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EE-AL-0045
[ "Case 1:05-cv-00530-D Document 1-1 Filed 09/19/2005 Page 1 of 6\n\nIN\n\nTHE\n\nUNITED\n\nSTATES\n\nDISTRICT\n\nFILD COUR T\n\nP19\n\n.05\n\nNl\n\nel\n\n.s\n\nFOR THE SOUTHERN DISTRICT OF ALABAMA\n\nSOUTHERN DIVISION\n\nEQUAL EMPLOYMENT OPPORTUNITY ]\n\nCOMMISSION, ]\n\n] Plaintiff, ] Civil Action No. OSS- 0'53a -~\n\nv.\n\n]\n\n]\nCOMPLAINT\n\n] HOUSE OF PHILADELPHIA CENTER, INC . ]\n\nJURY TRIAL DEMAND\n\nDefendant .\n\n]\n]\n] ]\n\nNATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Sharonda Griffin who was adversely affected by such practices . The Commission alleges that the Defendant discriminated against Sharonda Griffin because of her sex, female .\n\n1\n\n\fCase 1:05-cv-00530-D Document 1-1 Filed 09/19/2005 Page 2 of 6\nJURISDICTION AND VENU E 1 . Jurisdiction of this Court is invoked pursuant to 28 U .S .C. §§ 451, 1331, 1337, 1343 and 1345 . This action is authorized and instituted pursuant to §§ 703, 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S .C. § 2000e-2(a), 42 U .S .C . § 2000e-5(f)(l) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U .S.C. Section 1981A . 2 . The unlawful employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Southern District of Alabama, Southern Division .\nPARTIES 3 . Plaintiff, the Equal Employment Opportunity Commission (the \"Commission\"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by § 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(l) and (3) . 4. At all relevant times, the Defendant, House of Philadelphia Center, Incorporated (\"House of Philadelphia\" or the \"Employer\") has continuously been doing business in the State of Alabama and the city of Irvington, and has continuously had at least 15 employees.\n2\n\n\fCase 1:05-cv-00530-D Document 1-1 Filed 09/19/2005 Page 3 of 6\n5 . At all relevant times, the Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U .S .C . § 2000e-(b), (g) and (h) .\nSTATEMENT OF CLAIM S 6 . More than thirty days prior to the institution of this lawsuit, Sharonda Griffin filed a Charge of Discrimination with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7 . Since at least October 15, 2004, Defendant has engaged in unlawful employment practices at its Irvington, Alabama, facility in violation of Section 703 (a) of Title VII, 42 U .S.C. § 2000e-2(a). In particular, Defendant discharged Sharonda Griffin because she was pregnant . 8 . The effect of the practices complained of in paragraph 7 above has been to deprive Sharonda Griffin of equal employment opportunities and otherwise adversely affected her status as an employee, because of her sex, female . 9. The unlawful employment practices complained of in paragraphs 7 and 8 above were intentional .\n3\n\n\fCase 1:05-cv-00530-D Document 1-1 Filed 09/19/2005 Page 4 of 6\n10. The unlawful employment practices complained of in paragraphs 7, 8 and 9 above were done with malice or with reckless indifference to the federally protected rights of Sharonda Griffin.\nPRAYER FOR RELIE F WHEREFORE , the Commission respectfully requests that this Court :\nA. Grant a permanent injunction enjoining the Defendant Employer, its officers, agents, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practices which discriminate on the basis of sex.\nB . Order the Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for all of its employees regardless of sex and which eradicate the effects of its past and present unlawful employment practices .\nC . Order the Defendant to make whole Sharonda Griffin by providing appropriate relief, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices .\nD. Order Defendant Employer to make whole Sharonda Griffin by providing her with compensation for non-pecuniary losses resulting from the unlawful employment practices described in paragraphs 7, 8 and 9 above, including pain an d\n4\n\n\fCase 1:05-cv-00530-D Document 1-1 Filed 09/19/2005 Page 5 of 6\nsuffering, emotional distress, humiliation, isolation, depression, and loss of enjoyment of life, in amounts to be determined at trial .\nE. Order Defendant Employer to pay Sharonda Griffin punitive damages for its malicious and reckless conduct described in paragraphs 7, 8 and 9 above, in amounts to be determined at trial .\nF. Grant such further relief as the Court deems necessary and proper in the public interest .\nG. Award the Commission its costs of this action . JURY TRIAL DEMAND\nThe Commission requests a jury trial on all questions of fact raised by its complaint .\nRespectfully submitted , JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counse l EQUAL EMPLOYMENT OPPORTUNITY\nCOMMISSION 1801 \"L\" Street, N .W. Washington, DC 2050 7\n5\n\n\fCase 1:05-cv-00530-D Document 1-1 Filed 09/19/2005 Page 6 of 6\na'rles E. G rrier CHARLES GUERRIER Regional Attorney Ohio State Bar ID #002354 6\ns/ Mason D. Barrett MASON D . BARRETT Senior Trial Attorney Colorado State Bar ID #2130 9\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION\n113022 d Street South , Suite 2000 Birmingham, Alabama 35205-2886 Telephone : (205) 212-2047 Facsimile : (205) 212-204 1\n6\n\n\f", "Case 1:05-cv-00530-KD-M Document 9-t Filed 02/21/2006 Page 1 of 6\n\nIN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA\nSOUTHERN DIVISION\n\nEQUAL EMPLOYMENT\n\n)\n\nOPPORTUNITY COMMISSION,\n\n)\n\n)\n\n- plaintiff,.\n\n.).. :-.. ,\n\n..\n\nvs.\nHOUSE OF PHILADELPHIA CENTER, INC.,\nDefendant.\n\n)\n\nCIVIL ACTION NO. 05-0530-D\n\n)\n\n)\n\n)\n\n)\n\n)\n\n)\n\nCOMPLAINT IN INTERVENTION\n\n1. This claim arises under Title VII of the Civil Rights Act of 1964, as amended, and\n\nPlaintiff Sharonda Griffin also asserts state law claims. This Court has jurisdiction over this action\n\npursuant to Title 28 U.S.C. §§1331 and 1343. This Court has supplemental jurisdiction over\n\nplaintiffs state law claims pursuant to 28 U.S.C. § 1367.\n\n2. Plaintiff Sharonda Griffin (\"Plaintiff\") is a female over the age of nineteen (19)\n\n3. Defendant House of Philadelphia Center, Inc. (\"Defendant\") is a corporation doing business in the Southern District of Alabama.\nAt all times relevant to the complaint, Defendant had fifteen or more employees. At all times relevant to the complaint, Plaintiff was employed by Defendant. During the course of Plaintiff’s employment, Defendant discriminated against Plaintiff on the basis of her sex and pregnancy. 7. Plaintiff’s supervisor made defamatory remarks about Plaintiff to her co-workers.\n\n\fCase 1:05-cv-00530-KD-M Document 9-1 Filed 02/21/2006 Page 2 of 6\nPlaintiff was terminated from her employment on October ! 5, 2004. 9. Plaintiffs termination was based on her pregnancy. 10. In a letter 1o Plaintiff, dated October ! 5, 2004, Ms. Mamie H. Mackey, Director of the House of Philadelphia Center, Inc., stated, \"Please be advised thai your service is no longer needed at House o~Philadeiphia. Due to persofial, health reason which I have discussed with you. In the near future after you have the baby, I will consider you working for the company again. Your last working day will be Friday, October 15, 2004\". (Letter attached as Exhibit 1) 11. Plaintiff filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission, (EEOC) Charge Number 130-2005-00806, in or about November of 2004. (EEOC Charge attached as Exhibit 2) 12. Plaintiff received a\"Cause Determination\" from the EEOC. (Determination attached as Exhibit 3) 13. The EEOC issued a determination that :\nInvestigation revealed that Charging Party was discharged and informed she would be considered for re-employment after having her baby. Direct evidence indicates Charging Party’s pregnancy was a motivating factor in Respondent’s decision to discharge her. Evidence does not support the stated defense that the Charging Party voluntarily resigned. I fred reasonable cause to believe that the Charging Party was subjected to discriminatory discharge due to her pregnancy, in violalion of Title VII. 14. Thereafter, on or about September 19, 2005, the EEOC filed a lawsuit against the House of Philadelphia Center, Inc. 15. Plaintifftimely filed this complaint in intervention.\nFirst Claim For Relief 16. Plaintiffincorporates by reference each of the foregoing allegations of fact as though\n-2-\n\n\fCase 1:05-cv-00530-KD-M Document 9-1 Filed 02/2112006 Page 3 of 6\nfully set forth herein. 17. Defendant discriminated against Plaintiff in the terms and condilions of her\nemployment, at ieasl partly because of her sex and pregnancy. 18. As a result of Defendant’s intentional and unlawful conduct, Plaintiff suffered and\n\" ¯ \": ~:onlinues to suffer emotional painand suffering, inconvenience, mental.anguish, loss of enjoyment of life, loss of income, and loss of employment benefits. 19. Defendant acled with malice or with reckless indifference to Plaintiff’s federally protected fights. WHEREFORE, Plaintiff demands reinstatement, the removal of all unfavorable material related to this matter from her personnel files, back pay, front pay, compensatory and punitive damages, costs and attorneys’ fees and all other relief deemed appropriate by this Court and/or the\nSecond Claim For Relief 20. Plaintiff incorporates by reference each of the foregoing allegations of fact as though fully set forth herein. 21. Defendant’s conduct created and/or condoned a hostile work environment for Plaintiff. 22. As a result of Defendant’s intentional and unlawful conduct, Plaintiff suffered and continues to suffer emotional pain and suffering, inconvenienee, mental anguish, and loss of enjoyment of life. 23. Defendant acted with malice or with reckless indifference to Plaintiffs federally protected rights.\n-3-\n\n\fCase 1:05-cv-00530-KD-M Document 9-1 Filed 02t21/2006 Page 4 of 6\nWHEREFORE, Plaintiff demands reinstatement, the removal of all unfavorable material related to Ibis mailer from her personnel files, back pay, front pay, compensatory and punitive damages, costs and atton~eys’ fees and all olher relief deemed appropriate by this Court and/or Ihe jury.\n: -.. Third Claim For Relief - 24. Plaintiff incorporates by reference each of the foregoing allegations of fact as though fully set forth herein. 25. Defendant terminated Plaintiffs employment because of her sex and pregnancy. 26. As a result of Defendant’s intentional and unlawful conduct, Plaintiff suffered and continues to suffer emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. 27. Defendant acted with malice or with reckless indifference to Plaintiffs federally protected rights. WHEREFORE, Plaintiff demands reinstatement, the removal of all unfavorable material related to this matter from her personnel files, back pay, front pay, compensatory and punitive damages, costs and attorneys’ fees and all other relief deemed appropriate by this Court and/or the\nSixth Claim For Relief 28. Plaintiffincoq~orates by reference each of the foregoing allegations of fact as though fully set forth herein. 29. Defendant made defamatory remarks about Plaintiff. 30. As a proximate result of defendant’s intentional and/or reckless conduct, Plaintiff\n-4-\n\n\fCase 1:05-cv-00530-KD-M Document 9-1 Filed 02/21/2006 t-’age b ol u\nsuffered and continues to suffer emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of income, and loss of employment benefits.\nWHEREFORE, Plaintiff demands reinstatement, the removal of all unfavorable material related to this matter from her personnel files, back pay, front pay, compensatory and punitive. damages, coslg and aft0rne~s’ fees and all other relief deemed appropriate by this Court and/or the.\njury.\ns/Daniel A. Hannan DANIEL A. HANNAN (HANND4492) Attorney for Plaintiff OF COUNSEL: FRANKLIN & STEIN, P.C. 63 South Royal Street Suite 1109 Mobile, Alabama 36602 Phone: 251-433-0051 Fax: 251-433-3919 Email: dahlawyer@,hotmail, corn PLAINTIFF DEMANDS TRIAL BY JURY. s/Daniel A. Hannah\n-5-\n\n\fCase 1:05-cv-00530-KD-M Document 9-1 Filed 02/21/2006 Page 6 of 6\nComplaint in Intervention EEOC vs. House of Philadelphia Center, Inc. Civil Action No. 05-0530-D\nCERTIFICATE OF SERVICE I hereby certify that on 9th day of F~bmary, 2006, 1 electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Charles Guerrier, Esq., Mason D. Barrett, Esq. and Raymond L. Bell, Jr., Esq.\ns/Daniel A. Hannan Federal Bar Number: HANND4492\n-6-\n\n\f", "i\n\nIN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAlVlA\nSOUTHERN D1VISION\n\nEQUAL EMPLOYMENT\n\n)\n\nOPPORTUNITY COMl\\1ISSION,\n\n)\n\n)\n\nPlaintiff,\n\n)\n\n)\n\nand\n\n)\n\n)\n\nSHARONDA GRIFFIN,\n\n)\n\n)\n\nP l a i n t i f f - I n t e n r e n or,\n\n)\n\nv.\n\n)\n\n)\n\nHOUSE OF PHILADELPIIIA CENTER,)\n\nINC.,\n\n)\n\n)\n\nDefendant.\n\n)\n\n)\n\nCIVIL ACTION NO: 1:05-530..KO-M\n\nCONSENT DECREE\n\nThe Equal Emplo)'lnent Opportunity Commission (HEEOC\" or HCommission\") filed this\n\naction against House of Philadelphia Center, Inc. (\"House of Philadelphia\" or \"Defendant\") on\n\nSeptember 19, 2005, in this Court, to enforce Title VII of the Civil Rights Act of 1964,42 U.S.C.\n\\\n§2000e et seq. (Title VII) and the Civil Rights Act of 1991, 42 U.S.C. §1981a. In the Complaint,\n\nthe Cornmission alleged that House of Philadelphia discriminated against Sharonda Griffin\n\n(\"Griffin\") on the basis of scx, femalc, by discharging Ms. Griffin due to her pregnancy, in\n\nviolation of Title VII.\n\nHouse of Philadelphia denies all allegations of unlawful or wrongful conduct raised in the\n\ncomplaint, and nothing stated in this Decree constitutes an admission of liability or wrongdoing\n\non the part of House of Philadelphia.\n\n\fThe Parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing and the entry of findings of fact and conclusions of law. Venue is appropriate in the Southern District of Alabama (Southern Division). The parties agree that this Consent Decree is fair, reasonable, and does not violate the law or public policy. The rights of Ms. Griffin, House of Philadelphia, and the Commission are protected adequately by this Decree.\nIn the interest of resolving this matter~ avoiding the expense of further litigation, and as a result of having engaged in comprehensive settlement negotiations, the Commission and House of Philadelphia have agreed that this action should be finally resolved by entry of this Consent Decree.\nIt is ORDERED, ADJUDGED AND DECREED: .1. This Decree resolves all claims arising out of the issues between the Commission and Defendant House of Philadelphia in this lawsuit, including without limitation, back pay, compensatory and punitive damages, injunctive relief, costs, and attorney fees. This decree is limited in its scope to matters covered explicitly herein and in particular only to the House of Philadelphia facilities in the State of Alabama. This Decree expires when House of Philadelphia has provided the relief and taken the action provided for herein, or as provided under paragraph 12 of this Decree, whichever is later. 2. Defendant and its officers, agents, employees, successors, and assigns both at the time that this Decree becomes effective and for the duration of this Decree agree to comply with Federal law and acknowledge that it is unlawful to: (a) discriminate against any employee on the basis of pregnancy or sex, (b) harass any employee based on pregnancy or sex; (c) retaliate against any employee because he or she: (i) opposes or opposed discriminatory practices nlade unlawful by Title VII; (ii) files or filed a charge of discrimination or assists, assisted,\n2\n\n\fparticipates, or participated in the filing of a charge of discrimination; or (iii) assists, assisted, participates or participated in an investigation or proceeding brought under the federal laws prohibiting discrimination or retaliation; and (d) alter the terms and conditions of any employee's employment because of pregnancy or sex.\nIVI0NETARY RElJEF 3. House of Philadelphia shaH pay, by certified checks, a total amount of $8,000.00 to Sharonda Griffin. Of this sum, $4,000.00 (four thousand dollars) shall be paid by House of Philadelphia to M's. Griffin by October 6, 2006 and $4,000.00 (four thousand dollars) shall be paid by House of Philadelphia to Ms. Griffin by Monday, November 6, 2006. House of Philadelphia will not condition the receipt of individual relief on Ms. Griffin's agree.ment to (a) maintain as confidential the tenns of this Decree, or (b) waive her statutory rights to file a charge with any federal or state anti-discrimination agency. House of Philadelphia will issue applicable United States Internal Revenue Service Forms to Ms. Griffin for all such payments on or before January 31, 2007. 4. The pa}'rnents provided for in paragraph 3 of this Decree shall be malled directly by House of Philadelphia's attorney to Ms. Griffin's attorney, Daniel A. Hannan, at Mr. Hannan's business address. \\Vithin three (3) business days of the issuance of each cbeck, House of Philadelphia shall submit a copy of the check and related correspondence to the United States Equal Emp]oyment Opportunity Commission, Regional Attorney, Binningham District Office, 1130 22nd Street South, Suite 2000, Binningham, Alabama, 35205-2886.\nOTHER RELIEF 5. Defendant will institute and carry out policies, practices and training at its Alabama facilities that help assure a \\\\tork environment free lrOln sex and pregnancy-based discrinlination\n3\n\n\ffor its employees that allow employees to raise concerns or complaints \\vithout retaliation about\n\nmatters, whether alleged~ perceived or actual, made unlawful by Title VII~ and that guide, direct\n\nand encourage employees to report incidents of pre~'11ancy and sex-based discrimination.\n\n6.\n\nDefendant will develop and adopt policies that inc1ude~ at a minimum:\n\na. A clear and strong commitment to a workplace free of pregnancy and sex-based\n\ndiscrimination;\n\nb. A clear and strong message of encouragement to persons who believe they have\n\nbeen discriminated against to come fonvard;\n\nc. A description of the consequences, up to and including tennination, that will be\n\nimposed upon violators of the policy;\n\nd. An assurance of non-retaliation for persons who believe they have been\n\ndiscriminated against and for witnesses;\n\ne. That discrimination on the basis of sex by anyone, including management\n\nofficials, supervisors, vendors, suppliers, third parties and customers, is prohibited and will not\n\nbe tolerated;\n\nf.\n\nAssurances that Defendant will investigate allegations of pregnancy and sex-\n\nbased discrimination promptly, fairly, reasonably, effectively and as confidentially as possible\n\nunder the circmnstances, by appropriate investigators and that appropriate corrective action and\n\nappropriate foHow-up will be taken by Defendant to make victims whole and to eradicate the\n\ndiscrimination;\n\ng. That infomlation will be provided each employee regarding the employee's right\n\nto file a charge of discrimination with the EEOC, including contact telephone numbers,\n\nTDYITDD and addresses for the EEOC.\n\n4\n\n\f7. \\Vithin sixty (60) days follo\\ving the date of entry of this Decree, and annually thereafter for the duration of this Decree, Defendant will provide training at each of its Alabama facilities which shaH explain:(l) what constitutes pregnancy and sex-based discrimination; (2) that Title\nvn prohibits this misconduct; (3) how to prevent this misconduct; (4) to whom employees may\ncomplain if they feel they have been subjected to this Inisconducl; and (5) that managers will be evaluated on their enforcen1ent of House of Philadelphia's anti-discrimination policies. This training will also include an explanation of House of Philadelphia's policies regarding pregnancy and sex-based discrimination; the importance of maintaining an environn1ent free from pregnancy and sex discrinlination; and the discipline that Inay be taken against other employees and the managers or supervisors who are found to have allowed the discrimination to occur. Pursuant to this Decree, House of Philadelphia will also conduct the same or similar training at intervals of approximately twelve (12) months during the pendency of this Decree. The following subparagraphs refer to each of the two training periods.\na. The annual training session shall be at least two (2) hours in length, plus an additional thirty (30) minutes for questions and answers. Defendant's Alabama management staff, including all managers who may investigate employee complaints shall attend the annual training sessions together with all hourly and salaried employees. The enlployees who are unable to attend the annual training session nlay watch a videotape of it.\nb. Employees shall sign a registry when they attend the annual training session or watch the videotape of the annual training session. Defendant shall keep, for the duration of the Decree, this written record of all employees who attend the annual training session or watch it on videotape.\n5\n\n\fc.\n\nHOllse of Philadelphia win confinn in writing to the EEOC Regional Attorney\n\nthat this additional training has been completed in full compliance with the tenns of this Decree.\n\n\\Vithin ten (l0) days following its receipt, EEOC will confirm that this training requirement has\n\nbeen met or provide specific comments about how the training is not in compliance with the\n\nDecree. The parties would communicate to resolve any disputed issues on this training or, if\n\nnecessary, have the court resolve the matter.\n\n8. I-louse of Philadelphia will post its current EEO policies in a prominent location,\n\nfrequented by enlployees, at each of Defendant's facilities in A1abama. These policies shaH also\n\nbe distributed to each current employee within thirty (30) days of the entry of the Decree, and\n\ndistributed to all new employees when hired.\n\n9. Defendant shall promptly and appropriately investigate aU complaints of pregnancy and\n\nsex-based discrimination. The investigation must inc1ude a finding of \\vhether discrimination\n\noccurred; a credibility assessment; interviews of all potential victims and witnesses identified;\n\nand concurrent notes of the investigation. Defendant shall take immediate appropriate corrective\n\naction to nlake discrinlination victims whole, to discipline violators, and to eradicate the\n\ndiscrimination. Defendant, if corrective action was required as a result of the investigation, shall\n\nfollow up with complainants at appropriate intervals to ensure that the discrimination does not\n\nreoccur. Defendant shall provide notice to EEOC of the resolutions of cOlnplaints of sex or\n\npregnancy-based discrimination during the pendency of this decree. That notice shall describe\n\nthe investigation, and the resolution of the investigation shall be provided to the EEOC within six\n\n(6) months of the initial complaint.\n\n6\n\n\fAPPROVED A~D CONSE~TEf) TO BY:\n\nChiz,,e\"\":fA E4J~Jte,jfrA~,tY\nHOtlSE OF PHILADELPH lAo\nCENTER. INC\n\nAtto • for Defendant RA )'MONDL. BELL. ESQ.\nBen &: Adanis. P,C.\nPO, Box 1932 lvtohile, AL 36602 Telephone: (251) 694-9020\n\nAttorney for Plaintiff-Intervenor DANIEL A, HANNAN~ ESQ. 63 S. Royal Street, Suite 1109 ~fobile, Alabama 36602 Telephone; (251) 433-0051\nATTORNEYS FOR PLAINTll1'F KEOS::\n\nC. EMANUEL SMITH Regional Attorney\nSupervisory Trial Attorney\nMASON D, BARRETT Senior Trial Attorney EQTJ AL El\\1PLOY~fENT OPPORTUNITY CO~1MISS[ON Binningham District Ofi1ce t 13() 22nd Street South,. Suite 2000 Bjrminghrun~ AL 35205~2886 Telephone: (205) 212-2047 Facsimile: (205) 212-2041\n8\n\n\fNOTICE\n\n10. Defendant will post the Notice attached as Attacl1Jllent A at each of Defendant's facilities\n\nin Alabama. The Notice will be posted in a highly visible location, frequented by employees, for\n\nthe duration of this Decree. The Notice shall be posted in both English and in Spanish, and shall\n\nbe the same type, size, and style as Attachment A.\n\n11 w The parties shall bear their O\\\\'Il attorneys' fees and costs i~curred in this action up to the\n\ndate. of entry ofthis Decree.\n\nFORCE AND EFFECf\n\n12.\n\nThe duration of this Decree shall be thirty-six (36) months from ·its entry. This Court\n\nshall retain jurisdiction over this action for the duration of the Decree, during which the\n\nCommission may petition this Court for compliance with this Decree. Should the Court\n\ndetennine that defendant has not complied with this Decree, appropriate relief, including\n\nextension ofthis Decree for such period as may be necessary to remedy its non~comp1iance, may\n\nbe ordered. Absent extension, this Decree shall expire by its own tenns at the end of thirty-si~\n\n(36) months from the date of entry, without further action by the Parties.\n\n13. The parties agree to the entry ofthis Decree subject to final approval by the Court.\n\nIT IS SO ORDERED: This 9th day of January 2007.\n\n)\n\n///\n\n. / ) f)\n\n~~_/~\"'-~'-~~-~~-=~~~--r-___~/~'~~~/~~~(j~?\n\nISTI K. DuBOSE\n\nUNITED STATES DISTRICT JUDGE\n\n7\n\n\f", "ALS District Version 3.0 Live - Docket Report\n\nhttps://ecf.alsd.uscourts.gov/cgi-bin/DktRpt.pl?423490290573601-L_3...\n\nU.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:05-cv-00530-KD-M\n\nSCHEDO\n\nEqual Employment Opportunity Commission v. House of Philadelphia, Inc. Assigned to: Judge Kristi K. DuBose Referred to: Magistrate Judge Bert W. Milling, Jr Cause: Job Discrimination (Pregancy)\n\nDate Filed: 09/19/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff\n\nPlaintiff\nEqual Employment Opportunity Commission\n\nrepresented by Charles Guerrier Equal Employment Opportunity Commission 1130 22nd St. S., Ste. 2000 Birmingham, AL 35205-2881 205-212-2044 Email: charles.guerrier@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nIntervenor Plaintiff Sharonda Griffin\n\nMason D. Barrett Equal Employment Opportunity Commission 1130 22nd St. S., Ste. 2000 Birmingham, AL 35205-2881 205-212-2047 Email: mason.barrett@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED\nrepresented by Daniel A. Hannan Franklin & Stein, P.C. 63 S. Royal St. Ste. 1109 Mobile, AL 36602 (251) 433-0051 Email: dahlawyer@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nV. Defendant\n\n1 of 4\n\n6/12/2007 2:53 PM\n\n\fALS District Version 3.0 Live - Docket Report\n\nhttps://ecf.alsd.uscourts.gov/cgi-bin/DktRpt.pl?423490290573601-L_3...\n\nHouse of Philadelphia Center, Inc.\n\nrepresented by Raymond Lloyd Bell, Jr. Bell & Adams, P.C. P.O. Box 1932 Mobile, AL 36633 (251) 694-9020 Fax: 251-694-9022 Email: rbell@belladams.com LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nDate Filed 09/19/2005 10/07/2005\n12/02/2005 01/10/2006 01/11/2006 01/13/2006 01/17/2006 02/09/2006 02/10/2006 02/10/2006\n\n#\n\nDocket Text\n\n1 COMPLAINT against House of Philadelphia Center, Inc., filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(jlr) (Entered: 09/20/2005)\n2 REQUEST FOR WAIVER of Service sent to Mamie H. Mackey as registered agent of House of Philadelphia Center, Inc. on 10/4/05 by Equal Employment Opportunity Commission. Waiver of Service due by 11/4/2005. (mca, ) (Entered: 10/07/2005)\n3 Summons Issued as to House of Philadelphia Center, Inc.; summons mailed to counsel for service (mca, ) (Entered: 12/02/2005)\n4 RETURN OF SERVICE of Summons and Complaint served 12-31-2005 as to House of Philadelphia Center, Inc. (Barrett, Mason) (Entered: 01/10/2006)\nAnswer due from House of Philadelphia Center, Inc. on 1/20/2006. (cmj, ) (Entered: 01/11/2006)\n5 ANSWER to Complaint with Jury Demand by House of Philadelphia Center, Inc..(Bell, Raymond) (Entered: 01/13/2006)\n6 PRELIMINARY SCHEDULING ORDER entered Rule 26 Meeting Report due by 3/3/2006.. Signed by Judge Bert W. Milling Jr. on 1/17/06. (cmj, ) (Entered: 01/17/2006)\n7 MOTION to Intervene by Sharonda Griffin. (Attachment #1 Complaint in Intervention; Attachment #2 Exhibit 1; Attachment #3 Exhibit 2; Attachment #4 Exhibit 3 (Hannan, Daniel) (Entered: 02/09/2006)\nREFERRAL OF 7 MOTION to Intervene to Judge DuBose. (mca, ) (Entered: 02/10/2006)\n8 Order re: 7 MOTION to Intervene filed by Sharonda Griffin. Response to Motion due by 2/17/2006. Any party objecting to the proposed relief shall file an objection no later than 2/17/06. If no objections are received by that date, Sharonda Griffin's motion will be automatically GRANTED and she will be allowed to intervene as a pltf without further order of the court. Signed by Judge Kristi K. DuBose on 2/10/06. (mca, ) (Entered: 02/10/2006)\n\n2 of 4\n\n6/12/2007 2:53 PM\n\n\fALS District Version 3.0 Live - Docket Report\n\nhttps://ecf.alsd.uscourts.gov/cgi-bin/DktRpt.pl?423490290573601-L_3...\n\n02/21/2006 03/03/2006 03/03/2006 03/10/2006 03/13/2006\n03/22/2006 03/22/2006 03/22/2006 03/24/2006 03/24/2006 03/27/2006 01/04/2007 01/04/2007 01/04/2007 01/04/2007 01/10/2007\n\n9 Intervenor COMPLAINT filed by Sharonda Griffin. (Attachments:, # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(mca, ) (Entered: 02/24/2006)\n10 REPORT of Rule 26(f) Planning Meeting. (Hannan, Daniel) (Entered: 03/03/2006)\nREFERRAL OF 10 Report of Rule 26(f) Planning Meeting to Judge Milling. (mca, ) (Entered: 03/03/2006)\n11 ANSWER to Intervenor Complaint by House of Philadelphia Center, Inc..(Bell, Raymond) (Entered: 03/10/2006)\n12 SCHEDULING ORDER: Pretrial Conference set for 3/8/2007 01:30 PM in Chambers before Judge Kristi K. DuBose. Amended Pleadings due by 5/5/2006. Discovery cutoff 10/6/2006. Motions due by 10/27/2006. Jury Selection set for 4/3/2007 08:45 AM in Courtroom 5A before Judge Kristi K. DuBose. Trial will be set for April, 2007. Position Regarding Settlement due by 10/6/2006. Defendant's narrative statement is stricken. Not later than 3/23/06, defendant is to supplement Report of Parties as set out. Signed by Judge Bert W. Milling Jr. on 3/13/06. (Attachments:, # 1 Standing Pretrial Order)(cmj, ) (Entered: 03/13/2006)\n13 RESPONSE to 12 Scheduling Order,, Initial Disclosures filed by Sharonda Griffin. (Hannan, Daniel) (Entered: 03/22/2006)\n14 RESPONSE TO ORDER re: 12 Scheduling Order,, by House of Philadelphia Center, Inc. filed by House of Philadelphia Center, Inc.. (Bell, Raymond) (Entered: 03/22/2006)\nREFERRAL OF 13 Response, 14 Response to Order to Judge Milling. (mca, ) (Entered: 03/22/2006)\n15 RESPONSE TO ORDER re: 12 Scheduling Order,, by House of Philadelphia Center, Inc. filed by House of Philadelphia Center, Inc.. (Bell, Raymond) (Entered: 03/24/2006)\nREFERRAL OF 15 Response to Order to Judge Milling. (mca, ) (Entered: 03/24/2006)\n16 Document endorsed NOTED by Judge Bert W. Milling Jr.: Response to Order15 filed by House of Philadelphia Center, Inc., (vlh, ) (Entered: 03/27/2006)\n17 Proposed Consent Decree by Equal Employment Opportunity Commission. (Barrett, Mason) (Entered: 01/04/2007)\n18 MOTION for Consent Decree by Equal Employment Opportunity Commission. (Barrett, Mason) (Entered: 01/04/2007)\nMOTIONS REFERRED: 18 MOTION for Consent Decree to Judge DuBose (cmj) (Entered: 01/04/2007)\nREFERRAL OF 17 Proposed Consent Decree to Judge DuBose. (cmj) (Entered: 01/04/2007)\n19 CONSENT DECREE entered between EEOC and House of Philadelphia Center, Inc.. Signed by Judge Kristi K. DuBose on 1/9/07. (mca) (Entered: 01/10/2007)\n\n3 of 4\n\n6/12/2007 2:53 PM\n\n\fALS District Version 3.0 Live - Docket Report\n\nhttps://ecf.alsd.uscourts.gov/cgi-bin/DktRpt.pl?423490290573601-L_3...\n\nPACER Service Center\n\nTransaction Receipt\n\nPACER Login:\nDescription:\nBillable Pages:\n\n06/12/2007 14:55:24\n\nhs0328 Client Code: eeoc\n\nDocket Report\n\nSearch Criteria:\n\n1:05-cv-00530-KD-M\n\n2\n\nCost:\n\n0.16\n\n4 of 4\n\n6/12/2007 2:53 PM\n\n\f" ]
On September 15, 2005, the Equal Employment Opportunity Commission (EEOC) filed suit against House of Philadelphia, Inc., on behalf of an employee who was allegedly fired because she was pregnant. Seeking monetary and injunctive relief for the employee (including economic damage, compensation for emotional harm, and punitive damages), the EEOC brought suit under Title VII of the Civil Rights Act of 1964 for unlawful discrimination on the basis of sex. The EEOC also sought to recover its costs. Via private counsel, the employee filed a motion to intervene in the suit, which was automatically granted after the period for filing objections passed without incident. The employee brought claims under Title VII and state law and sought substantially the same relief as the EEOC, except that the complaint specifically sought reinstatement. Eventually the parties came to a settlement agreement, which the Court (Judge Kristi K. DuBose) entered as a consent decree on Jan 10, 2009. The terms of the decree, which lasted 3 years, provided monetary and injunctive relief. The employee received $8,000, while House of Philadelphia, Inc., was required to institute and follow policies to eliminate sex discrimination and pregnancy discrimination from the workplace and to post and distribute the policies to employees. House of Philadelphia also had to provided yearly training to its employees explaining pregnancy and sex discrimination, informing them of its illegality, and explaining how to avoid it, who to file complaints with, and that managers would be evaluated for enforcing the anti-discrimination policies. House of Philadelphia was further required to investigate complaints adequately and report the results of each investigation to the EEOC. The 3-year decree period passed without court involvement and the case is now closed.
Equal Employment Opportunity Commission brought a Title VII sex discrimination case against House of Philadelphia, Inc., on behalf of an employee who was allegedly fired because she was pregnant. The EEOC sought monetary and injunctive relief for the employee (including economic damage, compensation for emotional harm, and punitive damages). The employee later intervened in the suit. The parties came to a settlement that was entered as a consent decree. The decree provided for monetary relief for the employee and subjected House of Philadelphia to a 3-year injunction. The case is now closed.
PB-NJ-0003
[ "Case 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 1 of 22\n\nNEW JERSEY PROTECTION AND ADVOCACY, INC. BY: WILLIAM EMMETT DWYER, ESQ. (WD 6894)\nHELEN C. DODICK, ESQ. (HD 4960) 210 SOUTH BROAD STREET, 3RD FLOOR TRENTON, NEW JERSEY 08608 (609) 292-9742 Attorney for Plaintiff\n\nUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY\n\n:\n\n:\n\nNEW JERSEY PROTECTION AND ADVOCACY, :\n\nINC., a New Jersey non-profit corporation;\n\n:\n\n:\n\nPlaintiff,\n\n:\n\n:\n\nv.\n\n:\n\n:\n\nJAMES DAVY, In his Official Capacity as\n\n:\n\nCommissioner of Human Services for the State of :\n\nNew Jersey,\n\n:\n\n:\n\nDefendant.\n\n:\n\n:\n\n:\n\nCivil Action No. 305-cv-01784 (SRC)\nAMENDED COMPLAINT\n\nPRELIMINARY STATEMENT\n\nEvery day, hundreds of individuals are unnecessarily and illegally confined in New Jersey’s state psychiatric hospitals. These individuals no longer require inpatient care and treatment. The only reason they continue to be confined and are not living in the community is because the Defendant has failed to develop suitable community living placements and programs for their release back into their communities.\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 2 of 22\nThe failure to release people who no longer require hospitalization has gone on for over a quarter of a century in New Jersey. The Defendant was sued in the early 1980’s on behalf of several patients seeking release from continued unnecessary confinement. In re S.L., 94 N.J. 128 (1983). At that time, Defendant argued that even though the individuals seeking discharge no longer met the legal standards for commitment, it would be cruel to release such individuals because there were no discharge plans or available community placements. However, keeping those individuals hospitalized posed a problem, as there was no legal basis for keeping such persons confined.\nIn an effort to prevent the abandonment of psychiatric patients by the State, the New Jersey Supreme Court found legal authority for keeping persons confined to the State’s psychiatric hospitals when they no longer required inpatient treatment. The court articulated this legal authority in the case In re S.L., 94 N.J. 128 (1983). In that case, the court determined that the State's parens patriae power was sufficient to continue the confinement of individuals in state hospitals and maintain their segregation from the community at large. S.L. gave rise to what is known as “Conditional Extension Pending Placement” (CEPP).\nCEPP status was designed to provide the State with time to develop an appropriate community placement before discharging a patient while simultaneously protecting the patient’s due process rights. A person can be placed on CEPP status at a review hearing if the judge finds that the individual is entitled to discharge but an appropriate placement is not available. The procedure is set forth in New Jersey R. 4:74-7(h)(2).\n2\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 3 of 22\nUnfortunately, the Defendant has egregiously misused CEPP status to retain staggering numbers of individuals in locked and dangerous facilities when they have a right to reside in and receive mental health services in the community.\nToday, CEPP status would not be necessary at all if the Defendant’s predecessors over the past twenty-five years had developed community placements and initiated timely discharge planning for patients deemed no longer in need of hospitalization. Rather than develop the community programs and placements these individuals need, the State instead has allowed them to languish in confinement far beyond the reasonable expectation for any CEPP status.\nThis case is about compelling the Defendant to develop and provide community placements for individuals in state psychiatric hospitals, individuals who have been adjudicated as no longer meeting the standards for civil commitment.\nTHE PARTIES\n1. Plaintiff New Jersey Protection & Advocacy, Inc. (NJP&A or Plaintiff), a non-profit corporation, is the federally funded agency designated since 1994 to serve as New Jersey's protection and advocacy system for people with disabilities. Pursuant to this designation, NJP&A serves as the agency to implement, on behalf of the State of New Jersey, the Protection and Advocacy System for Individuals with Mental Illness established under 42 U.S.C §§ 1080110807.\n3\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 4 of 22\n2. NJP&A is part of a nationwide network of protection and advocacy agencies located in all fifty states, the District of Columbia, Puerto Rico, and the federal territories. The protection and advocacy system comprises the nation’s largest provider of legally based advocacy services for people with disabilities.\n3. NJP&A has statutory authority to pursue legal, administrative and other appropriate remedies to ensure the protection of individuals with mental illness who are or will be receiving care and treatment in New Jersey pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq.\n4. NJP&A is pursuing this action to protect and advocate for the rights and interests of “individuals with mental illness” as that term is defined in 42 U.S.C. § 10802. Specifically, NJP&A brings this action on behalf of individuals with mental illness who are confined to state psychiatric hospitals within New Jersey whom a court of this State has adjudicated as no longer meeting the statutory requirement for involuntary commitment to a state psychiatric hospital.\n5. These individuals have each suffered injuries, or will suffer such injuries, that would allow them to bring suit against Defendants in their own right.\n6. Defendant James Davy is Commissioner of the Department of Human Services of New Jersey (DHS), a public entity covered by, inter alia, Title II of the Americans with Disabilities Act (ADA). 42 U.S.C. § 12131(1).\n4\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 5 of 22\n7. Defendant Davy is ultimately responsible for ensuring that New Jersey operates its service systems in conformity with the constitutions of the United States and New Jersey and with the ADA and Section 504 of the Rehabilitation Act (Section 504). He is sued in his official capacity.\n8. DHS also operates state inpatient psychiatric facilities and is responsible for discharge planning, placement, and follow up for individuals residing in such facilities.\n9. DHS is the recipient of federal funds and administers state mental health programs.\nJURISDICTION\n10. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (for civil actions arising under the laws of the United States), jurisdiction under 28 U.S.C. § 1343(a)(3)&(4) (for actions under laws providing for the protection of civil rights).\n11. Plaintiff seeks declaratory and injunctive relief under 28 U.S.C. § 2201 et seq.\nFACTS\nA. The Origin of Conditional Extension Pending Placement\n12. The New Jersey Supreme Court created the status of Conditional Extension Pending Placement (CEPP) in 1983 in the case In re S.L., 94 N.J. 128 (1983). At that time, the Task Force on Mental Commitments (Task Force) had been formed to suggest an appropriate way to\n5\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 6 of 22\ntreat institutionalized individuals who no longer met the commitment standard. Id. at 134. The Task Force recommended development of an intermediate standard of commitment that would cover “an individual who by reason of mental illness is unable to care for himself without some level of aid or supervision.” Id. at 139.\n13. The New Jersey Supreme Court specifically declined to develop such an intermediate standard. Id. Rather, it recognized such continued commitment as being a violation of an individual’s due process rights and, therefore, found that the State could not keep non-dangerous individuals on committed status using its police powers. Id.\n14. The court recognized, however, that in accordance with its parens patriae responsibility, it could not “cast [patients] adrift into the community when the individuals are incapable of survival on their own.” Id. at 140. The court held that the State “may therefore continue the confinement of such persons on a provisional or conditional basis to protect their essential well being pending efforts to foster placement of these individuals in proper supportive settings outside of the institution.” Id.\n15. The court set forth strict procedural requirements for continued commitment under these circumstances. Of significance is the requirement of an initial placement review hearing within sixty days of the entry of an order of CEPP. Id. Thereafter, subsequent placement review hearings must occur at least every six months. Id. at 141.\n6\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 7 of 22\n16. If placement is not possible, the court must determine whether the State has undertaken all good faith efforts necessary to place the individual in an appropriate setting outside of the psychiatric institution. Id.\n17. At each of the placement review hearings, the State must show what efforts it has made to locate placement for the individual. If immediate placement is not possible, the court must determine if the State has undertaken all good faith efforts to ensure that the individual is placed in an environment least restrictive of his or her liberty within the institution. Id. at 141.\n18. While the individual remains confined in the institution, all reasonable efforts must be made to improve the individual’s ability to function in a community-based setting. Id.\n19. Only under these limited and strict conditions is “the continuing confinement of individuals who do not meet standards for commitment and are eligible for discharge but are not able to survive independently . . . in accord with due process.” Id. at 142.\n20. The Plaintiff does not allege that CEPP status is illegal; rather the Plaintiff alleges that the Defendant’s practice and application of CEPP status runs afoul of his obligations under the ADA to comply with the landmark United States Supreme Court decision, Olmstead v. L.C., 527 U.S. 581 (1999).\n7\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 8 of 22\nB. The Reality of Conditional Extension Pending Placement\n21. The State has misused CEPP status to justify the continued confinement of thousands of individuals while simultaneously failing to develop suitable community supports for those individuals.\n22. Every person on CEPP status bears the stigma inherent in being unnecessarily segregated from other citizens in the community.\n23. The narrowly tailored due process protections of CEPP status, designed to permit hospitals to continue the confinement of individuals while the State develops a community placement, now serves as the very sword against the individuals it was designed to shield.\n24. Excluding the State’s lone forensic hospital, on any given day nearly 50% of the individuals in New Jersey’s psychiatric hospitals are on CEPP status. In other words, nearly half of the people who are institutionalized in New Jersey’s psychiatric hospitals have been determined by a court no longer to require such institutionalized care.\n25. While on CEPP status these individuals are routinely housed in the most restrictive part of the institution despite being viewed as ready to return to the community. These wards also contain the most volatile patients, including those who are on committed status and often have not yet been stabilized.\n8\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 9 of 22\n26. The CEPP population remains on the most restrictive wards because of the lack of space in less restrictive parts of the hospitals such as cottages where greater freedoms in a comparatively more community-like setting are permitted.\n27. There are few openings in cottages because the State has failed to move the cottage residents into the community. Consequently, no opportunity exists for other CEPP individuals in the hospitals’ more restrictive wards to move from those wards into the cottages or other less restrictive placements in the hospital.\n28. CEPP patients residing on overcrowded and understaffed wards are routinely subject to abuse and neglect.\n29. While remaining on restrictive and volatile hospital wards, CEPP patients routinely receive the same treatment by staff as involuntarily committed patients. For example, staff continues to grant and rescind privilege levels that determine whether or not the CEPP individual will be entitled to go outside on the grounds of the hospital, attend social activities, and use the library or other hospital facilities. It does not matter that a judge has determined that the individual no longer even needs to be hospitalized; a CEPP patient may not go outside for fresh air unless a staff member permits it.\n30. While on CEPP status and confined to state hospitals, those individuals for whom intensive therapy is indicated are unable to receive such therapy because, apart from psychotropic medication, very limited therapy is offered in state psychiatric hospitals, even for conditions for which therapy, and not medication, is the recommended treatment.\n9\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 10 of 22\n31. Despite being adjudicated as ready for community living, the individuals on CEPP status who are confined to institutions remain on locked wards without the ability to control simple events in their life such as turning lights on or off, when they will lie down to rest, when they will eat or sleep, when and if they will have access to the outdoors, and when they will shower.\n32. By allowing the continued confinement of thousands of individuals under the above conditions, the Defendant has flagrantly failed to minimize the restrictions on the liberty of the individuals on CEPP status, as required by fundamental tenets of due process and human liberty. This failure has profoundly impacted, and continues to impact, the lives of thousands of citizens of this State. Examples of two such individuals who have been profoundly impacted by their extended stay on CEPP status follow.\n33. Carol C. is a 60-year-old woman who was committed to a state psychiatric hospital in 1993. She was on committed status for less than one month when a New Jersey Superior Court Judge determined that she could be discharged to a community placement. Upon information and belief, Carol C. remained continuously on CEPP status from 1993 to March 2005. During most of that time, she remained in the most restrictive and volatile ward of the hospital; other patients assaulted her on numerous occasions, and she required emergency medical treatment at the local general hospital emergency room for such injuries.\n34. While needlessly hospitalized since 1993, Carol C. was unable to participate in the activities she enjoyed, such as supported employment, attending church, and enjoying shopping in local stores.\n10\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 11 of 22\n35. Another such individual, Brian B., is a 38-year-old male who has been hospitalized in a state psychiatric hospital and on CEPP status since 2003.\n36. Brian wishes to reside in the community, and both a Superior Court judge and his doctors agree that he is ready for discharge.\n37. He wishes to reside in a group home with his peers and would enjoy participating in community activities such as musical performances and dances.\n38. He also enjoys cooking and would like to prepare, or assist in the preparation of, his own meals.\n39. He enjoys long walks and trips to the mall.\n40. Brian’s mother, who provides moral and emotional support to Brian, believes that he has been institutionalized for too long and looks forward to seeing him reside in the community.\n41. Because there is no appropriate community placement for Brian B., he remains hospitalized in an extremely volatile ward of the hospital where his safety and security are in jeopardy on a daily basis.\n42. The above examples are only two out of nearly a thousand individuals who are on CEPP status, individuals who are kept in institutions segregated from other citizens unnecessarily and against their will.\n11\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 12 of 22\nC. The Failure to Create or Implement an Effective Plan\n43. Since the landmark decision of Olmstead v. L.C., 527 U.S. 581 (1999), states have been required to create and implement a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings. New Jersey has ignored this important mandate and continued its shameful method of CEPP warehousing and institutional expansion.\n44. In Frederick L. v. Dept. of Pub. Welfare, 364 F.3rd 487 (2004), the Court of Appeals for the Third Circuit has held that a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings and a waiting list that moves at a reasonable pace and which is not controlled by the State’s endeavors to keep its institutions fully populated – is a minimum requirement for states in this Circuit.\n45. New Jersey has neither an effective plan nor a true waiting list, much less one that moves at a reasonable rate. In fact, the DHS’s true plan is not to discharge such individuals into the community, but rather to endeavor to keep its institutions fully populated with those individuals.\n46. The percentage of individuals on CEPP status has been and remains consistently high. It is, therefore, an undeniable fact that the State is spending its allocated mental health funds on keeping institutionalized individuals on CEPP status rather than on developing community placements. In fact, a shockingly large portion of each dollar spent on New Jersey’s psychiatric institutions is being spent on individuals who are no longer on committed status and do not belong there.\n12\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 13 of 22\n47. The dedication of such high dollar amounts to the institutionalization of individuals on CEPP status is exactly the prohibition the court set forth in Frederick L. when it proscribed the State’s endeavors to “keep its institutions fully populated.”\nD. The Failure to Implement the Public Policy\n48. It is the public policy of the State of New Jersey that adequate nonresidential facilities be provided for the treatment of individuals with mental illness, and that such facilities be closely integrated with other community health, welfare and social resources. N.J.S.A. 30:4-24(1)&(2).\n49. It is also the public policy of the State of New Jersey that every patient in treatment in the State’s psychiatric hospitals shall be entitled to all rights set forth in the Patients’ Bill of Rights. N.J.S.A. 30:24.2 (Patients’ Bill of Rights).\n50. Among the enumerated rights in the Patients’ Bill of Rights is the right to the least restrictive conditions necessary to achieve the purposes of treatment, N.J.S.A. 30:4-24.2e (2); the right to privacy and dignity, N.J.S.A. 30:4-24.2e (1); the right to be free from unnecessary or excessive medication, N.J.S.A. 30:4-24.2d (1); the right to be free from physical restraint and isolation, except for emergency situations, N.J.S.A. 30:4-24.2d (3); the right to be free from corporal punishment, N.J.S.A. 30:4-24.2d (4); the right to enforce any of these rights by civil action or other remedies otherwise available by common law or statute, N.J.S.A. 30:24.2h; including the right to seek a writ of habeas corpus based on violation of these rights. Id.\n13\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 14 of 22\n51. By failing to administer services to Plaintiff’s constituents in the least restrictive conditions necessary to achieve the purposes of treatment, Defendant violates the public policy of the State as set forth in N.J.S.A. 30:4-24, the Patients’ Bill of Rights. N.J.S.A. 30:4-24.2e (2).\n52. New Jersey’s Law Against Discrimination (LAD) is also an expression of the public policy of the State of New Jersey. It makes it unlawful to subject people to differential treatment based on, inter alia, mental or physical disability, or perceived disability. N.J.S.A 10:5-3 through 10:5-4.\n53. The LAD prohibits unlawful discrimination against those with a mental or physical disability in employment, housing, places of public accommodation, credit and business contracts.\n54. In preventing Plaintiff NJP&A’s constituents from being integrated into the community, the Defendant denies NJP&A’s constituents important advantages in public accommodations and in publicly assisted housing as guaranteed by the LAD, in violation of the public policy of the State.\n55. It is also the public policy of the State of New Jersey that “[e]very individual who is mentally ill shall be entitled to fundamental civil rights . . . .” N.J.S.A. 30:4-24.1. One of the fundamental civil rights in New Jersey’s Constitution is the right to due process of law. N.J. Const. art. I, § I.\n14\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 15 of 22\n56. Defendant violates the State’s public policy to guarantee the due process rights of individuals with mental illness by failing to have an effective plan to ensure their safe return to the community and by continuing their uneccesary confinement.\nCOUNT I Due Process\n1. Plaintiff repeats and realleges each Paragraph of this Complaint as if set forth at length herein.\n2. Defendant's conduct, as described in this Complaint, is carried out under the color and pretense of New Jersey state law.\n3. Plaintiff NJP&A’s constituents, individuals on CEPP status, by definition cannot be retained under the State’s Police Powers because they are not a danger to themselves or others.\n4. The State continues their commitment indefinitely based upon its parens patriae powers only.\n5. The State has failed to make good faith efforts to place individuals on CEPP status in the community.\n6. The State does not have the authority to continue confining these individuals indefinitely and without a legitimate and realistic plan for their return to and integration into the community.\n15\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 16 of 22\n7. These indefinite restrictions on Plaintiff’s constituents’ liberty without an effective plan to ensure their safe release when they have been deemed suitable to return to the community by a reviewing court, deny these constituents their right to due process of law in violation of the Fourteenth Amendment to the United States Constitution. Such rights are enforceable under 42 U.S.C. § 1983.\nCOUNT II Violation of the Americans with Disabilities Act 1. Plaintiff repeats and realleges each Paragraph of this Complaint, and each Paragraph of Count I above, as if set forth at length herein.\n2. Plaintiff NJP&A’s constituents are individuals with mental illness. They have mental impairments that substantially limit one or more major life activities.\n3. Plaintiff’s constituents are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2).\n4. Plaintiff’s constituents reside in the State’s psychiatric hospitals and have been adjudicated as being ready for discharge into the community through an Order of Conditional Extension Pending Placement. They wish to participate in more integrated community residential programs that meet their mental health needs.\n16\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 17 of 22\n5. Institutional segregation of such persons who have been deemed able to live in and benefit from community settings perpetuates unwarranted assumptions that persons with mental illness are incapable or unworthy of participating in community life.\n6. Confinement in an institution severely diminishes the everyday life activities of these individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.\n7. In order to receive needed treatment services, Plaintiff’s constituents must, because of their disabilities, relinquish the right to participate in community life that they could enjoy, while persons without mental disabilities can receive the services they need without similar sacrifice.\n8. With reasonable accommodations by way of services and supports, Plaintiff’s constituents can be served in a suitably integrated setting.\n9. Defendant is responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C.§§ 12131(1)(A) and (B).\n10. Title II of the ADA prohibits Defendants from discriminating against individuals with disabilities in programs and activities. 42 U.S.C. §§ 12131, 12132. Defendant violates these provisions by discriminating against those on CEPP status who are unnecessarily segregated from the larger community.\n17\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 18 of 22\n11. Title II requires that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). In the landmark decision Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that these provisions of law are violated when a state places people with mental illness in “unjustified isolation,” and that a person with mental illness may sue the state for failing to place him or her “in the most integrated setting appropriate to [his or her] needs.” Id.\n12. The Defendants are obligated under the ADA to administer New Jersey’s programs in a manner that supports the availability of services and programs in the most integrated setting for individuals with disabilities.\n13. The Defendant has failed to meet his obligation to provide services and programs in the most integrated setting and instead has kept, and continues to keep, thousands of individuals segregated in state psychiatric hospitals. Psychiatric hospitals are not the most integrated setting appropriate to the needs of persons on CEPP status.\n14. The State cannot demonstrate that it has a comprehensive, effectively working plan for placing CEPP patients in less restrictive settings.\n15. The State has no rational waiting list that moves individuals on CEPP status into the community at a reasonable pace.\n18\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 19 of 22\n16. The State’s continued expansion of the capacity of its institutional psychiatric facilities is evidence that it intends to keep its institutions populated.\nCOUNT III Violation of The Rehabilitation Act 1. Plaintiff repeats and realleges each Paragraph of this Complaint, and each Paragraph of Counts I and II above, as if set forth at length herein.\n2. Section 504 of the Rehabilitation Act provides: \"No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.\" 29 U.S.C. § 794.\n3. Regulations implementing Section 504 of the Rehabilitation Act provide that a\nrecipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons . . . . 45 C.F.R. 84.4b(4).\n4. DHS receives federal financial assistance.\n19\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 20 of 22\n5. Plaintiff’s constituents are individuals who reside in institutions and are qualified to participate in more integrated community residential programs that meet their mental health needs.\n6. With reasonable accommodations, Plaintiff’s constituents can be served in a suitably integrated setting.\n7. Defendant violates Section 504 of the Rehabilitation Act by failing to administer services to Plaintiff’s constituents in the most integrated setting appropriate for them.\n8. Defendant utilizes methods of administering its services that have the effect of subjecting individuals with disabilities to discrimination by keeping them unnecessarily segregated from the community.\n9. Plaintiff’s constituents are qualified to participate in more integrated community residential programs that meet their mental health needs.\nRELIEF REQUESTED\nWHEREFORE, Plaintiff, New Jersey Protection and Advocacy, Inc., prays for the following relief:\nA. Declaratory and injunctive relief;\n20\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 21 of 22\n\nB. An Order requiring that Defendant promptly take such steps as are necessary to enable Plaintiff’s constituents to receive services in the most integrated setting appropriate to their needs;\n\nC. An Order requiring the Defendant to pay a per diem monetary penalty for each day beyond the sixtieth day that the State continues to confine individuals deemed by a court to be suitable for return to the community;\n\nD. An award of prevailing party costs, disbursements and attorney fees pursuant to, inter alia, 42 U.S.C § 1988;\n\nE. An injunction ordering the Defendant to provide monthly reports to the Plaintiff that include information such as the number of individuals on CEPP status, their names, and other information the Plaintiff may require pursuant to its federal mandates;\n\nF. Such other relief as the Court deems appropriate.\n\nBY: s/ William Emmett Dwyer William Emmett Dwyer (WD 6894) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Floor Trenton, NJ 08608\n\nDATED: May 19, 2005\n\nBY: s/ Helen C. Dodick Helen C. Dodick (HD 4960) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Floor Trenton, NJ 08608\n21\n\n\fCase 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 22 of 22\nCertification Pursuant to Rule 201.1(d)\nWilliam Emmett Dwyer certifies as follows:\nThe within civil action is based on an alleged violation of a right secured by the Constitution of the United States.\nBY: s/ William Emmett Dwyer William Emmett Dwyer (WD 6894) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Fl. Trenton, NJ 08608\nDATED: May 19, 2005\nCertification of No Other Action\nWilliam Emmett Dwyer certifies as follows:\nThis matter is not the subject of any other action pending in any other court and is likewise not the subject of any pending arbitration proceeding or administrative proceeding.\nBY: s/ William Emmett Dwyer William Emmett Dwyer (WD 6894) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Fl. Trenton, NJ 08608\nDATED: May 19, 2005\n22\n\n\f", "Case 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 1 of 9\n\nNOT FOR PUBLICATION\nUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY\n\nNEW JERSEY PROTECTION AND ADVOCACY, INC.\nPlaintiff,\nv.\nJAMES DAVY, in his Official Capacity as Commissioner of the Department of Human Services\nDefendant.\n\nCIVIL NO. 05-1784 (SRC) OPINION\n\nCHESLER, District Judge THIS MATTER comes before the Court on a Motion to Dismiss by Defendant James\nDavey (docket entry # 6). This Court, having considered the papers submitted by the parties, for the reasons set forth below, and for good cause shown, DENIES Defendant’s Motion.\n\nI. BACKGROUND OF THE CASE This case was filed by New Jersey Protection and Advocacy, Inc. (“NJP&A”) on behalf of approximately one thousand individuals who are currently confined in psychiatric hospitals in the state of New Jersey. NJP&A seeks to compel the Defendant, in his capacity as Commissioner of the New Jersey Department of Human Services, to provide community\n1\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 2 of 9\nplacements for individuals currently residing in state psychiatric hospitals that have been adjudicated by the state Superior Court as no longer meeting the standards for civil commitment. Under New Jersey law, the State may exercise its parens patriae power to continue confinement of these persons while the State develops an appropriate community placement for them, under a special status known as Conditional Extension Pending Placement (“CEPP”). See In Re S.L., 94 N.J. 128 (1983). NJP&A alleges that the State has used this CEPP status to confine individuals for excessive periods of time and has failed to implement an effective plan for discharging these individuals into the community.\nNJP&A is a non-profit, federally funded agency that has been designated under federal statute to serve as a protection and advocacy system for people with disabilities in the state of New Jersey. Under this statute, NJP&A has the authority to pursue legal, administrative, and other appropriate remedies to ensure the protection of individuals with mental illness who are or will be receiving treatment in New Jersey. See 42 U.S.C. § 10801 et. seq. NJP&A is pursuing this action as an advocate for persons suffering from mental illnesses. They are seeking equitable remedies to secure the timely release of psychiatric patients who may have been wrongfully detained by the State, and to prevent future patients from allegedly wrongful detentions.\nII. MOTION TO DISMISS The Defendant, pursuant to Fed. R. Civ. P. 12(b)(6), filed a motion to dismiss the Plaintiff’s claims. In their brief, the Defendant raised three points to contest the Plaintiff’s claims: (1) that the Plaintiff lacked constitutional standing to assert claims on behalf of its constituents; (2) that Commissioner Davy is immune from suit under Title II of the ADA and\n2\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 3 of 9\nSection 504 of the Rehabilitation Act; and (3) that Commissioner Davy, acting in his official capacity, is not a “person” for the purposes of 42 U.S.C. § 1983. The Court will address each of the Defendant’s claims in turn.\nA. The Plaintiff Has Sufficient Standing to Assert Claims on Behalf of its Constituents The Constitution and the courts have imposed requirements for plaintiffs to have proper\nstanding to bring suits in order to ensure that a plaintiff possesses “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). Associational standing may permit an organization to redress injuries to its members, even without a showing of any injury to the organization itself. United Food and Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 552 (1996).\nRecognizing that “individuals with mental illness are vulnerable to abuse and serious injury,” Congress enacted the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (“PAMII”) to “ensure that the rights of individuals with mental illness are protected” and to assist states in establishing advocacy systems to “protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes.” 42 U.S.C. § 10801(a)(1), (b)(1), (b)(2)(A). PAMII expressly grants protection and advocacy groups, such as NJP&A, standing to pursue legal remedies on behalf of individuals with disabilities for violations of their rights. 42 U.S.C. § 10805(a)(1)(B). See also Senate Report 103-120, 103rd Congress, 1st Session, pp. 39-40 (August 3, 1993) (reprinted at 1994\n3\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 4 of 9\nU.S.C.C.A.N. 164, 202-203). Despite this express Congressional grant, however, NJP&A must still satisfy Article III’s Constitutional requirements to attain standing to sue on behalf of its constituents. See United Food, 517 U.S. at 558. See also Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (noting that PAMII “cannot override constitutional standing requirements”).\nThe Supreme Court has set out three requirements for an associational plaintiff like NJP&A to have standing under Article III to sue on behalf of its members: (1) its members must have standing to sue on their own; (2) the interests it seeks to protect must be germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested may require the participation of individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).\nThe Defendant does not challenge that NJP&A, given their organizational purpose, meets the requirements of the second prong, namely that its interests of protecting wrongfully detained psychiatric patients is germane to the organization’s purpose. The third prong of the test is not constitutionally required, but rather a matter of judicial prudence. United Food, 517 U.S. at 558. As such, it may be abrogated by Congress under a statute granting standing to an organization. Id. The Defendant does not contest that Congress’ statutory grant to NJP&A eliminates this third requirement in the present case.\nThe Defendant’s challenge is based on a claim that NJP&A does not meet with the requirements of the first prong of the Hunt. (Def. Reply Br. at 3.) They assert two claims to support their argument: (1) the implied plaintiffs in this case are not “members” of NJP&A, and (2) even if they were members of NJP&A, they would lack standing to bring a suit in their own\n4\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 5 of 9\nnames. (Id. at 2-3.)\nA. NJP&A’s Constituents are “Members” for Associational Standing Purposes The Plaintiff contests NJP&A’s standing on the basis that, as a federally funded\norganization, their constituents “play absolutely no membership role in the organization.” (Def.’s Br. at 8.) In support of their position, the Plaintiff cites to the Fifth Circuit holding in Ass’n for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation Center Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994), where the Court held that a federally-funded Texas advocacy group did not satisfy the first prong of the Hunt test for associational standing on the grounds that its constituents were not members of the group. Id. at 244 (noting that “[t]he organization [bore] no relationship to traditional membership groups because most of its ‘clients’ . . . [were] unable to participate in and guide the groups efforts.”) This Court, however, finds the Fifth Circuit’s approach in this case to be excessively rigid and formalistic for such a constitutional analysis. This Court is more persuaded by the approach of the Eleventh and Ninth Circuits in finding that persons with mental illness are the functional equivalent of members of PAMII organizations like NJP&A for purposes of associational standing. See Oregon Advocacy Center, 322 F.3d at 1110 (holding mentally incapacitated persons “the functional equivalent of members [of a PAMII organization] for purposes of associational standing”), Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999) (holding PAMII organization “may sue on behalf of its constituents like a more traditional association may sue on behalf of its members”).\nThe individuals whose rights NJP&A is seeking to vindicate bear sufficient indicia of membership in NJP&A to satisfy the first prong of the Hunt test for associational standing.\n5\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 6 of 9\nNJP&A is an advocacy group on behalf of disabled individuals, including the mentally ill, within the state of New Jersey. These individuals are the direct and primary beneficiaries of NJP&A’s activities, “including the prosecution of this kind of litigation.” Hunt, 432 U.S. at 344.\nAlthough NJP&A derives its funding from the federal government, its constituents remain involved in all levels of the organization. Pursuant to federal law, the chairperson and at least 60% of the membership of NJPA’s Advisory Council, which guides the Association’s policies and procedures, is “comprised of individuals who have received or are receiving mental health services or family members of such individuals.” 42 U.S.C. § 1085(a)(6)(B). Federal law also requires similar participation of persons who are receiving mental health services or their family members on NJP&A’s Board of Directors, id. at § 1085(c)(2)(B), and these individuals currently comprise a majority of NJP&A’s Board. (Sara Mitchell Affidavit at ¶ 7.) Additionally, constituents have access to a direct grievance procedure, pursuant to federal law, to make their voice further heard within the organization. 42 U.S.C. § 1085(a)(9).\nLike members of a traditional organization, NJP&A’s constituents have the power to exert significant influence over the Association’s priorities and activities. See Stincer, 175 F.3d at 886. NJP&A’s statutorily mandated interests also give it a shared interest in the outcome of this litigation. These factors are sufficient to satisfy this Court that NJP&A’s constituents have sufficient indicia of membership to justify NJP&A’s associational standing in this case.\nB. NJP&A’s Members Have Standing to Sue in Their Own Right Having satisfied the requirement that NJP&A’s constituents are the functional equivalent\nof members, Hunt also requires that at least one of NJP&A’s constituents would have had\n6\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 7 of 9\n“standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food, 517 U.S. at 555. The Plaintiffs have presented, in their complaint, two examples of individuals they purport to represent who, according to their claims, have suffered tangible injury as a result of the Defendant’s actions. (Complaint at ¶¶ 33-41.) Additionally, they have put forth a general allegation that nearly 50% of the individuals currently in New Jersey psychiatric hospitals are on CEPP status, but remain in restrictive institutionalized care. (Complaint at ¶ 24.) “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). Accordingly, the Court is satisfied that the Plaintiff has sufficiently demonstrated, for purposes of evaluating the Defendant’s motion for dismissal, that at least some of their members have standing to sue in their own right - thereby satisfying the first requirement of Hunt and conferring associational standing upon NJP&A.