannot trump a substantive congressional statute like the FAA. Goldman asserts that “[t]here is no Rule 23(d) exception to the FAA” (Def. Sur-Reply at 1). Plaintiffs counter that “[t]here is no ‘arbitration exception’ to the Federal Rules of Civil Procedure.” (Pl. Reply at 5.) There is no need, however, to resolve that clash of perspectives as there is no such conflict here. The Court is exercising its supervisory authority over class actions and ordering a narrowly tailored remedy that does not void any arbitration provision. Enacted in 1934, the Rules Enabling Act empowers the judiciary to promulgate the Federal Rules of Civil Procedure. 28 U.S.C.A. § 2072 (a). That authority is not unlimited, however, as “[s]uch rules shall not abridge, enlarge or modify any substantive right.” 28 U.S.C.A. § 2072 (b). Since at least 1984, a majority of the Supreme Court has held that the FAA confers substantive rights. See Southland Corp. v. Keating, 465 U.S. 1, 11 (1984) (holding that the FAA “rests on the authority of Congress to enact substantive rules under the Commerce Clause”).51 From there, Goldman argues that the Court may not void any
51 See also AT&T Mobility, 563 U.S. at 339 (noting that the FAA’s “primary substantive provision” declares arbitration agreements to be “valid, irrevocable, and enforceable”) (internal citations omitted); Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 588 (2008) (FAA’s substantive provisions reveal “a national policy favoring arbitration with just the limited review needed to maintain arbitration's essential virtue of resolving
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of the arbitration provisions at issue under Rule 23(d) because to do so would abridge the substantive right to arbitration.
Goldman specifically relies on the Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013). In that case, which arose from this District, American Express sought to compel the arbitration of claims by various merchants who accepted their credit cards. Id. at 231. The merchant agreements prohibited class actions, thus requiring individual arbitration of all claims. The merchants nevertheless filed a class action, claiming that American Express was engaged in antitrust violations in contravention of the Sherman Act. Id. American Express successfully moved to compel arbitration. Id. The Second Circuit reversed, holding that because of the prohibitive costs that the merchants would face if they had to arbitrate their claims, the class action waiver was unenforceable and arbitration could not proceed. Id. at 232. The Supreme Court then reversed the Second Circuit and held that the FAA does not permit courts to invalidate an arbitration agreement, regardless of whether a statutory claim would become prohibitively expensive to address in individual arbitration. (Id. at 238.)
Goldman’s reliance on Italian Colors is misguided. First, while addressing Rule 23 generally, the Court did not at all address Rule 23(d), and Rule 23(d) was not at issue. Rather, the issue centered on whether the availability of procedural rules to bring class actions could be invoked to nullify the parties’ arbitration agreement.
Second, the Court grounded its decision on the conclusion that Rule 23 does not establish an “entitlement to class proceedings for the vindication of statutory rights.” Id.
disputes straightaway”); Moses H. Cone Memorial Hospital, 460 U.S. at 24-25 (the FAA represents “a body of federal substantive law of arbitrability” affording parties the right to have their arbitration agreements enforced as written).
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at 234. In dicta, the majority went on to say that “it is likely” that such an entitlement – if it existed – would be an abridgment or modification of substantive rights prohibited by the Rules Enabling Act. Id. Goldman’s argument latches onto this statement about what is “likely” as if it were certain.
Third, the narrow remedy ordered here for the Equity Award Agreements does not invalidate the arbitration provisions of those agreements, although it does give Plaintiffs the opportunity to opt out of them. The reason for that remedy, however, originates from the problematic means by which Goldman obtained agreement in the first place, not from the substance of the agreement. As Justice Thomas’ concurrence states in Italian Colors, “the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration agreement, such as by proving fraud or duress.” 570 U.S. at 239; see also AT&T Mobility, 563 U.S. at 353 (Thomas, J., concurring) (same).
The fault with the Equity Award Agreements’ arbitration provisions similarly stems from the process of formation. Remediation pursuant to Rule 23(d) as applied here in no way cabins the scope or substance of the FAA.
Conclusion For the foregoing reasons, Defendants’ Motion to Compel and Stay Pending Arbitration is GRANTED IN PART and CONDITIONALLY GRANTED IN PART, and Plaintiffs’ Cross-Motion is GRANTED IN PART and DENIED IN PART as follows: 1. Defendants’ Motion to Compel arbitration of current Class Members who executed Separation Agreements, MD Promotion Agreements, and PWA Agreements containing arbitration clauses is granted. These individuals are excluded from the class,
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and their claims are stayed pending arbitration. They may bring their claims against Goldman by individual arbitration through the procedures articulated in their contractual agreements.
2. Goldman’s Motion to Compel with respect to the Equity Award Agreements is conditionally granted to the extent that those Class Members who executed only Equity Award Agreements (and not also Separation Agreements, MD Promotion Agreements, or PWA Agreements with arbitration provisions) shall have 45-days notice of the opportunity to opt out of arbitration. If they do not opt out, any claims those Class Members have against Goldman in connection with this action must be brought through individual arbitration through the procedures articulated in their contractual agreements. Within 21 days of this Decision and Order, the parties shall meet and confer and submit to the Court a proposed form and method of notice.
3. Plaintiffs’ Cross-Motion to void arbitration clauses and releases is denied with respect to the Separation Agreements, MD Promotion Agreements, and PWA Agreements. The Cross-Motion is granted in part with respect to the Equity Award Agreements as specified in the previous paragraph.
The parties’ additional arguments not expressly addressed herein have been considered by the Court and found to be without merit.
SO ORDERED.

Dated:

March 26, 2020 New York, New York

_________________________________ ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE

Copies transmitted to all counsel of record.

88

 
 APPEAL,CASREF,ECF,MEDT5
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10−cv−06950−AT−RWL

Chen−Oster et al v. Goldman, Sachs & Co. et al

Date Filed: 09/15/2010

Assigned to: Judge Analisa Torres

Jury Demand: Plaintiff

Referred to: Magistrate Judge Robert W. Lehrburger

Nature of Suit: 442 Civil Rights: Jobs

Cause: 42:2000e−2e Job Discrimination (Unlawful Employment Jurisdiction: Federal Question

Practices)

Plaintiff

H. Christina Chen−Oster

represented by Adam T Klein Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 212 245−1000 Fax: 212 977−4005 Email: atk@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher McNerney Outten & Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: cmcnerney@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus E. Dugger Outten Golden 3 Park Ave. New York, NY 10016 212 2452109 Fax: (646)−509−2094 Email: cd@theduggerlawfirm.com TERMINATED: 04/04/2014 LEAD ATTORNEY

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

Alison M. Stocking Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415)−956−1000 Fax: (415)−956−1008 Email: astocking@lchb.com ATTORNEY TO BE NOTICED

Anne B. Shaver Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415)−956−1000 Fax: (415)−956−1008

Email: ashaver@lchb.com PRO HAC VICE ATTORNEY TO BE NOTICED
Cara Elizabeth Greene Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: ceg@outtengolden.com ATTORNEY TO BE NOTICED
Carmelyn Pingol Malalis Outten & Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (646) 825−9827 Fax: (212) 977−4005 Email: cpm@outtengolden.com ATTORNEY TO BE NOTICED
Dana Gale Sussman Safe Horizon Anti− Trafficking Program 50 Court Street, 8th Floor Brooklyn, NY 11201 718−943−8641 Fax: 718−943−8653 Email: dsussman@outtengolden.com ATTORNEY TO BE NOTICED
Daniel S. Stromberg Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 (202)−847−4406 Fax: (646)−591−3894 Email: dstromberg@outtengolden.com PRO HAC VICE ATTORNEY TO BE NOTICED
Heather H. Wong Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415)−956−1000 Fax: (415)−956−1008 Email: hwong@lchb.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lin Liu Outten & Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212)−245−1000 Fax: (646)−509−2092 Email: jliu@outtengolden.com TERMINATED: 02/25/2015
Justin Mitchell Swartz Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017

(212) 245−1000 Fax: (646)−509−2060 Email: jms@outtengolden.com ATTORNEY TO BE NOTICED
Kelly Dermody Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415) 956 1000 Fax: (415) 956 1008 Email: kdermody@lchb.com ATTORNEY TO BE NOTICED
Mariko Hirose International Refugee Assistance Project One Battery Park Plaza Ste 4th Floor New York, NY 10004 516−701−4620 Email: mhirose@outtengolden.com TERMINATED: 02/28/2012
Martin Daniel Quinones Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415)−956−1000 Fax: (415)−956−1008 Email: mquinones@lchb.com TERMINATED: 07/19/2016
Maya Jumper Outten & Golden LLC 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Email: mjumper@outtengolden.com ATTORNEY TO BE NOTICED
Melissa Lardo Stewart Outten & Golden LLP 3 Park Avenue 29th Floor New York, NY 10016 212−245−1000 Fax: 646−509−2060 Email: mstewart@outtengolden.com ATTORNEY TO BE NOTICED
Michael Christopher Danna Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 (212)−245−1000 Email: mdanna@outtengolden.com ATTORNEY TO BE NOTICED
Michael Ian Levin−Gesundheit Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339

(415)−956−1000 Fax: (415)−956−1008 Email: mlevin@lchb.com ATTORNEY TO BE NOTICED
Michelle Lamy Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415)−956−1000 Email: mlamy@lchb.com ATTORNEY TO BE NOTICED
Ossai Miazad Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: omiazad@outtengolden.com ATTORNEY TO BE NOTICED
Paul W. Mollica Outten & Golden LLP 161 N. Clark St. Suite 4700 Chicago, IL 60601 312−809−7010 Fax: 312−809−7011 Email: pmollica@outtengolden.com ATTORNEY TO BE NOTICED
Rachel Geman Lieff Cabraser Heimann & Bernstein, LLP 250 Hudson Street 8th Floor New York, NY 10013−1413 (212) 355−9500 Fax: (212)−355−9592 Email: rgeman@lchb.com ATTORNEY TO BE NOTICED
Sabine Jean Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 (347)−651−7500 Email: sjean@outtengolden.com ATTORNEY TO BE NOTICED
Tiseme Gabriella Zegeye Lieff Cabraser Heimann & Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111−3339 (415)−956−1000 Fax: (415)−956−1008 Email: tzegeye@lchb.com ATTORNEY TO BE NOTICED
Valerie D. Comenencia Ortiz Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 415−956−1000

Plaintiff Lisa Parisi

Fax: 415−956−1008 Email: vcomenenciaortiz@lchb.com ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cyrus E. Dugger (See above for address) TERMINATED: 04/04/2014 LEAD ATTORNEY
Adam T Klein (See above for address) ATTORNEY TO BE NOTICED
Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED
Anne B. Shaver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cara Elizabeth Greene (See above for address) ATTORNEY TO BE NOTICED
Carmelyn Pingol Malalis (See above for address) ATTORNEY TO BE NOTICED
Dana Gale Sussman (See above for address) ATTORNEY TO BE NOTICED
Heather H. Wong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lin Liu (See above for address) TERMINATED: 02/25/2015
Justin Mitchell Swartz (See above for address) ATTORNEY TO BE NOTICED
Kelly Dermody (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) TERMINATED: 02/28/2012
Martin Daniel Quinones (See above for address) TERMINATED: 07/19/2016

Plaintiff Shanna Orlich

Melissa Lardo Stewart (See above for address) ATTORNEY TO BE NOTICED
Paul W. Mollica (See above for address) ATTORNEY TO BE NOTICED
Rachel Geman (See above for address) ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher McNerney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cyrus E. Dugger (See above for address) TERMINATED: 04/04/2014 LEAD ATTORNEY
Adam T Klein (See above for address) ATTORNEY TO BE NOTICED
Alison M. Stocking (See above for address) ATTORNEY TO BE NOTICED
Anne B. Shaver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cara Elizabeth Greene (See above for address) ATTORNEY TO BE NOTICED
Carmelyn Pingol Malalis (See above for address) ATTORNEY TO BE NOTICED
Dana Gale Sussman (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Stromberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Heather H. Wong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Jennifer Lin Liu (See above for address) TERMINATED: 02/25/2015
Justin Mitchell Swartz (See above for address) ATTORNEY TO BE NOTICED
Kelly Dermody (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) TERMINATED: 02/28/2012
Martin Daniel Quinones (See above for address) TERMINATED: 07/19/2016
Maya Jumper (See above for address) ATTORNEY TO BE NOTICED
Melissa Lardo Stewart (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Danna (See above for address) ATTORNEY TO BE NOTICED
Michael Ian Levin−Gesundheit (See above for address) ATTORNEY TO BE NOTICED
Michelle Lamy (See above for address) ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Paul W. Mollica (See above for address) ATTORNEY TO BE NOTICED
Rachel Geman (See above for address) ATTORNEY TO BE NOTICED
Sabine Jean (See above for address) ATTORNEY TO BE NOTICED
Tiseme Gabriella Zegeye (See above for address) ATTORNEY TO BE NOTICED
Valerie D. Comenencia Ortiz (See above for address) ATTORNEY TO BE NOTICED

Allison Gamba
Plaintiff Mary De Luis

represented by Christopher McNerney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam T Klein (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Stromberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Maya Jumper (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Danna (See above for address) ATTORNEY TO BE NOTICED
Michael Ian Levin−Gesundheit (See above for address) ATTORNEY TO BE NOTICED
Michelle Lamy (See above for address) ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Sabine Jean (See above for address) ATTORNEY TO BE NOTICED
Tiseme Gabriella Zegeye (See above for address) ATTORNEY TO BE NOTICED
Valerie D. Comenencia Ortiz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher McNerney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam T Klein (See above for address)

V. Defendant Goldman, Sachs & Co.

ATTORNEY TO BE NOTICED
Daniel S. Stromberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Maya Jumper (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Danna (See above for address) ATTORNEY TO BE NOTICED
Michael Ian Levin−Gesundheit (See above for address) ATTORNEY TO BE NOTICED
Michelle Lamy (See above for address) ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Sabine Jean (See above for address) ATTORNEY TO BE NOTICED
Tiseme Gabriella Zegeye (See above for address) ATTORNEY TO BE NOTICED
Valerie D. Comenencia Ortiz (See above for address) ATTORNEY TO BE NOTICED
represented by Neal D. Mollen Paul Hastings LLP 875 15th Street, N.W. Washingon, DC 20005 (202)−551−1738 Fax: (202)−551−1705 Email: nealmollen@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore Otto Rogers , Jr Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 212−558−4000 Email: rogerst@sullcrom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Flug Davidoff Sullivan & Cromwell LLP (DC) 1700 New York Avenue, N.W., Suite 700

Washington, DC 20006 202−956−7500 Fax: 202−293−6330 Email: davidoffa@sullcrom.com ATTORNEY TO BE NOTICED
Andrew J. Peck DLA Piper US LLP (NY) 1251 Avenue of the Americas, 27th Floor New York, NY 10020 (212)−335−4631 Fax: (212)−884−8622 Email: andrew.peck@dlapiper.com ATTORNEY TO BE NOTICED
Ann−Elizabeth Ostrager Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 (212)−558−7357 Fax: (212)−291−9304 Email: ostragerae@sullcrom.com ATTORNEY TO BE NOTICED
Barbara B. Brown Paul Hastings LLP (DC) 875 15th Street N.W. Washington, DC 20005 (202) 551−1717 Fax: (202) 551−0117 Email: barbarabrown@paulhastings.com PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Deborah Newton Sullivan & Cromwell, LLP(NYC) 125 Broad Street New York, NY 10004 (212)−558−4483 Email: newtonb@sullcrom.com ATTORNEY TO BE NOTICED
C. Geoffrey Weirich Paul Hastings LLP (GA) 1170Peachtree Street, NE Suite 100 Atlanta, GA 30309 (404) 815−2221 Fax: (404) 685−5221 Email: geoffweirich@paulhastings.com TERMINATED: 04/30/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Carson H. Sullivan Paul Hastings LLP 875 15th Street, N. W., Washington, DC 20005 PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth A Cassady Sullivan & Cromwell LLP (Washington DC) 1700 New York Avenue N.W.

Washington, DC 20006 202−956−7500 Fax: 202−293−6330 Email: cassadye@sullcrom.com ATTORNEY TO BE NOTICED
Hannah Michelle Lonky Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 (212)−558−3643 Email: lonkyh@sullcrom.com ATTORNEY TO BE NOTICED
Hilary M. Williams Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 212−558−4128 Email: williamsh@sullcrom.com ATTORNEY TO BE NOTICED
Jeffrey B. Wall Sullivan & Cromwell LLP (Washington DC) 1700 New York Avenue N.W. Washington, DC 20006 (202)−956−7660 Email: wallj@sullcrom.com ATTORNEY TO BE NOTICED
Joanna Ka Wai Chan Cohen & Gresser, LLP (NYC) 800 Third Avenue New York, NY 10022 (212) 707−7272 Fax: (212)−957−4514 Email: jchan@cohengresser.com ATTORNEY TO BE NOTICED
John Francis Fullerton , III Epstein Becker & Green, P.C. 875 Third Avenue New York, NY 10022 212−351−4580 Fax: 212−878−8670 Email: fullertonj@sullcrom.com TERMINATED: 05/04/2011
Joshua Seth Levy Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 (212) 558−4407 Fax: (212) 291−9336 Email: levyjo@sullcrom.com ATTORNEY TO BE NOTICED
Margaret Elizabeth Bartlett Sullivan and Cromwell, LLP(NYC) 125 Broad Street New York, NY 10004 (212)−558−1646 Fax: (212)−558−3588 Email: bartlettm@sullcrom.com

ATTORNEY TO BE NOTICED
Mark Stewart Cohen Cohen & Gresser, LLP (NYC) 800 Third Avenue New York, NY 10022 (212) 957−7600 Fax: (212)957−4514 Email: mcohen@cohengresser.com ATTORNEY TO BE NOTICED
Michael Peter Reis Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 (212)−558−7990 Fax: (212)−291−9187 Email: reism@sullcrom.com ATTORNEY TO BE NOTICED
Nathaniel P. T. Read Cohen & Gresser, LLP (NYC) 800 Third Avenue New York, NY 10022 (212) 95707069 Fax: (212) 957−4514 Email: NRead@CohenGresser.com ATTORNEY TO BE NOTICED
Patrick William Shea Paul Hastings LLP (NY) 200 Park Avenue New York, NY 10166 (212) 318−6000 Fax: (212) 319−4090 Email: patrickshea@paulhastings.com ATTORNEY TO BE NOTICED
Robert Joseph Giuffra , Jr. Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 212−558−3121 Email: giuffrar@sullcrom.com ATTORNEY TO BE NOTICED
Robin D. Fessel Sullivan and Cromwell, LLP(NYC) 125 Broad Street New York, NY 10004 (212) 558−4000 Fax: 212−558−3588 Email: fesselr@sullcrom.com ATTORNEY TO BE NOTICED
Sharon L. Nelles Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 (212)−558−4976 Fax: (212)−3338 Email: nelless@sullcrom.com ATTORNEY TO BE NOTICED
Suhana S. Han

Defendant The Goldman Sachs Group, Inc.

Sullivan and Cromwell, LLP(NYC) 125 Broad Street New York, NY 10004 (212) 558−4647 Fax: (212) 558−3588 Email: hans@sullcrom.com ATTORNEY TO BE NOTICED
Zachary D. Fasman Paul Hastings LLP (NY) 200 Park Avenue New York, NY 10166 (212)−318−6315 Fax: (212)−318−6837 Email: Zfasman@proskauer.com TERMINATED: 03/06/2014
represented by Neal D. Mollen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore Otto Rogers , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Flug Davidoff (See above for address) ATTORNEY TO BE NOTICED
Andrew J. Peck (See above for address) ATTORNEY TO BE NOTICED
Ann−Elizabeth Ostrager (See above for address) ATTORNEY TO BE NOTICED
Barbara B. Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Deborah Newton (See above for address) ATTORNEY TO BE NOTICED
C. Geoffrey Weirich (See above for address) TERMINATED: 04/30/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Carson H. Sullivan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth A Cassady (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff

Hannah Michelle Lonky (See above for address) ATTORNEY TO BE NOTICED
Hilary M. Williams (See above for address) ATTORNEY TO BE NOTICED
Jeffrey B. Wall (See above for address) ATTORNEY TO BE NOTICED
Joanna Ka Wai Chan (See above for address) ATTORNEY TO BE NOTICED
John Francis Fullerton , III (See above for address) TERMINATED: 05/04/2011
Joshua Seth Levy (See above for address) ATTORNEY TO BE NOTICED
Margaret Elizabeth Bartlett (See above for address) ATTORNEY TO BE NOTICED
Mark Stewart Cohen (See above for address) ATTORNEY TO BE NOTICED
Michael Peter Reis (See above for address) ATTORNEY TO BE NOTICED
Nathaniel P. T. Read (See above for address) ATTORNEY TO BE NOTICED
Patrick William Shea (See above for address) ATTORNEY TO BE NOTICED
Robert Joseph Giuffra , Jr. (See above for address) ATTORNEY TO BE NOTICED
Robin D. Fessel (See above for address) ATTORNEY TO BE NOTICED
Sharon L. Nelles (See above for address) ATTORNEY TO BE NOTICED
Suhana S. Han (See above for address) ATTORNEY TO BE NOTICED
Zachary D. Fasman (See above for address) TERMINATED: 03/06/2014

Allison Gamba
Intervenor Plaintiff Mary de Luis Amicus National Employment Lawyers Association/New York

represented by Adam T Klein Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 212 245−1000 Fax: (646)−509−2060 Email: atk@outtengolden.com ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Lasser Kornblith Sanford Heisler Sharp, LLP (NYC) 1350 Avenue Of The Americas New York, NY 10019 (646)−402−5646 Email: rkornblith@sanfordheisler.com ATTORNEY TO BE NOTICED

Date Filed 09/15/2010 09/15/2010 09/16/2010 09/20/2010 09/20/2010
09/20/2010 09/24/2010 09/27/2010 10/01/2010
10/05/2010
10/05/2010

# Docket Text
Magistrate Judge James C. Francis IV is so designated. (rdz) (Entered: 09/21/2010)
Case Designated ECF. (rdz) (Entered: 09/21/2010)
5 COMPLAINT (Duplicate Original) against Goldman, Sachs & Co., The Goldman Sachs Group, Inc. Document filed by Lisa Parisi, H. Christina Chen−Oster, Shanna Orlich.(mro) (ama). (Entered: 10/01/2010)
1 SEALED DOCUMENT placed in vault.(cb) (Entered: 09/20/2010)
2 ORDER GRANTING PERMISSION TO FILE COMPLAINT UNDER SEAL: Plaintiffs are granted permission to file under seal the Class Action Complaint and attached exhibits filed on September 15, 2010. The Clerk is directed to accept a redacted copy of the Class Action Complaint and attached exhibits for filing on the public docket. (Signed by Judge Leonard B. Sand on 9/16/10) (db) (Entered: 09/20/2010)
Transmission to Sealed Records Clerk. Transmitted re: 2 Order, to the Sealed Records Clerk for the sealing or unsealing of document or case. (db) (Entered: 09/20/2010)
3 NOTICE OF APPEARANCE by Theodore Otto Rogers, Jr on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Rogers, Theodore) (Entered: 09/24/2010)
4 NOTICE OF APPEARANCE by Justin Mitchell Swartz on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi (Swartz, Justin) (Entered: 09/27/2010)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Adam T Klein for noncompliance with Section (14.3) of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 5 Complaint to: case_openings@nysd.uscourts.gov. (mro) (Entered: 10/01/2010)
6 STIPULATION TO EXTEND TIME TO ANSWER, MOVE OR RESPOND. Goldman, Sachs & Co., answer due 11/15/2010; The Goldman Sachs Group, Inc., answer due 11/15/2010. (Signed by Judge Leonard B. Sand on 10/5/10) (djc) Modified on 10/5/2010 (djc). (Entered: 10/05/2010)
7 AFFIDAVIT OF SERVICE. Goldman, Sachs & Co. served on 9/17/2010, answer due 11/15/2010. Service was accepted by Joanna M. Lane. Document filed by Lisa Parisi; H. Christina Chen−Oster; Shanna Orlich. (Klein, Adam) (Entered: 10/05/2010)

10/05/2010 10/06/2010 10/06/2010 10/14/2010 10/18/2010 10/18/2010
10/25/2010 10/25/2010 10/25/2010 10/25/2010 10/28/2010 10/28/2010 10/28/2010 10/28/2010 11/05/2010
11/08/2010
11/16/2010

8 AFFIDAVIT OF SERVICE. The Goldman Sachs Group, Inc. served on 9/15/2010, answer due 11/15/2010. Service was accepted by Aixa Flores. Document filed by Lisa Parisi; H. Christina Chen−Oster; Shanna Orlich. (Klein, Adam) (Entered: 10/05/2010)
9 NOTICE OF APPEARANCE by Zachary D. Fasman on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Fasman, Zachary) (Entered: 10/06/2010)
10 MOTION for Barbara B. Brown to Appear Pro Hac Vice. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(mbe) (Entered: 10/14/2010)
CASHIERS OFFICE REMARK on 10 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 10/06/2010, Receipt Number 916752. (jd) (Entered: 10/14/2010)
11 ORDER ADMITTING ATTORNEY PRO HAC VICE: Mr. C. Geoffrey Weirich is admitted pro hac vice to this Court as counsel for Defendants in this action. (Signed by Judge Leonard B. Sand on 10/18/10) (db) (Entered: 10/18/2010)
12 ORDER FOR ADMISSION PRO HAC VICE. ORDER granting 10 Motion for Barbara B. Brown to Appear Pro Hac Vice for Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Signed by Judge Leonard B. Sand on 10/18/10) (db) (Entered: 10/18/2010)
13 MOTION for Alison Stocking to Appear Pro Hac Vice. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(mbe) (Entered: 10/26/2010)
14 MOTION for Anne B. Shaver to Appear Pro Hac Vice. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(mbe) (Entered: 10/26/2010)
15 MOTION for Heather H. Wong to Appear Pro Hac Vice. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(mbe) (Entered: 10/26/2010)
16 MOTION for Kelly M. Dermody to Appear Pro Hac Vice. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(mbe) (Entered: 10/26/2010)
17 ORDER: granting 15 Motion for Heather H. Wong to Appear Pro Hac Vice. So Ordered. (Signed by Judge Leonard B. Sand on 10/28/2010) (js) (Entered: 10/28/2010)
18 ORDER granting 14 Motion for Anne B. Shaver to Appear Pro Hac Vice. So Ordered. (Signed by Judge Leonard B. Sand on 10/28/2010) (js) (Entered: 10/28/2010)
19 ORDER granting 16 Motion for Kelly M. Dermody to Appear Pro Hac Vice. So Ordered. (Signed by Judge Leonard B. Sand on 10/28/2010) (js) (Entered: 10/28/2010)
20 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION: granting 13 Motion for Alison Stocking to Appear Pro Hac Vice. So Ordered. (Signed by Judge Leonard B. Sand on 10/28/2010) (js) (Entered: 10/28/2010)
CASHIERS OFFICE REMARK on 16 Motion to Appear Pro Hac Vice, 13 Motion to Appear Pro Hac Vice, 15 Motion to Appear Pro Hac Vice, 14 Motion to Appear Pro Hac Vice in the amount of $100.00, paid on 10/25/2010, Receipt Number 918837. (jd) (Entered: 11/05/2010)
21 MEMO ENDORSEMENT ON NOTICE OF MOTION ON CONSENT FOR ADMISSION PRO HAC VICE: ORDER ORDER ADMITTING ATTORNEY BARBARA B. BROWN PRO HAC VICE. ENDORSEMENT: Motion granted. So ordered. (Signed by Judge Leonard B. Sand on 11/8/2010) (lnl) (Entered: 11/08/2010)
22 STIPULATION TO EXTEND TIME TO ANSWER, MOVE OR RESPOND: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, that the time for defendants Goldman, Sachs & Co. and the Goldman Sachs Group, Inc. to answer, move against or otherwise respond to the Complaint in this action is extended from November 15, 2010 to November 22, 2010.(Goldman, Sachs & Co. answer due 11/22/2010; The Goldman Sachs Group, Inc. answer due 11/22/2010.) (Signed by Judge Leonard B. Sand on 11/16/10) (mro) (Entered: 11/16/2010)

11/22/2010 11/22/2010
11/22/2010 11/22/2010 11/22/2010 11/22/2010 11/22/2010 11/23/2010 11/24/2010 12/07/2010
12/08/2010 12/08/2010
12/16/2010 12/20/2010
12/21/2010 12/23/2010

23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. Return Date set for 12/9/2010 at 02:15 PM.(Fasman, Zachary) (Entered: 11/22/2010)
24 MEMORANDUM OF LAW in Support re: 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A Pt. 1, # 2 Exhibit A Pt. 2, # 3 Exhibit A Pt. 3, # 4 Exhibit B, # 5 Exhibit C)(Fasman, Zachary) (Entered: 11/22/2010)
25 NOTICE OF APPEARANCE by Margaret Elizabeth Bartlett on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Bartlett, Margaret) (Entered: 11/22/2010)
26 NOTICE OF APPEARANCE by John Francis Fullerton, III on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Fullerton, John) (Entered: 11/22/2010)
27 NOTICE OF APPEARANCE by Suhana S. Han on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Han, Suhana) (Entered: 11/22/2010)
28 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying The Goldman Sachs Group, Inc. (as Corporate Parent of Goldman, Sachs & Co.) as Corporate Parent. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Bartlett, Margaret) (Entered: 11/22/2010)
29 ANSWER to Complaint. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Bartlett, Margaret) (Entered: 11/22/2010)
30 NOTICE OF APPEARANCE by Barbara B. Brown on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Brown, Barbara) (Entered: 11/23/2010)
31 NOTICE OF APPEARANCE by C. Geoffrey Weirich on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Weirich, C.) (Entered: 11/24/2010)
32 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION for Extension of Time (STIPULATION TO EXTEND THE DATE BY WHICH PLAINTIFFS MUST FILE THEIR OPPOSITION TO DEFENDANTS MOTION TO STAY PLAINTIFF PARISIS CLAIMS AND COMPEL ARBITRATION). Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. Return Date set for 1/13/2010 at 02:15 PM.(Dermody, Kelly) Modified on 12/8/2010 (ka). (Entered: 12/07/2010)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Kelly Dermody to E−MAIL Document No. 32 Stipulation to extend time judgments@nysd.uscourts.gov. This document is not filed via ECF. (ka) (Entered: 12/08/2010)
33 STIPULATION TO EXTEND THE DATE BY WHICH PLAINTIFFS MUST FILE THEIR OPPOSITION TO DEFENDANTS' MOTION TO STAY PLAINTIFF PARISI'S CLAIMS AND COMPEL ARBITRATION: 1. Plaintiffs' opposition will be served no later than December 23, 2010; 2. Defendants' reply will be served no later than January 7, 2011; and 3. The Motion will be returnable on January 13, 2011 at 2:15 pm. (Signed by Judge Leonard B. Sand on 12/8/10) (db) (Entered: 12/08/2010)
34 NOTICE OF APPEARANCE by Mariko Hirose on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi (Hirose, Mariko) (Entered: 12/16/2010)
35 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non−Dispositive Motion/Dispute. Referred to Magistrate Judge James C. Francis. Motions referred to James C. Francis. (Signed by Judge Leonard B. Sand on 12/20/10) (pl) (Entered: 12/20/2010)
36 RULE 26(f) DISCOVERY PLAN REPORT.Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 12/21/2010)
37 STIPULATION TO EXTEND THE DATE BY WHICH PLAINTIFFS MUST FILE THEIR OPPOSITION TO DEFENDANTS' MOTION TO STAY PLAINTIFF PARISI'S CLAIMS AND COMPEL INDIVIDUAL ARBITRATION. 1. Plaintiffs'

12/23/2010
01/07/2011 01/11/2011 01/14/2011 01/18/2011 01/21/2011 01/21/2011 01/21/2011
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opposition will be served no later than seven days after the later of (i) the Court's final decision on Plaintiffs' request to compel discovery related to this Motion and (ii) the production by Defendants of any documents that the Court may require Defendants to produce in response to Plaintiffs' discovery requests related to this Motion; 2. Defendants' reply will be served no later than fourteen days after Plaintiffs' opposition is due; and 3. The Motion will be returnable at 2:15 p.m. on the first Thursday following the date Defendants' reply brief is due. (Signed by Judge Leonard B. Sand on 12/23/10); (djc) (Entered: 12/23/2010)
38 PARTIES' REPORT OUTLINING DISCOVERY PLAN; Pursuant to Rule 26(f)(3) of the Federal Rules of Civil Procedure, Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. ("Goldman Sachs" or "Defendants") and H. Cristina Chen−Oster, et al. ("Plaintiffs"), by counsel, jointly request that the Court enter the following as their Report Outlining Discovery Plan. (Signed by Judge Leonard B. Sand on 12/23/10); (djc) (Entered: 12/23/2010)
39 MOTION for Paul W. Mollica to Appear Pro Hac Vice. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(mro) (Entered: 01/11/2011)
CASHIERS OFFICE REMARK on 39 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 01/07/2011, Receipt Number 925422. (jd) (Entered: 01/11/2011)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Pre−Motion Conference held on 1/14/2011. (mro) (Entered: 01/14/2011)
40 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION. granting 39 Motion for Paul W. Mollica to Appear Pro Hac Vice. (Signed by Judge Leonard B. Sand on 1/18/11) (rjm) (Entered: 01/18/2011)
41 MOTION to Compel Discovery. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Klein, Adam) (Entered: 01/21/2011)
42 MEMORANDUM OF LAW in Support re: 41 MOTION to Compel Discovery.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 01/21/2011)
43 DECLARATION of Adam T. Klein in Support re: 41 MOTION to Compel Discovery.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Klein, Adam) (Entered: 01/21/2011)
44 MEMORANDUM OF LAW in Opposition re: 41 MOTION to Compel Discovery.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 02/04/2011)
45 REPLY MEMORANDUM OF LAW in Support re: 41 MOTION to Compel Discovery.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 02/11/2011)
46 MEMORANDUM AND ORDER, denying 41 Motion to Compel. For the reasons set forth above, plaintiff's motion to compel discovery (Docket no. 41) is denied. (Signed by Magistrate Judge James C. Francis on 3/1/11) Copies Mailed By Chambers. (pl) (Entered: 03/01/2011)
47 NOTICE OF CHANGE OF ADDRESS by Paul W. Mollica on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 203 North LaSalle Street, Suite 2100, Chicago, IL, USA 60601, (312) 924−4888. (Mollica, Paul) (Entered: 03/07/2011)
48 MEMORANDUM OF LAW in Opposition re: 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 03/08/2011)
49 DECLARATION of Adam T. Klein in Opposition re: 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Klein, Adam) (Entered: 03/08/2011)

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50 NOTICE of Supplemental Authority re: 48 Memorandum of Law in Opposition to Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 03/10/2011)
51 PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge James C. Francis on 3/18/2011) (lnl) (Entered: 03/18/2011)
52 REPLY AFFIDAVIT of REDACTED Affidavit of Pricila M. Hidalgo−Liranzo in Support re: 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 03/22/2011)
53 REPLY MEMORANDUM OF LAW in Support re: 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration. REDACTED. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 03/22/2011)
54 SEALED DOCUMENT placed in vault.(nm) (Entered: 03/22/2011)
55 MOTION for Leave to File Surreply In Opposition To Defendants Motion To Compel Arbitration. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Dermody, Kelly) (Entered: 03/25/2011)
56 MEMORANDUM OF LAW in Opposition re: 55 MOTION for Leave to File Surreply In Opposition To Defendants Motion To Compel Arbitration.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Rogers, Theodore) (Entered: 03/28/2011)
57 ORDER granting 55 Motion for Leave to File Document. Plaintiffs having moved for leave to file a surreply in opposition to defendants' motion to compel arbitration, it is hereby ORDERED that plaintiffs' motion (Docket no. 55) is granted. (Signed by Magistrate Judge James C. Francis on 3/30/2011) Copies Mailed By Chambers. (mbe) (Entered: 03/30/2011)
58 NOTICE of Withdrawal of Margaret E. Bartlett and John F. Fullerton, III as Counsel for the Defendants. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 04/26/2011)
59 MEMORANDUM AND ORDER: The defendants' motion to stay the case and compel arbitration of Ms. Parisi's claims (Docket no. 23 ) is denied. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 4/28/2011) Copies Mailed By Chambers. (lnl) (Main Document 59 replaced on 4/28/2011) (jar). (Entered: 04/28/2011)
60 ORDER OF TERMINATIONOF APPEARANCE OF JOHN F. FULLERTON III, ESQ., that because I am no longer associated with S&C and I will not continue to represent Defendants in this matter I respectfully request that my appearance be terminated. Attorney John Francis Fullerton, III terminated. (Signed by Judge Leonard B. Sand on 5/4/11) (pl) (Entered: 05/04/2011)
61 ENDORSED LETTER addressed to Judge Leonard B. Sand from Theodore O. Rogers, Jr. dated 5/10/11 re: Counsel requests that the court confirm that Defendants' time for filing an objection to Magistrate Judge Francis' Order would be tolled during the pendency of a motion for reconsideration, if Defendants were to file such a motion by May 12. ENDORSEMENT: Confirmed as requested. So ordered. (Signed by Judge Leonard B. Sand on 5/11/11) (djc) (Entered: 05/11/2011)
62 MOTION for Reconsideration re; 59 Order on Motion to Stay,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Fasman, Zachary) (Entered: 05/12/2011)
63 MEMORANDUM OF LAW in Support re: 62 MOTION for Reconsideration re; 59 Order on Motion to Stay,.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fasman, Zachary) (Entered: 05/12/2011)

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64 MEMORANDUM OF LAW in Opposition re: 62 MOTION for Reconsideration re; 59 Order on Motion to Stay,.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 05/26/2011)
65 REPLY to Response to Motion re: 62 MOTION for Reconsideration re; 59 Order on Motion to Stay,.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 06/06/2011)
66 MOTION to Strike Plaintiff's Class Allegations. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. Return Date set for 7/7/2011 at 02:15 PM.(Fasman, Zachary) (Entered: 06/13/2011)
67 FILING ERROR − DEFICIENT DOCKET ENTRY − (SEE DOCUMENT #70) − DECLARATION of Theodore O. Rogers, Jr. in Support re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Fasman, Zachary) Modified on 6/14/2011 (lb). (Entered: 06/13/2011)
68 MEMORANDUM OF LAW in Support re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Fasman, Zachary) (Entered: 06/13/2011)
69 CERTIFICATE OF SERVICE of Notice of Motion, Memorandum of Law in Support of Defendants' Motion to Strike and Declaration of Theodore O. Rogers, Jr. served on Outten & Golden, LLP & Lieff, Cabraser, Heimann & Bernstein, LLP on 06/13/11. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 06/13/2011)
70 DECLARATION of Theodore O. Rogers, Jr. in Support re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A Redacted, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Fasman, Zachary) (Entered: 06/13/2011)
71 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement) and Dispositive Motion (i.e., motion requiring a Report and Recommendation). Referred to Magistrate Judge James C. Francis. (Signed by Judge Leonard B. Sand on 6/14/11) (rjm) (Entered: 06/14/2011)
72 NOTICE of NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF DEFENDANTS re: 62 MOTION for Reconsideration re; 59 Order on Motion to Stay,.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit)(Fasman, Zachary) (Entered: 06/28/2011)
73 MEMORANDUM AND ORDER re: 62 MOTION for Reconsideration re: 59 Order on Motion to Stay, filed by Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. For the reasons discussed within, the defendants' motion for reconsideration is denied. (Signed by Magistrate Judge James C. Francis on 7/7/2011) Copies Mailed By Chambers. (ab) (Entered: 07/07/2011)
74 MEMORANDUM OF LAW in Opposition re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 07/14/2011)
75 DECLARATION of Adam T. Klein in Opposition re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Klein, Adam) (Entered: 07/14/2011)
76 MEMORANDUM OF LAW re: 59 Order on Motion to Stay, In Support of Appeal of Magistrate Judge's Memorandum and Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Certificate of Service)(Fasman, Zachary) (Entered: 07/21/2011)
77 DECLARATION of Erin E. LaRuffa in Support re: 76 Memorandum of Law,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..

07/21/2011 07/21/2011 07/21/2011
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(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service)(Fasman, Zachary) (Entered: 07/21/2011)
78 REPLY MEMORANDUM OF LAW in Support re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Certificate of Service)(Fasman, Zachary) (Entered: 07/21/2011)
79 DECLARATION of Supplemental Declaration of Theodore O. Rogers in Support re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 A, # 2 B Pt. 1, # 3 B Pt. 2, # 4 Certificate of Service)(Fasman, Zachary) (Entered: 07/21/2011)
80 CERTIFICATE OF SERVICE of Revised Certificate of Service for Reply Memorandum of Law in Support of Defendants' Motion to Strike Plaintiff's Class Allegations served on Adam T. Klein; Cara E. Greene; Jennifer L. Liu of Outten & Golden, LLP and Kelly M. Dermody; Anne B. Shaver; Heather H. Wong of Lieff, Cabraser, Heimann & Bernstein, LLP on 07/21/2011. Service was made by Court's ECF System. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 07/21/2011)
81 CERTIFICATE OF SERVICE of Revised Certificate of Service for Supplemental Declaration of Theodore O. Rogers, Esq. served on Adam T. Klein; Cara E. Greene; Jennifer L. Liu of Outten & Golden, LLP and Kelly M. Dermody; Anne B. Shaver; Heather H. Wong of Lieff, Cabraser, Heimann & Bernstein, LLP on 07/21/2011. Service was made by Court's ECF System. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 07/21/2011)
82 MOTION to Strike All Class Allegations and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. Return Date set for 8/4/2011 at 02:15 PM.(Fasman, Zachary) (Entered: 07/22/2011)
83 DECLARATION of Theodore O. Rodgers Jr. in Support of Defendants' Motion to Strike All Class Allegations and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim. in Support re: 82 MOTION to Strike All Class Allegations and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Fasman, Zachary) (Entered: 07/22/2011)
84 MEMORANDUM OF LAW in Support re: 82 MOTION to Strike All Class Allegations and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 07/22/2011)
85 RULE 56.1 STATEMENT. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 07/22/2011)
86 CERTIFICATE OF SERVICE of Notice of Motion, Declaration of Theodore O. Rodgers, Jr in Support of Motion, Memorandum of Law in Support of Motion, Rule 56.1 Statement served on Outten & Golden, LLP and Lieff, Cabraser, Heimann & Bernstein, LLP on 7/22/2011. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 07/22/2011)
87 NOTICE OF CHANGE OF ADDRESS by Zachary D. Fasman on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. New Address: Paul Hastings LLP, 75 East 55th Street, New York, New York, United States of America 10022, 212−318−6000. (Fasman, Zachary) (Entered: 07/25/2011)
88 MEMORANDUM OF LAW in Support re: 82 MOTION to Strike All Class Allegations and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. (Corrected). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 07/25/2011)
89 CERTIFICATE OF SERVICE of Corrected Memorandum of Law in Support served on Outten & Golden LLP and Lieff, Cabraser Heimann & Bernstein LLP on 7/25/2011. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group,

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Inc.. (Fasman, Zachary) (Entered: 07/25/2011)
90 DECLARATION of Theodore O. Rogers, Jr. (Corrected) in Support re: 66 MOTION to Strike Plaintiff's Class Allegations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B−Part 1, # 3 Errata B−Part 2, # 4 Certificate of Service)(Fasman, Zachary) (Entered: 07/25/2011)
91 REPLY MEMORANDUM OF LAW in Support re: 66 MOTION to Strike Plaintiff's Class Allegations. (Corrected). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Certificate of Service)(Fasman, Zachary) (Entered: 07/25/2011)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Interim Pretrial Conference held on 7/27/2011. (lmb) (Entered: 07/29/2011)
92 JOINT STIPULATION RE: BRIEFING SCHEDULE, 1. Plaintiffs will provide Defendants with a copy of their proposed First Amended Complaint by August 5, 2011, and Defendants will advise Plaintiffs by August 10, 2011 whether they will consent to its filing, understanding that their consent if provided will not waive any objections to or grounds for requesting relief with respect to that Complaint; and 2. All further submissions on the Motion to Strike are deferred pending Plaintiffs' filing by August 17, 2011 of either a First Amended Complaint based on written consent or a Motion to Amend the Complaint; and 3. Plaintiffs will be permitted to file an opposition to the Appeal no later than August 19, 2011; and 4. Defendants will be permitted to reply in support of the Appeal no later than September 9, 2011; and 5. The Appeal will be returnable on September 22, 2011 at 2:15 p.m., should the Court wish to hear argument. (Signed by Judge Leonard B. Sand on 8/1/11) (pl) Modified on 8/1/2011 (pl). (Entered: 08/01/2011)
93 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − NOTICE of JOINT STIPULATION RE FIRST AMENDED COMPLAINT. Document filed by H. Christina Chen−Oster, Goldman, Sachs & Co., Shanna Orlich, Lisa Parisi, The Goldman Sachs Group, Inc.. (Shaver, Anne) Modified on 8/11/2011 (ka). (Entered: 08/10/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Anne B. Shaver to E−MAIL to judgments@nysd.uscourts.gov., Document No. 93 Joint Stipulation regarding First Amended Complaint. This document is not filed via ECF. (ka) (Entered: 08/11/2011)
94 NOTICE OF APPEARANCE by Carmelyn Pingol Malalis on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi (Malalis, Carmelyn) (Entered: 08/11/2011)
96 JOINT STIPULATION REGARDING FIRST AMENDED COMPLAINT: withdrawing 82 Motion to Strike Document No. 84 . 1. Defendants hereby consent to the filling by Plaintiffs of their proposed First Amended Complaint by August 10, 2011, with the understanding that such consent does not waive any objections to or grounds for requesting relief with respect to that Complaint and specifically reserving all of Defendants' rights with respect to that Complaint; and 2. In light of the filing of the First Amended Complaint, the pending Motion to Strike and for Partial Summary Judgment will be withdrawn and Defendants will file a Motion to Strike and for Partial Summary Judgment directed at the allegations of the First Amended Complaint and 3. Defendants will file their Motion to Strike and for Partial Summary Judgment directed at the allegations of the First Amended Complaint by September 8, 2011, Plaintiffs will file opposition papers by September 29, 2011 and Defendants will file reply papers by October 11, 2011 and 4. Defendant's time to Answer the First Amended Complaint is hereby adjourned until 14 days after the Court's decision on Defendant's Motion to Strike and for Partial Summary Judgment directed at the allegations of the First Amended Complaint. SO ORDERED. (Signed by Judge George B. Daniels on 8/15/2011) (ama) (Entered: 08/16/2011)
Set/Reset Deadlines: Replies due by 10/11/2011. (ama) (Entered: 08/16/2011)
97 MEMORANDUM OF LAW in Opposition re: 76 Memorandum of Law, In Opposition to Defendants' Appeal of Magistrate Judge's Memorandum and Order. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 08/19/2011)

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98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. Return Date set for 10/13/2011 at 02:15 PM.(Fasman, Zachary) (Entered: 09/08/2011)
99 DECLARATION of Theodore O. Rogers, Jr. in Support re: 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B Pt. 1, # 3 Exhibit B Pt. 2, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Fasman, Zachary) (Entered: 09/08/2011)
100 RULE 56.1 STATEMENT. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 09/08/2011)
101 MEMORANDUM OF LAW in Support re: 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 09/08/2011)
102 REPLY MEMORANDUM OF LAW re: 97 Memorandum of Law in Opposition In Support of Defendants' Appeal of Magistrate Judge's Memorandum and Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 09/09/2011)
103 ORDER GRANTING PERMISSION TO FILE COMPLAINT UNDER SEAL. Plaintiffs are granted permission to file under seal the First Amended Class Action Complaint and attached exhibits filed on August 11, 2011. The Clerk is directed to accept a redacted copy of the First Amended Class Action Complaint and attached corrected exhibits for filing on the public docket. (Signed by Judge Leonard B. Sand on 9/12/11) (rjm) (Entered: 09/12/2011)
Transmission to Sealed Records Clerk. Transmitted re: 103 Order to the Sealed Records Clerk for the sealing or unsealing of document or case. (rjm) (Entered: 09/12/2011)
104 FIRST AMENDED COMPLAINT amending 5 Complaint against Goldman, Sachs & Co., The Goldman Sachs Group, Inc. with JURY DEMAND.Document filed by Lisa Parisi, H. Christina Chen−Oster, Shanna Orlich. Related document: 5 Complaint filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi.(lmb) (Entered: 09/21/2011)
105 REPORT AND RECOMMENDATIONS re: 66 MOTION to Strike Plaintiff's Class Allegations. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. Objections to R&R due by 10/17/2011. I recommend that the defendants motion to strike the class allegations of Ms. Chen−Oster (Docket no. 66) be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Leonard B. Sandi Room 1650, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Signed by Magistrate Judge James C. Francis on 9/29/2011) Copies Mailed By Chambers. (pl) Modified on 9/29/2011 (pl). (Entered: 09/29/2011)
106 OPPOSITION BRIEF Plaintiffs' Opposition to Defendants' Motion to Strike All Class Allegations in Plaintiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 09/29/2011)
107 DECLARATION of Adam T. Klein in Support re: 106 Opposition Brief,. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Shaver, Anne) (Entered: 09/29/2011)

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108 COUNTER STATEMENT TO 100 Rule 56.1 Statement. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 09/29/2011)
109 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Adam T. Klein dated 6/21/2011 re: We represent Plaintiffs in the above−captioned gender discrimination putative class action. We write to respond to Defendants' letter dated June 13,2011 requesting a pre−motion conference with the Court to discuss the scope of discovery. ENDORSEMENT: Until the ability of Plaintiffs Parisi and Chen−Oster to assert class claims is finally determined, class discovery shall be limited to the period after January 1, 2007, to the Securities Division, and to the positions of Associate and Vice President. This does not preclude plaintiffs from taking discovery regarding the policies of Goldman Sachs to determine if the same promotion and compensation protocols challenged here are utilized in other divisions and with respect to other levels of employees. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 10/04/2011) (ama) Modified on 10/7/2011 (ama). (Entered: 10/04/2011)
110 Letter addressed to Magistrate James C. Francis from Theodore O Roger, Jr. dated 6/13/11 re: Counsel for the defendants writes pursuant to Rule 37.2 to request a pre−motion conference. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(mro) (Entered: 10/05/2011)
Set/Reset Hearings: Oral Argument set for 10/25/2011 at 11:00 AM in Courtroom 15A, 500 Pearl Street, New York, NY 10007 before Judge Leonard B. Sand. (rjm) (Entered: 10/06/2011)
111 NOTICE OF APPEARANCE by Cyrus E. Dugger on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi (Dugger, Cyrus) (Entered: 10/06/2011)
112 REPLY MEMORANDUM OF LAW in Support re: 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 10/11/2011)
113 NOTICE OF APPEARANCE by Michael Peter Reis on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Reis, Michael) (Entered: 10/14/2011)
114 OBJECTION to 105 Report and Recommendations Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Fasman, Zachary) (Entered: 10/17/2011)
115 NOTICE OF APPEARANCE by Dana Gale Sussman on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi (Sussman, Dana) (Entered: 10/28/2011)
116 RESPONSE re: 114 Objection to Report and Recommendations, Plaintiffs' Memorandum in Response to Defendants' Objections to the Magistrate Judge's Report and Recommendation Regarding Defendants' Motion to Strike Plaintiff Chen−Oster's Class Allegations. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 10/31/2011)
117 ENDORSED LETTER addressed to Judge Leonard B. Sand from Barbara B. Brown dated 11/2/2011 re: counsel for defendants Goldman Sachs requests leave to file a Reply Memorandum consisting of no more than 10 pages. ENDORSEMENT: Reply memo may be filed. Plaintiff may file a response within next 15 days. (Signed by Judge Leonard B. Sand on 11/2/2011). (pl) (Entered: 11/02/2011)
118 ENDORSED LETTER addressed to Judge Leonard B. Sand from Barbara B. Brown dated 11/2/11 re: Counsel for the defendants requests the Court's leave to file a Reply Memorandum of Law in support of Goldman Sachs' objections to the Magistrate Judge's Report and Recommendation regarding defendants' motion to strike. Counsel proposes to submit the Reply within 7 days after receiving leave, if it is granted. ENDORSEMENT: Time to file reply memorandum is granted. So ordered. (Signed by Judge Leonard B. Sand on 11/7/2011) (mro) (Entered: 11/07/2011)

11/09/2011 11/15/2011 11/17/2011 11/18/2011
11/18/2011
12/05/2011
12/05/2011
12/09/2011 12/13/2011 12/14/2011 12/14/2011

119 REPLY re: 116 Response,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Fasman, Zachary) (Entered: 11/09/2011)
120 MEMO ENDORSEMENT on 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: After full briefing and oral argument the motion is denied. (Signed by Judge Leonard B. Sand on 11/14/2011) (cd) (Entered: 11/15/2011)
121 REPLY re: 119 Reply Plaintiffs' Sur−Reply in Response to Defendants' Objections to the Magistrate Judge's Report and Recommendations Regarding Defendants' Motion to Strike Plaintiff Chen−Oster's Class Allegations. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 11/17/2011)
122 TRANSCRIPT of Proceedings re: Argument held on 11/14/2011 before Judge Leonard B. Sand. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/12/2011. Redacted Transcript Deadline set for 12/22/2011. Release of Transcript Restriction set for 2/19/2012.(McGuirk, Kelly) (Entered: 11/18/2011)
123 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Argument proceeding held on 11/14/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/18/2011)
124 TRANSCRIPT of Proceedings re: argument held on 11/14/2011 before Judge Leonard B. Sand. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/29/2011. Redacted Transcript Deadline set for 1/8/2012. Release of Transcript Restriction set for 3/7/2012.(McGuirk, Kelly) (Entered: 12/05/2011)
125 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Argument proceeding held on 11/14/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 12/05/2011)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 12/9/2011. (jfe) (Entered: 12/12/2011)
126 NOTICE OF APPEAL from 120 Memo Endorsement. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. Filing fee $ 455.00, receipt number 465401024331. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (tp) (Entered: 12/14/2011)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 126 Notice of Appeal. (tp) (Entered: 12/14/2011)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 108 Counter Statement to Rule 56.1 filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 50 Notice (Other) filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 17 Order on Motion to Appear Pro Hac Vice, 81 Certificate of Service Other, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 123 Notice of Filing Transcript, 88 Memorandum of Law in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 77 Declaration in Support filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 86 Certificate of Service Other, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 84 Memorandum of Law in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 25 Notice of Appearance filed by

Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 36 Rule 26(f) Discovery Plan Report filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 65 Reply to Response to Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 104 Amended Complaint, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 114 Objection to Report and Recommendations, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 93 Notice (Other), Notice (Other) filed by Shanna Orlich, H. Christina Chen−Oster, Goldman, Sachs & Co., The Goldman Sachs Group, Inc., Lisa Parisi, 51 Protective Order, 76 Memorandum of Law, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 32 MOTION for Extension of Time STIPULATION TO EXTEND THE DATE BY WHICH PLAINTIFFS MUST FILE THEIR OPPOSITION TO DEFENDANTS MOTION TO STAY PLAINTIFF PARISIS CLAIMS AND COMPEL ARBITRATION. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 74 Memorandum of Law in Opposition to Motion filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 64 Memorandum of Law in Opposition to Motion filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 16 MOTION for Kelly M. Dermody to Appear Pro Hac Vice. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 44 Memorandum of Law in Opposition to Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 118 Endorsed Letter, 23 MOTION to Stay Plaintiff Parisi's Claims and Compel Individual Arbitration. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 13 MOTION for Alison Stocking to Appear Pro Hac Vice. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 116 Response, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 106 Opposition Brief, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 61 Endorsed Letter, Set Motion and R&R Deadlines/Hearings, 80 Certificate of Service Other, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 30 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 43 Declaration in Support of Motion, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 96 Order on Motion to Strike, 85 Rule 56.1 Statement filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 70 Declaration in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 102 Reply Memorandum of Law filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 38 Order, 2 Order, 79 Declaration in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 89 Certificate of Service Other filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 66 MOTION to Strike Plaintiff's Class Allegations. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 72 Notice (Other), Notice (Other) filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 45 Reply Memorandum of Law in Support of Motion filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 56 Memorandum of Law in Opposition to Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 48 Memorandum of Law in Opposition to Motion filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 41 MOTION to Compel Discovery. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 115 Notice of Appearance filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 42 Memorandum of Law in Support of Motion filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 97 Memorandum of Law in Opposition filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 83 Declaration in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 73 Memorandum & Opinion, 28 Rule 7.1 Corporate Disclosure Statement filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 55 MOTION for Leave to File Surreply In Opposition To Defendants Motion To Compel Arbitration. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 53 Reply Memorandum of Law in Support of Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 46 Order on Motion to Compel, 20 Order on Motion to Appear Pro Hac Vice, 101 Memorandum of Law in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 21 Order Admitting Attorney Pro Hac Vice, 37 Stipulation and Order, Set Deadlines/Hearings, 58 Notice (Other) filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 105 Report and Recommendations, 103 Order, 19 Order on Motion to Appear Pro Hac Vice, 12 Order on Motion to Appear Pro Hac Vice, 90 Declaration in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 69 Certificate of Service Other, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 68 Memorandum of Law in Support of Motion, filed

12/19/2011

by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 18 Order on Motion to Appear Pro Hac Vice, 33 Stipulation and Order, 113 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 52 Reply Affidavit in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 94 Notice of Appearance filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 62 MOTION for Reconsideration re; 59 Order on Motion to Stay,. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 24 Memorandum of Law in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 3 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 5 Complaint filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 124 Transcript, 82 MOTION to Strike All Class Allegations and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 122 Transcript,, 100 Rule 56.1 Statement filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 26 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 120 Memo Endorsement, 78 Reply Memorandum of Law in Support of Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 4 Notice of Appearance filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 92 Stipulation and Order, Set Deadlines, 63 Memorandum of Law in Support of Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 29 Answer to Complaint filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 60 Order, Add and Terminate Attorneys, 121 Reply, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 49 Declaration in Opposition to Motion, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 59 Order on Motion to Stay, 75 Declaration in Opposition to Motion, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 99 Declaration in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 34 Notice of Appearance filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 71 Order Referring Case to Magistrate Judge, 11 Order Admitting Attorney Pro Hac Vice, 40 Order on Motion to Appear Pro Hac Vice, 91 Reply Memorandum of Law in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 22 Stipulation and Order, Set Deadlines/Hearings,, 67 Declaration in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 27 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 39 MOTION for Paul W. Mollica to Appear Pro Hac Vice. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 7 Affidavit of Service Complaints filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 119 Reply filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 126 Notice of Appeal, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 87 Notice of Change of Address, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 117 Endorsed Letter, 107 Declaration in Support filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 112 Reply Memorandum of Law in Support of Motion, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 109 Endorsed Letter, 57 Order on Motion for Leave to File Document, 14 MOTION for Anne B. Shaver to Appear Pro Hac Vice. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 15 MOTION for Heather H. Wong to Appear Pro Hac Vice. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 10 MOTION for Barbara B. Brown to Appear Pro Hac Vice. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 95 Amended Complaint, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 9 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 35 Order Referring Case to Magistrate Judge, 8 Affidavit of Service Complaints filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 6 Stipulation and Order, Set Deadlines, 125 Notice of Filing Transcript, 31 Notice of Appearance filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 47 Notice of Change of Address filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi, 111 Notice of Appearance filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi were transmitted to the U.S. Court of Appeals. (tp) (Entered: 12/14/2011)
127 NOTICE of Supplemental Authority in Support of Defendants' Motion to Strike all Classs Allegations in Plaintiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim under Title VII re: 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 12/19/2011)

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01/26/2012 02/02/2012 02/09/2012

128 NOTICE of Supplemental Authority re: 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Klein, Adam) (Entered: 12/19/2011)
129 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non−Dispositive Motion/Dispute: Defendants' Motion to Strike All Class Allegations in Plaintiffs' First Amended Complaint and for PartialSummary Judgment as to Plaintiffs' Disparate Impact Claim under Title VII. Referred to Judge James C. Francis IV. (Signed by Judge Leonard B. Sand on 1/4/2012) (ft) (Entered: 01/04/2012)
130 TRANSCRIPT of Proceedings re: Argument held on 12/21/2011 before Judge Leonard B. Sand. Court Reporter/Transcriber: Samuel Mauro, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/30/2012. Redacted Transcript Deadline set for 2/9/2012. Release of Transcript Restriction set for 4/9/2012.(McGuirk, Kelly) (Entered: 01/06/2012)
131 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Argument proceeding held on 12/21/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/06/2012)
132 NOTICE of of Supplemental Exhibits in Support of Defendants' Motion to Strike All Class Allegations in Plaintiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VI re: 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Fasman, Zachary) (Entered: 01/09/2012)
133 MEMORANDUM & ORDER: For the above reasons, we affirm Judge Francis' R&R denying Defendants' motion to strike H. Cristina Chen−Oster's class allegations. 66 Motion to Strike filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Signed by Judge Leonard B. Sand on 1/10/2012) (djc) (Entered: 01/10/2012)
134 REPORT AND RECOMMENDATIONS re: 98 MOTION to Strike. For the reasons set forth above, I recommend that the defendants motion to strike all class allegations and for partial summary judgment as to plaintiffs disparate impact claim be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Leonard B. Sand, Room 1650, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 2/6/2012 (Signed by Magistrate Judge James C. Francis on 1/19/2012) (js) . (Entered: 01/19/2012)
136 MOTION for Carson H. Sullivan to Appear Pro Hac Vice. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(arc) (Entered: 02/07/2012)
135 OBJECTION to 134 Report and Recommendations Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 02/02/2012)
CASHIERS OFFICE REMARK on 136 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 01/26/2012, Receipt Number 1028006. (jd) (Entered: 02/09/2012)

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04/04/2012 04/20/2012
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137 NOTICE OF APPEARANCE by Rachel Geman on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi (Geman, Rachel) (Entered: 02/13/2012)
138 ORDER FOR ADMISSION PRO HAC VICE: granting 136 Motion for Carson H. Sullivan to Appear Pro Hac Vice. (Signed by Judge Leonard B. Sand on 2/15/2012) (jfe) (Entered: 02/15/2012)
139 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − OPPOSITION BRIEF Plaintiffs' Response To Defendants' Objections To The Magistrate Judges Report And Recommendation Regarding Defendants Motion To Strike All Class Allegations In Plaintiffs First Amended Complaint And For Partial Summary Judgment As To Plaintiffs Disparate Impact Claim Under Title VII. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) Modified on 2/17/2012 (ka). (Entered: 02/16/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Anne B. Shaver to RE−FILE Document 139 Opposition Brief,,. Use the event type Response(non−motion) found under the event list Other Answers. (ka) (Entered: 02/17/2012)
140 RESPONSE re: 139 Opposition Brief,,. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 02/17/2012)
141 NOTICE of Supplemental Authority re: 140 Response. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Dermody, Kelly) (Entered: 02/24/2012)
142 MEMO ENDORSEMENT on Motion to Withdraw as Attorney. Plaintiffs, by and through their attorneys, hereby notify the Court that Mariko Hirose is no longer associated with the law firm of Outten & Golden LLP and should be withdrawn as attorney of record in the above−captioned matter. The undersigned requests that all further electronic notices to Mariko Hirose in the above−referenced matter be terminated. Plaintiffs continue to be represented by the undersigned counsel Outten & Golden LLP. ENDORSEMENT: So ordered. (Signed by Judge Leonard B. Sand on 2/28/2012) (mro) (Entered: 02/28/2012)
143 ORDER: A pretrial conference having been held on April 4, 2012, it is hereby ORDERED as follows: 1. Plaintiffs shall file their motion to compel discovery by May 2, 2012. 2. Defendants shall answer the motion by May 30, 2012. 3. Plaintiffs shall reply by June 13, 2012. ( Motions due by 5/2/2012, Responses due by 5/30/2012, Replies due by 6/13/2012.) (Signed by Magistrate Judge James C. Francis on 4/4/2012) Copies Mailed by Chambers. (djc) (Entered: 04/04/2012)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Interim Pretrial Conference held on 4/4/2012. (jfe) (Entered: 04/09/2012)
144 NOTICE of Supplemental Authority re: 135 Objection to Report and Recommendations, 98 MOTION to Strike all Class Allegations in Plainiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII., 140 Response. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Klein, Adam) (Entered: 04/20/2012)
145 MOTION to Compel Goldman Sachs to Produce. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 05/02/2012)
146 MEMORANDUM OF LAW in Support re: 145 MOTION to Compel Goldman Sachs to Produce.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 05/02/2012)
147 DECLARATION of Anne B. Shaver in Support re: 145 MOTION to Compel Goldman Sachs to Produce.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Shaver, Anne) (Entered: 05/02/2012)
148 NOTICE of Supplemental Authority. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fasman, Zachary) (Entered: 05/15/2012)

05/29/2012
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08/08/2012 09/10/2012

149 TRANSCRIPT of Proceedings re: argument held on 5/22/2012 before Judge Leonard B. Sand. Court Reporter/Transcriber: Tara Jones, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/22/2012. Redacted Transcript Deadline set for 7/2/2012. Release of Transcript Restriction set for 8/30/2012.(McGuirk, Kelly) (Entered: 05/29/2012)
150 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Argument proceeding held on 5/22/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/29/2012)
151 RESPONSE in Opposition re: 145 MOTION to Compel Goldman Sachs to Produce.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Brown, Barbara) (Entered: 05/30/2012)
152 DECLARATION of Barbara B. Brown in Opposition re: 145 MOTION to Compel Goldman Sachs to Produce.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5)(Brown, Barbara) (Entered: 05/30/2012)
153 ENDORSED LETTER addressed to Magistrate Judge James C. Francis from Cyrus E. Dugger dated 6/7/2012 re: We write to request an extension of time for Plaintiffs to file a reply brief in support of Plaintiffs' Motion to Compel Discovery of Data and Documents. ENDORSEMENT: Application granted., ( Replies due by 6/27/2012.) (Signed by Magistrate Judge James C. Francis on 6/11/2012) (lmb) (Entered: 06/11/2012)
154 REPLY MEMORANDUM OF LAW in Support re: 145 MOTION to Compel Goldman Sachs to Produce.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 06/27/2012)
155 DECLARATION of Adam T. Klein in Support re: 145 MOTION to Compel Goldman Sachs to Produce.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Klein, Adam) (Entered: 06/27/2012)
156 ENDORSED LETTER addressed to Magistrate Judge James C Francis from Cyrus E Dugger dated 6/27/2012 re: Plaintiffs in the above−referenced matter request that Exhibit A to the Reply Declaration of Adam T. Klein in Support of Plaintiffs' Motion to Compel Discovery of Data and Documents ("Reply Declaration") be filed temporarily under seal pursuant to the Protective Order and Confidentiality Agreement so ordered by the Court on March 18,2011, Docket No. 51. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 6/28/2012) (cd) (Entered: 06/28/2012)
157 SEALED DOCUMENT placed in vault.(mps) (Entered: 07/05/2012)
158 OPINION AND ORDER re: 98 MOTION to Strike all Class Allegations in Plaintiffs' First Amended Complaint and for Partial Summary Judgment as to Plaintiffs' Disparate Impact Claim Under Title VII. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. For the foregoing reasons, Goldman's motion to strike Plaintiff's 23(b)(2) class allegations is GRANTED. Goldman's motions are DENIED in all other respects. (Signed by Judge Leonard B. Sand on 7/16/2012) (djc) (Entered: 07/17/2012)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Discovery Hearing held on 8/8/2012. (pl) (Entered: 08/13/2012)
159 MEMORANDUM AND ORDER granting in part and denying in part 145 Motion to Compel. The plaintiffs' motion to compel (Docket no. 145) is granted to the extent that Goldman Sachs shall provide the requested information for employees in the revenue−generating divisions from the current PeopleSoft database, the CRS

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database, the FRS database, and the MD Selection database, for the time periods identified above. Provided that Goldman Sachs agrees not to argue for purposes of class certification that information in the older PeopleSoft database is materially different from that in the current database, it need not now produce information from the earlier database. With respect to the non−database documents, the plaintiffs' motion is denied without prejudice to renewal when it can be demonstrated that Goldman Sachs has failed to produce specific types of relevant documents. (Signed by Magistrate Judge James C. Francis on 9/10/2012) Copies Mailed By Chambers. (ft) (Entered: 09/10/2012)
160 Letter addressed to Magistrate James C Francis from Barbara Berish Brown dated 8/10/2012 re: plaintiffs request for discovery extending back 12 years. Document filed by Goldman, Sachs & Co.(cd) (Entered: 09/13/2012)
161 ANSWER to 104 Amended Complaint,. Document filed by The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 10/09/2012)
162 ORDER OF AUTOMATIC REFERRAL TO MEDIATION (See M−10−468 Order filed January 3, 2011). Please reference the following when corresponding with the Mediation Office. E−mail MediationOffice@nysd.uscourts.gov, telephone (212) 805−0643, and facsimile (212) 805−0647. Mediator to be Assigned by 10/22/2012. (Signed by Judge Loretta A. Preska on 1/3/11) (jno) (Entered: 10/10/2012)
163 NOTICE OF CASE REASSIGNMENT to Judge Jesse M. Furman. Judge Leonard B. Sand is no longer assigned to the case. (pgu) (Entered: 10/15/2012)
164 ORDER: It is hereby ORDERED that unless notified otherwise by the Court, any Scheduling Order or Case Management Plan remains in effect notwithstanding the case's transfer, except that any currently scheduled conference or oral argument with the Court is adjourned until further notification. Each party must submit a letter to the Court, not to exceed five pages, updating the Court on the status of the case no later then 11/5/2012. (Signed by Judge Jesse M. Furman on 10/22/2012) (tro) (Entered: 10/23/2012)
NOTICE OF MEDIATOR ASSIGNMENT − Notice of assignment of mediator. Mediator Schedule due by 11/26/2012.(jno) (Entered: 10/25/2012)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 11/5/2012. (ja) (Entered: 11/09/2012)
165 Letter addressed to Judge Jesse M. Furman from Adam T. Klein and Kelly M. Dermody dated 11/5/2012 re: We represent Plaintiffs in the above−referenced action and submit this status letter to the Court pursuant to your Honor's October 22, 2012 Order. Dkt. No. 164.. (mt) (Entered: 11/09/2012)
166 ENDORSED LETTER addressed to Judge Jesse M. Furman from Barbara Berish Brown and Theodore O. Rogers, Jr. dated 11/5/2012 re: Paul Hastings LLP, together with Sullivan & Cromwell LLP, represent Defendants Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. (collectively, "Goldman Sachs") in this matter. We write pursuant to the Court's October 22, 2012 Order, to provide information concerning the status of the case. Because of the confidential nature of the "Status of Settlement Negotiations" section below, we respectfully request that the Court treat this letter as confidential, including by not posting it on the Court's CM/ECF system. ENDORSEMENT: In light of the common law right of access to judicial documents, Defendants' request to keep this letter confidential is DENIED, as there is nothing confidential or sensitive about the information disclosed herein. (Signed by Judge Jesse M. Furman on 11/9/2012) (mt) (Entered: 11/09/2012)
167 ORDER: Counsel having submitted competing proposed case management schedules, it is hereby ORDERED as follows: 1. Database production. Defendants shall complete production of data (in complete, readable, and useable form) from the PeopleSoft, Compensation Recommendations System, Firmwide Review System, and MD Selection databases by February 15, 2013. 2. Non−expert discovery. All non−expert discovery, including all 30(b) (6) depositions, shall be completed by July 15, 2013. 3. Expert discovery. a. Plaintiffs shall produce their expert reports by June 14, 2013. b. Depositions of plaintiffs' experts shall be completed by July 15, 2013. c. Defendants shall produce their expert reports by July 31, 2013. d. Depositions of

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defendants' experts shall be completed by August 30, 2013. e. Plaintiffs shall submit expert rebuttal reports by September 16, 2013. 3. Class certification briefing schedule. a. Plaintiffs shall move for class certification by October 15, 2013. b. Defendants shall answer the class certification motion by November 29, 2013. c. Plaintiffs shall reply by December 20, 2013., ( Deposition due by 8/30/2013., Discovery due by 7/15/2013., Motions due by 10/15/2013., Responses due by 11/29/2013., Replies due by 12/20/2013.) (Signed by Magistrate Judge James C. Francis on 11/20/2012) Copies Mailed By Chambers. (lmb) (Entered: 11/20/2012)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 3/5/13 at 10:30 a.m. at Mediator's Office.(jno) (Entered: 11/29/2012)
MEDIATOR SESSION NOT HELD Mediator Session scheduled for 3/5/2013 at Mediator's Office was NOT held.(jno) (Entered: 12/10/2012)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 3/6/13 at 10:00 a.m. at Mediator's Office.(jno) (Entered: 12/10/2012)
Mediator Session Held on 03/06/2013 at Mediator's Office.(ms) (Entered: 03/08/2013)
168 ENDORSED LETTER addressed to Magistrate Judge James C. Francis from Adam T. Klein dated 3/13/2013 re: I write on behalf of both plaintiffs and defendants, to request a 90−day continuance of the case management schedule entered by Your Honor's Order dated November 20, 2012, in light of the ongoing mediation ordered by Judge Furman. ENDORSEMENT: Application denied without prejudice to the parties' submitting a revised schedule that modifies interim deadlines but does not alter the date upon which the class certification motion must be fully submitted (December 20, 2013). (Signed by Magistrate Judge James C. Francis on 3/14/2013) (lmb) (Entered: 03/14/2013)
169 FIRST MOTION for Lisa J. Cisneros to Appear Pro Hac Vice for Plaintiffs. Filing fee $ 200.00, receipt number 0208−8339977. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Good Standing)(Geman, Rachel) (Entered: 03/20/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 169 FIRST MOTION for Lisa J. Cisneros to Appear Pro Hac Vice for Plaintiffs. Filing fee $ 200.00, receipt number 0208−8339977. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 03/20/2013)
170 ORDER granting 169 Motion for Lisa J. Cisneros to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 03/21/2013)
171 OPINION of USCA as to 126 Notice of Appeal, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. USCA Case Number 11−5229−cv. Appeal from an order of the United States District Court for the Southern District of New York denying Defendants' motion to compel arbitration. The District Court denied the motion because it believed that individual arbitration would preclude the Plaintiff from vindicating a right under Title VII to be free from a pattern or practice of discrimination. We reverse the District Court's ruling and remand for further proceedings consistent with this opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 03/21/2013. (nd) (Entered: 03/21/2013)
172 AMENDED CASE MANAGEMENT ORDER: Motions due by 10/15/2013. Responses due by 11/29/2013. Replies due by 12/20/2013. Deposition due by 6/16/2014. Discovery due by 6/16/2014. (Signed by Magistrate Judge James C. Francis on 3/25/2013) (lmb) Modified on 3/25/2013 (lmb). (Entered: 03/25/2013)
173 ENDORSED LETTER addressed to Magistrate Judge James C. Francis from Cyrus E. Dugger dated 4/9/2013 re: Plaintiffs in the above−referenced matter request permission to file a letter and associated exhibits under seal pursuant to the Protective Order and Confidentiality Agreement so ordered by the Court on March 18, 2011, Docket No. 51. ENDORSEMENT: Application granted. (Signed by Magistrate Judge