\nB. The Defendant is Not Immune from Suit Under the Eleventh Amendment While the Eleventh Amendment provides general immunity to states from suits brought\nby citizens in federal court, it is well established that citizens may bring suits to enjoin state officials, acting in their official capacity, from violating the Constitution or laws of the United States. Ex parte Young, 209 U.S. 123, 155-56 (1908). In their opposition brief, Plaintiffs voluntarily withdrew their claims seeking monetary penalties against the Defendant, leaving only claims for injunctive relief. (Pl.’s Br. at 18.) On this basis, the Defendant, in their reply brief,\n7\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 8 of 9\nwithdrew their challenge, conceding that the remaining claims against the State for prospective injunctive relief1 fall squarely under the Ex parte Young doctrine, and are not barred by the Eleventh Amendment. (Def. Reply Br. at 6.)\nC. The Defendant is a Person for Purposes of 42 U.S.C. § 1983 Because the Plaintiff is Seeking Injunctive Relief Under the Ex Parte Young Doctrine. In their complaint, the Plaintiff alleges that the continued and indefinite restrictions on\ntheir constituent’s liberties constitute a violation of their Due Process rights as enforceable under 42 U.S.C. § 1983. (Complaint, Count I, ¶ 7.) While the Plaintiff is suing an individual, Mr. Davy is being sued in his official capacity as Commissioner of Human Services for the State of New Jersey. A suit, like this, against a state official, acting in their official capacity, is “no different from a suit against the State itself.” Defendants cite the Supreme Court in Will v. Michigan Dept. of State Police for their claim that a state, or a state official acting in their official capacity, is not a “person” under Section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).\nUnlike the Plaintiff in Will, however, NJP&A is seeking solely injunctive relief. As the Supreme Court in Will noted, “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official capacity actions for prospective relief are not treated as actions against the State.’” Id. at 71 (citing Kentucky v.\n1 The Plaintiff is also seeking attorney’s fees for the prevailing party as part of their claims. The Defendant, in their reply brief, has withdrawn their claim that such costs are barred by the Eleventh Amendment, but reserves their right to renew the argument in the event that the issue of awarding prevailing party costs are ever reached in this matter. (Def. Reply Br. at 6.)\n8\n\n\fCase 3:05-cv-01784-SRC-JJH Document 17 Filed 09/30/2005 Page 9 of 9\nGraham, 473 U.S.159, 167 (1985), Ex parte Young, 209 U.S. 123, 159-60). Accordingly, this Court finds that the Defendant, acting in their official capacity, is not immune from the Plaintiff’s claims for injunctive relief under Section 1983.\nIII. CONCLUSION For the reasons stated above, and for good cause shown, the Court denies Defendant’s Motion to Dismiss. An appropriate form of order will be filed herewith.\n\nDate: September 30, 2005\n\ns/Stanley R. Chesler Stanley R. Chesler, U.S.D.J.\n\n9\n\n\f", "Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 1 of 49\n\nUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY\nVICINAGE OF TRENTON\n\nDISABILITY RIGHTS NEW JERSEY, INC., a New Jersey Non-profit Corporation,:\nPlaintiff,\nv.\nJENNIFER VELEZ, in her Official Capacity as the Commissioner ofNew Jersey Department of Human Services\nDefendant.\n\nHON. FREDA L. WOLFSON, U.S.D.J. Civil Action No. 05-1784 (FLW)\nSettlement Agreement\n\nWHEREAS Disability Rights New Jersey, Inc. (\"Plaintiff') brought suit in the above captioned matter against Jennifer Velez, in her capacity as Commissioner of Human Services for the State ofNew Jersey (\"Defendant\") (collectively the \"Parties\"); and\nWHEREAS the Parties, through extended negotiations, have determined to resolve this matter; arid\nWHEREAS the Parties intend through this Settlement Agreement (Agreement) to ensure that individuals who are on conditional extension pending placement (\"CEPP\") status pursuant to N.J. Ct. R. 4:74-7(h) (2), and in the State psychiatric hospitals, specifically Ancora Psychiatric Hospital, Greystone Park Psychiatric Hospital, Senator Garrett W. Hagedorn Psychiatric Hospital, and Trenton Psychiatric Hospital (\"State Hospitals\"), will be placed in the community in an appropriate manner within a defined time period; and\nWHEREAS this Agreement resolves the claims brought by Plaintiff, including but not limited to 42 U.S.C. § 1983, the Americans with Disabilities Act (\"ADA\"), 42 U.S.C. § 12131 et\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 2 of 49\nseq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (\"Section 504\") in the abovecaptioned matter; and\nWHEREAS the Parties agree that the resolution of this case is in the best interests of the individuals served in the State Hospitals who are on CEPP status at present and those individuals who will be placed on CEPP status in the future (\"Individuals\").\nNOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: 1. Nothing in this Agreement shall be construed as an acknowledgment, admission, concession,\nor evidence of liability of either Party regarding any of these claims, including those under the ADA, Section 504, the federal or State Constitutions, or federal or State law, regulations, rules, or policies, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding. 2. Pursuant to Fed. R. Civ. P. 41(a), the Parties will file in the United States District Court for the District of New Jersey, Vicinage of Trenton, this Agreement, together with a notice to conditionally dismiss the Complaint under the conditions set forth in this Agreement. This case will remain on the Court's inactive docket during the term of this Agreement as a means of ensuring compliance of the Parties with the Agreement. 3. The Effective Date of this Agreement shall be the date it is filed with the United States District Court, Vicinage of Trenton, and, unless otherwise specified, all time periods contained in this Agreement shall commence on that date. 4. Any action, task, or provision of services Defendant agrees to undertake in this Agreement shall mean that Defendant has agreed to undertake that action, task, or provision of services in keeping with \"professional judgment\" as defined by Youngberg v. Romeo, 457 U.S. 307\nPage 2 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 3 of 49\n(1982). To the extent any provision of this Agreement relating to undertaking an action, task or delivery of services requires that any action be taken or thing be done to a level of quality or in an amount that is not otherwise specified or quantified in the Agreement, or that is described as \"reasonable\" or \"appropriate,\" such provision shall be interpreted to mean that level, quality, amount, or timeliness of care, treatment, or services that is consistent with \"professional judgment\" as enunciated in Youngberg. 5. Defendant shall substantially comply with all of the requirements of this Agreement. Substantial compliance shall mean that Defendant is complying with the material requirements of this Agreement. Isolated instances of non-compliance shall not preclude a finding of substantial compliance. In addition, a finding of non-compliance shall not be made in situations where an Individual was timely offered appropriate community placement consistent with Paragraph 8(B)(IV)(d), but the Individual's desire to wait for a specific community placement or change of mind regarding community placement causes delay in placement beyond the time frames set forth in Paragraph 8. 6. The Parties agree that a court's judgment that an Individual is on CEPP status means that the Individual has been adjudicated ready for discharge, but that there is no appropriate and available community based placement. Such judgment by a court cannot be supplanted by a contrary determination by the State's treating professionals. Nothing in this Agreement shall limit or prohibit the State or its officials or employees from seeking commitment or recommitment of any Individual consistent with New Jersey statutes, regulations, and court rules. 7. This Agreement obligates Defendant to have and implement a plan for community placement (\"Plan\") whose purpose, as further described in this Agreement, is to address how to\nPage 3 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 4 of 49\n\naccomplish the timely placement of all Individuals in the State Hospitals into the community in the most integrated settings appropriate to their needs. The Plan must comply with the requirements of Paragraph 8. The Parties agree that at the time of the filing of this Agreement, the \"Home to Recovery-CEPP Plan: Plan to Facilitate the Timely Discharges of CEPP Patients in New Jersey's State Psychiatric Hospitals,\" dated January 2008, and produced in discovery as State Document# 907 (Bates No. S54900 - S54978) (\"Home to Recovery\"), meets the requirements for the Plan as set forth in Paragraph 8 of this Agreement except that the numerical and percentage goals and time frames set forth in Paragraph 8 shall supersede those set forth in Home to Recovery. Any future Plan or modifications to Home to Recovery must also meet the requirements set forth in Paragraph 8 of this Agreement. Before making any material modifications to the Plan or to Home to Recovery, Defendant will consult with Plaintiff. If Plaintiff believes that any modification to the Plan or to Home to Recovery constitutes a breach of the Agreement, Plaintiff may institute the dispute resolution process set forth in Paragraph 18. 8. The Plan shall include the following elements: A. Creation of RIST, Supportive Housing, PACT and Specialized Housing as follows:\n\nFY2010 FY2011 FY2012 FY2013 FY2014\n\nTotal Placements to be Created\n230 215 145 225 250 1065\n\nPlacements to be Created for Individuals on CEPP\n180 145 95 125 150 695\n\nPlacements to be Created for the Prevention of Institutionalization\n50 70 50 100 100 370\n\nB. Targets for numbers or percentages of Individuals to be placed in the community are as follows:\n\nPage 4 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 5 of 49\nI. For the 297 Individuals who were placed on CEPP before July 1, 2008:\na. In FY2010, placement of 110 ofthe 297 Individuals; b. In FY2011, placement of 95 of the 297 Individuals; c. In FY2012, placement of 60 ofthe297 Individuals; d. In FY2013, placement of32 ofthe 297 Individuals; e. In FY2014, placement of all of the 297 remaining Individuals, if any.\nII. Placement of all Individuals into community placements who were placed on CEPP\nafter 7/1/2008 as follows:\na. For Individuals who do not have \"Legal Status\" as defined, infra, (Non-legal\nStatus Individuals), as of the end ofFY2014:\n1. 95% of Non-legal Status Individuals will be placed within 4 months or less of being placed on CEPP; and\n11. The remaining 5% of Non-legal Status Individuals will be placed within 9 months or less of being placed on CEPP.\nb. The targets for Non-legal Status Individuals will be phased in over 5 years as\nfollows:\n1. By the end of FY2010: placement of 62% of Non-legal Status Individuals within 6 months or less of being placed on CEPP;\n11. By the end of FY2011: placement of 68% of Non-legal Status Individuals within 6 months or less of being placed on CEPP;\niii. By the end of FY2012: placement of 77% of Non-legal Status Individuals within 4 months or less of being placed on CEPP;\niv. By the end of FY2013: placement of 85% of Non-legal Status Individuals within 4 months or less of being placed on CEPP;\nv. By the end of FY2014: placement of 95% within 4 months or less of being placed on CEPP and placement of the remaining 5% within 9 months of being placed on CEPP.\nc. For Individuals who have \"Legal Status\" (Legal Status Individuals), as of the end\nofFY2014:\n1. 95% of Legal Status Individuals will be placed within 6 months or less of being placed on CEPP; and\nPage 5 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 6 of 49\n11. The remaining 5% of Legal Status Individuals will be placed within 12 months or less ofbeing placed on CEPP.\n. d. The targets for Legal Status Individuals will be phased in over the five years as\nfollows:\n1. By the end of FY2010: placement of 62% of Legal Status Individuals within 6 months or less of being placed on CEPP;\n11. By the end of FY2011: placement of 68% of Legal Status Individuals within 6 months or less of being placed on CEPP;\niii. By the end of FY2012: placement of 77% of Legal Status Individuals within 6 months or less of being placed on CEPP;\niv. By the end ofFY2013: placement of 85% of Legal Status Individuals within 6 months or less of being placed on CEPP;\nv. By the end ofFY2014: placement of95% ofLegal Status Individuals within 6 month or less, and placement of the remaining 5% within 12 months or less of being placed on CEPP.\nIII. While Plaintiff believes that Individuals can be placed in a shorter period of time than\nthe time frames set forth, supra, Defendant believes that these time frames are\nessential for placing some Individuals, and the Parties have agreed to them for\npurposes of settlement only.\nIV. For the purposes of placements under this Agreement:\na. The following terms are defined as follows:\n1. Legal Status shall mean Individuals who:\n(1) are required to register under Megan's Law, N.J.S.A. 2C:7-1, et seq.; or\n(2) have an unresolved immigration status; or\n(3) have a history of offenses or dispositions by a court, of one of the\nfollowing:\n(a) N.J.S.A. 2C:11-3 Murder; (b) N.J.S.A. 2C:11-4 Manslaughter; (c) N.J.S.A. 2C:14-2 Aggravated Sexual Assault, Sexual Assault; (d) N.J.S.A. 2C:14-3 Criminal Sexual Contact;\nPage 6 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 7 of 49\n(e) N.J.S.A. 2C:15-l(a) Robbery 1st Degree; (f) N.J.S.A. 2C:12-l(b) 1,2,3,4,7 Aggravated Assault; (g) N.J.S.A. 2C:17-1 or N.J.S.A. 2C:17-2 Aggravated Arson, Arson; (h) N.J.S.A. 2C:13-1 Kidnapping; or (i) A crime in another jurisdiction that is similar to one of the listed\ncnmes. n. History of one of the listed crimes in Paragraph 8(IV)(a)(i)(3) shall mean that\nthe Individual was: (1) First committed by a court pursuant to N.J.S.A. 2C:4-4 (incompetent to stand trial) of one of the crimes; (2) First committed by a court pursuant to N.J.S.A. 2C:4-8 (not guilty by reason of insanity) of one of the crimes; (3) committed in lieu of being released following completion of a sentence to prison of one of the crimes; (4) adjudicated delinquent for one of the crimes or the equivalent in the juvenile justice code; or (5) convicted of one of the crimes.\niii. Key Principles of Supportive Housing shall mean permanence, affordability, choice, flexible supports, and community integration, and shall include the \"Housing First\" philosophy and approach described in Home to Recovery at page 29 In this approach, rental housing is provided upfront and is not contingent upon participation in treatment, rehabilitation or other services, and is not time-limited. Needed services, such as mental health or substance abuse treatment, rehabilitation, peer support, skills and resource development, are provided as wraparound services and both supplement and promote the consumer's successful housing retention. Permanence is\nPage 7 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 8 of 49\nreflected in lease-based or similar occupancy agreement type arrangements. Affordability requires tenants to pay in rent a specified portion of their income. Support services are accessible, flexible and promote housing stability. Housing promotes community integration and may be single scattered sites, clustered or shared settings. IV. Supportive Housing shall mean housing that incorporates the Key Principles of Supportive Housing and follows the traditional supportive housing model of access to affordable, lease-based housing linked with flexible support services. Housing opportunities are developed accessing various sources of funding and attempt to meet consumer preference. Housing is lease-based (or similar occupancy agreement) and consumers pay a specified portion of their income towards rent. Support services are provided and may include assistance with moving and settling into a new home and neighborhood; rehabilitation services such as skills development in areas of daily living, socialization, financial literacy; assistance with medication and illness selfmanagement; and peer support. Providers are encouraged to design programs that allow for flexible service delivery to meet the varying needs of consumers as they change over time. Housing settings can include individual units or shared living. v. RIST shall mean an enriched supportive housing model that incorporates the Key Principles of Supportive Housing and allows for greater staff-toconsumer ratios for increased intensity and frequency of support services. This approach to intensive residential support is flexible in design and mobile.\nPage 8 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 9 of 49\nConsumers are full partners in planning their own care and support service needs, who identify and direct the types of activities which would most help them maximize opportunities for successful community living. Staff support is provided through a flexible schedule which may be adjusted as consumer needs or interests change. RIST encourages consumer use of other community mental health treatment, employment and rehabilitation services, as needed and appropriate. v1. PACT, as defined more fully in N.J.A.C. 10:371-1.1, shall mean a service model that provides comprehensive, integrated rehabilitation, treatment and support services to persons with serious and persistent mental illness who have had repeated hospitalizations and who are at serious risk for psychiatric hospitalization. PACT, provided in vivo by a multi-disciplinary service delivery team, is the most intensive program element in the continuum of ambulatory community mental health care. Services to a person may vary in type and intensity. Treatment has no predetermined end point. vii. Integrated Case Management Services (ICMS) shall mean a collaborative outreach program designed to engage, support and integrate people with serious mental illness into the community and facilitate their use of available resources and supports in order to maximize their independence. vm. Specialized Housing shall mean housing and specialized services for Individuals with co-existing medical conditions requiring in-home support, challenging behaviors that respond to behavioral shaping or tailoring services, or other such additional conditions or needs requiring staff specifically skilled\nPage 9 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 10 of 49\nto address such needs. Settings are typically shared housing or clustered settings and often involve new housing development. Specialized Housing shall incorporate the Key Principles of Supportive Housing to the extent practicable. b. The length of time an Individual is on CEPP status shall be calculated from the date of the most recent court order that placed the Individual on CEPP status. In other words, if an Individual is placed on CEPP status, remains on CEPP status for a period oftime, and is then recommitted pursuant to N.J. Ct. R. 4:74-7(f)(l), either while on CEPP status or following a discharge to the community, the prior time on CEPP status shall not be included in any future calculation of time on CEPP status. A \"placement review hearing\" pursuant to N.J. Ct. R. 4:74-7(f)(2), in which an Individual's present CEPP status is continued, does not constitute the \"most recent court order that placed the Individual on CEPP status.\" c. The community placements provided to Individuals pursuant to the Plan shall be either in (i) community service capacity that shall be developed, consistent with the Key Principles of Supportive Housing, or (ii) existing community service capacity placements that are either under contract to the Department of Human Services or generally available to Individuals. All such placements in existing community service capacity under contract to the Department of Hurrian Services shall. incorporate, to the extent practicable, the Key Principles of Supportive Housing. For all placements in generally available community service capacity Defendant shall offer appropriate community mental health services to support the living arrangement, usually PACT or ICMS. Nothing in the Agreement shall\nPage 10 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 11 of 49\nprevent an Individual from being discharged, when appropriate, to his or her own home, the home of a relative or a friend, or a living situation arranged and/or chosen by the Individual or his or her family or friends. In those situations, Defendant shall offer appropriate community mental health services to support the living arrangement. d. The community placement(s) provided to an Individual shall be the most integrated placement appropriate to the Individual's needs, taking into account the Individual's preferences, the location of the Individual's family and other natural supports, the availability of appropriate services, and the reasonableness of the placement in light of the cost of similar placements and other relevant factors consistent with the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). Defendant shall ensure that whenever possible, Individuals are offered a meaningful choice of community placements. V. Individuals Who Refuse Any Community Placement: a. In the event Defendant offers an Individual a placement in accordance with this Agreement and the Individual clearly and knowingly refuses the placement because the Individual does not wish to be placed in any community setting, Defendant shall be considered to have complied with the time frames related to this Individual and any statistics regarding Paragraph 8 targets shall incorporate this compliance. b. If the Individual clearly and knowingly refuses to be placed in the community, the reasons underlying the Individual's preference shall be addressed by the Individual's treatment team and other appropriate employees of Defendant.\nPage 11 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 12 of 49\n\"Clearly and knowingly\" refusing to be placed in the community means that the Individual: i. has had an opportunity to express his or her preferences; n. has been informed of community alternatives and the recommended\ncommunity placement in a manner that reflects the Individual's ability to understand and communicate information; and iii. is provided the opportunity to visit and observe community settings of the type recommended, unless the Individual's treatment team determines that such a visit would be clinically inappropriate. c. For Individuals who refuse to be discharged to any community placement, Defendant shall ensure that the Individual's State Hospital treatment team or other appropriate staff of Defendant continue to discuss discharge planning with and recommend appropriate community placement options with specific types of providers to the Individual at each of his or her treatment team meetings and at other appropriate times and continue to assess whether the Individual continues to clearly and knowingly refuse to be placed in the community. In addition, the Individual's treatment team shall continue to offer the Individual additional opportunities to visit and observe community settings of the type recommended, unless the Individual's treatment determines that such a visit would be clinically inappropriate. d. An Individual who previously clearly and knowingly refused to be placed in any community setting may inform a member of the treatment team or any other appropriate staff person of Defendant that he or she now wishes to be placed in\nPage 12 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 13 of 49\nthe community. When an Individual does so, the date that the Individual notifies a member ofthe treatment team or other appropriate State Hospital staff that he or she wishes to be placed in the community shall be, for pur_Poses of the Agreement, the equivalent of the date on which the Individual was placed on CEPP. C. A description of the steps Defendant will take to meet the goals and objectives set forth in Paragraph 8 and in the Plan and Home to Recovery. D. Provisions for appropriate education as to community placement, community service options, community capacity, and community placement process for appropriate DHS, DMHS, and State Hospital staff, Individuals, their guardians (when applicable), family members of Individuals (when appropriate), and/or other appropriate groups identified; E. Provisions for continued implementation of appropriate assessment tools and procedures t<? determine what services are needed to support Individuals in the community; and F. Provision(s) for thorough periodic review of all potential funding sources for the Plan, and effective action to access those sources, including action to maximize appropriate Medicaid funds and action to reallocate DMHS funds, taking into account savings from State Hospital census reduction and other appropriate factors. 9. Defendant shall comply with the requirements set forth in Paragraph 8 as well as the principles set forth in the Plan itself and in Home to Recovery. Defendant's obligation to comply with the numerical and percentage goals and time frames set forth in Paragraph 8 is subject to the limitations in Paragraphs 14, 15, 16, 17, and 18. 10. The Parties have jointly agreed that Defendant shall retain Martha Knisley, Ph.D., as a Consultant for the purposes of making recommendations for further development and implementation of the Plan, including the development and financing of additional units of\nPage 13 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 14 of 49\nsupportive housing. The Consultant shall be involved in planning for the education, training, and mentoring of the professionals (psychiatrists, psychologists, social workers, and others) at the State Hospitals and at the DMHS who will be expected to bring the practices of their professionals and the DMHS into alignment with best practices and compliance with the goals, time frames, and other requirements in this Agreement. A. The Consultant shall have ready access to the reports provided pursuant to Paragraph 13,\nall documents underlying those reports, all documents related to implementation of the Plan and Home to Recovery, and any other information the Consultant considers necessary to perform her functions under the Agreement. The Consultant shall also have ready access to Individuals, with their consent, and to Defendant's staff and facilities. The Consultant shall execute a confidentiality agreement with the same provisions as the confidentiality agreement required by Paragraph 13(C). B. DMHS, Plaintiff and the Consultant shall have a quarterly conference call to discuss the status of the Consultant's work with DMHS. This quarterly conference call may be waived by the Parties if Plaintiff, DMHS, and the Consultant all agree it is not necessary. C. The Consultant shall keep Plaintiff and its representatives apprised of the status of her work. The Consultant may speak separately with either Party or its representatives. The Consultant shall have the discretion to determine whether information she learns or discusses in a separate discussion with one Party shall be kept confidential from the other Party. In exercising such discretion, the Consultant shall not compromise her obligation to keep Plaintiff and its representatives apprised of the status of her work.\nPage 14 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 15 of 49\nD. The Consultant shall be retained for three years from the date she is retained unless the Parties agree to discontinue the use of the Consultant before then or to extend the use of the Consultant thereafter.\nE. Defendant shall bear all costs of the Consultant; however, the annual costs for the Consultant shall not exceed a total of $55,000 in the first year, $45,000 in the second year and $35,000 in the third year.\nF. In the event it becomes necessary to replace Dr. Knisley, the identity of the new Consultant shall be jointly agreed to by both Parties as follows: I. Each Party shall submit the name, curriculum vitae, and contact information of at least one proposed Consultant to the other within 15 days of receiving notice of the need for a new Consultant. II. The Parties shall have 30 days from the date of receiving notice of the need for a new Consultant to determine the identity of the new Consultant based on those proposed or if that has not occurred by the thirtieth day, each Party shall submit the name, curriculum vitae, and contact information of at least one other proposed Consultant. III. If the Parties have not agreed on the identity of the Consultant after 30 days from the date of receiving notice of the need for a new Consultant, the Parties agree to mediate the matter for 15 days. The Parties, by mutual agreement in writing, may extend the 15 day mediation time frame. IV. If the Parties have not agreed on the identity of the Consultant after 45 days from the date of receiving notice of the need for a new Consultant, the Parties agree to have the Court determine the identity of the Consultant.\nPage 15 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 16 of 49\nV. The three-year term of the Consultant shall be extended by the amount of time the Consultant position remained vacant during the search for a replacement.\n11. Defendant shall create an ongoing Olmstead workgroup for the period of the Plan's implementation. This workgroup shall provide ongoing policy and practice advice to the State Hospitals and the DMHS as the Plan is implemented. At the workgroup meetings, data on implementation and difficult implementation issues will be discussed, along with specific cases, as necessary to continue implementation. Key DMHS and State Hospital staff, a representative of DRNJ, or its successor, and the Consultant shall be among the permanent members of the workgroup. Other participants may be invited by Defendant to meetings depending on the topic at hand.\n12. Defendant shall develop and/or enhance and implement assessment tools, data systems and tools, and other processes, as necessary, to implement the Plan.\n13. Defendant shall provide reports to Plaintiff and the Consultant as follows: A. Three periodic reports, to be delivered on December 1, March 1, and June 1 of each year of the Agreement. The December 1 report shall cover July, August, and September. The March 1 report shall cover October, November and December. The June 1 report shall cover January, February and March. Each report shall contain the following information: I. For each resident on CEPP status during the reporting period: Name, client ID number, gender, name of State Hospital and unit, date of birth, county of residence, date of most recent admission to the facility, date placed on CEPP status, and if the resident has been discharged during the reporting period, date of discharge, and type of placement to which the person was discharged.\nPage 16 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 17 of 49\nII. The total number and percentage of Individuals who have been on CEPP status at each State Hospital and across all State Hospitals for less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4 months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Documents 1044 and 1045 produced in discovery will suffice to provide the information required by this paragraph.\nIII. The average length of time that CEPP residents have been on CEPP status at each State Hospital, and the average length of time that CEPP residents have been on CEPP status across all State Hospitals. Updates of the information (in the same format) provided in State Document 1046 produced in discovery will suffice to provide the information required by this paragraph.\nIV. The number of Individuals who have been discharged from each State Hospital during the reporting period: a. broken down by type of placement to which they were discharged; and b. broken down by the number discharged after total length of stay in the State Hospital of less than 3 months, between 3 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years from date of admission to the State Hospital.\nV. During the reporting period, complete information tracking rates of community placement of Individuals, broken down by percentage discharged in less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4\nPage 17 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 18 of 49\nmonths, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Document 1045 produced in discovery will suffice to provide the information required by this paragraph. VI. During the reporting period, complete information tracking the extent to which Defendant is meeting the numerical and percentage goals and time frames for community placement set forth in the Plan and this Agreement. Such information shall include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals who have refused a placement pursuant to Paragraph 8(B)(V), the number of such Individuals, the reasons for the refusals, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such refusals. Such information shall also include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals whose preference or change of mind regarding community placement have caused delays in placement pursuant to Paragraph 5, the number of such Individuals, the reasons for such preferences or changes of mind, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such delays in placement. VII. For each State Hospital, the gross patient census, number of admissions, and the number of discharges made each month in the reporting period.\nPage 18 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 19 of 49\nB. An Annual Report by October 1 of each year, beginning on October 1, 2010, that covers the periodic information for April, May and June, as well as the entire State Fiscal Year, that contains the following information: I. For each resident on CEPP status during the reporting year: Name, client ID number, gender, name of State Hospital and unit, date of birth, county of residence, date of most recent admission to the facility, date placed on CEPP status, and if the resident has been discharged during the reporting period, date of discharge, and type of placement to which the person was discharged. II. During the reporting year, the total number and percentage of Individuals who have been on CEPP status at each State Hospital and across all State Hospitals for less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4 months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Documents 1044 and 1045 produced in discovery will suffice to provide the information required by this paragraph. III. During the reporting year, the average length of time that CEPP residents have been on CEPP status at each State Hospital, and the average length of time that CEPP residents had been on CEPP status across all State Hospitals. Updates of the information (in the same format) provided in State Document 1046 produced in discovery will suffice to provide the information required by this paragraph. IV. During the reporting year, the number of Individuals who have been discharged from each State Hospital:\nPage 19 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 20 of 49\na. broken down by type of placement to which they were discharged; and b. broken down by the number discharged after total length of stay in the State\nHospital of less than 3 months, between 3 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years from date of admission to the State Hospital. V. During the reporting year, complete information tracking rates of community placement of Individuals, broken down by percentage discharged in less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4 months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Document 1045 produced in discovery will suffice to provide the information required by this paragraph. VI. During the reporting year, complete information tracking the extent to which Defendant is meeting the numerical and percentage goals and time frames for community placement set forth in the Plan and this Agreement. Such information shall include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals who have refused a placement pursuant to Paragraph 8(B)(V), the number of such Individuals, the reasons for the refusals, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such refusals. Such information shall also include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals whose preference or change of mind regarding community\nPage 20 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 21 of 49\nplacement have caused delays in placement pursuant to Paragraph 5, the number of such Individuals, the reasons for such preferences or changes of mind, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such delays in placement. VII. For each State Hospital, the gross patient census, number of admissions, and the number of discharges made each month during the reporting year. VIII. Average annual cost per placement type and cost to the State per Individual based upon the discharge plan during the reporting year and for the time period from the Effective Date of the Agreement to the date of the report, broken down by type of placement and by the following expense categories: (1) all program costs, including costs of multiple programs if the Individual is engaged in more than one program upon discharge; and (b) rental assistance subsidy. Defendant maintains that DMHS does not collect consumer-specific data on other ancillary funds that help support the cost of community care (e.g., medication, primary healthcare, room and board not otherwise supported by a rental assistance subsidy). Average cost per placement for the program cost and rental assistance subsidy will be the average for all consumers using the program, regardless of whether they were on CEPP prior to being placed. IX. Total annual expenditures made by DMHS during the reporting year: a. for placements made pursuant to the Plan during the time period covered by the\nreport and to date, broken down by type of placement; b. of State Legislature's \"Olmstead'' appropriation to implement Plan during the\ntime period covered by the report and during the time period from the Effective Date of the Agreement to the date of the report;\nPage 21 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 22 of 49\nX. Sources and amounts of federal and State funding, in addition to the State Legislature's \"Olmstead'' appropriation, expended for community placements pursuant to the Plan during the time period covered by the report and during the time period from the Effective Date of the Agreement to the date of the report. The parties agree that DMHS shall report aggregate Medicaid revenue per program and shall not report consumer specific information about Medicaid reimbursed funding. The parties agree that DMHS shall not report data on other ancillary funds that help support the cost of community care (e.g., medications, primary health care, room and board not otherwise supplied by a rental assistance subsidy);\nXI. Complete information reflecting the status of efforts to secure additional Medicaid and other sources of funding to implement the Plan, including efforts to reallocate DMHS funds;\nXII. The sources and amount of and plan for the expenditure of the annual available funds to be used to implement the Plan in the upcoming year;\nXIII. Complete information reflecting the effect of the Plan on the State Hospitals' census, State Hospital unit consolidations and closures, the amount of any savings realized therefrom, the amount of any such savings that have been used to implement the Plan in the reporting year, and the amount of any such savings that will be used to implement the Plan in the upcoming year.\nXIV. Documents providing updates of the information (in the same format) provided in State Documents 1042,.\nXV. Documents providing updates of the information provided in State Documents 1047.\nPage 22 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 23 of 49\nXVI. Documents providing updates of the information provided in State Documents 1048.\nC. The information in all reports required by Paragraphs 13(A) and (B) shall be treated as confidential to the extent that it comes within the terms of the confidentiality agreement attached to this Agreement as Exhibit A; however, the Parties shall not treat information as confidential that does not fall within the scope of the confidentiality order in this matter.\nD. In the event that the Defendant determines to change the format of reports referred to in Paragraph 13(A) and (B), the new format shall contain the same categories of information as the referenced State Documents and Defendant shall notify Plaintiff prior to making the change(s).\nE. The Parties shall meet within two weeks after submission of the second quarter report and the annual report of each year of the Agreement, or sooner if requested, to discuss any issues arising out of the report.\n14. Funding ofthe Plan A. Defendant asserts that its ability to meet the numerical and percentage goals and time frames set forth in Paragraph 8 is subject to appropriation of funding by the New Jersey Legislature. For State Fiscal Year 2010, the Governor proposed a budget that includes $5 million for implementation of Defendant's numerical and percentage goals and time frames for FY2010, as set forth in Paragraph 8. Defendant believes that amount is sufficient to meet those numerical and percentage goals and time frames. In each subsequent year of this Agreement, Defendant agrees to request and seek as one of the Department's top priorities that the Governor submit, as part of the annual budget\nPage 23 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 24 of 49\nrecommendations, an amount sufficient to continue meeting the numerical and percentage goals and time frames set forth in Paragraph 8. Defendant asserts, however, that while Defendant will seek as one of the Department's top priorities an amount sufficient to continue meeting the numerical and percentage goals and timeframes set forth in Paragraph 8, the Governor, upon receiving various agencies' budget requests and top priorities, has the sole discretion to determine which of those agencies' budget priorities will be included in his budget for a given fiscal year and if included, at what level of funding. Furthermore, to the extent that the Governor includes funding at any level for this Agreement in his future budgets, Defendant asserts that the Legislature is not bound by the Governor's proposal in determining the level of funding. Therefore, Defendant asserts that it cannot guarantee the amount of funding that will be appropriated in subsequent fiscal years in order to implement the numerical and percentage goals and time frames set forth in Paragraph 8. The Parties agree that to the extent that (i) the Governor does not submit a budget with sufficient funds to enable Defendant to meet the numerical and percentage goals and time frames set forth in Paragraph 8, (ii) the Legislature does not appropriate sufficient funds to enable Defendant to meet the numerical and percentage goals and time frames set forth in Paragraph 8, or (iii) the Governor requires Defendant to reduce spending during the fiscal year such that Defendant may not have sufficient funds to meet the percentage goals and time frames set forth in Paragraph 8, Plaintiff and Defendant shall institute the applicable process set forth in Paragraphs 15 and 16, and Plaintiff shall be limited to the remedies set forth in Paragraph 16(C).\nPage 24 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 25 of 49\nB. Defendant has closed four units at the State Hospitals since April 1, 2005, due to reductions in the census of the State Hospitals, specifically, one ofthe Mountain Meadow Cottages at Greystone Park Psychiatric Hospital and three units at Ancora Psychiatric Hospital, and intends to continue to make adjustments to State Hospital operations to realize savings in operations. I. Annually, as part of each annual report submitted pursuant to Paragraph 13(B), Defendant will provide to Plaintiff a three-year projection of anticipated census of the State Hospitals. In developing the projection, Defendant will consider whether and to what extent State Hospital units can be closed and savings can be realized as a result of the discharges of people on CEPP status pursuant to this Agreement. Defendant shall propose as part of DRS's annual appropriations request, referred to in and subject to Paragraph 14(A), that the savings that can be realized from census reduction in the upcoming year be appropriated for the purpose of developing or supporting the community mental health system. II. Consistent with N.J.S.A. 30:4-177.54 et seq. and N.J.A.C. 10:10-1 et seq., Defendant shall take such actions as she is authorized to take to ensure that as a mental health facility closes or has a greater than 50 percent reduction in census, all funds are redirected to services in the community, thereby increasing the State's financial support of community mental health services for its citizens. Defendant will provide Plaintiff a copy of the annual report prepared pursuant to N.J.A.C. 10:10-2.1(e), as soon as it is ready. III. The Parties agree that (1) the annual census projections referred to in Paragraph 14(B) are not a commitment by Defendant to achieve the projected census reduction; and\nPage 25 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 26 of 49\n(2) although Defendant will take significant steps to divert unnecessary admissions, Defendant does not have absolute control over admissions to, and hence demand for State Hospital beds, and as such, the census may not decrease every year. 15. In the event that either (i) Defendant concludes that an annual appropriation is insufficient to meet the numerical and percentage goals and time frames set forth in Paragraph 8, or (ii) Defendant is ordered to reduce spending such that funds may not be available to meet the numerical and percentage goals and time frames set forth in Paragraph 8, the following shall occur: A. Defendant shall notify Plaintiff in writing within the first three months of the fiscal year or within 20 business days of being ordered to reduce spending. In that writing, Defendant shall identify the amount of funds available, describe in detail the plan for expenditure of the available funds to continue implementation of the Plan at a reasonable pace, and specify the resulting impact on the numerical and percentage goals and time frames set forth in Paragraph 8. Defendant shall include with that notice all underlying documents it is relying on to support its assertions. If Defendant does not provide the requisite notice set forth in this Paragraph, then Defendant may not assert insufficiency of funding by the Governor or Legislature as a defense to any allegation of breach during the particular fiscal year at issue. B. The Parties shall meet within 20 business days of this notification to discuss the amount of funds available and the plan for expenditure of these funds to continue implementation of the Plan at a reasonable pace and the resulting effect on the numerical and percentage goals and time frames set forth in Paragraph 8 At that meeting, Defendant shall provide all additional underlying documents it is relying on to support its assertions. Only if both\nPage 26 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 27 of 49\nParties agree that such a meeting will not resolve the matter, may they agree in writing to waive this meeting and proceed accordingly. C. If, at the meeting, the Parties do not come to an agreement as to how Defendant will proceed to implement the Plan at a reasonable pace, Plaintiff shall have 30 days to institute the Dispute Resolution Process set forth in Paragraph 18 and remedies set forth in Paragraph 16(C). The Parties may agree in writing to extend the time frame for instituting the Dispute Resolution Process if they believe additional time is needed to confer in an attempt to come to an agreement. D. If Plaintiff does not institute the Dispute Resolution Process set forth in Paragraph 18 and Remedies set forth in Paragraph 16(C) within 30 days of the meeting held pursuant to Paragraph 15(B) and (C) or such other time as the Parties have agreed to pursuant to Paragraph 15(C), or if the Parties have agreed to waive the meeting, then within 30 days of receiving Defendant's notice pursuant to Paragraph 15(A), Plaintiff will have agreed that Defendant's revised plan for expenditure of the available State funds contained in the notice sent pursuant to Paragraph 15(A) and Defendant's execution of that plan shall constitute compliance with this Agreement for that fiscal year and that the numerical and percentage goals and time frames set forth in Paragraph 8, shall be adjusted accordingly, which may have the effect of requiring the Parties to agree to extend this Agreement in accordance with Paragraph 25. 16. The remedies in this Paragraph shall be the only remedies if (i) Plaintiff asserts that there are not sufficient State funds to meet the annual numerical and percentage goals and time frames for community placement; (ii) Plaintiff asserts that Defendant has failed to meet the annual numerical and percentage goals and time frames for community placement and Defendant\nPage 27 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 28 of 49\nasserts that it does not have sufficient funds and Defendant has complied with Paragraphs 15 (A) and (B); or (iii) Defendant has asserted that there are not sufficient funds to meet the annual numerical and percentage goals and time frames for community placement and Defendant has complied with Paragraphs 15 (A) and (B). A. The Party invoking the terms of Paragraph 16 shall do so by sending a written notice to\nthe other Party stating the factual basis for doing so, information supporting that assertion and whether the assertion arises under Paragraph 16(i), (ii) or (iii). B. If Plaintiff has invoked the terms of Paragraph 16(i) and Defendant has not had the opportunity to invoke the process set forth in Paragraph 15(A), Defendant shall do so within 20 days. The Parties shall follow the process set forth in Paragraph 15 (A) to (D). C. If the matter is not resolved as a result of the process in Paragraph 15 (A) to (D), then this entire Agreement shall be void and Plaintiff may either: I. reinstitute this lawsuit at any time within 45 days after the dispute resolution process\nhas been exhausted. Plaintiff may only invoke the remedy in Paragraph 16(C)(I) during State Fiscal Years 2010 and 2011; or II. file any other litigation. If Plaintiff exercises its right to void this Agreement and files other litigation, Defendant shall not object to the filing of such other litigation pursuant to L.Civ.R. 40.1(c) (D.N.J.). In any such other litigation, discovery produced in the present action may be used and shall be admissible at trial to the same extent as it would have been used or admissible in the present action. D. Nothing in this Agreement shall be construed to limit any of Defendant's defenses, and specifically, Defendant may raise insufficient appropriations as a defense to the reinstituted or other litigation filed by Plaintiffs.\nPage 28 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 29 of 49\n17. Remedies for Breach A. In the event either Party asserts that the other has breached any provision of this Agreement, the non-breaching Party may invoke the Dispute Resolution Process set forth in Paragraph 18. It shall not be considered a breach, however, and the process and remedies in Paragraphs 15 and 16 shall be the only available process and remedies in the situations set forth in Paragraph 16 (i), (ii), and (iii). If the Dispute Resolution Process set forth in Paragraph 18 does not resolve the dispute and after providing fourteen (14) days written notice to opposing counsel, the party asserting breach shall file, within 45 days of the written notice of intent to file the motion, a motion to enforce the Agreement, before the United States District Court for the District of New Jersey, which shall retain jurisdiction in order to resolve any such disputes. The motion shall be supported by a certification that the Dispute Resolution Process set forth in Paragraph 18 did not resolve the dispute under this Agreement. B. As part of a motion to enforce, the movant may seek an order extending the Agreement due to respondent's failure to substantially comply with the Agreement. C. Nothing in this Agreement shall be construed to limit the Defendant's defenses and specifically, Defendant may raise insufficient appropriations as a defense, in any motion to enforce the agreement or action for breach.\n18. The following shall be the Dispute Resolution Process: A. Either party may invoke the Dispute Resolution Process in accordance with the terms of this Agreement by sending a written notice to the other party stating the factual basis of the dispute, citing the portion of this Agreement that authorizes the party to invoke the Dispute Resolution Process, and including information supporting the assertion. The\nPage 29 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 30 of 49\nother party shall make a written response that includes information supporting its assertions within 10 business days of receipt of the invoking party's notice and supporting information. B. From the date of receipt of the written response and supporting information, the Parties shall negotiate in good faith for 30 business days in an attempt to resolve the dispute unless the time is extended by written agreement of the Parties. C. If the Parties do not resolve the dispute through negotiations within 30 business days, the Parties shall agree to mediate the matter for 30 days on terms to be agreed upon and placed in writing by the Parties. The Parties, by mutual agreement in writing, may extend the 30-day mediation time frame. D. Each Party has proposed the name of a candidate to serve as the Mediator. The parties shall have 30 days from the effective date of this agreement to respond to the other Party's proposal. Thereafter, the parties shall have 30 days to reach an agreement as to the identity of the Mediator. E. The Mediator shall execute a confidentiality agreement with the same provisions as required in the confidentiality agreement in Paragraph 13(C): F. In the event that during the term of the Agreement, Mediator agreed upon by the parties pursuant to Paragraph 18(D) can no longer serve as the Mediator, the Parties shall use the same process set forth in Paragraph 1O(F) for replacement of the consultant, to replace the Mediator. G. Defendant shall pay all costs of the mediation. 19. The information in all reports required by Paragraphs 14, 15, 16, 17 and 18 shall be treated as confidential to the extent that it comes within the terms of the confidentiality agreement\nPage 30 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 31 of 49\n\nexecuted by the parties and attached as Exhibit A; however, the Parties shall not treat\n\ninformation as confidential that does not fall within the scope of the confidentiality\n\nagreement in this matter.\n\n20. The Parties agree that Defendant shall pay Plaintiff $850,000.00 in full satisfaction of all\n\nattorneys' fees and costs that Plaintiff has incurred in this litigation.\n\n21. All notices and reports to be sent pursuant to this Agreement shall be sent by U.S. Mail,\n\nreturn receipt requested or by hand delivery with a signed confirmation, to:\n\nFor Plaintiff:\n\nFor Defendant:\n\nExecutive Director Disability Rights New Jersey, or its successor 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608\n\nCommissioner New Jersey Department ofHuman Services PO Box 700 Trenton, New Jersey 08625-0700\n\nDirector of Litigation Disability Rights New Jersey, or its successor 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608\n\nAssistant Commissioner New Jersey Division of Mental Health Services P.O. Box 727 Trenton, New Jersey 08625-0727\n\n22. Defendant at all times shall remain bound to comply with applicable New Jersey and federal\n\nlaw.\n\n23. This Agreement is enforceable only by the Parties and is binding upon the Parties, by and\n\nthrough their officials, agents, employees, and successors. The Parties do not intend that this\n\nAgreement shall create a private right of action in any civil, criminal or administrative action\n\nin any person. Nothing in this Agreement is intended to divest any person(s) of any other\n\nprivate right of action they may possess pursuant to State or federal law. No other person or\n\nentity is intended to be a third-party beneficiary of the provisions of this Agreement for\n\npurposes of any civil, criminal, or administrative action, and accordingly, no person or entity\n\nPage 31 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 32 of 49\nother than the Parties may assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action. 24. This Agreement may not be altered, amended, or modified except by writing duly executed by all of the undersigned Parties or their successors in interest. 25. The Agreement shall automatically terminate sixty days after Plaintiffs receipt of Defendant's final Annual Report, due October 1, 2014, pursuant to Paragraph 13(B), without the need for any action on behalf of any party, unless (i) the Parties have agreed in writing to extend the Agreement beyond that date; or (ii) either Party has invoked the Dispute Resolution Process before that date and the dispute at issue has not yet been resolved; or (iii) the Court has ordered an extension of the Agreement pursuant to Paragraph 17(A). If none of these three exceptions exist, the Parties agree that no court or other tribunal shall have the power to extend the Agreement past the automatic termination date. 26. This Agreement is enforceable only by the Parties and is binding upon the Parties, by and through their officials, agents, employees, and successors. 27. This Agreement supersedes any previous agreements, oral or written, between the Parties and shall constitute the entire, integrated Agreement of the Parties. No prior contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. 28. This is a mutually binding Agreement. 29. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.\nPage 32 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 33 of 49\nBy their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement For Plaintiff:\nPage 33 of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 34 of 49\nFor Defendant:\n\n,,,\n\nJuly 28, 2009\n\nDate\n\nPage34of34\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 35 of 49\n\nANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for Jennifer Velez, Commissioner\nof the Department of Human Services\nBy: Beth Leigh Mitchell Deputy Attorney General (609) 599-6869\nGerard Hughes Deputy Attorney General (609)777-4854\nLaurie M. Tompkins Deputy Attorney General (609) 292-6120\nUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY\nVICINAGE OF TRENTON\n\nDISABILITY RIGHTS NEW JERSEY, INC. A New Jersey Nonprofit corporation\nPlaintiff,\nv.\nJENNIFER VELEZ, In her Official Capacity as Commissioner of Human Services for the State of New Jersey,\nDefendant.\n\nHON. FREDA WOLFSON, U.S.D.J Civil Action No. 05-1784 (FLW)\nCONFIDENTIALITY AGREEMENT\n\nWHEREAS, Disability Rights New Jersey, Inc. (Plaintiff) brought suit in the above captioned matter against Jennifer Velez,\n\nEXHIBIT A\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 36 of 49\nin her capacity as Commissioner of Human Services for the State of New Jersey (Commissioner); and\nWHEREAS, a Discovery Confidentiality and Protective Order (Protective Order) was filed with the court on March 6, 2006 and signed by the Honorable Tonianne J. Bongiovanni, U.S. M. J. , attached hereto as Exhibit 1.\nWHEREAS, the Parties executed a Settlement Agreement on July 28, 2009, resolving all claims in this matter; and\nWHEREAS, this case will remain on the Court's inactive docket during the term of the Settlement Agreement; and\nWHEREAS, it is anticipated that pursuant to the Settlement Agreement, the Commissioner may disclose records, which were considered confidential under the March 6, 2006, Protective Order; and\nWHEREAS, pursuant to the Settlement Agreement, the Commissioner may determine to disclose records, which would be deemed privileged pursuant to the December 19, 2007, Letter Order of the Honorable Tonianne Bongiovanni, U.S.M.J., including but not limited to intra-agency discussions, budgetary requests and draft documents, or pursuant to another recognized privilege; and\nWHEREAS, the Parties desire to both continue the terms of the March 6, 2006, Protective Order, and to extend confidentiality to records which would which would be deemed privileged pursuant to the December 19, 2007, Letter Order of the Honorable Tonianne\nPage 2 of 7\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 37 of 49\nBongiovanni, U.S.M.J., including but not limited to intra-agency discussions, budgetary requests and draft documents, or pursuant to another recognized privilege;\nNOW THEREFORE, the Parties consent and agree to the following terms of this Confidentiality Agreement:\n1. Confidential material shall mean a. any material that is confidential pursuant to the March 6, 2006 Protective Order; and b. records which would be deemed p~ivileged pursuant to the December 19, 2007, Letter Order of the Honorable Tonianne Bongiovanni, U.S.M.J., including but not limited to intra-agency discussions, budgetary requests and draft documents, or pursuant to another recognized privilege;\n2. The designation of Confidential Material may be made by the producing party by conspicuously stamping or otherwise placing or affixing on documents that are (or contain or refer to) Confidential Material the word \"Confidential,\" on the front page of the document.\n3. The parties shall not further reproduce, copy or otherwise disseminate Confidential Material to any person or agency for any other reason, nor disseminate or make public the records by any\nPage 3 of 7\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 38 of 49\nmeans, direct or indirect, other than to the aforesaid attorneys or those individuals or groups identified in the Settlement Agreement.\n4. All Confidential Material released to the Parties as part of fulfillment of the Settlement Agreement:\na. shall be kept strictly confidential and shall not be used by any Party, employees of a Party or a Party's attorneys of record, for any purpose other than the purposes of the Settlement Agreement; and\nb. may not be disclosed to any other persons except for the Parties, employees of a Party, a Party's attorneys of record, the mediator and consultant appointed pursuant to the Settlement Agreement, and all other persons to whom disclosure is permitted pursuant to paragraphs 4 and 5 of the Protective Order (Exhibit 1) .\n5. Any person to whom Confidential Material is to be disclosed, other than those identified in Paragraph 4, and including the mediator and consultant under the Settlement Agreement, shall first sign a confidentiality agreement with the same terms as the instant Agreement.\n6. The Parties agree that disclosure of confidential material as defined in paragraph l(b) under this agreement does not constitute waiver of the deliberative process privilege or other privilege.\nPage 4 of 7\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 39 of 49\n7. No later than sixty (60) days after the expiration of the Settlement Agreement, all Confidential Material provided by the Commissioner pursuant to the Settlement Agreement and previously provided solely pursuant to the March 6, 2006 Protective Order, including all copies made for any reason, shall either be returned to Anne Milgram, Attorney General of New Jersey, through Beth Mitchell, Deputy Attorney General, or certified to have been destroyed at the expiration of the Settlement Agreement as set forth by 45 C.F.R. §164.512(e)(1}(v)(B), whether or not the Confidential Material is confidential pursuant to 42 U.S.C.A. §1320d et seg. (HIPAA), and its underlying regulations 45 C.F.R. 160 and 164 (HIPAA Privacy Rule) .\n8. In the event that a good faith dispute arises regarding whether information is properly designated as Confidential Material, such that it is subject to the terms of this Confidentiality Agreement, the party disputing the assertion of confidentiality shall provide the producing party with a written statement setting forth the basis upon which the challenge to the assertion of confidentiality is based. Within fifteen (15) business days of receipt of such written statement, the party producing shall either:\na. withdraw the assertion of confidentiality; or\nPage 5 of 7\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 40 of 49\nb. file a motion seeking to have the Court determine whether the information is confidential pursuant to the claimed authority. In any such motion the producing party shall have the burden to prove that such information is confidential and each party shall bear its own costs.\n9. In the event that a good faith dispute arises regarding whether an individual identified pursuant to Paragraphs 4 and 5 of this Confidentiality Agreement shall be required to keep the Confidential Material confidential pursuant to this Confidentiality Agreement, the party challenging the need for the individual to abide by this Confidentiality Agreement shall provide the other party with a written statement of the basis upon which it is believed that the identified individual need abide by the Confidentiality Agreement. Within fifteen (15) business days, the party asserting that the identified individual must keep the information confidential shall either:\na. withdraw the request to identify the individual as someone who must keep the Confidential Material confidential under the terms of this Confidentiality Agreement; or\nb. file a motion seeking to have the court determine whether the individual is someone who must keep the information confidential pursuant to the terms of\nPage 6 of 7\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 41 of 49\nthis Confidentiality Agreement. In any such motion the Party asserting the individual is someone who must abide by this Confidentiality Agreement shall have the burden to prove that such information is confidential and each Party shall bear its own costs.\nWe, the undersigned, hereby consent and agree to the terms of this Confidentiality Agreement: On behalf of Plaintiff, Disability Rights New Jersey, Inc.\n~7'\nDATE\nOn behalf of Jennifer Velez, Commissioner of the Department of Human Services\nANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY\nby: Beth Leigh Mitchell Deputy Attorney General\nPage 7 of 7\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2\nCase 3:05-cv-01784-FLW-TJB Document 27\n\nFiled 07/29/2009 Page 42 of 49\nFiled 03/06/2006 Page 1 of 8\n\nZULIMA V. FARBER ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for Kevin Ryan,\nActing Commissioner, New Jersey Department of Human Ser~ices\nBy: Beth Leigh Mitchell (BLM0651) Deputy Attorney General\nGerard Hughes (GH6680) Deputy Attorney General ( 60 9) 633-8197\nUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY\nVICINAGE OF TRENTON\n\nNEW JERSEY PROTECTION AND ADVOCACY, A New Jersey Nonprofit corporation\nPlaintiff,\nv.\nJAMES DAVY, In his Official Capacity as Commissioner of Human Services for the State of New Jersey,\nDefendant.\n\nHON. STANLEY R. CHESLER, U.S.D.J Civil Action No. 05-1784 (SRC)\nDISCOVERY CONFIDENTIALITY AND PROTECTIVE ORDER\n\nWHEREAS this matter is a contested matter filed in the United States District Court for the District of New Jersey and venued in the Vicinage of Trenton; and\nWHEREAS, it is anticipated that The State of New Jersey, Department of Human Services (hereinafter \"the State\") may have to\n\nEXHIBIT 1\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Case 3:05-cv-01784-FLW-TJB Document 27\n\nFiled 07/29/2009 Page 43 of 49\nFiled 03/06/2006 Page 2 of 8\n\ndisclose records which may contain protected health information within the meaning of the Health Insurance Portability and Accountability Act, Administrative Simplification, 42 U.S. C. A. §1320d et ~· and its underlying regulations, 45 C.F.R. 160 and 164 (HIPAA Privacy Rule) , generally, and specifically 4 5 C. F. R. 164.512(e), which provides that protected health information may be provided in a judicial proceeding where a protective order has been entered into; and\nWHEREAS, it is anticipated that the State may have to disclose records in the custody of Department of Human Services, Division of Mental Health Services which may contain confidential information pursuant to N.J.S.A. 30:4-24.3, which can only be disclosed where a court has ordered same pursuant to N.J.S.A. 30:4-24.3(c) and the Court having found that non-disclosure of records that the State will produce pursuant to discovery in this litigation would be contrary to the public interest; and\nWHEREAS, it is anticipated that New Jersey Protection and Advocacy, Inc. (\"NJP&A\") may have to disclose records that contain sensitive and confidential information including but not limited to medical conditions/treatment of NJP&A' s constituents and/or records that are protected from disclosure under 42 U.S.C. §10806.\nWHEREAS, it is anticipated that third parties may have to disclose records that contain sensitive and confidential\n\n-2-\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2\nCase 3:05-cv-01784-FLW-TJB Document 27\n\nFiled 07/29/2009 Page 44 of 49\nFiled 03/06/2006 Page 3 of 8\n\ninformation including but not limited to medical conditions/treatment; and\nWHEREAS, the parties consent and agree to the terms, form and entry of this Discovery Confidentiality and Protective Order (\"Order\") on the following terms and for good cause shown;\nIT IS, therefore, on this 6th day of March, 2006, ORDERED that:\n1. All confidential material set forth above and produced subject to the terms of this Order shall be termed \"Confidential Material.\" The designation of Confidential Material may be made by the producing party by conspicuously stamping or otherwise placing or affixing on documents produced that are (or contain or refer to) Confidential Material the words \"Confidential.\"\n2. The parties shall not further reproduce, copy or otherwise disseminate Confidential Material to any person or agency for any other reason, nor disseminate or make public the records by any means, direct or indirect, other than to the aforesaid attorney, or the court having jurisdiction of the action except as specified in this Order; and\n3. All Confidential Material released to the parties as part of discovery pursuant to this Order:\n\n-3-\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 45 of 49\nCase 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 4 of 8\n\na. shall be kept strictly confidential pursuant to HIPAA\n\nPrivacy Rule and shall not be used or disclosed for any\n\npurpose other than the trial preparation in the above-\n\ncaptioned mater, as specified in this Order, for which\n\nthis information was requested as required by HIPAA\n\nPrivacy\n\nRule\n\nand\n\nspecifically\n\n45\n\nC.F.R.\n\n§164. 512 (e) (1) (v) (A); and;\n\nb. may not be disclosed to any other persons except for the\n\nparties, the attorneys of record for the parties and\n\nmembers of their law firms/organizations, or to persons\n\nregularly employed in such law firms/organizations'\n\noffices, or in accordance with the limitations set forth\n\nin paragraph 5, to certain other persons as reasonably\n\nnecessary for the preparation or trial of this matter.\n\n5. In addition to those persons listed in paragraph 4, t~\n\nfollowing persons may be given access to Confidential Material when\n\nreasonably necessary for the conduct of this litigation:\n\na. Expert witnesses and consulting experts.\n\nb. Court reporters involved in taking depositions in\n\nthis case.\n\nc. Non-party witnesses, but only in the course of, and\n\nto the extent necessary to conduct, depositions or\n\ninterviews of such witnesses.\n\n-4-\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 46 of 49\nCase 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 5 of 8\nd. Persons who were authors of the Confidential Material, or who were previous recipients of the Confidential Material.\ne. Such other persons as may be identified in the course of the litigation and as agreed between counsel for the parties.\n6. Any such person to whom Confidential Material is to be disclosed pursuant to this Order shall first be advised by the attorney making the disclosure that pursuant to this Order such person may not divulge any such Confidential Material to any other person not authorized hereunder to have access to such Confidential Material, and may not use such Confidential Material for purposes unrelated to this litigation and the reason for the disclosure in the course thereof. The attorney shall secure from each person an affidavit stating that such person has read this Order and agrees to be bound by it. Such affidavit shall be maintained in the possession of the attorney securing the affidavit until further order of the Court. Court reporters and deposition witnesses may satisfy this requirement by noting their agreement on the record;\n7. No later than sixty ( 60) days after the conclusion of this litigation (including exhaustion of all appeals and/ or petitions for certiorari), all Confidential Material provided by the State pursuant to this Order, including all copies made for any reason, shall either be returned to Zulima V. Farber, Attorney General of\n-5-\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 47 of 49\nCase 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 6 of 8\nNew Jersey, through Beth Leigh Mitchell, Deputy Attorney General, or certified to have been destroyed at the completion of this legal proceeding as required by the HIPAA Privacy Rule, 45 C.F.R. §164. 