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James C. Francis on 4/10/2013) (lmb) (Entered: 04/10/2013)
174 SEALED DOCUMENT placed in vault.(nm) (Entered: 04/12/2013)
175 MANDATE of USCA (Certified Copy) as to 126 Notice of Appeal, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. USCA Case Number 11−5229. Ordered, Adjudged and Decreed that the order of the District Court is REVERSED and the case is REMANDED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 4/15/2013. (Attachments: # 1 Opinion)(nd) (Entered: 04/15/2013)
Transmission of USCA Mandate/Order to the District Judge re: 175 USCA Mandate,. (nd) (Entered: 04/15/2013)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 4/15/2013. (mro) (Entered: 04/18/2013)
176 ENDORSED LETTER addressed to Magistrate Judge James C. Francis from Barbara Berish Brown dated 4/22/2013 re: Defendants in the above−referenced matter request permission to file a letter under seal pursuant to the Protective Order and Confidentiality Agreement ordered by the Court on March 18, 2011 (Docket No. 51). ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 4/22/2013) (lmb) (Entered: 04/22/2013)
177 ENDORSED LETTER addressed to Magistrate Judge James C. Francis from Cyrus E. Dugger dated 4/25/2013 re: Plaintiffs in the above−referenced matter request permission to file a letter under seal pursuant to the Protective Order and Confidentiality Agreement so ordered by the Court on March 18, 2011, Docket No. 51. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 4/29/2013) (lmb) (Entered: 04/30/2013)
178 SEALED DOCUMENT placed in vault.(mps) (Entered: 04/30/2013)
179 SEALED DOCUMENT placed in vault.(nm) (Entered: 05/15/2013)
181 NOTICE OF CASE REASSIGNMENT to Judge Analisa Torres. Judge Jesse M. Furman is no longer assigned to the case. (pgu) (Entered: 05/24/2013)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Discovery Hearing held on 5/31/2013. (ja) (Entered: 06/07/2013)
182 Costs Taxed as to 175 USCA Mandate, USCA Case Number 11−5229. in the amount of $1,585.77. Docketed as Judgment #13,1171 on 6/6/2013 in favor of Appellants Goldman, Sachs & Co., The Goldman Sachs Group, Inc against Appellees Lisa Parisi, Shanna Orlich, H. Christina Chen−Oster. (nd) (Entered: 06/06/2013)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 6/11/2013. (lmb) (Entered: 06/18/2013)
183 MEMORANDUM AND ORDER: For the reasons discussed above, the plaintiffs' application for an order compelling Goldman Sachs to disclose information relating to the Diversity Objects fields is denied without prejudice to renewal if and when the plaintiffs are able to proffer evidence that would negate Goldman Sachs' claim of privilege. (Signed by Magistrate Judge James C. Francis on 6/18/2013) Copies Mailed By Chambers. (lmb) (Entered: 06/18/2013)
184 AMENDED CASE MANAGEMENT ORDER: Motions due by 12/16/2013. Responses due by 2/13/2014. Replies due by 3/6/2014. Deposition due by 8/29/2014. Discovery due by 8/29/2014. No further extensions. (Signed by Magistrate Judge James C. Francis on 6/19/2013) (lmb) (Entered: 06/24/2013)
185 TRANSCRIPT of Proceedings held on 5/31/2013 before Magistrate Judge James C. Francis IV. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/22/2013. Redacted Transcript Deadline set for 8/1/2013. Release of Transcript Restriction set for 9/27/2013.(jab) (Entered: 06/26/2013)

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186 TRANSCRIPT of Proceedings re: Proceedings held on 5/31/2013 before Magistrate Judge James C. Francis IV. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/5/2013. Redacted Transcript Deadline set for 8/15/2013. Release of Transcript Restriction set for 10/11/2013.(sdi) (Entered: 07/10/2013)
187 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Proceedings proceeding held on 5/31/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(sdi) (Entered: 07/10/2013)
188 LETTER addressed to Judge Analisa Torres from Cyrus E. Dugger dated 7/16/2013 re: We represent the Plaintiffs in the above−captioned matter. Plaintiffs write to notify the Court that Dana Sussman is no longer associated with the law firm of Outten & Golden LLP as of December 21, 2012. Plaintiffs request that Ms. Sussman be withdrawn as attorney of record in the above− captioned matter and that all further electronic notices in the matter to Ms. Sussman be terminated. Plaintiffs continue to be represented by Outten & Golden, LLP and Lieff Cabraser Heimann & Bernstein, LLP. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (rsh) (Entered: 07/17/2013)
189 SEALED DOCUMENT placed in vault.(nm) (Entered: 08/15/2013)
190 ENDORSED LETTER addressed to Magistrate Judge James C. Francis from Kelly M. Dermody dated 8/20/2013 re: Pursuant to the Protective Order and Confidentiality Agreement so ordered by the Court on March 18, 2011, Docket No. 51, Plaintiffs in the above−referenced matter request permission to file under seal their reply letter and accompanying exhibits in support of their July 29, 2013 letter seeking discovery relief. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 8/23/2013) (lmb) (Entered: 08/23/2013)
Transmission to Sealed Records Clerk. Transmitted re: 190 Endorsed Letter, to the Sealed Records Clerk for the sealing or unsealing of document or case. (lmb) (Entered: 08/23/2013)
191 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated September 10, 2013 re: Schedule. Document filed by H. Christina Chen−Oster, Shanna Orlich.(Dermody, Kelly) (Entered: 09/10/2013)
192 LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. dated September 11, 2013 re: Response to Letter from Plaintiffs' Counsel. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Rogers, Theodore) (Entered: 09/11/2013)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Discovery Hearing held on 9/12/2013. (sc) (Entered: 09/16/2013)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Discovery Hearing held on 9/12/2013. (sc) (Entered: 10/28/2013)
193 TRANSCRIPT of Proceedings re: proceedings held on 9/12/2013 before Magistrate Judge James C. Francis IV. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/18/2013. Redacted Transcript Deadline set for 10/28/2013. Release of Transcript Restriction set for 12/26/2013.(sdi) (Entered: 09/23/2013)
194 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceedings proceeding held on 9/12/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely

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electronically available to the public without redaction after 90 calendar days...(sdi) (Entered: 09/23/2013)
195 NOTICE of Stipulation and Proposed Amended Case Management Order. Document filed by H. Christina Chen−Oster, Goldman, Sachs & Co., Shanna Orlich, Lisa Parisi, The Goldman Sachs Group, Inc.. (Shaver, Anne) (Entered: 09/30/2013)
196 MEMORANDUM AND ORDER: For the reasons stated above, Goldman Sachs shall provide plaintiffs' counsel with all internal complaints that are "conceivably related" to gender discrimination made by female employees in the four revenue−generating divisions, regardless of whether the complainant is a member of the putative class. In accordance with the discussion above, "conceivably related" shall include, but is not limited to, any complaints that contain explicit gender discrimination language as well as any complaints that pertain to compensation, promotion, or performance evaluation where a female employee compared herself or a female colleague to one or more male colleagues. All complaints shall be turned over to plaintiffs' counsel subject to the protective order guiding discovery in this case, without the redaction of names. (Signed by Magistrate Judge James C. Francis on 10/15/2013) Copies Mailed By Chambers. (tn) (Entered: 10/15/2013)
197 LETTER addressed to Magistrate Judge James C. Francis IV from Barbara Berish Brown and Theodore O. Rogers, Jr dated 8/15/13 re: Counsel writes in response to plaintiffs 7/29/13 letter requesting a pre−motion conference with the Court for the purpose of seeking to compel discovery of information concerning internal complaints by Goldman Sachs employees extending to issues unrelated to gender and raised by employees who are not members of the punitive class. ***Accepted for filing as a docket and filed by Chambers. (mro) (Entered: 10/24/2013)
198 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated 8/20/13 re: Counsel writes in response to defendants opposition to Plaintiffs 7/29/13 letter requesting discovery relief. ***Accepted for filing as a docket and filed by Chambers. (mro) (Entered: 10/24/2013)
199 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Cyrus E. Dugger dated 10/28/2013 re: Counsel for plaintiffs requests permission to file a letter and associated exhibits under seal pursuant to the Protective Order and Confidentiality Agreement so ordered by the Court on March 18, 2011, ECF No. 50. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 10/28/2013) (tn) (Entered: 10/28/2013)
200 SEALED DOCUMENT placed in vault.(mps) (Entered: 10/30/2013)
201 STIPULATION AND AMENDED CASE MANAGEMENT ORDER: Depositions of plaintiffs' class experts due by 11/20/2013. Depositions of defendants' class experts due by 1/3/2014. Motion for class certification due by 1/17/2014; Responses due by 2/17/2014; and Replies due by 3/6/2014. All non−expert discovery due by 8/29/2014, and as further set forth in this Order. No further extensions. (Signed by Magistrate Judge James C. Francis on 10/30/2013) (tn) Modified on 11/1/2013 (tn). (Entered: 10/30/2013)
202 MOTION for Neal D. Mollen to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Certificate of Good Standing Supreme Court of Viginia, # 2 Certificate of Good Standing District of Columbia Court of Appeals, # 3 Text of Proposed Order)(Mollen, Neal) (Entered: 11/11/2013)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 202 MOTION for Neal D. Mollen to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff.. The filing is deficient for the following reason(s): Filing fee not paid. Pay the filing fee by selecting the Pro Hac Vice Fee Payment event from the Other Documents menu item. (wb) (Entered: 11/12/2013)
Pro Hac Vice Fee Paid electronically via Pay.gov: for 202 MOTION for Neal D. Mollen to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff.. Filing fee $ 200.00. Pay.gov receipt number 02089065308, paid

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on 11/11/2013. (wb) (Entered: 11/12/2013)
203 ORDER granting 202 Motion for Neal D. Mollen to Appear Pro Hac Vice (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) Modified on 11/13/2013 (tro). (Entered: 11/13/2013)
204 SEALED DOCUMENT placed in vault.(mps) (Entered: 11/14/2013)
205 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Cyrus E. Dugger dated 11/22/2013 re: Counsel for plaintiffs request permission to file a letter and associated exhibits under seal pursuant to the Protective Order and Confidentiality Agreement. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 11/27/2013) (tn) (Entered: 12/03/2013)
206 SEALED DOCUMENT placed in vault.(mps) (Entered: 12/03/2013)
207 MEMORANDUM AND ORDER: For the reasons set forth above, plaintiffs shall answer Defendants' Second Interrogatories nos. 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, and 24 within two weeks of the date of this order. Plaintiffs need not answer Defendants Second Interrogatories nos. 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, or 23. (Signed by Magistrate Judge James C. Francis on 12/11/2013) Copies Mailed By Chambers. (tn) (Entered: 12/11/2013)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 12/11/2013. (sc) (Entered: 12/12/2013)
208 LETTER addressed to Magistrate Judge James C. Francis IV from Barbara Berish Brown and Theodore O. Rogers dated 11/12/2013 re: Goldman Sachs requests that this Court issue an order compelling Plaintiffs to respond to Goldman Sachs' Second Set of Interrogatories. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ***Docket and file instructions from chambers. (tn) (Entered: 12/12/2013)
209 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated 11/25/2013 re: Plaintiffs request that the Court deny Defendants' motion to compel. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. ***Docket and file instructions from chambers. (tn) Modified on 12/12/2013 (tn). (Entered: 12/12/2013)
210 LETTER addressed to Magistrate Judge James C. Francis IV from Barbara Berish Brown and Theodore O. Rogers dated 12/9/2013 re: Defendants write in reply to Plaintiffs 11/25/2013 letter in opposition to Defendants' request for an order directing Plaintiffs to respond to Goldman Sachs' Second Set of Interrogatories. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ***Docket and file instructions from chambers. (tn) Modified on 12/12/2013 (tn). (Entered: 12/12/2013)
211 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated 12/11/2013 re: The parties propose the scheduling order be amended as follows: Depositions of defendants' class experts due by 1/8/2014; Plaintiff's motion for class certification due by 1/21/2014, Defendants' opposition due by 2/21/2014; Plaintiffs' reply due by 3/10/2014; Discovery due by 8/29/2014. ENDORSEMENT: The schedule set forth above is adopted. (Signed by Magistrate Judge James C. Francis on 12/12/2013) (tn) (Entered: 12/12/2013)
Set/Reset Deadlines: Deposition due by 1/8/2014. Discovery due by 8/29/2014. Motions due by 1/21/2014. Responses due by 2/21/2014. Replies due by 3/10/2014. (tn) (Entered: 12/12/2013)
212 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Lisa Cisneros dated 1/2/2014 re: Plaintiffs request permission to file a letter and associated exhibits under seal. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 1/2/2014) (tn) (Entered: 01/02/2014)
213 NOTICE OF APPEARANCE by Robin D. Fessel on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fessel, Robin) (Entered: 01/03/2014)
214 SEALED DOCUMENT placed in vault.(mps) (Entered: 01/06/2014)

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Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 1/6/2014. (sc) (Entered: 01/06/2014)
215 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated 1/10/2014 re: the parties have agreed on a new schedule for the class certification briefing. ENDORSEMENT: The above schedule is adopted. With the exception of Dr. Chatman, plaintiff shall submit expert rebuttal reports by January 28, 2014, subject to supplementation with information from the "priority" documents. Dr. Chatman's rebuttal report shall be submitted by February 18, 2014. (Motions due by 2/18/2014, Responses due by 3/18/2014, Replies due by 4/4/2014.) (Signed by Magistrate Judge James C. Francis on 1/14/2014) (tn) (Entered: 01/14/2014)
216 ORDER. It is hereby ORDERED as follows: 1. Defendants need not produce documents describing actions taken as a result of the ELG review. To the extent that plaintiffs seek data about changes from preliminary to final personnel decisions, they already have that information. To the extent they seek information linking such decisions to input from the ELG, the information is protected by the attorney−client privilege. 2. Defendants shall produce documents describing the logistics of the ELG review if they have not already done so. 3. Defendants shall produce a privilege log reflecting all communications between the ELG and managers concerning the ELG review process. Documents may be logged categorically, and counsel are urged to agree on a protocol for categorization. (Signed by Magistrate Judge James C. Francis on 12/3/2013) Copies Mailed By Chambers. (rjm) (Entered: 01/15/2014)
217 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Anne B. Shaver dated 2/6/2014 re: Counsel for plaintiffs request to file a letter and associated exhibits under seal. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 2/7/2014) (tn) (Entered: 02/07/2014)
218 LETTER addressed to Judge Analisa Torres from Barbara B. Brown dated February 12, 2014 re: Motions to Strike Expert Reports. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 02/12/2014)
219 LETTER addressed to Judge Analisa Torres from Anne Shaver dated February 13, 2014 re: Chen−Oster, et al. v. Goldman, Sachs & Co., et al., No. 10 Civ. 6950 (AT) (JCF). Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 02/13/2014)
220 LETTER addressed to Judge Analisa Torres from Barbara B. Brown and Theodore O. Rogers, Jr. dated February 14, 2014 re: Corrected Letter re: Motions to Strike Expert Reports. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 02/14/2014)
221 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Robin D. Fessel dated 2/13/2014 re: Counsel requests permission to file under seal a letter and associated exhibits being submitted by Goldman Sachs to Your Honor in response to a submission made on February 6, 2014 by Plaintiffs that has been sealed. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 2/18/2014) (tn) (Entered: 02/18/2014)
222 MEMO ENDORSEMENT on re: 220 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: Counsel shall jointly propose a schedule for briefing the motions to strike expert reports; The motions shall be submitted to me. The motion for class certification shall be served and filed Thirty (30) days after the motions to strike are decided. (Signed by Magistrate Judge James C. Francis on 2/18/2014) (tn) (Entered: 02/18/2014)
223 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated February 18, 2014 re: Request for a Telephonic Conference. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Dermody, Kelly) (Entered: 02/18/2014)
224 MEMORANDUM AND ORDER: Accordingly, the plaintiffs' application is denied. (Signed by Magistrate Judge James C. Francis on 2/18/2014) Copies Mailed By Chambers. (tn) (Entered: 02/18/2014)

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225 LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. and Barbara Berish Brown dated February 25, 2014 re: Motion Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Rogers, Theodore) (Entered: 02/25/2014)
226 MEMO ENDORSEMENT on re: 225 Letter filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 2/26/2014) (djc) (Entered: 02/26/2014)
Set/Reset Deadlines: Responses due by 3/17/2014. Replies due by 3/24/2014. (djc) (Entered: 02/26/2014)
Set/Reset Deadlines: Motions due by 3/7/2014. (djc) (Entered: 03/04/2014)
227 NOTICE OF WITHDRAWAL. To the Clerk of this Court and all parties of record: Please enter the withdrawal of Zachary D. Fasman of Proskauer Rose LLP (formerly of Paul Hastings LLP) as counsel of record in the above−referenced case for defendants Goldman Sachs & Company, and THE GOLDMAN SACHS GROUP, INC. Attorney Zachary D. Fasman terminated. (Signed by Judge Analisa Torres on 3/6/2014) (rjm) (Entered: 03/06/2014)
228 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. dated 3/7/2014 re: Accordingly, we respectfully request permission to file the motions and related reports, which are enclosed, under seal. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 3/10/2014) (djc) (Entered: 03/10/2014)
229 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Adam T. Klein dated 3/17/2014 re: Counsel requests to file plaintiffs' opposition briefs, as well as the associated declaration and exhibits, under seal. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 3/18/2014) (tn) (Entered: 03/18/2014)
230 SEALED DOCUMENT placed in vault.(nm) (Entered: 03/19/2014)
231 NOTICE OF APPEARANCE by Melissa Lardo Stewart on behalf of H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Stewart, Melissa) (Entered: 03/20/2014)
232 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. dated 3/24/2014 re: We respectfully request permission to file the enclosed reply papers under seal. ENDORSEMENT: Application granted. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 3/25/2014) (kgo) (Entered: 03/25/2014)
233 LETTER addressed to Judge Analisa Torres from Cara E. Greene dated April 3, 2014 re: Withdrawal of Counsel of Record, Cyrus E. Dugger. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Greene, Cara) (Entered: 04/03/2014)
234 MEMO ENDORSEMENT on re: 233 Letter filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi. ENDORSEMENT: Plaintiffs' request that Cyrus E. Dugger be withdrawn as counsel is GRANTED. The Clerk of Court is directed to remove his appearance from the docket and name from the ECF distribution list. So ordered. Attorney Cyrus E. Dugger terminated. (Signed by Judge Analisa Torres on 4/3/2014) (rjm) (Entered: 04/04/2014)
235 NOTICE of Joint Stipulation and Proposed Order. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 04/15/2014)
236 JOINT STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND ORDERED as follows: 1. Defendants hereby withdraw their Motions to Strike; 2. Defendants may submit expert sur−rebuttal reports addressing the topics in Dr. Cascio and Dr. Farber's rebuttal reports that Defendants challenged as improper rebuttal material in their Motions to Strike (Dkt. Nos. 228, 229); 3. Defendants' expert sur−rebuttal reports shall each be limited to text of25 pages or less; 4. Defendants' expert sur−rebuttal reports shall be served on Plaintiffs no later than May 7, 2014; 5. Defendants' filing of the sur−rebuttal reports will be the final expert submission, unless the parties stipulate to further submissions or Plaintiffs receive permission

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from Judge Francis to serve further rebuttal; 6. The parties will forego deposition testimony from experts in connection with the reports filed through the sur−rebuttal reports; and 7. The parties shall meet and confer on a schedule for the briefing of Plaintiffs' motion for class certification and shall file a proposed schedule or schedules with the Court by Friday, April 18, 2014. (Signed by Magistrate Judge James C. Francis on 4/16/2014) (djc) Modified on 4/17/2014 (djc). Modified on 4/18/2014 (djc). (Entered: 04/17/2014)
237 LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. and Barbara Berish Brown dated 4/18/2014 re: Proposed Briefing Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Reis, Michael) (Entered: 04/18/2014)
238 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated April 18, 2014 re: Proposed Briefing Schedule. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 04/18/2014)
239 MEMO ENDORSEMENT on re: 238 Letter filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi. ENDORSEMENT: The schedule set forth above is adopted as modified. (Signed by Magistrate Judge James C. Francis, IV on 4/21/2014) (djc) Modified on 4/22/2014 (djc). (Entered: 04/21/2014)
Set/Reset Deadlines: Motions due by 5/19/2014. Responses due by 6/27/2014. Replies due by 7/18/2014. (djc) (Entered: 04/21/2014)
240 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement) and Dispositive Motion (i.e., motion requiring a Report and Recommendation). Particular Motion: Plaintiffs' Motion for Class Certification. Referred to Magistrate Judge James C. Francis. (Signed by Judge Analisa Torres on 5/20/2014) (rjm) (Entered: 05/21/2014)
241 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody and Adam Klein dated 5/19/2014 re: We write to request the Court's permission to file a very brief response to Defendants' expert sur−rebuttal reports. ENDORSEMENT: Application granted. I am interested in a complete record. Now that defendants have the sur−rebuttal reports, they can address them in their response to the class motion. The stipulation does not alter this analysis, as the word "or" implies non−exclusive alternatives. Notably, the stipulation does not use the construction "either...or." SO ORDERED. (Signed by Magistrate Judge James C. Francis on 5/30/2014) (kgo) (Entered: 05/30/2014)
243 ORDER striking documents from the record....that Document No. 242 is stricken from the record. My order dated June 10, 2014, Docket no. 242, is stricken, as it contains confidential information that should be filed under seal. (Signed by Magistrate Judge James C. Francis on 6/10/2014) Copies Mailed By Chambers. (tro) (Entered: 06/10/2014)
***STRICKEN DOCUMENT. Deleted document number 242 from the case record. The document was stricken from this case pursuant to 243 Order Striking Document from Record. (tro) (Entered: 06/10/2014)
244 SEALED DOCUMENT placed in vault.(rz) (Entered: 06/10/2014)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 6/16/2014. (Bacchus, Michael) (Entered: 06/17/2014)
245 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. dated 6/26/2014 re: We write, on behalf of both Plaintiffs and Defendants, to confirm the scheduling matters decided by Your Honor during the conference call on June 17, 2014. ENDORSEMENT: The Schedule set forth above is adopted. SO ORDERED., ( Responses due by 7/3/2014, Replies due by 7/24/2014.) (Signed by Magistrate Judge James C. Francis on 6/26/2014) (ama) (Entered: 06/26/2014)
246 MOTION to Certify Class . Document filed by H. Christina Chen−Oster, Shanna Orlich.(Klein, Adam) (Entered: 07/01/2014)

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247 MEMORANDUM OF LAW in Support re: 246 MOTION to Certify Class . . Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
248 DECLARATION of Anne B. Shaver in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Attachments: # 1 Exhibit A.1, # 2 Exhibit A.2, # 3 Exhibit A.3, # 4 Exhibit A.4, # 5 Exhibit A.5, # 6 Exhibit A.6, # 7 Exhibit A.7, # 8 Exhibit A.8, # 9 Exhibit A.9, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit D, # 13 Exhibit E, # 14 Exhibit F, # 15 Exhibit G, # 16 Exhibit H, # 17 Exhibit I, # 18 Exhibit J, # 19 Exhibit K, # 20 Exhibit L, # 21 Exhibit M, # 22 Exhibit N, # 23 Exhibit O, # 24 Exhibit P, # 25 Exhibit Q, # 26 Expert Report, # 27 Expert Report)(Klein, Adam) (Entered: 07/01/2014)
249 DECLARATION of Kelly M. Dermody in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 07/01/2014)
250 DECLARATION of Adam T. Klein in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 07/01/2014)
251 DECLARATION of Lisa Albanese in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
252 DECLARATION of Leslie Baggett in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
253 DECLARATION of Christina Chen−Oster in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
254 DECLARATION of Allison Gamba in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
255 DECLARATION of Shanna Orlich in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
256 DECLARATION of Lisa Parisi in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
257 DECLARATION of Denise Shelley in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
258 DECLARATION of Katalin Tischhauser in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
259 DECLARATION of Henry S. Farber in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
260 DECLARATION of Wayne F. Cascio in Support re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich. (Klein, Adam) (Entered: 07/01/2014)
261 LETTER addressed to Magistrate Judge James C. Francis IV from Adam T. Klein dated July 18, 2014 Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Klein, Adam) (Entered: 07/18/2014)
262 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Barbara B. Brown and Theodore O. Rogers, Jr. dated 7/17/2014 re: Under the schedule approved by Your Honor, Defendants' reply papers in support of their June 13, 2014 motions to exclude testimony of Plaintiffs' expert reports are due today.

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Defendants have previously requested that Your Honor grant an application to file the original motion papers under seal, and we respectfully request permission to file the enclosed reply papers under seal as well. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 7/18/2014) (djc) (Entered: 07/18/2014)
263 MEMO ENDORSEMENT on re: 261 Letter filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi. ENDORSEMENT: Application granted. (Signed by Magistrate Judge James C. Francis on 7/21/2014) (djc) Modified on 7/21/2014 (djc). (Entered: 07/21/2014)
Set/Reset Deadlines: Replies due by 7/29/2014. (djc) (Entered: 07/21/2014)
264 MEMORANDUM OF LAW in Opposition re: 246 MOTION to Certify Class . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification −− Appendix A)(Han, Suhana) (Entered: 07/25/2014)
265 DECLARATION of Theodore O. Rogers, Jr. in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 4A, # 6 Exhibit 4B, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9 (1 of 2), # 12 Exhibit 9 (2 of 2), # 13 Exhibit 9A, # 14 Exhibit 10, # 15 Exhibit 10A, # 16 Exhibit 10B, # 17 Exhibit 10C, # 18 Exhibit 10D, # 19 Exhibit 11, # 20 Exhibit 11A, # 21 Exhibit 11B, # 22 Exhibit 12, # 23 Exhibit 13, # 24 Exhibit 14, # 25 Exhibit 15, # 26 Exhibit 16, # 27 Exhibit 16A, # 28 Exhibit 17, # 29 Exhibit 18, # 30 Exhibit 19, # 31 Exhibit 20, # 32 Exhibit 21, # 33 Exhibit 22, # 34 Exhibit 23, # 35 Exhibit 24, # 36 Exhibit 25, # 37 Exhibit 26, # 38 Exhibit 27, # 39 Exhibit 28, # 40 Exhibit 29, # 41 Exhibit 30, # 42 Exhibit 31)(Han, Suhana) (Entered: 07/25/2014)
266 DECLARATION of Susan Benz in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
267 DECLARATION of Jean Marie Bohm in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
268 DECLARATION of Donald Casturo in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
269 DECLARATION of Alice Merrill Chester in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
270 DECLARATION of Darren Cohen in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
271 DECLARATION of Stephanie Cohen in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
272 DECLARATION of Nora Creedon in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
273 DECLARATION of Arianne Criqui in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
274 DECLARATION of Samantha Davidson in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)

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275 DECLARATION of Ashley Eckhard in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
276 DECLARATION of Celeste Guth in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
277 DECLARATION of Aime Hendricks in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 (1 of 4), # 6 Exhibit 5 (2 of 4), # 7 Exhibit 5 (3 of 4), # 8 Exhibit 5 (4 of 4), # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14)(Han, Suhana) (Entered: 07/25/2014)
278 DECLARATION of Ritu Kalra in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
279 DECLARATION of Marie Louise Kirk in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
280 DECLARATION of John Levene in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
281 DECLARATION of Todd Lopez in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
282 DECLARATION of James McNamara in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
283 DECLARATION of Cathy Obradovich in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
284 DECLARATION of Craig Packer in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
285 DECLARATION of Stephen Pierce in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
286 DECLARATION of Lora Robertson in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
287 DECLARATION of Peter Craig Russell in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
288 DECLARATION of Carolyn Sabat in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
289 DECLARATION of Susan Jane Scher in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/25/2014)
290 DECLARATION of Clare Scherrer in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/26/2014)

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291 DECLARATION of Megan Taylor in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/26/2014)
292 DECLARATION of Kirstine Wilson in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/26/2014)
293 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Michael P. Curran in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) Modified on 7/28/2014 (db). (Entered: 07/26/2014)
294 DECLARATION of Michael A. Campion in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Supplemental Tables)(Han, Suhana) (Entered: 07/26/2014)
295 DECLARATION of Michael A. Campion (Sur−Rebuttal) in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/26/2014)
296 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Michael P. Ward in Opposition re: 246 MOTION to Certify Class . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Supplement (Part 2 of 2), # 2 Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E, # 7 Appendix F)(Han, Suhana) Modified on 7/28/2014 (db). (Entered: 07/26/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Suhana S. Han to RE−FILE Document 293 Declaration in Opposition to Motion. ERROR(S): Incomplete Document/Format (i.e., No Court Type, No Case Number). (db) (Entered: 07/28/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Suhana S. Han to RE−FILE Document 296 Declaration in Opposition to Motion. ERROR(S): Incomplete Document/Format (i.e., No Court Type, No Case Number). (db) (Entered: 07/28/2014)
297 DECLARATION of Michael P. Curran in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Han, Suhana) (Entered: 07/28/2014)
298 DECLARATION of Michael P. Ward − Part 1 of 2 in Opposition re: 246 MOTION to Certify Class .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Ward Report Part 2 of 2, # 2 Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E, # 7 Appendix F)(Han, Suhana) (Entered: 07/28/2014)
299 MOTION to Strike Document No. 264 Declarations. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 08/12/2014)
300 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Barbara B. Brown, Therodore O. Rogers, Jr. dated 8/1/2014 re: Request for conference. ENDORSEMENT: This letter is accepted as a sur−reply. No further submissions are appropriate at this time. Counsel can expand on their arguments at oral argument on all pending motions, which will be held on October 1, 2014, at 9:30 a.m. If, after reviewing the class certification papers, I consider further briefing necessary to afford the parties due process, I will request it. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 8/11/2014) (ajs) (Entered: 08/12/2014)
Set/Reset Hearings: Oral Argument set for 10/1/2014 at 09:30 AM before Magistrate Judge James C. Francis. (ajs) (Entered: 08/12/2014)
301 MEMORANDUM OF LAW in Support re: 299 MOTION to Strike Document No. 264 Declarations. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)

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302 DECLARATION of Cara E. Greene in Support re: 299 MOTION to Strike Document No. 264 Declarations.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Shaver, Anne) (Entered: 08/12/2014)
303 MOTION to Strike Document No. 294 Expert Report of Dr. Michael A. Campion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 08/12/2014)
304 MEMORANDUM OF LAW in Support re: 303 MOTION to Strike Document No. 294 Expert Report of Dr. Michael A. Campion. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
305 MOTION to Strike Document No. 297 Expert Report of Michael Curran. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 08/12/2014)
306 MEMORANDUM OF LAW in Support re: 305 MOTION to Strike Document No. 297 Expert Report of Michael Curran. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
307 MOTION to Strike Document No. 298 Expert Report of Dr. Michael P. Ward. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 08/12/2014)
308 MEMORANDUM OF LAW in Support re: 307 MOTION to Strike Document No. 298 Expert Report of Dr. Michael P. Ward. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
309 DECLARATION of Cara E. Greene in Support re: 305 MOTION to Strike Document No. 297 Expert Report of Michael Curran., 303 MOTION to Strike Document No. 294 Expert Report of Dr. Michael A. Campion., 307 MOTION to Strike Document No. 298 Expert Report of Dr. Michael P. Ward.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Shaver, Anne) (Entered: 08/12/2014)
310 REPLY MEMORANDUM OF LAW in Support re: 246 MOTION to Certify Class . . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
311 DECLARATION of Rachel Geman in Support re: 310 Reply Memorandum of Law in Support of Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
312 DECLARATION of Anne B. Shaver in Support re: 310 Reply Memorandum of Law in Support of Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3A, # 4 Exhibit A3B, # 5 Exhibit A4, # 6 Exhibit A5, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G)(Shaver, Anne) (Entered: 08/12/2014)
313 DECLARATION of Expert Report of David L. Yermack in Support re: 310 Reply Memorandum of Law in Support of Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
314 DECLARATION of Expert Rebuttal Report of Dr. Henry Farber in Support re: 310 Reply Memorandum of Law in Support of Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
315 DECLARATION of Expert Rebuttal Report of Dr. Wayne Cascio in Support re: 310 Reply Memorandum of Law in Support of Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 08/12/2014)
316 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody, Adam T. Klein dated 8/5/2014 re: Briefing schedule. ENDORSEMENT: The schedule set forth above is adopted. SO ORDERED. (Brief due by 8/15/2014. Reply to Response to Brief due by 9/24/2014. Responses to Brief

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due by 9/8/2014) (Signed by Magistrate Judge James C. Francis on 8/11/2014) (ajs) (Entered: 08/12/2014)
317 NOTICE OF APPEARANCE by Robert Joseph Giuffra, Jr on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 08/12/2014)
318 MEMORANDUM OF LAW in Opposition re: 299 MOTION to Strike Document No. 264 Declarations. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix A)(Rogers, Theodore) (Entered: 08/13/2014)
319 DECLARATION of Theodore O. Rogers, Jr. in Opposition re: 299 MOTION to Strike Document No. 264 Declarations.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Rogers, Theodore) (Entered: 08/13/2014)
320 NOTICE of Supplemental Authority re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Shaver, Anne) (Entered: 08/22/2014)
321 RESPONSE re: 320 Notice (Other) of Supplemental Authority. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Rogers, Theodore) (Entered: 08/28/2014)
322 NOTICE of Plaintiffs' Notice of Supplemental Authority In Support of Plaintiffs' Motion for Class Certification re: 246 MOTION to Certify Class .. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Shaver, Anne) (Entered: 09/05/2014)
323 MOTION in Limine To Exclude Expert Testimony of David L. Yermack. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Fessel, Robin) (Entered: 09/09/2014)
324 MEMORANDUM OF LAW in Support re: 323 MOTION in Limine To Exclude Expert Testimony of David L. Yermack. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fessel, Robin) (Entered: 09/09/2014)
325 DECLARATION of Robin D. Fessel in Support re: 323 MOTION in Limine To Exclude Expert Testimony of David L. Yermack.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Fessel, Robin) (Entered: 09/09/2014)
326 MEMORANDUM OF LAW in Opposition re: 323 MOTION in Limine To Exclude Expert Testimony of David L. Yermack. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 09/09/2014)
327 DECLARATION of Anne B. Shaver in Opposition re: 323 MOTION in Limine To Exclude Expert Testimony of David L. Yermack.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shaver, Anne) (Entered: 09/09/2014)
328 RESPONSE re: 322 Notice (Other), Defendants' Response to Plaintiffs' September 5, 2014 Notice of Supplemental Authority. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Rogers, Theodore) (Entered: 09/10/2014)
329 REPLY MEMORANDUM OF LAW in Support re: 303 MOTION to Strike Document No. 294 Expert Report of Dr. Michael A. Campion. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Geman, Rachel) (Entered: 09/24/2014)
330 DECLARATION of Anne B. Shaver re: 329 Reply Memorandum of Law in Support of Motion to Exclude Expert Testimony of Dr. Michael Campion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Geman, Rachel) (Entered: 09/24/2014)

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331 REPLY MEMORANDUM OF LAW in Support re: 305 MOTION to Strike Document No. 297 Expert Report of Michael Curran. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Geman, Rachel) (Entered: 09/24/2014)
332 DECLARATION of Anne B. Shaver in Support re: 331 Reply Memorandum of Law in Support of Motion. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Geman, Rachel) (Entered: 09/24/2014)
333 REPLY MEMORANDUM OF LAW in Support re: 323 MOTION in Limine To Exclude Expert Testimony of David L. Yermack. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Fessel, Robin) (Entered: 09/24/2014)
334 ORDER: Counsel having submitted proposals for the format of the evidentiary hearing and oral argument on motions for class certification and the exclusion of certain witnesses, it is hereby ORDERED that the proceedings will take place October 22−24, 2014, as further set forth in this order. (Oral Argument set for 10/22/2014 at 09:30 AM before Magistrate Judge James C. Francis. Oral Argument set for 10/22/2014 at 03:00 PM before Magistrate Judge James C. Francis.) (Signed by Magistrate Judge James C. Francis on 10/1/2014) (tn) (Entered: 10/02/2014)
335 NOTICE OF APPEARANCE by Beth Deborah Newton on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 10/03/2014)
336 ORDER: In connection with a hearing in this action scheduled for October 22 and 23, 2014, with the possibility of extending to October 24, 2014, defendants have requested permission to bring the following equipment through the freight entrance of the court house on October 21, 2014 for purposes of setting up and testing such equipment: one LCD projector; one 100" screen; one 150" screen; one document camera; two stands (one for document camera and one for projector); three VGA splitters; two VGA inputs; one pair of speakers and two audio outputs; three LCD monitors; one portable Powerpoint "clicker;" one laser pointer; one small table; and one small printer. Defendants have also requested permission to remove the aforementioned equipment through the freight entrance after the hearing concludes on October 23 or 24, 2014. Defendants' request is hereby granted. (Signed by Magistrate Judge James C. Francis on 10/16/2014) (tn) (Entered: 10/16/2014)
337 ORDER: that the following attorney(s) are authorized to bring the Personal Electronic Device(s) and/or the General Purpose Computing Device(s) (collectively, "Devices") listed below into the Courthouse for use in a proceeding or trial in the action captioned Chen Oster et ano v. Goldman, Sachs & Co. et ano, No. 10cv6950, on October 21−24, 2014: Robert Giuffra − blackberry; Beth Newton − laptop and blackberry; Barbara Brown − blackberry; Robin Fessel − blackberry; Suhana Han − four laptops and blackberry; Neal Mollen − blackberry; Gena Palumbo − blackberry; Theodore Rogers − blackberry; Jonathan Sokotch − blackberry; Carson Sullivan − iPhone; Kevin Witney − blackberry. (Signed by Magistrate Judge James C. Francis on 10/16/2014) (tn) (Entered: 10/16/2014)
338 ORDER: that the following attorney(s) are authorized to bring the Personal Electronic Device(s) and/or the General Purpose Computing Device(s) (collectively, "Devices") listed below into the Courthouse for use in a proceeding or trial in the action captioned Chen−Oster et al v. Goldman, Sachs & Co. et al, No. 10−cv6950, on October 22−24, 2014: Adam T. Klein − cell phone, laptop; Cara E. Greene − cell phone, laptop; Melissa L. Stewart − cell phone, laptop; Anne Shaver − cell phone, laptop; Kelly Dermody − cell phone, laptop; Rachel Geman − cell phone, laptop. (Signed by Magistrate Judge James C. Francis on 10/16/2014) (tn) (Entered: 10/16/2014)
339 NOTICE of Supplemental Authority. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Newton, Beth) (Entered: 10/19/2014)
340 ORDER: In connection with a hearing in this action scheduled for October 22 and 23, 2014, with the possibility of extending to October 24, 2014, Plaintiffs have requested permission for their litigation support representative Hazel Mottershead to bring the following equipment to the court house on October 21, 2014 for purposes of testing

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such equipment: one laptop computer and associated VGA cords. (Signed by Magistrate Judge James C. Francis on 10/21/2014) (tn) (Entered: 10/21/2014)
341 ORDER: that the following attorney(s) are authorized to bring the Personal Electronic Device(s) and/or the General Purpose Computing Device(s) (collectively, "Devices") listed below into the Courthouse for use in a proceeding or trial in the action captioned Chen Oster et ano v. Goldman, Sachs & Co. et ano, No. 10cv6950, on October 22−24, 2014: Greg Palm − blackberry; Austin Raynor − four laptops. (Signed by Magistrate Judge James C. Francis on 10/21/2014) (tn) (Entered: 10/21/2014)
342 RESPONSE re: 339 Notice (Other) Plaintiffs' Response to Notice of Supplemental Authority. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Geman, Rachel) (Entered: 10/21/2014)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Oral Argument held on 10/22/2014 re: 246 MOTION to Certify Class . filed by Shanna Orlich, H. Christina Chen−Oster. (Bacchus, Michael) (Entered: 10/22/2014)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Daubert Hearing held on 10/23/2014 re: Expert Report of Dr. Ward, Expert Report of Dr. Farber (Bacchus, Michael) (Entered: 10/23/2014)
343 TRANSCRIPT of Proceedings re: Trial held on 10/22/2014 before Magistrate Judge James C. Francis IV. Court Reporter/Transcriber: Lisa Picciano Fellis, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/1/2014. Redacted Transcript Deadline set for 12/11/2014. Release of Transcript Restriction set for 2/6/2015.(McGuirk, Kelly) (Entered: 11/05/2014)
344 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 10/22/2014 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/05/2014)
345 TRANSCRIPT of Proceedings re: Trial held on 10/23/2014 before Magistrate Judge James C. Francis IV. Court Reporter/Transcriber: Lisa Picciano Fellis, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/1/2014. Redacted Transcript Deadline set for 12/11/2014. Release of Transcript Restriction set for 2/6/2015.(McGuirk, Kelly) (Entered: 11/05/2014)
346 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 10/23/2014 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/05/2014)
347 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra, Jr. dated November 12, 2014 re: Transcripts of hearing held on October 22 and 23, 2014. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Newton, Beth) (Entered: 11/12/2014)
348 LETTER addressed to Judge Analisa Torres from Melissa L. Stewart dated February 25, 2015 re: Withdrawal of Attorney Jennifer L. Liu. Document filed by H. Christina Chen−Oster, Shanna Orlich.(Stewart, Melissa) (Entered: 02/25/2015)
349 MEMO ENDORSEMENT on re: 348 Letter filed by Shanna Orlich, H. Christina Chen−Oster, re: Withdrawal of Attorney Jennifer L. Liu. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Jennifer L. Liu's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney

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Jennifer Lin Liu terminated. (Signed by Judge Analisa Torres on 2/25/2015) (ajs) (Entered: 02/25/2015)
350 MOTION in Limine To Exclude Expert Testimony of Wayne F. Cascio. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Newton, Beth) (Entered: 02/27/2015)
351 MEMORANDUM OF LAW in Support re: 350 MOTION in Limine To Exclude Expert Testimony of Wayne F. Cascio. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 02/27/2015)
352 DECLARATION of Barbara B. Brown in Support re: 350 MOTION in Limine To Exclude Expert Testimony of Wayne F. Cascio.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (part 1), # 3 Exhibit 2 (part 2), # 4 Exhibit 3, # 5 Exhibit 4)(Newton, Beth) (Entered: 02/27/2015)
353 MEMORANDUM OF LAW in Opposition re: 350 MOTION in Limine To Exclude Expert Testimony of Wayne F. Cascio. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 02/27/2015)
354 DECLARATION of Cara E. Greene in Opposition re: 350 MOTION in Limine To Exclude Expert Testimony of Wayne F. Cascio.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Newton, Beth) (Entered: 02/27/2015)
355 REPLY MEMORANDUM OF LAW in Support re: 350 MOTION in Limine To Exclude Expert Testimony of Wayne F. Cascio. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 02/27/2015)
356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Newton, Beth) (Entered: 02/27/2015)
357 MEMORANDUM OF LAW in Support re: 356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 02/27/2015)
358 DECLARATION of Barbara B. Brown in Support re: 356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9 (1 of 2), # 10 Exhibit 9 (2 of 2), # 11 Exhibit 10, # 12 Exhibit 11 (1 of 3), # 13 Exhibit 11 (2 of 3), # 14 Exhibit 11 (3 of 3), # 15 Exhibit 12, # 16 Exhibit 13)(Newton, Beth) (Entered: 02/27/2015)
359 MEMORANDUM OF LAW in Opposition re: 356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 02/27/2015)
360 DECLARATION of Cara E. Greene in Opposition re: 356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Newton, Beth) (Entered: 02/27/2015)
361 REPLY MEMORANDUM OF LAW in Support re: 356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Newton, Beth) (Entered: 02/27/2015)
362 DECLARATION of Robin D. Fessel in Support re: 356 MOTION in Limine To Exclude Expert Testimony of Henry S. Farber.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 (1 of 8), # 7 Exhibit 6 (2 of 8), # 8 Exhibit 6 (3 of 8), # 9 Exhibit 6 (4 of 8), # 10 Exhibit 6 (5 of 8), # 11 Exhibit 6 (6 of 8), # 12 Exhibit 6 (7 of 8), # 13 Exhibit 6 (8 of 8))(Newton, Beth) (Entered: 02/27/2015)

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363 MEMORANDUM AND ORDER denying 299 Motion to Strike; denying 303 Motion to Strike; granting 305 Motion to Strike; granting 307 Motion to Strike; granting 323 Motion in Limine; denying 350 Motion in Limine; denying 356 Motion in Limine: For the reasons discussed above, the motion to exclude the expert testimony of Dr. Farber (Docket no. 356) is denied; the motion to exclude in part the expert testimony of Dr. Ward (Docket no. 307) is granted; the motion to exclude the expert testimony of Dr. Cascio (Docket no. 350) is denied; the motion to exclude the expert testimony of Dr. Campion (Docket no. 303) is denied; the motion to exclude the expert testimony of Mr. Curran (Docket no. 305) is granted; the motion to exclude the expert testimony of Dr. Yermack (Docket no. 323) is granted; and the motion to preclude the declarations of Goldman Sachs' managers and Appendix A to Goldman Sachs' memorandum in opposition to class certification (Docket no. 299) is denied. It bears repeating that these determinations are made solely with respect to the submission of this evidence in connection with the class certification motion; admissibility in connection with dispositive motions or trial is subject to further analysis. (Signed by Magistrate Judge James C. Francis on 3/10/2015) Copies Transmitted By Chambers. (tn) (Entered: 03/10/2015)
364 Vacated as to Rules 23(b)(2) and (c)(4) class certification, as per Judge's Order dated 8/30/2017, Doc. # 540. REPORT AND RECOMMENDATION re: 246 MOTION to Certify Class filed by Shanna Orlich, H. Christina Chen−Oster: This is a close case. But for the fact that the law of the case doctrine dissuades me from revisiting the appropriateness of injunctive relief, I would recommend that the plaintiff class be certified pursuant to Rules 23(b)(2) and 23(c)(4) in order to obtain a final determination as to the allegedly discriminatory impact of Goldman Sachs' employee evaluation processes. But, because such relief has been held to be unavailable, I recommend that the plaintiffs' motion for class certification (Docket no. 246) be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Analisa Torres, Room 2210, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 3/27/2015 (Signed by Magistrate Judge James C. Francis on 3/10/2015) Copies Mailed By Chambers. (tn) Modified on 8/30/2017 (ap). (Entered: 03/10/2015)
365 SEALED DOCUMENT placed in vault.(rz) (Entered: 03/11/2015)
366 JOINT LETTER addressed to Judge Analisa Torres from Cara E. Greene and Robert J. Giuffra Jr. dated March 16, 2015 re: Request Extension to File Written Objections. Document filed by H. Christina Chen−Oster, Shanna Orlich.(Greene, Cara) (Entered: 03/16/2015)
367 MEMO ENDORSED ORDER on 366 terminating 246 Motion to Certify Class. ENDORSEMENT: GRANTED. The parties shall adhere to the aforementioned deadlines. Decision on Plaintiffs' motion is held in abeyance, pending the parties' submissions. The Clerk of Court is directed to terminate the motion at ECF No. 246. SO ORDERED. (Signed by Judge Analisa Torres on 3/16/2015) (ajs) (Entered: 03/16/2015)
368 MOTION for Reconsideration re; 364 Report and Recommendations,,,,, . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Dermody, Kelly) (Entered: 03/24/2015)
369 MEMORANDUM OF LAW in Support re: 368 MOTION for Reconsideration re; 364 Report and Recommendations,,,,, . . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 03/24/2015)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 3/31/2015. (Bacchus, Michael) (Entered: 03/31/2015)
370 ORDER: A pretrial conference having been held by telephone on March 31, 2015, it is hereby ORDERED as follows: Defendants shall answer plaintiff's motion for reconsideration of my March 10, 2015 Report and Recommendation (the "3/10/15 R&R") by April 14, 2015; plaintiffs shall reply by April 28, 2015. Plaintiffs shall serve and file any motion to intervene by April 13, 2015; defendants shall answer the

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motion by May 15, 2015; plaintiffs shall reply by June 1, 2015. At the direction of the Honorable Analisa Torres, U.S.D.J., the schedule for submitting objections with respect to the 3/10/15 R&R shall be held in abeyance pending determination of the motions referenced in paragraphs 1 and 2 above. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 3/31/2015) Copies Sent By Chambers. (kl) (Entered: 03/31/2015)
371 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Jeffrey B. Wall to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−10775206. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Goldman, Sachs & Co.. (Attachments: # 1 Text of Proposed Order)(Wall, Jeffrey) Modified on 4/3/2015 (wb). (Entered: 04/02/2015)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 371 MOTION for Jeffrey B. Wall to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−10775206. Motion and supporting papers to be reviewed by Clerk's Office staff.. Certificate of Good Standing Must be issued from Supreme Court of Georgia with a Clerk of Court Signature. Re−file the document as a Corrected Motion to Appear Pro Hac Vice and attach a valid Certificate of Good Standing, issued within the past 30 days. (wb) (Entered: 04/03/2015)
372 INTERNET CITATION NOTE: Material from decision with Internet citation re: 363 Order on Motion to Strike, Order on Motion in Limine. (vf) (Entered: 04/07/2015)
373 JOINT LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. and Barbara B. Brown dated April 9, 2015 re: Clarification as to Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Rogers, Theodore) (Entered: 04/09/2015)
374 MEMO ENDORSEMENT on re: 373 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., re: Clarification as to Schedule. ENDORSEMENT: Your assumption is correct; the stay applies to both the March 31 Order and the R & R. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 4/10/2015) (ajs) (Entered: 04/10/2015)
375 MOTION for Jeffrey B. Wall to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Text of Proposed Order Granting Motion for Admission PHV)(Wall, Jeffrey) (Entered: 04/13/2015)
376 NOTICE of Motion to Intervene. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 04/13/2015)
377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Dermody, Kelly) (Entered: 04/13/2015)
378 MEMORANDUM OF LAW in Support re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 04/13/2015)
379 DECLARATION of Kelly M. Dermody in Support re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 04/13/2015)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 375 MOTION for Jeffrey B. Wall to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 04/14/2015)
380 MEMORANDUM OF LAW in Opposition re: 368 MOTION for Reconsideration re; 364 Report and Recommendations,,,,, . . Document filed by The Goldman Sachs Group, Inc.. (Rogers, Theodore) (Entered: 04/14/2015)
381 LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. dated Arpil 15, 2015 re: Letter Concerning Intervention Motion.

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Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Rogers, Theodore) (Entered: 04/15/2015)
382 LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers, Jr. dated April 20, 2015 re: Reply to April 17 Letter From Plaintiffs' Counsel. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Rogers, Theodore) (Entered: 04/20/2015)
383 ORDER granting 375 Motion for Jeffrey B. Wall to Appear Pro Hac Vice. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 04/21/2015)
384 LETTER addressed to Magistrate Judge James C. Francis IV from Cara E. Greene dated April 21, 2015 re: In Response to Defendant's April 20, 2015 Letter. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Greene, Cara) (Entered: 04/21/2015)
385 REPLY MEMORANDUM OF LAW in Support re: 368 MOTION for Reconsideration re; 364 Report and Recommendations,,,,, . . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 04/28/2015)
386 MEMO ENDORSEMENT on re: 384 Letter In Response to Defendant's April 20, 2015 Letter, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi. ENDORSEMENT: It is less important that the motion be styled a motion to intervene than that the defendants have notice of the proposed intervenors' claims; deposition testimony is not a substitute for a pleading. Plaintiffs/ intervenors shall therefore submit a proposed intervenor complaint by May 8, 2015; defendants shall answer the motion by June 5, 2015; and plaintiffs shall reply by June 19, 2015. (Responses due by 6/5/2015, Replies due by 6/19/2015.) (Signed by Magistrate Judge James C. Francis on 4/28/2015) (kko) (Entered: 04/28/2015)
387 MOTION for C. Geoffrey Weirich to Withdraw as Attorney . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Weirich, C.) (Entered: 04/29/2015)
388 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Martin D. Quinones to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−10869896. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Certificate of Standing, # 2 Text of Proposed Order)(Quinones, Martin) Modified on 4/30/2015 (wb). (Entered: 04/29/2015)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 388 MOTION for Martin D. Quinones to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−10869896. Motion and supporting papers to be reviewed by Clerk's Office staff.. Certificate of Good Standing Must be issued from Supreme Court of California with a Clerk of Court Signature. Re−file the document as a Motion to Appear Pro Hac Vice and attach a valid Certificate of Good Standing, issued within the past 30 days. (wb) (Entered: 04/30/2015)
389 ORDER granting 387 Motion to Withdraw as Attorney. Attorney C. Geoffrey Weirich terminated. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 04/30/2015)
390 MOTION for Martin Daniel Quinones to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Good Standing − Supreme Court of California)(Quinones, Martin) (Entered: 05/04/2015)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 390 MOTION for Martin Daniel Quinones to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 05/05/2015)

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391 ORDER FOR ADMISSION PRO HAC VICE granting 390 Motion for Martin D. Quinones to Appear Pro Hac Vice. (Signed by Judge Analisa Torres on 5/5/2015) (ajs) (Entered: 05/05/2015)
392 MEMORANDUM OF LAW in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 06/05/2015)
393 DECLARATION of Michael Campion in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 06/05/2015)
394 DECLARATION of Jessica Ginsberg in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit)(Levy, Joshua) (Entered: 06/05/2015)
395 DECLARATION of David Landman in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 06/05/2015)
396 DECLARATION of Karen O'Keeffe in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit)(Levy, Joshua) (Entered: 06/05/2015)
397 DECLARATION of Michael Perloff in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 06/05/2015)
398 DECLARATION of Leslie Reider in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit)(Levy, Joshua) (Entered: 06/05/2015)
399 DECLARATION of Michael P. Ward in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 06/05/2015)
400 DECLARATION of Joseph Yanagisawa in Opposition re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 06/05/2015)
401 LETTER MOTION for Leave to File Excess Pages re Reply Brief in Support of Intervention Motion addressed to Magistrate Judge James C. Francis IV from Adam T. Klein dated June 16, 2015. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Klein, Adam) (Entered: 06/16/2015)
402 LETTER addressed to Magistrate Judge James C. Francis IV from Theodore O. Rogers dated June 16, 2015 re: Plaintiffs' Request for Additional Pages. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Levy, Joshua) (Entered: 06/16/2015)
403 ORDER granting 401 Letter Motion for Leave to File Excess Pages. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 06/17/2015)
404 REPLY MEMORANDUM OF LAW in Support re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs. . Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 06/19/2015)
405 DECLARATION of Cara E. Greene in Support re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Klein, Adam) (Entered: 06/19/2015)
Pro Hac Vice Fee Refunded: for 388 MOTION for Martin D. Quinones to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−10869896. Motion and supporting papers to be reviewed by Clerk's Office staff.. Filing fee refunded for

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Receipt number 0208−10869798, for the following reason(s): DUPLICATE FILING. (dig) (Entered: 06/23/2015)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Oral Argument held on 7/22/2015 re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs. filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi. Transcribed by court reporter (Bacchus, Michael) (Entered: 07/22/2015)
406 DECLARATION of Mary De Luis in Support re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 07/24/2015)
407 DECLARATION of Allison Gamba in Support re: 377 MOTION to Intervene Mary De Luis and Allison Gamba as Named Plaintiffs.. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 07/24/2015)
408 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giufffra, Jr. dated July 28, 2015 re: Declarations Submitted By Proposed Intervenors. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 07/28/2015)
409 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated 07/28/2015 re: Declarations Submitted by Proposed Intervenors. Document filed by H. Christina Chen−Oster, Shanna Orlich, Lisa Parisi.(Dermody, Kelly) (Entered: 07/28/2015)
410 ORDER denying 368 Motion for Reconsideration; granting 377 Motion to Intervene: For the reasons set forth above, the plaintiffs' motion for reconsideration (Docket no. 368) is denied. The motion of Allison Gamba and Mary de Luis to intervene (Docket no. 377) is granted, and the plaintiffs may therefore file the Second Amended Class Action Complaint. (Signed by Magistrate Judge James C. Francis on 8/3/2015) Copies Transmitted By Chambers. (tn) (Entered: 08/03/2015)
411 SECOND AMENDED COMPLAINT amending 104 Amended Complaint, against Goldman, Sachs & Co., The Goldman Sachs Group, Inc. with JURY DEMAND.Document filed by H. Christina Chen−Oster, Shanna Orlich, Allison Gamba, Mary De Luis. Related document: 104 Amended Complaint, filed by Shanna Orlich, H. Christina Chen−Oster, Lisa Parisi.(Shaver, Anne) (Entered: 08/03/2015)
412 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra, Jr. dated August 5, 2015 re: Depositions of Proposed Intervenors. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Levy, Joshua) (Entered: 08/05/2015)
413 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly Dermody dated August 5, 2015 re: Depositions of Proposed Intervenors. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Shaver, Anne) (Entered: 08/05/2015)
414 AMENDED LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated August 5, 2015 re: Depositions of Intervenors. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 08/05/2015)
415 MEMO ENDORSEMENT on re: 412 Letter filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: Application denied. The intervenors' declarations are clear with respect to actual notice. They may, of course, be deposed in the normal course of the litigation. (Signed by Magistrate Judge James C. Francis on 8/7/2015) (tn) (Entered: 08/07/2015)
416 MOTION to Stay Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Newton, Beth) (Entered: 08/17/2015)
417 FILING ERROR − DEFICIENT DOCKET ENTRY − FILER ERROR − APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. Copies of Appeal of Magistrate Judge Decision to District Court served on Attorney(s) of Record: Kelly M. Dermody, Adam T. Klein. (Giuffra, Robert) Modified on 8/18/2015 (tp). (Entered:

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08/17/2015)
418 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MEMORANDUM OF LAW in Support re: 416 MOTION to Stay Discovery. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Newton, Beth) Modified on 8/18/2015 (db). (Entered: 08/17/2015)
419 MOTION Appeal of Magistrate Judge's Order . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/18/2015)
420 MEMORANDUM OF LAW in Support re: 419 MOTION Appeal of Magistrate Judge's Order . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 08/18/2015)
421 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated August 17, 2015 re: Briefing Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Newton, Beth) (Entered: 08/18/2015)
422 DECLARATION of Robert J. Giuffra, Jr. in Support re: 419 MOTION Appeal of Magistrate Judge's Order .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Giuffra, Robert) (Entered: 08/18/2015)
***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Giuffra, Robert to RE−FILE Document No. 417 Appeal of Magistrate Judge Decision to District Court. The filing is deficient for the following reason(s): the wrong event type was used to file the document. There is No Need to Re−file the document since it has already been refiled as document 419 Motion. (tp) (Entered: 08/18/2015)
423 MEMO ENDORSEMENT on re: 421 Letter filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., re: Briefing Schedule. ENDORSEMENT: Plaintiffs shall respond to Defendants' August 17, 2015 letter by August 24, 2015. SO ORDERED. (Signed by Judge Analisa Torres on 8/18/2015) (ajs) (Entered: 08/18/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Beth Deborah Newton to RE−FILE Document 418 Memorandum of Law in Support of Motion. Use the event type Letter found under the event list Other Documents. (db) (Entered: 08/18/2015)
424 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra, Jr. dated August 17, 2015 re: Request for Stay. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/18/2015)
425 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated August 19, 2015 re: Pre−Motion to Dismiss. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/19/2015)
426 ANSWER to 411 Amended Complaint,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/20/2015)
427 LETTER addressed to Magistrate Judge James C. Francis IV from Kelly M. Dermody dated August 21, 2015 re: Opposition to Motion to Stay Discovery. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 08/21/2015)
428 MEMO ENDORSEMENT on re: 425 Letter re: Pre−Motion to Dismiss, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: Plaintiffs shall respond to Defendants' August 19, 2015 pre−motion conference letter by August 26, 2015. (Signed by Judge Analisa Torres on 8/21/2015) (spo) (Entered: 08/24/2015)
429 LETTER addressed to Judge Analisa Torres from Kelly M. Dermody dated August 24, 2015 re: Opposition to Request for Briefing Schedule. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dermody, Kelly) (Entered: 08/24/2015)

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430 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra, Jr. dated August 25, 2015 re: Reply in Support of Motion to Stay Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/25/2015)
431 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated August 26, 2015 re: Reply in Support of Briefing Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giuffra, Robert) (Entered: 08/26/2015)
432 ORDER granting 416 Motion to Stay Discovery. Discovery is stayed pending Judge Torres' determination of the objections pending before her. Her decisions will potentially shape the scope of a substantial part of any further discovery. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 08/26/2015)
433 LETTER addressed to Judge Analisa Torres from Kelly M. Dermody dated 08−26−2015 re: Response to Pre−Motion to Dismiss. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Dermody, Kelly) (Entered: 08/26/2015)
434 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated August 28, 2015 re: Reply in Support of Pre−Motion to Dismiss. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 08/28/2015)
435 MEMORANDUM OF LAW in Opposition re: 419 MOTION Appeal of Magistrate Judge's Order . . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 08/31/2015)
436 DECLARATION of Rachel Geman in Opposition re: 419 MOTION Appeal of Magistrate Judge's Order .. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Klein, Adam) (Entered: 08/31/2015)
437 ORDER: Having reviewed the parties' letters dated August 17, 19, 24, 26, and 28, 2015, it is ORDERED that: 1. Defendants' request for a pre−motion conference regarding the anticipated motion to dismiss "putative intervenor Allison Gamba's claims for injunctive and declaratory relief" is DENIED; 2. Defendants shall file their motion to dismiss by September 28, 2015; 3. Plaintiffs shall file their opposition papers by October 12, 2015; 4. Defendants shall reply by October 19, 2015; 5. The briefing schedule on Plaintiffs' potential objections to the Honorable James C. Francis IV's March 10, 2015 Report and Recommendation is held in abeyance, pending the Court's decision on Defendants' appeal of Judge Francis' August 3, 2015 order. ( Motions due by 9/28/2015., Responses due by 10/12/2015, Replies due by 10/19/2015.) (Signed by Judge Analisa Torres on 8/31/2015) (mro) (Entered: 09/01/2015)
438 TRANSCRIPT of Proceedings re: MOTION held on 7/22/2015 before Magistrate Judge James C. Francis IV. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/25/2015. Redacted Transcript Deadline set for 10/5/2015. Release of Transcript Restriction set for 12/3/2015.(McGuirk, Kelly) (Entered: 09/01/2015)
439 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a MOTION proceeding held on 7/22/15 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/01/2015)
440 REPLY MEMORANDUM OF LAW in Support re: 419 MOTION Appeal of Magistrate Judge's Order . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 09/08/2015)

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441 MOTION to Dismiss Allison Gamba's Claims for Injunctive and Declaratory Relief. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 09/28/2015)
442 MEMORANDUM OF LAW in Support re: 441 MOTION to Dismiss Allison Gamba's Claims for Injunctive and Declaratory Relief. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 09/28/2015)
443 MEMORANDUM OF LAW in Opposition re: 441 MOTION to Dismiss Allison Gamba's Claims for Injunctive and Declaratory Relief. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 10/12/2015)
444 NOTICE OF APPEARANCE by Ossai Miazad on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Miazad, Ossai) (Entered: 10/14/2015)
445 REPLY MEMORANDUM OF LAW in Support re: 441 MOTION to Dismiss Allison Gamba's Claims for Injunctive and Declaratory Relief. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 10/19/2015)
446 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated May 9, 2016 re: Resignation of Intervenor. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/09/2016)
447 LETTER addressed to Judge Analisa Torres from Adam T. Klein dated May 11, 2016 re: Response to Defendant's May 9, 2016 Letter. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 05/11/2016)
448 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated May 16, 2016 re: Reply to Plaintiffs' May 11, 2016 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 05/16/2016)
449 LETTER addressed to Judge Analisa Torres from Adam T. Klein dated May 17, 2016 re: Defendant's May 16, 2016 Reply. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 05/17/2016)
450 ORDER terminating 419 Motion for Appeal of Magistrate Judge's Order. On appeal, Defendants object to Judge Francis' assessment of the timeliness of the motion to intervene and the potential prejudice to the parties which may result from intervention. The Court has reviewed Judge Francis' reasoning with respect to timeliness and prejudice and finds no clear error. Specifically, the Court finds no clear error in Judge Francis' determination that Gamba and De Luis did not have notice of the relevant interest until March 2015, and, therefore, that the motion to intervene was timely. Nor does the Court find clear error in Judge Francis' assessment of potential prejudice to the parties, including to Defendants, putative class members, and Gamba and De Luis. Accordingly, the Order is AFFIRMED. The Clerk of Court is directed to terminate the motion at ECF No. 419. SO ORDERED. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 6/6/2016) (kko) (Entered: 06/07/2016)
451 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated June 8, 2016 re: Schedule for Objections and Motion to Dismiss. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 06/08/2016)
452 LETTER addressed to Judge Analisa Torres from Rachel Geman dated June 8, 2016 re: Response to Defendants' June 8, 2016 Letter. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Geman, Rachel) (Entered: 06/08/2016)
453 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated June 9, 2016 re: Reply in Support of Briefing Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 06/09/2016)

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454 ORDER: Having reviewed Defendants' letters dated June 8 and 9, 2016, and Plaintiffs' letter dated June 8, 2016, it is ORDERED that: 1. By July 11, 2016, Defendants shall file their motion to dismiss with respect to Mary De Luis. 2. By July 25, 2016, Plaintiffs shall file their opposition. 3. By August 1, 2016, Defendants shall reply. 4. Plaintiffs argue that the "fact that Gamba is no longer a Goldman employee...must be analyzed as a question of mootness." Pl. Mem. 12. Defendants reply that Gamba's ability to seek injunctive or declaratory relief is a question of standing, not mootness. Def. Mem Reply 14. Both parties are directed to address whether Allison Gamba and Mary De Luis' claims are moot. 5. Briefing on Judge Francis' March 10, 2015 Report and Recommendation and March 10, 2015 Memorandum and Order is held in abeyance, pending the Court's decision on Defendants' motions to dismiss with respect to Allison Gamba and Mary De Luis. (Motions due by 7/11/2016. Responses due by 7/25/2016, Replies due by 8/1/2016.) (Signed by Judge Analisa Torres on 6/15/2016) (kko) (Entered: 06/15/2016)
455 LETTER MOTION for Conference re Plaintiffs' anticipated motion to supplement the Second Amended Complaint addressed to Judge Analisa Torres from Adam T. Klein dated 7/1/2016. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 07/01/2016)
456 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated July 6, 2016 re: Response to Plaintiffs' July 1, 2016 Letter Motion. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 07/06/2016)
457 MOTION to Dismiss Mary De Luis' Claims for Injunctive and Declaratory Relief. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 07/11/2016)
458 MEMORANDUM OF LAW in Support re: 457 MOTION to Dismiss Mary De Luis' Claims for Injunctive and Declaratory Relief. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 07/11/2016)
459 ORDER denying 455 Letter Motion for Conference. Having reviewed the parties' letters dated July 1 and 6, 2016, Plaintiffs' request for a pre−motion conference is DENIED. The Court construes Plaintiffs' letter dated July 1, 2016 as a motion to supplement the second amended complaint pursuant to Federal Rule of Civil Procedure 15(d). The Court will decide the motion in conjunction with Defendants' pending motions to dismiss. SO ORDERED. (Signed by Judge Analisa Torres on 7/13/2016) (ama) (Entered: 07/14/2016)
460 NOTICE of withdrawal of plaintiffs' counsel Martin D. Quinones re: 391 Order on Motion to Appear Pro Hac Vice. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 07/15/2016)
461 MEMO ENDORSEMENT on re: 460 Notice of withdrawal of plaintiffs' counsel Martin D. Quinones, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis, Lisa Parisi. ENDORSEMENT: Plaintiffs' request is GRANTED. The Clerk of Court is directed to remove Martin D. Quinones' appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Martin Daniel Quinones terminated. (Signed by Judge Analisa Torres on 7/19/2016) (kko) (Entered: 07/19/2016)
462 MEMORANDUM OF LAW in Opposition re: 457 MOTION to Dismiss Mary De Luis' Claims for Injunctive and Declaratory Relief. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 07/25/2016)
463 REPLY MEMORANDUM OF LAW in Support re: 457 MOTION to Dismiss Mary De Luis' Claims for Injunctive and Declaratory Relief. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 08/01/2016)
464 NOTICE OF APPEARANCE by Tiseme Gabriella Zegeye on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Zegeye, Tiseme) (Entered: 08/29/2016)

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465 NOTICE OF CHANGE OF ADDRESS by Adam T Klein on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Klein, Adam) (Entered: 08/31/2016)
466 NOTICE OF CHANGE OF ADDRESS by Cara Elizabeth Greene on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Greene, Cara) (Entered: 08/31/2016)
467 NOTICE OF CHANGE OF ADDRESS by Justin Mitchell Swartz on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Swartz, Justin) (Entered: 08/31/2016)
468 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 469 Notice of Change of Address) − NOTICE OF CHANGE OF ADDRESS by Melissa E. Pierre−Louis on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Pierre−Louis, Melissa) Modified on 9/2/2016 (db). (Entered: 09/01/2016)
469 NOTICE OF CHANGE OF ADDRESS by Melissa Lardo Stewart on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Stewart, Melissa) (Entered: 09/01/2016)
470 NOTICE OF CHANGE OF ADDRESS by Ossai Miazad on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Miazad, Ossai) (Entered: 09/01/2016)
471 NOTICE OF CHANGE OF ADDRESS by Paul W. Mollica on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. New Address: Outten & Golden LLP, 161 N Clark Street, Suite 1600, Chicago, Illinois, United States 60601, 3128097010. (Mollica, Paul) (Entered: 09/06/2016)
472 MOTION for Conference . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 09/08/2016)
473 ORDER denying 472 Letter Motion for Conference. A conference will be appropriate after the pending motions are decided. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 09/09/2016)
474 NOTICE of of withdrawal of plaintiffs' counsel Alison M. Stocking and Heather H. Wong re: 13 MOTION for Alison Stocking to Appear Pro Hac Vice., 15 MOTION for Heather H. Wong to Appear Pro Hac Vice.. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 09/09/2016)
475 LETTER addressed to Judge Analisa Torres from Melissa L. Stewart dated September 9, 2016 re: Withdrawal of Plaintiffs' Counsel Carmelyn P Malalis and Dana Sussman. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Stewart, Melissa) (Entered: 09/09/2016)
476 NOTICE of Withdrawal of Jeffrey B. Wall as Counsel for the Defendants. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 03/08/2017)
477 LETTER addressed to Judge Analisa Torres from Adam T. Klein dated March 9, 2017 re: Request to Amend Plaintiffs' Proposed Supplemental Complaint. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 03/09/2017)
478 LETTER addressed to Judge Analisa Torres from Theodore O. Rogers, Jr. dated March 14, 2017 re: Response to Plaintiffs' March 9, 2017 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Rogers, Theodore) (Entered: 03/14/2017)

04/12/2017
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479 MEMORANDUM OPINION AND ORDER: re: 457 MOTION to Dismiss Mary De Luis' Claims for Injunctive and Declaratory Relief. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 441 MOTION to Dismiss Allison Gamba's Claims for Injunctive and Declaratory Relief. filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. Defendants move to dismiss Gamba's and De Luis' claims for injunctive and declaratory relief. Plaintiffs move to file a supplemental complaint. (As further set forth in this Order.) For the reasons stated above, Plaintiffs' motion seeking to file a supplemental complaint is GRANTED, and Defendants' motions to dismiss Gamba's and De Luis' injunctive and declaratory relief are DENIED. By April 26, 2017, the parties shall jointly write to the Court with a proposal on how to proceed regarding Judge Francis' memorandum and order on the parties' Daubert motions, and regarding Judge Francis' report and recommendation on Plaintiffs' motion for class certification, both dated March 10, 2015. ECF Nos. 363, 364. The Clerk of Court is directed to terminate the motions at ECF Nos. 441 and 457. (Signed by Judge Analisa Torres on 4/12/2017) (cf) (Entered: 04/12/2017)
480 NOTICE OF APPEARANCE by Joshua Seth Levy on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Levy, Joshua) (Entered: 04/20/2017)
481 NOTICE OF APPEARANCE by Ann−Elizabeth Ostrager on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 04/20/2017)
482 FILING ERROR − DEFICIENT PLEADING − FILER ERROR − SUPPLEMENTAL AMENDED COMPLAINT amending 411 Amended Complaint, against Goldman, Sachs & Co., The Goldman Sachs Group, Inc. with JURY DEMAND.Document filed by Mary De Luis, Allison Gamba, H. Christina Chen−Oster, Lisa Parisi, Shanna Orlich. Related document: 411 Amended Complaint, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. (Attachments: # 1 Exhibit A − Order)(Klein, Adam) Modified on 4/25/2017 (pc). (Entered: 04/24/2017)
483 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU (SEE 484 Motion) − NOTICE OF INTERLOCUTORY APPEAL from 479 Memorandum & Opinion. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Giuffra, Robert) Modified on 5/2/2017 (db). (Entered: 04/25/2017)
484 MOTION for Leave to Appeal Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 04/25/2017)
485 MEMORANDUM OF LAW in Support re: 484 MOTION for Leave to Appeal . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 04/25/2017)
Appeal Fee Due: for 483 Notice of Interlocutory Appeal. Appeal fee due by 5/9/2017. (tp) (Entered: 04/25/2017)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 483 Notice of Interlocutory Appeal. (tp) (Entered: 04/25/2017)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 485 Memorandum of Law in Support of Motion filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. were transmitted to the U.S. Court of Appeals. (tp) (Entered: 04/25/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Adam T Klein to RE−FILE Document No. 482 Supplemental Amended Complaint The filing is deficient for the following reason(s): the wrong filer/filers were selected for the pleading. (pc) (Entered: 04/25/2017)
486 SUPPLEMENTAL AMENDED COMPLAINT amending 411 Amended Complaint, against Goldman, Sachs & Co., The Goldman Sachs Group, Inc. with JURY DEMAND.Document filed by Mary De Luis, Allison Gamba, H. Christina Chen−Oster, Shanna Orlich. Related document: 411 Amended Complaint, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. (Attachments: # 1 Exhibit A − Order)(Klein, Adam) (Entered: 04/25/2017)