512 (e) (1) (v) (B).\n8. No later than sixty (60) days after the conclusion of this litigation (including exhaustion of all appeals and/ or petitions for certiorari), all Confidential Material provided by NJP&A pursuant to this Order, including all copies made for any reason, shall either be returned to NJP&A or Pepper Hamilton LLP, or certified to have been destroyed at the GOmpletion of this legal proceeding.\n9. To the extent that any of the Confidential Material is to be used as evidence in the above captioned matter, the party introducing such Confidential Material shall file a motion to seal pursuant to L. Civ. R. 5.3(c).\n10. In the event that a good faith dispute arises regarding whether information is properly designated as Confidential Material, such that is subject to the terms of the Order, the party disputing the assertion of confidentiality shall provide the producing party with a written statement setting forth the basis upon which the challenge to the assertion of confidentiality is based. Within fifteen (15) business days of receipt of such written statement, the producing party shall either:\na. withdraw the assertion of confidentiality; or\n-6-\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 48 of 49\nCase 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 7 of 8\nb. file a motion seeking to have the Court determine whether the information is confidential pursuant to the claimed authority. In any such motion the producing party shall have the burden to prove that such information is confidential.\n11. In the event that a good faith dispute arises regarding whether an individual identified pursuant to paragraph S(e) of this Order shall be required to keep the Confidential Material confidential pursuant to this Order, the party challenging the need for the individual to abide by this Order shall provide the other party with a written statement of the basis upon which it is believed that the identified individual need abide by this Order. Within fifteen (15) business days, the party asserting that the identified individual must keep the information confidential shall either:\na. withdraw the request to identify the individual as someone who must keep the Confidential Material confidential under the terms of this Order; or\nb. file a motion seeking to have the Court determine whether the individual is someone who must keep the Confidential Material confidential pursuant to the terms of the this Order. In any such motion the party asserting that the individual must abide by\n-7-\n\n\fCase 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 49 of 49\nCase 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 8 of 8\nthe terms of this Order shall have the burden to so prove.\n\ns/ Tonianne J. Bongiovanni Hon. Tonianne Bongiovanni, U.S.M.J.\n\nWe, the undersigned, hereby consent and agree to the terms, form and entry of this Order:\nPepper Hamilton, LLP,\n\ns/ Jeffrey A. Carr Nicholas M. Kouletsis Jeffrey A. Carr on behalf of Plaintiff, New Jersey Protection and Advocacy, Inc.\n\n2/28/06 Date\n\nZULIMA V. FARBER ATTORNEY GENERAL OF NEW JERSEY\n\ns/ Beth Leigh Mitcehll Beth Leigh Mitchell Deputy Attorney General on behalf of Kevin Ryan, Acting Commissioner, New Jersey Department of Human Services\n\n2/28/2006 Date\n\n-8-\n\n\f", "U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:05-cv-01784-FLW-TJB\n\nDISABILITY RIGHTS NEW JERSEY, INC., v. VELEZ Assigned to: Judge Freda L. Wolfson Referred to: Magistrate Judge Tonianne J. Bongiovanni Cause: 42:12101 Americans with Disabilities Act\n\nDate Filed: 04/05/2005 Date Terminated: 07/30/2009 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question\n\nPlaintiff\nDISABILITY RIGHTS NEW JERSEY, INC. a New Jersey non-profit corporation\n\nrepresented by JEFFREY A. CARR PEPPER HAMILTON LLP SUITE 400 301 CARNEGIE CENTER PRINCETON, NJ 08543-5276 (609) 452-0808 Email: carrj@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nNICHOLAS M. KOULETSIS PEPPER HAMILTON LLP 300 ALEXANDER PARK CN 5276 PRINCETON, NJ 08543-5276 (609) 452-0808 Email: kouletsisn@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nPATRICIA ANN LAUCH PEPPER HAMILTON, LLP 301 CARNEGIE CENTER SUITE 400 PRINCETON, NJ 08543 (609) 951-4139 LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nWILLIAM EMMETT DWYER 418 Burgundy St. Unit 10 New Orleans, LA 70112 United Sta\n\n\fV.\nDefendant\nJENNIFER VELEZ in her official capacity as Commissioner of Human Services for the State of New Jersey\n\n6095580476 Email: emmettdwyer@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED\nJORDAN ADAM STERN PEPPER HAMILTON LLP 300 ALEXANDER PARK PRINCETON, NJ 08543 (609) 951-4236 ATTORNEY TO BE NOTICED\nrepresented by BETH LEIGH MITCHELL OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 599-6869 Fax: (609) 292-0690 Email: beth.mitchell@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED\nDAVID L. DACOSTA OFFICE OF THE NJ ATTORNEY GENERAL DEPARTMENT OF LAW & PUBLIC SAFETY 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 341-3689 Email: dacosdav@dol.lps.state.nj.us TERMINATED: 11/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED\nKATIUSCA POLANCO OFFICE OF THE NJ ATTORNEY\n\n\fGENERAL DEPARTMENT OF LAW & PUBLIC SAFETY 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 341-5096 Fax: (609) 777-4036 TERMINATED: 01/05/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED\nGERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 341-5096 Email: gerard.hughes@lps.state.nj.us ATTORNEY TO BE NOTICED\nLAURIE MANUS TOMPKINS OFFICE OF THE ATTORNEY GENERAL 25 MARKET STREET P.O. BOX 112 TRENTON, NJ 08625 609-984-6439 Email: laurie.tompkins@dol.lps.state.nj.us ATTORNEY TO BE NOTICED\n\nDate Filed 04/05/2005\n04/05/2005\n\n# Docket Text\n1 COMPLAINT against JAMES DAVY ( Filing fee $ 250 receipt number 341338.) , filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,(tp ) (Entered: 04/05/2005)\nSummons Issued as to JAMES DAVY.Days Due - 20. (tp ) (Entered: 04/05/2005)\n\n\f05/19/2005 06/02/2005 06/03/2005 06/20/2005 06/21/2005\n07/06/2005 07/07/2005\n07/07/2005\n\n2 AMENDED COMPLAINT against JAMES DAVY, filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,.(DWYER, WILLIAM) (Entered: 05/19/2005)\n3 Application and Proposed Order for Clerk's Order to extend time to answer as to Amended Complaint. Attorney KATIUSCA POLANCO and KATIUSCA POLANCO for JAMES DAVY added. (POLANCO, KATIUSCA) (Entered: 06/02/2005)\nClerk's Text only order granting Application for extension of time for dft. James Davy to answer to 6/21/05 (ck) (Entered: 06/03/2005)\n4 First MOTION for Extension of Time to File Answer re 2 Amended Complaint by JAMES DAVY. (Attachments: # 1Certificate of Service # 2 Certification # 3 Text of Proposed Order)(POLANCO, KATIUSCA) (Entered: 06/20/2005)\nSet Deadlines as to 4 First MOTION for Extension of Time to File Answer re 2 Amended Complaint. Motion Hearing set for 7/18/2005 10:00 AM in Trenton - Courtroom 6W before Magistrate Judge John J. Hughes. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck ) (Entered: 06/21/2005)\n5 First MOTION to Dismiss by JAMES DAVY. Responses due by 7/6/2005 (Attachments: # 1 Brief in support of motion to dismiss# 2 Certificate of Service)(MITCHELL, BETH) (Entered: 07/06/2005)\nCLERKS OFFICE QUALITY CONTROL MESSAGE - Attachment #1 Brief to 52 Motion to Dismiss submitted by BETH MITCHELL, ESQ. on 7/6/05 did not contain a proper electronic signature (s/). PLEASE RESUBMIT THE DOCUMENT WITH THE PROPER ELECTRONIC SIGNATURE BY 7/12/05. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only.. (ck) (Entered: 07/07/2005)\nSet Deadlines as to 5 First MOTION to Dismiss. Motion Hearing set for 8/1/2005 10:00 AM in Trenton - Courtroom 5E before Judge Stanley R. Chesler. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck) (Entered: 07/07/2005)\n\n\f07/07/2005 07/08/2005\n07/12/2005 09/09/2005 09/09/2005 09/19/2005 09/19/2005 09/19/2005 09/20/2005\n\n6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) by JAMES DAVY. Responses due by 7/6/2005 (Attachments: # 1 Brief (revised ) in support of motion to dismiss# 2 Certificate of Service (revised))(MITCHELL, BETH) (Entered: 07/07/2005)\nSet Deadlines as to 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court). Motion Hearing set for 8/1/2005 10:00 AM in Trenton - Courtroom 5E before Judge Stanley R. Chesler. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck) (Entered: 07/08/2005)\n7 ORDER granting 4 Motion for Extension of Time to Answer TO 7/26/05 . Signed by Judge John J. Hughes on 7/12/05. (ms) (Entered: 07/12/2005)\n8 BRIEF in Opposition re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (STERN, JORDAN) (Entered: 09/09/2005)\n9 AFFIDAVIT in Support re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Certificate of Service)(STERN, JORDAN) (Entered: 09/09/2005)\n10 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Declaration of Alison Barkoff# 2 Order# 3 Certificate of Service)(DWYER, WILLIAM) (Entered: 09/19/2005)\n11 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Declaration of Ira Burnim# 2 Order# 3 Certificate of Service)(DWYER, WILLIAM) (Entered: 09/19/2005)\n12 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Declaration of Jennifer Mathis# 2 Order# 3 Certificate of Service)(DWYER, WILLIAM) (Entered: 09/19/2005)\nSet Deadlines as to 10 ; 11 ; & 12 MOTIONS for Leave to Appear Pro Hac Vice. Motion Hearing set for 10/17/2005 10:00 AM in Trenton Courtroom 6W before Magistrate Judge John J. Hughes. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS\n\n\f09/20/2005\n09/26/2005 09/27/2005 09/27/2005 09/27/2005 09/30/2005 09/30/2005 10/05/2005\n10/06/2005\n10/13/2005\n\nSPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck ) (Entered: 09/20/2005)\nCLERK'S QUALITY CONTROL MESSAGE: Documents 10 ; 11 ; & 12 are not in compliance with Local Civil Rule 7.1(d)(1) which requires Briefs to be submitted as separate documents. While a Brief may be submitted as a SEPARATE ATTACHMENT, it is not to be a part of the moving papers. This message is for informational purposes only. (ck) (Entered: 09/20/2005)\n13 REPLY to Response to Motion re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by JAMES DAVY. (MITCHELL, BETH) (Entered: 09/26/2005)\n14 NOTICE of Appearance by JORDAN ADAM STERN on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (STERN, JORDAN) (Entered: 09/27/2005)\n15 BRIEF in Opposition re 12 MOTION for Leave to Appear Pro Hac Vice, 10 MOTION for Leave to Appear Pro Hac Vice, 11 MOTION for Leave to Appear Pro Hac Vice filed by JAMES DAVY. (Attachments: # 1 Certificate of Service)(MITCHELL, BETH) (Entered: 09/27/2005)\n16 Certification of Beth Leigh Mitchell (cert of service) on behalf of JAMES DAVY Re 13 Reply to Response to Motion. (MITCHELL, BETH) (Entered: 09/27/2005)\n17 OPINION re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by JAMES DAVY, . Signed by Judge Stanley R. Chesler on 9/30/05. (ck) (Entered: 09/30/2005)\n18 ORDER denying 6 Motion to Dismiss . Signed by Judge Stanley R. Chesler on 9/30/05. (ck) (Entered: 09/30/2005)\nNOTICE of Hearing on Motion 10 MOTION for Leave to Appear Pro Hac Vice, 11 MOTION for Leave to Appear Pro Hac Vice, 12 MOTION for Leave to Appear Pro Hac Vice: Motion Hearing set for 10/17/2005 03:00 PM in Trenton - Courtroom 6W before Magistrate Judge John J. Hughes. (dg, ) (Entered: 10/05/2005)\n19 REPLY to Response to Motion re 12 MOTION for Leave to Appear Pro Hac Vice, 10 MOTION for Leave to Appear Pro Hac Vice, 11 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Certification Supplemental Declaration in Support of Motions for Pro Hac Vice Admissions)(STERN, JORDAN) (Entered: 10/06/2005)\n20 ANSWER to Amended Complaint by JAMES DAVY.(MITCHELL, BETH) (Entered: 10/13/2005)\n\n\f10/17/2005 10/17/2005\n10/19/2005 10/19/2005 10/19/2005 10/26/2005 11/22/2005 12/02/2005 01/05/2006 02/22/2006\n\n21 NOTICE of Hearing: Initial Conference set for 11/14/2005 03:30 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (dg, ) (Entered: 10/17/2005)\nMinute Entry for proceedings held before Judge John J. Hughes : Motion Hearing held on 10/17/2005 re 12 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,,, 10 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,,, 11 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,,. (Court Reporter FTR / Glynn.) (dg, ) (Entered: 10/26/2005)\n22 ORDER granting 10 Motion for Leave to Appear Alison Barkoff, Esq. Pro Hac Vice on behalf of New Jersey Protection and Advocacy, Inc. Signed by Judge John J. Hughes on 10/18/05. (ck ) (Entered: 10/19/2005)\n23 ORDER granting 11 Motion for Leave to Appear Ira A. Burnim, Esq. Pro Hac Vice on behalf of New Jersey Protection and Advocacy, Inc. Signed by Judge John J. Hughes on 10/18/05. (ck) (Entered: 10/19/2005)\n24 ORDER granting 12 Motion for Leave to Appear Jennifer Mathis, Esq. Pro Hac Vice on behalf of New Jersey Protection and Advocacy, Inc. Signed by Judge John J. Hughes on 10/18/05. (ck ) (Entered: 10/19/2005)\nPro Hac Vice fee: $ 150, receipt number 345678 received by Alison Barkoff, Esq., $150, receipt number 345679 received by Jennifer Mathis, Esq. & $150, receipt number 345680 received by Ira Burnim, Esq. (lk) (Entered: 10/26/2005)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni : Initial Pretrial Conference held on 11/22/2005. (mr) (Entered: 12/05/2005)\n25 PRETRIAL SCHEDULING ORDER: Telephone Conference set for 3/13/2006 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Judge Tonianne J. Bongiovanni on 11/30/05. (ck) (Entered: 12/02/2005)\n26 Substitution of Attorney - Attorney DAVID L. DACOSTA and DAVID L. DACOSTA for JAMES DAVY added. Attorney KATIUSCA POLANCO terminated.. (DACOSTA, DAVID) (Entered: 01/05/2006)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 2/22/2006. Status Telephone Conference set for 3/21/2006 4:00 PM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 02/22/2006)\n\n\f03/06/2006 03/21/2006 04/24/2006\n04/26/2006 06/29/2006\n07/10/2006 07/11/2006 07/26/2006 07/27/2006 08/17/2006\n\n27 DISCOVERY CONFIDENTIALITY & PROTECTIVE ORDER. Signed by Judge Tonianne J. Bongiovanni on 3/6/06. (ck ) (Entered: 03/06/2006)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 3/21/2006. Status Telephone Conference set for 4/24/2006 2:30 PM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff to initiate call. (mm) (Entered: 03/22/2006)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 4/24/2006. Status Telephone Conference set for 6/29/2006 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff is to initiate the call. (mm) (Entered: 04/25/2006)\n28 ORDER confirming that the Status Telephone Conference set for 6/29/2006 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni w/ the pltf's to initiate the call. Signed by Judge Tonianne J. Bongiovanni on 4/25/06. (ck) (Entered: 04/26/2006)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 6/29/2006. Status Telephone Conference set for 7/11/2006 9:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff is to initiate the call. (mm) (Entered: 06/29/2006)\n29 ORDER REASSIGNING CASE. Case reassigned to Judge Freda L. Wolfson for all further proceedings. Judge Stanley R. Chesler no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 7/10/06. (eh, ) (Entered: 07/12/2006)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/11/2006. Status Telephone Conference set for 8/17/2006 11:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff to initiate. (mm) (Entered: 07/12/2006)\n30 Letter SCHEDULING ORDER: Telephone Conference reset for 9/20/2006, 11:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni; Signed by Judge Tonianne J. Bongiovanni on 7/24/06 (DH) (Entered: 07/26/2006)\n31 NOTICE of Appearance by GERARD ANDREW HUGHES on behalf of JAMES DAVY (HUGHES, GERARD) (Entered: 07/27/2006)\n32 NOTICE of Appearance by JEFFREY A. CARR on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (CARR, JEFFREY) (Entered: 08/17/2006)\n\n\f08/17/2006 09/20/2006 10/10/2006\n12/15/2006 01/04/2007 02/22/2007\n02/23/2007 06/13/2007 08/09/2007 08/10/2007\n\n33 NOTICE of Appearance by NICHOLAS M. KOULETSIS on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (KOULETSIS, NICHOLAS) (Entered: 08/17/2006)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/20/2006. (mm) (Entered: 09/20/2006)\n34 SCHEDULING ORDER setting certain deadlines: Telephone Conference set for 2/1/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Pretrial Factual Discovery due by 6/30/2007.. Signed by Judge Tonianne J. Bongiovanni on 10/5/06. (ck, ) (Entered: 10/10/2006)\n35 NOTICE of Change of Address by JEFFREY A. CARR (CARR, JEFFREY) (Entered: 12/15/2006)\n36 LETTER ORDER adjourning the conference call to 22/22/07 at 10am . Signed by Judge Tonianne J. Bongiovanni on 1/4/07. (ck, ) (Entered: 01/04/2007)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 2/22/2007. Status Telephone Conference set for 6/13/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 02/23/2007)\n37 ORDER confirming that the conference call is scheduled for 6/13/07 at 10am. Signed by Judge Tonianne J. Bongiovanni on 2/23/07. (ck, ) (Entered: 02/23/2007)\nMinute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 6/13/2007. (mm) (Entered: 06/13/2007)\n38 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Brief in Support of Motion# 2 Declaration # 3 Text of Proposed Order # 4 Certificate of Service)(DWYER, WILLIAM) (Entered: 08/09/2007)\nSet Deadlines as to 38 MOTION for Leave to Appear Pro Hac Vice. Motion Hearing set for 9/4/2007 10:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck, ) (Entered: 08/10/2007)\n\n\f08/14/2007 08/15/2007 08/16/2007\n08/23/2007 08/23/2007 09/04/2007\n10/05/2007 11/02/2007 11/29/2007 12/03/2007 12/12/2007 12/19/2007\n\n39 ORDER granting 38 Motion for Andrew Penn, Esq. Leave to Appear Pro Hac Vice for pltf.. Signed by Judge Tonianne J. Bongiovanni on 8/14/07. (lk) (Entered: 08/14/2007)\n40 Notice of Request by Pro Hac Vice to receive Notices of Electronic Filings. (DWYER, WILLIAM) (Entered: 08/15/2007)\nCLERK'S QUALITY CONTROL MESSAGE: Regarding document 40 Request for electronic notification of pro hac vice counsel filed by W. Dwyer, Esq.. Counsel is advised that the required payment of $150 has not be received and recorded on the docket. No notice will be recorded until such payment has been received. Counsel is also advised that this request will need to be refiled once payment is recorded (ck ) (Entered: 08/16/2007)\nPro Hac Vice fee: for Andrew Penn $ 150, receipt number 359527 (lk) (Entered: 08/23/2007)\n41 Notice of Request by Pro Hac Vice for Andrew Penn to receive Notices of Electronic Filings. (DWYER, WILLIAM) (Entered: 08/23/2007)\n42 ORDER SCHEDULING CONFERENCE: Telephone Conference set for 11/1/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Judge Tonianne J. Bongiovanni on 9/4/07. (ck ) (Entered: 09/04/2007)\n43 NOTICE of Appearance by PATRICIA ANN LAUCH on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (LAUCH, PATRICIA) (Entered: 10/05/2007)\n44 LETTER ORDER extending briefing schedule. Signed by Judge Tonianne J. Bongiovanni on 11/1/07. (lk) (Entered: 11/02/2007)\n45 NOTICE by JAMES DAVY Withdrawal of David L. DaCosta as attorney appearing on behalf of Defendant James Davy(DACOSTA, DAVID) (Entered: 11/29/2007)\n46 STIPULATED ORDER substituting defendant and amending caption. Signed by Judge Tonianne J. Bongiovanni on 11/30/07. (ck, ) (Entered: 12/03/2007)\n47 CERTIFICATE OF SERVICE; Subpoena excuted on 12/6/07 by NEW JERSEY PROTECTION AND ADVOCACY INC., (ck, ) (Entered: 12/12/2007)\n48 LETTER ORDER denying pltf's application to compel & directing the defendant to produce unredacted copies of certain documents within ten days. Signed by Judge Tonianne J. Bongiovanni on 12/19/07. (ck, ) (Entered: 12/19/2007)\n\n\f12/20/2007 01/07/2008 02/06/2008\n02/11/2008 03/13/2008 04/01/2008 04/11/2008 04/15/2008\n04/22/2008 04/24/2008 05/05/2008\n05/20/2008\n\n49 Letter from New Jersey Protection & Adovocacy ( Patricia A lauch). (LAUCH, PATRICIA) (Entered: 12/20/2007)\n50 STIPULATION and ORDER for discovery and setting teleconference for 2/6/2008 @ 11:00am Signed by Judge Tonianne J. Bongiovanni on 1/5/2008. (ss, ) (Entered: 01/07/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 2/6/2008. Status Telephone Conference set for 3/13/2008 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Plainitff is to initiate the call. (mm) (Entered: 02/06/2008)\n51 LETTER ORDER: Settlement Conference set for 3/13/2008 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 2/8/08. (lk) (Entered: 02/14/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 3/13/2008. (mm) (Entered: 03/13/2008)\n52 ORDER confirming defendant has until 4/9/08 to advise if another settlement conference is needed.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/31/2008. (tp ) (Entered: 04/01/2008)\nReset Hearings: Settlement Conference set for 4/22/2008 3:00 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 04/11/2008)\n53 LETTER ORDER: Settlement Conference set for 4/22/2008 03:00 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/11/08. (ij, ) (Entered: 04/16/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 4/22/2008. (mm) (Entered: 04/25/2008)\n54 ORDER tolling Discovery for 30 days. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/23/2008. (tp ) (Entered: 04/25/2008)\n55 ORDER, ( Settlement Conference set for 5/20/2008 02:30 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni.). Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/2/2008. (tp ) (Entered: 05/05/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 5/20/2008. (mm) (Entered: 05/22/2008)\n\n\f06/03/2008 07/02/2008 07/10/2008 08/11/2008 09/03/2008\n09/04/2008 10/03/2008 10/06/2008 10/24/2008 10/24/2008 10/27/2008\n10/29/2008\n\n56 ORDER setting telephone conference for 7/2/2008. Signed by Magistrate Judge Tonianne J. Bongiovanni on 6/2/2008. (tp ) (Entered: 06/04/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/2/2008. (mm) (Entered: 07/08/2008)\n57 NOTICE by NEW JERSEY PROTECTION AND ADVOCACY INC., Withdrawal of Appearance of Alison Barkoff(CARR, JEFFREY) (Entered: 07/10/2008)\n58 LETTER ORDER setting phone conference for 9/3/2008 at 9:30am. Signed by Magistrate Judge Tonianne J. Bongiovanni on 8/11/2008. (tp ) (Entered: 08/11/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/3/2008. Status Telephone Conference set for 10/2/2008 2:00 PM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 09/03/2008)\n59 LETTER ORDER confirming teleconference set for October 2, 2008 at 3:00 p.m. Signed by Magistrate Judge Tonianne J. Bongiovanni on 9/3/08. (ij, ) (Entered: 09/04/2008)\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 10/3/2008. (mm) (Entered: 10/03/2008)\n60 LETTER ORDER re: settlement & discovery. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/3/08. (lk) (Entered: 10/06/2008)\n61 STIPULATION re 1 Complaint, 2 Amended Complaint changing caption to reflect Plaintiff's new name by JENNIFER VELEZ. (MITCHELL, BETH) (Entered: 10/24/2008)\n62 NOTICE of Appearance by LAURIE PAULA MANUS on behalf of JENNIFER VELEZ (Attachments: # 1 Certificate of Service)(MANUS, LAURIE) (Entered: 10/24/2008)\n63 ORDER SCHEDULING CONFERENCE: Settlement Conference set for 12/10/2008 02:30 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/27/2008. (mmh) (Entered: 10/27/2008)\n64 STIPULATED ORDER Substituting Plaintiff's Name and Amending Caption. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/28/2008. (mmh) (Entered: 10/29/2008)\n\n\f12/10/2008 12/11/2008\n02/11/2009\n02/25/2009 03/23/2009 03/27/2009 03/27/2009 03/27/2009 04/02/2009 04/02/2009 04/30/2009\n\nMinute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 12/10/2008. (mm) (Entered: 12/10/2008)\n65 LETTER SCHEDULING ORDER: Telephone Conference set for 4/7/2009 10:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Final Pretrial Conference set for 11/30/2009 11:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Discovery due by 4/15/2009. Dispositive Motions due by 9/25/2009; returnable 10/19/2009. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/10/2008. (mmh) (Entered: 12/11/2008)\nSet/Reset Hearings: Please be advised Judge Wolfson has set a Status/Settlement Conference for 2/23/2009 at 10:00 AM in Trenton Courtroom 5E before Judge Freda L. Wolfson. Please have representatives with full authority to discuss settlement present. (jg, ) (Entered: 02/11/2009)\nMinute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 2/25/2009, ( Settlement Conference continued to 3/23/2009 11:00 AM in Trenton - Courtroom 5E before Judge Freda L. Wolfson.). (jg, ) (Entered: 02/25/2009)\nText Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 3/23/2009. (jg, ) (Entered: 03/23/2009)\n66 LETTER ORDER extending the time periods for fact discovery and expert reports to from 2/9/2009 to 4/20/2009. Signed by Judge Freda L. Wolfson on 3/25/2009. (mmh) (Entered: 03/27/2009)\nCLERKS QUALITY CONTROL MESSAGE - Please note the Order attached to docket entry 66 filed by the Clerks office on 3/27/2009 was docketed in error. Please disregard. (mmh) (Entered: 03/27/2009)\n67 LETTER ORDER extending the time periods for fact discovery and expert reports from 2/9/2009 to 4/20/2009. Signed by Judge Freda L. Wolfson on 3/25/2009. (mmh) (Entered: 03/27/2009)\n68 LETTER ORDER postponing the 4/7/2009 status conference until further notice after the 4/20/2009 conference with Judge Wolfson. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/1/2009. (mmh) (Entered: 04/02/2009)\nCase reassigned to Magistrate Judge Tonianne J. Bongiovanni. (mmh) (Entered: 04/02/2009)\nText Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 4/30/2009. (jg, ) (Entered: 04/30/2009)\n\n\f05/07/2009 05/26/2009 06/10/2009 07/10/2009\n07/13/2009\n07/23/2009 07/29/2009 07/30/2009 07/21/2010 07/21/2010 07/22/2010\n\nSet/Reset Hearings: Telephone Conference Call set for 5/26/2009 10:00 AM before Judge Freda L. Wolfson. (jg, ) (Entered: 05/07/2009)\nText Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 5/26/2009. (jg, ) (Entered: 05/27/2009)\nText Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 6/10/2009. (jg, ) (Entered: 06/10/2009)\nText Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 7/10/2009, ( Settlement Conference set for 7/23/2009 10:00 AM in Trenton - Courtroom 5E before Judge Freda L. Wolfson.). (jg, ) (Entered: 07/10/2009)\nCLERK'S QUALITY CONTROL MESSAGE: PATRICIA ANN LAUCH AND JORDAN ADAM STERN, do not have a correct e-mail address listed with the court and are not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e-mail address changes. The court has deleted the invalid e-mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (mem, ) (Entered: 07/13/2009)\nText Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 7/23/2009. (jg, ) (Entered: 07/28/2009)\n69 STIPULATION of Dismissal by JENNIFER VELEZ. (Attachments: # 1 Settlement Agreement)(MITCHELL, BETH) (Entered: 07/29/2009)\n***Civil Case Terminated. (mmh) (Entered: 07/30/2009)\n70 NOTICE of Appearance by WILLIAM EMMETT DWYER on behalf of DISABILITY RIGHTS NEW JERSEY, INC. (DWYER, WILLIAM) (Entered: 07/21/2010)\n71 NOTICE by DISABILITY RIGHTS NEW JERSEY, INC. to withdraw appearance of Jennifer Mathis (DWYER, WILLIAM) (Entered: 07/21/2010)\nCLERK'S QUALITY CONTROL MESSAGE - Please review the document attached to docket entry 70 submitted by William Dwyer on 7/21/2010. It appears to be a withdrawal notice by Jennifer Mathis and not a Notice of Appearance for William Dwyer. If this document was attached in error, PLEASE RESUBMIT THE CORRECT DOCUMENT. This submission will remain on the docket unless otherwise ordered by the court. (mmh) (Entered: 07/22/2010)\n\n\f07/22/2010\n07/26/2010 12/08/2014 03/02/2017 10/03/2017\n\nCLERK'S QUALITY CONTROL MESSAGE - The 71 Notice of Request to Withdraw from Case re: Jennifer Mathis filed by William Dwyer on 7/21/2010 was submitted incorrectly as a Notice. PLEASE RESUBMIT THE Request to Withdraw from Electronic Notification USING Notice to Withdraw from NEF as to Case found under Civil - Notices. Additionally, this document must be submitted with a proper scanned signature, as pro hac vice attorneys are not permitted to electronically sign documents. This submission will remain on the docket unless otherwise ordered by the court. (mmh) (Entered: 07/22/2010)\n72 Notice to be terminated and withdraw from Notices of Electronic filing as to case. (DWYER, WILLIAM) (Entered: 07/26/2010)\n73 LETTER ORDER extending the settlement agreement through 5/30/2016. Signed by Judge Freda L. Wolfson on 12/8/2014. (eaj) (Entered: 12/08/2014)\n74 Letter from the Parties. (HUGHES, GERARD) (Entered: 03/02/2017)\n75 Letter of Commendation signed by Judge Freda L. Wolfson on 10/2/2017. (mmh) (Entered: 10/03/2017)\n\n\f" ]
NOTE: This is one of three identically named cases in the Clearinghouse. For the 2005 case generally challenging the unnecessary institutionalization of individuals with disabilities in New Jersey, see <a href="http://www.clearinghouse.net/detail.php?id=12675">PB-NJ-0007</a>. For the case challenging the long waitlists for community-based services, see <a href="http://www.clearinghouse.net/detail.php?id=11664">PB-NJ-0004</a>. On April 5, 2005, a non-profit organization representing approximately one thousand individuals confined in psychiatric hospitals in New Jersey filed a lawsuit against Commissioner of the New Jersey Department of Human Services under Due Process Clause, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act in the U.S. District Court for the District of New Jersey. The plaintiff, represented by public services counsel, asked the Court for declaratory and injunctive relief, alleging that the defendant failed to provide community placements for individuals currently residing in state psychiatric hospitals that had been adjudicated as no longer meeting the standards for civil commitment. Specifically, the plaintiff claimed that the defendant had used the Conditional Extension Pending Placement ("CEPP") to confine individuals for excessive periods of time and has failed to implement an effective plan for discharging these individuals into the community, even though under New Jersey law, the state might use CEPP to continue confinement while the state was still developing an appropriate community placement. On September 30, 2005, the Court (Judge Stanley R. Chesler) denied the defendant's motion to dismiss. On July 29, 2009, after extended negotiations, the parties reached a settlement whereby the state agreed to place 1065 individuals in the community through FY 2014. The agreement was initially set to last until 2014. But, by November 2014, the defendant was not set to meet the requirements of the consent decree. Judge Wolfson therefor extended the agreement until 2016. On March 2, 2017, the parties submitted a letter to the court notifying it of substantial compliancy by the defendants. The consent decree terminated and the case is now closed.
The case was brought by a non-profit organization against the state of New Jersey seeking declaratory and injunctive relief. On July 29, 2009, the parties reached a settlement in favor of the plaintiff.
EE-FL-0136
[ "Case 9:07-cv-80713-KAM Document 1 Entered on FLSD Docket 08/09/2007 Page 1 of 5\n\nIN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA\n\n-W\n\nZD:71iUG -9\n\nFt1\n\nI\n\n. ,.,\n''-\n\nI\n\nUNITED STATES OF AMERICA,\nPlaintiff,\nv.\nPALM BEACH COUNTY, FLORIDA,\nDefendant.\n\n)\n\n)\n\n)\n\n)\n\n0 7 - 8 0 7 1 3 )\n) Civil Action No.\n\n) )\n\nCIV-MARRA\n\n)\n\nMAGISTR.A.TE JUDGE\n\n)\n\nJOHNSON\n\n)\n\nCOMPLAINT Plaintiff, United States of America, alleges: 1. This action is brought on behalf of the United States to enforce the provisions of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (\"Title VII\"). 2. This Court has jurisdiction over the action under 42 U.S.C. § 2000e-5(f) and 28 U.S.C. § 1345. 3. Defendant Palm Beach County is a corporate, governmental body and a political subdivision of the State of Florida, established pursuant to the laws of the State of Florida. 4. The defendant is a person within the meaning of 42 U.S.C. § 2000e(a), and an employer within the meaning of 42 U.S.C. § 2000e(b). 5. The defendant has discriminated against William J. Stewart, II, who was employed as a park ranger in the defendant's Parks and Recreation Department, on the basis of his religion, in violation of§ 703(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a), among other ways, by:\n\n\fCase 9:07-cv-80713-KAM Document 1 Entered on FLSD Docket 08/09/2007 Page 2 of 5\n(a) failing or refusing reasonably to accommodate Mr. Stewart's religious observance, practice and/or belief of attending Church and refraining from work on Sundays;\n(b) constructively discharging Mr. Stewart because of his religious observance, practice and/or belief of attending Church and refraining from work on Sundays; and\n(c) failing or refusing to take appropriate action to remedy the effects of the discriminatory treatment against Mr. Stewart.\n6. The Equal Employment Opportunity Commission (\"EEOC\") received a timely charge filed by Mr. Stewart (Charge No. 150-2005-04068) in which he alleged that he had been discriminated against in employment because of his religion by the Defendant. Pursuant to § 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, the EEOC investigated the charge, found reasonable cause to believe that the allegations of religious discrimination were true, attempted unsuccessfully to achieve through conciliation a voluntary resolution of the matter, and subsequently referred the charge to the Department of Justice.\n7. All conditions precedent to the filing of suit have been performed or have occurred.\n2\n\n\fCase 9:07-cv-80713-KAM Document 1 Entered on FLSD Docket 08/09/2007 Page 3 of 5\nWHEREFORE, plaintiff United States prays that this Court grant the following relief: (a) Enjoin the defendant from failing and refusing to:\n(i) Provide sufficient remedial relief to the charging party, William J. Stewart, II, to make him whole for the loss he has suffered as a result of the discrimination against him as alleged in this complaint, including back pay with interest and reinstatement with remedial seniority to his previous position with an appropriate religious accommodation; and\n(ii) follow a policy designed reasonably to accommodate the religious observances, practices and/or beliefs of Defendant's employees; and\n(iii) take other appropriate nondiscriminatory measures to overcome the effects of the discrimination.\n(b) The plaintiff prays for such additional relief as justice may require, together with its costs and disbursements in this action.\n3\n\n\fCase 9:07-cv-80713-KAM Document 1 Entered on FLSD Docket 08/09/2007 Page 4 of 5\nWAN J. KIM Assistant Attorney General Civil Rights Division\nBY: \\J·~~.~\n~~BarNo.417834)\nChief WILLIAM B. FENTON (DC BarNo. 414990) Deputy Chief JEFFREY G. MORRISON (MO Bar No. 44401) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4613 Washington, DC 20530 Telephone: (202) 353-1845 Facsimile: (202) 353-8961\nBY:\nFlorida Bar No.: 644791 99 N. E. 41h Street, 3rct Floor Miami, Florida 33132 Telephone: (305) 961-9327 Facsimile: (305) 530-7139 Attorneys for the United States of America\n4\n\n\fCase 9:07-cv-80713-KAM Document 1 Entered on FLSD Docket 08/09/2007 Page 5 of 5\n\n\"\"JS 44 (Rev. ll/04)\n\nCIVIL COVER SHEET\n\nThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other by l:,cal rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the se o ti·,e civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)\n\nI. (a) PLAINTIFFS UNITED STATES OF AMERICA\n(b) County of Residence of First Listed Plaintiff\n(EXCEPT IN U.S. PLAINTIFF CASES)\n(C) Attorney's (Firm Name, Address, and Telephone Number)\n\nDEFENDANTS PALM BEACH COUNTY FLORIDA\n\nA\n\nMAGISTRATE JUDGE\n\nJOHNSON\n\nCounty of Residence of First Listed Defendant\n\n(IN U.S. PLAINTIFF CASES ONLY)\n\nNOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.\n\nJeffErey Morrison (202)353-1845 DOJ- Employment Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530\n\nAttorneys (If Known)\nErnest Chasseur, Asst. County Attorney 301 N Olive Ave., Suite 601 West Palm Beach, Fl 33401 (561-355-2581\n\n,\n\nt--J\n\n(d) Check County Where Action Arose: 0 DADE 0 MONROE 0 BROWARD Ill PALM BEACH 0 MARTIN 0 ST. LUCIE 0 INDIAN RIVE]{) t;I()KEEQIDBEE HIGHLANDS\n\n~~\n\n.;_~-:)\n\nII. BASIS OF JURISDICTION (Place an \"X\" in One Box Only)\n\nIII. CITIZENSHIP OF PRINCIPAL PART~~Sf1(ace an\"~ one Box for Plaintiff\n\n~ I\n\nU.S. Government Plaintiff\n\n03 Federal Question (U.S. Government Not a Party)\n\n(For Diversity Cases Only)\n\nPTF\n\nCitizen of This State\n\n0 I\n\nDEF 0 I\n\n· ;:: 'IDld On<(Bijx for ,Defendant)\n\nC ·'\n\nG) PTF DEF\n\nIncorporated OV.~c1pal Placq ~·?oCii 4\n\nof Busmess ln•ThJ• State I.D\n\n~~-\n\n0 2 U.S. Government Defendant\n\n04 Diversity (Indicate Citizenship of Parties in Item Ill)\n\nCitizen of Another State\n\n0 2\n\n0 2 Incorporated ·£¥1d.Ptmc1pal P11!1\\\"; of Busine~.ln Another State;,;\n\n5 0\n\nCitizen or Subject of a\n\n0 3 0 3 Foreign Natid.;'· · .J;c\n\n0 6 06\n\nJV NATURE OF SUIT (Place an \"X\" in One Box Only)\n\nCONTRACT\n\nTORTS\n\nFORFEITURE/PENALTY\n\n0 II 0 Insurance\n\nPERSONAL INJURY\n\nPERSONAL INJURY 0 610 Agriculture\n\n0 120 Marine\n\n0 310 Airplane\n\n0 362 Personal Injul)' • 0 620 Other Food & Drug\n\n0 130 Miller Act\n\n0 3 I 5 Airplane Product\n\nMed. Malpractice\n\n0 625 Drug Related Seizure\n\n0 140 Negotiable Instrument\n\nLiability\n\nn 150 Recovel)' of Overpayment 0 320 Assault, Libel &\n\n0 365 Personallnjlll)' · Product Liability\n\nof Property 21 USC 881 0 630 Liquor Laws\n\n& Enforcement of Judgment\n\nSlander\n\n0 368 Asbestos Personal 0 640 R.R. & Truck\n\n0 151 Medicare Act\n\n0 330 Federal Employers'\n\nJnjul)' Product\n\n0 650 Airline Regs.\n\n0 152 Recovel)' of Defaulted\n\nLiability\n\nLiability\n\n0 660 Occupational\n\nStudent Loans\n\n0 340 Marine\n\nPERSONAL PROPERTY\n\nSafety/Health\n\n(Excl. Veterans)\n\n0 345 Marine Product\n\n0 370 Other Fraud\n\n0 690 Other\n\n0 153 Recovel)' of Overpayment\n\nLiability\n\n0 371 Truth in Lending\n\nLABOR\n\nof Veteran's Benefits\n\n0 350 Motor Vehicle\n\n0 380 Other Personal\n\n0 710 Fair Labor Standards\n\n0 160 Stockholders' Suits\n\n0 355 Motor Vehicle\n\nProperty Damage\n\nAct\n\n0 190 Other Contract\n\nProduct Liability\n\n0 385 Property Damage 0 720 Labor/Mgmt. Relations\n\n0 195 Contract Product Liability 0 360 Other Personal\n\nProduct Liability\n\n0 730 Labor/Mgmt.Reporting\n\n0 196 Franchise\nI REAL PROPERTY\n\nInjury CIVIL RIGHTS\n\n& Disclosure Act PRISONER PETITIONS 0 740 Railway Labor Act\n\n0 2 I0 Land Condemnation 0 220 Foreclosure\n\n0 441 Voting Cl' 442 Employment\n\n0 510 Motions to Vacate Sentence\n\n0 790 Other Labor Litigation 0 791 Empl. Ret. Inc.\n\n0 230 Rent Lease & Ejectment 0 443 Housing/\n\nHabeas Corpus:\n\nSecurity Act\n\nLJ 240 Tmts to Land\n\nAccommodations\n\n0 530 General\n\n0 245 Tort Product Liability\n\n0 444 Welfare\n\n0 535 Death Penalty\n\n0 290 All Other Real Property 0 445 Amer. w/Disabilities - 0 540 Mandamus & Other\n\nEmployment\n\n0 550 Civil Rights\n\n0 446 Amer. w/Disabilities - 0 555 Prison Condition\n\nOther\n\n0 440 Other Civii Rights\n\nBANKRUPTCY\n0 422 Appeal28 USC 158 0 423 Withdrawal\n28 usc 157\nPROPERTY RIGHTS 0 820 Copyrights 0 830 Patent 0 840 Trademark\nSOCIAL SECURITY 0 861 H1A (I 395ft) 0 862 Black Lung (923) 0 863 DIWC/DIWW (40S(g)) 0 864 SSJD Title XVI 0 865 RSI (405(g))\nFEDERAL TAX SUITS 0 870 Taxes (U.S. Plaintiff\nor Defendant) 0 871 IRS-Third Party\n26 usc 7609\n\n\\..:.\nOTHER STATUTES\n0 400 State Reapponionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and\nCorrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Servtce 0 850 Securities/Commodities/\nExchange 0 875 Customer Challenge\n12 usc 3410\n0 890 Other Statutol)' Actions 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom oflnformation\nAct 0 900Appeal of Fee Determination\nUnder Equal A1:cess to Justice 0 950 Constitutionality of State Statutes\n\nV. ORIGIN\n~I Original P r o c e e d in\n\n(Place an \"X\" in One Box Only)\n\nO 2 Removed from\n\n0 3 Remanded from\n\nState Court\n\nA II ate Court\n\nO 4 Reinstated or\n\nO\n\n5\n\nTransferred from another district\n\nReo ened\n\ns ecif\n\n0 6 Multidistrict\nLiti ation\n\nAppeal to District\n\n0\n\n7\n\nJudge from Magistrate\n\nJud ment\n\n(Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):\n\nVI. CAUSE OF ACTION Title VII of the Civil Rights Act of 1964,42 USC Section 2000e, et seq.\n\nLENGTH OF TRIAL via _ _ days estimated (for both sides to try entire case)\n\nVII. REQUESTED IN COMPLAINT:\n\n0 CHECK IF THIS IS A CLASS ACTION\nUNDER F.R.C.P. 23\n\nDEMAND$\n\nVIII. RELATED CASE(S) IF ANY\n\n(See instructions):\n\nJ.U.D / G E _ . - - - -\n\nCHECK YES only if demanded in complaint:\n\nJURY DEMAND:\n\n0 Yes 0 1\\o\n\nDOCKET NUMBER\n\n- - - - - APPLYING IFP\n\n\f", "--l~·Case 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 1 of 19\n\nIN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA\n\nUNITED STATES OF AMERICA,\nPlaintiff,\nv.\nPALM BEACH COUNTY, FLORIDA,\nDefendant.\n\n)\n\n)\n\n)\n\n)\n\n0 7 - 8 0 7 1 9 )\n) Civil Action No.\n\n) )\n\nCIV· MARlA\n\n)\n\nMAGISTRATE JUDGE\n\n)\n\n. JOHNSON\n\n)\n\nCONSENT DECREE This action was brought by the United States against the County of Palm Beach, Florida (\"County'') to enforce the provisions of§ 703(a) of Title Vll of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a), (\"Title VII\"), following receipt by the Department of Justice from the Equal Employment Opportunity Commission of a charge filed by William J. Stewart, II, a former part-time Park Ranger in the County's Parks and Recreation Department. In its complaint, the United States alleges the Col;LD.ty has violated Title Vll by: (a) failing or refusing reasonably to accommodate Stewart's religious observance,\npractice and/or belief of attending Church and refraining from work on Sundays; (b) constructively discharging Stewart because of his religious observance, practice\nand/or belief of attending Church and refraining from work on Sundays;. and (c) failing or refusing to take appropriate action to remedy the effects of the\ndiscriminatory treatment against Stewart.\n\nThe County has denied all allegations.\n\n---- -·--·· ------\n\n\fCase: J9~ :07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 2 of 19\nThe parties, nevertheless desiring that this action be settled by appropriate consent decree and without the burden of protracted litigation, agree to the jurisdiction of this Court over the parties, and the subject matter ofthis action.· Subject to the Court's approval of this Consent Decree, the parties waive a hearing and findings of fact and conclusions of law on all issues, and further agree to the entry of this Decree as final and binding between themselves as to the issues raised in the United States' complaint filed in this case and the matters resolved in this Decree.\nThis Decree, being entered with the consent of the parties, shall in no way constitute an adjudication or finding on the merits of the case, nor be construed as an admission by the County or a finding of any wrongdoing or violation of any applicable federai or state law or regulation.\nAs used in this Decree,' the term \"date of entry of this Decree\" is defined as the date on which the Court grants final approval to and enters this Consent Decree as a final order of the Court.\nIt is therefore, ORDERED, ADJUDGED AND DECREED as follows: A. GENERAL INJUNCTIVE RELIEF\n(i) The County, by and through its officials, agents, employees and all persons in active concert or participation with the County in the performance of employment or personnel functions, shall not engage in any act or practice that has the purpose or effect of unlawfully discriminating against any employee or potential employee in the County's Parks and Recreation Department because of that individual's good faith religious observances, practices and/or beliefs.\n2\n---------------------------- ----- ---\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 3 of 19\n(ii) The County, by and through its officials, agents, employees and all persons in active concert or participation with the County, shall not unlawfully retaliate against or adversely affect Stewart or any other person because that person has opposed allegedly discriminatory policies or practices, has filed a charge with the Equal Employment Opportunity Commission, or because of that person's participation in or cooperation with the initiation, investigation, litigation or administration of this case or this Decree.\n(iii) The County shall use non-discriminatory employment policies designed reasonably to accommodate the good faith religious observances, practices and/or beliefs of employees in the County's Parks and Recreation Department, as per countywide policy CW-P-027, Reasonable Accommodation of Religious Practices.\n(iv) The County shall provide additional training with respect to Title VII's prohibitions against employment discrimination based on religion and retaliation to its Parks and Recreation Department supervisory personnel who are involved in the hiring and selection procedure, evaluation ofjob performance, discipline and scheduling of Parks and Recreation Department employees. A description of the training shall be submitted to counsel for the United States within three months from the date of entry of .this Decree.\n(v) Within thirty days after the date of entry of this Decree, the County shall post notices of the settlement of this lawsuit in the form attached hereto as\n3\n·-····-··--·---------\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 4 of 19\n\nAppendix A. Such notices shall be posted in a prominent and conspicuous\n\nlocation or locations used for posting notices at the County's Parks and\n\nRecreation Department. Such notices shall remain posted for a period of\n\n90 days from the date of Entry of this Decree.\n\nB. SPECIFIC REMEDIAL RELIEF\nThe United States aileges that the County failed or refused reasonably to accommodate Stewart's religious observance, practice and/or belief of attending Church and refraining from work on Sundays, and constructively discharged Stewart because ofhis religious observance, practice and/or belief. The County denies all allegations. However, without admitting the · allegations of the United States, and in settlement ofthe claim of the United States for relief on behalf of Stewart, as well as in settlement of the claim of Stewart if he accepts the reliefprovided\n\nhim by this Decree, the County agrees to the following:\n1. The County shall offer Stewart reinstatement in the part-time position (20 hours per week) of Park Ranger in the County's Parks and Recreation Department with a remedial · seniority date in that position for all purposes ofMay 17,2003 (the date he was hired as a parttime Park Ranger by the County). If Stewart elects to accept the County's offer of employment, he shall be allowed to begin work for the County as a part-time Park Ranger in the Parks and Recreation Department no later than sixty (60) days after the County's receipt of the fully\n\nexecuted release and election form, as set forth in Appendix C.\n\n2.\n\n·.>\nThe\n\nCounty\n\nshall\n\noffer\n\nto\n\npay\n\nStewart\n\na\n\nmonetary\n\naward\n\nin\n\nthe\n\namount\n\nof\n\n$31,540,\n\nwhich includes $29,629 in back pay and $1,911 in accumulated interest on the back pay. The\n\nportion ofthis amount attributable to back pay shall be subject to income tax withholding and\n\n4\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 5 of 19\nFICA. The County shall separately pay the appropriate employer's contribution to the Social Security fund due on the back pay portion of the monetary award; i.e., the employer's ·contribution shall not be deducted from the monetary award to Stewart.\n3. The County shall offer to accommodate Stewart's request for a work schedule allowing him to refrain from work on Sundays.\n4. The County shall offer to expunge from Stewart's personnel files and any other County files any negative references pertaining to Stewart's request for a religi.ous accommodation and his subsequent cessation of employment with the County. In order to accomplish this objective, the County shall submit to the United States, within thirty (30) days from its receipt of the executed Release from Stewart pursuant to Paragraph B.8. of this Consent Decree, a copy of the personnel file of Stewart and copies of any and all other relevant files and documents pertaining to Stewart. Upon identification by the United States of the appropriate documents, the County shall expunge such documents from its records and files. For the purposes of this specific provision of the Consent Decree, and with respect only to this specific provision of the Consent Decree, the Court hereby orders that Art. I, s.24, of the Florida Constitution, Chapter 119 and 257, Florida Statutes, and any other state or local law, statute or ordinance that prohibits, or may be construed to prohibit, the removal and destruction of such records pertaining to Stewart from the County's files, shall be suspended in their application. The Court further orders that this suspension shall remain in effect only so long as is necessary to effectuate this specific provision of the Consent Decree.\n5\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 6 of 19\n5. The County shall issue to Stewart, ifhe accepts the monetary relief offered to him pursuant to this Decree, appropriate IRS forms that reflect the monetary relief.\n6. The County shall notify Stewart of the terms of this Consent Decree within seven (7) days of its date of entry by mailing to him in care ofhis counsel, by certified mail, return · receipt requested, a copy of the letter in the form set forth in Appendix B and enclosing a copy of this Decree and a copy ofthe Release and Election form in the form set forth in Appendix C. The letter identified as Appendix B will inform Stewart that in order to accept the relief offered to him, he must return the Appendix C Release and Election form to the County within forty-five (45) days ofhis receipt ofthe Appendix B letter.\n7. In order to accept the specific relief to be offered by the County under this Decree, Stewart must execute a Release and Election form in the manner attached as -Appendix C.\n8. The County shall pay to Stewart the monetary award specified in Paragraph B.2. of this Decree, after appropriate deductions are made, within fifteen (15) days of its receipt of the executed Appendix C Release. The payment shall be made payable to Stewart and sent to Stewart in care of his counsel:\nArthur T. Schofield, Esq. 300 Clematis Street, Suite 207 West Palm Beach, Florida 33401 9. If Stewart elects to accept the County's offer of employment, that is, reinstatement to the position ofpart-time Park Ranger in the County's Parks and Recreation Department with remedial seniority, the County shall contribute its full share to any pension plan Stewart would have been in ifhe had been employed as a part-time Park Ranger by the County for the period of\n6\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 7 of 19\n\ntime between August 27, 2005 and such time as Stewart begins working again in a part-time Park Ranger position in the Parks and Recreation Department. Stewart's monetary award shall not be reduced by the County's pension plan payments; however, any contribution Stewart would have made to a deferred compensation or pension plan during this period shall be paid into the plan from the back pay portion ofhis monetary award defined in B.2. above, if Stewart elects to\n\naccept the County's job offer. 10. Stewart need not accept the job opportunity relief in order to obtain the monetary\n\naward defined in B.2. above.\n\nC. RECORD-KEEPING AND REPORTING 1. The County shall retain duriri.g the life of this Decree records necessary to\ndocument the implementation of this Decree. The County shall furnish records and documents relevant to its compliance with the implementation of this Decree to counsel for the United States\n\nwithin thirty (30) days of any written request to the County's attorney.\n\n2.\n\nThe County shall provide written notice to counsel for the United States of any\n\ndisciplinary or other adverse employment action proposed or taken against Stewart during the life\n\nof this Decree promptly after such action is proposed or taken. The United States shall have the\n\nright to inspect and copy all documents related to such action upon reasonable notice to the\n\nCounty without further order of this Court. 3. The County shall retain all records that come into its possession relating to\ncomplaints or charges of employment discrimination based on religion or retaliation that may be filed against the County or an employee, agent or representative of the County and pertaining to an employee or applicant for employment in the Parks and Recreation Department: (a) through\n\n-7-\n\n-·------\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 8 of 19\nthe Co.unty's iritemal grievance procedure; (b) with the United States Equal Employment Opportunity Commission; or (c) through or with any other federal, state or local agency authorized to receive such complaints. The County shall provide copies of such complaints or charges to counsel for the United States within twenty (20) days of its receipt of such complaints or charges. In addition, the United States shall have the right to inspect and copy all documents related to such complaints or charges upon reasonable notice to the County without further order ofthis Court.\nD. DISPUTE RESOLUTION\nThe parties shall attempt to resolve informally any dispute that may occur under this Consent Decree. The parties shall engage in good faith efforts to resolve the issue before seeking action by the Court. Ifthe parties are unable expeditiously to resolve the issue, either party may move the Court for resolution, provided that written notice is first provided to the other party.\nE. JURISDICTION OF THE COURT\n1. During the life of this Decree, the Court shall retainjurisdiction over this Decree for the purposes of enforcing its provisions, resolving any disputes that may arise between the parties under it and entering such orders as may be appropriate.\n2. This Decree shall terminate two (2) years from the date of its entry wjthout further order of the Court.\nF. COSTS\nThe parties shall bear their own costs in this action, including attorney's fees.\n-8-\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 9 of 19\n\nG. SCOPE OF DECREE\n\nThis Consent Decree sets forth the entire agreement between the United States and the\n\nCounty, and supercedes all other negotiations, representations or agreements, either written or\n\noral, between the United States and the County.\n·-a DONE AND ORDERED this c5l. 2 day of ftO ~- 11 .s·-;-·\n\n,2007.\n\nUNITED STATES DISTRICT JUDGE\n\n-9-\n\n-------------\n\n-~----·----\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 10 of 19\n\nAgreed and Consented to:\n\nOn behalf of Plaintiff The United States of America:\n\nOn behalf of Defendant The County of Palm Beach Florida:\n\nWAN J.KIM Assistant Attorney General Civil Rights Division\n\n~ALMER ~C ~~ ~-~ j_-l7BarNo. 417834) Chief WILLIAM B. FENTON (DC BarNo. 414990) Deputy Chief JEFFREY G. MORRISON (MO Bar No. 44401) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4613 Washington, DC 20530 Telephone: (202) 353-1845 Facsimile: (202) 353-8961\nR. ALEXANDER ACOSTA United States Attorney 99 N. E. 4th Street, 3rc1 Floor\nMiami, Florida 33132\nTelephone: (305) 961-9327 Facsimile: (305) 530-7139 Attorneys for the ~nited States of America\n\nR~\n. Palm Beach County Administrator 301 N. Olive Avenue West Palm Beach, Florida 33401\nApproved as to Form and Legal Sufficiency:\nt3/vJC---\nERNEST CHASSEUR (FL Bar No. 0975052) Assistant County Attorney Palm Beach County Attorney's Office 301 N. Olive Avenue, Ste. 601 West Palm Beach, Florida 33401\n\n-10-\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 11 of 19\n\nAPPENDIX A NOTICE OF SETTLE:MENT OF EMPLOYMENT DISCRIMINATION LAWSUIT\n\nOn\n\n, 2007, the United States filed a complaint in the United States District\n\nCourt for the Southern District of Florida, against the County of Palm Beach, Florida (\"County\")\n\nunder Title Vll of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (\"Title\n\nVII\"), alleging that the County had discriminated against a former Parks and Recreation\n\nDepartment employee on the basis ofthat employee's religion by failing or refusing reasonably to\n\naccommodate the employee's religious observance, practice and/or belief, and by constructively\n\ndischarging that employee.\n\nThe County has denied all allegations of discrimination.\n\nThis notice is being posted to announce that the United States and the County have\n\nresolved this lawsuit by entering into a settlement agreement, called a \"Consent Decree,\" which\n\nwas approved by the Court on\n\n2007.\n\nUnder the terms ofthe Consent Decree, the County has agreed to do the following:\n\n1.\n\nTo not engage in any act or practice that has the· purpose or effect of unlawfully\n\ndiscriminating against any employee or potential employee in the Parks and\n\nRecreation Department because ofthat individual's religion including, but not\n\nlimited to, failing or refusing reasonably to accommodate an employee's good\n\nfaith religious observance, practice and/or belief.\n\n2.\n\nTo not unlawfully retaliate against or in any respect adversely affect any person\n\nbecause that person has opposed alleged discriminatory policies or practices by\n\nthe County or because of that person's participation in or cooperation with the\n\ninitiation, investigation, litigation or administration of this action or this Decree.\n\n3.\n\nTo use nondiscriminatory employment policies designed reasonably to\n\naccommodate the good faith religious observances, practices and/or beliefs of\n\nemployees in the Parks and Recreation Department, as per countywide policy\n\nCW-P-027, Reasonable Accommodations ofReligious Practices.\n\n· 4.\n\nTo provide additional training with respect to Title Vll's prohibition against\n\nemployment discrimination based on religion and retaliation to Parks and\n\nRecreation Department supervisory employees.\n\n5.\n\nTo retain all records that come into its possession relating to complaints or\n\ncharges of employment discrimination based on religion or retaliation filed\n\nagainst the County or an employee, agent or representative of the County and\n\npertaining to an employee or applicant for employment in the Parks and\n\n-11-\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 12 of 19\nRecreation Department: (a) through the County's internal grievance procedure; (b) with the United States Equal Employment Opportunity Commission; or (c) through or with any other federal, state or local agency authorized to receive such complaints.\nIf any employee in the County's Parks and Recreation Department believes that he or she has been discriminated against in violation of Title VTI, the employee should contact the U.S. Equal Employment Opportunity Commission (\"EEOC\") and/or the Florida Commission on Human Relations about filing a charge of discrimination.\nThe EEOC's address is:\nEqual Employment Opportunity Commission One Biscayne Tower 2 South Biscayne Blvd., Suite 2700 Miami, Florida 33131 1-800-669-4000 The Florida Commission on Human Relation's address is:\nFlorida Commission oil Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 (850) 488-7082\nIf any employee believes that any term(s) ofthe Consent Decree has (have) been violated, the employee should contact the following Department of Justice attorney:\nJeffrey G. Morrison U.S~ Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 353-1845\n-12-\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 13 of 19\n\n[Date]\nMr. William J. Stewart, II In care of Arthur T. Schofield, Esq.\n300 Clematis Street, Suite 207 West Palm Beach, Florida 33401\n\nAPPENDIXB NOTICE LETTER\n\nRe: United States v. Palm Beach County, Florida\n\nDear Mr. Stewart:\n\nfcihleadrgbeyoAtfhCdeioUsncnrsiiemtnetdinDSaettiacotreneseyaohguaasfinbilseetedtnhweeintChteotruhenedtUyse.oSttf.liPEnagqlmuaac·lBoEemmacpphlla,oiFnyltmoorefindetamO(p\"pClpoooyurmtnuetnyni\"tt)ydbiCsacosremidmmoiinnsasttihiooenn.\n\nUnder the terms of the Consent Decree entered on United States ofAmerica v. Palm Beach County, Florida, Fla.), you are being offered certain relief as settlement for\n\n_ _ _ _ ___. 2007, in\nCivil Action No. your claim of employment\n\nthe\n\ncase of (S.D.\n\ndiscrimination against the County based on your EEOC charge.\n\nFirst, as ~monetary award, you are being offered $31,540, which includes $29,629 in back pay and $1,911 in accumulated interest on the back pay.\n\ntfCsC6tPibDhhohtc0eosaooerihegsurwupfdePakniundlaalenaeltlRtyruvyrlytpwtsktle)amSseeuw.sronhaerr,et.rgfaacipThntkalrenooelahItenirdn.rsntfaiybtedstgywlRoYhslc,ypooiaeeoyaoooultwgcnnlhouCsfraetnyeuireyroiltMoniamepioCaubottceurianiuoontiennoyntttnutnsyibiooacenosi1'elDostrtnp7uabiayennra,ecdeyrsefrcpg2ypieuooctne0al-muaowergaptr0wifittwnteop3mfmohaetrtyofeehe(rrkefomoutdeepenhPuofdlreptwCedatenrwlrohrdoidoiheSkleofouayialtuntdoutRfnmvnhensulteooeaytddelyyalnftomanC'yothtsgbuyetiuaoaeemmseoawvdux.rwsfreeenefepieIeaenttcbotdbhfyrrotupeseueyioytoaietncaeothworfnfeidutiodPtued-rehirnetmreaaneieebfdcrmnlwlephyempceralAqeaieaartostduphesrBPhyuteadteemyga-etsttphcraoCuahtieknaeomeucsenodrdtmhRPtbeuto2,-waeaaepnfpt7tclfrneiehtoi,eekmcyntngecsr2soh'seeiste0CmotairaamipoP0tfnoobminer5aepdounyenr,omflnnmRksoooaadtpioynreeRyfaodlmrdcedtPonaasirdpiyahotneaspeeermanuagalnlnklsnactesclefsiRohenroaloniconorbantpotlpsii,naynaanomaettgyptrrdethwrethimelrei-twaeorbytateinhruisimndkntatyhtaeensto;eu\n\n-------·--\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 14 of 19\n\nduring this period shall be paid into the deferred compensation or pension plan from your monetary award, ifyou elect to accept the County's job offer.\n\nThird, the County is offering to expunge from your personnel files and any other County files any negative references pertaining to your request for a religious accommodation and your subsequent cessation of employment with the County.\n(\nThis relief is being offered to you on the following condition: ifyou accept the relief, the County will require you to release it from all employment discrimination claims you may presently have against it on the basis of your religion arising out of this case and EEOC Charge No. 150-2005-04068. If you decline the relief, the County will nevertheless have satisfied its obligation to the United States pursuant to the Consent Decree in the above-captioned case and the United States will not seek additional relief for you.\n\nYou do not have to accept the job opportunity relief in order to accept the monetary awards. However, in order to obtain the offered relief, or any part of it, you must complete and return the enclosed Release and Election form. The Release must be signed in the presence of a\nnotary public and thereafter notarized.\n\nIf you accept the offered relief, the County will send you in care of your counsel the appropriate monetary award within fifteen (15) days of its receipt of your Release. The County will also send you appropriate IRS forms with respect to the monetary award.\n\nIF YOU FAIL TO SUBMIT THE RELEASE AND ELECTION FORM, AS DIRECTED IN TIDS LETTER, WITIDN FORTY-FIVE (45) DAYS FROM YOUR RECEIPT OF THIS LETTER IN CARE OF YOUR COUNSEL, YOU WILL FORFEIT YOUR RIGHTS TO ANY MONETARY OR OTHER RELIEF uNDER THE CONSENT\nDECREE.\n\nA copy of the Consent Decree is enclosed. If you have any questions concerning this settlement, you may contact Jeffrey Morrison, attorney for the United States Department of Justice, at (202) 353-1845.\nSincerely,\n\nEnclosures\n\nErnest Chasseur Attorney for Palm Beach County, Florida\n\n-2-\n\n--------------- -----··\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 15 of 19 ~--\n\nAPPENDIXC RELEASE\n\nKNOW ALL PERSONS BY THESE PRESENTS:\n\nThat the Undersigned, 'WaLIAM J. STEWART IT (hereinafter referred to as \"the\n\nRELEASOR\"), being of lawful age, for the sole consideration set forth in the terms and\n\nprovisions in Section B of the accompanying Consent Decree entered by the Honorable\n\n_ _ _ _ _ _ _ ____,United States District Judge, on\n\n2007, in United States\n\nofAmerica v. Palm Beach County, Florida, Civil Action\n\n(S.D. Fla.),\n\ndoes hereby and for his executors, administrators, successors and assigns, release acquit and\n\nforever discharge Palm Beach County (hereinafter referred to as \"the COUNTY''), and its former\n\nand current Board of County Commissioners, officers, agents, employees, heirs, executors,\n\nadministrators, successors and assigns, none of whom admit any liability to the RELEASOR, but\n\nall ofwhom expressly deny any such liability, from any and all claims, actions, demands,\n\ncomplaints, grievances, charges, causes of action, or suits of any kind or nature whatsoever,\n\nwhether cognizable in law or in equity, filed or brought, or to be filed or brought, in any\n\nadministrative agency, court or other forum, alleging employment discrimination based on\n\nreligion, or retaliation arising from any allegation of employment discrimination based on\n\nreligion, that accrued at any time prior to\n\n, 2007 [Date of entry of Consent\n\nDecree by the Court], and EEOC Charge No. 150-2005-04068.\n\nFURTHERMORE, the RELEASOR understands and agrees that with respect to the claims he is waiving herein, that he is waiving not only his right to recover money or any other ·reliefin any action or claim that he might institute, but also that he is waiving his right to recover · money or any other relief in any action or claim that might be brought on his behalf by any other person or entity, including but not limited to the EEOC or any other federal, state or local govenunent agency or department, to the extent such waivers are permitted by law.\nFURTHERMORE, the RELEASOR agrees that each party shall bear that party's own costs and attorney fees.\nFURTHERMORE, the RELEASOR understands and agrees that this settlement is the compromise of a disputed claim, and that the payment made shall not be construed as an admission of liability on the part of the COUNTY, and that the COUNTY denies any liability therefor and merely intends to avoid further litigation and buy its peace.\nFURTHERMORE, the RELEASOR hereby declares and represents that no promise, inducement or agreement not herein expressed has been made to the RELEASOR, and that this Release contains the entire agreement between the RELEASOR and the COUNTY, and that the terms ofthis agreement are contractual and not merely a recital.\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 16 of 19\n\nFURTHERMORE, the RELEASOR hereby declares that a copy ofthe Consent Decree\nnoted above ·has been made available to him, and that the RELEASOR, with the assistance of\ncounsel of his own choosing, has completely read and fully understands its terms and provisions.\n\nTHE RELEASOR hereby declares that the RELEASOR, with the assistance of counsel of\n\nhis own choosing, has completely read, fully understands and voluntarily accepts the foregoing\n\nRelease for the purpose of making a :full and final compromise settlement of any and all claims,\n\ndisputed or otherwise, and for the express purpose of precluding forever any further or additional\n\nclaims against the COUNTY, arising out of any allegation of employment discrimination based\n\non religion, that accrued at any time prior to\n\n2007 [Date of entry of\n\nConsent Decree by the Court] and EEOC Charge No. 150-2005-04068.\n\nIN WITNESS HEREOF, I, WILLIAM J. STEWART II, have hereunto set my hand and\n\nseal this _ _ day of\n\n2007.\n\nIN THE PRESENCE OF:\n\nWITNESS\n\nWILLIAM J. STEWART II\n\nPrint Name\n\n-2-\n\n\f.. Case 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 17 of 19\n\nSTATE OF FLORIDA COUNTY OF PALM BEACH\n\n) ) ss. )\n\nThe forgoing Release was aclmowledged before me, an officer duly authorized in the\n\nState and County aforesaid, to take acknowledgments, this\n\nday of_ _ _ _ __,\n\n2007, by\n\nwho:\n\n[ ] is personally known to me; OR\n[] has p r o d u c e d - - - - - - - - - as identification; and who\n[ ] did take an oath; OR [ ] did not take an oath,\n\nand who executed the within Release, and who acknowledged the within Release to be freely and voluntarily executed for the.purposes therein recited.\n\n[seal]\n\nNotary Public in and for Palm Beach County, Florida\nMy commission expires: _ _ _ _ __\n-3-\n\n\f.. Case 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 18 of 19\nELECTION FORM\nPlease complete by checking the appropriate response to each ofthe following: A. Monetary A~ard _ _ I hereby accept the monetary award totaling $31,540 contained in Section B.2. ofthe Consent Decree in United States ofAmerica v. Palm Beach County, Florida, Civil Action No. _ _ _ (S.D. Fla).\nB. Job Offer Award _ _ I hereby accept the offer of a part-time Park Ranger position with the County of Palm Beach, Florida, in its Parks and Recreation Department with remedial seniority and the religious accommodation contained in the Consent Decree in United States ofAmerica v. Palm Beach County, Florida, Civil Action No. _ _ _ _ (S.D. Fla).\nI decline the job offer award.\nDate_ _ _ _ _ _ _ _ _ S i g n a t u r e : - - - - - - - - - -\n-4-\n\n\fCase 9:07-cv-80713-KAM Document 5 Entered on FLSD Docket 08/27/2007 Page 19 of 19\nTO RECEIVE EITHER AWARD, YOU MUST ALSO COMPLETE AND RETURN THE ENCLOSED RELEASE. FAILURE TO RETURN BOTH FORMS WITHIN FORTY-FIVE (45) DAYS MAY RESULT IN YOUR FORFEITURE OF THE AWARDS. RETURN THE COMPLETED FORMS IN THE ENCLOSED ENVELOPE ADDRESSED TO:\nErnest Chasseur, Esq. Assistant County Attorney Palm Beach County Attorney's Office 301 N. Olive Avenue Suite 601 West Palm Beach, Florida 33401\n-5-\n- - - - - - - - - - - - - - - · · · --····--·-··-\n\n\f", "U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:07-cv-80713-KAM\n\nUNITED STATES OF AMERICA v. Palm Beach County, Florida Assigned to: Judge Kenneth A. Marra Cause: 42:2000e Job Discrimination (Employment)\n\nDate Filed: 08/09/2007 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff\n\nPlaintiff UNITED STATES OF AMERICA\n\nrepresented by David J. Palmer U.S. Department of Justice Civil Rights Divison Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4613 Washington, DC 20530 US 202-353-1845 Fax: 202-353-8961 LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nJeffrey G. Morrison U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4613 Washington, DC 20530 US 202-353-1845 Fax: 202-353-8961 LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nVeronica Vanessa Harrell-James United States Attorney's Office 99 NE 4 Street Miami, FL 33132 305-961-9327 Fax: 530-7139 Email: Veronica.HarrellJames@usdoj.gov\n\n\fV. Defendant Palm Beach County, Florida\n\nLEAD ATTORNEY ATTORNEY TO BE NOTICED\nWilliam B. Fenton United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20530 202-514-3168 Fax: 514-1005 LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nDate Filed 08/09/2007 08/09/2007\n08/09/2007 08/16/2007 08/27/2007 08/28/2007\n\n#\n\nDocket Text\n\n1 COMPLAINT against Palm Beach County, Florida , filed by UNITED STATES OF AMERICA.(vt) (Entered: 08/09/2007)\n\n2 Summons Issued as to Palm Beach County, Florida(Assistant County Attorney), Palm Beach County Administrator, Board of County Commissioner (vt) (Entered: 08/09/2007)\n\n3 Civil ACTION CERTIFICATION by United States Attorney (vt) (Entered: 08/09/2007)\n\n4 Order Requiring Joint Scheduling Report,Signed by Judge Kenneth A. Marra on 8/13/07.(lk) (Entered: 08/16/2007)\n\n5 CONSENT DECREE; Signed by Judge Kenneth A. Marra on 08/27/2007.(bs) (Entered: 08/27/2007)\n\n6 ORDER closing case; re 5 Consent Decree; all pending motions are denied as moot; case is closed;Signed by Judge Kenneth A. Marra on 08/27/2007.(bs) (Entered: 08/28/2007)\n\n\f" ]
On August 9, 2007, the United States Department of Justice ("DOJ") filed a lawsuit in the U.S. District Court for the Southern District of Florida under Title VII of the Civil Rights Act of 1964 against the Department of Parks and Recreation in Palm Beach County alleging that the defendant discriminated against an employee on the basis of his religion. Specifically, the DOJ contended that the Department of Parks and Recreation discriminated against a Christian park ranger by failing or refusing to accommodate his religious practice of attending church and refraining from work on Sundays, and for subsequently discharging him for this religious practice. The EEOC investigated the charge and found reasonable cause to believe that allegations of religious discrimination were true, attempted unsuccessfully through negotiation to achieve a voluntary resolution, and subsequently referred the charge to the DOJ. The U.S. sought remedial and injunctive relief. On August 27, 2007, the DOJ and the defendant entered into a consent decree approved by the district court (Judge Kenneth A. Marra). The defendant was enjoined from discriminating against any employee because of that individual's good faith religious observances or practices. The defendant further agreed not to retaliate against the plaintiff or any other employees because they opposed the allegedly discriminatory practices, filed a charge with the EEOC, or cooperated or participated in this case or decree. The defendant was also ordered to reasonably accommodate the religious practices and observances of its employees and to provide training regarding Title VII's prohibition of discriminatory practices to supervisory personnel. With regards to the employee who filed the EEOC complaint, the defendant was ordered to offer the employee reinstatement with remedial seniority and back pay and to accommodate the employee's request for a work schedule that allows him to refrain from work on Sundays. The defendant was also obligated to expunge all negative references for this employee pertaining to his refusal to work on Sundays from their files. In order to accept the remedial relief offered, the employee was required to sign an executed release. Finally, the defendant agreed to furnish records and documents pertaining to their compliance with the decree to the DOJ on request.
EE-CA-0305
[ "2006 WL 1787244\n2006 WL 1787244 (N.D.Cal.) (Trial Pleading) United States District Court, N.D. California.\nSan Francisco/Oakland Division\nJuanita WYNNE and Dante Byrd, on behalf of themselves and classes of those similarly situated, Plaintiffs, v.\nMCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and McCormick & Schmick Restaurant Corp., Defendants.\nNo. C 06 3153 CW. May 11, 2006.\nComplaint for Injunctive, Declaratory Relief, and Damages for Violations of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act\nJames M. Finberg (SBN 114850), Bill Lann Lee (SBN 108452), Jahan C. Sagafi (SBN 224887), Lieff, Cabraser, Heimann & Bernstein, LLP, 275 Battery Street, 30th Floor, San Francisco, CA 94111-3339, Telephone: (415) 956-1000, Facsimile: (415) 956-1008, Email: jfinberg@lchb.com, Email: blee@lchb.com, Email: jsagafi @lchb.com, Robert Rubin (SBN 085084), Diana C. Tate (SBN 232264), The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, 131 Steuart Street, Suite 400, San Francisco, CA 94105, Telephone: (415) 543-9444, Facsimile: (415) 543-0296, Email: rrubin@lccr.com, Email: dtate@lccr.com, Attorneys for Plaintiffs and proposed Classes.\nThomas A. Warren Law Offices, 2032 Thomasville Rd # D, Tallahassee, FL 32308-0734, Telephone: (850) 385-1551, Facsimile: (850) 385-6008, Email: tw @nettally.com, Todd F. Jackson (SBN 202598), Vincent Cheng (SBN 230827), Lindsay Nako (SBN 239090), Lewis Feinberg Renaker & Jackson, P.C., 1300 Broadway, Suite 1800, Oakland, CA 94612, Telephone: (510) 839-6824, Facsimile: (510) 839-7839, Email: tjackson@lewisfeinberg.com, Email: vcheng @lewisfeinberg.com, Email: lnako@lewisfeinberg.com, Gary Lafayette (SBN 088666), Lafayette & Kumagai, 100 Spear Street, Suite 400, San Francisco, CA 94105, Telephone: (415) 357-4600, Facsimile: (415) 357-4605, glafayette @lkclaw.com, Eric Kingsley (SBN 185123), Kingsley & Kingsley, 16133 Venture Blvd., Suite 1200, Encino, CA 91436, Telephone: 818-990-8300, Facsimile: 818-990-2903, Email: kingsleylaw@aol.com, Attorneys for Plaintiffs and the proposed Class Members.\nCLASS ACTION\nDEMAND FOR JURY TRIAL\nIndividual and Representative Plaintiffs Juanita Wynne and Dante Byrd (collectively “Representative Plaintiffs”), on behalf of themselves and all others similarly situated, allege against Defendants McCormick & Schmick’s Seafood Restaurants, Inc. and McCormick & Schmick Restaurant Corp. (hereinafter collectively identified as “McCormick & Schmick’s,” “M&S,” or “the Company”) as follows:\nINTRODUCTORY STATEMENT\n1. Defendant McCormick & Schmick’s is a national restaurant chain that discriminates against African Americans throughout the United States on the basis of race with respect to hiring, job assignment, compensation, promotion to managerial positions, discipline, and other terms and conditions of employment.\n2. M&S has a nationwide corporate policy and practice of preferring white employees over African American employees for “front-of-the-house” positions (i.e., prominent positions such as server, hostess/host and bartender where customers can\n\n\f2006 WL 1787244\neasily see and/or interact with the employees), and management positions in its restaurants and offices throughout the United States. M&S disproportionately hires white employees for, and assigns white employees to, front-of-the-house positions and disproportionately assigns African American employees to back-of-the-house positions (i.e., positions in which employees are less likely to be seen by, heard by, or interact with customers). Those back-of-the-house positions include busser positions, bar back positions, and certain less desirable kitchen positions. The few African Americans assigned to server positions are given less desirable assignments.\n3. M&S discourages applications from African American applicants for “front-of-the-house” positions and disproportionately refuses to hire African Americans for such positions. To the extent that M&S hires African Americans, M&S disproportionately channels them to back-of-the-house positions.\n4. When qualified African American applicants (both incumbents and individuals from outside the Company) inquire about employment in the restaurant, managers and other M&S representatives sometimes tell them that the restaurant is not hiring, even though it is. When African American applicants submit applications, managers and other M&S representatives acting at their direction sometimes throw them away without seriously considering them.\n5. Furthermore, promotions are often given preferentially to white workers\n6. M&S hires, assigns, compensates, and promotes individuals using subjective, arbitrary, standardless, and unvalidated criteria, without requiring a formal application process.\n7. In addition, M&S systematically takes adverse employment actions against qualified, high-performing African American employees in front-of-the-house positions by giving them less desirable job assignments, lower pay, fewer promotional opportunities, and more frequent and harsher discipline.\n8. Managers have been instructed by corporate headquarters to “clean up the restaurant,” meaning to hire fewer African Americans, to keep the African American employees away from front-of-the-house positions, and to subject African American employees to harsher discipline.\n9. This class action is brought by (a) current and former African American non-management employees of M&S throughout the United States; and (b) African Americans who applied to, or were deterred from applying to, M&S at its restaurants or offices in the United States for “front-of-the-house” or management positions, but were not hired.\n10. This action seeks an end to M&S’s discriminatory policies or practices, an award of backpay and front pay, as well as compensatory damages, punitive damages, and injunctive relief, including rightful place relief for all Class members.\nJURISDICTION AND VENUE\n11. This Court has jurisdiction over the First Claim for Relief pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1981.\n12. This Court also has jurisdiction over the First and Second Claims for Relief under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action in which: (1) there are 100 or more individuals in each proposed Class; (2) at least some individuals in each proposed Class have different state citizenship from at least one Defendant; and (3) the claims of the proposed Class members exceed $5,000,000 in the aggregate.\n13. In addition, this Court has supplemental jurisdiction under 28 U.S.C. § 1367 over the Second Claim for Relief, because that claim and Plaintiffs’ First Claim for Relief arise from a common nucleus of operative fact.\n14. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.\n15. The Northern District of California has personal jurisdiction over Defendants because they have qualified with the California Secretary of State to do business and are doing business in California, and in this district, and because many of the acts complained of occurred in this State and this District and gave rise to the claims alleged herein.\n\n\f2006 WL 1787244\n16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because M&S resides in this district and because a substantial part of the events giving rise to the claims alleged herein occurred in this District. M&S operates restaurants in San Francisco, Berkeley, and San Jose.\n17. Pursuant to N.D. Cal. Local Rule 3-2(c) and (d), intradistrict assignment to the San Francisco / Oakland Division is proper because a substantial part of the events giving rise to the claims presented in this Complaint occurred in Alameda County.\nPARTIES\n18. Plaintiff Juanita Wynne is an African American resident of Berkeley, California. She has repeatedly been denied desirable shifts and work stations, inappropriately disciplined for insignificant infractions, and had her number of shifts (and pay) cut approximately in half at Spenger’s Fresh Fish Grotto restaurant in Berkeley, California, owned and operated by M&S, when similarly situated whites were treated more fairly.\n19. Plaintiff Dante Byrd is an African American resident of Oakland, California. He twice applied for and was denied a position as a bartender at Spenger’s Fresh Fish Grotto restaurant in Berkeley, California, owned and operated by M&S, despite having a diploma from a bartending school and more than seven years of bartending experience, and even though whites who were not more qualified were hired.\n20. Defendant McCormick & Schmick’s Seafood Restaurants, Inc. is headquartered in Portland, Oregon and is incorporated in Delaware.\n21. Defendant McCormick & Schmick Restaurant Corp. is a subsidiary of McCormick & Schmick’s Seafood Restaurants, Inc.\n22. McCormick & Schmick’s is a nationwide restaurant company that owns and operates approximately 61 upscale casual-dining restaurants. McCormick & Schmick’s operates its restaurants under various names, including McCormick & Schmick’s Seafood Restaurant, McCormick’s Fish House & Bar, M&S Grill, Spenger’s Fresh Fish Grotto, The Heathman Restaurant, Jake’s Famous Crayfish, and Jake’s Grill. Although each restaurant may use different menus, different layouts, and/or different marketing approaches, they all follow the same human resources policies and practices, participate in the same discrimination, and are run by the same corporate management. African American applicants to and employees of each restaurant owned or operated by M&S in the United States, however denominated, are included in the proposed Classes.\nCLASS ACTION ALLEGATIONS\n23. The Representative Plaintiffs bring this Class Action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalf of the following two Classes: (a) All African Americans who since May 11, 2002 have been employed by, are employed by, or will in the future be employed by McCormick & Schmick’s in non-management positions (“Employee Class”); and\n(b) All African Americans who since May 11, 2004 have applied for, or been deterred from applying for, server, host/hostess, bartender, or management positions (including chef/sous chef) with McCormick & Schmick’s and were not hired for those positions (“Applicant Class”).\n24. Plaintiff Wynne is a member of, and seeks to represent, the Employee Class. Plaintiff Byrd is a member of, and seeks to represent, the Applicant Class.\n25. The members of each Class identified herein are so numerous that joinder of all members is impracticable. The number of Class members is currently indeterminate, but, on information and belief, is larger than can be addressed through joinder. As of December 2005, McCormick & Schmick’s employed approximately 5,401 employees. Each of McCormick & Schmick’s roughly 61 restaurants employs very few African American employees in front-of-the-house positions, but each restaurant,\n\n\f2006 WL 1787244\non average, annually receives numerous applications from qualified African Americans who are potential front-of-the-house employees. Furthermore, as a result of McCormick & Schmick’s systematic discriminatory hiring and job assignment practices, on information and belief, a significant number of qualified African American applicants have also been deterred from applying for front-of-the-house and management positions. Thus, although the precise number of qualified African American applicants who are not hired and/or who are fired or otherwise discriminated against is currently unknown, it is far greater than can be feasibly addressed through joinder.\n26. There are questions of law and fact common to the Classes. Common questions include, among others:\na. whether McCormick & Schmick’s policies or practices result in disparate impact adverse to African American employees and applicants;\nb. whether McCormick & Schmick’s discriminatory policies and practices are intentional;\nc. whether McCormick & Schmick’s policies or practices violate 42 U.S.C. § 1981;\nd. whether McCormick & Schmick’s policy and practice violates FEHA, as to Class Members who have been employed by M&S in, or who reside in, California; and\ne. whether compensatory and punitive damages, injunctive relief, and other equitable remedies (including backpay and front pay) for the Classes are warranted.\n27. The Representative Plaintiffs’ claims are typical of the Classes’ claims.\n28. The Representative Plaintiffs will fairly and adequately represent and protect the interests of the members of the Classes. The Representative Plaintiffs have retained counsel competent and experienced in complex class actions and employment discrimination litigation.\n29. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because McCormick & Schmick’s has acted and/or refused to act on grounds generally applicable to the Classes, making appropriate declaratory and injunctive relief with respect to the Representative Plaintiffs and the class as a whole. The Class members are entitled to injunctive relief to end McCormick & Schmick’s common, uniform, and unfair racially discriminatory employment policies and practices.\n30. Class certification is also appropriate pursuant to Fed. R. Civ. P. 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 McCormick & Schmick’s common, uniform, and unfair racially discriminatory employment policies and practices. McCormick & Schmick’s has computerized payroll and personnel data that will make calculation of damages for specific Class members relatively simple.\nCLAIMS OF THE REPRESENTATIVE PLAINTIFFS\nJuanita Wynne\n31. Plaintiff Juanita Wynne is an African American resident of Berkeley, California, and current employee of McCormick & Schmick’s. She has been employed as a server at Spenger’s Fish Grotto in Berkeley, California, since approximately November 1999. During approximately 2002-03, her shifts and pay were cut approximately in half, whereas the shifts and pay of white servers were not so cut. Ms. Wynne has been also denied desirable shifts and stations, and she was disciplined for insignificant infractions, while white employees were not so disciplined.\n32. Ms. Wynne is currently the only African American server on staff at the restaurant.\n33. Ms. Wynne has observed that McCormick & Schmick’s tends to seat African American customers at the back of the restaurant, where they are less visible to the rest of the public.\n\n\f2006 WL 1787244\n34. On or about May 3, 2005, Ms. Wynne filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). On or about June 30, 2005, she filed an amended charge of discrimination with the EEOC. She received a copy of her Notice of Right to Sue from the California Department of Fair Employment and Housing (“DFEH”), dated April 25, 2005. Attached to this Complaint as Exhibit A and incorporated by reference are copies of those charges and that notice. The EEOC is currently investigating Ms. Wynne’s charge and has not issued a Notice of Right to Sue to Ms. Wynne. Plaintiffs intend to seek leave to amend the complaint to add a classwide cause of action under Title VII of the Civil Rights Act of 1964 on behalf of Ms. Wynne once the Notice of Right to Sue is issued, and to propose Ms. Wynne as a Class Representative for the Employee Class for relief under Title VII.\nDante Byrd\n35. Plaintiff Dante Byrd is an African American resident of Oakland, California, and applicant to McCormick & Schmick’s.\n36. In November 2004, Mr. Byrd applied to become a bartender at M&S’s Spenger’s Fish Grotto in Berkeley. He was interviewed by the General Manager/Bar Manager, a non-African American male. Mr. Byrd thought the interview went well, but he never heard back about the job.\n37. In January 2005, Mr. Byrd learned that McCormick & Schmick’s was again seeking applications from bartenders, so he applied again. He was interviewed by the same non-African American male and by a white female. He was invited to come back and work the bar for a test shift. He did so, working for approximately 4-5 hours. The General Manager/Bar Manager told Mr. Byrd that he had done a good job on this test shift. Mr. Byrd was never paid for this work. He never heard back about the job.\n38. At the time, Mr. Byrd had seven years of experience as bartender, plus a year of attendance and graduation from bartender school. Since being denied employment at McCormick & Schmick’s, Mr. Byrd has applied for and been hired by a comparable restaurant in Oakland, California.\n39. On or about June 29, 2005, Mr. Byrd filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). He received a copy of his Notice of Right to Sue from the California Department of Fair Employment and Housing (“DFEH”), dated July 6, 2005. Attached to this Complaint as Exhibit B and incorporated by reference are copies of that charge and that notice. The EEOC is currently investigating Mr. Byrd’s charge and has not issued a Notice of Right to Sue to Mr. Byrd. Plaintiffs intend to seek leave to amend the complaint to add a classwide cause of action under Title VII of the Civil Rights Act of 1964 on behalf of Mr. Byrd once the Notice of Right to Sue is issued, and to propose Mr. Byrd as a Class Representative for the Applicant Class for relief under Title VII.\nGENERAL POLICIES OR PRACTICES OF DISCRIMINATION\n40. The denials and abridgments of employment opportunities suffered by the Representative Plaintiffs are part of a general policy or practice of discrimination on the basis of race in employment that has existed at McCormick & Schmick’s since at least May 10, 2002. These are not isolated employment practices or individual decisions. On the contrary, these incidents are representative of McCormick & Schmick’s systematic discrimination against African Americans and in favor of white applicants and employees, to create an overwhelmingly white image to the public.\n41. The under-representation of African Americans in front-of-the-house positions throughout McCormick & Schmick’s approximately 61 restaurants in the United States results from a policy and practice of discrimination on the basis of race in hiring, job assignment, compensation, promotion to managerial positions, discipline, and other terms and conditions of employment.\n42. McCormick & Schmick’s has pursued policies or practices on a continuing basis that have denied or restricted job opportunities to qualified African American applicants and employees.\n43. Such discriminatory policies or practices include, without limitation:\n\n\f2006 WL 1787244\na. reliance on subjective, arbitrary, standardless, and unvalidated criteria in making hiring and job assignment decisions, focusing on whether applicants and employees properly reflect the preferred white look and image rather than whether they would be responsible, effective, diligent employees who could perform their jobs well; b. reliance on subjective, arbitrary, standardless, and unvalidated criteria in making decisions in compensation, shift, and weekly hour allocations, focusing on whether applicants and employees properly reflect the preferred white look and image rather than whether they would be responsible, effective, diligent employees who could perform their jobs well; c. shunting African American applicants and employees to back-of-the-house positions where they are out of the public eye and/or do not interact with the public; d. offering and providing African American employees with fewer hours and/or less desirable job duties and/or assignments than their white counterparts; e. targeting white candidates for recruitment for front-of-the-house positions, but avoiding, ignoring, discouraging or dissuading equally qualified African Americans from applying for those positions; f. subjecting front-of-the-house African American employees to harsher discipline based on their race without regard to their performance on the job; and g. failure to promote African American employees to managerial positions. 44. M&S acted or failed to act as herein alleged with malice or reckless indifference to the protected rights of Plaintiffs and the Class members. Plaintiffs and the Class members are thus entitled to recover punitive damages in an amount to be determined according to proof.\nFIRST CLAIM FOR RELIEF\n(Federal Civil Rights, 42 U.S.C. § 1981) (Brought by the Representative Plaintiffs on behalf of a nationwide Class) 45. Plaintiffs incorporate paragraphs 1 through 43, as alleged above. 46. This claim is brought by the Representative Plaintiffs on behalf of themselves and the Classes they represent. 47. McCormick & Schmick’s has maintained an intentionally discriminatory system with respect to hiring, job assignment, compensation, promotion to managerial positions, discipline, and other terms and conditions of employment. 48. The foregoing conduct constitutes illegal intentional discrimination with respect to the making, performance, modification, and termination of contracts prohibited by 42 U.S.C. § 1981.\nSECOND CLAIM FOR RELIEF (California Fair Employment and Housing Act, Government Code § 12940 et seq.) (Brought by the Representative Plaintiffs on behalf of a California subclass) 49. Plaintiffs incorporate paragraphs 1 through 43, as alleged above. 50. This claim is brought by the Representative Plaintiffs on behalf of themselves and the subclass of Class members who worked for M&S in California, or resided in California, since May 3, 2004. 51. The Representative Plaintiffs have received copies of their Right to Sue letters from the DFEH. The pendency of the\n\n\f2006 WL 1787244\nEEOC investigations into Plaintiffs’ charges tolled the time limits for filing civil actions pursuant to the Fair Employment and Housing Act. Plaintiffs have therefore timely complied with all prerequisites to suit.\nPRAYER FOR RELIEF WHEREFORE, Plaintiffs and Class members pray for relief as follows: 52. Certification of the case as a class action on behalf of the proposed Classes; 53. Designation of the Representative Plaintiffs as representatives of the Classes; 54. Designation of the Representative Plaintiffs’ counsel of record as Class counsel; 55. A declaratory judgment that the practices complained of herein are unlawful and violate 42 U.S.C. § 1981 and the California Fair Employment and Housing Act, Government Code § 12940 et seq.; 56. A preliminary and permanent injunction against McCormick & Schmick’s and its officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs, and us ages set forth herein; 57. An order that McCormick & Schmick’s institute and carry out policies, practices, and programs that provide equal employment opportunities for all African Americans, and that it eradicate the effects of its past and present unlawful employment practices; 58. An order restoring the Representative Plaintiffs and Class members to their rightful positions at McCormick & Schmick’s, or, in lieu of reinstatements, an order for front pay benefits; 59. Back pay (including interest and benefits) for the Representative Plaintiffs and Class members; 60. All damages sustained as a result of McCormick & Schmick’s conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof; 61. Exemplary and punitive damages in an amount commensurate with McCormick & Schmick’s ability to pay and to deter future conduct; 62. Costs incurred herein, including reasonable attorneys’ fees to the extent allowable by law; 63. Pre-judgment and post-judgment interest, as provided by law; and 64. Such other and further legal and equitable relief as this Court deems necessary, just, and proper. Dated: May 10, 2006\nDEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial on all causes of action and claims with respect to which they have a right to jury trial. Dated: May 10, 2006 Respectfully submitted By: <<signature>> James M. Finberg\n\n\f2006 WL 1787244\nJames M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452) Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: jfinberg@lchb.com Email: blee@lchb.com Email: jsagafi@lchb.com Attorneys for Plaintiffs and the proposed Class Members\n\n\f", "Case 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 1 of 10\n\n1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)\n2 Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP\n3 177 Post Street, Suite 300 San Francisco, CA 94108\n4 Telephone: (415) 421-7151 Facsimile: (415) 362-8064\n5 E-Mail: jfinberg@altshulerberzon.com E-Mail: ecervantez@altshulerberzon.com\n6 E-Mail: revenson@altshulerberzon.com\n\n7 Kelly M. Dermody (SBN 171716)\n\nJahan C. Sagafi (SBN 224887)\n\n8 LIEFF, CABRASER, HEIMANN &\n\nBERNSTEIN, LLP\n\n9 275 Battery Street, 30th Floor\n\nSan Francisco, CA 94111-3339\n\n10 Telephone: (415) 956-1000\n\nFacsimile: (415) 956-1008\n\n11 E-Mail: kdermody@lchb.com\n\nE-Mail: jsagafi@lchb.com\n\n12\n\nAttorneys for Plaintiffs and proposed Classes\n\n13 Additional Counsel Listed on Signature Page of\n\nMotion for Preliminary Settlement Approval\n\n14\n\nUNITED STATES DISTRICT COURT\n\n15\n\nNORTHERN DISTRICT OF CALIFORNIA\n\nOAKLAND DIVISION\n\n16 JUANITA WYNNE and DANTE BYRD,\n\n17\n\non behalf of themselves and classes of those similarly situated,\n\n18\n\nPlaintiffs,\n\n19\n\nv.\n\n20 MCCORMICK & SCHMICK’S\n\n21\n\nSEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK\n\n22 RESTAURANT CORP.,\n\n23\n\nDefendants.\n\n) ) ) ) ) ) ) ) ) ) ) ) ) ) )\n\nCase No. C-06-3153 CW REVISED [PROPOSED] ORDER (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND PROPOSED CONSENT DECREE; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES; (3) APPROVING AND DIRECTING DISTRIBUTION OF NOTICE OF THE SETTLEMENT; AND (4) SETTING A SCHEDULE FOR THE FINAL SETTLEMENT APPROVAL PROCESS\n\n24 25\n\n) ) ) ) )\n\nDATE: TIME: PLACE: JUDGE:\n\nApril 3, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken\n\n26\n\n)\n\n27\n\n28\n\nRevised [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 2 of 10\n\n1\n\nHaving reviewed Plaintiffs’ Motion for an Order (1) Preliminarily Approving Class\n\n2 Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement\n\n3 Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a\n\n4 Schedule for the Final Settlement Approval Process, the Memorandum of Points and Authorities\n\n5 in support thereof, the Declaration of James M. Finberg in support thereof, the proposed Consent\n\n6 Decree, Notice and Claim Form, and the arguments of counsel, along with the files and records\n\n7 of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows:\n\n8 I. PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES\n\n9\n\nA. For settlement purposes, the Parties have proposed provisional certification of the\n\n10 following settlement classes (terms defined in the proposed Consent Decree attached hereto as\n\n11 Exhibit 1):\n\n12\n\n1. For purposes of the injunctive and declaratory relief provided in the\n\n13 Decree, an injunctive-relief settlement class certified under Federal Rules of Civil Procedure\n\n14 23(a) and 23(b)(2) and consisting of “All African Americans employed by McCormick &\n\n15 Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the\n\n16 date the Decree terminates;” (“Front of the House” is defined in Section Section III(O) of the\n\n17 Decree; “Back of the House” is defined in Section III (C) of the Decree).\n\n18\n\n2. For purposes of the monetary relief provided in the Decree, a monetary\n\n19 relief settlement class certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and\n\n20 consisting of: “All African Americans employed by McCormick & Schmick’s in Front of the\n\n21 House or Back of the House positions between May 15, 2002 and the date of the entry of this\n\n22 order, except those who file a timely request to opt out of the monetary relief provisions of the\n\n23 Decree.”\n\n24\n\nB. The injunctive relief and monetary relief settlement classes allege claims for race\n\n25 discrimination brought under the Civil Rights Act of 1964 (both disparate impact and disparate\n\n26 treatment), and 42 U.S.C. § 1981, and those class members who worked in California during the\n\n27 class period allege violations of the California Fair Employment and Housing Act.\n\n28\n\nC. The Court hereby provisionally FINDS and CONCLUDES that the injunctive relief\n\n1 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 3 of 10\n\n1 settlement class set forth above satisfies all of the requirements for certification under Rule 23(a)\n\n2 and Rule 23(b)(2). The class is sufficiently numerous (approximately 3,000 persons) that joinder\n\n3 is impracticable. The members of the class share common issues of fact and law regarding (1)\n\n4 whether McCormick & Schmick’s employment policies and practices were intentionally\n\n5 discriminatory and/or had an adverse impact on African Americans; and (2) whether Title VII or\n\n6 Section 1981 have been violated. Juanita Wynne’s claims are typical of those of the class she\n\n7 represents because they arise out of the same policies, practices and course of conduct alleged on\n\n8 behalf of all class members. Juanita Wynne is an adequate representative of the class she\n\n9 represents, because her interests are co-extensive with those of class members, and she has\n\n10 retained experienced counsel to represent the class. Plaintiffs are seeking meaningful declaratory\n\n11 and injunctive relief applicable to the class as a whole. Accordingly, the Court hereby\n\n12 provisionally CERTIFIES the injunctive-relief settlement class under Rule 23(a) and Rule\n\n13 23(b)(2).\n\n14\n\nD. The Court also hereby provisionally FINDS and CONCLUDES that the monetary\n\n15 relief settlement class described above satisfies all of the requirements for certification under\n\n16 Rule 23(a) and Rule 23(b)(2). As discussed in Paragraph 3, above, the requirements of Rule\n\n17 23(a) - numerosity, commonality, typicality, and adequacy appear to be satisfied. In addition, the\n\n18 Court provisionally concludes that the monetary relief settlement class satisfies the requirements\n\n19 for certification under Rule 23(b)(3). Questions of law or fact common to the class predominate\n\n20 over individualized issues, and a class action is superior to other available methods for the fair\n\n21 and efficient adjudication of the controversy. Because certification of the monetary relief\n\n22 settlement class is proposed in the context of a settlement, the Court need not inquire whether the\n\n23 case, if tried as a class action, would present intractable management problems. Accordingly, the\n\n24 Court provisionally CERTIFIES the monetary-relief settlement class as set forth above, under\n\n25 Rules 23(a) and 23(b)(3).\n\n26 II. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL\n\n27\n\nA. The Court finds that Class Representative Juanita Wynne has claims typical of class\n\n28 members and is an adequate representative of the class members. The Court appoints her to\n\n2 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 4 of 10\n\n1 serve as Class Representatives of both the injunctive relief and monetary relief classes.\n\n2\n\nB. The Court finds that Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein,\n\n3 LLP; the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Thomas A.\n\n4 Warren Law Offices; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; and Kingsley & Kinsgsley\n\n5 have extensive experience and expertise in prosecuting employment discrimination class action\n\n6 cases. The Court appoints these firms as Class Counsel for both the injunctive relief and\n\n7 monetary relief classes.\n\n8 III. PRELIMINARY APPROVAL OF CONSENT DECREE\n\n9\n\nA. The Court has reviewed the terms of the [Proposed] Consent Decree attached as\n\n10 Exhibit 1, including specifically the injunctive relief provisions and the plan of allocation. The\n\n11 Court also reviewed the Motion papers and the declaration of James M. Finberg, which describe\n\n12 Class Counsel’s legal and factual investigation, and the settlement mediation process. Based on\n\n13 review of those papers, and the Court’s familiarity with this case, the Court concludes that the\n\n14 settlement and Consent Decree are the result of extensive, arms’ length negotiations between the\n\n15 Parties after Class Counsel had investigated the class claims and became familiar with the\n\n16 strengths and weakness of plaintiffs’ case. The assistance of an experienced mediator in the\n\n17 settlement process confirms that the settlement is non-collusive. Based on that review, and the\n\n18 Court’s familiarity with the issues in the case, the Court concludes that the proposed Consent\n\n19 Decree has no obvious defects and is within the range of possible settlement approval, such that\n\n20 notice to the Class is appropriate.\n\n21\n\nB. It is therefore ORDERED that:\n\n22\n\n1. The [Proposed] Consent Decree and the settlement it embodies are hereby\n\n23 PRELIMINARILY APPROVED. Final approval and entry of the Consent Decree is subject to\n\n24 the hearing of any objections of members of the Settlement Class to the proposed settlement\n\n25 embodied in the Consent Decree.\n\n26\n\n2. Pending determination of the fairness of the Consent Decree, all further\n\n27 litigation of this action is hereby STAYED.\n\n28\n\n3 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 5 of 10\n1 IV. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS NOTICE AND CLAIM FORM\n2 A. The Parties have also submitted for this Court’s approval a proposed Class Notice and\n3 a proposed Claim Form, which the Court has carefully reviewed. The Court finds and concludes\n4 as follows:\n5 1. The proposed Class Notice is the best notice practical under the\n6 circumstances and allows Class Members a full and fair opportunity to consider the proposed\n7 Settlement. The proposed plan for distributing the Class Notice and Claim Form, which are\n8 attached as Exhibits 2 and 3 hereto, likewise is a reasonable method calculated to reach all\n9 members of the Class who would be bound by the Settlement. Under this plan, the Claims\n10 Administrator will distribute the Class Notice and Claim Form to Class Members, all of whom\n11 are current or former employees of the Company, by first class U.S. Mail to their last known\n12 addresses, as updated by the USPS NCOA service. There is no additional method of distribution\n13 that would be reasonably likely to notify Class Members who may not receive notice pursuant to\n14 the proposed distribution plan.\n15 2. The Class Notice fairly, plainly, accurately, and reasonably informs Class\n16 Members of: (1) the nature of this litigation, the settlement class, the identity of Class Counsel,\n17 and the essential terms of the Settlement and Decree, including injunctive relief and the plan of\n18 allocation; (2) Class Counsel’s forthcoming application for attorneys’ fees, the proposed service\n19 payments to the Class Representative, and other payments that will be deducted from the\n20 settlement fund; (3) how to participate in the Settlement; (4) this Court’s procedures for final\n21 approval of the Settlement Agreement and Settlement, and about class members’ right to appear\n22 through counsel if they desire; (5) how to challenge or opt-out of the Settlement, if they wish to\n23 do so; and (6) how to obtain additional information regarding this litigation, the Settlement, and\n24 the Decree.\n25 3. Similarly, the proposed Notice and Claim Form allow members of the\n26 Settlement Classes a full and fair opportunity to submit a claim for proceeds in connection with\n27 the Settlement. The Notice and Claim Form fairly, accurately, and reasonably inform Settlement\n28\n4 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 6 of 10\n\n1 Class Members that failure to complete and submit a Claim Form, in the manner and time\n\n2 specified, shall constitute a waiver of any right to obtain any share of the settlement payment.\n\n3\n\n4. The Court FINDS and CONCLUDES that the proposed plan for\n\n4 distributing the Notice and Claim Form (“Notice Materials”) will provide the best notice\n\n5 practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due\n\n6 process requirements.\n\n7\n\n5. Accordingly, the Court hereby ORDERS as follows:\n\n8\n\na. The form of the Notice Materials is approved.\n\n9\n\nb. The manner of distributing the Notice Materials is approved.\n\n10\n\nc. Promptly following the entry of this Order, the Claims Administrator\n\n11 shall prepare final versions of the Notice Materials, incorporating into the Notice the relevant\n\n12 dates and deadlines set forth in this Order.\n\n13\n\nd. Within twenty days following entry of this order, McCormick &\n\n14 Schmick’s shall provide the Claims Administrator with computer readable information, in a\n\n15 format acceptable to the Claims Administrator, that contains the full names, social security\n\n16 numbers, last known addresses, position(s) held during the class period, and start dates and any\n\n17 applicable end dates of employment for each position held with McCormick & Schmick’s from\n\n18 May 15, 2002 to the date of the entry of this order of all persons who are potential Settlement\n\n19 Class members.\n\n20\n\ne. Prior to the mailing of the Notice Materials, the Claims\n\n21 Administrator will update any new address information for potential class members as may be\n\n22 available through the National Change of Address (“NCOA”) system.\n\n23\n\nf. Within ten (10) days of the date that the Claims Administrator\n\n24 receives the data described in paragraph (d), above, the Claims Administrator shall mail the\n\n25 Notice Materials, via first class mail, to all known potential settlement class members at their last\n\n26 known address or the most recent address that may have been obtained through the NCOA. The\n\n27 Claims Administrator will trace all returned undeliverable notices and re-mail them to the most\n\n28 recent address available.\n\n5 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 7 of 10\n\n1\n\ng. The Claims Administrator shall take all reasonable steps to obtain\n\n2 the correct address of any Class Members for whom the notice is returned by the post office as\n\n3 undeliverable, and otherwise to provide the Notice Materials to such persons. The Claims\n\n4 Administrator shall notify Class Counsel of any mail sent to Class Members that is returned as\n\n5 undeliverable after the first mailing as well as any such mail returned as undeliverable after any\n\n6 subsequent mailing(s).\n\n7\n\nh. The Claims Administrator shall take all other actions in furtherance\n\n8 of claims administration as are specified in the Decree.\n\n9 V. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT\n\n10\n\nA. Fairness Hearing\n\n11\n\nThe Court hereby schedules a hearing to determine whether to grant final certification of\n\n12 the Settlement Classes, and final approval of the Consent Decree (including the proposed plan of\n\n13 allocation, injunctive relief, payment of attorneys’ fees and costs, and service payments to the\n\n14 Class Representatives) (the “Fairness Hearing”), for July 31, 2008 at 2:00 p.m.\n\n15\n\nB. Deadline to Request Exclusion from the Settlement\n\n16\n\n1. Class members may exclude themselves from, or opt-out of, of the\n\n17 monetary relief provisions of the class settlement. Any request for exclusion must be in the form\n\n18 of a written “opt-out” statement sent to the Claims Administrator. A person wishing to opt-out\n\n19 must sign a statement which includes the following language:\n\n20\n\nI understand that I am requesting to be excluded from the class monetary\n\nsettlement and that I will receive no money from the settlement fund created under\n\n21\n\nthe Consent Decree entered into by McCormick & Schmick’s. I understand that if\n\nI am excluded from the class monetary settlement, I may bring a separate legal\n\n22\n\naction seeking damages, but may receive nothing or less than what I would have\n\nreceived if I had filed a claim under the class monetary settlement procedure in\n\n23\n\nthis case. I also understand that I may not seek exclusion from the class for\n\ninjunctive relief and that I am bound by the injunctive provisions of the Consent\n\n24\n\nDecree entered into by McCormick & Schmick’s.\n\n25\n\n2. To be effective, any opt-out statement must be sent to the Claims\n\n26 Administrator postmarked no later than 60 days after the date that the Claims Administrator first\n\n27 mails the Class Notice to the Class. Only those class members who request exclusion in the time\n\n28 and manner set forth herein shall be excluded from the class for monetary relief purposes.\n\n6 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 8 of 10\n\n1 Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and provisions of the\n\n2 Consent Decree concerning monetary relief shall have no binding effect on any person who\n\n3 makes a timely request for exclusion in the manner required by this Order.\n\n4\n\n3. The Claims Administrator shall stamp the date received on the original of\n\n5 any opt-out statement and serve copies on Class Counsel and counsel for McCormick &\n\n6 Schmick’s no later than two business days after receipt of such statement. Class Counsel will\n\n7 file the date-stamped originals with the Clerk of the Court no later than five (5) business days\n\n8 prior to the date of the Fairness Hearing\n\n9\n\n4. Class members shall be permitted to withdraw or rescind their opt-out\n\n10 statements by submitting a “rescission of opt-out” statement to the Claims Administrator. The\n\n11 rescission of opt-out statement shall include the following language:\n\n12\n\nI previously submitted an Opt-out statement seeking exclusion from the class\n\nmonetary settlement. I have reconsidered and wish to withdraw my Opt-out\n\n13\n\nstatement. I understand that by rescinding my Opt-out I may be eligible to receive\n\nan award from the claims settlement fund and may not bring a separate legal\n\n14\n\naction against McCormick & Schmick’s seeking damages with respect to the\n\nReleased Claims. I further understand that in order to receive an award from the\n\n15\n\nclaims settlement fund, I must submit a complete and timely claim form.\n\n16 To be effective, any opt-out recission statement must sent to the Claims Administrator\n\n17 postmarked no later than the deadline for the claims filing period specified herein.\n\n18\n\n5. The Claims Administrator shall stamp the date received on the original of\n\n19 any rescission of opt-out statement and serve copies on Class Counsel and counsel for\n\n20 McCormick & Schmick’s no later than two business days after receipt of such statement. Class\n\n21 Counsel will file the date-stamped originals with the Clerk of the Court no later than five (5)\n\n22 business days prior to the date of the Fairness Hearing.\n\n23\n\nC. Defendant’s Right to Rescind Agreement\n\n24\n\nMcCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree\n\n25 prior to the Settlement Effective Date if five percent (5%) or more of the Class Members opt-out\n\n26 of the monetary relief provisions of the Consent Decree and do not rescind their opt-out\n\n27 statements. To exercise this option, the Company must inform Class Counsel that it will revoke\n\n28 the Consent Decree within 10 business days of the deadline for postmarking opt out statements.\n\n7 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 9 of 10\n\n1 In the event that McCormick & Schmick’s exercises its unilateral right to revoke the Consent\n\n2 Decree pursuant to this section, all monies in the Settlement Fund, and all income earned\n\n3 thereon, shall be immediately returned to the entity that funded the Settlement Fund.\n\n4\n\nD. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree\n\n5\n\nClass members objecting to the terms of the settlement must do so in writing. To be\n\n6 effective, any objection must be sent to the Claims Administrator postmarked no later than 60\n\n7 days after the date that the Claims Administrator first mails the Class Notice to the Class. The\n\n8 Claims Administrator will record the date of receipt of the objection and forward it to both\n\n9 McCormick & Schmick’s and Class Counsel within two (2) business days following receipt.\n\n10\n\nClass Counsel will file the original objections with the Clerk of the Court no later than\n\n11 ten (10) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain\n\n12 copies of all written objections until such time as it has completed its duties and responsibilities\n\n13 under this Decree.\n\n14\n\nE. Deadline for Submitting Claims Forms\n\n15\n\nA Class Member who does not opt out will be eligible to receive his or her proportionate\n\n16 share of the settlement benefit. To receive this share, such a Class Member must properly and\n\n17 timely complete a Claim Form in accordance with the terms of the Consent Decree. To be\n\n18 effective, the Claim Form must be sent to the Claims Administrator postmarked no later than 70\n\n19 days after the initial mailing of the Class Notice to class members. Settlement Class members\n\n20 who do not file timely and valid Claim Forms shall nonetheless be bound by the judgment and\n\n21 release in this action as set forth in the proposed Consent Decree, unless that Settlement Class\n\n22 member timely opts out of the Settlement.\n\n23\n\nIt shall be the sole responsibility of each member of the Settlement Class who seeks a\n\n24 monetary award to notify the Claims Administrator if the class member changes his or her\n\n25 address. Failure of a Settlement Class member to keep the Claims Administrator apprised of his\n\n26 or her address may result in the claim being denied or forfeited.\n\n27\n\nF. Deadline for Submitting Motion Seeking Final Approval\n\n28\n\n8 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81 Filed 03/25/2008 Page 10 of 10\n\n1\n\nNo later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final\n\n2 Approval of the Settlement and Consent Decree. On or before one week before the Fairness\n\n3 Hearing, the Parties may file with the Court a reply brief responding to any filed objections.\n\n4\n\nG. Deadline for Petition for Attorneys Fees\n\n5\n\nClass Counsel shall file with this Court their petition for an award of attorneys’ fees and\n\n6 reimbursement of expenses no later than 35 days before the Fairness Hearing. Class Counsel\n\n7 may file a reply to any opposition to memorandum filed by any objector no later than one week\n\n8 before the Fairness Hearing.\n\n9\n\nH. Deadline for Petition for Approval of Service Payments\n\n10\n\nClass Counsel shall file with this Court their petition for an award of service payments to\n\n11 the Class Representatives no later than 35 days before the Fairness Hearing. Class Counsel may\n\n12 file a reply to any opposition memorandum filed by any objector no later than one week before\n\n13 the Fairness Hearing.\n\n14 VI. PLAINTIFFS’ AND CLASS MEMBERS’ RELEASE\n\n15\n\nIf, at the Fairness Hearing, this Court grants Final Approval to the Settlement and\n\n16 Consent Decree, each individual Settlement Class member who does not timely opt out will\n\n17 release their claims, as set forth in Consent Decree, by operation of this Court’s entry of the\n\n18 Judgment and Final Approval, regardless of whether he or she submits a Claim Form or receives\n\n19 any share of the Settlement Fund.\n\n20 VII. APPOINTMENT OF CLAIMS ADMINISTRATOR\n\n21\n\nRosenthal & Company, LLC, of Novato, California is hereby appointed Claims\n\n22 Administrator to carry out the duties set forth in this Order and the Consent Decree.\n\n23\n\nIT IS SO ORDERED\n\n24 Dated: __________________\n25 26\n\n______________________________ The Hon. Claudia Wilken United States District Judge\n\n27\n\n28\n\n9 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 1 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 2 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 3 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 4 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 5 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 6 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 7 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 8 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 9 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 10 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 11 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 12 of 60\n\n\fCase 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03/25/2008 Page 54 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 55 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 56 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 57 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 58 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 59 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-2 Filed 03/25/2008 Page 60 of 60\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 1 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 2 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 3 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 4 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 5 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 6 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 7 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 8 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-3 Filed 03/25/2008 Page 9 of 9\n\n\fCase 4:06-cv-03153-CW Document 81-4 Filed 03/25/2008 Page 1 of 4\n\n\fCase 4:06-cv-03153-CW Document 81-4 Filed 03/25/2008 Page 2 of 4\n\n\fCase 4:06-cv-03153-CW Document 81-4 Filed 03/25/2008 Page 3 of 4\n\n\fCase 4:06-cv-03153-CW Document 81-4 Filed 03/25/2008 Page 4 of 4\n\n\f", "1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)\n2 Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP\n3 275 Battery Street, 30th Floor San Francisco, CA 94111-3339\n4 Telephone: (415) 956-1000 Facsimile: (415) 956-1008\n5 Email: jfinberg@lchb.com Email: blee@lchb.com\n6 Email: jsagafi@lchb.com\n\n7 Robert Rubin (SBN 085084) Diana C. Tate (SBN 232264)\n8 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA\n9 131 Steuart Street, Suite 400 San Francisco, CA 94105\n10 Telephone: (415) 543-9444 Facsimile: (415) 543-0296\n11 Email: rrubin@lccr.com Email: dtate@lccr.com\n12 Attorneys for Plaintiffs and proposed Classes\n13 [additional counsel on signature page]\n\n14\n\n15\n\nUNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA\n\n16\n\nOAKLAND DIVISION\n\n17\nJUANITA WYNNE and DANTE BYRD, 18 on behalf of themselves and classes of\nthose similarly situated, 19\nPlaintiffs, 20\nv. 21\nMCCORMICK & SCHMICK’S 22 SEAFOOD RESTAURANTS, INC. and\nMCCORMICK & SCHMICK 23 RESTAURANT CORP.,\n\nCase No. 06-3153 CW\nFIRST AMENDED COMPLAINT FOR INJUNCTIVE, DECLARATORY RELIEF, AND DAMAGES FOR VIOLATIONS OF 42 U.S.C. § 1981, TITLE VII, AND THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT\nCLASS ACTION\nDEMAND FOR JURY TRIAL\n\n24\n\nDefendants.\n\n25\n\n26\n\nIndividual and Representative Plaintiffs Juanita Wynne and Dante Byrd\n\n27 (collectively “Representative Plaintiffs”), on behalf of themselves and all others similarly\n\n28 situated, allege against Defendants McCormick & Schmick’s Seafood Restaurants, Inc. and\n\n542200.1\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1 McCormick & Schmick Restaurant Corp. (hereinafter collec tively identified as “McCormick &\n\n2 Schmick’s,” “M&S,” or “the Company”) as follows:\n\n3\n\nINTRODUCTORY STATEMENT\n\n4\n\n1. Defendant McCormick & Schmick’s is a national restaurant chain that\n\n5 discriminates against African Americans throughout the United States on the basis of race with\n\n6 respect to hiring, job assignment, compensation, promotion to managerial positions, discipline,\n\n7 and other terms and conditions of employment.\n\n8\n\n2. M&S has a nationwide corporate policy and practice of preferring white\n\n9 employees over African American employees for “front -of-the-house” positions (i.e., prominent\n\n10 positions such as server, hostess/host and bartender where customers can easily see and/or\n\n11 interact with the employees), and management positions in its restaurants and offices throughout\n\n12 the United States. M&S disproportionately hires white employees for, and assigns white\n\n13 employees to, front -of-the-house positions and disproportionately assigns African American\n\n14 employees to back-of-the-house positions (i.e., positions in which employees are less likely to be\n\n15 seen by, heard by, or interact with customers). Those back -of-the-house positions include busser\n\n16 positions, bar back positions, and certain less desirable kitchen positions. The few African\n\n17 Americans assigned to server positions are giv en less desirable assignments.\n\n18\n\n3. M&S discourages applications from African American applicants for\n\n19 “front-of-the-house” positions and disproportionately refuses to hire African Americans for such\n\n20 positions. To the extent that M&S hires African Americans, M&S disproportionately channels\n\n21 them to back-of-the- house positions.\n\n22\n\n4. When qualified African American applicants (both incumbents and\n\n23 individuals from outside the Company) inquire about employment in the restaurant, managers and\n\n24 other M&S representatives so metimes tell them that the restaurant is not hiring, even though it is.\n\n25 When African American applicants submit applications, managers and other M&S representatives\n\n26 acting at their direction sometimes throw them away without seriously considering them.\n\n27\n\n5. Furthermore, promotions are often given preferentially to white workers.\n\n28\n\n542200.1\n\n- 2 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\n6. M&S hires, assigns, compensates, and promotes individuals using\n\n2 subjective, arbitrary, standardless, and unvalidated criteria, without requiring a formal application\n\n3 process.\n\n4\n\n7. In addition, M&S systematically takes adverse employment actions against\n\n5 qualified, high-performing African American employees in front -of-the- house positions by giving\n\n6 them less desirable job assignments, lower pay, fewer promotional opportunities, and more\n\n7 frequent and harsher discipline.\n\n8\n\n8. Managers have been instructed by corporate headquarters to “clean up the\n\n9 restaurant,” meaning to hire fewer African Americans , to keep the African American employees\n\n10 away from front -of-the-house positions, and to subject African American employees to harsher\n\n11 discipline.\n\n12\n\n9. This class action is brought by (a) current and former African American\n\n13 non- management employees of M&S throughout the United States; and (b) African Americans\n\n14 who applied to, or were deterred from applying to, M&S at its restaurants or offices in the United\n\n15 States for “front -of-the-house” or management positions, but were not hired.\n\n16\n\n10. This action seeks an end to M&S’s discriminatory policies or practices, an\n\n17 award of backpay and front pay, as well as compensator y damages, punitive damages, and\n\n18 injunctive relief, including rightful place relief for all Class members.\n\n19\n\nJURISDICTION AND VENUE\n\n20\n\n11. This Court has jurisdiction over the First and Second Claims for Relief\n\n21 pursuant to 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. § 1981, and 42 U.S.C. §§ 2000e-5(f)(3).\n\n22\n\n12. This Court also has jurisdiction over the First , Second, and Third Claims\n\n23 for Relief under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action\n\n24 in which: (1) there are 100 or more individuals in each proposed Class; (2) at least some\n\n25 individuals in each proposed Class have different state citizenship from at least one Defendant;\n\n26 and (3) the claims of the proposed Class members exceed $5,000,000 in the aggregate.\n\n27\n\n28\n\n542200.1\n\n- 3 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\n13. In addition, this Court has supplemental jurisdiction under 28 U.S.C.\n\n2 § 1367 over the Third Claim for Relief, because that claim and Plaintiffs’ First and Second\n\n3 Claims for Relief arise from a common nucleus of operative fact.\n\n4\n\n14. This Court is empowered to issue a declaratory judgment p ursuant to 28\n\n5 U.S.C. §§ 2201 and 2202.\n\n6\n\n15. The Northern District of California has personal jurisdiction over\n\n7 Defendants because they have qualified with the California Secretary of State to do business and\n\n8 are doing business in California, and in this distric t, and because many of the acts complained of\n\n9 occurred in this State and this District and gave rise to the claims alleged herein.\n\n10\n\n16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because\n\n11 M&S resides in this district and because a substantial part of the events giving rise to the claims\n\n12 alleged herein occurred in this District. M&S operates restaurants in San Francisco, Berkeley,\n\n13 and San Jose.\n\n14\n\n17. Pursuant to N.D. Cal. Local Rule 3 -2(c) and (d), intradistrict assignment to\n\n15 the San Francisco / Oakland Division is proper because a substantial part of the events giving rise\n\n16 to the claims presented in this Complaint occurred in Alameda County.\n\n17\n\nPARTIES\n\n18\n\n18. Plaintiff Juanita Wynne is an African American resident of Berkeley,\n\n19 California. She has repeate dly been denied desirable shifts and work stations, inappropriately\n\n20 disciplined for insignificant infractions, and had her number of shifts (and , as a result, pay) cut\n\n21 approximately in half at Spenger’s Fresh Fish Grotto restaurant in Berkeley, California , owned\n\n22 and operated by M&S, when similarly situated whites were treated more fairly.\n\n23\n\n19. Plaintiff Dante Byrd is an African American resident of Oakland,\n\n24 California. He twice applied for and was denied a position as a bartender at Spenger’s Fresh Fish\n\n25 Grotto restaurant in Berkeley, California, owned and operated by M&S, despite having a diploma\n\n26 from a bartending school and more than seven years of bartending experience, and whites who\n\n27 were not more qualified were hired.\n\n28\n\n542200.1\n\n- 4 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\n20. Defendant McCormick & Schmick’s Seafood Restaurants, Inc. is\n\n2 headquartered in Portland, Oregon, and is incorporated in Delaware.\n\n3\n\n21. Defendant McCormick & Schmick Restaurant Corp. is a subsidiary of\n\n4 McCormick & Schmick’s Seafood Restaurants, Inc.\n\n5\n\n22. McCormick & Schmick’s is a nationwide restaurant co mpany that owns\n\n6 and operates approximately 61 upscale casual-dining restaurants. McCormick & Schmick’s\n\n7 operates its restaurants under various names, including McCormick & Schmick’s Seafood\n\n8 Restaurant, McCormick’s Fish House & Bar, M&S Grill, Spenger’s Fre sh Fish Grotto, The\n\n9 Heathman Restaurant, Jake’s Famous Crayfish, and Jake’s Grill. Although each restaurant may\n\n10 use different menus, different layouts, and/or different marketing approaches, they all follow the\n\n11 same human resources policies and practices, participate in the same discrimination, and are run\n\n12 by the same corporate management. African American applicants to and employees of each\n\n13 restaurant owned or operated by M&S in the United States, however denominated, are included in\n\n14 the proposed Classes.\n\n15\n\nCLASS ACTION ALLEGATIONS\n\n16\n\n23. The Representative Plaintiffs bring this Class Action pursuant to Fed. R.\n\n17 Civ. P. 23(a), (b)(2), and (b)(3) on behalf of the following two Classes:\n\n18\n\n(a) All African Americans who since May 11, 2002 have been\n\nemployed by, are employed by, or will in the future be\n\n19\n\nemployed by McCormick & Schmick’s in non- management\n\npositions (“Employee Class”); and 20\n\n(b) All African Americans who since May 11, 2004 have\n\n21\n\napplied for, or been deterred from apply ing for, server,\n\nhost/hostess, bartender, or management positions (including\n\n22\n\nchef/sous chef) with McCormick & Schmick’s and were not\n\nhired for those positions (“Applicant Class”). 23\n\n24. Plaintiff Wynne is a member of, and seeks to represent, the Employee\n\n24\n\nClass. Plaintiff Byrd is a member of, and seeks to represent, the Applicant Class.\n\n25\n\n25. The members of each Class identified herein are so numerous that joinder\n\n26\n\nof all members is impracticable. The number of Class members is currently indeterminate, but ,\n\n27\n\non information and belief, is larger than can be addressed through joinder. As of December 2005,\n\n28\n\n542200.1\n\n- 5 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1 McCormick & Schmick’s employed approximately 5,401 employees. Each of McCormick &\n\n2 Schmick’s roughly 61 restaurants employs very few African American employees in front -of-the-\n\n3 house positions, but each restaurant, on average, annually receives numerous applications from\n\n4 qualified African Americans who are potential front -of-the-house employees. Furthermore, as a\n\n5 result of McCormick & Schmick’s systematic discriminatory hiring and job assignment practices,\n\n6 on information and belief, a significant number of qualified African American applicants have\n\n7 also been deterred from applying for front -of-the-house and management positions. Thus,\n\n8 although the precise number of qualified African American applicants who a re not hired and/or\n\n9 who are fired or otherwise discriminated against is currently unknown, it is far greater than can be\n\n10 feasibly addressed through joinder.\n\n11\n\n26. There are questions of law and fact common to the Classes. Common\n\n12 questions include, among others:\n\n13\n\na. whether McCormick & Schmick’s policies or practices result in\n\n14 disparate impact adverse to African American employees and applicants;\n\n15\n\nb. whether McCormick & Schmick’s discriminatory policies and\n\n16 practices are intentional;\n\n17\n\nc. whether McCormick & Schmick’s policies or practices violate 42\n\n18 U.S.C. § 1981;\n\n19\n\nd. whether McCormick & Schmick’s policy and practice violates\n\n20 FEHA, as to Class Members who have been employed by M&S in, or who reside in, California;\n\n21 and\n\n22\n\ne. whether compensatory and punitive damages, injunctive re lief, and\n\n23 other equitable remedies (including backpay and front pay) for the Classes are warranted.\n\n24\n\n27. The Representative Plaintiffs’ claims are typical of the Classes’ claims.\n\n25\n\n28. The Representative Plaintiffs will fairly and adequately represent and\n\n26 protect the interests of the members of the Classes. The Representative Plaintiffs have retained\n\n27 counsel competent and experienced in complex class actions and employment discrimination\n\n28 litigation.\n\n542200.1\n\n- 6 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\n29. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2)\n\n2 because McCormick & Schmick’s has acted and/or refused to act on grounds generally applicable\n\n3 to the Classes, making appropriate declaratory and injunctive relief with respect to the\n\n4 Representative Plaintiffs and the class as a whole. The Class members are entitled to injunctive\n\n5 relief to end McCormick & Schmick’s common, uniform, and unfair racially discriminatory\n\n6 employment policies and practices.\n\n7\n\n30. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)\n\n8 because common questions of fact and law predominate over any questions affecting only\n\n9 individual members of the Class, and because a class action is superior to other available methods\n\n10 for the fair and efficient adjudication of this litigation. The Class members have been damaged\n\n11 and are entitled to recovery as a result of McCormick & Schmick’s common, uniform, and unfair\n\n12 racially discriminatory employment policies and practices. McCormick & Schmick’s has\n\n13 computerized payroll and personnel data that will make calculation of backpay and punitive\n\n14 damages for specific Class members relatively simple.