04/26/2017 04/28/2017
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487 JOINT LETTER addressed to Judge Analisa Torres from Cara E. Greene dated April 26, 2017 re: Joint Submission Pursuant to Court's April 12, 2017 Order. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Greene, Cara) (Entered: 04/26/2017)
488 ORDER: Accordingly, it is ORDERED that: By May 19, 2017, Plaintiffs shall file their opposition to Defendants' motion for interlocutory appeal; By May 26, 2017, Defendants shall reply; By June 9, 2017, the parties may file objections to Judge Francis' Report and Recommendation as to Rule 23(b)(3) class certification and Judge Francis' Memorandum and Order; as further set forth in this Order. (Objections to R&R due by 6/9/2017, Responses due by 5/19/2017, Replies due by 5/26/2017.) (Signed by Judge Analisa Torres on 4/28/2017) (cf) (Entered: 04/28/2017)
489 LETTER addressed to Judge Analisa Torres from Anne B. Shaver dated 4/28/2017 re: request for clarification of order. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Shaver, Anne) (Entered: 04/28/2017)
490 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated April 29, 2017 re: Response to Plaintiffs' April 28, 2017 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 04/29/2017)
491 AMENDED ORDER: Accordingly, it is ORDERED that: By May 19, 2017, Plaintiffs shall file their opposition to Defendants' motion for interlocutory appeal; By May 26, 2017, Defendants shall reply; By June 9, 2017, the parties may file objections to Judge Francis' Report and Recommendation as to Rule 23(b)(3) class certification and Judge Francis' Memorandum and Order; as further set forth in this Order. This order amends the previously issued order, ECF No. 488. (Signed by Judge Analisa Torres on 5/1/2017) (cf) (Entered: 05/01/2017)
492 NOTICE OF APPEARANCE by Christopher McNerney on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (McNerney, Christopher) (Entered: 05/04/2017)
493 MANDATE of USCA (Certified Copy) as to 483 Notice of Interlocutory Appeal, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. USCA Case Number 17−1273. Appellants filed an unopposed motion to withdraw the appeal. IT IS HEREBY ORDERED that the motion is GRANTED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 5/5/2017. (nd) (Entered: 05/05/2017)
494 ANSWER to 486 Amended Complaint,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/08/2017)
495 MEMORANDUM OF LAW in Opposition re: 484 MOTION for Leave to Appeal . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 05/19/2017)
496 REPLY MEMORANDUM OF LAW in Support re: 484 MOTION for Leave to Appeal . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix A, # 2 Appendix B−1, # 3 Appendix B−2)(Giuffra, Robert) (Entered: 05/26/2017)
497 DECLARATION of Robert J. Giuffra, Jr. in Support re: 484 MOTION for Leave to Appeal . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Giuffra, Robert) (Entered: 05/26/2017)
498 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Counsel for Plaintiffs and Defendants Jointly dated May 30, 2017. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/30/2017)
499 ORDER granting 498 Letter Motion for Extension of Time. GRANTED. Objections to R&R due by 6/23/2017 (Signed by Judge Analisa Torres on 5/30/2017) (cf) (Entered: 05/30/2017)

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500 ORDER granting 484 Motion for Leave to Appeal. By order dated April 12, 2017, the Court denied Defendants' motion. ECF No. 479 (the "Order"). Defendants now move to certify for interlocutory appeal two issues raised in the Order. (As further set forth in this Order.) For the reasons stated above, Defendants' motion is GRANTED and the Order at ECF No. 479 is certified for interlocutory appeal. Defendants shall have ten days from the entry of this order to apply to the Second Circuit for leave to proceed with the appeal. The Clerk of Court is directed to terminate the motion at ECF No. 484. (Signed by Judge Analisa Torres on 6/14/2017) (cf) (Main Document 500 replaced on 6/14/2017) (cf). (Entered: 06/14/2017)
501 Objection re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, Memorandum of Law in Support of Plaintiffs' Objections to Judge Francis Memorandum and Order dated March 10, 2015, regarding partial exclusion of expert testimony of Dr. Michael A. Campion. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Klein, Adam) (Entered: 06/23/2017)
502 OBJECTION to 364 Report and Recommendations Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 06/23/2017)
503 MOTION Objections to the Magistrate Judge's Decision Granting Motion to Strike Expert Testimony of Michael P. Curran re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 06/23/2017)
504 MOTION Defendants' Objections to the Magistrate Judge's Decision Granting in Part Motion to Strike Expert Testimony of Michael P. Ward re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 06/23/2017)
505 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Defendants' Motion to Strike Reports, Opinion, and Any Testimony of Plaintiffs' Expert Dr. Henry S. Farber re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 06/23/2017)
506 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Motion to Strike Expert Testimony of Wayne F. Cascio re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Brown, Barbara) (Entered: 06/24/2017)
507 DECLARATION of Barbara B. Brown in Support re: 506 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Motion to Strike Expert Testimony of Wayne F. Cascio re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 1 Exhibit A)(Brown, Barbara) (Entered: 06/24/2017)
508 ENDORSED LETTER addressed to Judge Analisa Torres from Anne B. Shaver dated 6/29/2017 re: Plaintiffs respectfully submit that their Objections should be filed on the public docket without redactions. ENDORSEMENT: Post to docket. SO ORDERED. (cf) Modified on 6/29/2017 (cf). (Signed by Judge Analisa Torres on 6/29/2017) (Entered: 06/29/2017)
509 ENDORSED LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. and Barbara B. Brown dated 6/28/2017 re: no basis for overturning Judge Francis' Order denying Plaintiffs' application to unseal these highly confidential materials. ENDORSEMENT: Post to docket. SO ORDERED. (Signed by Judge Analisa Torres on 6/29/2017) (cf) (Entered: 06/29/2017)
510 ORDER: By letter e−mailed to chambers dated June 23, 2017, Plaintiffs ask this Court to unseal these documents in connection with their objections to Judge Francis' report and recommendation. ECF No. 508. Defendants opposed Plaintiffs' request by letter e−mailed to chambers dated June 28, 2017. ECF No. 509. Accordingly, Plaintiffs' request is DENIED without prejudice to renew pursuant to Judge Francis' June 10, 2014 order. By July 5, 2017, Plaintiffs shall file their objections on the public

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docket with appropriate redactions and file an unredacted version with the Court's Sealed Records Department. (As further set forth in this Order.) (Objections to R&R due by 7/5/2017) (Signed by Judge Analisa Torres on 6/29/2017) (cf) (Entered: 06/29/2017)
511 OBJECTION to 364 Report and Recommendations regarding Plaintiffs' Motion for Class Certification Pursuant to Rule 23(b)(3) Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 06/30/2017)
512 SEALED DOCUMENT placed in vault.(rz) (Entered: 07/06/2017)
513 RESPONSE re: 511 Objection to Report and Recommendations, Defendants' Memorandum in Response to Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation Regarding Plaintiffs' Motion For Class Certification Pursuant to Rule 23(b)(3). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 07/14/2017)
514 REPLY MEMORANDUM OF LAW in Support re: 511 Objection to Report and Recommendations, regarding Plaintiffs' Motion for Class Certification Pursuant to Rule 23(b)(3). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 07/21/2017)
515 RESPONSE re: 504 MOTION Defendants' Objections to the Magistrate Judge's Decision Granting in Part Motion to Strike Expert Testimony of Michael P. Ward re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Klein, Adam) (Entered: 07/21/2017)
516 RESPONSE re: 503 MOTION Objections to the Magistrate Judge's Decision Granting Motion to Strike Expert Testimony of Michael P. Curran re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 07/21/2017)
517 RESPONSE to Motion re: 506 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Motion to Strike Expert Testimony of Wayne F. Cascio re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Geman, Rachel) (Entered: 07/21/2017)
518 DECLARATION of Rachel Geman in Support re: 517 Response to Motion,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A)(Geman, Rachel) (Entered: 07/21/2017)
519 RESPONSE re: 501 Objection (non−motion), Defendants' Response to Plaintiffs' Objections to the Magistrate Judge's Decision Denying Motion to Strike Expert Testimony of Michael A. Campion, Ph.D.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Brown, Barbara) (Entered: 07/21/2017)
520 DECLARATION of Barbara B. Brown in Support re: 519 Response,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Brown, Barbara) (Entered: 07/21/2017)
521 ORDER: Accordingly, Defendants' request to file under seal is GRANTED. Defendants may file their reply memorandum with the proposed redactions. By August 1, 2017, the parties shall file the documents associated with these requests on the public docket and file an umedacted version of the reply memorandum and the sealed documents with the Court's Sealed Records Department. SO ORDERED. (Signed by Judge Analisa Torres on 7/28/2017) (ama) (Entered: 07/28/2017)
522 REPLY Defendants' reply in support of their objections to the Magistrate Judge's Report and Recommendation concerning the proposed Rule 23(b)(3) damages class. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 07/31/2017)
523 RESPONSE re: 505 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Defendants' Motion to Strike Reports, Opinion, and Any

07/31/2017 07/31/2017 07/31/2017 08/01/2017 08/01/2017 08/01/2017 08/01/2017 08/01/2017 08/01/2017
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08/01/2017
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08/01/2017 08/02/2017

Testimony of Plaintiffs' Expert Dr. Henry S. Farber re: 363 Order on Motion to Strike,,,, Order o . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 07/31/2017)
524 DECLARATION of Adam T. Klein re: 523 Response, . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 07/31/2017)
525 RESPONSE re: 502 Objection to Report and Recommendations regarding Plaintiffs' Motion for Class Certification. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Shaver, Anne) (Entered: 07/31/2017)
526 DECLARATION of Anne B. Shaver in Support re: 525 Response. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Shaver, Anne) (Entered: 07/31/2017)
527 SEALED DOCUMENT placed in vault.(rz) (Entered: 08/01/2017)
528 NOTICE of Supplemental Authority re: 502 Objection to Report and Recommendations. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Giuffra, Robert) (Entered: 08/01/2017)
529 SEALED DOCUMENT placed in vault.(rz) (Entered: 08/01/2017)
530 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra Jr. dated 8/1/2017 re: oral argument regarding Magistrate Judge's Report and Recommendation dated March 10, 2015. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/01/2017)
531 REPLY MEMORANDUM OF LAW in Support re: 501 Objection (non−motion), . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 08/01/2017)
532 REPLY MEMORANDUM OF LAW in Support re: 505 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Defendants' Motion to Strike Reports, Opinion, and Any Testimony of Plaintiffs' Expert Dr. Henry S. Farber re: 363 Order on Motion to Strike,,,, Order o . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Brown, Barbara) (Entered: 08/01/2017)
533 REPLY MEMORANDUM OF LAW in Support re: 504 MOTION Defendants' Objections to the Magistrate Judge's Decision Granting in Part Motion to Strike Expert Testimony of Michael P. Ward re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Brown, Barbara) (Entered: 08/01/2017)
534 REPLY MEMORANDUM OF LAW in Support re: 503 MOTION Objections to the Magistrate Judge's Decision Granting Motion to Strike Expert Testimony of Michael P. Curran re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Brown, Barbara) (Entered: 08/01/2017)
535 REPLY MEMORANDUM OF LAW in Support re: 506 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Motion to Strike Expert Testimony of Wayne F. Cascio re: 363 Order on Motion to Strike,,,, Order on Motion in Limine,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Brown, Barbara) (Entered: 08/01/2017)
536 DECLARATION of Barbara B. Brown in Support re: 535 Reply Memorandum of Law in Support,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Brown, Barbara) (Entered: 08/01/2017)
537 RESPONSE re: 528 Notice (Other) Plaintiffs' Response to Notice of Supplemental Authority. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Dermody, Kelly) (Entered: 08/02/2017)

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538 RESPONSE re: 530 Letter, to Honorable Analisa Torres. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi. (Klein, Adam) (Entered: 08/02/2017)
539 MANDATE of USCA (Certified Copy). USCA Case Number 17−2020. Petitioner moves pursuant to 28 U.S.C. ' 1292(b) for leave to appeal an interlocutory order of the district court. Petitioner also moves for leave to submit a reply brief. Upon due consideration, it is hereby ORDERED that the motion to submit a reply brief is GRANTED, but the petition for leave to appeal is DENIED. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 23−25 (2d Cir. 1990).. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/29/2017. (nd) (Entered: 08/30/2017)
540 ORDER: Accordingly, the stay of consideration of Judge Francis' R & R regarding Rules 23(b)(2) and (c)(4) class certification is LIFTED and Judge Francis' R & R is VACATED as to Rules 23(b)(2) and (c)(4) class certification. By September 6, 2017, the parties shall file a joint letter addressed to Judge Francis with their positions on what additional discovery is required in connection with Plaintiffs' motion for Rules 23(b)(2) and (c)(4) class certification and a proposed timeline for completing that discovery and filing supplemental briefing on Plaintiff's motion. The Court will address the parties' objections to Judge Francis' R & R regarding the Rule 23(b)(3) class certification in due course, and as further set forth in this order. (Signed by Judge Analisa Torres on 8/30/2017) (ap) (Entered: 08/30/2017)
541 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. and Barbara B. Brown dated August 31, 2017. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 08/31/2017)
542 ORDER granting 541 Letter Motion for Extension of Time. By September 13, 2017, the parties shall file their joint letter. (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (js) (Entered: 08/31/2017)
543 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra, Jr. and Adam T. Klein dated September 13, 2017 re: Discovery and Briefing Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 09/13/2017)
544 ORDER: A pretrial conference having been held by telephone on September 21, 2017, it is hereby ORDERED as follows: 1. Because the scope of any remaining discovery on class certification will be driven largely by whether defendants' personnel evaluation policies and practices have changed in material ways since the class motion was originally briefed, (a) defendants shall submit evidence and legal argument with respect to any such changes by October 13, 2017, (b) plaintiffs shall answer defendants' submission by November 3, 2017; and (c) defendants shall reply by November 11, 2017. 2. Defendants may proceed with discovery, including depositions, directed to the adequacy and typicality of Mary DeLuis and Allison Gamba as class representatives. ( Motions due by 10/13/2017., Responses due by 11/3/2017, Replies due by 11/11/2017.) (Signed by Magistrate Judge James C. Francis on 9/21/2017) (rj) (Entered: 09/22/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 9/21/2017. (Hotelling, David) (Entered: 09/26/2017)
545 MEMORANDUM OF LAW on the impact of material changes to Goldman Sachs's challenged processes for evaluating professionals on class certification discovery and briefing. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 10/13/2017)
546 DECLARATION of Robert J. Giuffra, Jr. in Support re: 545 Memorandum of Law,. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Giuffra, Robert) (Entered: 10/13/2017)
547 LETTER MOTION for Oral Argument on the scope of any remaining discovery on class certification, as well as Defendants' October 13, 2017 Memorandum of Law on the Impact of Material CHanges to Goldman Sachs's Challenged Processes for

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Evaluating Profsesionals on Class Certification Discovery and Briefing. addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra Jr. dated 10/16/2017. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 10/16/2017)
548 ORDER denying without prejudice 547 Letter Motion for Oral Argument. This application may be resubmitted to my successor after October 27, 2017. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 10/17/2017)
549 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra Jr. dated 10/19/2017 re: Plaintiffs' October 17, 2017 discovery requests.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Giuffra, Robert) (Entered: 10/19/2017)
550 LETTER addressed to Magistrate Judge James C. Francis IV from Adam T. Klein dated 10/20/2017 re: Plaintiffs' Response to Defendants' 10/19/2017 Letter. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Klein, Adam) (Entered: 10/20/2017)
551 LETTER addressed to Magistrate Judge James C. Francis IV from Robert J. Giuffra, Jr. dated October 23, 2017 re: Reply to Plaintiffs' Response Dated October 20. Document filed by The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 10/23/2017)
552 MEMO ENDORSEMENT on re: 550 Letter, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis, Lisa Parisi. ENDORSEMENT: Application denied. Discovery is not warranted with respect to the pending application to determine the scope and timing of further discovery. If, ultimately, the evidence that the defendants now proffer proves to be misleading, the plaintiffs may seek appropriate relief. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 10/25/2017) (anc) (Entered: 10/25/2017)
NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Robert W. Lehrburger. Please note that this is a reassignment of the designation only. (wb) (Entered: 10/31/2017)
553 MEMORANDUM OF LAW in Opposition re: 545 Memorandum of Law, on the Impact of Changes to Goldman Sachs's Challenged Personnel Evaluation Policies on Class Certification Discovery and Briefing. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 11/03/2017)
554 DECLARATION of Kelly M. Dermody in Support re: 553 Memorandum of Law in Opposition,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 11/03/2017)
555 MEMORANDUM OF LAW in Support of Defendants' Briefing on the Impact of Material Changes (Reply). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 11/13/2017)
556 LETTER MOTION for Oral Argument on the parties' proposed schedules for supplementation of the record addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated 11/14/2017. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 11/14/2017)
557 LETTER addressed to Robert W. Lehrburger from Adam T. Klein dated 11/16/2017 re: Plaintiffs' non−opposition to Goldman's request for oral argument on the recent briefing about the impact, if any, of changes to the challenged personnel evaluation policies on class certification discovery and briefing. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 11/16/2017)
NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Robert W. Lehrburger, for Dispositive Motion (i.e., motion requiring a Report and Recommendation). Magistrate Judge James C. Francis no longer referred to the

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case. (wb) (Entered: 11/27/2017)
NOTICE and ORDER of Hearing: Oral Argument set for 12/13/2017 at 11:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. (rsh) (Entered: 11/29/2017)
Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Oral Argument held on 12/13/2017 at 11:00 a.m. Issues Resolved per Orders Reflected in Transcript. (rsh) (Entered: 12/13/2017)
558 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated December 20, 2017 re: Schedule for Additional Discovery and Briefing. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/20/2017)
559 MEMO ENDORSEMENT (Signed by Magistrate Judge Robert W. Lehrburger on 12/20/2017) (Lehrburger, Robert) (Entered: 12/20/2017)
560 TRANSCRIPT of Proceedings re: Oral Argument held on 12/13/2017 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/10/2018. Redacted Transcript Deadline set for 1/22/2018. Release of Transcript Restriction set for 3/20/2018.(rro) (Entered: 12/20/2017)
561 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Oral Argument proceeding held on 12/13/2017 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 12/20/2017)
562 LETTER MOTION for Extension of Time addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated December 29, 2017. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/29/2017)
563 ORDER granting 562 Letter Motion for Extension of Time. SO ORDERED. (Discovery due by 1/3/2018.) (Signed by Magistrate Judge Robert W. Lehrburger on 12/29/2017) (anc) (Entered: 12/29/2017)
564 JOINT LETTER addressed to Robert W. Lehrburger from Adam T. Klein and Robert J. Giuffra, Jr. dated January 3, 2018 re: Joint Submission. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 01/03/2018)
565 ORDER: The Court believes the schedule on the following page is appropriate. Before finalizing it, however, I would like to hear from the parties whether any dates should be adjusted in light of concerns about which the Court may not be aware. Accordingly, I will hold a telephone conference with the parties to discuss and finalize the schedule set forth below. The parties should contact my Courtroom Deputy to find a suitable date and time; and as further set forth herein. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 1/11/2018) Copies Transmitted By Chambers. (anc) (Entered: 01/11/2018)
NOTICE of Hearing: Telephone Conference set for 1/23/2018 at 2:00 PM before Magistrate Judge Robert W. Lehrburger. Parties shall jointly call the chambers conference line at (212) 805−0113.(rsh) (Entered: 01/18/2018)
566 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated January 23, 2018 re: Proposed Schedule for Discovery and Briefing. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 01/23/2018)
ORDER: As discussed during the telephone conference held today, the parties are to meet and confer to discuss a schedule for class certification and briefing. Plaintiffs'

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reply brief may be due no later than December 3, 2018. The parties shall submit the schedule for the Court's review by January 30, 2018. Thereafter, the parties shall submit status reports to the Court every sixty days, unless directed otherwise. (Signed by Magistrate Judge Robert W. Lehrburger on 1/23/2018) (Lehrburger, Robert) (Entered: 01/23/2018)
Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Telephone Conference held on 1/23/2018 at 2:00 p.m. (rsh) (Entered: 01/23/2018)
567 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated January 30, 2018 re: Proposed Schedule for Class Certification Discovery and Briefing. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 01/30/2018)
568 MEMO ENDORSEMENT on re: 567 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: The dates set forth below are adopted as the schedule going forward. ( Brief due by 9/17/2018., Deposition due by 8/15/2018., Fact Discovery due by 3/30/2018., Reply to Response to Brief due by 11/16/2018., Responses to Brief due by 10/26/2018) (Signed by Magistrate Judge Robert W. Lehrburger on 1/30/2018) (mro) (Entered: 01/30/2018)
569 MOTION for Michelle A. Lamy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14678503. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Affidavit of Michelle A. Lamy and attached Certificate of Good Standing, # 2 Text of Proposed Order)(Lamy, Michelle) (Entered: 02/08/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 569 MOTION for Michelle A. Lamy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14678503. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 02/08/2018)
570 ORDER FOR ADMISSION PRO HAC VICE OF MICHELLE A. LAMY granting 569 Motion for Michelle A. Lamy to Appear Pro Hac Vice. (Signed by Magistrate Judge Robert W. Lehrburger on 2/9/2018) (anc) (Entered: 02/09/2018)
571 MOTION for Daniel S. Stromberg to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14735949. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Stromberg, Danile) (Entered: 02/23/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 571 MOTION for Daniel S. Stromberg to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14735949. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 02/23/2018)
572 ORDER FOR ADMISSION PRO HAC VICE granting 571 Motion for Daniel S. Stromberg to Appear Pro Hac Vice. (Signed by Magistrate Judge Robert W. Lehrburger on 2/26/2018) (mml) (Entered: 02/26/2018)
573 ORDER To assist the Court in its review, by March 26, 2018, the parties shall email to the Court (1) a list of all declarations and depositions cited in the briefing for all pending motions, along with their corresponding ECF numbers, and (2) full, unexcerpted, unredacted copies of all depositions cited in the briefing for all pending motions. Emailing a link to an FTP is acceptable. (Signed by Judge Analisa Torres on 3/23/2018)(DN) (Entered: 03/23/2018)
574 LETTER MOTION for Extension of Time to Comply with Court's March 23, 2018 Order addressed to Judge Analisa Torres from Kelly M. Dermody dated 3/23/2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Dermody, Kelly) (Entered: 03/23/2018)
575 ORDER granting in part and denying in part 574 Letter Motion for Extension of Time. By March 26, 2018, the parties shall email full, unexcerpted, unredacted

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copies of the depositions of the four named Plaintiffs to the Court. By March 28, 2018, the parties shall email the remaining documents identified in the Court's order at ECF No. 573. (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (DN) (Entered: 03/23/2018)
576 JOINT LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated March 26, 2018 re: Joint Progress Report. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 03/26/2018)
577 ORDER: The Court is in receipt of the parties' joint status report filed on March 26, 2018 (Dkt. 576). The Court appreciates the thoroughness of the report and the cooperation between the parties and their counsel. The joint request to take the depositions identified on page six of the report beyond the fact discovery cut−off is granted. (Signed by Magistrate Judge Robert W. Lehrburger on 3/28/2018) (Lehrburger, Robert) (Entered: 03/28/2018)
578 OPINION AND ORDER re: 504 MOTION Defendants' Objections to the Magistrate Judge's Decision Granting in Part Motion to Strike Expert Testimony of Michael P. Ward re: 363 Order on Motion to Strike Order on Motion in Limine filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 506 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Motion to Strike Expert Testimony of Wayne F. Cascio re: 363 Order on Motion to Strike Order on Motion in Limine filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 505 MOTION Defendants' Objections to the Magistrate Judge's Decision Denying Defendants' Motion to Strike Reports, Opinion, and Any Testimony of Plaintiffs' Expert Dr. Henry S. Farber re: 363 Order on Motion to Strike Order o filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc., 503 MOTION Objections to the Magistrate Judge's Decision Granting Motion to Strike Expert Testimony of Michael P. Curran re: 363 Order on Motion to Strike Order on Motion in Limine filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. The Court held in abeyance briefing on objections to Judge Francis' M&O and R&R as to Rule 23(b)(3) class certification while it addressed other motions. See ECF Nos. 370, 437, 454. On April 28, 2017, the Court set a briefing schedule for objections to the M&O and R&R, see ECF No. 488, and briefs were fully submitted on August 1, 2017, see ECF Nos. 522, 531−35. (As further set forth in this Order.) For the reasons stated above, the parties' objections to the M&O on expert testimony are OVERRULED. The parties' objections to the R&R are SUSTAINED in part and OVERRULED in part. Plaintiffs' motion to certify the class is GRANTED in part and DENIED in part. The Clerk of Court is directed to terminate the motions at ECF Nos. 501, 502, 503, 504, 505, 506, and 511. (Signed by Judge Analisa Torres on 3/30/2018) (cf) Modified on 3/30/2018 (ama). Modified on 5/21/2018 (cf). (Entered: 03/30/2018)
579 LETTER MOTION to Stay Rule 23(b)(3) Class Notice and Discovery addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 13, 2018. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 04/13/2018)
580 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody dated April 16, 2018 re: 579 LETTER MOTION to Stay Rule 23(b)(3) Class Notice and Discovery addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 13, 2018. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 04/16/2018)
581 ORDER denying 579 Letter Motion to Stay. For these reasons, and having considered the parties' submissions and all prior proceedings, there is insufficient basis to warrant granting a stay, and Goldman's request is denied. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/17/2018) Copies Sent By Chambers. (mml) (Entered: 04/17/2018)
582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 04/18/2018)

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585 REDACTION to 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . Memorandum in Support of Motion to Modify Schedule (unredacted copy filed with chambers as per Individual Rule III.G.2) by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich(Dermody, Kelly) (Entered: 04/19/2018)
586 REDACTION to 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . Declaration of Anne B. Shaver in Support of Motion to Modify Schedule (unredacted copy filed with chambers as per Individual Rule III.G.2) by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Dermody, Kelly) (Entered: 04/19/2018)
587 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 23, 2018 re: Plaintiffs' Motion to Modify Schedule. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 04/23/2018)
588 SCHEDULING ORDER: Pre−Motion Telephone Conference set for 5/2/2018 at 3:30 PM before Magistrate Judge Robert W. Lehrburger. Parties shall jointly call the chambers conference line at (212) 805−0113. (Signed by Magistrate Judge Robert W. Lehrburger on 4/24/2018) (rsh) (Entered: 04/24/2018)
589 NOTICE OF APPEARANCE by Michael Christopher Danna on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Danna, Michael) (Entered: 04/24/2018)
590 MEMORANDUM OF LAW in Support re: 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 04/24/2018)
591 DECLARATION of Anne B. Shaver in Support re: 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, .. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Dermody, Kelly) (Entered: 04/24/2018)
592 ORDER: As directed during today's telephone conference addressing Plaintiffs' motion to modify the discovery schedule, Defendant shall submit its opposition papers by May 23, 2018, and Plaintiffs shall submit their reply by June 6, 2018. The Courtroom Deputy will contact the parties to schedule a date for oral argument. (Signed by Magistrate Judge Robert W. Lehrburger on 5/2/18) (Lehrburger, Robert) (Entered: 05/02/2018)
Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Pre−Motion Telephone Conference held on 5/2/2018 at 3:30 p.m. (rsh) (Entered: 05/07/2018)
593 SCHEDULING ORDER: Oral Argument set for 6/27/2018 at 2:30 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 5/7/2018) (rsh) (Entered: 05/07/2018)
594 TRANSCRIPT of Proceedings re: Pre−Motion Telephone Conference held on 5/2/2018 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2018. Redacted Transcript Deadline set for 6/8/2018. Release of Transcript Restriction set for 8/6/2018.(rro) (Entered: 05/08/2018)
595 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Pre−Motion Telephone Conference proceeding held on 5/2/2018 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript

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may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 05/08/2018)
596 STATUS REPORT. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/23/2018)
597 MEMORANDUM OF LAW in Opposition re: 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 05/23/2018)
598 DECLARATION of Robert J. Giuffra, Jr. in Opposition re: 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21)(Giuffra, Robert) (Entered: 05/23/2018)
599 LETTER MOTION for Extension of Time for Plaintiffs' production of new or revised expert reports addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated May 24, 2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Klein, Adam) (Entered: 05/24/2018)
600 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. dated May 30, 2018 re: Plaintiffs' Request to Delay Deadline for Submitting Their Expert Reports. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/30/2018)
601 ORDER denying 599 Letter Motion for Extension of Time: Plaintiffs' request for an adjournment of the deadline for production of revised or new expert reports is denied.(HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 06/04/2018)
602 REPLY MEMORANDUM OF LAW in Support re: 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . (Redacted version; unredacted version filed with chambers as per Individual Rule III.G.2). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/06/2018)
603 DECLARATION of Michelle A. Lamy (Redacted version; unredacted version filed with chambers as per Individual Rule III.G.2) in Support re: 602 Reply Memorandum of Law in Support of Motion,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/06/2018)
604 DECLARATION of Henry S. Farber (Redacted version; unredacted version filed with chambers as per Individual Rule III.G.2) in Support re: 602 Reply Memorandum of Law in Support of Motion,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/06/2018)
605 NOTICE OF APPEARANCE by Patrick William Shea on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Shea, Patrick) (Entered: 06/08/2018)
606 REPLY MEMORANDUM OF LAW in Support re: 582 MOTION to Modify Schedule re: 565 Order,, 568 Memo Endorsement, Set Deadlines,, . . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/15/2018)
607 DECLARATION of Michelle A. Lamy in Support re: 606 Reply Memorandum of Law in Support of Motion,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/15/2018)
608 DECLARATION of Henry S. Farber in Support re: 606 Reply Memorandum of Law in Support of Motion,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/15/2018)

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Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Oral Argument held on 6/27/2018 at 2:30 p.m. (rsh) (Entered: 06/27/2018)
609 ORDER denying 582 Motion. Plaintiffs' motion to modify the scheduling order is denied as ordered from the bench at today's oral argument. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 06/27/2018)
610 JOINT LETTER MOTION for Conference Regarding the Form of Class Notice addressed to Magistrate Judge Robert W. Lehrburger from Rober J. Giuffra, Jr. and Adam T. Klein dated 7/9/2018. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Giuffra, Robert) (Entered: 07/09/2018)
611 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. dated 7/9/2018 re: Standard for Class Certification. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 07/09/2018)
612 DECLARATION of Robert J. Giuffra, Jr. in Support re: 610 JOINT LETTER MOTION for Conference Regarding the Form of Class Notice addressed to Magistrate Judge Robert W. Lehrburger from Rober J. Giuffra, Jr. and Adam T. Klein dated 7/9/2018.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Giuffra, Robert) (Entered: 07/09/2018)
613 TRANSCRIPT of Proceedings re: Oral Argument held on 6/27/2018 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/2/2018. Redacted Transcript Deadline set for 8/13/2018. Release of Transcript Restriction set for 10/10/2018.(rro) (Entered: 07/12/2018)
614 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Oral Argument proceeding held on 6/27/2018 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 07/12/2018)
615 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated July 13, 2018 re: Schedule for the Completion of Fact Discovery, Expert Discovery, and Reports and Briefing of Plaintiffs' Motion for Class Certification Pursuant to Federal Rule of Civil Procedure 23(b)(2). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 07/13/2018)
616 MEMO ENDORSEMENT on re: 615 LETTER addressed to Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated July 13, 2018 re: Schedule for the Completion of Fact Discovery, Expert Discovery, and Reports and Briefing of Plaintiffs' Motion for Class Certification Pursuant to Federal Rule of Civil Procedure 23(b)(2). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: The parties' proposed revised schedule is granted. So ordered. (Brief due by 10/18/2018. Deposition due by 9/21/2018. Reply to Response to Brief due by 12/20/2018. Responses to Brief due by 11/29/2018). (Signed by Magistrate Judge Robert W. Lehrburger on 7/16/2018) (rjm) (Entered: 07/16/2018)
617 STATUS REPORT. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 07/23/2018)
618 MEMORANDUM AND ORDER ON CLASS NOTICE terminating 610 Letter Motion for Conference. Accordingly, Goldman is directed to produce the requested class contact information without delay. In sum, the rulings set forth above, taken together, will properly and best serve the purposes and principles governing class notification and the interests of class members, including both those who choose to do nothing and thereby remain in the action and those who may choose to opt out. (Signed by Magistrate Judge Robert W. Lehrburger on 7/24/2018) Copies Sent By

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Chambers. (mml) (Entered: 07/24/2018)
619 NOTICE OF APPEARANCE by Sabine Jean on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Jean, Sabine) (Entered: 08/15/2018)
620 MANDATE of USCA (Certified Copy) USCA Case Number 18−1075. Petitioners request leave, pursuant to Federal Rule of Civil Procedure 23(f), to appeal from the district court's order granting class certification. Petitioners also move for leave to file a reply in further support of their petition. Certain non−parties move for leave to file a brief as amici curiae. Upon due consideration, it is hereby ORDERED that the motion for leave to file a reply and the motion for leave to file a brief amici curiae are GRANTED. See Fed. R. App. P. 2, 29(a). It is further ORDERED that the Rule 23(f) petition for leave to appeal is DENIED because an immediate appeal is unwarranted. See Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139−40 (2d Cir. 2001). Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Order: 9/4/2018. (tp) (Entered: 09/04/2018)
Transmission of USCA Mandate/Order to the District Judge re: 620 USCA Mandate − Other. (tp) (Entered: 09/04/2018)
621 LETTER MOTION for Extension of Time re Schedule for Expert Discovery addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein dated September 5, 2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 09/05/2018)
622 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated September 6, 2018 re: 621 LETTER MOTION for Extension of Time re Schedule for Expert Discovery addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein dated September 5, 2018. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 09/06/2018)
623 ORDER granting in part and denying in part 621 Letter Motion for Extension of Time: Plaintiff shall have up to and including September 28, 2018 (a one−week extension) to take the deposition of Defendant's expert. (Plaintiff's counsel indicates unexpected scheduling issues the week of September 21. September 21 falls on a Friday. Accordingly, the Court understands that week to be the week of September 17−21.) Plaintiff's request for an extension is otherwise denied, absent agreement. The 5−day period between production of Defendant's expert report and the expert's back up files is not out of the ordinary. Nothing in Plaintiff's letter demonstrates a need to extend the time for Plaintiff's expert reply reports. At the same time, the Court expects all parties and counsel to cooperate and extend professional courtesies in scheduling. SO ORDERED. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 09/06/2018)
624 STATUS REPORT. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 09/20/2018)
625 LETTER MOTION for Conference re Setting Deadlines for Merits Discovery, Pre−trial Submissions, and Class Trial and Request to Vacate Remaining Deadlines Related to Fed. R. Civ. P. 23(b)(2) Class Certification addressed to Judge Analisa Torres from Adam T. Klein dated September 27, 2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 09/27/2018)
626 LETTER RESPONSE to Motion addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated October 2, 2018 re: 625 LETTER MOTION for Conference re Setting Deadlines for Merits Discovery, Pre−trial Submissions, and Class Trial and Request to Vacate Remaining Deadlines Related to Fed. R. Civ. P. 23(b)(2) Class Certification addressed to Judge Analisa Torre . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 10/02/2018)
627 ORDER: The Court is in receipt of Plaintiffs' letter (ECF 625) stating that Plaintiffs withdraw their currently pending motion for class certification pursuant to Fed. R. Civ. P. 23(b)(2), and requesting that the Court vacate all remaining deadlines related to Rule 23(b)(2) certification and schedule a case management conference to schedule merits discovery and future deadlines for trial of the certified Rule 23(b)(3) class. The

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Court is also in receipt of Defendant's letter (ECF 626) acknowledging Plaintiffs' withdrawal of its motion for Rule 23(b)(2) certification, asking for a scheduling conference, and taking issue with certain statements made in Plaintiffs' letter. Accordingly, and based on Plaintiffs' withdrawal of their motion to certify a class pursuant to Fed. R. Civ. P. 23(b)(2), it is hereby ordered that (1) all remaining deadlines related to Rule 23(b)(2) class discovery are vacated; (2) a case management conference will be scheduled to address deadlines for merits discovery and subsequent proceedings, as well as any other issues relevant to the Rule 23(b)(3) action; and (3) the parties shall meet and confer in good faith and, at least five days before the conference, shall submit a joint letter setting forth a proposed schedule and any items of disagreement. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 10/03/2018)
628 SCHEDULING ORDER: Case Management Conference set for 10/22/2018 at 3:30 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Counsel shall jointly complete and file Judge Lehrburger's [Proposed] Civil Case Management Plan and Scheduling Order, which must be submitted in compliance with Judge Lehrburger's Individual Practices no later than one week before the initial case management conference. If suitable for the case, the parties are encouraged to use Judge Lehrburger's model Joint Electronic Discovery Submission and Proposed Order. These forms are available on the SDNY website at http://nysd.uscourts.gov/judge/Lehrburger. (Signed by Magistrate Judge Robert W. Lehrburger on 10/3/2018) (rsh) (Entered: 10/03/2018)
629 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. and Adam T. Klein dated October 17, 2018 re: Rule 23(b)(3) Proceedings. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 10/17/2018)
Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Case Management Conference held on 10/22/2018 at 3:30 p.m. (rsh) (Entered: 10/22/2018)
630 SCHEDULING ORDER: Motions: Dispositive, Daubert and Decertification due by 11/14/2019. Completed Briefing on Dispositive, Daubert and Decertification Motions due by 2/14/2020. Fact Discovery due by 6/21/2019. Expert Discovery due by 10/14/2019.Pretrial Order and Motions In Limine due 30 days after resolution of dispositive, Daubert and decertification motions. The parties shall coordinate with each other and this Court's Deputy to set dates for a status conference to be held approximately every 2 months from the date of this Order through the end of expert discovery. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 10/24/2018) Copies Transmitted By Chambers. (ne) (Entered: 10/24/2018)
631 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated October 29, 2018 Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Lamy, Michelle) (Entered: 10/29/2018)
632 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated October 29, 2018 re: Authority Relevant To Trial Procedure. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 10/30/2018)
633 MOTION for Michael Levin−Gesundheit to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−15864715. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Affidavit of Michael Levin−Gesundheit and attached Certificate of Good Standing, # 2 Text of Proposed Order Granting Pro Hac Vice Admission for Michael Levin−Gesundheit)(Levin−Gesundheit, Michael) Modified on 11/5/2018 (bcu). (Entered: 11/05/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 633 MOTION for Michael Levin−Gesundheit to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−15864715. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 11/05/2018)