\n\n15 16 Juanita Wynne\n\nCLAIMS OF THE REPRESENTATIVE PLAINTIFFS\n\n17\n\n31. Plaintiff Juanita Wynne is an African American resident of Berkeley,\n\n18 California, and current employee of McCormick & Schmick’s. She has been employed as a\n\n19 server at Spenger’s Fish Grotto in Berkeley, California, since approximately November 1999.\n\n20 During approximately 2002-03, her shifts and pay were cut approximately in half, whereas the\n\n21 shifts and pay of white servers were not so c ut. Ms. Wynne has been also denied desirable shifts\n\n22 and stations, and she was disciplined for insignificant infractions, while white employees were\n\n23 not so disciplined.\n\n24\n\n32. Ms. Wynne is currently the only African American server on staff at the\n\n25 restaurant.\n\n26\n\n33. Ms. Wynne has observed that McCormick & Schmick ’s tends to seat\n\n27 African American customers at the back of the restaurant, where they are less visible to the rest of\n\n28 the public.\n\n542200.1\n\n- 7 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\n34. On or about May 3, 2005, Ms. Wynne filed a charge of discrimination with\n\n2 the Equal Employment Opportunity Commission (“EEOC”). On or about June 30, 2005, she\n\n3 filed an amended charge of discrimination with the EEOC. She received a copy of her Notice of\n\n4 Right to Sue from the California Department of Fair Employment and Housing (“DFEH”), dated\n\n5 April 25, 2005. On July 28, 2006, she received a copy of her Notice of Right to Sue from the\n\n6 EEOC. Attached to this Complaint as Exhibit A and incorporated by refe rence are copies of\n\n7 those charge s and those notices.\n\n8 Dante Byrd\n\n9\n\n35. Plaintiff Dante Byrd is an African American resident of Oakland,\n\n10 California, and applicant to McCormick & Schmick’s.\n\n11\n\n36. In November 2004, Mr. Byrd applied to become a bartender at M&S’s\n\n12 Spenger’s Fish Grotto in Berkeley. He was interviewed by the General Manager/Bar Manager , a\n\n13 non-African American male. Mr. Byrd thought the interview went well, but he never heard back\n\n14 about the job.\n\n15\n\n37. In January 2005, Mr. Byrd learned that McCormick & Schmick’s was\n\n16 again seeking applications from bartenders, so he applied again. He was int erviewed by the same\n\n17 non-African American male and by a white female. He was invited to come back and work the\n\n18 bar for a test shift. He did so, working for approximately 4 -5 hours without pay. The General\n\n19 Manager/Bar Manager told Mr. Byrd that he had do ne a good job on this test shift. Mr. Byrd was\n\n20 never paid for this work. He never heard back about the job.\n\n21\n\n38. At the time, Mr. Byrd had seven years of experience as bartender, plus a\n\n22 year of attendance and graduation from bartender school. Since being d enied employment at\n\n23 McCormick & Schmick’s, Mr. Byrd has applied for and been hired by a comparable restaurant in\n\n24 Oakland, California.\n\n25\n\n39. On or about June 29, 2005, Mr. Byrd filed a charge of discrimination with\n\n26 the EEOC. He received a copy of his Notice of Right to Sue from the California DFEH, dated\n\n27 July 6, 2005. On July 28, 2006, he received a copy of his Notice of Right to Sue from the EEOC.\n\n28\n\n542200.1\n\n- 8 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1 Attached to this Complaint as Exhibit B and incorporated by reference are copies of that charge\n\n2 and those notices.\n\n3\n\nGENERAL POLICIES OR PRACTICES OF DISCRIMINATION\n\n4\n\n40. The denials and abridgments of employment opportunities suffered by the\n\n5 Representative Plaintiffs are part of a general policy or practice of discrimination on the basis of\n\n6 race in employment that has ex isted at McCormick & Schmick’s since at least May 10, 2002.\n\n7 These are not isolated employment practices or individual decisions. On the contrary, these\n\n8 incidents are representative of McCormick & Schmick’s systematic discrimination against\n\n9 African Americans and in favor of white applicants and employees, to create an overwhelmingly\n\n10 white image to the public.\n\n11\n\n41. The under-representation of African Americans in front -of-the-house\n\n12 positions throughout McCormick & Schmick’s approximately 61 restaurants in the United States\n\n13 results from a policy and practice of discrimination on the basis of race in hiring, job assignment,\n\n14 compensation, promotion to managerial positions, discipline, and other terms and conditions of\n\n15 employment.\n\n16\n\n42. McCormick & Schmick’s has pursued po licies or practices on a continuing\n\n17 basis that have denied or restricted job opportunities to qualified African American applicants and\n\n18 employees.\n\n19\n\n43. Such discriminatory policies or practices include, without limitation:\n\n20\n\na. reliance on subjective, arbitrary, standardless, and unvalidated\n\n21 criteria in making hiring and job assignment decisions, focusing on whether applicants and\n\n22 employees properly reflect the preferred white look and image rather than whether they would be\n\n23 responsible, effective, diligent employees who could perform their jobs well;\n\n24\n\nb. reliance on subjective, arbitrary, standardless, and unvalidated\n\n25 criteria in making decisions in compensation, shift, and weekly hour allocations, focusing on\n\n26 whether applicants and employees properly reflect the preferr ed white look and image rather than\n\n27 whether they would be responsible, effective, diligent employees who could perform their jobs\n\n28 well;\n\n542200.1\n\n- 9 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\nc. failing to hire qualified African American applicants to restaurant\n\n2 positions;\n\n3\n\nd. shunting African American applicants and employees to back-of-\n\n4 the-house positions where they are out of the public eye and/or do not interact with the public;\n\n5\n\ne. offering and providing African American employees with fewer\n\n6 hours and/or less desirable job duties and/or assignments than their white counterparts;\n\n7\n\nf. targeting white candidates for recruitment for front -of-the-house\n\n8 positions, but avoiding, ignoring, discouraging or dissuading equally qualified African Americans\n\n9 from applying for those positions;\n\n10\n\ng. subjecting front-of-the- house African American employees to\n\n11 harsher discipline based on their race without regard to their performance on the job; and\n\n12\n\nh. failure to promote African American employees to manager ial\n\n13 positions.\n\n14\n\n44. M&S acted or failed to act as herein alleged with malice or reckless\n\n15 indifference to the protected rights of Plaintiffs and the Class members. Plaintiffs and the Class\n\n16 members are thus entitled to recover punitive damages in an amount to be determined according\n\n17 to proof.\n\n18\n\nFIRST CLAIM FOR RELIEF\n\n(Federal Civil Rights, 42 U.S.C. § 1981)\n\n19\n\n(Brought by the Representative Plaintiffs on behalf of a nationwide Class)\n\n20\n\n45. Plaintiffs incorporate paragraphs 1 through 44, as alleged above.\n\n21\n\n46. This claim is brought by the Representative Plaintiffs on behalf of\n\n22 themselves and the Classes they re present.\n\n23\n\n47. McCormick & Schmick’s has maintained an intentionally discriminatory\n\n24 system with respect to hiring, job assignment, compensation, promotion to managerial positions,\n\n25 discipline, and other terms and conditions of employment.\n\n26\n\n48. The foregoing conduct co nstitutes illegal intentional discrimination with\n\n27 respect to the making, performance, modification, and termination of contracts prohibited by 42\n\n28 U.S.C. § 1981.\n\n542200.1\n\n- 10 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\nSECOND CLAIM FOR RELIEF\n\n(42 U.S.C. § 2000e et seq.)\n\n2\n\n(Brought by the Representative Plaintiffs on behalf of a nationwid e Class)\n\n3\n\n49. Plaintiffs incorporate paragraphs 1 through 44, as alleged above.\n\n4\n\n50. This claim is brought by the Representative Plaintiffs on behalf of\n\n5 themselves and the Classes they represent .\n\n6\n\n51. McCormick & Schmick’s has maintained a system that is discriminatory,\n\n7 subjective, standardless, and arbitrary with respect to recruitment, hiring, job assignment,\n\n8 compensation, promotion to restaurant managerial positions, termination, and other terms and\n\n9 conditions of employment. The system has an adverse disparate impact on African American\n\n10 applicants and employees. This system is not and cannot be justified by business necessity, but\n\n11 even if it could be so justified, less discriminatory alternatives exist that could equally serve any\n\n12 alleged necessity.\n\n13\n\n52. McCormick & Schmick’s discriminatory policies or practices described\n\n14 above have denied African American applicants and employees employment, job assignments,\n\n15 promotions, job transfers, and weekly hour allocations, resulting in the loss of past a nd future\n\n16 wages and other job benefits.\n\n17\n\n53. The foregoing conduct has created an unjustified disparate impact\n\n18 prohibited by 42 U.S.C. § 2000e et seq.\n\n19\n\nTHIRD CLAIM FOR RELIEF\n\n(California Fair Employment and Housing Act, Government Code § 12940 et seq.)\n\n20\n\n(Brought by the Representative Plaintiffs on behalf of a California subclass)\n\n21\n\n54. Plaintiffs Wynne and Byrd incorporate paragraphs 1 through 44, as alleged\n\n22 above.\n\n23\n\n55. This claim is brought by the Representative Plaintiffs on behalf of\n\n24 themselves and the subclass of Class members who worked for M&S in California, or resided in\n\n25 California, since May 3, 2004.\n\n26\n\n56. Plaintiffs Wynne and Byrd have received copies of their Right to Sue\n\n27 letters from the DFEH. The pendency of the EEOC investigations into Plaintiffs’ charges tolle d\n\n28\n\n542200.1\n\n- 11 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1 the time limits for filing civil actions pursuant to the Fair Employment and Housing Act.\n\n2 Plaintiffs have therefore timely complied with all prerequisites to suit.\n\n3\n\nPRAYER FOR RELIEF\n\n4\n\nWHEREFORE, the Representative Plaintiffs and Class members pray for relief as\n\n5 follows:\n\n6\n\n57. Certification of the case as a class action on behalf of the proposed Classes;\n\n7\n\n58. Designation of the Representative Plaintiffs as representatives of the\n\n8 Classes;\n\n9\n\n59. Designation of the Representative Plaintiffs’ counsel of record as Class\n\n10 counsel;\n\n11\n\n60. A declaratory judgment that the practices complained of herein are\n\n12 unlawful and violate 42 U.S.C. § 1981, 42 U.S.C. § 2000e et seq., and the California Fair\n\n13 Employment and Housing Act, Government Code § 12940 et seq.;\n\n14\n\n61. A preliminary and permanent injunctio n against McCormick & Schmick’s\n\n15 and its officers, agents, successors, employees, representatives, and any and all persons acting in\n\n16 concert with them, from engaging in each of the unlawful policies, practices, customs, and usages\n\n17 set forth herein;\n\n18\n\n62. An order that McCormick & Schmick’s institute and carry out policies,\n\n19 practices, and programs that provide equal employment opportunities for all African Americans,\n\n20 and that it eradicate the effects of its past and present unlawful employment practices;\n\n21\n\n63. An order restoring the Representative Plaintiffs and Class members to their\n\n22 rightful positions at McCormick & Schmick’s, or, in lieu of reinstatements, an order for front pay\n\n23 benefits;\n\n24\n\n64. Back pay (including interest and benefits) for the Representative Plaintiffs\n\n25 and Class members;\n\n26\n\n65. All damages sustained as a result of McCormick & Schmick’s conduct,\n\n27 including damages for emotional distress, humiliation, embarrassment, and anguish, according to\n\n28 proof;\n\n542200.1\n\n- 12 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\n66. Exemplary and punitive damages in an amount commensurate with\n\n2 McCormick & Schmick’s ability to pay and to deter future conduct;\n\n3\n\n67. Costs incurred herein, including reasonable attorneys’ fees to the extent\n\n4 allowable by law;\n\n5\n\n68. Pre-judgment and post-judgment interest, as provided by law; and\n\n6\n\n69. Such other and further legal and equitable relief as this Court deems\n\n7 necessary, just, and proper.\n\n8 Dated: July 28, 2006 9\n\nRespectfully submitted,\n\n10\n\nBy: /s/ James M. Finberg\n\nJames M. Finberg 11\n\nJames M. Finberg (SBN 114850)\n\n12\n\nBill Lann Lee (SBN 108452)\n\nJahan C. Sagafi (SBN 224887)\n\n13\n\nLIEFF, CABRASER, HEIMANN &\n\nBERNSTEIN, LLP\n\n14\n\n275 Battery Street, 30th Floor\n\nSan Francisco, CA 94111-3339\n\n15\n\nTelephone: (415) 956-1000\n\nFacsimile: (415) 956-1008\n\n16\n\nEmail: jfinberg@lchb.com\n\nEmail: blee@lchb.com\n\n17\n\nEmail: jsagafi@lchb.com\n\n18\n\nRobert Rubin (SBN 085084)\n\nDiana C. Tate (SBN 232264)\n\n19\n\nLAWYERS’ COMMITTEE FOR CIVIL RIGHTS\n\nOF THE SAN FRANCISCO BAY AREA\n\n20\n\n131 Steuart Street, Suite 400\n\nSan Francisco, CA 94105\n\n21\n\nTelephone: (415) 543-9444\n\nFacsimile: (415) 543-0296\n\n22\n\nEmail: rrubin@lccr.com\n\nEmail: dtate@lccr.com 23\n\nThomas A. Warren\n\n24\n\nTHOMAS A. WARREN LAW OFFICES\n\n2032 Thomasville Rd # D\n\n25\n\nTallahassee, FL 32308-0734\n\nTelephone: (850) 385-1551\n\n26\n\nFacsimile: (850) 385-6008\n\nEmail: tw@nettally.com 27\n\n28\n\n542200.1\n\n- 13 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28\n542200.1\n\nTodd F. Jackson (SBN 202598) Vincent Cheng (SBN 230827) Lindsay Nako (SBN 239090) LEWIS FEINBERG RENAKER &\nJACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com Email: lnako@lewisfeinberg.com\nGary Lafayette (SBN 088666) LAFAYETTE & KUMAGAI 100 Spear Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 357-4600 Facsimile: (415) 357-4605 Email: glafayette@lkclaw.com\nEric Kingsley (SBN 185123) KINGSLEY & KINGSLEY 16133 Venture Blvd., Suite 1200 Encino, CA 91436 Telephone: 818-990-8300 Facsimile: 818-990-2903 Email: kingsleylaw@aol.com\nAttorneys for Plaintiffs and the proposed Class Members\n\n- 14 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\f1\n\nDEMAND FOR JURY TRIAL\n\n2 Plaintiffs hereby demand a jury trial on all causes of action and claims with respect\n\n3 to which they have a right to jury trial.\n\n4\n\nDated: July 28, 2006\n\nRespectfully submitted,\n\n5\n\n6\n\nBy: /s/ James M. Finberg\n\n7\n\nJames M. Finberg\n\n8\n\nJames M. Finberg (SBN 114850)\n\nBill Lann Lee (SBN 108452)\n\n9\n\nJahan C. Sagafi (SBN 224887)\n\nLIEFF, CABRASER, HEIMANN &\n\n10\n\nBERNSTEIN, LLP\n\n275 Battery Street, 30th Floor\n\n11\n\nSan Francisco, CA 94111-3339\n\nTelephone: (415) 956-1000\n\n12\n\nFacsimile: (415) 956-1008\n\nEmail: jfinberg@lchb.com\n\n13\n\nEmail: blee@lchb.com\n\nEmail: jsagafi@lchb.com\n\n14\n\nAttorneys for Plaintiffs and the proposed Class\n\n15\n\nMembers\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n542200.1\n\n- 15 -\n\nFIRST AMENDED COMPLAINT FOR VIOLATIONS OF § 1981, TITLE VII, & FEHA — CLASS ACTION\nCASE NO. 06-3153 CW\n\n\fEXHIBIT A\n\n\f\f\f\f\fEXHIBIT B\n\n\f\f\f\f\f", "Case4:06-cv-03153-CW Document113 Filed08/08/08 Page1 of 52 Counsel listing on signature page\n\nUNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA\nOAKLAND DIVISION\n\nJUANITA WYNNE, on behalf of herself and classes of those similarly situated, and DANTE BYRD,\nPlaintiffs,\nv.\nMCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK RESTAURANT CORP.,\nDefendants.\n\nCase No. 06-3153 CW CONSENT DECREE\n\n[PROPOSED] CONSENT DECREE CASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page2 of 52\n\nTABLE OF CONTENTS\n\nINTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n\nI.\n\nLITIGATION BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n\nII.\n\nPURPOSES OF THE CONSENT DECREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2\n\nIII.\n\nDEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3\n\nIV.\n\nJURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5\n\nV.\n\nTERM OF THE DECREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5\n\nVI.\n\nCLASS DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6\n\nVII.\n\nRELEASE OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7\n\nVIII.\n\nGENERAL EQUITABLE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7\n\nIX.\n\nSENIOR OFFICIAL AND REGIONAL EEO MANAGERS . . . . . . . . . . . . . . . . 8\n\nX.\n\nDIVERSITY MONITOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8\n\nXI.\n\nBENCHMARKS FOR JOB FILLS FOR FRONT OF THE HOUSE\n\nPOSITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9\n\nXII.\n\nREGISTRATION OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n\nXIII.\n\nSHIFT AND SECTION ASSIGNMENT AND COMPENSATION . . . . . . . . . 18\n\nXIV.\n\nMANAGER INCENTIVE TO PROMOTE DIVERSITY . . . . . . . . . . . . . . . . . . 18\n\nXV.\n\nINTERNAL COMPLAINT SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19\n\nXVI.\n\nRECRUITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20\n\nXVII.\n\nEMPLOYEE AND MANAGER TRAINING . . . . . . . . . . . . . . . . . . . . . . . . . . . 21\n\nXVIII.\n\nREPORTING AND RECORDKEEPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22\n\nXIX.\n\nCOMPLIANCE REPORT TO THE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . 27\n\nXX.\n\nDISPUTE RESOLUTION AND ENFORCEMENT PROCEDURES . . . . . . . . 28\n\nXXI.\n\nMONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE . . . . . . . . . . . 31\n\nXXII.\n\nNOTICE TO CLASS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35\n\nXXIII.\n\nOBJECTIONS AND OPT OUTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35\n\n-i[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page3 of 52\n\nXXIV. XXV. XXVI. XXVII. XXVIII. XXIX. XXX.\n\nCLAIMS ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 SUBMISSION OF CLAIM FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 REVIEW OF CLAIM FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 PLAN OF ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 DIVERSITY MONITOR FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . 44 POST-APPROVAL ATTORNEYS’ FEES AND EXPENSES . . . . . . . . . . . . . . 44 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45\n\n-ii[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page4 of 52\nINTRODUCTION As a result of extensive arms-length negotiations supervised by a mediator, the Parties have reached a voluntary agreement that is contained in this Consent Decree. I. LITIGATION BACKGROUND Plaintiffs Juanita Wynne and Dante Byrd filed class-wide administrative charges with the EEOC on May 3 and June 29, 2005. On May 11, 2006 Plaintiffs filed the Complaint in this action alleging racial discrimination claims under Title VII, FEHA and Section 1981 on behalf of themselves and classes of McCormick & Schmick’s African American employees and applicants. Plaintiffs filed their First Amended Complaint on July 28, 2006. After filing the First Amended Complaint, the parties conducted discovery. Plaintiffs took the depositions of six Rule 30(b)(6) designees relating to Company operations, hiring practices, training, compensation policies, store openings, data collection, and others. Company deponents included the Director of Human Resources, the Director of Training, the Vice President of Operations, and others. During this period, Defendants took depositions of plaintiffs Juanita Wynne and Dante Byrd. Plaintiffs served written discovery, including interrogatories and document requests, and obtained many thousands of pages of documents from Defendants, including personnel manuals and policies, training materials, and employment applications. Plaintiffs also obtained, and with the assistance of expert statisticians analyzed, Company computerized personnel and payroll data from 2003 through 2006. Defendants served written discovery on Juanita Wynne and Dante Byrd. Juanita Wynne and Dante Byrd responded to interrogatories and produced hundreds of pages of documents related to their employment at McCormick & Schmick’s. Plaintiffs and Defendants engaged expert consultants to analyze the payroll data, to determine whether disparities exist in hiring and compensation of African Americans in front of the house positions, and to calculate potential damages exposure. Expert consultants also assisted the parties in negotiating the settlement by proposing and analyzing various\n-1[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page5 of 52\nmethodologies for establishing hiring benchmarks. The Plaintiffs have vigorously prosecuted this case, and McCormick &\nSchmick’s has vigorously contested it. As a result, the Parties were able to assess reliably the relative merits of the claims of the Plaintiffs and of McCormick & Schmick’s defenses. On July 12, September 26, and November 5, 2007, counsel for the Parties met to negotiate a settlement of this matter with the assistance of experienced mediator Hunter Hughes of Atlanta, Georgia. In addition, counsel for the Parties met face-to-face without the mediator on August 8 and September 12, 2007, and exchanged numerous written settlement proposals from July 2007 through February 2008.\nThe Parties agree that the formal and informal discovery conducted in this action – the depositions taken by both sides, the documents produced, and the information exchanged during mediation, including expert consultant analyses, are sufficient to assess reliably the merits of the respective parties’ positions and to compromise the issues on a fair and equitable basis. As reflected by the signatures of counsel at the end of this document, the Parties have consented to entry of this Decree. II. PURPOSES OF THE CONSENT DECREE\nThe Parties have entered into the Consent Decree for the following purposes:\nA. To resolve all disputes covered by this Consent Decree in such a way as to avoid further expensive and protracted litigation;\nB. To use their Best Efforts to achieve equal employment opportunity for African Americans working at McCormick & Schmick’s restaurants; and\nC. To create an expedited procedure for implementing equitable relief pursuant to the terms of this Decree and distributing a monetary settlement to eligible members of the Settlement Class.\n-2[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page6 of 52\nIII. DEFINITIONS A. “African American” for class membership purposes means all persons having\norigins in any of the Black racial groups of Africa, and includes individuals who identify as Black or African American, or who identify as more than one race so long as at least one of the races identified is Black or African American.\nB. “Applicant Flow” means the percentage of individuals applying for specified positions who are African American, as specified in Section XI(A)(1) of the Decree.\nC. “Back of the house” positions means all non-exempt restaurant-level positions not included in the definition of “Front of the House” positions.\nD. “Best Efforts” means all reasonable steps necessary to comply with the specific objective to which the Best Efforts are directed.\nE. “Civil Action” means Wynne v.McCormick & Schmick’s Seafood Restaurants, Inc, Case No. 06-3153 CW (N.D. Cal.).\nF. “Class Counsel” means Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein, LLP; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; The Lawyers’ Committee For Civil Rights Of The San Francisco Bay Area; Thomas A. Warren Law Offices; and Kingsley & Kingsley.\nG. “Class Representative” means Juanita Wynne. H. “Expected Representation of African Americans in the Labor Market” is defined in Section XI(A)(2) of the Decree. I. “Injunctive Relief Class” is defined in Section VI of this Consent Decree. J. “Monetary Settlement Class” is defined in Section VI of this Consent Decree. K. “Company” means McCormick & Schmick’s Seafood Restaurants, Inc. and McCormick & Schmick Restaurant Corp. L. “Company-wide Benchmark” means the company-wide benchmark as set forth in Section XI(B) of the Decree.\n-3[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page7 of 52\nM. “Final Approval Date” means the date upon which the Court signs this Decree after having found that it is fair, adequate and reasonable.\nN. “Front of the House” positions or jobs means: waiter, waitress, server, host, hostess, bartender, and cocktail server.\nO. “McCormick & Schmick’s” refers to McCormick & Schmick’s Seafood Restaurants, Inc. and McCormick & Schmick Restaurant Corp.\nP. “Party” or “Parties” means the Class Representative and McCormick & Schmick's.\nQ. “Preliminary Approval Date” means the date upon which the Court enters an Order preliminarily approving this Decree, directing notice and an opportunity for persons falling within the definition of the Settlement Class to opt out of the Settlement Class or submit an objection to the Decree, and setting a fairness hearing.\nR. “Relevant Census Occupation” means, for the waiter/waitress/server/ cocktail server positions, Census Occupation Code 411 (waiters and waitresses). For the bartender position, the Relevant Census Occupation Code is 404 (Bartenders). For the host position, the Relevant Census Occupation Code is 415 (Hosts and Hostesses).\nS. “Release” means the Release of claims set forth in Section VII of the Decree. T. “Released Parties” means the Parties who are beneficiaries of the Release of Claims set forth in Section VII of the Decree. U. “Released Claims” means the Claims released as set forth in Section VII of the Decree. V. “Relevant Geographical Area” means all census-defined counties/county sets within a 25-mile radius that contribute one or more employees to that particular restaurant's workforce. Determination of counties/county sets will be based on the ZIP codes of employee home addresses for all employees at the restaurant. W. “Restaurant Benchmark” means the restaurant-level benchmark as set forth in Section XI(A) of the Decree.\n-4[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page8 of 52\nX. “Settlement Class” is defined in Section VI of the Decree. Y. “Settlement Effective Date” shall mean the first day following the last of the following occurrences:\n1. The date on which the Final Order approving the Settlement has been signed; or\n2. If an objection has been made to the settlement, the date the time to appeal or seek permission to appeal or seek other judicial review of the entry of a Final Order approving the Settlement has expired with no appeal or other judicial review having been taken or sought; or if an appeal or other judicial review has been taken or sought, the date the Final Order is finally affirmed by an appellate court with no possibility of subsequent appeal or other judicial review therefrom, or the date the appeal(s) or other judicial review therefrom are finally dismissed with no possibility of subsequent appeal or other judicial review therefrom.\nZ. “Term of the Decree” means the period described in Section V of the Decree. AA. “White” means all persons who identify as White and do not identify as more than one race. IV. JURISDICTION The Court has jurisdiction over the parties and subject matter of this Civil Action. The First Amended Complaint in this action asserts claims that, if proved, would authorize the Court to grant the equitable and monetary relief set forth in this Decree. Venue is proper in this Court. The Court shall retain jurisdiction of this Civil Action during the Term of the Decree for the purpose of entering all orders authorized by the Decree, which may be necessary to implement the relief provided in the Decree or to enforce the provisions of the Decree. V. TERM OF THE DECREE A. The equitable provisions of this Decree are effective immediately upon the Final Approval Date. B. Except as otherwise provided herein, the provisions of this Decree and the\n-5[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page9 of 52\nagreements contained herein shall remain in effect for a period of five (5) years from the Final Approval Date, provided, however, that four (4) years after the Final Approval date, the Court may terminate the Decree, upon motion of the Company, if the Company has met all of its Company-wide Benchmarks (as defined in Section XI(B) below) during any consecutive threeyear period prior to the fourth anniversary of the Decree. VI. CLASS DEFINITION\nA. Injunctive Relief Class For purposes of the injunctive and declaratory relief provided in this Decree, the Settlement Class is certified under Federal Rule of Civil Procedure 23(b)(2) and consists of: “All African Americans employed by McCormick & Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the date the Decree terminates.” B. Monetary Relief Class\n1. For purposes of the monetary relief provided in this Decree, the Settlement Class is certified pursuant to Federal Rule of Civil Procedure 23(b)(3) and consists of: “All African Americans employed by McCormick & Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the Preliminary Approval Date, except those who file a timely request to opt out of the monetary relief provisions of the Decree.”\n2. All African Americans hired by the Company after the Preliminary Approval Date may avail themselves of the equitable relief provided in the Decree but shall not be entitled to any portion of the monetary relief provided hereunder.\n3. Settlement Class members who have filed a timely request to opt out of the monetary relief provisions of the Decree shall not be included in the Monetary Relief Class and shall not be held to release any claims for individual relief.\n-6[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page10 of 52\nVII. RELEASE OF CLAIMS A. Release of Claims by Settlement Class. Upon the Settlement Effective Date, all\nMonetary Relief Class Members who do not timely opt out will release all race discrimination claims against McCormick & Schmick’s and its directors, officers, managers, agents, successors and assigns, which arise out of the conduct alleged in the First Amended Complaint under Title VII, 42 U.S.C. §1981, the California FEHA and/or any other state or federal law prohibiting race discrimination, for the liability period of May 15, 2002 through the Preliminary Approval Date.\nB. Release of Claims By Juanita Wynne and Dante Byrd. Juanita Wynne and Dante Byrd, in exchange for consideration in the amount of $5,000 each, as provided in Section XXI(D)(4), will give McCormick’s a release of all claims arising out of their application for employment and employment by McCormick’s, including, for Ms. Wynne, a release of any nonclass claims for race harassment/hostile work environment, and, for Mr. Byrd, a release of any non-class claims arising out of his application for employment with McCormick & Schmick’s. VIII. GENERAL EQUITABLE PROVISIONS\nA. The Company shall not engage in or be a party to any act, policy, practice or procedure that discriminates, retaliates, or has the purpose of discriminating or retaliating against any Class Representative or member of the Class, and employee of, or applicant to the Company, or any other person because he or she testified, furnished information or participated in any investigation, proceeding, or hearing in connection with this lawsuit or any charge or complaint of discrimination on which this lawsuit is based; testified, furnished information or participated in connection with the monitoring or implementation of this Decree; or sought and/or received monetary and/or non-monetary relief pursuant to this Decree.\nB. The Company shall make available to African-American employees and applicants the same opportunities and terms and conditions of employment as the Company affords similarly situated non-African American employees and applicants.\nC. Class Counsel will have sole and exclusive authority to act for the Class on issues of compliance or non-compliance with this Decree.\n-7[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page11 of 52\nD. The Company shall abide by the provisions of this Consent Decree, but otherwise shall maintain management discretion over decisions to select, hire, assign, transfer, train, promote, compensate, discipline, or terminate its employees. Nothing in this Consent Decree shall require the Company to violate any applicable law, ordinance or regulation. IX. SENIOR OFFICIAL AND REGIONAL EEO MANAGERS\nA. Within thirty (30) days of the Final Approval Date, and after consultation with Class Counsel, the Company shall appoint a senior-level Human Resources official (“Senior Official”) to be responsible for internal monitoring of the Consent Decree provisions and providing annual monitoring reports to the outside monitor (“Diversity Monitor”). If Class Counsel disagrees with the appointment, Class Counsel may use the Dispute Resolution procedures set forth in Section XX.\nB. The Senior Official will report directly to the CEO and the Executive Committee of the Board of Directors.\nC. The Company will also appoint three regional Human Resources Managers to assist the Senior Official with processing employee complaints arising from units within their respective regions, regional recruitment efforts, regional diversity efforts, and any aspect of Consent Decree compliance, at the discretion of the Senior Official. X. DIVERSITY MONITOR\nA. The parties agree to appointment of Barry Goldstein as Diversity Monitor. In the event that Barry Goldstein becomes unavailable to serve as Diversity Monitor for any reason, Class Counsel and the Company will make a good faith effort to select on a joint basis a new Diversity Monitor. If Class Counsel and the Company are unable to reach agreement as to a successor Diversity Monitor within forty-five (45) days following the date Barry Goldstein becomes unavailable to serve as Diversity Monitor, the Court shall appoint a successor Diversity Monitor upon motion of Class Counsel or the Company. Class Counsel or the Company may nominate to the Court persons for consideration as a successor Diversity Monitor. Class Counsel\n-8[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page12 of 52\nand the Company shall each have the right to interview any nominated person, and to present argument and evidence to the Court regarding the selection of the successor Diversity Monitor. XI. BENCHMARKS FOR JOB FILLS FOR FRONT OF THE HOUSE POSITIONS\nA. Restaurant Benchmarks. Within 13 months after the Final Approval date, and every reporting period thereafter for the life of the decree, the Company shall, with respect to persons placed in Front of the House positions during the preceding reporting period, calculate for each restaurant, and report in its Progress Report (as defined in Section XVIII(D)), one “Restaurant Benchmark” for servers and cocktail servers, one “Restaurant Benchmark” for bartenders, and one “Restaurant Benchmark” for hosts, for the 12 month period following the Final Approval date, and for each reporting period thereafter.\nThe “Restaurant Benchmark” for each position in each restaurant will be the higher of “Applicant Flow” or “Expected Representation of African Americans in the Labor Market.”\n1. Applicant Flow. Applicant Flow means the percentage of all individuals who applied for the specified position in the specified restaurant during the 12 months being measured who are African American. Applicant Flow shall be calculated as follows: The Company shall separately calculate Applicant Flow, for each restaurant, for each of the following positions a) waiter/waitress/server/cocktail server, b) bartender, and c) host, as follows: Calculate the number of applicants who applied for the specified position during the 12 month period under review. The number of applicants for each position shall include all individuals who applied for that position and also who applied for that position plus other positions with the Company. The number of applicants for each position shall not include individuals whose applications fail to identify their race, or state more than one race but do not specify the races. Out of the total number of applicants for each position (as defined in subsection a, above), calculate the number and percentage who identified themselves on the applications as African American or Black, or who identified as more than one race and at least one race identified is African American or Black, or, if the Company modifies the racial categories on its application form to track the 2000 census codes, African American or Black\n-9[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page13 of 52\nmeans individuals falling within census codes for Black non-Hispanic, plus Black and White non-Hispanic, plus Black and American Indian Alaskan Native. This percentage is the “Applicant Flow” for the specified position in the specified restaurant.\n2. Expected Representation of African Americans in the Labor Market. The Company shall separately calculate Expected Representation of African Americans in the Labor Market, for each restaurant, for each of the following positions a) waiter/waitress/server/cocktail server, b) bartender, and c) host, as follows:\na. Calculate, for each restaurant and each position, the percentage of individuals within the \"Relevant Geographical Area\" who fall within the \"Relevant Census Occupations Code\" who are African American or Black, based on Census 2000 data. If, after 2010, but before the termination of the Decree, the Census Bureau completes and makes available an update of the \"EEO Special File\" containing data on occupations by race, the first set of such updated data shall be used for the calculation of benchmarks during the remainder of the term of the Decree. At no time, however, shall the Company be required to use any special EEO availability data source that is not a typical data source endorsed by the U.S. Department of Labor, OFCCP, for AAP reporting requirements of federal government contractors.\nb. Relevant Geographical Area means all census-defined counties/county sets within a 25-mile radius that contributed one or more employees to that particular restaurant's workforce during the relevant year. Determination of counties/county sets will be based on the ZIP codes of employee home addresses for all employees at the restaurant, regardless of position held. Data from each census defined county/county set shall be weighted according to the percentage of employees residing in each county/county set.\nc. For the waiter/waitress/server/ cocktail server positions, the Relevant Census Occupation Code is 411 (waiters and waitresses). For the bartender position, the Relevant Census Occupation Code is 404 (Bartenders). For the host position, the Relevant Census Occupation Code is 415 (Hosts and Hostesses).\n-10[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page14 of 52\nd. For the purpose of this calculation, African American or Black means individuals falling within census codes for Black non-Hispanic, plus Black and White non-Hispanic, plus Black and American Indian Alaskan Native.\nB. Company-wide Placement Benchmarks. Within 13 months after the Final Approval date, and every 12 months thereafter for the life of the decree, the Company shall calculate three (3) “Company-wide Benchmarks:”\n1) one for waiters/waitresses/servers/ cocktail servers, 2) one for bartenders, and 3) one for hosts. The Company-wide Placement Benchmark for each position shall be calculated as follows: 1. For each position, calculate the weighted average of the restaurant-byrestaurant Applicant Flow (as defined in Section XI(A)(1)). The average shall be weighted for the total number of employees placed in the relevant position in each restaurant as of December 31 of the preceding year. 2. For each position, calculate the weighted average of the restaurant-byrestaurant Expected Representation of African Americans in the Labor Market (as defined in Section XI(A)(2)). The average shall be weighted for the total number of employees placed in the relevant position in each restaurant as of December 31 of the preceding year. 3. For each position, the Company-wide Benchmark is the higher of the weighted average of the Applicant Flow and the weighted average of the Expected Representation of African Americans in the Labor Market. C. If Company-Wide Placement Benchmark Is Not Met 1. If the Company reports in its annual Progress Report (Section XVIII(D)) that it has failed to meet any of its three position Company-wide Placement Benchmarks, the Diversity Monitor shall conduct an investigation to determine the cause(s) of the failure to meet the benchmarks not met, including, but not limited to, ascertaining\n-11[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page15 of 52\na. all of the individual restaurants that failed to meet the relevant Restaurant Benchmark;\nb. the decision maker(s) responsible for hiring and job placement at such location(s);\nc. the decision(s) leading to such failure. 2. Within 90 days after the date of the Progress Report, the Diversity Monitor shall issue a Diversity Monitor Report (Section XVIII(E)) that states, among other things, the Diversity Monitor’s findings regarding whether the failure to meet an individual Restaurant Benchmark was due to a failure of the Company or any of its employees to make their Best Efforts to recruit, hire, retain, and/or promote African Americans or otherwise comply with the letter and spirit of the decree. When evaluating whether the failure to meet a benchmark was due to a failure of the Company or any of its employees to use Best Efforts, the Diversity Monitor will consider the following factors, among others:\na. The percentage and number of employees by which the restaurant failed to achieve its benchmark.\nb. Whether the restaurant failed to achieve its Restaurant Benchmark in preceding years, and if so by how much.\nc. Whether the failure to achieve the Restaurant Benchmark is part of any national, regional or local trend of failing to achieve benchmarks.\nd. Whether Applicant Flow at the restaurant(s) is increasing from year-to-year during the life of the Decree, using the data from the first half of 2007 as a point of comparison.\n3. If the Diversity Monitor concludes that any failure to achieve a Restaurant Benchmark is due to a failure of the Company, or one of its restaurants, or any of its employees to make their Best Efforts to recruit, hire, retain, and/or promote African Americans or otherwise comply with the letter of spirit of the decree, the Diversity Monitor will inform Class Counsel and counsel for the Company.\n-12[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page16 of 52\nD. If The Diversity Monitor Finds That the Company or a Restaurant Failed to Make Best Efforts to Meet Benchmarks:\n1. If the Diversity Monitor issues a Diversity Monitor Report concluding that any failure to achieve a Restaurant Benchmark is due to a failure of the Company, or one of its restaurants, or any of its employees to make their Best Efforts to recruit, hire, retain, and/or promote African Americans or otherwise comply with the letter or spirit of the decree, Class Counsel and counsel for the Company will meet and confer to determine appropriate remedial measures.\n2. If Class Counsel and counsel for the Company are unable to agree on appropriate remedial measures within 30 days of the Diversity Monitor Report, Class Counsel and counsel for the Company will present the dispute to the Diversity Monitor. The Diversity Monitor shall set appropriate and proportional remedial measures, which may include:\na. Require restaurant(s) to hire African Americans into Front of the House positions from Registration of Interest lists (if any African Americans are on such list), until the restaurant(s) have hired a number that would have satisfied the benchmark in the previous year.\nb. Require the Company or individual restaurants to hire additional recruiters, and/or increase recruiting efforts at places or institutions with high African American representation (such as historically Black colleges or universities), or advertise in or recruit through media that reach large numbers of African Americans.\nc. Require restaurant(s), or the Company (if applicable) to validate hiring criteria that the Diversity Monitor determines have an adverse impact on African American applicants, and are not job related and consistent with business necessity.\nd. Require restaurant(s) to establish hiring safeguards, including 1) requiring that managers who make hiring decisions evaluate all applicants based on the same set of factors with the same rating system, and 2) requiring that at least two managers independently evaluate each applicant.\n-13[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page17 of 52\ne. Require the Company to provide reports setting forth relevant manager performance evaluation scores, isolating the scores for the EEO section of the performance evaluation, and setting forth any changes in compensation/bonus for each person.\nf. Require the Company to increase the portion of the restaurant’s managers’ compensation tied to achieving EEO and/or impose discipline on managers who are failing to comply with the spirit and terms of the decree.\ng. Require the Company to undertake remedial steps at the regional management level.\n3. In determining the appropriate remedial measures, the Diversity Monitor shall consider, among other things:\na. The percentage and number of employees by which the restaurant failed to achieve its benchmark.\nb. Whether the restaurant failed to achieve its benchmark in preceding years, and if so by how much.\nc. Whether the failure to achieve the benchmark is part of any national, regional or local trend of failing to achieve benchmarks.\nd. Whether Applicant Flow at the restaurant(s) is increasing from year-to-year during the life of the Decree, using the data from the first half of 2007 as a point of comparison.\n4. The Diversity Monitor’s determination shall become final and binding, and enforceable as though it were a Court order, if there is no appeal within 14 days from the date that the Diversity Monitor informs the Parties, in writing, of his determination. If either party disagrees with the remedial measures ordered by the Diversity Monitor, that party may appeal the Diversity Monitor’s decision to the District Court. The Diversity Monitor’s decision shall be reviewed under an “abuse of discretion” standard.\n-14[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page18 of 52\nXII. REGISTRATION OF INTEREST A. Establishing Registration of Interest Program 1. Within ninety (90) days of the Final Approval Date, the Company shall\nimplement a “Registration of Interest” program at each of its unit locations. The program will be implemented to facilitate employees’ expression of interest in both hourly and managementlevel positions.\n2. Each restaurant shall have a single bulletin board that contains postings as follows:\na. On a monthly basis, the Company will post open positions at that location and other metropolitan area locations. Employees will also be directed to the web-based job posting site for the most current listing of all open positions;\nb. Job descriptions for all positions (regardless of whether an opening currently exists); and\nc. Procedures for registering interest in any restaurant-level position (regardless of whether an opening currently exists), including a statement indicating that employees may use managers’ computers to complete an online registration of interest form.\n3. Restaurant managers shall make their computers reasonably available for employees to complete registrations of interest, and shall work with the Regional EEO Managers to ensure that they learn of openings at all restaurants in the local metropolitan area, and post such openings as provided in Section 2(a), above.\n4. The Company shall establish and maintain a Registration of Interest database that contains all information entered by employees who register interest. To the extent that an employee is selected for training or promotion for an open position, the Company shall maintain records of such training or promotion. The employees’ registrations of interest automatically shall be provided to managers making hiring decisions at all area restaurants and, upon request, to the Diversity Monitor.\n-15[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page19 of 52\n5. Employee training shall explain the company Registration of Interest and job posting/promotion policies.\nB. Front of the House and Back of the House (non-Exempt) Positions 1. Employees who register interest in Front of the House and Back of the\nHouse (non-Exempt) position(s) and who meet the following conditions shall be considered applicants for any openings in such position in all area restaurants:\na. The employee has served in his/her current position for six (6) months.\nb. The employee does not have any disability precluding him or her from fulfilling the essential job duties, even with an accommodation;\nc. For positions with a minimum age, the employee is of the required age.\nd. For positions for which any certification is required, the employee must have the requisite certification.\ne. The employee has had an on-time attendance rate of 95% over the preceding six months.\nf. The employee has not committed any violation of Company rules (other than attendance) resulting in formal written discipline within the prior six months.\ng. The employee has a level of English proficiency that is job related and consistent with business necessity.\n2. Nothing in this program should be construed to limit the Company’s ability to promote employees in shorter timeframes than those set forth above, or the ability of employees to apply directly for openings in any restaurant.\nC. Management (Exempt) Positions 1. An employee who registers interest in any management-level (exempt)\nposition and who meets the following conditions shall be considered an applicant for any openings in such position in all area restaurants:\n-16[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page20 of 52\na. The employee has been employed by the Company for 18 months, and for at least one year has held a position immediately subordinate to the management-level position sought.\nb. The employee does not have any disability precluding him or her from fulfilling the essential job duties, even with an accommodation;\nc. For positions with a minimum age, the employee is of the required age.\nd. For positions for which any certification is required, the employee must have the requisite certification.\ne. The employee has had an on-time attendance rate of 95% over the preceding three months;\nf. The employee has not committed any violation of Company rules (other than attendance) resulting in formal written discipline within the prior six months.\ng. The employee has a level of English proficiency that is job related and consistent with business necessity.\n2. Nothing in this program should be construed to limit the Company’s ability to promote employees in shorter timeframes than those set forth above, or the ability of employees to apply directly for openings in any restaurant.\n3. Nothing in this program shall preclude the Company from conducting background checks that are job related and consistent with business necessity for persons being considered for management opportunities.\nD. Record Retention. Registration of Interest forms and data regarding training and hiring via the Registration of Interest Program will be maintained for the Term of the Decree. For employees placed into management-level training, the Company shall maintain written documentation regarding the training for the Term the Decree.\n-17[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page21 of 52\nXIII. SHIFT AND SECTION ASSIGNMENT AND COMPENSATION A. The Company’s annual Progress report (Section XVIII(D)) shall include, among\nother things, data regarding the compensation earned by the server, bartender, and host/hostess job categories by race at each restaurant. If the Diversity Monitor finds that significant disparities exist in the compensation earned by African American and White employees in a restaurant, the Diversity Monitor shall investigate the cause of the disparities. As part of any such investigation, the Diversity Monitor shall have access to Company data showing average base wages, average hourly compensation, and employee shift and table assignments at the restaurant level (including “covers” data demonstrating the number of customers at a table).\nB. If the Diversity Monitor’s Report (Section XVIII(E)) concludes that there are significant pay disparities by race, and those disparities are due to Company compensation policies or practices (including shift or section assignment policies or practices), that have an adverse impact, or result from intentional discrimination, based on race, the Diversity Monitor will inform Class Counsel and counsel for the Company of the factual bases for the finding. Class Counsel and counsel for the Company shall meet and confer to determine appropriate remedial measures. If they are unable to agree, Class Counsel and counsel for the Company shall present the dispute to the Diversity Monitor pursuant to the post-impasse Dispute Resolution Procedures (Section XX(C)). XIV. MANAGER INCENTIVE TO PROMOTE DIVERSITY\nA. The Company shall evaluate unit-level managers and regional managers, in part, on their degree of success in helping the Company to achieve its diversity goals (including achieving Restaurant Benchmarks, implementing the registration of interest program, and otherwise complying with the letter and spirit of this Decree). The Company shall incorporate an evaluation of the manager’s participation and performance in the Company’s efforts to achieve its diversity goals and to implement the registration of interest program into the evaluation of each manager’s bonus. A meaningful portion of the manager’s bonus shall be\n-18[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page22 of 52\nbased on EEO performance objectives established by the Company’s Human Resources Department and consistent with this Decree.\nB. If the Company fails to meet one or more of its Company-wide Benchmarks, the Diversity Monitor may request that the Company provide it with reports setting forth manager bonus evaluation scores, isolating the scores for the EEO section of the bonus evaluation, and setting forth any changes in bonus for each manager in any restaurant that did not achieve its Restaurant Benchmark, or any Regional manager in any Region in which more than two Restaurants missed the Restaurant Benchmark. XV. INTERNAL COMPLAINT SYSTEM\nA. Ethics Point. The Company shall inform all employees that the Ethics Point complaint system provides a means by which employees can submit discrimination and EEOrelated complaints, including complaints related to the Registration of Interest program and to shift and section assignments. The Company shall integrate training on Ethics Point into training programs for new hires and existing employees. The Company shall also post information about Ethics Point prominently on employee bulletin boards. Employees will have the option of calling the Ethics Point hotline or submitting written complaints.\nB. Complaint Investigation. 1. The Regional EEO Managers shall be in charge of investigating race\ndiscrimination complaints in their regions. For each investigation, the EEO Manager shall document:\na. the investigation steps taken (including naming witnesses interviewed, documents gathered, etc.);\nb. the outcome of the investigation; and c. the remedial measures taken (if any). 2. These steps shall be followed for all race discrimination complaints, regardless of whether the underlying complaint is ultimately found to be meritorious.\n-19[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page23 of 52\n3. Employees who are not satisfied with the outcome of an Ethics Point race discrimination complaint shall have an opportunity to appeal directly to the Senior Official.\n4. The records of Ethics Point race discrimination complaints and follow-up investigations shall be maintained at the Company’s corporate headquarters in Portland, Oregon for the Term of the Decree. Summaries of Ethics Point investigation reports alleging race discrimination shall be appended to monitoring reports provided to Class Counsel. XVI. RECRUITING\nA. The Company shall create a new position of Corporate Recruiter, who will be based in Portland, Oregon. The Corporate Recruiter will undertake his or her Best Efforts to increase diversity in all Front of the House non-exempt positions and in all exempt positions.\nB. The Corporate Recruiter will work with Regional EEO Managers and Unit Managers at existing and new restaurants to increase the recruitment and hiring of African Americans. This shall include 1) developing a list of recruitment and outreach sources, such as schools with high African American attendance levels, and job fairs attended by large numbers of African Americans, 2) developing a list of advertising media that have a large African American audience, and 3) advertising all job openings in outreach sources and media identified pursuant to subsections 1 and 2, above. Within 180 days after the Final Approval Date, the Corporate Recruiter will provide the Diversity Monitor with all such lists, along with a summary of additional recruitment efforts and strategies undertaken.\nC. In the event that the African American Applicant Flow (as defined in Section XI(A)(1)) for any position in any restaurant declines for two consecutive years, the Company shall exercise its Best Efforts to increase the Applicant Flow to 1) the highest level recorded in any year for that position in that restaurant during the term of the Decree, or 2) the Applicant Flow for that position in that restaurant during the first half of 2007, whichever is higher.\nD. In the event that the Applicant Flow (as defined in Section XI(A)(1)) for any position in any restaurant in any year is lower than the Expected Representation of African Americans in the Labor Market (as defined in Section XI(A)(2)) for that position in that\n-20[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page24 of 52\nrestaurant in that year, the Company shall, within 30 days after the close of the next Reporting Period, develop a plan to increase the Applicant Flow percentage to at least the Expected Representation of African Americans. The Company shall present that action plan to Class Counsel. Class Counsel and the Company shall meet and confer about the plan. If Class Counsel and the Company are not in agreement about the plan, they shall ask the Diversity Monitor to make a recommendation about an appropriate plan designed to increase Applicant Flow at the restaurant to at least the Expected Representation of African Americans in the Labor Market in that restaurant’s Relevant Geographical Area (as defined in Section XI(A)(2)). The Diversity Monitor’s recommendation shall become final and binding, and enforceable as though it were a Court order, if there is no appeal within 14 days from the date that the Diversity Monitor informed the Parties of his recommendation. If either party appeals the decision to the District Court, the Diversity Monitor’s recommendation shall be reviewed under an “abuse of discretion” standard. XVII. EMPLOYEE AND MANAGER TRAINING\nA. Employee Training. 1. Not later than 180 days after the Final Approval Date, the Company shall\nprovide to each of its restaurant-level employees a video presentation and written materials that: a. affirm the Company’s commitment to diversity and equal\nemployment opportunity; and b. explain the Registration of Interest Program and the methods for\nlearning about other positions in the restaurant and job openings at all area restaurants; and c. explain the Company’s Ethics Point complaint procedures.\n2. The video presentation shall also be provided to all restaurant level new hires within 30 days of their first day of work.\n3. A copy of the video and training materials shall be provided to Class Counsel. At least once every two years during the term of the Decree, the Company shall provide a similar communication to each of its restaurant-level employees, after first providing a\n-21[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page25 of 52\n\ncopy of any new materials and reasonable opportunity for comment to Class Counsel. The\n\nwritten communications will be signed and issued by the Chief Executive Officer of the\n\nCompany.\n\nB. Management Training.\n\n1. In addition to the employee training set forth in Section XVII(A), the\n\nCompany will provide an EEO and diversity training program for all exempt employees at the\n\nrestaurant, regional, and executive levels.\n\n2. The manager training will cover the issues included in the employee\n\ntraining set forth in Section XVII(A), but will provide more depth about complaint procedures\n\nand investigation, use of the Registration of Interest program, the recruitment provisions in the\n\nDecree, the Benchmark provisions in the Decree, the EEO Component of manager\n\ncompensation, and other terms and conditions of this Decree. The training will also include an\n\ninteractive training module to help managers identify barriers that inhibit valuing race and ethnic\n\ndiversity, understand why race and ethnic diversity awareness and acceptance is important to the\n\nCompany’s growth and future, and learn how race and ethnic stereotypes hinder effective\n\ncommunication and workplace interactions. Such training shall not be provided solely through\n\nwritten materials.\n\n3. No less than two hours shall be devoted to the training on these topics for\n\nall exempt employees within 180 days of the Final Approval Date, and every 24 months\n\nthereafter during the term of the Decree; provided, however, that if some topics covered by the\n\ntraining have been covered by training provided to exempt employees within the 18-month\n\nperiod prior to the Final Approval Date, the Company need not repeat training on such topics for\n\nthose employees within 180 days of the Final Approval Date. For all employees hired or\n\npromoted into exempt positions after the Final Approval Date, such training shall also be\n\nprovided within 120 days of employment or promotion.\n\nXVIII.\n\nREPORTING AND RECORDKEEPING\n\nA. Documents to Be Preserved for the Term of the Decree\n\n-22[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page26 of 52\nThe Company shall retain the following employment-related records for the Term of the Decree or as required by state or federal law, whichever is longer:\n1. A computer readable database or databases containing computerized payroll and personnel information for restaurant-level employees. The payroll information contained in the database or databases shall include the information currently contained in the Company’s payroll databases. The personnel information shall include the job position and race of each employee.\n2. Records showing each employee’s shift and table assignments. 3. All versions of Registration of Interest Forms. 4. Registration of Interest records. 5. Records of the Company’s recruitment efforts. 6. Job descriptions, including any changes to job descriptions. 7. Documentation of any validation studies performed on any employment requirements. 8. Copies of Ethics Point complaints regarding race discrimination, and documentation of investigations, findings and remedial measures taken. 9. Training documents and videos. 10. All documents expressly required to be created by this Decree. Nothing in this Decree shall be interpreted to relieve the Company of any recordkeeping requirements otherwise imposed by applicable Federal or State law. B. Access to Documents. The Diversity Monitor will have access to all documents and information reasonably related to his/her responsibilities pursuant to the Decree. The Diversity Monitor and Class Counsel shall, upon reasonable notice, be entitled to review all documents required to be maintained or created by the express terms of this Decree, except, however, that neither Class Counsel nor the Diversity Monitor shall be entitled to review any such documents that are protected by attorney-client or work product privilege. C. Reporting Schedule. The Company shall provide Progress Reports to the\n-23[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page27 of 52\nDiversity Monitor and Class Counsel regarding the Company’s compliance with the Decree’s requirements 30 days after the close of the following reporting periods: 1) Months 1-12 after the Final Approval Date; 2) Months 13-24 after the Final Approval Date; 3) Months 25-36 after the Final Approval Date; 4) Months 37-48 after the Final Approval Date; and, if the Consent Decree has not been terminated pursuant to Section V(B), 5) Months 49-56 after the Final Approval Date.\nD. Contents of the Company Progress Reports. The Progress Reports shall include the following information:\n1. A chart or charts displaying, for each Front of the House position in each restaurant, 1) the Applicant Flow, including the total number of applicants (as defined in Section XI(A)(1)), the total number who were African American (as defined in Section IIII(A)), and the resulting percentage; 2) the Expected Representation of African Americans in the Labor Market (as defined in Section XI(A)(2)); 3) the number of persons hired or promoted to fill that position at that restaurant during that year; and 4) the number and percentage of individuals hired or promoted to fill that position at that restaurant during that year who were African American.\n2. A chart setting forth the Company-wide Benchmarks, and whether they were met, with respect to the percentage of persons hired or promoted into the position during the year.\n3. A chart comparing the Applicant Flow (as defined in Section XI(A)(1)) for Front of the House positions at each restaurant for each year during the Term of the Decree, which shall include as an initial point of comparison the Applicant Flow from the first six months of 2007.\n4. A chart or charts setting forth Registration of Interest records received, by race (African American and all others) and by job category, training provided based on Registration of Interest by race (African American and all others) and job category, and promotions made to individuals who used the Registration of Interest program by race (African\n-24[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page28 of 52\nAmerican and all others) and job category during the reporting year and for the Term of the Decree.\n5. A chart or charts setting forth average hourly wages, average weekly hours, and average compensation per hour for African American and White employees for each Front of the House position in each restaurant.\n6. A description of the implementation and delivery of the training required by Sections XVII, and lists of those in attendance.\n7. Summaries of Ethics Point complaints regarding a) race discrimination and race-based retaliation, b) the Registration of Interest Program, and/or c) section/shift assignments received during the year, including a summary of the nature of the complaint, the nature of the investigation that was undertaken, and the outcome. Upon request, further documentation, including actual reports and investigation notes, shall be provided to the Diversity Monitor.\n8. Certification by the Senior Official that she or he has used Best efforts to see that the Consent Decree is implemented.\n9. The first Progress Report shall also contain a statement setting forth the qualifications for each restaurant position; subsequent Reports shall set forth any changes made to such qualifications.\n10. The final Progress Report shall also include a chart comparing the number of African American, White and all other employees in Front of the House positions at each restaurant for each year during the Term of the Decree, which shall include as an initial point of comparison the number of African Americans, White and all other employees in Front of the House positions as of year-end 2006.\nE. Diversity Monitor Reports 1. Upon receipt of the Company’s Progress Report, the Diversity Monitor\nshall review the Report and identify any potential or actual failures to achieve benchmarks or to use Best Efforts, and conduct any investigation required by this Decree.\n-25[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page29 of 52\n2. Within 90 days after the Company’s first four Progress Reports, and within 45 days after the Company’s fifth progress report, the Diversity Monitor shall issue a report to Class Counsel and the Company setting forth:\na. Whether the Diversity Monitor has found that the Company achieved its Company-wide Benchmarks. If the Diversity Monitor has found that the Company failed to achieve any Company-wide Benchmark, the Report shall specify:\ni. which Company-wide Benchmark(s) were missed and the individual restaurant(s) that missed the restaurant benchmark;\nii. what investigation the Diversity Monitor undertook to determine the cause of the failure(s);\niii. the Diversity’ Monitor’s findings regarding the cause of the failure(s) to achieve the benchmark(s); and\niv. the Diversity Monitor’s recommendation regarding remedial measures to be taken.\nb. Whether the Diversity Monitor has found that Applicant Flow for any position in any restaurant has declined for two consecutive years. If so, the Diversity Monitor’s report shall specify:\ni. what investigation the Diversity Monitor undertook to determine the cause of the failure(s) with respect to Applicant Flow;\nii. whether the Diversity Monitor has found that the Company or any restaurant or company employee failed to use Best Efforts to recruit African American applicants; and\niii. the Diversity Monitor’s recommendation regarding remedial measures to be taken.\n-26[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page30 of 52\nc. Whether the Diversity Monitor found that any significant racial disparities exist in the average hourly wages earned by the three benchmark job categories at each restaurant. If the Diversity Monitor finds significant racial disparities, the Report shall specify:\ni. what investigation the Diversity Monitor undertook to determine the cause of the disparities;\nii. the Diversity’ Monitor’s findings regarding the cause of the disparities; and\niii. the Diversity Monitor’s recommendation regarding remedial measures to be taken.\nd. Any other matters that the Diversity Monitor believes are necessary in order to implement the letter and spirit of this Decree.\nF. Parties to Meet and Confer. If the Diversity Monitor has made any finding that the Company has failed to use Best Efforts to effectuate any requirement of this Decree, the parties shall, within 30 days of receipt of the Diversity Monitor’s Report, meet and confer to discuss appropriate remedial measures to be taken, if any. If the parties are unable to reach agreement at such meet and confer session, either Party may invoke the post-impasse Dispute Resolution procedures set forth in Section XX(C). XIX. COMPLIANCE REPORT TO THE COURT\nAt any time during the operation of the Decree, Class Counsel or the Diversity Monitor may request that a Compliance Hearing be held before the Court. Class Counsel shall provide four weeks’ notice to the Company and the Diversity Monitor before making any such request. The Diversity Monitor shall provide four weeks’ notice to Class Counsel and the Company before making any such request.\nEither Class Counsel or the Diversity Monitor can also file a written report with the Court, including a report updating the Court on the status of Decree compliance. Class Counsel or the Diversity Monitor shall give counsel for the Company two weeks’ notice before filing\n-27[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page31 of 52\nsuch a report. Counsel for the Company may add a supplement to the report, or file its own report. XX. DISPUTE RESOLUTION AND ENFORCEMENT PROCEDURES\nA. General. 1. The Diversity Monitor shall have authority to resolve all disputes arising\nunder the Decree, subject to limitations and standards set forth in the Decree. 2. At the request of Class Counsel or the Company, the parties shall use Best\nEfforts to resolve promptly any differences or any disputes regarding the interpretation or implementation of the Consent Decree.\n3. Class Counsel or the Company shall have the right to initiate steps to resolve any dispute or issue of compliance regarding any provision of the Decree subject to limitations and standards set forth in the Decree.\nB. Initial Dispute Resolution Procedures. 1. If Class Counsel or the Company has good reason to believe that a\nlegitimate dispute exists, the initiating party shall first promptly give written notice to the other party including: (a) a reference to all specific provisions of the Decree that are involved; (b) a statement of the issue; (c) a statement of the remedial action sought by the initiating party; and (d) a brief statement of the specific facts, circumstances and any other argument supporting the position of the initiating party;\n2. Within twenty one (21) days after receiving such notice, the non-initiating party shall respond in writing to the statement of facts and arguments set forth in the notice and shall provide its written position, including the facts and arguments upon which it relies in support of its position;\n3. Class Counsel and the Company shall undertake good-faith negotiations, including meeting or conferring by telephone or in person and exchanging relevant documents and/or other information, to attempt to resolve the issues in dispute or alleged noncompliance;\nC. Post-Impasse Dispute Resolution Procedures.\n-28[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page32 of 52\n1. The Diversity Monitor, upon motion, may permit Class Counsel or the Company to take post-settlement discovery as provided by the Federal Rules of Civil Procedure, but only as to matters relevant to the underlying claim of breach, if the Diversity Monitor determines that the informal exchange of documents or information has not been sufficient to allow Class Counsel or the Company to present the dispute upon a factual record adequate for a fair determination of the issue.\n2. If the parties’ good-faith efforts to resolve the matter have failed, and after written notice of an impasse by the moving party to the non-initiating party or parties, Class Counsel or the Company may file a motion with the Diversity Monitor, with a supporting brief, requesting resolution of the dispute or the issues of non-compliance, provided however, that such motion shall be limited to the dispute(s) and/or issue(s) as to which the parties have met and conferred as described in this Section.\n3. The non-moving parties will have fifteen (15) days to respond to any such motions.\n4. The Diversity Monitor shall attempt within fifteen (15) days after filing of the final brief to resolve the dispute and may schedule a hearing or other proceeding, including an evidentiary hearing, to resolve the matter.\n5. Within thirty (30) days of any hearing, the Diversity Monitor shall issue a written determination, including findings of fact if requested by any Party.\n6. The Diversity Monitor’s determination shall become final and binding, and enforceable as though it were a Court order, if there is no appeal within 14 days from the date that the Diversity Monitor informed the Parties of his determination.\n7. Class Counsel or the Company may appeal a decision of the Diversity Monitor to the Court provided that such an appeal is made within fourteen (14) days of receipt of notice of the decision by the Diversity Monitor. Any such appeal shall be brought by motion under the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the Diversity Monitor shall be affirmed unless the Court determines that the Diversity\n-29[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page33 of 52\nMonitor’s decision was an abuse of discretion under the Consent Decree. A party may seek on appeal any remedy provided by law, provided that such remedy is consistent with the provisions of this Decree.\n8. Only Class Counsel or the Company shall have standing to move the Court to enforce, apply, or modify this Decree. Any individual concerned about the Company’s compliance with this Decree may so notify Class Counsel or the Diversity Monitor and request that they examine the Company compliance and seek such relief, if any, as may be appropriate.\n9. In the event that any party seeks to use the dispute resolution procedure set forth in Section XX, then each party shall bear its own attorneys’ fees, costs and expenses for all work performed through resolution by the Diversity Monitor. In the event that any party seeks to appeal any decision of the Diversity Monitor, then the prevailing party in such matter shall be entitled to recover reasonable attorneys’ fees, costs and expenses incurred in such appeal from the other party, consistent with applicable standards under Title VII. Whether and to what extent any party is a prevailing party entitled to an award of fees and expenses shall be determined in the sole and absolute discretion of the Court. For purposes of this Section, Class Counsel shall be deemed a “party” to any enforcement proceedings.\n10. The provisions of this Section do not prevent Class Counsel or the Company from promptly bringing an issue directly before the Court when exigent facts or circumstances require immediate Court action to prevent a serious violation of the terms of this Decree, which otherwise would be without meaningful remedy. The moving papers shall explain the facts and circumstances that allegedly necessitate immediate action by the Court. Absent a showing of exigent facts or circumstances, the Court shall refer the matter to the Diversity Monitor to resolve in accordance with procedures set forth above. If any such matter is brought before the Court requesting immediate action, the other party shall be provided with appropriate actual notice, and an opportunity to be heard on the motion, under the Local Rules of the Court and the Federal Rules of Civil Procedure. The Court in its discretion may set such\n-30[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page34 of 52\nprocedures for emergency consideration as are appropriate to the particular facts or circumstances, but no such matter may be heard or considered on an ex parte basis.\n11. The dispute resolution provisions set forth in Section XX are not intended to be an exclusive mechanism for resolution of complaints of discrimination by the Company. The Company’s employees complaining of violations of state and/or federal law prohibiting discrimination in employment may use the Company’s internal complaint procedure or may file charges with the EEOC, or the state or local fair employment agency, even where such violations, if proven, might also constitute violations of the provisions in this Consent Decree. Individual complaints for such alleged violations, as distinguished from pattern or practice allegations, shall not be considered to raise an issue of compliance or non-compliance with this Decree. XXI. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE\nA. The Claims Administrator will open and administer an interest-bearing Qualified Settlement Fund account (“QSF”) with a unique Tax Payer Identification Number. Within five (5) business days after the Preliminary Approval Date, the Company shall pay $2.1 million into the QSF for the purpose of providing individual monetary awards to the Class Representative and other eligible members of the Settlement Class pursuant to Sections XXI(D)(1), payment of one half of the employer’s share of payroll taxes pursuant to Section XXVII(C)(2), payment of the employees’ share of payroll taxes pursuant to Section XXVII(C)(2), payment of attorneys’ fees, litigation expenses, and costs, as provided in Section XXI(D)(3), service payment for Class Representative Juanita Wynne, pursuant to Section XXI(D)(2), separate payment to Dante Byrd and Juanita Wynne for release of their non-class claims, pursuant to Section XXI(D)(4), and claims administration and monitoring of the Decree, as provided in Section XXI(D)(5).\nB. After the Settlement Effective Date, and within seven business days after the Claims Administrator has informed the Company in writing that it is prepared to distribute monetary awards to the eligible members of the Settlement Class, the Company will also wire to\n-31[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page35 of 52\nthe QSF one half of the employer’s share of all applicable payroll taxes on amounts treated as wages.\nC. Nothing herein shall be deemed to require the Company to separate or segregate its assets into a restricted fund. The QSF will be created, managed and disbursed by the Claims Administrator under the supervision of Class Counsel. The Company will have no responsibilities or liabilities with respect to the QSF, its administration, or distributions therefrom.\nD. Distribution of QSF Funds. 1. Payments to Settlement Class members. The Claims Administrator will\ndistribute $1.1 million from the QSF, less any amount awarded by the Court for the payment of a Service Award, less one half of the employer’s share of payroll taxes on amounts designated as wages, less the employees’ share of payroll taxes on amounts designated as wages, and less appropriate withholdings from amounts designated as wages, as set forth in Section XXVII(C)(2), to eligible members of the Settlement Class according to the Distribution Formula.\n2. Service Award. The Claims Administrator will distribute a Service Award in the amount of $5,000, or such amount as is approved by the Court, not to exceed $5,000, to Class Representative Juanita Wynne. This amount will compensate Juanita Wynne in consideration for the time and effort she expended in these proceedings, including providing information and assistance in prosecuting and settling this action, responding to written discovery and document requests, and preparing for and submitting to deposition. Payment of the Court-approved service payment shall be made from the QSF no later than (7) business days after the Settlement Effective Date or the issuance of a court order approving the Motion for Service Payments, whichever is later. This amount shall not be deemed wages, and the Claims Administrator shall issue a form 1099 for this amount. The amount of the service payment, if any, shall be in addition to any amount Ms. Wynne is eligible to receive pursuant to this Consent Decree as a member of the Settlement Class and for waiver of her non-class claims.\n-32[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page36 of 52\n3. Attorneys’ Fees and costs. The Claims Administrator will distribute $900,000, or such amount as is approved by the Court, to Class Counsel for work they performed and costs they expended through the date of final settlement approval. This amount fully satisfies any statutory obligation the Company may have, or might incur, to pay attorneys’ fees, litigation expenses, and costs for and on behalf of the Plaintiffs, the Class Representative and Settlement Class for any and all work performed and costs and expenses incurred through and including the Final Approval Date. The Claims Administrator will wire from the QSF to Class Counsel the amount of Court-approved attorneys’ fees, litigation expenses, and costs for the period prior to Final Approval within seven (7) business days after the Settlement Effective Date or the issuance of a court order approving Class Counsel’s attorneys’ fees, litigation expenses, and costs, whichever is later.\n4. Named Plaintiffs Dante Byrd and Juanita Wynne. The Company has agreed to pay $5,000 each to named plaintiffs Dante Byrd and Juanita Wynne to settle any and all claims arising out of their application for employment or employment with McCormick & Schmick’s, including, for Ms. Wynne, a release of any non-class claims for race harassment/hostile work environment, and, for Mr. Byrd, a release of any non-class claims arising out of his application for employment with McCormick & Schmick’s. The Claims Administrator shall pay these amounts from the QSF within seven (7) business days after the Settlement Effective date. The payment to Ms. Wynne pursuant to this subsection shall be in addition to the amount of the service payment, if any, that the Court approves and the amount that Ms. Wynne is eligible to receive pursuant to this Consent Decree as a member of the Settlement Class. Mr. Byrd is not a class member and is not eligible to receive any other payment pursuant to this Consent Decree, including any service payment.\n5. Administration and Monitoring Fund. The Claims Administrator shall allocate $90,000, plus all interest earned on moneys in the QSF, plus any amount from uncashed checks pursuant to XXVII(E), as an Administration and Monitoring Fund.\n-33[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page37 of 52\na. The Administration and Monitoring Fund shall be used to pay the expenses of the Claims Administrator pursuant to Section XXIV(D), the fees and expenses of the Diversity Monitor pursuant to Section XXVIII, the attorneys’ fees and expenses of Class Counsel incurred in implementing and monitoring the Decree pursuant to Section XXIX(A), and any taxes owing on any net income of the Qualified Settlement Fund.\nb. If there are insufficient funds in the Administration and Monitoring Fund, the other items listed in XXI(D)(5)(a) will be given priority over payment to Class Counsel. If the Administration and Monitoring Fund has enough money to cover all of the items listed in XXI(D)(5)(a), Class Counsel will receive its full hourly rate for its monitoring work. Consent Decree Section XXIX(A).\nc. If there is any amount remaining in the Administration and Monitoring Fund after the Decree has terminated and all outstanding bills pursuant to subsection a (above) have been paid, Class Counsel may apply to the Court for an award of such remaining amount 1) as compensation for work performed prior to the Final Approval Date that was not compensated as part of the proposed $900,000 attorneys’ fee award, and 2) as compensation for having undertaken the risk that the Administration and Monitoring Fund would not have sufficient funds to compensate Class Counsel for work performed in implementing and monitoring the Decree. In the event that the Court does not approve payment of the full amount to Class Counsel, the remaining amount shall be distributed as follows:\ni. If the amount is $50,000 or more, the funds shall be distributed (less claims administration costs) on a pro-rata basis to class members who submitted timely and valid claim forms;\nii. If the amount is less than $50,000, the funds shall be distributed to a charity mutually agreed-upon by the parties.\n-34[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page38 of 52\n\nXXII. NOTICE TO CLASS A. Within twenty (20) days following the Preliminary Approval Date, McCormick &\nSchmick’s shall provide the Claims Administrator with a computer disk containing the full name, social security number, last known address and phone number, position(s) held during the class period, start date during the class period, and, as applicable, end date of employment for each position held during the class period, for all employees employed by McCormick & Schmick’s through the Preliminary Approval Date who are potential Settlement Class members.\n\nB. Upon receipt of the computer disc, the Claims Administrator will update the\n\naddresses of employees provided by McCormick & Schmick’s through the National Change of\n\nAddress (“NCOA”) system.\n\nC. Within ten (10) days of the date that the Claims Administrator receives the data\n\ndescribed in Section XXII(A), the Claims Administrator shall mail, via first class postage, pre-\n\nprinted Notices of Class Settlement and Claim Forms, all in the form approved by the Court in\n\nthe Preliminary Approval Order, to all known potential Settlement Class members at their last\n\nknown address or at the most recent address that may have been obtained through the NCOA.\n\nD. The Claims Administrator will trace all returned undeliverable notices and re-mail\n\nto the most recent address available.\n\nXXIII.\n\nOBJECTIONS AND OPT OUTS\n\nClass members may object to or opt-out of the class settlement.\n\nA. Objections. Class members objecting to the terms of the settlement must do so in\n\nwriting; the written objection must be sent to the Claims Administrator postmarked on or before\n\nthe date specified in the Preliminary Approval Order. The Claims Administrator will record the\n\ndate of receipt of the objection and forward it, by e-mail as a PDF attachment, to both\n\nMcCormick & Schmick’s and Class Counsel within two (2) business days following receipt.\n\nClass Counsel will file the original objections with the Clerk of the Court no later than five (5)\n\ndays prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain copies\n\n-35[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page39 of 52\nof all written objections until such time as it has completed its duties and responsibilities under this Decree.\nB. Opt-Outs. 1. Class members may exclude themselves, or opt-out, of the monetary relief\nprovisions of the class settlement. Any request for exclusion must be in the form of a written “opt-out” statement sent to the Claims Administrator postmarked on or before the date specified in the Preliminary Approval Order. Information on how to opt-out of the settlement shall be made available by the Claims Administrator. A person wishing to opt-out must sign and date a statement which includes the following language:\nI understand that I am requesting to be excluded from the class monetary settlement and that I will receive no money from the settlement fund created under the Consent Decree entered into by McCormick & Schmick’s. I understand that if I am excluded from the class monetary settlement, I may bring a separate legal action seeking damages, but may receive nothing or less than what I would have received if I had filed a claim under the class monetary settlement procedure in this case. I also understand that I may not seek exclusion from the class for injunctive relief and that I am bound by the injunctive provisions of the Consent Decree entered into by McCormick & Schmick’s. 2. The Claims Administrator shall date stamp the original of any Opt-out statement and serve copies on both McCormick & Schmick’s and Class Counsel by email as a PDF attachment within two (2) business days of receipt of such statement. Class Counsel will file a list of timely opt outs with the Clerk of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall not include in the filing with the Court the Opt Out Statements of those class members who submitted complete and timely Opt Out Rescission statements. The Claims Administrator shall retain copies of all Opt-out statements until such time as it has completed its duties and responsibilities under this Decree. C. Rescission of Class Member Opt-Outs. 1. The parties recognize that some class members who initially submit Optout statements seeking exclusion may, upon further reflection, wish to withdraw or rescind such\n-36[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page40 of 52\nOpt-out statements. The parties agree that class members shall be permitted to withdraw or rescind their Opt-out statements by submitting a “Rescission of Opt-out” statement to the Claims Administrator. The Rescission of Opt-out statement shall include the following language:\nI previously submitted an Opt-out statement seeking exclusion from the class monetary settlement. I have reconsidered and wish to withdraw my Opt-out statement. I understand that by rescinding my Opt-out I may be eligible to receive an award from the claims settlement fund and may not bring a separate legal action against McCormick & Schmick’s seeking damages with respect to the Released Claims. I further understand that in order to receive an award from the claims settlement fund, I must submit a complete and timely claim form. 2. A class member submitting such a rescission statement shall sign and date the statement and send it to the Claims Administrator postmarked no later than the deadline for the claims filing period specified in the Preliminary Approval Order. 3. The Claims Administrator shall stamp the date received on the original of any Rescission of Opt-out statement and serve copies to counsel for McCormick & Schmick’s and Class Counsel by email as a PDF attachment no later than (2) days after receipt thereof. Class Counsel will file the date-stamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Fairness Hearing. The Claims Administrator shall retain copies of all Rescissions of Opt-out statements until such time as the Claims Administrator is relieved of its duties and responsibilities under this Decree. 4. McCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree prior to the Settlement Effective Date if five percent (5%) or more of the Class Members opt-out of the monetary relief provisions of the Consent Decree and do not rescind their opt-out statements. If McCormick & Schmick’s exercises its unilateral right to revoke the Consent Decree pursuant to this section, it shall inform Class Counsel within ten business days after the deadline for postmarking opt out statements. In the event that McCormick & Schmick’s exercises its unilateral right to revoke the Consent Decree pursuant to this section, all monies in\n-37[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page41 of 52\n\nthe QSF, and all income earned thereon, shall be immediately returned to the entity that funded\n\nthe QSF.\n\nXXIV.\n\nCLAIMS ADMINISTRATION\n\nA. The Claims Administrator shall (1) prepare and mail settlement notices and claim\n\nforms to class members; (2) receive and evaluate claims eligibility; (3) seek additional\n\ninformation from claimants, when appropriate; (4) receive, serve, and file opt-out statements,\n\nrescission of opt-out statements, and objections; (5) respond to questions from potential class\n\nmembers; (6) implement the allocation plan; (7) maintain a toll-free number for communicating\n\nwith class members; (8) establish and operate a website designed to provide information to and\n\ncommunication with class members; (9) administer the QSF and the Administration and\n\nMonitoring Fund; and (10) perform any other duties necessary to carry out its responsibilities set\n\nforth in this Decree.\n\nB. The Claims Administrator shall make notices and claim forms available to\n\npotential class members who submit oral, e-mail, or written requests for notices or claim forms.\n\nIf a potential class member requests that a notice or claim form be sent by mail, the Claims\n\nAdministrator shall mail the requested notice or claim form via first class mail within one (1)\n\nbusiness day after receiving a request. If a potential class member requests a notice or claim\n\nform to be sent by email or fax, the Claims Administrator shall email or fax the requested notice\n\nor claim form within (1) business day after receiving a request.\n\nC. If McCormick & Schmick’s, or its counsel, receives requests for notices, claim\n\nforms or for information regarding the class settlement, it shall refer such requestors to the toll-\n\nfree number established by the Claims Administrator for the purpose of administering this\n\nsettlement. The requestors shall be informed that any requests for notices, claim forms or\n\ninformation should be directed to the Claims Administrator. The Claims Administrator shall\n\nretain copies of all written requests for notices, claim forms and all records of oral or e-mail\n\nrequests for notices or claim forms until such time as it has completed its duties and\n\nresponsibilities under this Decree.\n\n-38[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page42 of 52\nD. The fees, costs, and expenses of the Claims Administrator shall be paid from the Administration and Monitoring Fund, established pursuant to XXI(D)(5). The Claims Administrator shall forward to Class Counsel invoices for work performed pursuant to this Decree. Unless Class Counsel objects, the Administration and Monitoring Fund shall pay the Claims Administrator the amount invoiced 30 days after the date of the invoice.\nClass Counsel reserves the right to challenge bills of the Claims Administrator if the amount of time billed is excessive for the work performed. Such challenges will be reviewed by the Court. XXV. SUBMISSION OF CLAIM FORMS\nA. To be eligible for payment of a monetary award from the QSF, an individual must:\n1. Complete a claim form signed under penalty of perjury and send it to the Claims Administrator postmarked by the claim filing deadline set forth in the Preliminary Approval Order. The claim form must be postmarked on or before such date in order to be considered timely, unless good cause is shown for failure to have such timely postmark. All claim forms must be signed under penalty of perjury to be considered.\n2. Provide her or his full name, current address, current social security number, and other name(s) used while applying for or being employed by McCormick & Schmick’s; and\n3. State that she or he is African American or Black, or is more than one race, one of which is African American or Black.\nB. The Claims Administrator shall be available through the toll-free telephone number and via e-mail through the Claims Website to respond to requests from class members for assistance in completing and filing claim forms. Class Counsel shall also be available to consult with and provide assistance to potential class members who request assistance in completing their claims forms.\n-39[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page43 of 52\n\nXXVI.\n\nREVIEW OF CLAIM FORMS\n\nA. Incomplete Claim Forms. The Claims Administrator shall make the\n\ndetermination as to whether a claim form is complete. If it is not complete, the Claims\n\nAdministrator shall, within seven (7) days of receipt of the claim form, request additional\n\ninformation from the claimant, if it appears that such additional information would complete the\n\nClaim Form. Such requests for information shall be in writing and shall specify the information\n\nnecessary to complete the claim form. The request for information will be sent via first class\n\nmail and inform the claimant that a response must be returned no later than thirty days from the\n\ndate the request for information was mailed. The claimant must provide the requested\n\ninformation, signed under penalty of perjury, to the Claims Administrator by mail with a\n\npostmark no later than thirty days from the date of the mailed request for information. Such\n\nadditional information shall be considered part of the original claim form and will relate back to\n\nthe original filing date. The failure of a claimant to timely respond to the request for information\n\nmay result in the denial of the claim.\n\nB. Deceased Claimants. Claims may be filed by deceased claimants through\n\nrepresentatives of their estate if a photocopy of a death certificate and a statement of\n\nrepresentation is included with the claim form. Claim payments shall be made payable to the\n\nestate of the deceased claimant.\n\nC. Late-Filed Claims. For claims received after the filing deadline, the Claims\n\nAdministrator shall notify late-fling claimants that their claims are untimely and that they are not\n\neligible for any monetary award, unless the Court determines that the Claimant has established\n\ngood cause for filing late, and that accepting the untimely claim form will not delay the\n\nSettlement Effective Date or the distribution of funds pursuant to this Consent Decree.\n\nD. Appeals of Claims Eligibility.\n\n1. Within ninety (90) days of the close of the claims filing period, the Claims\n\nAdministrator shall provide written notice to inform all ineligible claimants of their ineligibility\n\nfor monetary relief. Any claimants wishing to seek review of their ineligibility determinations\n\n-40[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page44 of 52\nmust do so by returning a written request for review to the Claims Administrator by mail with a postmark no later than twenty-one days from the date of the notice of claim ineligibility. Failure to file a timely request for review shall bar a claimant from challenging a determination of ineligibility.\n2. The Claims Administrator shall resolve the requests for review based on the written request for review and any other documentation or written information submitted by the claimant, or deemed necessary by the Claims Administrator. The Claims Administrator may seek further written information from the claimant as to the basis of their request and may consider the written arguments of counsel for McCormick’s.\n3. The Claims Administrator shall attempt to expeditiously resolve any request for review within sixty days after the filing of the request for review. The Claims Administrator’s decisions shall be communicated to the claimant in writing and shall be final, binding and non-appealable.\nE. Claimant Information Provided by McCormick & Schmick’s The parties understand and agree that McCormick & Schmick’s may possess information that may assist in the determination of eligibility of potential class members for monetary compensation. McCormick & Schmick’s shall reasonably cooperate in providing such information which Class Counsel or the Claims Administrator deems reasonably necessary to assist in determining the eligibility of any class member for monetary relief. McCormick & Schmick’s shall attempt to provide such information within fourteen days of any written request for the information. Neither Class Counsel nor the Claims Administrator shall be entitled to receive information that is protected by attorney-client or work product privilege. F. Confirmation of Receipt of Claim Form The Claims Administrator website shall provide a means for class members to obtain confirmation of receipt of their claim forms. In addition, the Claims Administrator shall respond to all requests from class member for confirmation of receipt of claims forms.\n-41[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page45 of 52\n\nXXVII.\n\nPLAN OF ALLOCATION\n\nA. Distribution Formula.\n\n1. Each eligible class member shall receive 1 point for each full pay period\n\nworked in any Front of the House position, and 3 points for each full pay period worked in any\n\nBack of the House position.\n\n2. Sixty (60) days after the claims filing deadline, the Claims Administrator\n\nshall total the points applicable to all eligible claimants, determine each eligible claimant’s\n\nproportionate share of the total points, and allocate each eligible claimant’s proportionate share\n\nof the Settlement. Once this formula is completed, the Claims Administrator shall inform Class\n\nCounsel and the Company that it has completed the calculations required by the Plan of\n\nDistribution.\n\nB. Allocation of Monetary Awards. The monetary awards shall be allocated to lost\n\nwages, compensatory damages, and interest, with 30% allocated to lost wages, 50% allocated to\n\ncompensatory damages, and 20% allocated to interest.\n\nC. Distribution of the Monetary Awards.\n\n1. As soon as practicable after 1) the Settlement Effective Date and 2)\n\nmaking the calculations required by the allocation plan set forth in Section XXVII(A), above, the\n\nClaims Administrator shall distribute the monetary awards to eligible class members via first\n\nclass mail. The checks shall be invalid if not cashed within 180 days of the issue date.\n\n2. Any amounts allocated to lost wages shall be subject to withholding for\n\nfederal and state income and payroll taxes. Each Class Member will be responsible for all\n\nincome taxes on his or her monetary award, and the Company shall be responsible for one half of\n\nthe employer’s share of all applicable payroll taxes. The Claims Administrator will inform\n\nMcCormick & Schmick’s of the amount that is one half of the employer’s share of the payroll\n\ntaxes, and the Company shall pay such amount as provided in Section XXI(B). Any amounts\n\ndesignated as interest shall not be subject to withholding and shall be reported, if required, to the\n\n-42[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page46 of 52\nIRS on Form 1099-INT. The amounts paid for emotional distress shall not be subject to withholding and shall be reported to the IRS on Form 1099-MISC.\n3. Included with the check due to the eligible claimant will be a statement showing the gross amount of the payment and an itemized statement of all deductions made. Flat rate deductions from gross amounts that are determined to be wage payments will be made for federal and state income taxes. The employee’s share of social security and Medicare tax, and any local income or payroll taxes will be based on the rates in effect with the federal and local governments.\n4. The Claims Administrator will be responsible for preparing the filing of all appropriate tax filings and reports including, but not limited to, W-2 and 1099 forms for all eligible claimants and the Class Representative for their payments from the QSF, as well as any required for the QSF. The Claims Administrator will also be responsible for reporting and remitting to the appropriate taxing authorities the employer’s and employees’ shares of payroll taxes.\nD. Confidentiality of Claimant Information. McCormick & Schmick’s counsel and payroll department will only be provided with the names and social security numbers of class members who filed claims on a need-to-know basis. The identity of the claimants will not be disclosed to McCormick Restaurant management.\nE. Use of Residual Funds from Uncashed Checks. It is the intention of the parties to distribute completely the funds in the QSF. The Claims Administrator will use social security numbers to attempt to get better addresses for any class members whose checks are returned, and will remail the uncashed checks to the new addresses. The Claims Administrator will also attempt to telephone any class member who has not cashed a check of at least $1,000. If, despite those efforts, checks remain uncashed after they have become invalid, the remaining sum shall be paid to the Administration and Monitoring Fund.\nF. Report from Claims Administrator. Within thirty days of the distribution of the monies from the QSF to the eligible Class members, the Claims Administrator shall furnish an\n-43[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page47 of 52\n\naccounting of the distributions from the QSF to the Court with copies to Class Counsel and\n\nMcCormick & Schmick’s. Within thirty days of the completion of the Term of the Decree the\n\nClaims Administrator shall furnish a final accounting of all the distribution from the QSF to the\n\nCourt, Class Counsel and McCormick & Schmick’s.\n\nXXVIII. DIVERSITY MONITOR FEES AND EXPENSES\n\nThe Diversity Monitor shall be compensated exclusively from the Administration and\n\nMonitoring Fund for reasonable time billed and expenses incurred in connection with performing\n\nhis duties under this decree. The Diversity Monitor will receive payment on the basis of his or\n\nher standard hourly rate of $650 (and reasonable annual increases) and reimbursement for out-\n\nof-pocket expenses, thirty days after submitting to the Administration and Monitoring Fund and\n\nClass Counsel a bill including an itemized statement of time spent and work performed and\n\nexpenses and costs incurred.\n\nClass Counsel reserves the right to challenge bills of the Diversity Monitor if the amount\n\nof time billed is excessive for the work performed. Such challenges will be reviewed by the\n\nCourt.\n\nXXIX.\n\nPOST-APPROVAL ATTORNEYS’ FEES AND EXPENSES\n\nA. In addition to the amount paid for attorneys’ fees and expenses through the Final\n\nApproval Date pursuant Section XXI(D)(3), Class Counsel may be awarded their reasonable\n\nattorneys’ fees, litigation expenses, and costs for work required to be performed by Class\n\nCounsel after the Final Approval Date pursuant to this Decree, subject to the limits of the\n\nAdministration and Monitoring Fund. Said attorneys’ fees, expenses and costs shall be paid\n\nexclusively from the Administration and Monitoring Fund. Class Counsel will receive payment\n\non the basis of his or her standard hourly rates (set forth in Appendix 1 hereto, plus reasonable\n\nannual increases) and reimbursement for out-of-pocket expenses, thirty days after submitting to\n\nthe Administration and Monitoring Fund a bill including an itemized statement of time spent and\n\nwork performed and expenses and costs incurred.\n\nB. In addition to the foregoing amounts, the Company agrees that in the event that\n\n-44[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page48 of 52\nthe Company or any of its officers, managers or supervisors is held in contempt violation of this Decree, Class Counsel shall be paid their reasonable costs, expenses and attorneys’ fees for the enforcement proceedings resulting in the contempt holding, as though the Class Representative then were a prevailing party in Title VII litigation, based on extent to which counsel prevailed. XXX. MISCELLANEOUS PROVISIONS\nA. Modification and Severability of the Consent Decree. 1. Whenever possible, each provision and term of this Decree shall be\ninterpreted in such a manner as to be valid and enforceable; provided, however, that in the event that after Final Approval hereof any provision or term of this Decree should be determined to be or rendered unenforceable on collateral review, all other provisions and terms of this Decree and the application thereof to all persons and circumstances subject thereto shall remain unaffected to the extent permitted by law. If any application of any term of this Decree to any specific person or circumstance should be determined to be invalid or unenforceable, the application of such provision or term to other persons or circumstances shall remain unaffected to the extent permitted by law.\n2. Class Counsel and the Company may jointly agree to modify the Decree in writing signed by both Class Counsel and the Company.\n3. In the event that changed or other circumstances make a modification of the Decree necessary to ensure its purposes are fully effectuated, but good faith negotiations seeking such modifications are unsuccessful, any party to the Decree shall have the right to move the Court to modify this Decree. Such motion shall be granted only upon the movant proving to the Court by clear and convincing evidence that changed or other circumstances make such modification necessary. The procedures for negotiations to modify this Decree shall be the same as those set forth in Section XX regarding Decree enforcement.\nB. Duty to Support and Defend the Decree. Class Representative, Class Counsel, and the Company each agree to abide by all the terms of this Decree in good faith and to support\n-45[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page49 of 52\nit fully, and shall use Best Efforts to defend this Decree from any legal challenge, whether by appeal or collateral attack.\nC. Failure to obtain final approval of Consent Decree. In the event that this Consent Decree does not become final and effective in its current form, for whatever reason, this entire Consent Decree shall become null and void and of no force or effect.\nD. Execution in Counterparts. The parties agree that the Decree may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be part of the same Decree.\nIT IS SO ORDERED, ADJUDGED AND DECREED this 8th day of August, 2008.\n______________________________ Hon. Claudia Wilken United States District Judge Northern District of California\n-46[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page50 of 52\n\nSTIPULATED, ACKNOWLEDGED AND AGREED TO BY: CLASS COUNSEL\n\nJames M. Finberg (SBN 114850) Eve H. Cervantez (SB 164709) Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-Mail: jfinberg@altshulerberzon.com E-Mail: ecervantez@altshulerberzon.com\n\nKelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &\nBERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com E-Mail: jsagafi@lchb.com\n\nRobert Rubin (SBN 085084) THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone (415) 543-9444 Facsimile: (415) 543-0296 E-Mail: rrubin@lccr.com\n\nThomas A. Warren THOMAS A. WARREN LAW OFFICES 2032 Thomasville Rd #D Tallahassee, FL 32308-0734 Telephone: (850) 385-1551 Facsimile: (850) 385-6008 Email: tw@nettally.com\n\nBill Lann Lee (SBN 108452) Todd F. Jackson (SBN 202598) Vincent Cheng (SBN 230827) Lindsay Nako (SBN 239090) LEWIS, FEINBERG, LEE, RENAKER &\nJACKSON, P.C. 1300 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com Email: lnako@lewisfeinberg.com\n\nEric Kingsley (SBN 185123) KINGSLEY & KINSGSLEY 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990-8300 Facsimile: (818) 990-2903 Email: kingsleylaw@aol.com\n\n-47[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page51 of 52\nCOUNSEL FOR MCCORMICK & SCHMICK’S\nGilmore F. Diekmann, Jr. (SBN 50400) Eric A. Hill (SBN 173247) Kamili Williams Dawson (SBN 193264) SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Email: gdiekmann@seyfarth.com Email: ehill@seyfarth.com Email: kdawson@seyfarth.com\nGerald L. Maatman, Jr. (pro hac vice) SEYFARTH SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, IL 60603-5577 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 Email: gmaatman@seyfarth.com\nMichael L. Gallion (SBN 189128) Joshua A. Rodine (SBN 237774) William C. Thomas (SBN 241789) SEYFARTH SHAW LLP 2029 Century Park East, #3300 Los Angeles, CA 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Email: mgallion@seyfarth.com Email: jrodine@seyfarth.com Email: wthomas@seyfarth.com\n-48[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\fCase4:06-cv-03153-CW Document113 Filed08/08/08 Page52 of 52 MCCORMICK & SCHMICK’S _______________________________ Signature ____________________________ Name and Title\n-49[PROPOSED] CONSENT DECREE\nCASE NO. 06-3153 CW\n\n\f", "Case4:06-cv-03153-CW Document82 Filed04/04/08 Page1 of 10\n\n1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)\n2 Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP\n3 177 Post Street, Suite 300 San Francisco, CA 94108\n4 Telephone: (415) 421-7151 Facsimile: (415) 362-8064\n5 E-Mail: jfinberg@altshulerberzon.com E-Mail: ecervantez@altshulerberzon.com\n6 E-Mail: revenson@altshulerberzon.com\n\n7 Kelly M. Dermody (SBN 171716)\n\nJahan C. Sagafi (SBN 224887)\n\n8 LIEFF, CABRASER, HEIMANN &\n\nBERNSTEIN, LLP\n\n9 275 Battery Street, 30th Floor\n\nSan Francisco, CA 94111-3339\n\n10 Telephone: (415) 956-1000\n\nFacsimile: (415) 956-1008\n\n11 E-Mail: kdermody@lchb.com\n\nE-Mail: jsagafi@lchb.com\n\n12\n\nAttorneys for Plaintiffs and proposed Classes\n\n13 Additional Counsel Listed on Signature Page of\n\nMotion for Preliminary Settlement Approval\n\n14\n\nUNITED STATES DISTRICT COURT\n\n15\n\nNORTHERN DISTRICT OF CALIFORNIA\n\nOAKLAND DIVISION\n\n16 JUANITA WYNNE and DANTE BYRD,\n\n17\n\non behalf of themselves and classes of those similarly situated,\n\n18\n\nPlaintiffs,\n\n19\n\nv.\n\n20 MCCORMICK & SCHMICK’S\n\n21\n\nSEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK\n\n22 RESTAURANT CORP.,\n\n23\n\nDefendants.\n\n) ) ) ) ) ) ) ) ) ) ) ) ) ) )\n\nCase No. C-06-3153 CW\nREVISED ORDER (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND PROPOSED CONSENT DECREE; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES; (3) APPROVING AND DIRECTING DISTRIBUTION OF NOTICE OF THE SETTLEMENT; AND (4) SETTING A SCHEDULE FOR THE FINAL SETTLEMENT APPROVAL PROCESS\n\n24 25\n\n) ) ) ) )\n\nDATE: TIME: PLACE: JUDGE:\n\nApril 3, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken\n\n26\n\n)\n\n27\n\n28\n\nRevised [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page2 of 10\n\n1\n\nHaving reviewed Plaintiffs’ Motion for an Order (1) Preliminarily Approving Class\n\n2 Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement\n\n3 Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a\n\n4 Schedule for the Final Settlement Approval Process, the Memorandum of Points and Authorities\n\n5 in support thereof, the Declaration of James M. Finberg in support thereof, the proposed Consent\n\n6 Decree, Notice and Claim Form, and the arguments of counsel, along with the files and records\n\n7 of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows:\n\n8 I. PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES\n\n9\n\nA. For settlement purposes, the Parties have proposed provisional certification of the\n\n10 following settlement classes (terms defined in the proposed Consent Decree attached hereto as\n\n11 Exhibit 1):\n\n12\n\n1. For purposes of the injunctive and declaratory relief provided in the\n\n13 Decree, an injunctive-relief settlement class certified under Federal Rules of Civil Procedure\n\n14 23(a) and 23(b)(2) and consisting of “All African Americans employed by McCormick &\n\n15 Schmick’s in Front of the House or Back of the House positions between May 15, 2002 and the\n\n16 date the Decree terminates;” (“Front of the House” is defined in Section Section III(O) of the\n\n17 Decree; “Back of the House” is defined in Section III (C) of the Decree).\n\n18\n\n2. For purposes of the monetary relief provided in the Decree, a monetary\n\n19 relief settlement class certified under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and\n\n20 consisting of: “All African Americans employed by McCormick & Schmick’s in Front of the\n\n21 House or Back of the House positions between May 15, 2002 and the date of the entry of this\n\n22 order, except those who file a timely request to opt out of the monetary relief provisions of the\n\n23 Decree.”\n\n24\n\nB. The injunctive relief and monetary relief settlement classes allege claims for race\n\n25 discrimination brought under the Civil Rights Act of 1964 (both disparate impact and disparate\n\n26 treatment), and 42 U.S.C. § 1981, and those class members who worked in California during the\n\n27 class period allege violations of the California Fair Employment and Housing Act.\n\n28\n\nC. The Court hereby provisionally FINDS and CONCLUDES that the injunctive relief\n\n1 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page3 of 10\n\n1 settlement class set forth above satisfies all of the requirements for certification under Rule 23(a)\n\n2 and Rule 23(b)(2). The class is sufficiently numerous (approximately 3,000 persons) that joinder\n\n3 is impracticable. The members of the class share common issues of fact and law regarding (1)\n\n4 whether McCormick & Schmick’s employment policies and practices were intentionally\n\n5 discriminatory and/or had an adverse impact on African Americans; and (2) whether Title VII or\n\n6 Section 1981 have been violated. Juanita Wynne’s claims are typical of those of the class she\n\n7 represents because they arise out of the same policies, practices and course of conduct alleged on\n\n8 behalf of all class members. Juanita Wynne is an adequate representative of the class she\n\n9 represents, because her interests are co-extensive with those of class members, and she has\n\n10 retained experienced counsel to represent the class. Plaintiffs are seeking meaningful\n\n11 declaratory and injunctive relief applicable to the class as a whole. Accordingly, the Court\n\n12 hereby provisionally CERTIFIES the injunctive-relief settlement class under Rule 23(a) and\n\n13 Rule 23(b)(2).\n\n14\n\nD. The Court also hereby provisionally FINDS and CONCLUDES that the monetary\n\n15 relief settlement class described above satisfies all of the requirements for certification under\n\n16 Rule 23(a) and Rule 23(b)(2). As discussed in Paragraph 3, above, the requirements of Rule\n\n17 23(a) - numerosity, commonality, typicality, and adequacy appear to be satisfied. In addition,\n\n18 the Court provisionally concludes that the monetary relief settlement class satisfies the\n\n19 requirements for certification under Rule 23(b)(3). Questions of law or fact common to the class\n\n20 predominate over individualized issues, and a class action is superior to other available methods\n\n21 for the fair and efficient adjudication of the controversy. Because certification of the monetary\n\n22 relief settlement class is proposed in the context of a settlement, the Court need not inquire\n\n23 whether the case, if tried as a class action, would present intractable management problems.\n\n24 Accordingly, the Court provisionally CERTIFIES the monetary-relief settlement class as set\n\n25 forth above, under Rules 23(a) and 23(b)(3).\n\n26 II. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL\n\n27\n\nA. The Court finds that Class Representative Juanita Wynne has claims typical of class\n\n28 members and is an adequate representative of the class members. The Court appoints her to\n\n2 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page4 of 10\n\n1 serve as Class Representatives of both the injunctive relief and monetary relief classes.\n\n2\n\nB. The Court finds that Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein,\n\n3 LLP; the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Thomas A.\n\n4 Warren Law Offices; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; and Kingsley &\n\n5 Kinsgsley have extensive experience and expertise in prosecuting employment discrimination\n\n6 class action cases. The Court appoints these firms as Class Counsel for both the injunctive relief\n\n7 and monetary relief classes.\n\n8 III. PRELIMINARY APPROVAL OF CONSENT DECREE\n\n9\n\nA. The Court has reviewed the terms of the [Proposed] Consent Decree attached as\n\n10 Exhibit 1, including specifically the injunctive relief provisions and the plan of allocation. The\n\n11 Court also reviewed the Motion papers and the declaration of James M. Finberg, which describe\n\n12 Class Counsel’s legal and factual investigation, and the settlement mediation process. Based on\n\n13 review of those papers, and the Court’s familiarity with this case, the Court concludes that the\n\n14 settlement and Consent Decree are the result of extensive, arms’ length negotiations between the\n\n15 Parties after Class Counsel had investigated the class claims and became familiar with the\n\n16 strengths and weakness of plaintiffs’ case. The assistance of an experienced mediator in the\n\n17 settlement process confirms that the settlement is non-collusive. Based on that review, and the\n\n18 Court’s familiarity with the issues in the case, the Court concludes that the proposed Consent\n\n19 Decree has no obvious defects and is within the range of possible settlement approval, such that\n\n20 notice to the Class is appropriate.\n\n21\n\nB. It is therefore ORDERED that:\n\n22\n\n1. The [Proposed] Consent Decree and the settlement it embodies are hereby\n\n23 PRELIMINARILY APPROVED. Final approval and entry of the Consent Decree is subject to\n\n24 the hearing of any objections of members of the Settlement Class to the proposed settlement\n\n25 embodied in the Consent Decree.\n\n26\n\n2. Pending determination of the fairness of the Consent Decree, all further\n\n27 litigation of this action is hereby STAYED.\n\n28\n\n3 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page5 of 10\n1 IV. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS NOTICE AND CLAIM FORM\n2 A. The Parties have also submitted for this Court’s approval a proposed Class Notice and\n3 a proposed Claim Form, which the Court has carefully reviewed. The Court finds and concludes\n4 as follows:\n5 1. The proposed Class Notice is the best notice practical under the\n6 circumstances and allows Class Members a full and fair opportunity to consider the proposed\n7 Settlement. The proposed plan for distributing the Class Notice and Claim Form, which are\n8 attached as Exhibits 2 and 3 hereto, likewise is a reasonable method calculated to reach all\n9 members of the Class who would be bound by the Settlement. Under this plan, the Claims\n10 Administrator will distribute the Class Notice and Claim Form to Class Members, all of whom\n11 are current or former employees of the Company, by first class U.S. Mail to their last known\n12 addresses, as updated by the USPS NCOA service. There is no additional method of distribution\n13 that would be reasonably likely to notify Class Members who may not receive notice pursuant to\n14 the proposed distribution plan.\n15 2. The Class Notice fairly, plainly, accurately, and reasonably informs Class\n16 Members of: (1) the nature of this litigation, the settlement class, the identity of Class Counsel,\n17 and the essential terms of the Settlement and Decree, including injunctive relief and the plan of\n18 allocation; (2) Class Counsel’s forthcoming application for attorneys’ fees, the proposed service\n19 payments to the Class Representative, and other payments that will be deducted from the\n20 settlement fund; (3) how to participate in the Settlement; (4) this Court’s procedures for final\n21 approval of the Settlement Agreement and Settlement, and about class members’ right to appear\n22 through counsel if they desire; (5) how to challenge or opt-out of the Settlement, if they wish to\n23 do so; and (6) how to obtain additional information regarding this litigation, the Settlement, and\n24 the Decree.\n25 3. Similarly, the proposed Notice and Claim Form allow members of the\n26 Settlement Classes a full and fair opportunity to submit a claim for proceeds in connection with\n27 the Settlement. The Notice and Claim Form fairly, accurately, and reasonably inform Settlement\n28\n4\n[Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page6 of 10\n\n1 Class Members that failure to complete and submit a Claim Form, in the manner and time\n\n2 specified, shall constitute a waiver of any right to obtain any share of the settlement payment.\n\n3\n\n4. The Court FINDS and CONCLUDES that the proposed plan for\n\n4 distributing the Notice and Claim Form (“Notice Materials”) will provide the best notice\n\n5 practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due\n\n6 process requirements.\n\n7\n\n5. Accordingly, the Court hereby ORDERS as follows:\n\n8\n\na. The form of the Notice Materials is approved.\n\n9\n\nb. The manner of distributing the Notice Materials is approved.