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634 TRANSCRIPT of Proceedings re: Case Management Conference held on 10/22/2018 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Mary Greco, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/26/2018. Redacted Transcript Deadline set for 12/6/2018. Release of Transcript Restriction set for 2/3/2019.(vba) (Entered: 11/05/2018)
635 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Case Management Conference proceeding held on 10/22/2018 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(vba) (Entered: 11/05/2018)
636 ORDER FOR ADMISSION PRO HAC VICE OF MICHAEL I. LEVIN−GESUNDHEIT granting 633 Motion for Michael Levin−Gesundheit to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice as counsel for Plaintiff in the above−captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing the discipline of attorneys. (Signed by Magistrate Judge Robert W. Lehrburger on 11/6/2018) (mml) (Entered: 11/06/2018)
637 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated November 14, 2018 re: Class Notice. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Giuffra, Robert) (Entered: 11/14/2018)
638 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated November 15, 2018 re: Response to Defendants' letter dated November 14, 2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 11/15/2018)
639 ORDER: The Court is in receipt of the parties' correspondence concerning the specific way in which a class action opt−out hyperlink should be presented. (See ECF 637 and 638.) The Court previously issued an order (the "Order") concerning the form and content of class notice (the "Notice"). (See ECF 618.) The Court has considered the same factors and standards for class notice recognized in the Order and directs as follows: 1. The language under Section 9 ("How do I exclude myself from the lawsuit") of the Notice should be modified as follows. What currently reads as "(2) if you have received this Notice electronically, by submitting the form electronically via [hyperlink to Opt−Out Request Form]" should be revised to "(2) if you have received this Notice electronically, by submitting the form electronically via the hyperlink provided on the Class Action Opt−Out Form attached to this notice (to do so, you will need to use the following unique identifier, as further set forth in this Order. (Signed by Magistrate Judge Robert W. Lehrburger on 11/16/2018) Copies Sent By Chambers. (mml) (Entered: 11/16/2018)
640 SCHEDULING ORDER: Status Conference set for 12/20/2018 at 10:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 12/3/2018) (rsh) (Entered: 12/03/2018)
641 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve An Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 10, 2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1)(Klein, Adam) (Entered: 12/10/2018)
642 LETTER MOTION for Conference Requesting Pre−Motion Conference to Resolve an Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 12, 2018. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna

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Orlich. (Attachments: # 1 Exhibit A)(Dermody, Kelly) (Entered: 12/12/2018)
643 LETTER RESPONSE to Motion addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated 12/13/2018 re: 641 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve An Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 10, 2018. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Giuffra, Robert) (Entered: 12/13/2018)
644 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 14, 2018 re: Authority Relevant to Trial Procedure. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/14/2018)
645 LETTER RESPONSE to Motion addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 15, 2018 re: 642 LETTER MOTION for Conference Requesting Pre−Motion Conference to Resolve an Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 12, 2018. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 12/15/2018)
646 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 17, 2018 re: December 14, 2018 Letter from Robert J. Giuffra re: Authority Relevant to Trial Procedure (ECF No. 644). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 12/17/2018)
647 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/17/2018)
648 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 18, 2018 re: 641 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve An Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 10, 2018. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Klein, Adam) (Entered: 12/18/2018)
649 NOTICE OF APPEARANCE by Hilary M. Williams on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Williams, Hilary) (Entered: 12/19/2018)
650 NOTICE OF APPEARANCE by Sharon L. Nelles on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Nelles, Sharon) (Entered: 12/19/2018)
651 NOTICE OF APPEARANCE by Amanda Flug Davidoff on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Davidoff, Amanda) (Entered: 12/19/2018)
652 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 653 Letter Reply) − LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 19, 2018 re: 641 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve An Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 10, 2018. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) Modified on 12/20/2018 (db). (Entered: 12/19/2018)
653 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 19, 2018 re: 641 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve An Outstanding Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 10, 2018. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 12/19/2018)

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Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 12/20/2018 at 10:00 a.m. (rsh) (Entered: 12/20/2018)
654 SCHEDULING ORDER: Status Conference set for 2/25/2019 at 2:00 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 12/20/2018) (rsh) (Entered: 12/20/2018)
655 SCHEDULING ORDER terminating 641 Letter Motion for Conference; terminating 642 Letter Motion for Conference. 2. By January 15, 2019, the parties shall complete the meet and confer process for document discovery and electronically stored information. The parties shall have until January 22, 2019, to file a letter outlining any unresolved issues for which the Court's assistance is needed. 3. The parties shall continue to submit a joint status report before each bimonthly status conference. In addition, the parties may file letters with the Court regarding issues that arise in the interim, so long as the parties have satisfied their obligations to meet and confer. 4. This Order resolves Dkt. Nos. 641 and 642. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 12/20/2018) Copies Sent By Chambers. (mml) (Entered: 12/20/2018)
656 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 21, 2018 re: December 20, 2018 Scheduling Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/21/2018)
657 AMENDED SCHEDULING ORDER: This Order amends and replaces the order at Docket No. 655. Pursuant to the conference held on December 20, 2018, and for the reasons stated on the record, the Court orders as follows: 1. Defendants shall produce to Plaintiffs what has been referred to as supplemental "boy's club" anecdotal evidence that is related to the practices and procedures that form the basis for the Phase 1 trial of the certified class disparate impact and disparate treatment claims. Defendants need not produce "boy's club" evidence for incidents that do not relate to the practices and procedures that form the basis for the Phase 1 trial of certified class claims. The Court makes no ruling with respect to whether the "boy's club" evidence not produced for Phase 1 shall be the subject of discovery for the Phase 2 trial that will focus on individualized issues and damages. 2. By January 15, 2019, the parties shall complete the meet and confer process for document discovery and electronically stored information. The parties shall have until January 22, 2019, to file a letter outlining any unresolved issues for which the Court's assistance is needed. 3. The parties shall continue to submit a joint status report before each bi−monthly status conference. In addition, the parties may file letters with the Court regarding issues that arise in the interim, so long as the parties have satisfied their obligations to meet and confer. 4. This Order resolves Dkt. nos. 641 and 642. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 12/21/2018) (kv) (Entered: 12/21/2018)
658 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated December 26, 2018 re: Request That the Information Redacted From ECF Nos. 641 and 643 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 12/26/2018)
659 TRANSCRIPT of Proceedings re: Status Conference held on 12/20/2018 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/17/2019. Redacted Transcript Deadline set for 1/28/2019. Release of Transcript Restriction set for 3/27/2019.(aea) (Entered: 12/27/2018)
660 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Status Conference proceeding held on 12/20/2018 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(aea) (Entered: 12/27/2018)

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661 ORDER: Defendants' request to keep the redacted information contained in ECF Nos. 641 and 643 under seal is GRANTED for the reasons as substantially set forth in Defendants' letter (ECF No. 658.) (Signed by Magistrate Judge Robert W. Lehrburger on 12/27/18) (Lehrburger, Robert) (Entered: 12/27/2018)
662 TRANSCRIPT of Proceedings re: Status Conference held on 12/20/2018 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/25/2019. Redacted Transcript Deadline set for 2/4/2019. Release of Transcript Restriction set for 4/4/2019.(vba) (Entered: 01/04/2019)
663 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Status Conference proceeding held on 12/20/2018 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(vba) (Entered: 01/04/2019)
664 STATUS REPORT. Joint Letter to Judge Lehrburger Informing Court of Conditional Agreement Regarding Electronically Stored Information (ESI) Custodians Pursuant to ECF No. 657, Paragraph 2 Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich, Lisa Parisi.(Levin−Gesundheit, Michael) (Entered: 01/22/2019)
665 PROPOSED STIPULATION AND ORDER. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 02/08/2019)
666 JOINT STIPULATION AND ORDER: IT IS HEREBY STIPULATED, AGREED AND ORDERED as follows: The parties agree that the Employee Data is designated and will continue to be treated as Attorneys' Eyes Only under the Protective Order, and that Goldman Sachs' production of the Employee Name Field also will be designated and treated as Attorneys' Eyes Only under the Protective Order. The parties agree to redact and/or use employee ID numbers in lieu of names in documents filed publicly with the Court referencing the Employee Data where anindividual's name or an individual's Employee Data is identified, subject to Paragraph 4 below. The parties agree to redact any Employee Data, including the Employee Name Field where relevant, included in any document filed with the Court. Plaintiffs agree not to seek to unseal any such information, and not to oppose any request by Defendants to keep this information redacted in any document filed with the Court, subject to Paragraph 4 below. The parties reserve all rights as to the use at trial of employee names, the Employee Data, or the Employee Name Field produced pursuant to this Stipulation. Defendants will produce to Plaintiffs the Employee Name Field (together with Unique Employee IDs to connect the two data sets) within five (5) business days of the execution of this Stipulation. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 2/11/2019) (ama) (Entered: 02/11/2019)
667 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated February 11, 2019 re: October 24, 2018 Scheduling Order (ECF No. 630). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Dermody, Kelly) (Entered: 02/11/2019)
668 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated February 13, 2019 re: Response to Plaintiffs' February 11, 2019 Letter (ECF No. 667). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giuffra, Robert) (Entered: 02/13/2019)
669 ORDER: The Court is in receipt of the parties' correspondence regarding Defendant's intention to move to compel arbitration of individual class members. The Court will address that issue with the parties at the February 25, 2019 status conference. In advance, it would be helpful to the Court for the parties to provide authority

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addressing, in the context of class actions, the relative timing of motions to compel arbitration of individual class members, particularly where the action proceeds in phases. Accordingly, the parties are directed to submit letters on that issue (no longer than three pages) by February 21, 2019. So Ordered. (Signed by Magistrate Judge Robert W. Lehrburger on 2/14/2019) (Lehrburger, Robert) (Entered: 02/14/2019)
670 NOTICE OF APPEARANCE by Elizabeth A Cassady on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Cassady, Elizabeth) (Entered: 02/15/2019)
671 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated February 18, 2019 re: February 14, 2019 Scheduling Order (ECF No. 669). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 02/18/2019)
672 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated February 19, 2019 re: Response to Plaintiffs' February 18, 2019 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 02/19/2019)
673 ORDER: The Court is in receipt of the parties' correspondence regarding scheduling discussion of the timing of Defendant's anticipated motion(s) to compel arbitration. The Court appreciates Plaintiff counsel's concern and also does not believe a pre−planned vacation should be interrupted for this issue. At the same time, the Court believes Plaintiff's colleagues and co−counsel are perfectly able to address the issue. Accordingly, the Court orders as follows: The parties should confer in good faith and coordinate with my Courtroom Deputy for a date and time when the status conference currently scheduled for February 25 can be rescheduled to a date in March. If the parties cannot find a common date and time that coincides with the Court's calendar, the February 25 conference will go forward as scheduled, and the Court will hear the parties concerning the timing for Defendant's anticipated motion to compel arbitration, without prejudice to further discussing the issue with input from Ms. Dermody at a later time. (Signed by Magistrate Judge Robert W. Lehrburger on 2/19/2019) (Lehrburger, Robert) (Entered: 02/19/2019)
674 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Giuffra, Robert) (Entered: 02/21/2019)
675 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated February 21, 2019 re: February 14, 2019 Request for Authority (ECF No. 669). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 02/21/2019)
676 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated February 21, 2019 re: Response to the Court's February 14, 2019 Order (ECF No. 669) Requesting Authority Addressing the Timing of Motions To Compel Arbitration of Absent Class Members. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 02/21/2019)
677 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated February 22, 2019 re: Defendants' Response to Plaintiffs' February 15, 2019 Letter Regarding Defendants' Request for a Trial Plan. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 02/22/2019)
678 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated February 22, 2019 re: Request That the Material Redacted From or Filed Under Seal in Ex. A−F to ECF No. 667 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 02/22/2019)
679 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Michelle A. Lamy dated February 25, 2019 re: Plaintiffs' Response to Defendants' February 21, 2019 Letter (ECF No. 677−1). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1)(Lamy, Michelle) (Entered: 02/25/2019)

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Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 2/25/2019 at 2:00 p.m. (rsh) (Entered: 02/25/2019)
680 SCHEDULING ORDER: Status Conference set for 4/25/2019 at 10:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 2/25/2019) (rsh) (Entered: 02/25/2019)
681 ORDER: Pursuant to the conference held on February 25, 2019, and for the reasons stated on the record, the Court orders as follows: 1. The parties shall redact personally identifying information, names and contact information, contained in arbitration demand letters sent to class members. 2. Severance agreements between Goldman Sachs and class members shall be maintained under seal. If a party wishes to unseal these records in the future, they may make the appropriate application to the Court after meeting and conferring with opposing counsel, as further set forth in this Order. 5. The parties shall meet and confer regarding interim ESI discovery deadlines. The parties shall submit proposed deadlines to the Court by March 5, 2019. 6. The parties shall meet and confer about rescheduling the April 25, 2019 status conference and coordinate with the Court's Deputy to determine whether there is a suitable date and time. The conference remains scheduled for April 25, 2019 unless and until modified. 7. To facilitate the filing of future joint status reports, joint status reports shall be due by 5:00 p.m. EST three business days prior to future status conferences. The initial exchange of draft sections of joint status reports between the parties shall occur no later than 5:00 EST the business day prior to the filing deadline. (Signed by Magistrate Judge Robert W. Lehrburger on 2/26/2019) Copies Sent By Chambers. (mml) (Entered: 02/26/2019)
682 The scheduled Status Conference has been rescheduled for 4/30/2019 at 2:00 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (rsh) (Entered: 02/27/2019)
685 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated March 1, 2019 re: Schedule for Briefing Defendants' Motions to Compel Arbitration. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit)(Giuffra, Robert) (Entered: 03/01/2019)
686 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated March 4, 2019 re: Goldman's March 1, 2019 Letter re Schedule for Briefing Goldman's Motion to Compel Arbitration (ECF No. 685). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 03/04/2019)
687 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated March 5, 2019 re: Plaintiffs' March 4, 2019 Letter re Schedule for Briefing Defendants' Motions to Compel Arbitration. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 03/05/2019)
688 TRANSCRIPT of Proceedings re: Status Conference held on 2/25/2019 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/26/2019. Redacted Transcript Deadline set for 4/5/2019. Release of Transcript Restriction set for 6/3/2019.(aea) (Entered: 03/05/2019)
689 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Status Conference proceeding held on 2/25/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(aea) (Entered: 03/05/2019)

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690 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Rachel Geman and Adam Klein dated March 5, 2019 re: Goldman's March 5, 2019 Letter re Schedule for Briefing Goldman's Motion to Compel Arbitration (ECF No. 687). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Geman, Rachel) (Entered: 03/05/2019)
691 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 03/05/2019)
692 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated March 6, 2019 re: Plaintiffs' March 5, 2019 Letter re Schedule for Briefing Defendants' Motions to Compel Arbitration. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 03/06/2019)
***DELETED DOCUMENT. Deleted document numbers [683, 684] Transcript; Notice of Filing Transcript. These documents were incorrectly filed in this case. (aea) (Entered: 03/06/2019)
693 ORDER ON ESI SCHEDULE: Having considered the parties' joint submission on a proposed ESI discovery schedule, and having considered the areas of dispute, the Court orders the following schedule, as further set forth in this Order. To the extent it may assist the parties in further negotiations, based on the parties' arguments presented in their joint submission, the Court notes the following: 1. The concept of using different search terms for different categories of custodians seems sensible; 2. The Court agrees that at some juncture, Plaintiffs should be able to assess search terms without fully exported ESI; 3. The Court agrees that the parties are in the best position to evaluate the details of document production. At the same time, the Court believes it is helpful to have deadlines to keep the parties on track. (Signed by Magistrate Judge Robert W. Lehrburger on 3/6/2019) Copies Sent By Chambers. (mml) (Main Document 693 replaced on 3/6/2019) (mml). (Entered: 03/06/2019)
694 ORDER ON MOTION SCHEDULING: By April 12, 2019, (a) Defendants shall file their motion to compel arbitration; Defendants opening brief shall be no longer than 35 pages; and (b) Plaintiffs shall file their cross−motion; Plaintiffs opening brief shall be no longer than 25 pages. 5. By June 11, 2019, (a) Plaintiffs shall file their opposition to Defendants' motion to compel arbitration; Plaintiffs' opposing brief shall be no longer than 35 pages; and (b) Defendants shall file their opposition to Plaintiffs' cross motion; Defendants' opposing brief shall be no more than 25 pages. 6. By July 11, 2019, (a) Defendants shall file their reply in support of their motion to compel arbitration; Defendants' reply brief shall be no more than 15 pages; and (b) Plaintiff's shall file their reply in support of their cross−motion; Plaintiffs' reply brief shall be no longer than 10 pages. 7. By August 9, 2019, (a) Plaintiffs shall file their sur−reply in opposition to the motion to compel arbitration; Plaintiff's sur−reply shall be no longer than 8 pages; and (b) Defendants shall file their sur−reply in opposition to the cross−motion; Defendants' surreply shall be on longer than 5 pages, as further set forth in this Order. Motions due by 4/12/2019. Cross Motions due by 4/12/2019. Responses due by 6/11/2019 Replies due by 7/11/2019. (Signed by Magistrate Judge Robert W. Lehrburger on 3/6/2019) Copies Sent By Chambers. (mml) (Entered: 03/06/2019)
Set/Reset Deadlines: Surreplies due by 8/9/2019. (mml) (Entered: 03/06/2019)
695 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated March 11, 2019. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Klein, Adam) (Entered: 03/11/2019)
696 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated 03/12/19. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 03/12/2019)

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697 NOTICE OF APPEARANCE by Andrew J. Peck on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Peck, Andrew) (Entered: 03/13/2019)
698 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated March 14, 2019 re: 695 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated March 11, 2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Ostrager, Ann−Elizabeth) (Entered: 03/14/2019)
699 LETTER MOTION for Extension of Time Re ESI Export Schedule addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated 03/14/2019. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 03/14/2019)
700 DECLARATION of Joseph Yanagisawa in Support re: 699 LETTER MOTION for Extension of Time Re ESI Export Schedule addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated 03/14/2019.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 03/14/2019)
701 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated 03/15/2019 re: 696 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated 03/12/19. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ostrager, Ann−Elizabeth) (Entered: 03/15/2019)
702 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated March 18, 2019 re: Goldman's March 14, 2019 correspondence opposing Plaintiffs request for document sampling [ECF No. 698]. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 03/18/2019)
703 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated March 18, 2019 re: Goldman's March 14, 2019 Correspondence for Extension of Time Re ESI Export Schedule [ECF No. 699]. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 03/18/2019)
704 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated 3/18/19 re: 696 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated 03/12/19. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Klein, Adam) (Entered: 03/18/2019)
705 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated March 19, 2019 re: 699 LETTER MOTION for Extension of Time Re ESI Export Schedule addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated 03/14/2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 03/19/2019)
706 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated March 19, 2019 re: 696 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated 03/12/19. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 03/19/2019)

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707 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated 03/19/2019 re: 695 LETTER MOTION for Conference re: Requesting Pre−Motion Conference to Resolve a Discovery Dispute addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated March 11, 2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 03/19/2019)
708 ORDER: ESI SCHEDULE terminating 695 Letter Motion for Conference; terminating 696 Letter Motion for Conference; granting 699 Letter Motion for Extension of Time. On March 6, 2019, this Court ordered a schedule for the parties to resolve disputes about ESI and for Defendants' export, review and production of ESI (the "Scheduling Order"). (See Dkt. 693.) The Scheduling Order has spawned three letter motions by the parties. (See Dkt. 695, 696, 699.) This order resolves those disputes as follows. 1. Plaintiffs' request to engage in document sampling to aid selection of search terms (Dkt. 695): Generally speaking, the Court agrees with Plaintiffs that, particularly in cases of this magnitude, using sampling and techniques associated with computer assisted review is preferable to less discriminating search−term methodology. Further, the Court has reviewed the Defendants' proposed search term strings and finds them to be overly restrictive in most instances. The Court therefore directs Defendants to choose one of the following paths to follow, as further set forth in this Order. 2. Plaintiffs' request to compel production of pre−2012 ESI (Dkt. 696): The parties shall negotiate in good faith a reasonable search process for pre−2012 ESI that is geared to finding relevant information not previously produced and at the same time avoiding undue burden and cost. As part of this negotiation, Plaintiffs must provide, if they have not already done so, a description of the types of information they expect would be found that would not have been captured by ESI search and collection during class certification, as further set forth in this Order. 3. Defendants' request to modify the Scheduling Order (Dkt. 699): The Court finds somewhat dubious Defendants' plea for more time to complete export of custodial data. Defendants previously assured Plaintiffs and the Court that Defendants would complete export of the first 46 custodians by March 18, 2019. That apparently has not been accomplished. Meanwhile, Mr. Yanagisawa's declaration attesting to time limitations and burden is quite general. It also does not identify by what date Defendants can complete the export process; nor does it state that Defendants require an extension to the date requested by counsel. Nonetheless, the Court accepts that Defendants require some amount of time beyond what was previously scheduled for completion of the exporting process. The Court agrees with Plaintiffs that having interim dates and reporting deadlines is useful. Accordingly, the Schedule is modified as follows, as further set forth in this Order. (Signed by Magistrate Judge Robert W. Lehrburger on 3/19/2019) Copies Sent By Chambers. (mml) (Entered: 03/19/2019)
709 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein, Kelly M. Dermody, and Ann−Elizabeth Ostrager dated 3/29/19 re: Agreement on ESI Search Terms. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 03/29/2019)
710 MEMO ENDORSEMENT on re: 709 Letter, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/1/2019) (mml) (Entered: 04/01/2019)
711 NOTICE of Filing of (Proposed) Supplemental Protective Order re: 51 Protective Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 04/10/2019)
712 SUPPLEMENTAL PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge Robert W. Lehrburger on 4/11/2019) (mml) (Entered: 04/11/2019)
713 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated April 11, 2019 re: Filing of Exhibits to Defendants' Motion to Compel Arbitration. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 04/11/2019)

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714 MEMO ENDORSEMENT on re: 713 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: A sensible approach. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/11/2019`) (mml) (Entered: 04/11/2019)
715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 04/12/2019)
716 DECLARATION of Robert J. Giuffra, Jr. in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix A−C, # 2 Appendix D, # 3 Appendix E−1, # 4 Appendix E−2, # 5 Appendix E−3, # 6 Appendix E−4, # 7 Appendix E−5, # 8 Appendix E−6, # 9 Appendix E−7, # 10 Appendix F, # 11 Exhibit 1−1287, # 12 Exhibit 1288−1289, # 13 Exhibit 1300−1315, # 14 Exhibit 1316−1328, # 15 Exhibit 1329−1330, # 16 Exhibit 1331−1340, # 17 Exhibit 1341−1350, # 18 Exhibit 1351−1360, # 19 Exhibit 1361−1362, # 20 Exhibit 1363−1370, # 21 Exhibit 1371−1390, # 22 Exhibit 1391−1400, # 23 Exhibit 1401−1420, # 24 Exhibit 1421−1475)(Giuffra, Robert) (Entered: 04/12/2019)
717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 04/12/2019)
718 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 727 Memorandum) − MEMORANDUM OF LAW in Support re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion . (redacted document). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) Modified on 4/22/2019 (db). (Entered: 04/12/2019)
719 DECLARATION of Michael Levin−Gesundheit in Support re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C (filed under seal))(Levin−Gesundheit, Michael) (Entered: 04/12/2019)
720 PROPOSED ORDER. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. Related Document Number: 717 . (Levin−Gesundheit, Michael) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 04/12/2019)
721 DECLARATION of Kathleen Cupertino in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 04/12/2019)
722 DECLARATION of David Landman in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 04/12/2019)
723 DECLARATION of Eric Dias in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1−8, # 2 Exhibit 9−18, # 3 Exhibit 19−26, # 4 Exhibit 27−30, # 5 Exhibit 31−60, # 6 Exhibit 61−62)(Giuffra, Robert) (Entered: 04/12/2019)
724 DECLARATION of Joseph Yanagisawa in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1−9, # 2 Exhibit 10)(Giuffra, Robert) (Entered:

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04/12/2019)
725 DECLARATION of Michael Becker in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class.. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1 (Part 1 of 2), # 2 Exhibit 1 (Part 2 of 2))(Giuffra, Robert) (Entered: 04/12/2019)
726 MEMORANDUM OF LAW in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 04/12/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 720 Proposed Order was reviewed and approved as to form. (km) (Entered: 04/15/2019)
727 REDACTION to 718 Memorandum of Law in Support of Motion, for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 (Order Certifying Class under Rule 23) by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich(Levin−Gesundheit, Michael) (Entered: 04/19/2019)
728 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated 4/25/2019 re: Extension of Joint Submission Filing Deadline. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 04/25/2019)
729 MEMO ENDORSEMENT on re: 728 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/25/2019) (mml) (Entered: 04/25/2019)
730 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Giuffra, Robert) (Entered: 04/26/2019)
Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 4/30/2019 at 2:00 p.m. (rsh) (Entered: 04/30/2019)
731 ORDER: Pursuant to the conference held on April 30, 2019, and for the reasons stated on the record, the Court orders as follows: 1. Plaintiffs shall file stipulations for dismissal of class members who have sought to exclude themselves from the class. Defendants shall not further contact class members, or their counsel, requesting or suggesting withdrawal from the class, without first seeking leave of the Court, as further set forth in this Order. (Expert Discovery due by 1/14/2020. Fact Discovery due by 9/20/2019. Motions due by 2/13/2020.) (Signed by Magistrate Judge Robert W. Lehrburger on 4/30/2019) Copies Sent By Chambers. (mml) (Entered: 05/01/2019)
732 TRANSCRIPT of Proceedings re: Status Conference held on 4/30/2019 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/24/2019. Redacted Transcript Deadline set for 6/3/2019. Release of Transcript Restriction set for 8/1/2019.(vba) (Entered: 05/03/2019)
733 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Status Conference proceeding held on 4/30/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(vba) (Entered: 05/03/2019)
734 SCHEDULING ORDER: Status Conference set for 6/20/2019 at 10:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge

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Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 5/7/2019) (rsh) (Entered: 05/07/2019)
735 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam Klein dated May 14, 2019 re: Court's Request in April 30, 2019 Order (ECF No. 731) that Plaintiffs File Letter Regarding Relevance of Comparator Discovery. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 05/14/2019)
736 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated May 20, 2019 re: ESI Review Timeline Dispute. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba.(Klein, Adam) (Entered: 05/20/2019)
737 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated 5/21/2019 re: Errata Sheet of April 30th Status Conference Transcript (ECF No. 732). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Errata Sheet)(Ostrager, Ann−Elizabeth) (Entered: 05/21/2019)
738 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated May 21, 2019 re: Response to Plaintiffs' May 14, 2019 Letter re Comparator Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/21/2019)
739 MEMO ENDORSEMENT on re: 737 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 5/22/2019) (mml) (Entered: 05/22/2019)
740 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam Klein dated May 22, 2019 re: Goldman's Response to Plaintiffs' Letter Regarding Comparator Discovery. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 05/22/2019)
741 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated May 21, 2019 re: Response to Plaintiffs' May 14, 2019 Letter re Comparator Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/22/2019)
742 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated May 22, 2019 re: Response to Plaintiffs' May 22, 2019 Letter re Comparator Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 05/22/2019)
743 REDACTION to 740 Letter, addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam Klein dated May 22, 2019 re: Goldman's Response to Plaintiffs' Letter Regarding Comparator Discovery. by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich(Levin−Gesundheit, Michael) (Entered: 05/23/2019)
744 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Andrew J. Peck dated May 23, 2019 re: Response to Plaintiffs' May 20, 2019 Letter Regarding ESI Review Timeline Dispute. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Ostrager, Ann−Elizabeth) (Entered: 05/23/2019)
745 ORDER: Accordingly, Goldman must complete document production by August 30, 2019, and the discovery deadline is extended to November 30, 2019. By June 2, 2019, the parties shall submit a revised schedule of remaining dates for approval by the Court. (Discovery due by 11/30/2019.) (Signed by Magistrate Judge Robert W. Lehrburger on 5/24/2019) Copies Sent By Chambers. (mml) (Entered: 05/24/2019)
746 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated May 29, 2019 re: Request That the Information Redacted From ECF Nos. 741 and 743 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 05/29/2019)

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747 MEMO ENDORSEMENT on re: 746 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: Granted. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 5/29/2019) (mml) (Entered: 05/29/2019)
748 TRANSCRIPT of Proceedings re: Status Conference held on 4/30/2019 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/20/2019. Redacted Transcript Deadline set for 7/1/2019. Release of Transcript Restriction set for 8/28/2019.(vba) (Main Document 748 replaced on 5/30/2019) (vba). (Entered: 05/30/2019)
749 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Status Conference proceeding held on 4/30/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(vba) (Entered: 05/30/2019)
750 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein, Kelly M. Dermody, and Ann−Elizabeth Ostrager dated May 31, 2019 re: Agreement on Null Set Testing to Measure Effectiveness of Agreed−Upon Search Terms. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 05/31/2019)
751 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated 6/1/19 re: Extension of Deadline to Submit a Revised Schedule of Remaining Dates for Approval by the Court. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 06/01/2019)
752 MEMO ENDORSEMENT on re: 751 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 6/3/2019) (mml) (Entered: 06/03/2019)
753 ORDER: In sum, and having considered relevancy, proportionality, and all other pertinent factors, the Court orders that: (1) Plaintiffs shall reduce the number of comparators for which they seek discovery to 32; (2) for those 32 individuals, Defendants shall produce centrally stored (a) personnel files, (b) evaluation, compensation and promotion documents, and (c) complaint and disciplinary files if separate from the individuals' personnel files. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 6/7/2019) Copies Sent By Chambers. (mml) (Entered: 06/07/2019)
754 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated June 7, 2019 re: Unopposed Request for One−Week Extension to Submit Revised Case Schedule. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 06/07/2019)
755 ENDORSED LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly Dermody and Adam Klein dated 6/7/2019 re: request a one−week extension until June 17, 2019 to submit a revised schedule of remaining dates for approval by the Court. ENDORSEMENT: GRANTED. (Signed by Magistrate Judge Robert W. Lehrburger on 6/10/2019) (rsh) (Entered: 06/10/2019)
756 MEMORANDUM OF LAW in Opposition re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/11/2019)
757 DECLARATION of Michelle A. Lamy in Support re: 756 Memorandum of Law in Opposition to Motion,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Appendix A, # 2 Exhibit 1, # 3 Exhibit 2)(Lamy, Michelle) (Entered: 06/11/2019)

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758 RESPONSE in Opposition to Motion re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 06/11/2019)
759 DECLARATION of Robert J. Giuffra, Jr. in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix A−B, # 2 Exhibit 1−15, # 3 Exhibit 16−26, # 4 Exhibit 27−40, # 5 Exhibit 41−51, # 6 Exhibit 52−53, # 7 Exhibit 54−64, # 8 Exhibit 65, # 9 Exhibit 66−83, # 10 Exhibit 84−85, # 11 Exhibit 86−90, # 12 Exhibit 91−110, # 13 Exhibit 121−130, # 14 Exhibit 131−140)(Giuffra, Robert) (Entered: 06/11/2019)
760 DECLARATION of Michael Becker in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (Part 2))(Giuffra, Robert) (Entered: 06/11/2019)
761 DECLARATION of Kathleen Cupertino in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 06/11/2019)
762 DECLARATION of Eric Dias in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1−2)(Giuffra, Robert) (Entered: 06/11/2019)
763 DECLARATION of David Landman in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 06/11/2019)
764 DECLARATION of Joseph Yanagisawa in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1−9, # 2 Exhibit 10)(Giuffra, Robert) (Entered: 06/11/2019)
765 NOTICE of June 14, 2019. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 06/14/2019)
766 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Giuffra, Robert) (Entered: 06/17/2019)
Set/Reset Hearings: Due to a scheduling conflict, the scheduled Status Conference for July 11, 2019, has been rescheduled for July 17, 2019, at 10:30 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. (rsh) (Entered: 06/19/2019)
767 ORDER: Having reviewed the parties' competing proposals for remaining pre−trial event scheduling, the following schedule will control: Brief due by 6/17/2020. Deposition due by 5/15/2020. Expert Discovery due by 5/15/2020. Motions due by 6/17/2020. Responses due by 7/31/2020. Replies due by 8/28/2020. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 6/25/2019) Copies Sent By Chambers. (mml) (Entered: 06/25/2019)

06/25/2019 06/27/2019 07/02/2019 07/02/2019
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07/11/2019
07/11/2019

Set/Reset Deadlines: Fact Discovery due by 12/2/2019. (mml) (Entered: 09/17/2019)
768 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated 6/27/2019 re: Redaction of June 17, 2019 Joint Status Report (ECF No. 766). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 06/27/2019)
769 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 2, 2019 re: Redaction of June 17, 2019 Joint Status Report (ECF No. 766). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 07/02/2019)
770 MEMO ENDORSEMENT on re: 768 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: Order on page 3 − (i) and (ii), on consent, are granted. − as to (iii), Defendants may continue to preserve the information under seal except to the extent such material was filed on the public record previously in connection with class certification or any other juncture. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/2/2019) (mml) (Entered: 07/03/2019)
771 LETTER MOTION for Conference re: Deficiencies Involving Goldman's Privilege Logs addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 8, 2019. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Klein, Adam) (Entered: 07/08/2019)
772 MOTION for Reconsideration re; 767 Order, Set Deadlines,, . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 07/09/2019)
773 MEMORANDUM OF LAW in Support re: 772 MOTION for Reconsideration re; 767 Order, Set Deadlines,, . . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 07/09/2019)
774 PROPOSED ORDER. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. Related Document Number: 772 . (Dermody, Kelly) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 07/09/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 774 Proposed Order was reviewed and approved as to form. (km) (Entered: 07/10/2019)
775 REDACTION to 766 Status Report, Joint Status Report Dated June 17, 2019 by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Giuffra, Robert) (Entered: 07/10/2019)
776 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 778 Reply Memorandum) − REPLY MEMORANDUM OF LAW in Support re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion . Reply Memorandum of Law in Support of Plaintiffs' Motion for Relief Under Federal Rule of Civil Procedure 23(d). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) Modified on 7/15/2019 (db). (Entered: 07/11/2019)
777 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 11, 2019 re: 771 LETTER MOTION for Conference re: Deficiencies Involving Goldman's Privilege Logs addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 8, 2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Ostrager, Ann−Elizabeth) (Entered: 07/11/2019)
778 REPLY MEMORANDUM OF LAW in Support re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re:

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07/16/2019
07/16/2019 07/16/2019 07/17/2019 07/17/2019 07/17/2019
07/22/2019

578 Memorandum & Opinion,,,,,,,, . Reply Memorandum of Law in Support of Plaintiffs' Motion for Relief Under Federal Rule of Civil Procedure 23(d) [This document replaces the document filed in error at ECF No. 776.]. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 07/11/2019)
779 REPLY MEMORANDUM OF LAW in Support re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 07/11/2019)
780 LETTER MOTION for Conference re: Goldman's Deficient Relevancy Redactions addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 12, 2019. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Klein, Adam) (Entered: 07/12/2019)
781 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated July 16, 2019 re: 771 LETTER MOTION for Conference re: Deficiencies Involving Goldman's Privilege Logs addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 8, 2019. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Klein, Adam) (Entered: 07/16/2019)
782 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 16, 2019 re: 780 LETTER MOTION for Conference re: Goldman's Deficient Relevancy Redactions addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 12, 2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ostrager, Ann−Elizabeth) (Entered: 07/16/2019)
783 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 16, 2019 re: Request That the Material Redacted From ECF Nos. 771 and 777 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 07/16/2019)
784 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 16, 2019 re: 771 LETTER MOTION for Conference re: Deficiencies Involving Goldman's Privilege Logs addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 8, 2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Ostrager, Ann−Elizabeth) (Entered: 07/16/2019)
785 MEMO ENDORSEMENT on re: 783 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/16/2019) (mro) (Entered: 07/17/2019)
Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 7/17/2019. at 10:30 a.m. (rsh) (Entered: 07/17/2019)
786 ORDER: The Court ORDERS: 1. By previous Order dated June 7, 2019, the Court ordered that Plaintiffs may seek discovery relating to 32 comparators of the named plaintiffs. The Court clarifies that Plaintiffs may reasonably assign more or fewer comparators to any one of the named Plaintiffs. 2. Defendants have identified one of Plaintiffs' proposed comparators for which Defendants contend discovery is not warranted. Defendants' shall have through July 24, 2019, to file an application regarding the proposed comparator. Plaintiffs shall have through July 31, 2019, to respond. These filings are each limited to 10 pages, double−spaced. (As further set forth in this order). SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/17/2019) (ks) (Entered: 07/18/2019)
787 TRANSCRIPT of Proceedings re: Status Conference held on 7/17/2019 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig,