\n\n10\n\nc. Promptly following the entry of this Order, the Claims Administrator\n\n11 shall prepare final versions of the Notice Materials, incorporating into the Notice the relevant\n\n12 dates and deadlines set forth in this Order.\n\n13\n\nd. Within twenty days following entry of this order, McCormick &\n\n14 Schmick’s shall provide the Claims Administrator with computer readable information, in a\n\n15 format acceptable to the Claims Administrator, that contains the full names, social security\n\n16 numbers, last known addresses, position(s) held during the class period, and start dates and any\n\n17 applicable end dates of employment for each position held with McCormick & Schmick’s from\n\n18 May 15, 2002 to the date of the entry of this order of all persons who are potential Settlement\n\n19 Class members.\n\n20\n\ne. Prior to the mailing of the Notice Materials, the Claims\n\n21 Administrator will update any new address information for potential class members as may be\n\n22 available through the National Change of Address (“NCOA”) system.\n\n23\n\nf. Within ten (10) days of the date that the Claims Administrator\n\n24 receives the data described in paragraph (d), above, the Claims Administrator shall mail the\n\n25 Notice Materials, via first class mail, to all known potential settlement class members at their last\n\n26 known address or the most recent address that may have been obtained through the NCOA. The\n\n27 Claims Administrator will trace all returned undeliverable notices and re-mail them to the most\n\n28 recent address available.\n\n5 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page7 of 10\n\n1\n\ng. The Claims Administrator shall take all reasonable steps to obtain\n\n2 the correct address of any Class Members for whom the notice is returned by the post office as\n\n3 undeliverable, and otherwise to provide the Notice Materials to such persons. The Claims\n\n4 Administrator shall notify Class Counsel of any mail sent to Class Members that is returned as\n\n5 undeliverable after the first mailing as well as any such mail returned as undeliverable after any\n\n6 subsequent mailing(s).\n\n7\n\nh. The Claims Administrator shall take all other actions in\n\n8 furtherance of claims administration as are specified in the Decree.\n\n9 V. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT\n\n10\n\nA. Fairness Hearing\n\n11\n\nThe Court hereby schedules a hearing to determine whether to grant final certification of\n\n12 the Settlement Classes, and final approval of the Consent Decree (including the proposed plan of\n\n13 allocation, injunctive relief, payment of attorneys’ fees and costs, and service payments to the\n\n14 Class Representatives) (the “Fairness Hearing”), for August 7, 2008 at 2:00 p.m.\n\n15\n\nB. Deadline to Request Exclusion from the Settlement\n\n16\n\n1. Class members may exclude themselves from, or opt-out of, of the\n\n17 monetary relief provisions of the class settlement. Any request for exclusion must be in the form\n\n18 of a written “opt-out” statement sent to the Claims Administrator. A person wishing to opt-out\n\n19 must sign a statement which includes the following language:\n\n20\n\nI understand that I am requesting to be excluded from the class monetary\n\nsettlement and that I will receive no money from the settlement fund created\n\n21\n\nunder the Consent Decree entered into by McCormick & Schmick’s. I understand\n\nthat if I am excluded from the class monetary settlement, I may bring a separate\n\n22\n\nlegal action seeking damages, but may receive nothing or less than what I would\n\nhave received if I had filed a claim under the class monetary settlement procedure\n\n23\n\nin this case. I also understand that I may not seek exclusion from the class for\n\ninjunctive relief and that I am bound by the injunctive provisions of the Consent\n\n24\n\nDecree entered into by McCormick & Schmick’s.\n\n25\n\n2. To be effective, any opt-out statement must be sent to the Claims\n\n26 Administrator postmarked no later than 60 days after the date that the Claims Administrator first\n\n27 mails the Class Notice to the Class. Only those class members who request exclusion in the time\n\n28 and manner set forth herein shall be excluded from the class for monetary relief purposes.\n\n6 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page8 of 10\n\n1 Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and provisions of the\n\n2 Consent Decree concerning monetary relief shall have no binding effect on any person who\n\n3 makes a timely request for exclusion in the manner required by this Order.\n\n4\n\n3. The Claims Administrator shall stamp the date received on the original of\n\n5 any opt-out statement and serve copies on Class Counsel and counsel for McCormick &\n\n6 Schmick’s no later than two business days after receipt of such statement. Class Counsel will\n\n7 file the date-stamped originals with the Clerk of the Court no later than five (5) business days\n\n8 prior to the date of the Fairness Hearing\n\n9\n\n4. Class members shall be permitted to withdraw or rescind their opt-out\n\n10 statements by submitting a “rescission of opt-out” statement to the Claims Administrator. The\n\n11 rescission of opt-out statement shall include the following language:\n\n12\n\nI previously submitted an Opt-out statement seeking exclusion from the class\n\nmonetary settlement. I have reconsidered and wish to withdraw my Opt-out\n\n13\n\nstatement. I understand that by rescinding my Opt-out I may be eligible to\n\nreceive an award from the claims settlement fund and may not bring a separate\n\n14\n\nlegal action against McCormick & Schmick’s seeking damages with respect to the\n\nReleased Claims. I further understand that in order to receive an award from the\n\n15\n\nclaims settlement fund, I must submit a complete and timely claim form.\n\n16 To be effective, any opt-out recission statement must sent to the Claims Administrator\n\n17 postmarked no later than the deadline for the claims filing period specified herein.\n\n18\n\n5. The Claims Administrator shall stamp the date received on the original of\n\n19 any rescission of opt-out statement and serve copies on Class Counsel and counsel for\n\n20 McCormick & Schmick’s no later than two business days after receipt of such statement. Class\n\n21 Counsel will file the date-stamped originals with the Clerk of the Court no later than five (5)\n\n22 business days prior to the date of the Fairness Hearing.\n\n23\n\nC. Defendant’s Right to Rescind Agreement\n\n24\n\nMcCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree\n\n25 prior to the Settlement Effective Date if five percent (5%) or more of the Class Members opt-out\n\n26 of the monetary relief provisions of the Consent Decree and do not rescind their opt-out\n\n27 statements. To exercise this option, the Company must inform Class Counsel that it will revoke\n\n28 the Consent Decree within 10 business days of the deadline for postmarking opt out statements.\n\n7 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page9 of 10\n\n1 In the event that McCormick & Schmick’s exercises its unilateral right to revoke the Consent\n\n2 Decree pursuant to this section, all monies in the Settlement Fund, and all income earned\n\n3 thereon, shall be immediately returned to the entity that funded the Settlement Fund.\n\n4\n\nD. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree\n\n5\n\nClass members objecting to the terms of the settlement must do so in writing. To be\n\n6 effective, any objection must be sent to the Claims Administrator postmarked no later than 60\n\n7 days after the date that the Claims Administrator first mails the Class Notice to the Class. The\n\n8 Claims Administrator will record the date of receipt of the objection and forward it to both\n\n9 McCormick & Schmick’s and Class Counsel within two (2) business days following receipt.\n\n10\n\nClass Counsel will file the original objections with the Clerk of the Court no later than\n\n11 ten (10) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall\n\n12 retain copies of all written objections until such time as it has completed its duties and\n\n13 responsibilities under this Decree.\n\n14\n\nE. Deadline for Submitting Claims Forms\n\n15\n\nA Class Member who does not opt out will be eligible to receive his or her proportionate\n\n16 share of the settlement benefit. To receive this share, such a Class Member must properly and\n\n17 timely complete a Claim Form in accordance with the terms of the Consent Decree. To be\n\n18 effective, the Claim Form must be sent to the Claims Administrator postmarked no later than 70\n\n19 days after the initial mailing of the Class Notice to class members. Settlement Class members\n\n20 who do not file timely and valid Claim Forms shall nonetheless be bound by the judgment and\n\n21 release in this action as set forth in the proposed Consent Decree, unless that Settlement Class\n\n22 member timely opts out of the Settlement.\n\n23\n\nIt shall be the sole responsibility of each member of the Settlement Class who seeks a\n\n24 monetary award to notify the Claims Administrator if the class member changes his or her\n\n25 address. Failure of a Settlement Class member to keep the Claims Administrator apprised of his\n\n26 or her address may result in the claim being denied or forfeited.\n\n27\n\nF. Deadline for Submitting Motion Seeking Final Approval\n\n28\n\n8 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document82 Filed04/04/08 Page10 of 10\n\n1\n\nNo later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final\n\n2 Approval of the Settlement and Consent Decree. On or before one week before the Fairness\n\n3 Hearing, the Parties may file with the Court a reply brief responding to any filed objections.\n\n4\n\nG. Deadline for Petition for Attorneys Fees\n\n5\n\nClass Counsel shall file with this Court their petition for an award of attorneys’ fees and\n\n6 reimbursement of expenses no later than 35 days before the Fairness Hearing. Class Counsel\n\n7 may file a reply to any opposition to memorandum filed by any objector no later than one week\n\n8 before the Fairness Hearing.\n\n9\n\nH. Deadline for Petition for Approval of Service Payments\n\n10\n\nClass Counsel shall file with this Court their petition for an award of service payments to\n\n11 the Class Representatives no later than 35 days before the Fairness Hearing. Class Counsel may\n\n12 file a reply to any opposition memorandum filed by any objector no later than one week before\n\n13 the Fairness Hearing.\n\n14 VI. PLAINTIFFS’ AND CLASS MEMBERS’ RELEASE\n\n15\n\nIf, at the Fairness Hearing, this Court grants Final Approval to the Settlement and\n\n16 Consent Decree, each individual Settlement Class member who does not timely opt out will\n\n17 release their claims, as set forth in Consent Decree, by operation of this Court’s entry of the\n\n18 Judgment and Final Approval, regardless of whether he or she submits a Claim Form or receives\n\n19 any share of the Settlement Fund.\n\n20 VII. APPOINTMENT OF CLAIMS ADMINISTRATOR\n\n21\n\nRosenthal & Company, LLC, of Novato, California is hereby appointed Claims\n\n22 Administrator to carry out the duties set forth in this Order and the Consent Decree.\n\n23\n\nIT IS SO ORDERED\n\n24\n\n4/4/08\n\nDated: __________________\n\n25\n\n26\n\n______________________________ The Hon. Claudia Wilken United States District Judge\n\n27\n\n28\n\n9 [Proposed] Preliminary Approval Order - Case No. C-06-3153 CW\n\n\f", "Case4:06-cv-03153-CW Document108 Filed08/07/08 Page1 of 2\n\n1 James M. Finberg (SBN 114850)\n\n2\n\nEve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP\n\n3 177 Post Street, Suite 300 San Francisco, CA 94108\n4 Telephone: (415) 421-7151\n\n5\n\nFacsimile: (415) 362-8064 E-Mail: jfinberg@altshulerberzon.com\n\n6 E-Mail: ecervantez@altshulerberzon.com E-Mail: revenson@altshulerberzon.com\n\n7\n\nKelly M. Dermody (SBN 171716) 8 Jahan C. Sagafi (SBN 224887)\n\n9 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP\n10 275 Battery Street, 30th Floor\n\nSan Francisco, CA 94111-3339 11 Telephone: (415) 956-1000\n\n12 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com\n\n13 E-Mail: jsagafi@lchb.com\n\n14 Attorneys for Plaintiffs and proposed Classes 15 Additional Counsel on the signature page\n\n16\n\nUNITED STATES DISTRICT COURT\n\n17\n\nNORTHERN DISTRICT OF CALIFORNIA\n\n18\n\nOAKLAND DIVISION\n\n19 20\n\nJUANITA WYNNE and DANTE BYRD, on behalf of themselves and classes of those similarly situated,\n\n) ) ) )\n\n21\n\nPlaintiffs,\n\n) )\n\n22\n\nv.\n\n) )\n\n23 24 25\n\nMCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK RESTAURANT CORP.,\n\n) ) ) ) )\n\n26\n\nDefendants.\n\n) )\n\nCase No. C-06-3153 CW\nORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS\nHearing Date: August 7, 2008 Hearing Time: 2:00 p.m. Courtroom of Hon. Claudia Wilken\n\n27\n\n28\n[PROPOSED] ORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS, Case No. C-06-3153 CW\n\n\fCase4:06-cv-03153-CW Document108 Filed08/07/08 Page2 of 2\n\n1\n\nThe Court having considered Class Counsel’s Motion for Award of Attorneys’ Fees and\n\n2 Reimbursement of Costs and Expenses, and the supporting declarations, and being familiar with\n\n3 this action, HEREBY FINDS AS FOLLOWS:\n\n4\n\n1. Notice of the requested award of attorneys’ fees and reimbursement of costs and\n\n5 expenses was directed to Class Members in a reasonable manner, and complied with Rule\n\n6 23(h)(1) of the Federal Rules of Civil Procedure;\n\n7\n\n2. Class Members and any party from whom payment is sought have been given the\n\n8 opportunity to object in compliance with Fed. R. Civ. P. 23(h)(2);\n\n9\n\n3. No class member has objected to the requested fees and expenses;\n\n10\n\n4. The time spent by Class Counsel on this case was reasonable;\n\n11\n\n5. The rates used by Class Counsel are reasonable;\n\n12\n\n6. The attorneys’ fees request, which is for less than Class Counsel’s lodestar is\n\n13 reasonable;\n\n14\n\n7. The costs and expenses incurred by Class Counsel are reasonable;\n\n15\n\n8. The requested award of $900,000.00 for attorneys’ fees and costs and expenses is fair\n\n16 and reasonable.\n\n17 Accordingly, IT IS HEREBY ORDERED as follows:\n\n18 Class Counsel are hereby awarded attorneys’ fees and costs and expenses in the amount\n\n19 of $900,000.00 for work performed and costs and expenses incurred prior to the hearing on final\n\n20 approval.\n\n21 8/7/08\n\n22 Dated:______________\n23\n\n__________________________________ The Honorable Claudia Wilken United States District Judge\n\n24\n\n25\n\n26\n\n27\n\n28\n-1-\n\n[PROPOSED] ORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS, Case No. C-06-3153 CW\n\n\f", "Case4:06-cv-03153-CW Document55 Filed03/16/07 Page1 of 2\n\n1\n\n2\n\n3\n\n4\n\n5\n\n6\n\n7\n\n8\n\nUNITED STATES DISTRICT COURT\n\n9\n\nNORTHERN DISTRICT OF CALIFORNIA\n\n10\n\n11 JUANITA WYNNE and DANTE\n\n)\n\nBYRD, on behalf of\n\n)\n\n12 themselves and classes of )\n\nNo. C06-3153 CW (BZ)\n\nthose similarly situated, )\n\n13\n\n)\n\nPlaintiff(s),\n\n)\n\n14\n\n)\n\nv.\n\n)\n\nORDER TO SHOW CAUSE\n\n15\n\n)\n\nMCCORMICK & SCHMICKS’S\n\n)\n\n16 SEAFOOD RESTAURANTS, INC., )\n\net al.,\n\n)\n\n17\n\n)\n\nDefendant(s).\n\n)\n\n18\n\n)\n\n)\n\n19\n\nOn October 10, 2006 I issued an Initial Discovery Order\n\n20\n\nwhich, among other things, required the parties to meet and\n\n21\n\nconfer in a good faith effort to resolve any discovery\n\n22\n\ndisputes prior to seeking court intervention and to make a\n\n23\n\nrecord of their meeting.\n\n24\n\nOn March 6, 2007 counsel for plaintiffs requested court\n\n25\n\nintervention with respect to a long standing dispute over\n\n26\n\ncertain documents plaintiffs were seeking from defendant.\n\n27\n\nAfter reading defendant’s written response, I became troubled\n\n28\n\nthat the parties had not been able to resolve at least part of\n\n1\n\n\fCase4:06-cv-03153-CW Document55 Filed03/16/07 Page2 of 2\n\n1 their dispute during the meet and confer session and ordered\n\n2 plaintiffs to lodge a record of that session for my review.\n\n3\n\nToday the court was informed that there is no record of\n\n4 the meet and confer session. Accordingly, IT IS HEREBY\n\n5 ORDERED that both parties show cause in writing by March 30,\n\n6 2007, why they should not be held in contempt of court or\n\n7 otherwise sanctioned under Rule 16(f) of the Federal Rules of\n\n8 Civil Procedure for failing to comply with the court’s Initial\n\n9 Discovery Order. A hearing on the Order to Show Cause is\n\n10 scheduled for Wednesday, April 18, 2007 at 10:00 a.m. in\n\n11 Courtroom G, 15th Floor, Federal Building, 450 Golden Gate\n\n12 Avenue, San Francisco, California 94102.\n\n13 Dated: March 16, 2007\n\n14\n\n15\n\nBernard Zimmerman\n\nUnited States Magistrate Judge\n\n16\n\n17 G:\\BZALL\\-REFS\\WYNNE\\OSC.wpd\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n2\n\n\f", "Case 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 1 of 23\n\n1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)\n2 Rebekah B. Evenson (SBN 207825) ALTSHULER BERZON LLP\n3 177 Post Street, Suite 300 San Francisco, CA 94108\n4 Telephone: (415) 421-7151 Facsimile: (415) 362-8064\n5 E-Mail: jfinberg@altshulerberzon.com\nE-Mail: ecervantez@altshulerberzon.com 6 E-Mail: revenson@altshulerberzon.com\n\n7 Kelly M. Dermody (SBN 171716)\n\n8\n\nJahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &\n\nBERNSTEIN, LLP 9 275 Battery Street, 30th Floor\n\n10\n\nSan Francisco, CA 94111-3339 Telephone: (415) 956-1000\n\n11\n\nFacsimile: (415) 956-1008 E-Mail: kdermody@lchb.com\n\n12 E-Mail: jsagafi@lchb.com\n\n13 Attorneys for Plaintiffs and proposed Classes Additional Counsel on the signature page\n\n14\n\nUNITED STATES DISTRICT COURT\n\n15\n\nNORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION\n\n16 JUANITA WYNNE and DANTE BYRD, 17 on behalf of themselves and classes of those\nsimilarly situated,\n18 Plaintiffs,\n19 v.\n20 MCCORMICK & SCHMICK’S\n21 SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK\n22 RESTAURANT CORP.,\n\n23\n\nDefendants.\n\n24\n\n) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )\n\nCase No. C-06-3153 CW\nPLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR ORDER: (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND PROPOSED CONSENT DECREE; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES; (3) APPROVING AND DIRECTING DISTRIBUTION OF NOTICE OF THE SETTLEMENT; AND (4) SETTING A SCHEDULE FOR THE FINAL SETTLEMENT APPROVAL PROCESS; MEMORANDUM IN SUPPORT THEREOF.\n\n25 26\n\n) ) ) )\n\nDATE: TIME: PLACE: JUDGE:\n\nApril 3, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken\n\n27\n\n28\n\nPlaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 2 of 23\n\n1\n\nTABLE OF CONTENTS\n\n2 NOTICE OF MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n\n3 MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2\n\n4 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2\n\n5 II. PROCEDURAL HISTORY AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2\n\n6 III. SUMMARY OF THE PROPOSED SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4\n\nA. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4\n\n7\n\n1. Increasing African American Representation in Front of the House\n\nJobs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4\n\n8\n\na. Hiring and Promotion Benchmarks . . . . . . . . . . . . . . . . . . . . . . . . . . . 4\n\nb. Enhanced Recruiting Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5\n\n9\n\nc. Manager Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5\n\n10\n\n2. Opening Pathways for Promotion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Enhanced Procedures for Complaining About Race Discrimination . . . . . . . 6\n\n11\n\n4. Monitoring and Enforcement of Decree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. Monetary Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7\n\n12 IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9\n\n13\n\nA. The Court Should Grant Preliminary Approval of the Class Action Settlement . . . . 9 1. The Terms of the Proposed Settlement Are Fair, Adequate and\n\n14\n\nReasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2. Class Counsel Were Fully Informed When the Settlement Was Reached. . . 10\n\n15\n\n3. Liability, Damages, and the Propriety of Class Certification are all Contested. The Settlement Provides Reasonable Compensation for Class Members’\n\n16\n\nClaims, in Light of the Delay and Risks Associated With Continued litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11\n\n17\n\n4. The Settlement Is the Product of Serious, Arms’ Length, Informed Negotiations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12\n\n18\n\n5. The Proposed Plan of Allocation is Fair and Reasonable. . . . . . . . . . . . . . . 13\n\n6. The Proposed Service Payment to the Class Representative Is Reasonable. 13\n\n19\n\n7. The Proposed Attorneys Fees are Fair and Reasonable . . . . . . . . . . . . . . . . 13\n\nB. The Court Should Grant Provisional Certification of the Settlement Classes . . . . . 14\n\n20\n\n1. Numerosity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14\n\n2. Commonality and Typicality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n\n21\n\n3. Adequacy of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n\n4. Rule 23(b)(2) and (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n\n22\n\nC. The Proposed Notice and Claims Process Are Appropriate.. . . . . . . . . . . . . . . 16\n\n1. The Proposed Class Notice Satisfies Due Process . . . . . . . . . . . . . . . . . . . . 16\n\n23\n\n2. The Notice Plan and Claims Process Are Appropriate. . . . . . . . . . . . . . . . . 17\n\nD. The Court Should Set a Final Settlement Approval Schedule. . . . . . . . . . . . . . 18\n\n24\n\nV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19\n\n25\n\n26\n\n27\n\n28\n\ni Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 3 of 23\n\n1\n\nTABLE OF AUTHORITIES\n\n2\n\nFEDERAL CASES\n\n3 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16\n4\n\nLerwill v. Inflight Motion Pictures, Inc.,\n\n5\n\n582 F.2d 507, 512 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16\n\n6 Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D.Ga.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14\n7\n\n8\n\nIn re S. Ohio Correctional Facility, 175 F.R.D. 270 (S.D. Ohio 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14\n\n9 In re Michael Milken & Associates Sec. Litigation,\n\n10\n\n150 F.R.D. 57 (S.D.N.Y. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17\n\n11\n\nIn re Vitamins Antitrust Litigation, 2001 WL. 856292 (D.D.C.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9\n\n12 Robert F Fry, Jr. v. Hayt, Hayt & Landau,\n\n13\n\n198 F.R.D. 461 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14\n\n14\n\nShores v. Publix Super Markets, Inc., 95-1162-CIV-T-25E (M.D. Fla) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4\n\n15 Torrisi v. Tucson Electric Power Co.,\n\n16\n\n8 F.3d 1370 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18\n\n17\n\nVan Vranken v. Atlantic Richfield Co., 901 F. Supp. 294 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14\n\n18 Young v. Polo Retail, LLC,\n\n19\n\n2006 WL. 3050861 (N.D. Cal.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9\n\n20\n\nFEDERAL RULES OF CIVIL PROCEDURE\n\n21 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n22 Fed. R. Civ. P. 23(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fed. R. Civ. P. 23(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n23 Fed. R. Civ. P. 23(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fed. R. Civ. P. 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16\n24 Fed. R. Civ. P. 23(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16\n\n25\n\n26\n\n27\n\n28\n\nii Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 4 of 23\n\n1\n\nNOTICE OF MOTION\n\n2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:\n\n3\n\nNOTICE IS HEREBY GIVEN that on April 3, 2008, at 2:00 p.m., or as soon\n\n4 thereafter as the matter may be heard in the Courtroom of the Honorable Claudia Wilken,\n\n5 located at 1301 Clay Street, Oakland, California, plaintiffs will and hereby do move this Court\n\n6 for an order (1) preliminarily approving the parties’ class action settlement and proposed\n\n7 Consent Decree, (2) provisionally certifying settlement classes, (3) approving and directing\n\n8 distribution of the notice of settlement, and (4) setting a schedule for the final approval process.\n\n9\n\nThis motion is based on: this Notice of Motion and Motion; the attached Memorandum\n\n10 of Points and Authorities; the Declaration of James M. Finberg; the [Proposed] Order and 11 exhibits thereto; the Consent Decree; all other records, pleadings, and papers on file in this 12 action; and on such other evidence or argument as may be presented to the Court at the hearing 13 of this motion. 14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n1 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 5 of 23\n\n1\n\nMEMORANDUM OF POINTS AND AUTHORITIES\n\n2 I. INTRODUCTION\n\n3\n\nSubject to Court approval, the parties have settled plaintiffs’ and class members’ claims\n\n4 for comprehensive injunctive and monetary relief. The proposed Consent Decree resolves all of\n\n5 plaintiffs’ and class members’ claims. The parties’ proposed settlement satisfies all of the\n\n6 criteria for preliminary approval under federal law. The settlement was negotiated at arms’\n\n7 length and falls well within the range of possible approval. The extensive injunctive relief\n\n8 provided for in the Consent Decree will materially advance the goal of equal employment\n\n9 opportunity for African Americans at McCormick & Schmick’s. The monetary relief will give\n\n10 class members a monetary recovery this year without the risks and delay attendant with further\n\n11 litigation.\n\n12\n\nAccordingly, the plaintiff classes request that the Court grant preliminary approval to the\n\n13 proposed Consent Decree (attached as Exhibit 1 to the proposed order), direct distribution of the\n\n14 class notice and claim form (attached as Exhibits 2 and 3 to the proposed order), and approve\n\n15 the proposed schedule for final approval. Plaintiffs also request that in connection with the\n\n16 settlement process, the Court provisionally certify a settlement class of African-American\n\n17 employees for monetary relief (with a right to opt out of the settlement pursuant to Rule\n18 23(e)(3)) and under Rule 23(b)(2) for injunctive relief (with no opt out right).\n19 II. PROCEDURAL HISTORY AND BACKGROUND\n20 Plaintiffs brought this action on behalf of themselves and a class of current and former\n21 African American employees of McCormick & Schmick’s claiming that African Americans are\n22 underrepresented in the most remunerative “front of the house” restaurant jobs (servers, cocktail\n23 servers, bartender and host positions) and that African Americans who obtain employment in\n24 front of the house positions are consistently assigned to the shifts and restaurant sections that are\n25 the least remunerative.\n26 Plaintiffs Juanita Wynne and Dante Byrd filed class-wide administrative charges with\n27 the EEOC on May 3 and June 29, 2005. On May 11, 2006 Plaintiffs filed the Complaint in this\n28\naction alleging racial discrimination claims under Title VII, FEHA and Section 1981 on behalf\n\n2 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 6 of 23\n\n1 of themselves and classes of McCormick & Schmick’s African American employees and\n\n2 applicants.\n\n3\n\nPlaintiffs filed their First Amended Complaint on July 28, 2006. After filing the First\n\n4 Amended Complaint, the parties conducted discovery. Plaintiffs took the depositions of six\n\n5 Rule 30(b)(6) designees relating to Company operations, hiring practices, training,\n\n6 compensation policies, store openings, data collection, and others. Company deponents\n\n7 included the Director of Human Resources, the Director of Training, the Vice President of\n\n8 Operations, and others. During this period, Defendants took depositions of plaintiffs Juanita\n\n9 Wynne and Dante Byrd.\n\n10\n\nPlaintiffs served written discovery, including interrogatories and document requests, and\n\n11 obtained many thousands of pages of documents from Defendants, including personnel manuals\n\n12 and policies, training materials, and employment applications. Plaintiffs also obtained, and with\n\n13 the assistance of expert statisticians analyzed, Company computerized personnel and payroll\n\n14 data from 2002 through 2006.\n\n15\n\nDefendants served discovery on Juanita Wynne and Dante Byrd. Juanita Wynne and\n\n16 Dante Byrd responded to interrogatories, produced hundreds of pages of documents related to\n\n17 their employment at McCormick & Schmick's, and submitted to depositions.\n18 Plaintiffs and Defendants engaged expert consultants to analyze the payroll data, to\n19 determine whether disparities exist in hiring and compensation of African Americans in front of\n20 the house positions, and to calculate potential damages exposure. Expert consultants also\n21 assisted the parties in negotiating the settlement by proposing and analyzing various\n22 methodologies for establishing hiring benchmarks.\n23 The Plaintiffs have vigorously prosecuted this case, and McCormick & Schmick’s has\n24 vigorously contested it. As a result, the Parties were able to assess reliably the relative merits of\n25 the claims of the Plaintiffs and of McCormick & Schmick's defenses.\n26 On July 12, September 26, and November 5, 2007, counsel for the Parties met to\n27 negotiate a settlement of this matter with the assistance of experienced mediator Hunter Hughes\n28\nof Atlanta, Georgia, who served as the mediator in many other cases, including Satchell v.\n\n3 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 7 of 23\n\n1 Federal Express Corp., C03-2659 SI; C03-2878 SI (N.D. Cal.), Butler v. Home Depot, No. C94\n\n2 4335 SI (N.D. Cal.); Shores v. Publix Super Markets, Inc., 95-1162-CIV-T-25E (M.D. Fla); and\n\n3 Ingram v. Coca-Cola Co., 200 F.R.D. 685, 699 (N.D.Ga.2001). In addition, counsel for the\n\n4 Parties met face-to-face without the mediator on August 8 and September 12, 2007, and\n\n5 exchanged numerous written settlement proposals from July 2007 through February 2008.\n\n6\n\nThe formal and informal discovery conducted in this action, including the depositions,\n\n7 the documents produced, and the information exchanged during mediation, including expert\n\n8 consultant analyses, put Class Counsel in a position to assess the strengths and weaknesses of\n\n9 the case.\n\n10 III. SUMMARY OF THE PROPOSED SETTLEMENT\n\n11\n\nThe proposed consent decree provides comprehensive injunctive relief and substantial\n\n12 monetary relief.\n\n13 A. Injunctive Relief\n\n14\n\nDuring the period of the Decree, McCormick & Schmick’s has agreed to implement\n\n15 comprehensive affirmative relief addressing the selection, promotion and compensation claims\n\n16 in this action, including the following:\n\n17 1. Increasing African American Representation in Front of the House Jobs\n18 a. Hiring and Promotion Benchmarks\n19 McCormick & Schmick’s has agreed to establish benchmarks to assist in its efforts to\n20 hire or promote African American employees into front of the house (server, bartender, host)\n21 positions at a rate equal to African Americans’ representation in the applicant pool for that\n22 position, or African Americans’ representation in the relevant local labor market, whichever is\n23 higher. Consent Decree Section XI.\n24 McCormick & Schmick’s also has agreed to allow a third-party Diversity Monitor to\n25 examine its payroll data to ensure that it is taking appropriate steps to meet its benchmarks. The\n26 Diversity Monitor can require the Company to make appropriate changes to its policies to\n27 achieve diversity and ensure compliance with the Decree. Consent Decree Sections XVIII, XX.\n28\n\n4 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 8 of 23\n\n1\n\nIf McCormick & Schmick’s meets all of its Company-wide benchmarks for three\n\n2 consecutive years, the Company may apply to the court to terminate the Consent Decree at the\n\n3 end of the fourth year of the Decree. Consent Decree Section V. Otherwise, the Decree will be\n\n4 in effect for five years. Id.\n\n5\n\nIf McCormick & Schmick’s does not meet its benchmarks, the Diversity Monitor is\n\n6 empowered to determine the causes of such failure, and to establish remedial measures,\n\n7 including, among other things, requiring the Company to validate its hiring criteria, to enhance\n\n8 its recruitment and outreach efforts, and to establish hiring safeguards. Consent Decree Section\n\n9 XI(D).\n\n10\n\nb. Enhanced Recruiting Efforts\n\n11\n\nMcCormick & Schmick’s has agreed to hire a new Corporate Recruiter, and to make its\n\n12 best efforts to increase diversity in front of the house and management positions. Consent\n\n13 Decree Section XVI(A).\n\n14\n\nMcCormick & Schmick’s will develop a strategy for increasing the recruitment and\n\n15 hiring of African Americans, including by developing a list of recruiting sources and advertising\n\n16 media that reach African Americans. Consent Decree Section XVI(B).\n\n17\n\nIf a restaurant’s African American applicant flow declines for two years in a row, or is\n\n18 lower than the census-based benchmark, the Company will develop a specific plan to increase\n\n19 the number of African American applicants in front of the house jobs, including by enhancing\n\n20 its outreach and recruitment efforts. Consent Decree Section XVI(C) and (D).\n\n21 c. Manager Accountability\n22 McCormick & Schmick’s has agreed to evaluate restaurant managers in part on their\n23 success in helping the Company to achieve its diversity goals, and a meaningful portion of\n24 managers’ bonuses will be based on performance in helping the Company to achieve its\n25 diversity goals. Consent Decree Section XIV.\n26\n\n2. Opening Pathways for Promotion 27\nMcCormick & Schmick’s has agreed to implement a “registration of interest” program, 28\n\nwhich will inform employees about openings at all Company restaurants in the metropolitan\n\n5 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 9 of 23\n\n1 area and about how to apply for such positions. Consent Decree Section XII.\n\n2\n\nEmployees will be provided with an opportunity to register interest in any other\n\n3 restaurant-level position, and employees who meet the basic criteria for the position will be\n\n4 considered as applicants for that position in all area restaurants when openings arise. Consent\n\n5 Decree Sections XII(B) and (C).\n\n6\n\n3. Enhanced Procedures for Complaining About Race Discrimination\n\n7\n\nMcCormick & Schmick’s has agreed to train all of if its employees on its existing\n\n8 “Ethics Point” complaint system, and to enable employees to use Ethics Point to complain about\n\n9 shift and section assignments, the Registration of Interest program, or other measures set out in\n\n10 the Consent Decree. McCormick & Schmick’s has also agreed to enhance its investigation\n\n11 procedures to ensure that every complaint is fully investigated, and to document every complaint\n\n12 and the steps taken to investigate each complaint. Consent Decree Section XV.\n\n13 4. Monitoring and Enforcement of Decree\n\n14\n\nMcCormick & Schmick’s has agreed to enable a third-party Diversity Monitor to\n\n15 monitor these policies and practices and to ensure compliance with all terms of the Consent\n\n16 Decree. The Diversity Monitor will review reports of complaints of discrimination by\n\n17 McCormick & Schmick’s employees, and will also receive and review other data and reports\n18 designed to ensure that McCormick & Schmick’s is following the new policies established\n19 through this Consent Decree. Consent Decree Section XVIII(E).\n20 The parties have agreed that Barry Goldstein will serve as the Diversity Monitor.\n21 Consent Decree Section X. Mr. Goldstein has significant experience in litigating race\n22 discrimination cases. He is a preeminent lawyer in this field. Finberg Dec., ¶31.\n23 Throughout the term of the Consent Decree, McCormick & Schmick’s will provide\n24 regular progress reports to the Diversity Monitor and to Counsel for the Plaintiffs. These reports\n25 will describe McCormick & Schmick’s progress in implementing the Decree, include\n26 information about hiring and promotion of African Americans, and detail any complaints of\n27 discrimination by African American employees. McCormick & Schmick’s will also provide the\n28\nDiversity Monitor with data regarding the compensation of all front of the house positions by\n\n6 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 10 of 23\n\n1 race, to enable the Diversity Monitor to ensure that there are no racial disparities in pay.\n\n2 Consent Decree Section XVIII(D)(5).\n\n3\n\nIf Class Counsel have grounds for believing that McCormick & Schmick’s is disobeying\n\n4 its obligations under the Decree, Counsel may bring the matter to the attention of the Diversity\n\n5 Monitor or the Court. Consent Decree Sections XX, XIX.\n\n6\n\nB. Monetary Relief\n\n7\n\nIn addition to the significant, comprehensive injunctive relief described above,\n\n8 McCormick & Schmick’s will pay members of the Settlement Class $1.1 million. Consent\n\n9 Decree Section XXI(D)(1). This fund will compensate members of the Settlement Class who do\n\n10 not opt out and who timely submit claims.\n\n11\n\nEach class member who does not opt out of the settlement will receive a proportionate\n\n12 share of the net settlement payment. The calculation of each claimant’s share will be based on a\n\n13 point system that awards a certain number of points for the following factors: (1) length of\n\n14 service; (2) status as “front of the house” or “back of the house” employee. Consent Decree\n\n15 Section XXVII(A).\n\n16\n\nClass members who do not opt out will be required to submit a claim form in order to\n\n17 receive a monetary award. A copy of the claim form is attached to the proposed preliminary\n\n18 approval order as Exhibit 3. Once claim forms are submitted, the claims administrator will\n\n19 allocate points, determine each class member’s award, and distribute the settlement proceeds as\n\n20 soon as practicable.1\n\n21 In recognition of Class Representative Juanita Wynne’s service to the class, which\n\n22 included providing information regarding the structure of the company and her job duties during\n23 lengthy interviews with Class Counsel, responding to discovery and producing relevant\n24 documents, submitting to deposition, and participating in conference calls regarding the\n25 mediation process, Class Counsel will apply to the Court to award $5,000 to Ms. Wynne. The\n26\n\n27\n\n28\n\n1 It is the intention of the parties to distribute the entire amount in the Settlement Fund Account. If, despite the claims administrator’s efforts, checks remain uncashed after they have\n\nbecome invalid, the remaining sum shall be paid to the Administration and Monitoring Fund.\n\nSee Consent Decree Section XXVII(E).\n\n7 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 11 of 23\n\n1 Consent Decree provides that any service award shall be paid from the $1.1 million allocated to\n\n2 class monetary relief. Consent Decree Section XXI(D)(1).\n\n3\n\nThe proposed Consent Decree also provides that McCormick & Schmick’s will pay an\n\n4 additional $900,000 to reimburse class counsel for the fees and costs they have incurred to date.\n\n5 Consent Decree Section XXI(D)(3). Class Counsel will file a separate motion for approval of\n\n6 attorneys’ fees and expenses in advance of the Fairness Hearing.\n\n7\n\nThe proposed Consent Decree also provides that McCormick & Schmick’s will pay\n\n8 $90,000, for claims administration, to compensate the Diversity Monitor, and to pay fees for\n\n9 work performed by Class Counsel in monitoring the settlement, on an hourly basis. See Consent 10 Decree Section XXI(D)(5).2\n\n11\n\nThe proposed Consent Decree also provides that McCormick & Schmick’s will pay an\n\n12 additional $5,000 each to named plaintiffs Juanita Wynne and Dante Byrd to compensate them\n\n13 for release of their non-class claims, including Ms. Wynne’s potential claims for racial\n\n14 harassment/hostile work environment, and Mr. Byrd’s claims arising out of his application for\n\n15 employment with McCormick & Schmick’s. See Consent Decree Section XXI(D)(4).\n\n16 (Although arguably these settlements of non-class claims are not part of the class settlement,\n\n17 Class Counsel bring these agreements to the Court’s attention pursuant to Rule 23(e)(2) of the 18\n\n19 2 Any interest earned on the settlement fund, and any amounts from uncashed checks, will\n20 also be paid into the Administration and Monitoring Fund. Consent Decree Section XXI(D)(5).\nIt is estimated that claims administration will cost approximately $50,000-$75,000. Finberg 21 Dec., ¶34.\n\n22\n\nIf there are insufficient funds in the account, the other listed items will be given priority\n\nover payment to Class Counsel. If the account has enough money to cover all of these items, 23 Class Counsel will receive its full hourly rate for its monitoring work. Consent Decree Section\n\nXXI(D)(5)(b). 24\n\nIn the unlikely event that there is any amount remaining in the Administration and 25 Monitoring Fund after termination of the Decree, Class Counsel may apply to the Court for an\n\naward of the remaining amount 1) as compensation for work performed prior to the Final 26 Approval Date that was not compensated as part of the proposed $900,000 attorneys' fee award,\n\n27\n\nand 2) as compensation for having undertaken the risk that the Administration and Monitoring Fund would not have sufficient funds to compensate Class Counsel for work performed in\n\n28\n\nimplementing and monitoring the Decree. In the event that the Court does not approve payment of the full amount to Class Counsel, the remaining amount shall be distributed to the class\n\nmembers on a pro rata basis, or, if it is less than $50,000, to charity. Consent Decree Section\n\nXXI(D)(5)(c).\n\n8 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 12 of 23\n\n1 Federal Rules of Civil Procedure).\n\n2 IV. ARGUMENT\n\n3\n\nA. The Court Should Grant Preliminary Approval of the Class Action Settlement\n\n4\n\nTo grant preliminary approval of this class action settlement, the Court must find only\n\n5 that the settlement is non-collusive and within “the range of possible approval.” Young v. Polo\n\n6 Retail, LLC, 2006 WL 3050861 (N.D. Cal.); see also In re Vitamins Antitrust Litig., 2001 WL\n\n7 856292, *4-5 (D.D.C.); Newberg on Class Actions, Fourth Edition, §11.25.\n\n8\n\n1. The Terms of the Proposed Settlement Are Fair, Adequate and\n\n9\n\nReasonable.\n\n10\n\nAs long as “preliminary evaluation of the proposed settlement does not disclose grounds\n\n11 to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class\n\n12 representatives or of segments of the class, or excessive compensation for attorneys, and appears\n\n13 to fall within the range of possible approval,” the Court should preliminarily approve the\n\n14 settlement. In re Vitamins, 2001 WL 856292 at *4-5 (quoting Manual for Complex Litigation,\n\n15 Third (FJC 1995)). The Court may also direct the giving of notice to the class members of a\n\n16 final approval hearing, “at which arguments and evidence may be presented in support of and in\n\n17 opposition to the settlement.” McNamara v Bre-X Minerals Ltd., 214 F.R.D. 424, 426 (E.D.\n\n18 Tex. 2002) (quoting Manual for Complex Litigation, Third, at 237); 4 Newberg §11.25 (quoting\n\n19 same).3\n\n20\n\nHere, the parties negotiated the proposed settlement in good faith and at arms’ length.\n\n21 See Finberg Dec. ¶¶25-29. As noted above, discovery and informal exchanges of information in\n\n22 connection with the settlement mediation process, has allowed Class Counsel – who are\n\n23 experienced employment discrimination and class action attorneys – to assess the strengths and\n\n24 weaknesses of the claims against McCormick & Schmick’s and the benefits of the proposed\n\n25 settlement under the circumstances of this case. Id.\n\n26\n\nCounsel for both sides have conducted a thorough investigation into the facts of the case\n\n27\n\n28\n\n3 The fourth edition of the Manual for Complex Litigation was released in 2004 and does not include this precise language, but instead suggests that if a court has “reservations” about any\n\nof the issues described, it should “raise questions . . . and perhaps seek and independent review . .\n\n. .” Manual for Complex Litigation, Fourth, at 321. The end result is the same.\n\n9 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 13 of 23\n\n1 and have diligently investigated the class members’ claims. Class Counsel believe the\n\n2 settlement is fair, reasonable, and adequate, achieves an excellent result for class members, and\n\n3 is in the best interest of the class in light of all known facts and circumstances, including the risk\n\n4 of significant delay and McCormick & Schmick’s asserted defenses. See id. ¶¶35-36.\n\n5\n\n2. Class Counsel Were Fully Informed When the Settlement Was\n\nReached. 6\n\nAs noted above, and as described in the Finberg Declaration ¶¶14-19, Class Counsel 7\n\nspent thousands of hours litigating this case and vigorously investigating the claims asserted 8\n\nagainst McCormick & Schmick’s. 9\n\n10\n\nClass Counsel spoke with approximately 100 of the approximately 3000 class members,\n\n11 thoroughly interviewed two dozen of them, and analyzed information from those interviews,\n\n12 producing a total of 17 signed declarations. Plaintiffs also propounded document requests, and\n\n13 reviewed many thousands of pages of documents that were produced in discovery. Class\n\n14 counsel also reviewed and, with expert assistance, analyzed comprehensive work history and\n\n15 payroll data from 2002 through 2006. In addition to consulting with statistical experts, Class\n\n16 Counsel consulted with a labor economist. Finberg Dec., ¶17.\n\n17\n\nClass Counsel also deposed six persons designated as subject matter experts under Rule\n\n18 30(b)(6) who testified on a variety of topics, including company operations, hiring practices,\n\n19 training, compensation policies, store openings, data collection, and others. Company\n\n20 deponents included the Director of Human Resources, the Director of Training, the Vice\n\n21 President of Operations, and others. Finberg Dec., ¶18.\n\n22\n\nClass Counsel also responded to discovery propounded by Defendants. Plaintiffs\n\n23 responded to a total of six sets of document requests and two sets of interrogatories, and\n\n24 produced several hundred pages of documents. In addition, Class Counsel defended depositions\n\n25 of named plaintiffs Juanita Wynne and Dante Byrd. Finberg Dec., ¶19.\n\n26\n\nClass Counsel used the extensive knowledge of McCormick & Schmick’s practices that\n\n27 counsel gained through discovery as the basis for negotiations regarding the significant\n\n28 affirmative relief described above. Id. ¶¶27-28.\n\nDuring discovery, Class Counsel also received information from McCormick &\n\n10 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 14 of 23\n\n1 Schmick’s related to appropriate calculation of damages, including a detailed database of\n\n2 employment and payroll information. See id. ¶29. Using that data, Class Counsel’s statistical\n\n3 experts performed promotions and compensation analyses and then a damages analysis.\n\n4 McCormick & Schmick’s experts did the same, and the parties’ expert damages calculations\n\n5 formed the basis for negotiations regarding the monetary terms of the settlement. Id.\n\n6\n\nIn sum, Class Counsel completed substantial investigation and discovery and negotiated\n\n7 the proposed settlement with complete knowledge regarding the strengths and weaknesses of the\n\n8 case and the amounts necessary to compensate class members for the harm suffered.\n\n9\n\n3. Liability, Damages, and the Propriety of Class Certification Are all\n\n10\n\nContested. The Settlement Provides Reasonable Compensation for Class Members’ Claims, in Light of the Delay and Risks Associated\n\n11\n\nWith Continued litigation.\n\n12\n\nOf particular relevance to the reasonableness of the proposed settlement is the fact that\n\n13 McCormick & Schmick’s has and would continue to contest vigorously the merits of class\n\n14 members’ claims. McCormick & Schmick’s denies that it engaged in any intentional\n\n15 discrimination against African-American employees and denies that its employment practices\n\n16 had a disparate impact on African Americans. It is apparent from the proceedings to date and\n\n17 the Parties’ mediation process that, were the litigation to continue, McCormick & Schmick’s\n\n18 would aggressively contest the propriety of class certification and would contest liability. It\n\n19 would also argue that if liability were found, damages would be minimal.\n\n20\n\nMcCormick & Schmick’s arguments would include, without limitation, the following:\n\n21\n\n1. Class certification would be inappropriate because its operations are decentralized,\n\n22 and personnel decisions are made by individual managers at more than 60 restaurants\n\n23 nationwide, which would make trial of this action unmanageable.\n\n24\n\n2. Statistical analyses show no racial disparities in hiring or job assignment when\n\n25 compared to other restaurants in the appropriate local labor markets. Although plaintiffs\n\n26 disputed the validity of these analyses, and had their own analysis showing statistically\n\n27 significant disparities with respect to the placement of African Americans in front of the house\n\n28 positions, there was a substantial risk that a trier of fact would agree with the Company’s\n\n11 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 15 of 23\n\n1 analyses.\n\n2\n\n3. McCormick & Schmick’s hotly contensted that it had engaged in intentional\n\n3 discrimination, and plaintiffs bore a significant risk that they would not be able to persuade a\n\n4 jury that McCormick & Schmick’s standard operating procedure was a pattern and practice of\n\n5 intentional discrimination.\n\n6\n\n4. McCormick & Schmick’s maintains, and has statistical analyses supporting its view,\n\n7 that there are no differences between compensation of African American and White employees\n\n8 doing the same job. Again, Plaintiffs had their own analysis showing disparities, but were at\n\n9 risk that they could not persuade the trier of fact.\n\n10\n\n5. McCormick & Schmick’s also contended that, even if liability were established, any\n\n11 damages were minimal. Plaintiff bore significant risk on this issue as well.\n\n12\n\nSuch arguments notwithstanding, McCormick & Schmick’s has concluded that it is in\n\n13 the Company’s interest to resolve and settle this litigation pursuant to the proposed Consent\n\n14 Decree. For their part, Class Counsel have analyzed and evaluated the merits of Plaintiffs’\n\n15 claims made against McCormick & Schmick’s in the Litigation and the impact of the proposed\n\n16 Consent Decree on Plaintiffs and the Settlement Class. Finberg Dec., ¶35. Specifically, while\n\n17 Plaintiffs’ counsel believes that Plaintiffs’ claims are meritorious and that Plaintiffs would\n\n18 eventually prevail in certifying this case as a class action and would prevail on the merits,\n\n19 Plaintiffs’ counsel has also considered factors such as the substantial risks of continued\n\n20 litigation and the possibility that the case, if not settled now, might not result in any recovery or\n\n21 might result in a recovery several years from now that is less favorable to class members than\n\n22 that offered by the proposed Consent Decree. Finberg Dec., ¶¶35-36. In light of such\n23 considerations, Plaintiffs’ counsel is satisfied that the terms and conditions of the Settlement are\n24 fair, reasonable and adequate and that the Settlement is in the best interests of the Class. Id.\n25\n\n4. The Settlement Is the Product of Serious, Arms’ Length, Informed\n\n26\n\nNegotiations.\n\n27\n\nThe Settlement resulted only after extensive, arms’ length settlement negotiations that\n\n28 were conducted after rigorous discovery regarding the merits and damages of the disputed\n\n12 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 16 of 23\n\n1 claims, and under the supervision of experienced mediator Hunter Hughes. See id. ¶¶25-26.\n\n2 The negotiations were protracted, and the mediation itself required multiple lengthy sessions.\n\n3 See id. In sum, the proposed settlement is the non-collusive product of hard-fought litigation.\n\n4\n\n5. The Proposed Plan of Allocation is Fair and Reasonable.\n\n5\n\nAs described above, the proposed plan of allocation takes into account two factors to\n\n6 ensure that the ultimate division of the settlement proceeds among class members is fair and\n\n7 accurate, while at the same time preserving the intended efficiencies of class action litigation:\n\n8 length of service and type of job jeld, which takes into account the fact that those who served\n\n9 the longest in back of the house jobs have stronger potential claims and larger potential\n\n10 damages.\n\n11\n\n6. The Proposed Service Payment to the Class representative Is\n\n12\n\nReasonable.\n\n13\n\nThe Settlement provides for a service payment of up to $5,000 for Class Representative\n\n14 Juanita Wynne. Ms. Wynne performed important services for the benefit of the Class. She\n\n15 provided information regarding the structure of the company and her job duties during lengthy\n\n16 interviews; she submitted to deposition by McCormick & Schmick’s; she produced relevant\n\n17 documents; and she worked with Class Counsel throughout the case. See Finberg Dec., ¶¶20-\n\n18 21. “Courts routinely approve incentive awards to compensate named plaintiffs for the services\n\n19 they provided and the risks they incurred during the course of the class action litigation.”\n\n20 Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001), quoting In re S. Ohio\n\n21 Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)); see also Van Vranken v. Atlantic\n\n22 Richfield Co., 901 F.Supp. 294, 300 (N.D. Cal. 1995) (approving $50,000 participation award).\n\n23 Plaintiffs will file a separate motion for approval of the service payment.\n\n24\n\n7. The Proposed Attorneys Fees are Fair and Reasonable.\n\n25\n\nThe Consent Decree provides for payment to Class Counsel of $900,000, or such amount\n\n26 as is approved by the Court, for attorneys’ fees and expenses spent litigating this matter through\n\n27 the Final Approval Date, in light of applicable fee-shifting statutes. That amount is\n\n28 approximately half of Class Counsel’s lodestar for time and expenses actually spent litigating\n\n13 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 17 of 23\n\n1 this matter. Finberg Dec. ¶33. Class Counsel will file a separate motion for approval of\n\n2 attorneys’ fees and expenses.\n\n3\n\nB. The Court Should Grant Provisional Certification of the Settlement Classes.\n\n4\n\nThis Court has the power pursuant to F.R.C.P. 23 to “make a conditional determination\n\n5 of whether the action should be maintained as a class action, subject to approval at a later date.”\n\n6 Robert F Fry, Jr. v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (2000).\n\n7\n\nPlaintiffs seek approval of two provisional Settlement Classes:\n\n8\n\nAn Injunctive Relief Class, certified pursuant to Rule 32(b)(3), defined in the Consent\n\n9 Decree to include “All African Americans employed by McCormick & Schmick’s in Front of\n\n10 the House or Back of the House positions between May 15, 2002 and the date the Decree\n\n11 terminates;” (Consent Decree Section VI(A)) and\n\n12\n\nA Monetary Relief Class, certified pursuant to Rule 32(b)(2), defined to include “All\n\n13 African Americans employed by McCormick & Schmick’s in Front of the House or Back of the\n\n14 House positions between May 15, 2002 and the Preliminary Approval Date, except those who\n\n15 file a timely request to opt out of the monetary relief provisions of the Decree.” (Consent\n\n16 Decree Section VI(B))\n\n17\n\nThe Consent Decree defines “Front of the House” positions as waiter, waitress, server,\n\n18 host, hostess, bartender, and cocktail server. Consent Decree Section III(O). “Back of the\n\n19 House” positions are all the other hourly (non-exempt) restaurant positions. Consent Decree\n\n20 Section III(C).\n\n21 These classes sufficiently meet all the Rule 23 requirements for certification to warrant\n\n22 the Court’s provisional certification. Fed. R. Civ. P. 23(a), 23(b)(2), 23(b)(3).\n23\n1. Numerosity. 24\nThe numerosity requirement is met if “the class is so large that joiner of all members is 25\nimpracticable.” Fed. R. Civ. P. 23(a)(1). McCormick & Schmick’s employee and payroll files 26\nshow that there are approximately 3,000 members of the Monetary Relief Class, which satisfies 27\nthe numerosity requirement. 28\n\n14 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 18 of 23\n\n1\n\n2. Commonality and Typicality.\n\n2\n\nA class meets the commonality prerequisite “if there are questions of fact and law which\n\n3 are common to the class.” Fed. R. Civ. P. 23(a)(2). This rule is to be construed permissibly.\n\n4 “All questions of fact and law need not be common to satisfy the rule.” Hanlon v. Chrysler\n\n5 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The typicality requirement is met if “the claims or 6 defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.\n\n7 Civ. P. 23(a)(3). Like commonality, the typicality requirement is construed liberally and is met\n\n8 if the class representatives have claims that are “reasonably co-extensive with those of absent\n\n9 class members.” Hanlon, 150 F.3d at 1020. The members of the class share common issues of\n\n10 fact and law regarding (1) whether McCormick & Schmick’s employment policies and practices\n\n11 were intentionally discriminatory and/or had an adverse impact on African Americans; and (2)\n\n12 whether Title VII or Section 1981 have been violated.\n\n13 3. Adequacy of Representation.\n\n14\n\nUnder Rule 23(a)(4), the representative parties must “fairly and adequately protect the\n\n15 interests of the class.” To determine the adequacy of representation, a court must consider two\n\n16 questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other\n\n17 class members and (2) will the named plaintiffs and their counsel prosecute the action\n18 vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020 (citing Lerwill v. Inflight Motion\n19 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). In this case, the Class Representative and\n20 Class Counsel have no conflicts with the class, and have provided excellent representation to the\n21 class throughout this litigation, including in obtaining a highly favorable settlement.\n22 4. Rule 23(b)(2) and (3).\n23 Finally, if all the requirements of Rule 23(a) are met, class certification is appropriate if\n24 the class also meets the requirements of Rule 23(b)(1), (2), or (3).\n25 The injunctive relief class meets the requirements of Rule 23(b)(2), because McCormick\n26 & Schmick’s has “acted or refused to act on grounds generally applicable to the class, thereby\n27 making appropriate final injunctive relief or corresponding declaratory relief with respect to the\n28\nclass as a whole.” Fed. R. Civ. P. 23(b)(2). McCormick & Schmick’s employment practices\n\n15 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 19 of 23\n\n1 and policies applied to all class members, and injunctive relief is appropriate with respect to all\n\n2 class members’ claims.\n\n3\n\nThe monetary relief class meets the requirements of Rule 23(b)(3) because common\n\n4 questions “predominate over any questions affecting only individual members,” and class\n\n5 resolution is “superior to other available methods for the fair and efficient adjudication of the\n\n6 controversy.” Fed. R. Civ. P. 23(b)(3). As set forth above, the common questions predominate,\n\n7 since the claims of the members of each class have the same legal and factual bases. The\n\n8 superiority of a class action in this case to a multiplicity of individual and duplicative\n\n9 proceedings is also readily apparent. If each plaintiff were required to litigate his or her case\n\n10 separately, the courts would be tasked with resolving thousands of individual cases, and\n\n11 McCormick & Schmick’s with defending the same number of cases. Moreover, the cost of\n\n12 litigating the claims might deter some class members who have valid claims from pursuing\n\n13 them. The interests of the plaintiffs, defendant and the courts are therefore best served by\n\n14 resolving this matter on a classwide basis.\n\n15 C. The Proposed Notice and Claims Process Are Appropriate.\n\n16 1. The Proposed Class Notice Satisfies Due Process.\n\n17\n\nThe content of the proposed Notice of Class Action Settlement, which is attached to the\n\n18 proposed preliminary approval order as Exhibit 2, fully complies with due process and FRCP\n\n19 23. The Notice provides the definition of the Settlement Class, describes the nature of the\n\n20 action and claims, states that a member of the monetary relief settlement class may enter an\n\n21 appearance through counsel, explains the procedures for excluding oneself or objecting to the\n\n22 settlement, and explains the binding effect of the judgment on those who remain in the class.\n23 The Notice also describes the terms of the settlement, informs the class about the attorneys’ fees\n24 terms of the agreement, and provides specific information regarding the date, time, and place of\n25 the final approval hearing.\n26\nThe detailed information in the proposed Notice is more than adequate to put class 27\nmembers on notice of the proposed settlement. Courts have approved class notices even when 28\n\nthey provided only general information about a settlement. See, e.g., In re Michael Milken &\n\n16 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 20 of 23\n\n1 Assocs. Sec. Litig., 150 F.R.D. 57, 60 (S.D.N.Y. 1993) (class notice “need only describe the\n\n2 terms of the settlement generally”). The proposed Notice fully complies with the requirements\n\n3 of Rule 23(c)(2)(B) and due process.\n\n4\n\n2. The Notice Plan and Claims Process Are Appropriate.\n\n5\n\nThe Consent Decree provides that the claims administrator will send the notice by U.S.\n\n6 mail to the last known address of each class member. McCormick & Schmick’s will provide\n\n7 the claims administrator with names and contact information of potential Settlement Class\n\n8 members within 20 days of preliminary approval, and that list will be updated with any\n\n9 information available through the National Change of Address system. The claims\n\n10 administrator will send the notice to class members within 10 days of receiving class members’\n\n11 data from McCormick & Schmick’s. The claims administrator will also trace all returned\n\n12 undeliverable notices and re-send them to the most recent addresses available. See Consent\n\n13 Decree Section XXII(C).\n\n14\n\nAs discussed above, the notice to the class will contain information about how to\n\n15 exclude oneself, object to the settlement, and/or file a claim. Class members will have 60 days\n\n16 from the date of mailing to submit opt-out requests or to comment on or object to the settlement.