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07/29/2019

(212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/12/2019. Redacted Transcript Deadline set for 8/22/2019. Release of Transcript Restriction set for 10/21/2019.(vba) (Entered: 07/22/2019)
788 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Status Conference proceeding held on 7/17/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(vba) (Entered: 07/22/2019)
789 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 22, 2019 re: ECF No. 786. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 07/22/2019)
790 MEMORANDUM OF LAW in Opposition re: 772 MOTION for Reconsideration re; 767 Order, Set Deadlines,, . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 07/23/2019)
791 SCHEDULING ORDER: Status Conference set for 9/30/2019 at 2:00 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices (Signed by Magistrate Judge Robert W. Lehrburger on 7/24/2019) (rsh) (Entered: 07/24/2019)
792 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated July 24, 2019 re: Authority Requested in ECF No. 786. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Dermody, Kelly) (Entered: 07/24/2019)
793 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 24, 2019 re: July 17, 2019 Order (ECF No. 786). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1)(Ostrager, Ann−Elizabeth) (Entered: 07/24/2019)
794 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 24, 2019 re: Request That Information Redacted From ECF Nos. 780 and 781 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 07/24/2019)
795 MEMO ENDORSEMENT on re: 794 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/25/2019) (mml) Transmission to Sealed Records Clerk for processing. (Entered: 07/25/2019)
796 ORDER: 3. Redactions for Relevance: The scope of redactions for relevance proposed by Defendants generally is consistent with the Court's directives at the July 17, 2019. Accordingly, going forward, Defendants may redact paragraphs (not words or phrases), slides, and spreadsheet rows that do not contain any information concerning the certified class and instead contain only information about (a) employees based outside the U.S.; (b) employees in the Merchant Banking Division and non−revenue divisions; (c) employees in protected groups other than based on gender; and (d) employees other than Vice Presidents or Associates except for information relating to promotion from Vice President to Managing Director or from Associates to any higher position including but not higher than Vice President. As for documents previously redacted for relevance, Defendants shall unredact any pages produced with relevance redactions of less than one paragraph, as further set forth. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/25/2019) Copies Sent By Chambers. (mml) (Entered: 07/25/2019)
797 NOTICE of Hearing: Due to a scheduling conflict, the scheduled Status conference for September 30, shall be rescheduled for October 3, 2019, at 10:00 AM in

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Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. (rsh) (Entered: 07/29/2019)
798 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated July 29, 2019 re: Request That Information Redacted From ECF No. 790 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 07/29/2019)
799 MEMO ENDORSEMENT on re: 798 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/30/2019) (mml) Transmission to Sealed Records Clerk for processing. (Entered: 07/30/2019)
800 REPLY MEMORANDUM OF LAW in Support re: 772 MOTION for Reconsideration re; 767 Order, Set Deadlines,, . . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 07/30/2019)
801 REPLY MEMORANDUM OF LAW in Opposition re: 772 MOTION for Reconsideration re; 767 Order, Set Deadlines,, . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 08/01/2019)
802 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated August 2, 2019 re: Goldman's Deficient Relevancy Redactions (revised pursuant to ECF No. 795). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Klein, Adam) (Entered: 08/02/2019)
803 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Kelly M. Dermody dated August 7, 2019 re: Proposed revised status report procedure pursuant to July 17, 2019 Order (ECF No. 786). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 08/07/2019)
804 DECISION AND ORDER DENYING MOTION TO RECONSIDER denying 772 Motion for Reconsideration. For the foregoing reasons, Plaintiffs' motion for reconsideration is DENIED. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/8/2019) Copies Sent By Chambers. (mml) (Entered: 08/08/2019)
805 MEMO ENDORSEMENT on re: 803 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/8/2019) (mml) (Entered: 08/08/2019)
806 REPLY MEMORANDUM OF LAW in Opposition re: 715 MOTION to Compel Arbitration , Stay the Claims of Certain Class Members, and Exclude Them from the Class. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 08/09/2019)
807 REPLY MEMORANDUM OF LAW in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 08/09/2019)
808 NOTICE OF APPEARANCE by Mark Stewart Cohen on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Cohen, Mark) (Entered: 08/15/2019)
809 NOTICE OF APPEARANCE by Nathaniel P. T. Read on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Read, Nathaniel) (Entered: 08/15/2019)
810 NOTICE OF APPEARANCE by Joanna Ka Wai Chan on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Chan, Joanna) (Entered: 08/15/2019)
811 LETTER MOTION for Conference re Plaintiffs' Anticipated Motion to Quash Subpoenas addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated August 19, 2019. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1

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Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Klein, Adam) (Entered: 08/19/2019)
812 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated August 21, 2019 re: Document Discovery Deadline. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ostrager, Ann−Elizabeth) (Entered: 08/21/2019)
813 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated August 21, 2019 re: Redaction of Materials Filed in Support of, or in Opposition to, Defendants' Motion To Compel Arbitration, Stay the Claims of Certain Class Members, and Exclude Them From the Class, and Plaintiffs' Motion for Relief Under Rule 23(d). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix 1 and Exhibits A−MM)(Ostrager, Ann−Elizabeth) (Entered: 08/21/2019)
814 MEMO ENDORSEMENT on re: 813 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/22/2019) (mml) (Entered: 08/22/2019)
815 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated August 22, 2019 re: Errata Sheet of July 17 Status Conference Transcript (ECF No. 787). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Errata Sheet)(Ostrager, Ann−Elizabeth) (Entered: 08/22/2019)
816 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager and Nathaniel P.T. Read dated August 22, 2019 re: 811 LETTER MOTION for Conference re Plaintiffs' Anticipated Motion to Quash Subpoenas addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated August 19, 2019. . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ostrager, Ann−Elizabeth) (Entered: 08/22/2019)
817 RESPONSE re: 812 Letter, addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein, dated August 22, 2019, re: Opposition to Goldman's Request to Impose August 30, 2019 Discovery Cut−off. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 08/22/2019)
818 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 822 Objection) − Objection re: 767 Order, Set Deadlines . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) Modified on 8/26/2019 (db). (Entered: 08/22/2019)
819 DECLARATION of Michael Levin−Gesundheit in Support re: 818 Objection (non−motion). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 08/22/2019)
820 ORDER: Defendants have asked for "clarification" as to the August 30, 2019 deadline, or, alternatively, to set an August 26, 2019 deadline for service of any new discovery requests. (Dkt. 812.) Defendants' application is denied for substantially the reasons set forth in Plaintiffs' August 22, 2019 letter. (Dkt. 817.) (Signed by Magistrate Judge Robert W. Lehrburger on 8/23/2019) (Lehrburger, Robert) (Entered: 08/23/2019)
821 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated August 23, 2019 re: Privilege Logs. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ostrager, Ann−Elizabeth) (Entered: 08/23/2019)
822 Objection re: 767 Order, Set Deadlines,, This document replaces the document filed in error at ECF No. 818. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 08/23/2019)

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823 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated August 26, 2019 re: Privilege Logs. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Klein, Adam) (Entered: 08/26/2019)
824 RESPONSE re: 814 Memo Endorsement Letter, addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein, dated August 26, 2019, re: Opposition to Goldman's Sealing Request (ECF No. 813) and/or Request for Reconsideration of the Court's Endorsement Thereof (ECF No. 814). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 08/26/2019)
825 LETTER REPLY to Response to Motion addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated August 27, 2019 re: 811 LETTER MOTION for Conference re Plaintiffs' Anticipated Motion to Quash Subpoenas addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam T. Klein dated August 19, 2019. . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Klein, Adam) (Entered: 08/27/2019)
826 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated August 28, 2019 re: Opposition to Plaintiffs' letter 824 "request[ing] the Court's reconsideration" of its order granting Defendants' motion to seal limited commercially sensitive information. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 08/28/2019)
827 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated August 28, 2019 re: Reply to Plaintiffs' Letter 823 re: Privilege Logs. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 08/28/2019)
828 ORDER: This Order addresses Plaintiffs' letter motion to quash the subpoenas Defendants have issued to named Plaintiffs' post−Goldman employers (Dkt. 811). The motion is granted, and the subpoenas are quashed, for substantially the reasons set forth by Plaintiffs in Dkt. 811 and 825. The Clerk is respectfully directed to close Dkt. 811 and mark it as granted. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/28/2019) (ama) Modified on 8/29/2019 (rsh). Modified on 8/30/2019 (db). (Entered: 08/28/2019)
829 ORDER: Accordingly, the Court denies the motion without prejudice to renew following entry of this Court's report and recommendation regarding Defendants' motion to compel arbitration. Plaintiffs also object to Defendants' filing only hard copies of the redacted agreements at issue on Defendants' motion to compel arbitration. According to Defendants, these materials are comprised of more than 1,200 individual agreements consisting of over 10,000 pages. Defendants contend filing all this material electronically on ECF would be overly burdensome to Defendants and/or the Court's ECF system. To the contrary, filing 10,000 pages of hard copy documents to be kept in court files likely ismore burdensome to the Court. Accordingly, Plaintiffs' motion is granted in this respect, and Defendants shall file the exhibits electronically as a group or groups. If upon attempting to file electronically Defendants are informed by the Court's ECF department personnel that electronically filing that amount of exhibit material cannot feasibly be accomplished, then Defendants shall file electronically the first 100 agreements, with the remainder filed in hard copy. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/28/2019) (ama) (Entered: 08/28/2019)
830 ORDER: Accordingly, the Court orders as follows: Defendants shall provide to Plaintiffs a list of all Goldman employees appearing on Defendants' privilege log as a sender or recipient and the position(s) held by that individual and the month/year time frame they held that position. This directive is premised on the assumption that a company as large and technologically sophisticated as Goldman Sachs has electronic databased human−resource information of this type that can readily be produced upon making reasonable efforts to do so. If that assumption is incorrect, then by September 9, 2019, Defendants shall file a letter with the Court accompanied by an affidavit from a person with knowledge as to why the assumption is incorrect. If the Court finds that its assumption is incorrect, then Defendants shall identify for Plaintiffs, by production number, each organizational chart produced by Defendants and the time frame during

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which it was applicable; and, to the extent there are gaps (as to relevant time or personnel) in the organization charts produced, Defendants shall make reasonable efforts to fill in the gaps for the individuals listed as senders or recipients on Defendants' privilege logs. Plaintiffs' request for Defendants to separately identify the authors and recipients of attachments is denied. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/28/2019) (ama) (Entered: 08/28/2019)
831 NOTICE OF APPEARANCE by Hannah Michelle Lonky on behalf of Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Lonky, Hannah) (Entered: 09/03/2019)
832 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated September 3, 2019 re: Named Plaintiffs Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Ostrager, Ann−Elizabeth) (Entered: 09/03/2019)
833 OPPOSITION BRIEF re: 822 Objection (non−motion) . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 09/05/2019)
834 LETTER addressed to Judge Analisa Torres from Ann−Elizabeth Ostrager dated September 6, 2019 re: Request That Information Redacted From ECF No. 833 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 09/06/2019)
835 MEMO ENDORSEMENT on re: 834 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: GRANTED. By September 11, 2019, Defendants shall file the unredacted Memorandum under seal. (Signed by Judge Analisa Torres on 9/6/2019) (cf) (Entered: 09/06/2019)
836 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 837 Letter) − LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated September 6, 2019 re: Plaintiffs' opposition to Goldman's Letter re Named Plaintiff Discovery (ECF No. 832). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) Modified on 9/9/2019 (db). (Entered: 09/06/2019)
837 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated September 6, 2019 re: Plaintiffs' opposition to Goldman's Letter re Named Plaintiff Discovery (ECF No. 832). (This document replaces the document filed in error at ECF No. 836.). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 09/06/2019)
838 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated September 9, 2019 re: Your Honors August 28, 2019 Order (ECF No. 830). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Ostrager, Ann−Elizabeth) (Entered: 09/09/2019)
839 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated September 9, 2019 re: Reply re Named Plaintiffs Discovery. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 09/09/2019)
840 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated September 10, 2019 re: Plaintiffs' continued opposition to Goldman's Letter re Named Plaintiff Discovery 832 . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 09/10/2019)
841 SEALED DOCUMENT placed in vault.(mhe) (Entered: 09/10/2019)
842 ORDER: This Order resolves the issue raised by Defendants at Dkt. 832, namely, whether named Plaintiff Gamba should be compelled to produce tax returns/forms from 2014 to 2016 showing earnings from her interior design efforts, or a certification

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that she did not file any such forms. The application is DENIED for the reasons as substantially set forth in Plaintiffs' opposition letters. The information sought as to income generated by Ms. Gamba from interior designing, to the extent it is even meaningfully relevant and not already produced, can be better and less invasively obtained through an interrogatory. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 9/11/2019) (mml) (Entered: 09/11/2019)
843 RESPONSE re: 838 Letter, Confirming that Consistent with the Court's August 28, 2019 Order (ECF No. 830), Goldman Sachs May, Upon Reasonable Effort, Provide Job Titles and Roles for Authors and Recipients on Its Privilege Logs. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 09/11/2019)
844 REDACTION to 716 Declaration of Robert J. Giuffra, Jr. in Support re: 715 MOTION to Compel Arbitration, Stay the Claims of Certain Class Members, and Exclude Them from the Class by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Appendix A−D, # 2 Appendix E−1−−E−5, F, # 3 Exhibit 1−21, # 4 Exhibit 22−26, # 5 Exhibit 27−34, # 6 Exhibit 35−38, # 7 Exhibit 39−43, # 8 Exhibit 44−56, # 9 Exhibit 57−77, # 10 Exhibit 78−107, # 11 Exhibit 108−118, # 12 Exhibit 119−128, # 13 Exhibit 129−141, # 14 Exhibit 142−149, # 15 Exhibit 150−159, # 16 Exhibit 160−168, # 17 Exhibit 169−175, # 18 Exhibit 176−182, # 19 Exhibit 183−193, # 20 Exhibit 194−205, # 21 Exhibit 206−225, # 22 Exhibit 226−255, # 23 Exhibit 256−285, # 24 Exhibit 286−310, # 25 Exhibit 311−318, # 26 Exhibit 319−326, # 27 Exhibit 327−332, # 28 Exhibit 333−337, # 29 Exhibit 338−346, # 30 Exhibit 347−356, # 31 Exhibit 357−366, # 32 Exhibit 367−375, # 33 Exhibit 376−380, # 34 Exhibit 381−390, # 35 Exhibit 391−399, # 36 Exhibit 400−408, # 37 Exhibit 409−414, # 38 Exhibit 415−423, # 39 Exhibit 424−451, # 40 Exhibit 452−484, # 41 Exhibit 485−513, # 42 Exhibit 514−544, # 43 Exhibit 545−563, # 44 Exhibit 564−571, # 45 Exhibit 572−580, # 46 Exhibit 581−590, # 47 Exhibit 591−599, # 48 Exhibit 600−609, # 49 Exhibit 610−621, # 50 Exhibit 622−631, # 51 Exhibit 632−641, # 52 Exhibit 642−650, # 53 Exhibit 651−659, # 54 Exhibit 660−668, # 55 Exhibit 669−698, # 56 Exhibit 699−725, # 57 Exhibit 726−750, # 58 Exhibit 751−769, # 59 Exhibit 770−786, # 60 Exhibit 787−798, # 61 Exhibit 799−809, # 62 Exhibit 810−820, # 63 Exhibit 821−828, # 64 Exhibit 829−840, # 65 Exhibit 841−852, # 66 Exhibit 853−862, # 67 Exhibit 863−877, # 68 Exhibit 878−899, # 69 Exhibit 900−921, # 70 Exhibit 922−942, # 71 Exhibit 943−964, # 72 Exhibit 965−984, # 73 Exhibit 985−999, # 74 Exhibit 1000−1018, # 75 Exhibit 1019−1033, # 76 Exhibit 1034−1051, # 77 Exhibit 1052−1070, # 78 Exhibit 1071−1090, # 79 Exhibit 1091−1106, # 80 Exhibit 1107−1129, # 81 Exhibit 1130−1154, # 82 Exhibit 1155−1179, # 83 Exhibit 1180−1202, # 84 Exhibit 1203−1223, # 85 Exhibit 1224−1246, # 86 Exhibit 1247−1262, # 87 Exhibit 1263−1284, # 88 Exhibit 1285−1286, # 89 Exhibit 1287−1289, 1461−1462, # 90 Exhibit 1294, # 91 Exhibit 1295)(Giuffra, Robert) (Entered: 09/12/2019)
845 REDACTION to 722 Declaration of David Landman in Support re: 715 MOTION to Compel Arbitration, Stay the Claims of Certain Class Members, and Exclude Them from the Class by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(Giuffra, Robert) (Entered: 09/12/2019)
846 REDACTION to 723 Declaration of Eric Dias in Support re: 715 MOTION to Compel Arbitration, Stay the Claims of Certain Class Members, and Exclude Them from the Class by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Exhibit 61, # 2 Exhibit 62)(Giuffra, Robert) (Entered: 09/12/2019)
847 REDACTION to 726 Memorandum of Law in Support re: 715 MOTION to Compel Arbitration, Stay the Claims of Certain Class Members, and Exclude Them from the Class by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(Giuffra, Robert) (Entered: 09/12/2019)
848 REDACTION to 779 Reply Memorandum of Law in Support re: 715 MOTION to Compel Arbitration, Stay the Claims of Certain Class Members, and Exclude Them from the Class by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(Giuffra, Robert) (Entered: 09/12/2019)
849 REDACTION to 758 Response in Opposition to Motion re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This

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Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(Giuffra, Robert) (Entered: 09/12/2019)
850 REDACTION to 759 Declaration of Robert J. Giuffra, Jr. in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Appendix A, # 2 Exhibit 1−15, # 3 Exhibit 22)(Giuffra, Robert) (Entered: 09/12/2019)
851 REDACTION to 762 Declaration of Eric Dias in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Giuffra, Robert) (Entered: 09/12/2019)
852 REDACTION to 763 Declaration of David Landman in Opposition re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.(Giuffra, Robert) (Entered: 09/12/2019)
853 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated September 12, 2019 re: Plaintiffs' Unopposed Request to Maintain Sealing and Redactions. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 09/12/2019)
854 MEMO ENDORSEMENT on re: 853 Letter re: Plaintiffs' Unopposed Request to Maintain Sealing and Redactions., filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 9/12/2019) (rj) (Entered: 09/13/2019)
855 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Amanda Davidoff dated September 13, 2019 re: Plaintiffs September 11, 2019 response (ECF No. 843) to Defendants September 9, 2019 letter (ECF No. 838). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Davidoff, Amanda) (Entered: 09/13/2019)
856 RESPONSE re: 855 Letter, Regarding Missing Titles and Roles for Individuals on Goldman's Privilege Logs. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 09/13/2019)
857 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated September 23, 2019 re: Goldman's Insufficient Efforts to Identify and Review Relevant Documents and Request for Corrective Measures. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Appendix A, # 2 Exhibit 1)(Klein, Adam) (Entered: 09/23/2019)
858 PROPOSED STIPULATION AND ORDER. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Davidoff, Amanda) (Entered: 09/24/2019)
859 STIPULATION AND ORDER REGARDING DEPOSITIONS: NOW THEREFORE, the Parties hereby stipulate and agree, by their counsel and subject to the approval of the Court, as follows: 1. The Parties shall have the right to depose any witness designated by the opposing Party to testify at trial who has not been previously deposed in this Action. Any such depositions shall occur within a reasonable amount of time prior to the start of trial and no later than three weeks prior to the start of trial, or as otherwise ordered by the Court. (Signed by Magistrate Judge Robert W. Lehrburger on 9/24/2019) (mml) (Entered: 09/24/2019)
860 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody dated September 26, 2019 re: Plaintiffs' Request for Advance Notice if the Court Intends to Hear Oral Argument During October 3, 2019 Status Conference on

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Pending Motions Regarding Arbitration and Rule 23(d). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 09/26/2019)
861 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated September 26, 2019 re: Response to 860 Plaintiffs' Request for Advance Notice if the Court Intends to Hear Oral Argument During October 3, 2019 Status Conference on Pending Motions Regarding Arbitration and Rule 23(d). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 09/26/2019)
862 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Amanda Davidoff dated September 26, 2019 re: Response In Opposition to Plaintiffs' September 23, 2019 Letter ECF No. 857. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Davidoff, Amanda) (Entered: 09/26/2019)
863 MEMO ENDORSEMENT on re: 860 Letter, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. ENDORSEMENT: Oral argument on the above motions will be held at a later date; not at the October 3, 2019 conference. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 9/26/2019) (ne) (Entered: 09/27/2019)
864 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Giuffra, Robert) (Entered: 09/27/2019)
865 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated September 30, 2019 re: Reply to Goldman's Letter 862 re: Goldman's Insufficient Efforts to Identify and Review Relevant Documents and Request for Corrective Measures. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Klein, Adam) (Entered: 09/30/2019)
866 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated October 1, 2019 re: Defendants Appendix A to September 27, 2019 Joint Status Report (ECF No. 864). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix Defendants' Appendix A to September 27, 2019 Joint Status Report)(Giuffra, Robert) (Entered: 10/01/2019)
867 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Andrew J. Peck and Amanda Flug Davidoff dated October 2, 2019 re: Sur−Reply in Response to Plaintiffs' September 30, 2019 Reply Letter, ECF No. 865. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Davidoff, Amanda) (Entered: 10/02/2019)
Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 10/3/2019 at 10:00 a.m. (rsh) (Entered: 10/03/2019)
868 MOTION for Leave to File Reply in Support of Plaintiffs' Objections to the Magistrate Judge's Order Denying Reconsideration . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit Proposed Reply in Support of Plaintiffs' Objections to the Magistrate Judge's Order Denying Reconsideration)(Dermody, Kelly) (Entered: 10/03/2019)
869 PROPOSED ORDER. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. Related Document Number: [ECF No. 822]. (Dermody, Kelly) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 10/03/2019)
870 ORDER: On October 3, 2019, the Court held a status conference to address discovery and case management disputes raised by the parties in their Joint Status Letter (Dkt. 864) as well as through supplemental letters filed with the Court in advance of the conference. (Dkt. 855, 856, 857, 862, 865 and 867.) For the reasons stated on the record: 1. Electronic Document Review: Plaintiffs' application to require Goldman to adopt and apply revised ESI protocols to the population of documents already culled

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through search terms and attorney review is denied, as further set forth in this Order. 6. Trial Plan: By October 9, 2019, Goldman shall submit a letter identifying the specific information it proposes be provided in a "trial plan". Plaintiffs may respond to Goldman's letter by October 16, 2019. 7. Joint Status Reports: While the Court will not impose a strict limit on the pages of future Joint Status Reports, it prefers such reports to be no more than 25 pages in length absent compelling circumstances. 8. Future Appearances: The parties are directed to coordinate with the Court's Deputy Clerk to schedule the next status conference in this matter. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 10/3/2019) Copies Sent By Chambers. (mml) (Entered: 10/04/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 869 Proposed Order was reviewed and approved as to form. (km) (Entered: 10/04/2019)
871 RESPONSE in Opposition to Motion re: 868 MOTION for Leave to File Reply in Support of Plaintiffs' Objections to the Magistrate Judge's Order Denying Reconsideration . . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit Sur−Reply Memorandum of Law In Opposition to Plaintiffs' Objections to Magistrate Judge Lehrburger's Order Denying Reconsideration)(Giuffra, Robert) (Entered: 10/04/2019)
872 ORDER: On October 3, 2019, the Court entered an Order memorializing various discovery rulings and deadlines. (Dkt. 870.) In light of a scheduling conflict, all counsel has consented to adjourn the date by which Defendants shall submit a proposed trial plan to the Court to October 10, 2019, as well as the date by which Plaintiffs may respond to that proposed trial plan to October 17, 2019. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 10/7/2019) (Entered: 10/07/2019)
873 ORDER denying 868 Letter Motion for Leave to File Document. For the reasons stated above, Plaintiffs objections to Judge Lehrburger's June 25, August 8, and December 21 Orders, are OVERRULED. Defendants' request to strike the Levin−Gesundheit declaration is REFERRED to Judge Lehrburger. Plaintiffs' motion for leave to reply is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 868. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 10/7/2019) (cf) (Entered: 10/07/2019)
874 ORDER: In Footnote 17 of their memorandum in opposition to Plaintiffs' objections to the Magistrate Judge's Order Denying Reconsideration (Dkt. 833), Defendants moved to strike the Declaration of Michael Levin−Gesndheit dated August 22, 2019 (Dkt. 819). That Declaration was submitted in regard to Defendants' untimely objection of the Court's December 20, 2018 Order (Dkt. 657). Without passing upon the content of the Declaration, Defendants' motion to strike is DENIED. (Signed by Magistrate Judge Robert W. Lehrburger on 10/8/2019) (Lehrburger, Robert) (Entered: 10/08/2019)
875 TRANSCRIPT of Proceedings held on 10/3/2019 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/29/2019. Redacted Transcript Deadline set for 11/8/2019. Release of Transcript Restriction set for 1/6/2020.(vba) (Entered: 10/08/2019)
876 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceeding held on 10/3/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(vba) (Entered: 10/08/2019)
877 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Amanda Flug Davidoff dated October 8, 2019 re: requesting the redaction or sealing of certain documents and information filed in connection with Defendants opposition to Plaintiffs request for additional ESI discovery. Document filed by Goldman, Sachs &

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Co., The Goldman Sachs Group, Inc..(Davidoff, Amanda) (Entered: 10/08/2019)
878 PROPOSED STIPULATION AND ORDER. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Stewart, Melissa) (Entered: 10/09/2019)
879 STIPULATION: NOW, THEREFORE, Jacqueline Arthur, Plaintiffs, and Defendants stipulate and agree that due to her individual circumstances Jacqueline Arthur hereby opts out of the Class in this action. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 10/9/2019) (mml) (Entered: 10/09/2019)
880 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated October 10, 2019 re: Plaintiffs' Trial Plan. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 10/10/2019)
881 ORDER: This Order resolves Defendants' request to redact/seal certain information from documents submitted in Defendants' September 26 letter addressing discovery issues. (Dkt. 877.) 1. Appendix: Defendants may not redact the Appendix attached to the letter. The snippets of information in the Appendix are general and reveal no private, secret or otherwise protected information. 2. Exhibits 1 and 2 (declarations): Defendants may redact only the dollar amounts identified in the declarations. 3. Exhibit 3: May not be redacted. 4. Exhibit 4: Defendants may redact Exhibits 4A and 4B as requested. 5. Exhibit 5: Defendants may redact Exhibit 5A as requested but may not redact Exhibit 5B. 6. Exhibit 6: Defendants may redact Exhibits 6A and 6B as requested. (Signed by Magistrate Judge Robert W. Lehrburger on 10/12/2019) Copies transmitted to all counsel of record. (mro) (Entered: 10/15/2019)
882 REDACTION to 862 Letter, by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Davidoff, Amanda) (Entered: 10/15/2019)
883 SCHEDULING ORDER: Status Conference set for 11/19/2019 at 2:30 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 10/16/2019) (rsh) (Entered: 10/16/2019)
884 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Adam T. Klein and Kelly M. Dermody dated October 17, 2019 re: Response to Goldman's Letter dated October 10, 2019 re: Plaintiffs' Trial Plan [ECF No. 880]. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1)(Klein, Adam) (Entered: 10/17/2019)
885 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated October 21, 2019 re: Response to Plaintiffs' October 17, 2019 Letter Regarding Plaintiffs' Trial Plan. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 10/21/2019)
886 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Davidoff and K. Dermody dated October 30, 2019 re: Errata Sheet of October 3, 2019 Status Conference Transcript. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Errata Errata Sheet)(Davidoff, Amanda) (Entered: 10/30/2019)
887 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Appendix A, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3)(Giuffra, Robert) (Entered: 11/14/2019)
Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 11/19/2019 at 2:30 p.m. (rsh) (Entered: 11/20/2019)
888 ORDER: On November 19, 2019, the Court held a Case Management Conference during which multiple disputes related to discovery and trial planning were addressed. As discussed on the record, it is ORDERED: 7. Fact Discovery: The deadline for fact discovery shall be extended by four months from December 2, 2019 to April 2, 2020. 9. Next Status Conference and Motion Hearing: The parties are directed to coordinate

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with the Court's Deputy Clerk to schedule a unified appearance, to take place in January or early February 2020, during which the Court will conduct another status conference and also hear oral argument on the pending motion and cross−motion concerning arbitration agreements (Dkt. 715, 717), as further set forth in this Order. ( Fact Discovery due by 4/2/2020.) (Signed by Magistrate Judge Robert W. Lehrburger on 11/25/2019) Copies transmitted to all counsel of record. (mml) (Main Document 888 replaced on 12/2/2019) (mml). (Entered: 11/25/2019)
889 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Amanda Flug Davidoff dated November 25, 2019 re: Request That the Material Redacted From ECF Nos. 887−1 and 887−4 Remain Under Seal. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Davidoff, Amanda) (Entered: 11/25/2019)
890 MEMO ENDORSEMENT on re: 889 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 11/25/2019) (mro) (Entered: 11/26/2019)
891 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 2, 2019 re: Request To Correct a Typographical Error in the Court's November 25, 2019 Order (ECF No. 888). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/02/2019)
892 MEMO ENDORSEMENT on re: 891 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED: Corrected Order will be substituted at Dkt. 888. (Signed by Magistrate Judge Robert W. Lehrburger on 12/2/2019) (mml) (Entered: 12/02/2019)
893 TRANSCRIPT of Proceedings re: DISCOVERY CONFERENCE held on 11/19/2019 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/23/2019. Redacted Transcript Deadline set for 1/2/2020. Release of Transcript Restriction set for 3/2/2020.(kgo) (Entered: 12/02/2019)
894 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a DISCOVERY CONFERENCE proceeding held on 11/19/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(kgo) (Entered: 12/02/2019)
895 SCHEDULING ORDER: Status Conference set for 1/16/2020 at 2:00 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 12/3/2019) (rsh) (Entered: 12/03/2019)
896 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly Dermody and Adam Klein dated December 3, 2019 re: Plaintiffs' Selection of Documents for In Camera Review, Identification of Email Distribution List Recipients, and Identification of Privilege Entry Subject Lines/File Names (re: ECF No. 888, Court's November 19, 2019 Order). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3)(Levin−Gesundheit, Michael) (Entered: 12/03/2019)
897 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam T. Klein dated December 8, 2019 re: Update Regarding Status of In Camera Review Submission (re: ECF Nos. 896, 888). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 12/08/2019)
898 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Amanda Flug Davidoff dated December 9, 2019 re: In Camera Review Submission. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Davidoff, Amanda)

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(Entered: 12/09/2019)
899 ORDER: The Court approves the procedures outlined in the parties' correspondence of December 8 and 9, 2019 (Dkt. 897, 898) for Plaintiffs' selecting replacement documents for in camera submission and extending certain deadlines to accommodate that process. (Signed by Magistrate Judge Robert W. Lehrburger on 12/9/2019) (Lehrburger, Robert) (Entered: 12/09/2019)
900 MOTION for Reconsideration re; 888 Order, Set Deadlines, Set Hearings, Set Motion and R&R Deadlines/Hearings,,,,,,,,,,,, Notice of Motion & Motion for Reconsideration and/or Amendment to One Sentence in the Court's November 25, 2019 Trial Plan Order. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 12/09/2019)
901 MEMORANDUM OF LAW in Support re: 900 MOTION for Reconsideration re; 888 Order, Set Deadlines, Set Hearings, Set Motion and R&R Deadlines/Hearings,,,,,,,,,,,, Notice of Motion & Motion for Reconsideration and/or Amendment to One Sentence in the Court's November 25, 2019 T . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 12/09/2019)
902 PROPOSED ORDER. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. Related Document Number: 900 . (Levin−Gesundheit, Michael) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 12/09/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 902 Proposed Order, was reviewed and approved as to form. (dt) (Entered: 12/10/2019)
903 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly Dermody and Adam Klein dated December 11, 2019 re: Plaintiffs' Selection of Documents for In Camera Review. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(Dermody, Kelly) (Entered: 12/11/2019)
904 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated December 13, 2019 re: Federal Reserve Response. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 12/13/2019)
905 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Davidoff and K. Dermody dated December 13, 2019 re: Errata Sheet of November 19, 2019 Status Conference Transcript. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Errata Errata Sheet)(Davidoff, Amanda) (Entered: 12/13/2019)
906 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated December 14, 2019 re: Redaction of Confidential Supervisory Information. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 12/14/2019)
907 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Anne−Elizabeth Ostrager dated December 16, 2019 re: In Camera Review Submission. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 12/16/2019)
908 MEMO ENDORSEMENT on re: 905 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 12/16/2019) (mml) (Entered: 12/16/2019)
909 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam T. Klein dated December 16, 2019 re: Response to Goldman Sachs's Dec. 16, 2019 Letter (ECF No. 907) Concerning In Camera Review Submission & Request for Order Requiring Goldman Sachs to Re−Review Its Privilege Logs. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Levin−Gesundheit, Michael) (Entered: 12/16/2019)

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910 ORDER: This order addresses the in camera review documents addressed the parties' correspondence Dkt. 906−907: Plaintiffs' request to identi fy for in camera review four additional documents to replace the documents with Federal Reserve CSI is denied. By December 18, 2019, Goldman shall submit proposed redactions to the Federal Reserve. Goldman shall adhere to the procedures and timing proposed for production thereafter outlined in Dkt. 904. With respect to the two families of documents "inadvertently withheld," by December 19, 2019, Plaintiffs shall identify two replacement families to be submitted for in camera review. By December 24, 2019, Goldman shall produce the two replacement families to the Court. (Signed by Magistrate Judge Robert W. Lehrburger on 12/16/2019) Copies transmitted to all counsel of record. (rro) (Entered: 12/16/2019)
911 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated December 16, 2019 re: Plaintiffs' December 16, 2019 Letter to the Court (ECF No. 909). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 12/16/2019)
912 ORDER. This order addresses the privilege claim issues raised in Dkt. 909 and 911 (and previous filings). 1. Documents withheld by Goldman solely on the basis of confidential supervisory information shall be redacted and produced as redacted. 2. As Plaintiffs observe a substantial percentage − from a relatively small sample − of documents initially withheld by Goldman on the basis of privilege has been determined by Goldman to have been "inadvertently withheld" due to "vendor errors." There is good reason to believe that there are additional documents among the thousands remaining on Goldman's privilege logs that should have been produced in whole or in part. Accordingly, Goldman shall engage in efforts to identify all other improperly or errantly withheld documents from its privilege logs. Regardless of whether those efforts entail a wholesale review of its privilege log entries or some other method, Goldman shall complete those efforts by January 13, 2020 and shall provide a certification describing the efforts undertaken and the results. So ordered. (Signed by Magistrate Judge Robert W. Lehrburger on 12/17/2019) Copies transmitted to all counsel of record. (rjm) (Entered: 12/17/2019)
913 ORDER: This order addresses the document families on Goldman's privilege log that have been submitted for in camera review. These document families are numbered 1−29 submitted on December 9, 2019, and 1−13 submitted on December 17, 2019. 1. The following document families are properly withheld based on attorney−client privilege: December 9 − Numbers 21, 23, 28; December 17 − Numbers 10, 11. 2. To the extent December 9 No. 9A is final board meeting minutes, it should be produced; if the minutes are not final, then the final version should be produced. Legal advice, if any, may be redacted. 3. December 9 No. 29 − management committee meeting materials − should be produced. Legal advice may be redacted. As to all other document families, Goldman shall file a letter of no more than five pages by January 3, 2020 answering the following questions, as further set forth in this Order. (Signed by Magistrate Judge Robert W. Lehrburger on 12/19/2019) Copies transmitted to all counsel of record. (mml) (Entered: 12/19/2019)
914 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly Dermody and Adam Klein dated December 19, 2019 re: Plaintiffs' Selection of Documents for In Camera Review. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(Dermody, Kelly) (Entered: 12/19/2019)
915 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated December 20, 2019 re: Plaintiffs' December 19, 2019 Letter to the Court (ECF No. 914). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 12/20/2019)
916 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated December 21, 2019 re: Privileged Subject Lines. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 12/21/2019)
917 NOTICE of of Supplemental Authority re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by H. Christina Chen−Oster, Mary

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De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Levin−Gesundheit, Michael) (Entered: 12/23/2019)
918 MEMORANDUM OF LAW in Opposition re: 900 MOTION for Reconsideration re; 888 Order, Set Deadlines, Set Hearings, Set Motion and R&R Deadlines/Hearings,,,,,,,,,,,, Notice of Motion & Motion for Reconsideration and/or Amendment to One Sentence in the Court's November 25, 2019 T . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 12/23/2019)
919 NOTICE of Hearing: Oral Argument set for 1/16/2020 at 9:30 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. (rsh) (Entered: 12/26/2019)
920 DUE TO A SCHEDULING CONFLICT, THE STATUS CONFERENCE HAS BEEN RESCHEDULED 1/23/2020 at 02:45 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. (rsh) (Entered: 12/26/2019)
921 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated December 27, 2019 re: Response to 917 Notice of Supplemental Authority. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Giuffra, Robert) (Entered: 12/27/2019)
922 REPLY MEMORANDUM OF LAW in Support re: 900 MOTION for Reconsideration re; 888 Order, Set Deadlines, Set Hearings, Set Motion and R&R Deadlines/Hearings,,,,,,,,,,,, Notice of Motion & Motion for Reconsideration and/or Amendment to One Sentence in the Court's November 25, 2019 T . Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Dermody, Kelly) (Entered: 12/30/2019)
923 REPLY MEMORANDUM OF LAW in Opposition re: 900 MOTION for Reconsideration re; 888 Order, Set Deadlines, Set Hearings, Set Motion and R&R Deadlines/Hearings,,,,,,,,,,,, Notice of Motion & Motion for Reconsideration and/or Amendment to One Sentence in the Court's November 25, 2019 T . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 01/02/2020)
924 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly Dermody and Adam Klein dated January 2, 2020 re: Goldman's Unauthorized Sur−Reply (ECF No. 923). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich.(Dermody, Kelly) (Entered: 01/02/2020)
925 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 3, 2020 re: Response to the Court's December 19, 2019 Order 913 . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Affidavit Declaration of Arline Mann, # 2 Affidavit Declaration of Gena Palumbo, # 3 Appendix A, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E)(Ostrager, Ann−Elizabeth) (Entered: 01/03/2020)
926 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 9, 2020 re: Partial Extension Regarding December 17, 2019 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/09/2020)
927 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated January 10, 2020 re: Court's request for additional information. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit 1 placeholder, # 2 Exhibit 2 placeholder, # 3 Exhibit 3 placeholder, # 4 Exhibit 4 placeholder, # 5 Exhibit 5 placeholder, # 6 Exhibit 6 placeholder, # 7 Exhibit 7 placeholder, # 8 Exhibit 8 placeholder, # 9 Exhibit 9 placeholder, # 10 Exhibit 10 placeholder)(Dermody, Kelly) (Entered: 01/10/2020)
928 MEMO ENDORSEMENT on re: 926 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. Defendants request a one−week, partial extension of the January 13, 2020 deadline to complete "efforts to identify all other improperly or

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errantly withheld documents from its privilege logs." Plaintiffs do not oppose this request ENDORSEMENT: Granted. So Ordered. (Signed by Magistrate Judge Robert W. Lehrburger on 1/9/2020) (js) Modified on 1/13/2020 (js). (Entered: 01/13/2020)
929 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 13, 2020 re: Reply to Plaintiffs' January 10, 2020 response to Defendants' January 3, 2020 letter regarding documents on Defendants' privilege logs. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/13/2020)
930 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 13, 2020 re: Defendants Efforts in Response to the Courts Dec. 17, 2019 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/13/2020)
931 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 15, 2020 re: requesting the redaction or sealing of certain documents filed in connection with Defendants' response to the Court's December 19, 2019 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/15/2020)
Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Oral Argument held on 1/16/2020 at 9:30 a.m. (Court Reporter Kelly Surina present). (rsh) (Entered: 01/16/2020)
932 ORDER with respect to 715 Motion to Compel Arbitration; with respect to 717 Motion. On January 16, 2020, the Court heard oral argument on Defendants' Motion to Compel Arbitration and Plaintiffs' Cross−Motion For Relief Under Rule 23(d). (Dkt. 715, 717.) As discussed during argument, the various briefings and statements in this case reveal some discrepancies in the number and type of arbitration agreements in dispute. Accordingly: 1. By January 30, 2020, the parties shall meet and confer, and submit to the Court an agreed−upon set of numbers with respect to the agreements/categories identified in the chart below. The number of any particular category of agreement should reflect the number for which Defendants seek to compel arbitration. The numbers should reflect those prior to concessions made at oral argument. 2. The submission shall also identify any concessions made by Plaintiffs at oral argument (or since) as to how many agreements of each type and category they no longer object to based on unconscionability, based on Rule 23(d) or based on any other reason as the case may be. 3. By January 23, 2020, Plaintiffs and Defendants shall separately file on ECF the three demonstrative exhibits provided to the Court during oral argument. (Signed by Magistrate Judge Robert W. Lehrburger on 1/16/2020) Copies transmitted to all counsel of record. (mml) (Entered: 01/16/2020)
933 ORDER re: 931 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc: This Order resolves Defendants' request to redact/seal certain information from documents submitted as exhibits with Defendants' January 3, 2020 letter addressing discovery issues. (Dkt. 931.) 1. Exhibit A: Defendants may redact individual names and pages 14−15 (GS399989−90). 2. Exhibit B: Denied; however, Defendants may redact individual names. 3. Exhibit C: Denied. 4. Exhibit D: Denied. (Signed by Magistrate Judge Robert W. Lehrburger on 1/16/2020) Copies transmitted to all counsel of record. (jwh) (Entered: 01/16/2020)
934 REDACTION to 925 Letter, by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Affidavit Declaration of Arline Mann, # 2 Affidavit Declaration of Gena Palumbo, # 3 Appendix A, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E)(Ostrager, Ann−Elizabeth) (Entered: 01/17/2020)
935 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Appendix 1, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C)(Giuffra, Robert) (Entered: 01/17/2020)
936 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 20, 2020 re: Defendants' Additional Response to the Court's Dec. 17, 2019 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/20/2020)

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937 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody and Adam Klein dated January 22, 2020 re: Deficiencies in Re−Review Process. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit Exhibit 1 − Filed Under Seal)(Dermody, Kelly) (Entered: 01/22/2020)
938 RESPONSE re: 932 Order on Motion to Compel Arbitration, Order on Motion for Miscellaneous Relief,,,,,,,,,, Plaintiffs' January 16, 2020 Hearing Demonstratives re: Plaintiffs' Motion for Relief Under Federal Rule of Civil Procedure 23(d) (Redacted). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 01/22/2020)
939 RESPONSE re: 932 Order on Motion to Compel Arbitration, Order on Motion for Miscellaneous Relief,,,,,,,,,, Plaintiffs' January 16, 2020 Hearing Demonstratives re: Opposition to Goldman Sachs's Motion to Compel Arbitration. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 01/22/2020)
940 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/16/2020 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Kelly Surina, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/13/2020. Redacted Transcript Deadline set for 2/24/2020. Release of Transcript Restriction set for 4/22/2020.(McGuirk, Kelly) (Entered: 01/23/2020)
941 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/16/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/23/2020)
Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 1/23/2020 at 2:45 p.m. Orders reflected in today's transcript. (Court Reporter Karen Gorlaski present) (rsh) (Entered: 01/23/2020)
942 SCHEDULING ORDER: Status Conference set for 3/11/2020 at 9:30 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 1/23/2020) (rsh) (Entered: 01/23/2020)
943 AMENDED PRE−TRIAL SCHEDULE: Opening brief for Goldman's decert. motion January 22, 2021. Opening brief for each party's Daubert motion January 8, 2021. Opening brief for each party's summary judgment motion due by 2/5/2021. Responses due by 4/6/2021 Replies due by 5/6/2021. Fact Discovery due by 6/2/2020. Expert Discovery due by 12/18/2020. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 1/23/2020) (mml) (Entered: 01/23/2020)
944 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 23, 2020 re: requesting the redaction or sealing of certain documents filed in connection with Plaintiffs' response to Defendants' January 3, 2020 letter regarding the Court's December 19, 2019 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/23/2020)
945 RESPONSE re: 932 Order on Motion to Compel Arbitration, Order on Motion for Miscellaneous Relief,,,,,,,,,, Defendants' January 16, 2020 Oral Argument Demonstratives. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 01/23/2020)
946 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated January 23, 2020 re: requesting redaction of certain information contained in the parties' January 16, 2020 demonstratives (ECF Nos. 938 & 945). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giuffra, Robert) (Entered: 01/23/2020)

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947 ORDER: This Order addresses Defendants' request for sealing and redaction of certain material as set forth in Dkt. 944. Defendants may redact the material under items "1" and "2." Item "3" may not be redacted. (Signed by Magistrate Judge Robert W. Lehrburger on 1/24/2020) (Farkas, Brian) (Entered: 01/24/2020)
948 ORDER: This Order addresses Defendants' request to maintain under seal certain pages of demonstratives presented during oral argument. The corrected version of Plaintiffs' demonstratives may not remain under seal. The original versions before correction may remain under seal. (Signed by Magistrate Judge Robert W. Lehrburger on 1/24/2020) (Farkas, Brian) (Entered: 01/24/2020)
949 RESPONSE re: 948 Order, Plaintiffs' Corrected & Unredacted January 16, 2020 Hearing Demonstratives re: Plaintiffs' Motion for Relief Under Federal Rule of Civil Procedure 23(d). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 01/24/2020)
950 ORDER: Each document, not document "family," must be evaluated on its own merits. Goldman's claim of privilege for vague document families, along with over−inclusive logging and the high error rate of documents included on the logs, is why the Court has ordered that Goldman re−review every document remaining on its merits privilege logs. Goldman must make sure that any document withheld on the basis of attorney−client privilege actually qualifies for protection under the privilege, and it must update its privilege logs accordingly and produce all documents on the logs that are not so protected. As to Plaintiffs' waiver arguments, Goldman has not relied on an advice of counsel defense or otherwise put advice of counsel at issue so as to sacrifice its right to invoke the privilege. Nor has Goldman forfeited its right to assert the privilege as a result of its inability to recreate the DTF ListServ since DTF membership can be discerned from documents and nothing has been presented to suggest that the ListServ extended beyond the task force membership or other "need to know" persons. Of course, that may prove otherwise for particular documents as determined upon re−review. This order supplements, and does not supplant, orders made during the January 23, 2020 conference. In arriving at its determinations, the Court has considered the parties' many submissions concerning Goldman's privilege logs, their arguments astutely presented at the January 23, 2020 conference, and the selected documents submitted for in camera review. (Signed by Magistrate Judge Robert W. Lehrburger on 1/27/2020) Copies transmitted to all counsel of record. (mml) (Entered: 01/27/2020)
951 RESPONSE re: 948 Order, Defendants' Unredacted January 16, 2020 Oral Argument Demonstratives. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Giuffra, Robert) (Entered: 01/27/2020)
952 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 29, 2020 re: requesting redaction of portions of Appendix A to Plaintiffs' Exhibit 1 to the January 17, 2020 Joint Status Report. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/29/2020)
953 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated January 29, 2020 re: Errata Sheet of January 16, 2020 Conference Transcript. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Errata Errata Sheet)(Ostrager, Ann−Elizabeth) (Entered: 01/29/2020)
954 MEMO ENDORSEMENT on re: 953 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 1/30/2020) (mml) (Entered: 01/30/2020)
955 MEMO ENDORSEMENT on re: 952 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: GRANTED. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 1/30/2020) (mml) (Entered: 01/30/2020)
956 REDACTION to 935 Status Report, Joint Status Report Dated January 17, 2020 by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. (Attachments: # 1 Appendix 1, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C)(Giuffra, Robert) (Entered: 01/30/2020)

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02/03/2020 02/06/2020 02/06/2020 02/07/2020

957 RESPONSE re: 932 Order on Motion to Compel Arbitration, Order on Motion for Miscellaneous Relief,,,,,,,,,, Plaintiffs' Response to January 16, 2020 Order Providing Counts of Agreements at Issue in Arbitration−Related Motions and Plaintiffs' Concessions. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Levin−Gesundheit, Michael) (Entered: 01/30/2020)
958 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 30, 2020 re: requesting the sealing of Exhibit 1 to Plaintiffs' January 22, 2020 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc..(Ostrager, Ann−Elizabeth) (Entered: 01/30/2020)
959 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated January 30, 2020 re: Response to Plaintiffs' Filing (ECF No. 957) in Response to the Court's January 16, 2020 Order (ECF No. 932). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit A)(Giuffra, Robert) (Entered: 01/30/2020)
960 RESPONSE re: 959 Letter, Moving to Strike Goldman's Misleading, Irrelevant, or Otherwise Unverified Footnotes in Goldman's Unilateral Submission Filed at ECF No. 959. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Cabraser, Elizabeth) (Entered: 01/30/2020)
961 MEMO ENDORSEMENT on re: 958 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 1/31/2020) (mml) (Entered: 01/31/2020)
962 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated January 31, 2020 re: Request to Seal Exhibit A to Defendants' January 30, 2020 Letter (ECF No. 959). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Ostrager, Ann−Elizabeth) (Entered: 01/31/2020)
963 MEMO ENDORSEMENT on re: 962 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 2/2/2020) (mml) (Entered: 02/03/2020)
964 MEMO ENDORSEMENT on re: 960 Response, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. MEMO ENDORSEMENT: Denied. The Court may consider the footnotes to the extent relevant and helpful, although they do not appear material to resolution of the motions. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 2/3/2020) (mml) (Entered: 02/03/2020)
965 NOTICE of Hearing: DUE TO A SCHEDULING CONFLICT, THE MARCH STATUS CONFERENCE HAS BEEN RESCHEDULED FOR 4/2/2020 at 9:30 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (rsh) (Entered: 02/03/2020)
966 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated February 6, 2020 re: the Court's January 23, 2020 rulings and January 27, 2020 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Ostrager, Ann−Elizabeth) (Entered: 02/06/2020)
967 RESPONSE re: 966 Letter, Opposing, In Part, Goldman Sachs's Request Concerning Its Privilege Log Obligations. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Levin−Gesundheit, Michael) (Entered: 02/06/2020)
968 ORDER: Defendant Goldman Sachs seeks clarification on two issues about its revised privilege log obligations (Dkt. 966): (1) that it need not produce non−responsive documents from document "families" where the only responsive material is privileged; and (2) format of the privilege log, including exclusion of non−substantive files "to the extent this is technically feasible," such as logos, lines and blank embedded image files processed as separate attachments. Plaintiffs object. (Dkt. 967.) Goldman's approach to document "families" as described in Dkt. 966 is acceptable to the Court given Goldman's clarification that (1) by "families" it means emails with attachments (rather than a group of related documents that otherwise were not attached in the ordinary course of business), (2) Goldman has reviewed every

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02/19/2020 02/19/2020 02/21/2020

attachment in every family of documents to determine if it is responsive and privileged, and (3) Goldman has produced non−responsive, non−privileged attachments to any document that it has produced in whole or in part. The Court agrees that parties generally should not redact non−responsive information from documents that are otherwise responsive and subject to production; Goldman represents that it has not made such redactions to documents that it has produced (except for certain information to which the parties have agreed or the Court has approved as subject to redaction). Here, however, the question is whether Goldman should produce documents that are entirely non−responsive. As long as the responsive documents for which Goldman asserts privilege are identified on Goldman's privilege logs, then Goldman need not produce or identify the non−responsive attachments. Goldman's proposed format for its revised privilege log, to which Plaintiffs have not objected (other than as to excluding lone logo attachments), is acceptable to the Court. However, Goldman shall not exclude lone logo files other than those of Goldman unless otherwise agreed to by Plaintiffs, as such items potentially could be relevant to assessing Goldman's privilege claims (e.g., a logo file theoretically could provide information about a non−Goldman author that other pages in the document family may not). (Signed by Magistrate Judge Robert W. Lehrburger on 2/7/2020) Copies transmitted to all counsel of record. (mml) (Entered: 02/07/2020)
969 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/23/2020 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Karen Gorlaski, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/4/2020. Redacted Transcript Deadline set for 3/16/2020. Release of Transcript Restriction set for 5/12/2020..(McGuirk, Kelly) (Entered: 02/12/2020)
970 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/23/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 02/12/2020)
971 MOTION for Valerie Comenencia Ortiz to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−18838276. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Affidavit and Certificate of Good Standing, # 2 Text of Proposed Order).(Comenencia Ortiz, Valerie) (Entered: 02/18/2020)
972 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION to Compel Goldman Sachs to Answer Plaintiffs' Requests for Admission and Requests for Production Regarding Alternatives Considered (if any) to the Three Challenged Practices addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam T. Klein dated February 18, 2020. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E).(Levin−Gesundheit, Michael) Modified on 3/12/2020 (ldi). (Entered: 02/18/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 971 MOTION for Valerie Comenencia Ortiz to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−18838276. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/19/2020)
973 ORDER granting 971 Motion for Valerie Comenencia Ortiz to Appear Pro Hac Vice (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (JT) (Entered: 02/19/2020)
974 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated February 21, 2020 re: 972 LETTER MOTION to Compel Goldman Sachs to Answer Plaintiffs' Requests for Admission and Requests for Production Regarding Alternatives Considered (if any) to

02/24/2020
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the Three Challenged Practices addressed to Magistrate Judge Robert W. Lehrb . Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Ostrager, Ann−Elizabeth) (Entered: 02/21/2020)
975 ORDER terminating 972 Letter Motion to Compel. This order addresses the parties' dispute regarding the adequacy of Goldman's responses to Plaintiffs' RFAs, RFPs and Interrogatories about alternative processes considered by Goldman. (Dkt. 972, 974.) Goldman shall answer Plaintiffs' requests for admission provided Plaintiffs reframe them as "DEFENDANTS at no time from July 7, 2002 through the present CONSIDERED any alternative to [the respective process] for which it also CONSIDERED the impact on or treatment of men and women." The RFAs may be accompanied by interrogatories asking Goldman, in the event it denies the respective RFA, to identify any such alternatives considered. Goldman shall provide its responses within 14 days of service of the requests. Whether and to what extent additional documents shall be produced will be addressed depending on Goldman's responses to the RFAs and corresponding interrogatories. (Signed by Magistrate Judge Robert W. Lehrburger on 2/24/2020) Copies transmitted to all counsel of record. (mml) (Entered: 02/24/2020)
976 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated March 2, 2020 re: Errata Sheet of January 23, 2020 Status Conference Transcript. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Errata Errata Sheet).(Ostrager, Ann−Elizabeth) (Entered: 03/02/2020)
977 MEMO ENDORSEMENT on re: 976 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 3/2/2020) (mml) (Entered: 03/03/2020)
978 TRANSCRIPT of Proceedings re: CORRECTED held on 1/16/2020 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Kelly Surina, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/24/2020. Redacted Transcript Deadline set for 4/3/2020. Release of Transcript Restriction set for 6/1/2020..(McGuirk, Kelly) (Entered: 03/03/2020)
979 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CORRECTED proceeding held on 1/16/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 03/03/2020)
980 NOTICE of Supplemental Authority in Support of Plaintiffs' Motion for Relief Under Federal Rule of Civil Procedure 23(d) and Opposition to Goldman's Motion to Compel Arbitration re: 717 MOTION for Relief Under Federal Rule of Civil Procedure 23(d) to Void Waivers of Participation in This Class Action Purportedly Executed After the Filing of this Case on September 15, 2010 re: 578 Memorandum & Opinion,,,,,,,, .. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit O'Conner v. Agilant Solutions (S.D.N.Y. Mar. 12, 2020)).(Levin−Gesundheit, Michael) (Entered: 03/17/2020)
981 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated March 20, 2020 re: Response to Notice of Supplemental Authority (ECF No. 980). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 03/20/2020)
982 REPLY re: 981 Letter, in Support of Plaintiffs' March 17, 2020 Notice of Supplemental Authority (ECF No. 980). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Levin−Gesundheit, Michael) (Entered: 03/23/2020)
983 DECISION AND ORDER: MOTION TO COMPEL ARBITRATION AND CROSS−MOTION TO VOID ARBITRATION AGREEMENTS granted in part and conditionally granted in part 715 Motion to Compel Arbitration; granting in part and

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denying in part 717 Motion. For the foregoing reasons, Defendants' Motion to Compel and Stay Pending Arbitration is GRANTED IN PART and CONDITIONALLY GRANTED IN PART, and Plaintiffs' Cross−Motion is GRANTED IN PART and DENIED IN PART as follows: 1. Defendants' Motion to Compel arbitration of current Class Members who executed Separation Agreements, MD Promotion Agreements, and PWA Agreements containing arbitration clauses is granted. These individuals are excluded from the class, and their claims are stayed pending arbitration. They may bring their claims against Goldman by individual arbitration through the procedures articulated in their contractual agreements. 2. Goldman's Motion to Compel with respect to the Equity Award Agreements is conditionally granted to the extent that those Class Members who executed only Equity Award Agreements (and not also Separation Agreements, MD Promotion Agreements, or PWA Agreements with arbitration provisions) shall have 45−days notice of the opportunity to opt out of arbitration. If they do not opt out, any claims those Class Members have against Goldman in connection with this action must be brought through individual arbitration through the procedures articulated in their contractual agreements. Within 21 days of this Decision and Order, the parties shall meet and confer and submit to the Court a proposed form and method of notice. 3. Plaintiffs' Cross−Motion to void arbitration clauses and releases is denied with respect to the Separation Agreements, MD Promotion Agreements, and PWA Agreements. The Cross−Motion is granted in part with respect to the Equity Award Agreements as specified in the previous paragraph. The parties' additional arguments not expressly addressed herein have been considered by the Court and found to be without merit. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 3/26/2020) Copies transmitted to all counsel of record. (mml) (Entered: 03/26/2020)
984 STATUS REPORT. Joint Status Report Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit A, # 9 Exhibit B, # 10 Exhibit C, # 11 Exhibit D).(Giuffra, Robert) (Entered: 03/27/2020)
NOTICE: The scheduled Status Conference for April 2, 2020, at 9:30 a.m. will be via telephone. Parties shall call the teleconference line at (888)−398−2342 and enter pass code 9543348. (rsh) (Entered: 03/30/2020)
985 SCHEDULING ORDER: The telephonic status conference previously scheduled for April 2, 2020 at 9:30 a.m. EST is rescheduled to 11 a.m. on the same date. The parties are directed to call the Chambers conference line: Number: (888) 398−2342 Access Code: 9543348SO ORDERED. Telephone Conference set for 4/2/2020 at 11:00 AM before Magistrate Judge Robert W. Lehrburger. (Signed by Magistrate Judge Robert W. Lehrburger on 3/30/2020) (js) (Entered: 03/31/2020)
986 NOTICE OF APPEARANCE by Maya Jumper on behalf of H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Jumper, Maya) (Entered: 04/02/2020)
987 ORDER: This Order resolves the issues raised in the parties' joint status report filed on March 27, 2020 (Dkt. 984) and discussed during the teleconference held on April 2, 2020. The Court takes into account all prior proceedings, including the parties' stipulation that they will be permitted to depose any trial witness who has not been previously deposed. 1. Plaintiffs may, going forward, take 20 additional fact depositions concerning class and named plaintiff merits issues. It is premature to determine if Plaintiffs should be entitled to additional depositions beyond those 20. As the Court previously explained during the January 23, 2020 status conference, the Court would entertain an application for discovery of potential "boys' club" evidence from Goldman personnel if Plaintiffs came forward with evidence that those individuals had knowledge of disparate impact caused by the challenged processes and were involved in, or had the ability to influence, the adoption or modification of those processes. Plaintiffs have not yet presented any such evidence, but may still do so in the future. Such evidence may come from, for example, depositions of other Goldman employees (among the depositions already permitted), documents de−designated from Goldmans privilege log, and other discovery. Plaintiffs are free, following appropriate meet and confer, to make a future application. 2. Goldman is not at this time entitled to a reciprocal increase in the number of fact depositions it may take. Goldman has not presented any basis indicating that affording it depositions beyond the presumptive limit is warranted. Rather, Goldman refers to the speculative possibility of third−parties it may want to depose. As with Plaintiffs, however,

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04/09/2020 04/09/2020

Goldman is free, following appropriate meet and confer, to make a future application upon a proper showing that additional depositions are warranted. 3. The discovery deadline may be extended for the reasons expressed by the parties. The parties shall meet and confer and submit a proposed revised schedule by April 16, 2020. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/2/2020) Copies transmitted to all counsel of record. (mml) (Entered: 04/02/2020)
Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Telephone Conference held on 4/2/2020 at 11:00 a.m. (Court Reporter Kris Sellin) (rsh) (Entered: 04/08/2020)
988 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody dated April 3, 2020 re: Request for Extension of Time. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Dermody, Kelly) (Entered: 04/03/2020)
989 MEMO ENDORSEMENT on re: 988 Letter. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/3/2020) (jwh) (Entered: 04/03/2020)
990 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 3, 2020 re: Deadlines for Objections/Responses to Court's March 26, 2020 Order (ECF No. 983). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 04/03/2020)
992 MEMO ENDORSEMENT on re: 990 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/4/2020) (cf) (Entered: 04/06/2020)
991 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 6, 2020 re: Correction to April 3, 2020 Letter (ECF No. 990). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 04/06/2020)
993 MEMO ENDORSEMENT on re: 991 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/6/2020) (cf) (Entered: 04/06/2020)
994 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated April 7, 2020 re: Errata Sheet of April 2, 2020 Status Conference Transcript. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Errata Errata Sheet).(Ostrager, Ann−Elizabeth) (Entered: 04/07/2020)
995 MEMO ENDORSEMENT on re: 994 Letter, filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/8/2020) (mml) (Entered: 04/08/2020)
996 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 8, 2020 re: Guidance on how to proceed with meet and confer regarding notice to current and former Goldman Sachs employees who executed only Equity Award Agreements. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 04/08/2020)
997 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody dated April 9, 2020 re: Goldman Sachs's Letter (ECF No. 996) regarding Guidance on Notice. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Dermody, Kelly) (Entered: 04/09/2020)
998 ORDER: Accordingly, and also due to complications caused by the current COVID−19 health emergency, the Court stays that part of the Order requiring the parties to meet and confer and propose a form of notice, pending Judge Torres' determination of any objections lodged by the parties. Any deadlines that may apply under the arbitration clauses at issue are stayed commensurately. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 4/9/2020) Copies transmitted to all counsel of record. (mml) (Entered: 04/09/2020)

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999 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/2/2020 before Judge Analisa Torres. Court Reporter/Transcriber: Khristine Sellin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/5/2020. Redacted Transcript Deadline set for 5/15/2020. Release of Transcript Restriction set for 7/13/2020..(McGuirk, Kelly) (Entered: 04/14/2020)

04/14/2020

1000

NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/2/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 04/14/2020)

04/15/2020 1001 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from K. Dermody and A. Ostrager dated April 15, 2020 re: Proposed Pre−Trial Schedule. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Dermody, Kelly) (Entered: 04/15/2020)

04/16/2020

1002

MEMO ENDORSEMENT on re: 1001 Letter re: Proposed Pre−Trial Schedule, filed by Allison Gamba, Shanna Orlich, H. Christina Chen−Oster, Mary De Luis, Mary de Luis. ENDORSEMENT:The proposed annexed schedule is approved. The Court commends the parties for their cooperation., Deposition due by 3/19/2021., Expert Discovery due by 3/19/2021., Fact Discovery due by 8/17/2020., Motions due by 5/7/2021., Responses due by 7/8/2021, Replies due by 8/7/2021. (Signed by Magistrate Judge Robert W. Lehrburger on 4/16/2020) (rj) (Entered: 04/16/2020)

04/16/2020

1003

FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − APPEAL OF MAGISTRATE JUDGE DECISION to District Court from 983 Order on Motion to Compel Arbitration, Order on Motion for Miscellaneous Relief. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. Copies of Appeal of Magistrate Judge Decision to District Court served on Attorney(s) of Record: Robert Giuffra, Jr. (Levin−Gesundheit, Michael) Modified on 4/17/2020 (tp). (Entered: 04/16/2020)

04/16/2020 1004 Objection Conditional Objections to Magistrate Judge Lehrburger's March 26, 2020 Order (ECF No. 983). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 04/16/2020)

04/17/2020

***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Levin−Gesundheit, Michael to RE−FILE Document 1003 Appeal of Magistrate Judge Decision to District Court. Use the event type Memorandum of Law in Support (non−motion) found under the event list Other Answers. (tp) (Entered: 04/17/2020)

04/17/2020

1005

MEMORANDUM OF LAW in Support re: 1003 Appeal of Magistrate Judge Decision to District Court, (replaces ECF No. 1003, per direction of Clerk's Office) Plaintiffs' Objections Objections to Magistrate Judge's March 26, 2020 Order (ECF No. 983). Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Levin−Gesundheit, Michael) (Entered: 04/17/2020)

04/23/2020 1006 Amicus Curiae APPEARANCE entered by Russell Lasser Kornblith on behalf of National Employment Lawyers Association/New York..(Kornblith, Russell) (Entered: 04/23/2020)

04/23/2020

1007

LETTER addressed to Judge Analisa Torres from Russell L. Kornblith dated April 23, 2020 re: Request for Leave to File Amicus Curiae Brief on Behalf of the National Employment Lawyers Association/New York in Support of Plaintiffs Objections to the Magistrate Judges Order Compelling Class Members into Individual Arbitration (Dkts. 1004, 1005). Document filed by National Employment Lawyers Association/New York. (Attachments: # 1 Exhibit A − Brief of Amicus Curiae National Employment Lawyers Association/New York in Support of Plaintiffs Objections to the Magistrate Judges Order Compelling Class Members into Individual Arbitration).(Kornblith, Russell) (Entered: 04/23/2020)

04/24/2020

1008

LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated April 24, 2020 re: Response to National Employment Lawyers Association/New York's Request for Leave to File Amicus Curiae Brief (ECF No. 1007). Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 04/24/2020)

04/26/2020

1009

LETTER addressed to Judge Analisa Torres from Kelly M. Dermody & Adam T. Klein dated April 26, 2020 re: Response to Goldman Sachs's April 24, 2020 Letter Regarding Briefing Schedule for Objections. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Levin−Gesundheit, Michael) (Entered: 04/26/2020)

04/27/2020 1010 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated April 26, 2020 re: Response to Plaintiffs' April 26, 2020 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Levy, Joshua) (Entered: 04/27/2020)

04/27/2020 1011 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert J. Giuffra, Jr. dated April 27, 2020 re: Plaintiffs' Arbitration Communications. Document filed by Goldman, Sachs & Co.. (Attachments: # 1 Exhibit A).(Giuffra, Robert) (Entered: 04/27/2020)

04/27/2020

1012

MEMO ENDORSEMENT on re: 1007 LETTER addressed to Judge Analisa Torres from Russell L. Kornblith dated April 23, 2020 re: Request for Leave to File Amicus Curiae Brief on Behalf of the National Employment Lawyers Association/New York in Support of Plaintiffs Objections to the Magistrate Judges Order Compelling Class Members into Individual Arbitration (Dkts. 1004, 1005). Document filed by National Employment Lawyers Association/New York. ENDORSEMENT: GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2020) (rjm) (Entered: 04/27/2020)

04/27/2020

1013

MEMO ENDORSEMENT on re: 1010 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated April 26, 2020 re: Response to Plaintiffs' April 26, 2020 Letter. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc. ENDORSEMENT: GRANTED. By April 30, 2020, Defendants shall file their response, not to exceed 35 pages. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2020) (rjm) (Entered: 04/27/2020)

04/27/2020

1014

LETTER addressed to Judge Analisa Torres from Kelly M. Dermody & Adam T. Klein dated April 27, 2020 re: Letter to Judges Torres & Lehrburger responding to Goldman Sachs's April 27, 2020 letter (ECF No. 1011) falsely accusing Class Counsel of unfair dealing by sending a case update communication to their clients. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A).(Levin−Gesundheit, Michael) (Entered: 04/27/2020)

04/28/2020 1015 LETTER addressed to Judge Analisa Torres from Robert J. Giuffra, Jr. dated April 28, 2020 re: Response to Plaintiffs' April 27, 2020 Letter. Document filed by Goldman, Sachs & Co.. (Attachments: # 1 Exhibit A).(Giuffra, Robert) (Entered: 04/28/2020)

04/28/2020

1016

ORDER: The Court will schedule a conference to discuss the subject matter addressed in Dkt. 1013. In the meantime, absent Court approval, no counsel shall initiate further communication with any of the Goldman professionals who executed Equity Award Agreements and are the subject of this Court's Order at Dkt. 983. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger) (Text Only Order) (Farkas, Brian) (Entered: 04/28/2020)

04/28/2020

1017

ORDER: The Court will hold a telephonic conference on May 6, 2020 at 4 p.m. to discuss the issues raised by Dkt. 1013. Counsel are directed to call: conference line (888) 398−2342, access code 9543348. SO ORDERED. Telephone Conference set for 5/6/2020 at 04:00 PM before Magistrate Judge Robert W. Lehrburger. (Signed by Magistrate Judge Robert W. Lehrburger on 4/28/2020) Copies transmitted to all counsel of record. (mml) (Entered: 04/29/2020)

04/30/2020 1018 OPPOSITION BRIEF Defendants' Responses to Plaintiffs' Objections to Magistrate Judge Lehrburger's March 26, 2020 Order. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 04/30/2020)

04/30/2020 1019 OPPOSITION BRIEF re: 1004 Objection (non−motion) Plaintiffs' Responses to Goldman Sachs's Objections to March 26, 2020 Order. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Levin−Gesundheit, Michael) (Entered: 04/30/2020)

05/01/2020 1020 NOTICE of Notice to Prevent Confusion re: Relief Sought in Plaintiffs' Objections (ECF No. 1005) to March 26, 2020 Order (ECF No. 983) re: 1005 Memorandum of Law in Support,. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich..(Levin−Gesundheit, Michael) (Entered: 05/01/2020)

05/04/2020 1021 RESPONSE re: 1020 Notice (Other), Notice to Prevent Confusion. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Giuffra, Robert) (Entered: 05/04/2020)

05/05/2020

1022

LETTER addressed to Magistrate Judge Robert W. Lehrburger from Kelly M. Dermody & Adam T. Klein dated May 5, 2020 re: Response to Goldman Sachs's April 28, 2020 Letter (ECF No. 1015) and Opposing Ban on Class Counsel−Client Communication. Document filed by H. Christina Chen−Oster, Mary De Luis, Allison Gamba, Shanna Orlich. (Attachments: # 1 Exhibit A (showing Sullivan & Cromwell's website)).(Levin−Gesundheit, Michael) (Entered: 05/05/2020)

05/06/2020 1023 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Robert Giuffra, Jr. dated May 6, 2020 re: Response to Plaintiffs' May 5, 2020 Letter. Document filed by Goldman, Sachs & Co...(Giuffra, Robert) (Entered: 05/06/2020)

05/06/2020

Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Case Management Conference held on 5/6/2020. (kgo) (Entered: 05/13/2020)

05/07/2020 1024 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager dated May 7, 2020 re: Requesting to Seal Exhibit A to Defendants' April 27, 2020 Letter (ECF No. 1011). Document filed by Goldman, Sachs & Co...(Ostrager, Ann−Elizabeth) (Entered: 05/07/2020)

05/08/2020 1025 MEMO ENDORSEMENT on re: 1024 Letter, filed by Goldman, Sachs & Co. ENDORSEMENT: Denied except that the individual's name and personal identifying information may remain sealed. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 5/8/2020) (mml) (Entered: 05/08/2020)

05/08/2020

1026

ORDER: This Order addresses class counsel's communications with certain class members. Following correspondence from the parties on the subject, the Court heard argument on this issue by teleconference on May 6, 2020, as further set forth in this Order. The Court does not believe such strong medicine is required. Importantly, Equity Agreement Employees are entitled to legal counsel, albeit free from misleading information, about their choice between remaining obligated to arbitrate or opting out of arbitration to remain in the class action. In the Arbitration Order, the Court observed that the class members are well−educated, experienced professionals not easily duped, a point that Goldman repeatedly emphasized in support of its motion to compel arbitration. The same can be said of those same Equity Agreement Employees here in regard to receiving legal advice from class counsel and making an informed decision about how they wish to proceed. The Court finds that scripting or requiring pre−clearance review of class counsel's communications with Equity Agreement Employees about arbitration is not warranted at this time. In the event, however, that the Court comes to learn that any of Plaintiffs' other communications (whether past or future) to Equity Agreement Employees (or, for that matter, any class members) contain misleading or incorrect statements, the Court will not hesitate to take appropriate action. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 5/8/2020) Copies transmitted to all counsel of record. (mml) (Entered: 05/08/2020)

05/08/2020 1027 REDACTION to 1011 Defendants' Letter Dated April 27, 2020 by Goldman, Sachs & Co. (Attachments: # 1 Exhibit A).(Ostrager, Ann−Elizabeth) (Entered: 05/08/2020)

05/12/2020

1028

TRANSCRIPT of Proceedings re: CONFERENCE held on 5/6/2020 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Rose Prater, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/2/2020. Redacted Transcript Deadline set for 6/12/2020. Release of Transcript

Restriction set for 8/10/2020..(McGuirk, Kelly) (Entered: 05/12/2020)

05/12/2020

1029

NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/6/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 05/12/2020)

05/12/2020

***DELETED DOCUMENT. Deleted document number 1030 NOTICE OF FILING OFFICIAL TRANSCRIPT. The document was incorrectly filed in this case. (rro) (Entered: 05/12/2020)

05/15/2020 1030 JOINT LETTER MOTION to Adjourn Conference addressed to Magistrate Judge Robert W. Lehrburger from Ann−Elizabeth Ostrager & Kelly M. Dermody dated May 15, 2020. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc...(Ostrager, Ann−Elizabeth) (Entered: 05/15/2020)

05/16/2020

1031

ORDER granting 1030 Letter Motion to Adjourn Conference. The parties' request to adjourn the status conference currently scheduled for May 21, 2020 is granted. The parties shall coordinate with Deputy Clerk Shah to reschedule the May 21, 2020 status conference. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 5/16/2020) (mml) (Entered: 05/18/2020)

05/18/2020

1032

SCHEDULING ORDER: The telephonic Status Conference previously scheduled for May 21, 2020 is rescheduled to May 28, 2020 at 3:30 p.m. The parties are directed to call the Chambers conference line: Number: (888) 398−2342 Access Code: 9543348. SO ORDERED. Telephone Conference set for 5/28/2020 at 03:30 PM before Magistrate Judge Robert W. Lehrburger. (Signed by Magistrate Judge Robert W. Lehrburger on 5/18/2020) Copies transmitted to all counsel of record. (mml) (Entered: 05/18/2020)

05/18/2020

1033

JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from A. Ostrager and K. Dermody dated May 18, 2020 re: Errata Sheet of May 6, 2020 Conference Transcript. Document filed by Goldman, Sachs & Co., The Goldman Sachs Group, Inc.. (Attachments: # 1 Errata Errata Sheet).(Ostrager, Ann−Elizabeth) (Entered: 05/18/2020)