\n17 This is sufficient time to give Settlement Class member a fair opportunity to respond. Cf.\n18 Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (approving notice sent 31\n19 days before the deadline for objections and 45 days before the hearing).4 Class members will\n20 have 70 days from the mailing of Notice to submit a claim form. In doing so, they will be\n21 permitted to correct any of the pre-printed information of the claim form. Once clams are\n22 received, the claims administrator will send payments as soon as practicable via First Class\n23 Mail.\n24\n\n25\n\n4 McCormick & Schmick’s shall have the unilateral right to revoke the Consent Decree\n\nprior to the Settlement Effective Date if five percent (5%) or more of the class members opt-out\n\n26 of the monetary relief provisions of the Consent Decree and do not rescind their opt-out\n\nstatements. To exercise this option, the Company must inform Class Counsel that it will revoke 27 the Consent Decree within 10 business days after the deadline for opt out statements. If\n\nMcCormick & Schmick’s exercises its unilateral right to revoke the Consent Decree, all monies 28 in the Settlement Fund, and all income earned thereon, will be immediately returned to the entity\n\nthat funded the Settlement Fund. See Consent Decree Section XXIII(C)(4).\n\n17 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 21 of 23\n\n1\n\nD. The Court Should Set a Final Settlement Approval Schedule.\n\n2\n\nThe last step in the settlement approval process is the formal hearing, at which the Court\n\n3 may hear all evidence and argument necessary to evaluate the settlement. The Parties propose\n\n4 the following schedule for final approval:\n\n5 Last day for the claims administrator to mail Notice and Claim\n\n6\n\nMay 2, 2008 Form to class members. (30 days from April 3)\n\n7\n\nJuly 1, 2008 Objection postmark deadline (60 days from May 2)\n\nJuly 1, 2008 Opt out statement postmark deadline ( 60 days from May 2) 8\n\nJuly 11, 2008 Claim form submission postmark deadline (70 days from May\n\n9\n\n2)\n\n10\n\nJune 26, 2008 Deadline for filing motions re: 1) final settlement approval; 2)\n\nservice awards; and 3) attorneys’ fees and expenses (35 days\n\n11\n\nprior to Final Approval Hearing).\n\n12\n\nJuly 24, 2008 Reply papers due (7 days before Final Approval Hearing).\n\n13\n\nJuly 31, 2008 Final approval hearing. 2:00 p.m.\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n18 Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 22 of 23\n\n1 V. CONCLUSION\n\n2\n\nFor all of the foregoing reasons, the plaintiff classes respectfully request that the Court:\n\n3 (1) preliminarily approve the parties’ class action settlement and proposed Consent Decree, (2)\n\n4 provisionally certify the Settlement Classes, (3) approve and direct distribution of the class\n\n5 notice and claim form, and (4) set the foregoing schedule for the final approval process.\n\n6 Dated: February 28, 2008\n7\n\nBy: /s/ Rebekah B. Evenson Rebekah B. Evenson\n\n8\n\nJames M. Finberg (SBN 114850)\n\n9\n\nEve H. Cervantez (SB 164709) Rebekah B. Evenson (SBN 207825)\n\n10\n\nALTSHULER BERZON LLP 177 Post Street, Suite 300\n\n11\n\nSan Francisco, CA 94108 Telephone: (415) 421-7151\n\n12\n\nFacsimile: (415) 362-8064 E-Mail: jfinberg@altshulerberzon.com\n\n13\n\nE-Mail: ecervantez@altshulerberzon.com\n\n14\n\nKelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887)\n\n15\n\nLIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP\n\n16\n\n275 Battery Street, 30th Floor San Francisco, CA 94111-3339\n\n17\n\nTelephone: (415) 956-1000 Facsimile: (415) 956-1008\n\n18\n\nE-Mail: kdermody@lchb.com\n\nE-Mail: jsagafi@lchb.com\n\n19 Robert Rubin (SBN 085084)\n\n20\n\nTHE LAWYERS’ COMMITTEE FOR CIVIL\n\nRIGHTS OF THE SAN FRANCISCO BAY\n\n21\n\nAREA\n\n131 Steuart Street, Suite 400\n\n22\n\nSan Francisco, CA 94105\n\nTelephone (415) 543-9444\n\n23\n\nFacsimile: (415) 543-0296\n\nE-Mail: rrubin@lccr.com\n\n24\n\nE-Mail: dtate@lccr.com\n\n25\n\nThomas A. Warren\n\nTHOMAS A. WARREN LAW OFFICES\n\n26\n\n2032 Thomasville Rd #D\n\nTallahassee, FL 32308-0734\n\n27\n\ntelephone: (850) 385-1551\n\nFacsimile: (850) 385-6008\n\n28\n\nEmail: tw@nettally.com\n\n19 Plaintiffs’ Notice of Motion and Motion for Order - Case No. C-06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 77 Filed 02/28/2008 Page 23 of 23\n\n1\n\nBill Lann Lee (SBN 108452)\n\nTodd F. Jackson (SBN 202598)\n\n2\n\nVincent Cheng (SBN 230827)\n\nLindsay Nako (SBN 239090)\n\n3\n\nLEWIS, FEINBERG, LEE, RENAKER &\n\nJACKSON, P.C.\n\n4\n\n1300 Broadway, Suite 1800\n\nOakland, CA 94612\n\n5\n\nTelephone: (510) 839-6824\n\nFacsimile: (510) 839-7839\n\n6\n\nEmail: blee@lewisfeinberg.com\n\nEmail: tjackson@lewisfeinberg.com\n\n7\n\nEmail: vcheng@lewisfeinberg.com\n\nEmail: lnako@lewisfeinberg.com 8\n\nEric Kingsley (SBN 185123)\n\n9\n\nKINGSLEY & KINSGSLEY\n\n10\n\n16133 Venture Blvd., Suite 1200 Encino, CA 91436\n\n11\n\nTelephone: (818) 990-8300 Facsimile: (818) 990-2903\n\n12\n\nEmail: kingsleylaw@aol.com\n\n13\n\nAttorneys for Plaintiffs and the proposed Class\n\nMembers\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n20 Plaintiffs’ Notice of Motion and Motion for Order - Case No. C-06-3153 CW\n\n\f", "Case 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 1 of 17\n\n1 Kelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887)\n2 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP\n3 275 Battery Street, 30th Floor San Francisco, CA 94111-3339\n4 Telephone: (415) 956-1000 Facsimile: (415) 956-1008\n5 E-Mail: kdermody@lchb.com E-Mail: jsagafi@lchb.com\n6 James M. Finberg (SBN 114850)\n7 Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP\n8 177 Post Street, Suite 300 San Francisco, CA 94108\n9 Telephone: (415) 421-7151 Facsimile: (415) 362-8064\n10 E-Mail: jfinberg@altber.com E-Mail: ecervantez@altber.com\n11 Attorneys for Plaintiffs andproposed Classes\n12 [additional counsel on signature page}\n\n13\n\nUNITED STATES DISTRICT COURT\n\n14\n\nNORTHERN DISTRICT OF CALIFORNIA\n\n15\n\nOAKLAND DIVISION\n\n16\nmANITA WYNNE and DANTE BYRD, 17 on behalf of themselves and classes of\nthose similarly situated, 18\nPlaintiffs, 19\nv. 20\nMCCORMICK & SCHMICK'S 21 SEAFOOD RESTAURANTS, INC. and\nMCCORMICK & SCHMICK 22 RESTAURANT CORP.,\n\n23\n\nDefendants.\n\nCase No. 06-3153 CW\n\nPLAINTIFFS' NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF POINTS AND AUTHORITIES\n\nDate: Time:\n\nAugust 7, 2008 2:00 p.m.\n\nCourtroom: 2, 4th Floor The Honorable Claudia Wilken\n\n24\n\n25\n\n26\n\n27\n\n28\n\n770009.1\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 2 of 17\n\n1\n\nTABLE OF AUTHORITIES\n\n2\n\nPage\n\n3 NOTICE OF MOTION AND MOTION.......................................................................................... 1\n\n4 MEMORANDUM OF POINTS AND AUTHORITIES.................................................................. 1\n\n5 I.\n\nINTRODUCTION................................................................................................................ 1\n\n6 II. THE CLASS ACTION SETTLEMENT. ............................................................................. .2\n\n7\n\nA. Injunctive Relief. ....................................................................................................... 3\n\n8\n\n1. Increasing African American Representation in\n\nFront-of-the-House Jobs...............................................................................3\n\n9\n\na. Hiring Benchmarks........................................................................... 3\n\n10\n\nb. Enhanced Recruiting Efforts............................................................. 3\n\n11\n\nc. Manager Accountability.................................................................... 4\n\n12\n\n2. Opening Pathways for Promotion................................................................ .4\n\n13\n\n3.\n\nEnhanc~d ~ro.ced~res for Complaining about\n\n14\n\nRace DIscnmmatIOn......................................................................................4\n\n15\n\n4. Monitoring and Enforcement of Decree....................................................... 4\n\n16\n\nB. Monetary Relief. ....................................................................................................... 5\n\n17\n\nC. Attorneys' Fees and Expenses.................................................................................. 5\n\n18\n\nD. Claims AdministrationlDiversity Monitor. ............................................................... 6\n\n19\n\nE. Settlement Class Claims............................................................................................ 6\n\n20\n\nF. The Class Release..................................................................................................... 6\n\n21 III. 22 23 24 25 26 27\n\nTHE PROPOSED SETTLEMENT IS \"FAIR, REASONABLE, AND ADEQUATE\" .................................................................................6\nA. The Settlement Will Benefit the Class...................................................................... 7\nB. The Reaction of the Class Supports Approval of the Settlement. ............................. 8\nC. The Settlement Was Reached Through Arms-Length Negotiations after the Parties Conducted and Extensive Investigation and Analysis........................................................................................ 8\n1. The Parties Actively Litigated Disputed Issues and Engaged in Substantial Discovery................................................................ 8\n\n28\n\na.\n\nThe Charges, Pre-Filing Investigation, and Complaints................... 9\n\n770009.1\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL\n\n-1-\n\nAPPROVAL OF CLASS ACTION SETTLEMENT; MPA\n\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 3 of 17\n\n1\n\nTABLE OF AUTHORITIES\n\n( continued)\n\n2\n\nPage\n\n3\n\nb. Litigation of Disputed Issues............................................................ 9\n\n4\n\nc. Extensive Discovery......................................................................... 9\n\n5\n\n2. The Parties Participated in Arms-Length Negotiations\n\nBefore an Experienced Neutral Mediator.. ................................................. 10\n\n6\n\nD. Litigating This Action Would be Complex, Expensive, and\n\n7\n\nTime Consuming and Would Delay and Endanger Recovery................................ l0\n\n8\n9\nIV.\n10\n\nE. The Recommendations of Experienced Counsel Favor Approval of the Settlement. .................................................................................... 11\nTHE COURT SHOULD CONFIRM FINAL CERTIFICATION OF THE CLASSES ............................................................................. 11\n\n11 V. CONCLUSION.................................................................................................................. 12\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n770009.1\n\n- 11 -\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 4 of 17\n\n1\n\nTABLE OF AUTHORITIES\n\n( continued)\n\n2\n\nPage\n\n3\n\n4\n\nCASES\n\n5 Boyd v. Bechtel Corp.,\n\n485 F.Supp. 610 (N.D. Ca1. 1979) ............................................................................. 7, 11\n\n6\n\nButler v. Home Depot,\n\n7\n\nNo. C94 4335 SI (N.D. Ca1.) ............................................................................................... 10\n\n8 Class Plaintiffs v. City ofSeattle,\n\n955 F.2d 1268 (9thCir.1992).......................................... ............................................ .passim\n\n9\n\nEllis v. Naval Air Reword Facility,\n\n10\n\n87 F.RD. 15 (N.D. Ca1. 1980).................................................................................... 7, 8, 11\n\n11 Gonzalez v. Abercrombie & Fitch Stores, Inc.,\n\nNo. 03-2817 SI, 04-4730 SI, and 04-4731 SI (N.D. Ca1.) .................................................. 10\n\n12\n\nHanlon v. Chrysler Corp.,\n\n13\n\n150F.3d 1011 (9thCir.1998).............................................................................................. 11\n\n14 Ingram v. Coca-Cola Co.,\n\n200 F.RD. 685 (N.D. Ga. 2001)......................................................................................... 10\n\n15\n\nIn re Prudential Sec. Inc. Ltd Partnerships Litig.,\n\n16\n\n163 F.RD. 200 (S.D.N.Y. 1995) ..................................................................................... 7\n\n17 M Berenson Co. v. Faneuil Hall Marketplace, Inc.,\n\n671 F.Supp.819 (D. Mass 1987)........................................................................................... 7, 11\n\n18\n\nOfficers for Justice v. Civil Servo Comm 'n,\n\n19\n\n688 F.2d 615 (9th Cir. 1982) ....................................................................................... 6, 7\n\n20 Satchell v. Federal Express Corp.,\n\nNo. 03-2659 SI, 03-2878 SI (N.D. Ca1.) ............................................................................. 10\n\n21\n\nShores v. Publix Super Markets, Inc.,\n\n22\n\n95-1162-CIV-T-25E (M.D. Fla.)........................................................................................ 10\n\n23 Staton v. Boeing,\n\n327 F.3d 938. 960 (9th Cir. 2003) ............................................................................... 2, 7\n\n24\n\nUtility Reform Project v. Bonneville Power Admi.,\n\n25\n\n869 F.2d 437 (9th Cir. 1989) ........................................................................................... 6\n\n26\n\n27\n\n28\n\n770009.1\n\n- 111 -\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 5 of 17\n\n1\n\nNOTICE OF MOTION AND MOTION\n\n2\n\nTO ALL PARTIES AND THEIR COUNSEL OF RECORD:\n\n3\n\nNOTICE IS HEREBY GIVEN that on August 7, 2008, at 2:00 p.m., or as soon\n\n4 thereafter as the matter may be heard, in the Courtroom of the Honorable Claudia Wilken of the\n\n5 Northern District of California, Oakland Division, located at 1301 Clay Street, Oakland,\n\n6 California, Plaintiffs Juanita Wynne and Dante Byrd (\"Plaintiffs\"), on behalf of themselves and\n\n7 all others similarly situated, will, and hereby do, move this Court (1) to grant, pursuant to Federal\n\n8 Rule of Civil Procedure 23(e), final approval of the Consent Decree, attached as Exhibit 1 to this\n\n9 Court's April 4, 2008 order granting preliminary approval (the \"Preliminary Approval Order\"),\n\n10 and entry ofjudgment in accordance with the Settlement Agreement; and (2) to grant, pursuant to\n\n11 Federal Rule of Civil Procedure 23(a), 23(b)(2), and 23(b)(3), final class certification of the\n\n12 settlement Classes conditionally certified in this Court's Preliminary Approval Order.\n\n13\n\nThe Motion is based on this Notice of Motion and Motion, the attached\n\n14 Memorandum of Points and Authorities, the [Proposed] Order Confirming Final Certification Of\n\n15 Class Action And Granting Final Approval To Class Action Settlement And Consent Decree\n\n16 (\"Final Order\"), the Settlement Agreement, and the declarations of James M. Finberg and Jahan\n\n17 C. Sagafi, the pleadings and papers filed in this case, and any oral argument this Court permits.\n\n18\n\nMEMORANDUM OF POINTS AND AUTHORITIES\n\n19 I. 20\n\nINTRODUCTION Plaintiffs hereby request that this Court grant final approval of the proposed\n\n21 Consent Decree, which provides substantial injunctive and monetary relief to the Class members.\n\n22 Specifically, the Consent Decree provides the following important injunctive remedies: (1)\n\n23 mechanisms to increase the recruitment of African American employees, (2) benchmarks (that are\n\n24 the higher of applicant flow or census data for the relevant occupational code) that will increase\n\n25 the percentage of African Americans in Front-of-the-House Positions, (3) financial incentives to\n\n26 motivate McCormick & Schmick's managers to achieve diversity goals, (4) improved job posting\n\n27 procedures to ensure that all employees are aware of promotion opportunities, (5) enhanced race\n\n28 discrimination complaint procedures, (6) monitoring by an experienced, respected third-party\n\n770009.1\n\n- 1-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 6 of 17\n\n1 Diversity Monitor, and (7) continued oversight by Class Counsel. The Consent Decree also\n\n2 provides $1,100,000 in monetary relief to Class members who submit valid Claim Forms.\n\n3\n\nIn short, this settlement is \"fair, reasonable, and adequate\" within the meaning of\n\n4 Federal Rule of Civil Procedure 23(e). The Class has responded extremely favorably, with 982\n\n5 Class members submitting Claim Forms. Not a single Class member has objected to any aspect\n\n6 of the Consent Decree. Only three individuals have opted out (i.e., only three tenths of a percent 7 of the total number of people responding). 1 Class Counsel have conducted sufficient discovery to\n\n8 enable them to evaluate the claims and defenses in the action. The settlement is in line with the\n\n9 strength and recoverability of Plaintiffs' claims given the risk, expense, complexity, and likely\n\n10 duration of further litigation. See Staton v. Boeing Co., 327 F.3d 938.960 (9th Cir. 2003); Class\n\n11 Plaintiffs v. City ofSeattle, 955 F.2d 1268,1291 (9th Cir. 1992).\n\n12\n\nIn connection with requesting final settlement approval, the parties also request\n\n13 that the Court confirm as final (1) the certification of the Classes conditionally certified in its\n\n14 Preliminary Approval Order; and (2) the appointment of Plaintiff Juanita Wynne as Class\n\n15 representative and of Plaintiffs' counsel as Class Counsel as initially ordered in that Order?\n\n16 II. 17\n\nTHE CLASS ACTION SETTLEMENT AGREEMENT On April 4, 2008, the Court granted Plaintiffs' Motion For Order: (1) Preliminarily\n\n18 Approving Class Action Settlement And Proposed Consent Decree; (2) Provisionally Certifying\n\n19 Settlement Classes; (3) Approving And Directing Distribution Of Notice Of The Settlement; And\n\n20 (4) Setting A Schedule For The Final Settlement Approval Process (\"Preliminary Approval\n\n21 Motion\"). The Court determined that the settlement falls \"within the range of possible settlement\n\n22 approval,\" is \"the result of extensive, arms' length negotiations between the Parties,\" \"is non-\n\n23 collusive,\" and was reached only \"after Class Counsel had investigated the class claims and\n\n24 became familiar with the strengths and weakness of plaintiffs' case.\" Preliminary Approval\n\n25 1 The postmark deadline for Claim Forms is July 25, 2008, and the postmark deadline for objections and opt outs is July 15,2008. Class Counsel will update the Court on the final\n26 numbers before the fairness hearing. 2 McCormick & Schmick's does not oppose this motion. Furthermore, by separate motion, Class\n27 Counsel will, consistent with the terms of the Settlement Agreement, apply for attorneys' fees and costs and seek a service award for Ms. Wynne. McCormick & Schmick's does not oppose those\n28 motions either.\n\n770009.1\n\n-2-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 7 of 17\n\n1 Order (Docket No. 82) at 3:14-19.\n\n2\n\nA. Injunctive Relief\n\n3\n\nDuring the five year term of the Decree, McCormick & Schmick's has agreed to\n\n4 implement meaningful measures to increase the recruiting, hiring, promotion, and compensation\n\n5 of African American employees, and to ensure an increase in the percentage of African\n\n6 Americans in Front-of-the-House Positions.\n\n7\n\n1. Increasing African American Representation in Front of the House\n\nJobs 8\n\na. Hiring Benchmarks\n9 McCormick & Schmick's will establish benchmarks increase African American\n10 incumbency in Front-of-the-House (server, bartender, host) Positions. The benchmarks will be\n11 set at the higher of the percentage of African Americans in the (a) applicant flow or (b) the census\n12 category for the job sought in the local labor market. Consent Decree, § XI. The Diversity\n13 Monitor will regularly examine McCormick & Schmick's human resources data to ensure that it\n14 is taking appropriate steps to meet its benchmarks. The term of the Consent Decree is five years,\n15 unless McCormick & Schmick's meets all company-wide benchmarks for three consecutive\n16 years, in which case the Company may apply to the Court to terminate the Consent Decree at the\n17 end of the fourth year. Id, § V.\n18 The Diversity Monitor will have the power to require policy changes to increase\n19 African American representation. Id, §§ XVIII, XX. If McCormick & Schmick's fails to meet\n20 its benchmarks, the Diversity Monitor can order the Company to take corrective steps, such as\n21 validating its hiring criteria, enhancing its recruitment, and/or requiring hiring of African\n22 Americans from back-of-the-house positions who have expressed interest in moving to Front-of-\n23 the-House Positions. Id, § XI(D).\n24\n\nb. Enhanced Recruiting Efforts 25\nMcCormick & Schmick's will also hire a new Corporate Recruiter. Id, § XVI(A). 26\nThe Company will develop a strategy for increasing and make its best efforts to increase African 27\nAmerican representation in front of the house and management positions. Id, § XVI(A)-(B). 28\n\n770009.1\n\n-3-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 8 of 17\n\n1 Specifically, one aspect of this strategy will be the development of a list of recruiting sources and\n\n2 advertising media that reach African Americans. Id, § XVI(B).\n\n3\n\nIf any restaurant's African American applicant flow declines for two years in a\n\n4 row, or is lower than the census-based benchmark, the Company will develop a specific plan to\n\n5 increase the number of African American applicants in front of the house jobs at that store,\n\n6 including by enhancing its outreach and recruitment efforts. Id, § XVI(C)-(D).\n\n7\n\nc. Manager Accountability\n\n8\n\nMcCormick & Schmick's will evaluate restaurant managers in part on their\n\n9 success in helping achieve the diversity goals, and a meaningful portion of managers' bonuses\n\n10 will be based on performance in that area. Id, § XlV.\n\n11\n\n2. Opening Pathways for Promotion\n\n12\n\nFurthermore, McCormick & Schmick's will implement a \"registration of interest\"\n\n13 program, which will announce openings at all area restaurants, inviting qualified individuals to\n\n14 apply and explaining the application process. Id, § XII. This reform will protect against the\n\n15 possibility that African Americans miss promotion opportunities because they are not told about\n\n16 them by friends in management. Every employee who registers interest and meets the basic\n\n17 criteria for the position will be considered an applicant for that position in all area restaurants\n\n18 when openings arise. Id, § XII(B)-(C).\n\n19\n\n3. Enhanced Procedures for Complaining About Race Discrimination\n\n20\n\nIn addition, McCormick & Schmick's will train all employees on its existing\n\n21 \"Ethics Point\" complaint system, and enable employees to use Ethics Point to complain about\n\n22 shift and section assignments, the Registration of Interest program, or other measures set out in\n\n23 the Consent Decree. McCormick & Schmick's has also agreed to enhance its investigation\n\n24 procedures to ensure that every complaint is fully investigated, and to document every complaint\n25 and the steps taken to investigate each complaint. Id, § xv.\n\n26\n\n4. Monitoring and Enforcement of Decree\n\n27\n\nThe Diversity Monitor, Barry Goldstein, will monitor McCormick's policies and\n\n28 practices and its human resources and payroll data, to ensure compliance with all aspects of the\n\n770009.1\n\n-4-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 9 of 17\n\n1 Consent Decree. Throughout the term of the Consent Decree, McCormick & Schmick's will\n\n2 provide regular progress reports to the Diversity Monitor. Id, § XVIII(C)-(D). The Diversity\n\n3 Monitor will also have access to data and documents reasonably related to his duties. Id, §\n\n4 XVIII(B). The Diversity Monitor will issue annual reports detailing McCormick & Schmick's\n\n5 performance on each aspect of the Consent Decree. Id, § XVIII(E).\n\n6\n\nThe parties have agreed that Barry Goldstein will serve as the Diversity Monitor.\n\n7 Id, § X. Mr. Goldstein has significant experience in litigating race discrimination cases; he is a\n\n8 preeminent lawyer in this field. James M. Finberg Declaration in support of Preliminary\n\n9 Approval (\"Finberg Preliminary Approval Dec.\"), ~ 31.\n\n10\n\nBoth the Diversity Monitor and Class Counsel can bring any compliance concerns\n\n11 to the Court's attention. Id, §§ XIX, Xx.\n\n12\n\nB. Monetary Relief\n\n13\n\nIn addition to the significant, comprehensive injunctive relief described above,\n\n14 McCormick & Schmick's will pay Class members who submit valid Claim Forms $1.1 million.\n\n15 Id, § XXI(D)(I). Importantly, none of this money can revert to McCormick & Schmick's. Each\n\n16 Claimant's share of the monetary relief will be based on: (1) length of service and (2) status as\n\n17 \"front of the house\" or \"back of the house\" employee. Id, § XXVII(A).3 As detailed in a\n\n18 separate motion being submitted to the Court today, Class Counsel are also applying for approval\n\n19 of a $5,000 class representative service award for Ms. Wynne. This amount is to be paid from the\n\n20 $1.1 million allocated to class monetary relief. Id, § XXI(D)(I).\n\n21\n\nc. Attorneys' Fees and Expenses\n\n22\n\nIn addition to the $1.1 million, McCormick & Schmick's has agreed to pay\n\n23 attorneys' fees and costs, as well as costs of settlement administration. As detailed in a further\n\n24 separate motion, McCormick & Schmick's has agreed to pay, separate and apart from the Class\n\n25 monetary relief, $900,000 to reimburse Class Counsel for the substantial fees and expenses they\n\n26 have incurred to date. Id, § XXI(D)(3).\n\n27 3 The parties will attempt to distribute the entirety of the $1.1 million. If, despite the claims administrator's efforts, checks become invalid and are uncashed, the remaining sum shall be paid\n28 to the Administration and Monitoring Fund. Id, § XXVII(E).\n\n770009.1\n\n-5-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 10 of 17\n\n1\n\nD. Claims AdministrationlDiversity Monitor\n\n2\n\nMcCormick & Schmick's will pay $90,000: (a) for claims administration, (b) to\n\n3 compensate the Diversity Monitor, and (c) to pay fees for work to be performed by Class Counsel\n\n4 in future monitoring the settlement, on an hourly basis. Id, § XXI(D)(5).4\n\n5\n\nE. Settlement Class Claims\n\n6\n\nThe Company will pay $5,000 each to Ms. Wynne and Mr. Byrd to compensate\n\n7 them for release of their non-class claims, including Ms. Wynne's potential claims for racial\n\n8 harassment/hostile work environment, and Mr. Byrd's claims arising out of his application for\n\n9 employment with McCormick & Schmick's. Id, §§ VII(B), XXI(D)(4).\n\n10\n\nF. The Class Release\n\n11\n\nIn exchange for the aforementioned benefits, the Class members who do not opt\n\n12 out of the settlement will release McCormick & Schmick's from claims brought in this litigation.\n\n13 As set forth in the Consent Decree:\n\n14\n\nUpon the Settlement Effective Date, all Monetary Relief Class\n\nMembers who do not timely opt out will release all race\n\n15\n\ndiscrimination claims against McCormick & Schmick's and its\n\ndirectors, officers, managers, agents, successors and assigns, which\n\n16\n\narise out of the conduct alleged in the First Amended Complaint\n\nunder Title VII, 42 U.S.C. § 1981, the California FEHA and/or any\n\n17\n\nother state or federal law prohibiting race discrimination, for the\n\nliability period of May 15,2002 through the Preliminary Approval\n\n18\n\nDate [April 4, 2008].\n\n19 Id, § VII(A). The scope of this release was fully described in the Court-approved Notice.\n\n20 (Docket No. 82-3).\n\n21 III. THE PROPOSED SETTLEMENT IS \"FAIR, REASONABLE, AND ADEQUATE.\"\n\n22\n\n\"[V]oluntary conciliation and settlement are the preferred means of dispute\n\n23 resolution,\" especially in complex class actions. Officers for Justice v. Civil Servo Comm 'n, 688\n\n24 F.2d 615, 625 (9th Cir. 1982); Utility Reform Project v. Bonneville Power Admin., 869 F.2d 437,\n\n25 443 (9th Cir. 1989). Class action lawsuits readily lend themselves to compromise because of the\n\n26 difficulties of proof, the uncertainties of the outcome and the typical length of the litigation. As a\n\n27 4 Interest earned on the settlement fund and amounts from uncashed checks will also be paid into the Administration and Monitoring Fund. Id, § XXI(D)(5). It is estimated that claims\n28 administration will cost at least $75,000.\n\n770009.1\n\n-6-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 11 of 17\n\n1 result, courts should exercise their discretion to approve settlements \"in recognition of the policy\n\n2 encouraging settlement of disputed claims.\" In re Prudential Sec. Inc. Ltd Partnerships Litig.,\n\n3 163 F.RD. 200, 209 (S.D.N.Y. 1995).\n\n4\n\nTo approve a proposed settlement of a class action under Fed. R Civ. P. 23(e), the\n\n5 Court must find that the proposed settlement is \"fair, adequate and reasonable,\" recognizing that\n\n6 \"'it is the settlement taken as a whole, rather than the individual component parts, that must be\n\n7 examined for overall fairness.'\" Staton, 327 F.3d at 960 (quoting Hanlon v. Chrysler Corp., 150\n\n8 F.3d 1011, 1026 (9th Cir. 1998)).\n\n9\n\nWhen determining whether to grant final approval, \"the court's intrusion upon\n\n10 what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must\n\n11 be limited to the extent necessary to reach a reasoned judgment that the agreement is not the\n\n12 product of fraud or overreaching by, or collusion between, the negotiating parties, and that the\n\n13 settlement, taken as a whole, is fair, reasonable and adequate to all concerned.\" Officers for\n\n14 Justice, 688 F.2d at 625. The Court should balance \"the strength of plaintiffs' case; the risk,\n\n15 expense, complexity, and likely duration of further litigation; the risk of maintaining class action\n\n16 status throughout the trial; the amount offered in settlement; the extent of discovery completed,\n\n17 and the state of the proceedings; the experience and views of counsel ... and the reaction of the\n\n18 class to the proposed settlement.\" Class Plaintiffs, 955 F.2d at 1291. \"The recommendations of\n\n19 plaintiffs' counsel should be given a presumption of reasonableness.\" Boydv. Bechtel Corp., 485\n\n20 F. Supp. 610, 622 (N.D. Cal. 1979); M Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F.\n\n21 Supp. 819 (D. Mass 1987); Ellis v. Naval Air Rework Facility, 87 F.RD. 15, 18 (N.D. Cal. 1980)\n\n22 (\"[T]he fact that experienced counsel involved in the case approved the settlement after hard-\n\n23 fought negotiations is entitled to considerable weight.\").\n\n24\n\nA. The Settlement Will Benefit the Class.\n\n25\n\nThe settlement provides two substantial benefits to the Class. First, it creates the\n\n26 Consent Decree, which substantially overhauls McCormick & Schmick's employment practices\n\n27 to enhance employment opportunities for thousands of African Americans nationwide for years or\n\n28 decades to come. Second, the settlement creates a settlement fund of$I,100,000, plus (a) half of\n\n770009.1\n\n-7-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 12 of 17\n\n1 the employer's share of payroll taxes, (b) claims administration costs, and (c) monitoring costs.\n\n2\n\nClass members will reap great benefits from these improved employment practices\n\n3 - their application and employment experience is expected to significantly improve as the reforms\n\n4 are implemented. Furthermore, Class members will be able to receive settlement payments\n\n5 without waiting years for payment, facing the possibility of having to participate in discovery or\n\n6 trial, or facing the substantial risk of non-recovery.\n\n7\n\nB. The Reaction of the Class Supports Approval of the Settlement.\n\n8\n\nNotice was sent to 4,799 Class members on May 16, 2008. Declaration of John\n\n9 Keane Re: Notice Procedures (\"Keane Dec.\"), ~ 9. After reasonable efforts were undertaken to\n\n10 find more accurate addresses for those whose Notice packets were returned, and to mail\n\n11 additional Notices to the new addresses, the Claims Administrator determined that 480 Class\n\n12 members did not receive the Notice, and could not be located through reasonable means. Id, ~\n\n13 13. Therefore, up to 4,319 (4,799 - 480) Class members received the Notice packet by mail. As\n\n14 a result of those efforts, 982 Class members (at least 22.7% of those receiving Notice) filed Claim\n\n15 Forms. Furthermore, the Claims Administrator received not a single objection (0.0%). Id, ~ 17.\n\n16 Only three individuals (0.1 % of those receiving Notice, or 0.3% of those responding to the\n\n17 Notice) opted out of the settlement. Id, ~ 16. This indicates overwhelming support for the\n\n18 settlement and strongly favors its approval. 5\n\n19\n\nc. The Settlement Was Reached Through Arms-Length Negotiations after the\n\nParties Conducted An Extensive Investigation and Analysis. 20\n\n1. The Parties Actively Litigated Disputed Issues And Engaged In\n\n21\n\nSubstantial Discovery\n\n22\n\nThe parties and their counsel engaged in extensive fact-gathering, informal and\n\n23 formal discovery, and extensive motion practice before reaching the Settlement Agreement. As\n\n24 noted in the concurrently filed Motion For Approval Of Attorneys' Fees And Reimbursement Of\n\n25 Costs and the accompanying Declaration of James M. Finberg in Support of (1) Motion for Final\n\n26\n5 Because the postmark deadline for Claim Forms is July 25, 2008, and the postmark deadline for 27 objections and opt outs is July 15,2008, it is possible that these numbers will change. Class\nCounsel will submit updated figures on July 31, 2008, in their reply brief in support of final 28 settlement approval.\n\n770009.1\n\n- 8-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 13 of 17\n\n1 Approval; (2) Class Counsel's Application for and Award of Attorneys' Fees and Reimbursement\n\n2 of Costs and Expenses; and (3) Motion for Service Payments (\"Finberg Final Approval Dec.\"),\n\n3 Class Counsel spent thousands of hours investigating, preparing, litigating, and negotiating the\n\n4 claims at issue.\n\n5\n\na. The Charges, Pre-Filing Investigation, And Complaints\n\n6\n\nOn May 3 and June 29, 2005, Class Counsel filed administrative charges with the\n\n7 EEOC on behalf of Plaintiffs. Finberg Final Approval Dec., ~ 12. Prior to filing the complaint,\n\n8 Class Counsel surveyed approximately half of McCormick & Schmick's restaurants nationwide\n\n9 and interviewed many witnesses. Id On May 11, 2006, Plaintiffs filed the Complaint in this\n\n10 action, alleging violations of Title VII, 42 U. S. C. § 1981, and FEHA. Id, ~ 13. Plaintiffs filed\n\n11 the First Amended Complaint on July 28, 2006. Id\n\n12\n\nb. Litigation of Disputed Issues\n\n13\n\nAt and soon after the parties' Rule 26(f) initial meet and confer, Plaintiffs\n\n14 requested nationwide data to prove their case. McCormick & Schmick's refused, arguing that (a)\n\n15 differences in the restaurant operational practices made nationwide data irrelevant, (b) pre-class\n\n16 certification nationwide discovery was inappropriate, and (c) the discovery was unduly\n\n17 burdensome. On November 29,2006, Plaintiffs moved to compel these data. (Docket No. 33.)\n\n18 On November 28,2006, the Court, per Magistrate Judge Zimmerman, granted Plaintiffs' motion\n\n19 in relevant part, ordering production of nationwide data. (Docket No. 42.)\n\n20\n\nc. Extensive Discovery\n\n21\n\nClass Counsel took the depositions of six Fed. R. Civ. P. 30(b)(6) designees\n\n22 relating to Company operations, hiring practices, training, compensation policies, store openings,\n\n23 data collection, and others. Id, ~ 15. Furthermore, Class Counsel reviewed many thousands of\n\n24 pages of documents from McCormick & Schmick's, including personnel manuals and policies,\n\n25 training materials, and employment applications. Id, ~ 14. Class Counsel also obtained and\n\n26 analyzed Company employment data from 2002 through 2006. Id\n\n27\n\nIn addition, both Plaintiffs responded to interrogatories, produced hundreds of\n\n28 pages of documents related to their employment, and submitted to depositions. Id, ~ 17.\n\n770009.1\n\n-9-\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 14 of 17\n\n1\n\nClass Counsel and the Company each engaged expert consultants to analyze the\n\n2 payroll data, to determine whether disparities existed in hiring, job assignment, and\n\n3 compensation, and to calculate potential damages exposure. The parties also retained experts\n\n4 regarding the relevant labor pools in the cities in which McCormick's has restaurants. Id, ~ 14.\n\n5 Expert consultants also assisted the parties in negotiating the settlement by proposing and\n\n6 analyzing various methodologies for establishing hiring benchmarks. Id, ~ 23.\n\n7\n\nIn sum, Class Counsel completed substantial investigation and discovery and\n\n8 negotiated the proposed Consent Decree with fulsome knowledge regarding the strengths and\n\n9 weaknesses of the case and the amounts necessary to compensate Class members for the harm\n\n10 suffered.\n\n11\n\n2. The Parties Participated In Arms-Length Negotiations Before An\n\nExperienced Neutral Mediator. 12\nOn July 12, September 26, and November 5,2007, the Parties attended private\n\n13 mediations under the guidance of experienced mediator Hunter Hughes of Atlanta, Georgia, who\n14 served as the mediator in many other cases, including Satchell v. Federal Express Corp., C03-\n15 2659 SI; C03-2878 SI (N.D. Ca1.), Gonzalez v. Abercrombie & Fitch Stores, Inc., No. 03-2817\n16 SI, 04-4730 SI, & 04-4731 SI (N.D. Ca1.), Butler v. Home Depot, No. C94 4335 SI (N.D. Ca1.);\n17 Shores v. Publix Super Markets, Inc., 95-1162-CIV-T-25E (M.D. Fla.); and Ingram v. Coca-Cola\n18 Co., 200 F.RD. 685, 699 (N.D. Ga. 2001). Id, ~ 19. In addition, counsel for the Parties met\n19 face-to-face without the mediator on August 8 and September 12, 2007, and exchanged numerous\n20 written settlement proposals during the seven months from July 2007 through February 2008. Id\n21\n\nD. Litigating this Action Would Be Complex, Expensive, and Time Consuming,\n\n22\n\nand Would Delay And Endanger Recovery.\n\n23\n\nAs is evident from the immense amount of work performed to investigate, litigate,\n\n24 and test the claims at issue and quantify their value, this action involved difficult legal and factual\n\n25 questions. Litigating these claims, which arose over a period of almost six years, would require\n\n26 additional substantial and expensive discovery and pre-trial motions, as well as the consideration,\n\n27 preparation, and presentation of voluminous documentary and testimonial evidence and the\n\n28 preparation and analysis of expert reports. Class certification alone could entail the use of expert\n\n770009.1\n\n- 10 -\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 15 of 17\n\n1 witnesses. Trial itself could require the further use of expert witnesses at both the liability and\n\n2 damages phases, and would involve numerous legal and factual issues. As is typical with any\n\n3 case, but especially so with class actions, appeals would most probably follow with the result that\n\n4 payments to Class members, if any, would likely occur only after several years of delay. Even if\n\n5 Plaintiffs prevailed, a judgment might prove larger than McCormick & Schmick's could afford to\n\n6 pay.\n\n7\n\nIn contrast, the Consent Decree before the Court will yield a prompt, certain, and\n\n8 substantial recovery for the Class. Such a result greatly benefits the parties and the court system.\n\n9\n\nE. The Recommendations of Experienced Counsel Favor Approval of the\n\nSettlement. 10\nThe judgment of experienced counsel regarding the settlement is entitled to great\n\n11 weight. Boyd, 485 F. Supp. at 622; Hanlon, 150 F.3d at 1026; M Berenson Co., 671 F. Supp. at\n\n12 822; Ellis, 87 F.RD. at 18. Here, counsel for both parties endorse the settlement as fair,\n\n13\n\nadequate, and reasonable. 14\n\nIn addition, the recommendation of class counsel should be given a presumption of 15\n\nreasonableness. See, e.g., Boyd, 485 F. Supp. at 622. Class Counsel have extensive experience in\n\n16\n\nprosecuting and litigating class action wage-and-hour suits like this one. See Finberg Final\n\n17 Approval Dec., ~ 10; Declaration of Jahan C. Sagafi in Support of (1) Joint Motion for Final\n\n18 Approval of Class Action Settlement, (2) Plaintiffs Motion for Award of Attorneys' Fees, and\n\n19 (3) Plaintiffs Motion for Award of Class Representative Service Payment (\"Sagafi Dec.\"), ~~ 5-\n\n20\n\n14, 18. Class Counsel have conducted extensive investigation of this case, including by 21\n\nreviewing thousands of pages of documents produced by McCormick & Schmick's, deposing six 22\n\nCompany representatives, reviewing Class member data, and interviewing dozens of Class\n\n23 Members. Finberg Final Approval Dec., ~~ 14-16, 39. The fact that qualified and well-informed\n\n24 counsel endorse the settlement as being fair, reasonable, and adequate heavily favors this Court's\n\n25 approval of the settlement.\n\n26\n\nIV. THE COURT SHOULD CONFIRM FINAL CERTIFICATION OF THE CLASSES 27\n\nThe Court's Preliminary Approval Order provisionally certified the settlement 28\n\n770009.1\n\n- 11 -\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 16 of 17\n\n1 Classes pursuant to Rule 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure. The\n\n2 Court ruled that, for purposes of settlement, the Classes meet the Rule 23 requirements. The\n\n3 Court also appointed Plaintiff Juanita Wynne as Class Representative of both Classes and\n\n4 Plaintiffs' counsel as Class Counsel. The Class members have responded enthusiastically to the\n\n5 settlement. No member of the Class objects to any aspect of the settlement. For these reasons,\n\n6 and the reasons set forth in Plaintiffs' Preliminary Approval Motion, the Court should grant final\n\n7 certification of the Classes for purposes of settlement and should confirm the appointment of the\n\n8 Class Representative and Class Counsel.\n\n9 v. CONCLUSION\n\n10\n\nFor the reasons set forth above, Plaintiffs respectfully request that the Court (1)\n\n11 grant final approval to the Settlement Agreement and (2) grant final class certification of the\n\n12 settlement Classes conditionally certified in this Court's Preliminary Approval Order.\n\n13 Date: July 2, 2008 14 15 16 17 18 19 20 21 22 23 24 25\n\nBy: lsi James M Finberg James M. Finberg\nJames M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-Mail: jfinberg@altber.com E-Mail: ~~~JY~J)J~:?;@~l1b~Lg9m\nKelly M. Dermody (SBN 171716) Jahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &\nBERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com E-Mail: isagafi@lchb.com\n\n26\n\n27\n\n28\n\n770009.1\n\n- 12 -\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\fCase 4:06-cv-03153-CW Document 88 Filed 07/02/2008 Page 17 of 17\n\n1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28\n770009.1\n\nThomas A. Warren THOMAS A. WARREN LAW OFFICES 2032 Thomasville Rd # D Tallahassee, FL 32308-0734 Telephone: (850) 385-1551 Facsimile: (850) 385-6008 Email: tw@nettally.com\nBill Lann Lee (SBN 108452) Todd F. Jackson (SBN 202598) Vincent Cheng (SBN 230827) Lindsay Nako (SBN 239090) LEWIS, FEINBERG, RENAKER &\nJACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com Email: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com Email: lnako@lewisfeinberg.com\nRobert Rubin (SBN 085084) LAWYERS' COMMITTEE FOR CIVIL RIGHTS\nOF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: rrubin@lccr.com\nEric Kingsley (SBN 185123) KINGSLEY & KINGSLEY 16133 Venture Blvd., Suite 1200 Encino, CA 91436 Telephone: 818-990-8300 Facsimile: 818-990-2903 Email: kingsleylaw@ao1.com\nAttorneys for Plaintiffs and the proposed Classes\n\n- 13 -\n\nPLAINTIFFS' NOT. OF MOT. & MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MPA\nCASE NO. 06-3153 CW\n\n\f", "CaseCa4s:0e64-:c0v6--0c3v1-05331-C53W-CWDoDcoucmuemnet n3t436 FFilieledd1111//0036//200606PagPea1goef 13 of 3\n\n1\n\n2\n\n3\n\n4\n\n5\n\n6\n\n7\n\n8\nUNITED STATES DISTRICT COURT 9\nNORTHERN DISTRICT OF CALIFORNIA 10\nOAKLAND DIVISION 11\n\n12 JUANITA WYNNE and DANTE BYRD,\n13 on behalf of themselves and classes of those similarly situated,\n14 Plaintiffs,\n15 v.\n16 MCCORMICK & SCHMICK’S\n17 SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK\n18 RESTAURANT CORP.,\n\nCase No. 06-3153 CW\nSTIPULATION AND [PROPOSED] ORDER REGARDING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF STATISTICAL DATA\n\n19\n\nDefendants.\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n574559.1\n\n- 1-\n\nSTIP. AND [PROPOSED] ORDER RE : MOTION TO COMPEL\nPRODUCTION OF STATIS TICAL DATA\nCASE NO. 06-3153 CW\n\n\fCaseCa4s:0e64-:c0v6--0c3v1-05331-C53W-CWDoDcoucmuemnet n3t436 FFilieledd1111//0036//200606PagPea2goef 23 of 3\n\n1\n\nThis Stipulation is entered into by and between Juanita Wynne and Dante Byrd\n\n2 (“Plaintiffs”), by and through their undersigned counsel, and McCormick & Schmick’s Seafood\n\n3 Restaurants, Inc. and McCormick & Schmick Restaurant Corp. (“Defendant”), by and through\n\n4 their undersigned counsel. Plaintiffs and Defendant are collectively referred to herein as the\n\n5 “Parties.”\n\n6\n\nRECITALS\n\n7\n\nWHEREAS, on October 3, 2006, Plaintiffs filed a motion to compel statistical\n\n8 data;\n\n9\n\nWHEREAS, on October 4, 2006, the motion was referred to the undersigned\n\n10 United States Magistrate Judge;\n\n11\n\nWHEREAS, on October 19, 2006, after having submitted letter briefs regarding\n\n12 the dispute in accordance with the applicable rules and standing order, the Parties participated in a\n\n13 telephonic conference with the Magistrate Judge in an effort to resolve the dispute;\n\n14\n\nWHEREAS, during that conference, the Magistrate Judge ordered the Parties to\n\n15 meet and confer in a further effort to resolve the dispute, and set forth the following briefing\n\n16 schedule in the event that a resolution could not be reached:\n\n17 Friday, November 3, 2006 18 Monday, November 13, 2006\n\nPlaintiffs to file documents in accordance with N.D. Cal. Local Rule 37-2 Defendant’s opposition brief due\n\n19 Friday, November 17, 2006\n\nPlaintiffs’ reply brief due\n\n20 Wednesday, November 29, 2006\n\nHearing before Magistrate Judge Zimmerma n,\n\n21 10:00 a.m.\n\n15th floor, courtroom G\n\nWHEREAS, the Parties met and conferred in person on October 24, 2006, at 22\n\nwhich time they discussed their positions, exchanged information, and considered a potential 23\n\ncompromise; and 24\n\nWHEREAS, the Parties have been unable to reach agreement on the proposed 25\n\ncompromise, and the Parties agree that the dispute requires judicial resolution; 26\n\n27\n\n28\n\n574559.1\n\n-2-\n\nSTIP. AND [PROPOSED] ORDER RE : MOTION TO COMPEL\nPRODUCTION OF STATIS TICAL DATA\nCASE NO. 06-3153 CW\n\n\fCaseCa4s:0e64-:c0v6--0c3v1-05331-C53W-CWDoDcoucmuemnet n3t436 FFilieledd1111//0036//200606PagPea3goef 33 of 3\n\n1\n\nSTIPULATION AND AGREEMENT\n\n2\n\n1. Plaintiffs may submit a revised motion to compel and accompanying\n\n3 documents reflecting the parties’ further discussion and exchange of information by November 3,\n\n4 2006 along with the Rule 37-2 documents due on the same date.\n\n5\n\nIT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.\n\n6 DATED: November 3, 2006\n7\n\nMichael Gallion Michael Gallion, Attorney for Defendant\n\n8 DATED: November 3, 2006\n9\n\nBill Lann Lee Bill Lann Lee, Attorney for Plaintiffs\n\n10\n\nORDER\n\n11\n\nThe foregoing Stipulation is approved, and IT IS SO ORDERED.\n\n12 Dated: __N__o_v_em__b_e_r_6________, 2006\n13\n14\n15\n\n_M_a_g_i_st_r_at_eT_AJ_uT_d_Eg_Se__DB_eI_rS_nT_ar_Rd__IZC_im_T_m_C_er_m__a_n_________\nNorthern District of California\nIT IS SO ORDERED\n\nUNITED S\nALIFORNIA\n\nOURT NORTH\n\n16 17\n\nJudge Bernard Zimmerman\n\n18 19\n\nERN DISTRICT OF C\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n574559.1\n\n-3-\n\nSTIP. AND [PROPOSED] ORDER RE : MOTION TO COMPEL\nPRODUCTION OF STATIS TICAL DATA\nCASE NO. 06-3153 CW\n\n\f", "Case4:06-cv-03153-CW Document114 Filed08/11/08 Page1 of 5\n\n1 SEYFARTH SHAW LLP Gilmore F. Diekmann, Jr. (SBN 050400)\n2 560 Mission Street, Suite 3100 San Francisco, California 94105\n3 Telephone: (415) 397-2823 Facsimile: (415) 397-8549\n4 Email: gdiekmann@seyfarth.com\n\n5 SEYFARTH SHAW LLP Michael L. Gallion (SBN 189128)\n6 William C. Thomas (SBN 241789) 2029 Century Park East #3300\n7 Los Angeles, CA 90067-3063 Telephone: (310) 277-7200\n8 Facsimile: (310) 201-5219 Email: mgallion@seyfarth.com\n9 Email: wthomas@seyfarth.com\n\n10 Attorneys for Defendants MCCORMICK & SCHMICK’S\n11 SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK’S RESTAURANT CORP.\n12\n\n13\n\nUNITED STATES DISTRICT COURT\n\n14\n\nIN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA\n\n15\n\nJUANITA WYNNE and DANTE BYRD, ON ) BEHALF OF THEMSELVES AND CLASSES )\n\nCase No. CV-06-3153 CW\n\n16 OF THOSE SIMILARLY SITUATED,\n\n)\n\n) STIPULATION AND ORDER TO\n\n17\n\nPlaintiffs,\n\n) ACCOUNT FOR CLAIMANTS WHO\n\n) PREVIOUSLY SETTLED RACE\n\n18\n\nv.\n\n) DISCRIMINATION CLAIMS\n\n) ENCOMPASSED BY CONSENT\n\n19 MCCORMICK & SCHMICK’S SEAFOOD ) DECREE\n\nRESTAURANTS, INC. and MCCORMICK & )\n\n20 SCHMICK RESTAURANT CORP.,\n\n)\n\n)\n\n21\n\nDefendants.\n\n)\n\n) 22\n\n23\n\n24 / / /\n\n25 / / /\n\n26 / / /\n\n27\n\n28\n\nSTIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE\n\n\fCase4:06-cv-03153-CW Document114 Filed08/11/08 Page2 of 5\n\n1\n\nWHEREAS, on August 7, 2008, this Court held a Final Approval Hearing on this Class\n\n2 Action Settlement and entered an Order granting Plaintiffs’ Motion For Final Approval of Class\n\n3 Action Settlement;\n\n4\n\nWHEREAS, between 2003 and 2007, Defendants settled six individual race\n\n5 discrimination claims brought by former employees Andre Cox, Anuheia Richardson, Donald\n\n6 Stanfield, Shannon Campbell, Kevin Fuller and Bryant Storey;\n\n7\n\nWHEREAS, each of these six former employees of Defendants settled and fully released\n\n8 their respective race discrimination claims in exchange for a monetary payment;\n\n9\n\nWHEREAS, counsel for Defendants have shared the six individual settlement agreements\n\n10 with Class Counsel to demonstrate that all six persons have previously settled claims of race\n\n11 discrimination and that the individual employees did not work for Defendants for any period of\n\n12 time subsequent to the execution of their respective settlement agreements;\n\n13\n\nWHEREAS, the six individuals Andre Cox, Anuheia Richardson, Donald Stanfield,\n\n14 Shannon Campbell, Kevin Fuller and Bryant Storey filed claims with the Claims Administrator\n\n15 to participate in the monetary settlement of this Class Action; and\n\n16\n\nWHEREAS, the parties to this Stipulation are in agreement that these six class claimants\n\n17 have previously resolved their respective race discrimination claims with Defendants in\n\n18 exchange for a monetary payment and that each claimant should therefore not receive an\n\n19 additional payment as a claimant in this Class Settlement.\n\n20\n\nIT IS HEREBY STIPULATED BY AND BETWEEN COUNSEL FOR THE PARTIES:\n\n21 the six claimants Andre Cox, Anuheia Richardson, Donald Stanfield, Shannon Campbell, Kevin\n\n22 Fuller and Bryant Storey did resolve with Defendants individual claims of race discrimination\n\n23 prior to the entry of this Court’s Order dated August 7, 2008; and therefore their six individual\n\n24 claims submitted to the Claims Administrator for this Class Action should be denied.\n\n25\n\n26\n\n27\n\n28 1\nSTIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE\n\n\fCase4:06-cv-03153-CW Document114 Filed08/11/08 Page3 of 5\n\n1 DATED: August 8, 2008\n\nSEYFARTH SHAW LLP\n\n2\n\nBy /s/ William C. Thomas III\n\n3\n\nWilliam C. Thomas III\n\n4\n\nI hereby attest that I have on file all holograph\n\nsignatures for any signatures indicated by a\n\n5\n\n“conformed” signature (/S/) within this efiled\n\ndocument. 6\n\n7\n\nAttorneys for Defendants\n\n8 9 10 11 DATED: August 8, 2008\n\nMCCORMICK & SCHMICK’S SEAFOOD RESTAURANTS, INC. and MCCORMICK & SCHMICK’S RESTAURANT CORP.\nBy: /s/ James M. Finberg\n\n12\n\nI hereby attest that I have on file all holograph\n\nsignatures for any signatures indicated by a\n\n13\n\n“conformed” signature (/S/) within this efiled\n\n14\n\ndocument.\n\n15\n\nJames M. Finberg\n\nJames M. Finberg (SBN 114850)\n\n16\n\nEve H. Cervantez (SB 164709)\n\nALTSHULER BERZON LLP\n\n17\n\n177 Post Street, Suite 300\n\n18\n\nSan Francisco, CA 94108 Telephone: (415) 421-7151\n\n19\n\nFacsimile: (415) 362-8064\n\nE-Mail: jfinberg@altshulerberzon.com\n\n20\n\nE-Mail: ecervantez@altshulerberzon.com\n\n21\n\nKelly M. Dermody (SBN 171716)\n\n22\n\nJahan C. Sagafi (SBN 224887) LIEFF, CABRASER, HEIMANN &\n\n23\n\nBERNSTEIN, LLP\n\n275 Battery Street, 30th Floor\n\n24\n\nSan Francisco, CA 94111-3339\n\nTelephone: (415) 956-1000\n\n25\n\nFacsimile: (415) 956-1008\n\n26\n\nE-Mail: kdermody@lchb.com\n\nE-Mail: jsagafi@lchb.com\n\n27\n\n28 2\nSTIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE\n\n\fCase4:06-cv-03153-CW Document114 Filed08/11/08 Page4 of 5\n\n1\n\nRobert Rubin (SBN 085084)\n\nDiana C. Tate (SBN 232264\n\n2\n\nTHE LAWYERS’ COMMITTEE FOR CIVIL\n\n3\n\nRIGHTS OF THE SAN FRANCISCO BAYAREA\n\n131 Steuart Street, Suite 400\n\n4\n\nSan Francisco, CA 94105\n\nTelephone (415) 543-9444\n\n5\n\nFacsimile: (415) 543-0296\n\nE-Mail: rrubin@lccr.com\n\n6\n\nE-Mail: dtate@lccr.com\n\n7 Thomas A. Warren\n\n8\n\nTHOMAS A. WARREN LAW OFFICES\n\n2032 Thomasville Rd #D\n\n9\n\nTallahassee, FL 32308-0734\n\n10\n\ntelephone: (850) 385-1551 Facsimile: (850) 385-6008\n\n11\n\nEmail: tw@nettally.com\n\n12\n\nBill Lann Lee (SBN 108452)\n\nTodd F. Jackson (SBN 202598)\n\n13\n\nVincent Cheng (SBN 230827)\n\n14\n\nLindsay Nako (SBN 239090) LEWIS, FEINBERG, LEE, RENAKER &\n\n15\n\nJACKSON, P.C.\n\n1300 Broadway, Suite 1800\n\n16\n\nOakland, CA 94612\n\nTelephone: (510) 839-6824 17\n\nFacsimile: (510) 839-7839\n\n18\n\nEmail: blee@lewisfeinberg.com\n\n19\n\nEmail: tjackson@lewisfeinberg.com Email: vcheng@lewisfeinberg.com\n\n20\n\nEmail: lnako@lewisfeinberg.com\n\n21\n\nGary Lafayette (SBN 08866)\n\nLAFAYETTE & KUMAGAI\n\n22\n\n100 Spear Street, Suite 400\n\n23\n\nSan Francisco, CA 94105 Telephone: (415) 357-4600\n\n24\n\nFacsimile: (415) 357-4605\n\nflafayette@lkclaw.com\n\n25\n\n26\n\n27\n\n28 3\nSTIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY SETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE\n\n\fCase4:06-cv-03153-CW Document114 Filed08/11/08 Page5 of 5\n\n1\n\nEric Kingsley (SBN 185123)\n\nKINGSLEY & KINSGSLEY\n\n2\n\n16133 Venture Blvd., Suite 1200\n\n3\n\nEncino, CA 91436\n\nTelephone: (818) 990-8300\n\n4\n\nFacsimile: (818) 990-2903\n\nEmail: kingsleylaw@aol.com\n\n5\n\nAttorneys for Plaintiffs and the proposed Class\n\n6\n\nMembers JUANITA WYNNE and DANTE BYRD,\n\n7\n\non behalf of themselves and classes of those\n\nsimilarly situated\n\n8\n\n9\n\n10\n\nORDER\n\n11 The foregoing stipulation is approved, and IT IS SO ORDERED.\n\n12\n\n8/11/08\n\nDate: __________________________\n\n13\n\n14\n\n______________________________ Hon. Claudia Wilken United States District Judge\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28 4\nSTIPULATION AND [PROPOSED] ORDER TO ACCOUNT FOR CLAIMANTS WHO PREVIOUSLY LA1 6717613S.1ETTLED RACE DISCRIMINATION CLAIMS ENCOMPASSED BY CONSENT DECREE\n\n\f", "Wynne v. McCormick & Schmicks’s Seafood Restaurants, Inc., Not Reported in...\n2006 WL 3422226 Only the Westlaw citation is currently available.\nUnited States District Court, N.D. California.\nJuanita WYNNE, on behalf of themselves and classes of those similarly situated, Plaintiff(s), v.\nMcCORMICK & SCHMICKS’S SEAFOOD RESTAURANTS, INC., et al., Defendant(s).\nNo. C06-3153 CW (BZ). | Nov. 28, 2006.\nAttorneys and Law Firms\nJames M. Finberg, Bill Lann Lee, Jahan C. Sagafi, Lieff Cabraser Heimann & Bernstein LLP, Diana Tate, Robert Rubin, Lawyers Committee for Civil Rights, Gilmore F. Diekmann, Jr., Seyfarth Shaw LLP, San Francisco, CA, Thomas A. Warren, Thomas A. Warren Law Offices, Tallahassee, FL, for Plaintiff(s).\nGilmore F. Diekmann, Jr., Eric E. Hill, Kamili Williams Dawson, Seyfarth Shaw LLP, San Francisco, CA, Gerald L. Maatman, Jr., Seyfarth Shaw LLP, Chicago, IL, Michael L. Gallion, William Carl Thomas, III, Seyfarth Shaw, Los Angeles, CA, for Defendant(s).\nOpinion\nORDER GRANTING IN PART PLAINTIFFS’ AMENDED MOTION TO COMPEL PRODUCTION OF STATISTICAL DATA\nBERNARD ZIMMERMAN, Magistrate Judge.\n*1 Before the court is plaintiffs’ Amended Motion to Compel Production of Statistical Data.1 In opposing discovery, defendants make two principal arguments:\n1. That discovery should be limited to the Berkeley restaurant which is the subject of the complaints by the two named plaintiffs; and\n2. That plaintiffs should instead, or at least first, depose a broad range of individuals tendered by defendants who presumably will satisfy plaintiffs that the challenged hiring practices are limited to the Berkeley restaurant because defendants restaurants operate on a decentralized basis.\nAs to defendants’ first argument, this court cannot say as a matter of law that statistical evidence of discrimination at stores other than Berkeley, is not relevant to the issue of whether a class should be certified that would extend to stores other than Berkeley.2 The decision whether to permit discovery pre-class certification is within the sound discretion of the court. Barnhart v. Safeway Stores, Inc., 1992 WL 443561, at *2 (E.D.Cal. Dec. 14, 1992). Statistical evidence in particular is well-accepted evidence of class wide discrimination, and may go to the commonality prerequisite. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 154 (N.D.Cal.2004) (appeal pending); see also Barefield v. Chevron U.S.A., Inc., 1987 WL 65054, at *3 (N.D.Cal. Sept. 9, 1987). Indeed, as the Ninth Circuit has explained, “ ‘the often-cited aphorism, ‘statistics often tell much and Courts listen,’ has particular application in Title VII cases.’ “ Blake v. City of Los Angeles, 595 F.2d 1367, 1375 n. 4 (9th Cir.1979) (quoting United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.1971)).\nIn their opposition, defendants repeatedly argue that plaintiffs have no evidence of discrimination at any restaurant other than at Berkeley. In reply, plaintiffs have submitted declarations of nine (9) individuals who claim to have suffered or witnessed various types of discrimination in eleven (11) different restaurants operated by defendants in various states.\nAs to the second argument, defendants have cited no authority, and the court is aware of none, for the proposition that\n1\n\n\fWynne v. McCormick & Schmicks’s Seafood Restaurants, Inc., Not Reported in...\ndefendants can dictate the means of discovery that the plaintiffs must use. That proposition appears inconsistent with Rule 26(d). I agree with the argument that the plaintiffs advanced during the telephonic hearing some weeks ago that it would not be efficient to require them first to depose defendants’ management personnel since they might have to be re-deposed once the statistical discovery was produced. While the defendants’ witnesses might be willing to undergo multiple depositions, I see no reason to force plaintiffs to do so.\nFinally, some of defendants’ objections to the original discovery requested are well taken. While plaintiffs assert that they are moving to compel production of only statistical data, plaintiffs have not rewritten their discovery requests. In an effort to avoid confusion, I will rule on each request specifically and generally limit plaintiffs’ requests to certain electronically stored information and government mandated compliance reports and other similar documents. I have also denied those requests which are irrelevant to plaintiffs’ current need for statistical data.\n*2 Based on the foregoing, I HEREBY ORDER the following:\n(1) Plaintiffs’ requests for production nos. 6 and 7 are GRANTED to the extent that they request electronically stored data showing the race, date of application, date of hire, job title(s), salary/wage rates, gross pay, bonuses, fulltime/part-time status, hours, shifts, restaurant location, and termination codes for all current and former restaurant employees and applicants and current and former restaurant-level managers and applicants from May 11, 2002 to the present. Plaintiffs’ requests nos. 6 and 7 are DENIED to the extent they request the names, addresses, gender, and national origin of defendants’ employees and applicants. Plaintiffs have failed to demonstrate the relevance of this information at this stage of litigation.\n(2) Plaintiffs’ request for production no. 8 is DENIED. The request is over broad and irrelevant in that corporate employees are not members of the alleged putative classes.\n(3) Plaintiffs’ request for production no. 9 is DENIED. As written, plaintiffs requests all conceivable documents pertaining to daily work assignments. At this stage of litigation, the request is overly burdensome and irrelevant to plaintiffs’ need to develop statistical data for class certification purposes.\n(4) Plaintiffs’ requests for production nos. 31 and 32 are DENIED. These requests seek personal information about defendants’ employees and applicants. At this stage of litigation, the requests are overly burdensome and irrelevant.\n(5) Plaintiffs’ requests for production nos. 34, 35, 36 are GRANTED IN PART AND DENIED IN PART. Defendants shall produce all EEO-1 reports and all comparable compliance reports submitted to any federal, state, or local agency on behalf of each of its restaurants between May 11, 2002 to the present. Plaintiffs’ requests for documents referring or relating to the described reports are, at this stage, overly burdensome.\n(6) The denials recited above are made without prejudice to plaintiffs’ ability to renew their requests at later stages of litigation.\n(7) Defendants are ORDERED to provide further discovery consistent with this order no later than January 2, 2007.\n\nFootnotes\n\n1\n\nA party may obtain discovery as to “any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P.\n\n26(b)(1). Courts broadly construe the scope of permissible discovery. See, e.g., In re Advanced Interventional Systems Securities\n\nLitigation, 1993 WL 331006, at *1 (C.D.Cal. May 17, 1993) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351\n\n(1978)).\n\n2\n\nI have discounted defendants arguments that the propounded discovery would be burdensome because the argument is not\n\nsupported by any declaration establishing burden. In any event I believe the limitations I impose will mitigate any burden, for the\n\ntime being, that may exist.\n\n2\n\n\f", "Case: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 1 of 13\nADRMOP,CLOSED,E−Filing,PROTO,PRVADR\nU.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:06−cv−03153−CW\n\nWynne et al v. McCormick & Schmick's Seafood Restaurants, Inc. et al Assigned to: Hon. Claudia Wilken Referred to: Magistrate Judge Bernard Zimmerman Cause: 42:1981 Job Discrimination (Race)\nPlaintiff\n\nDate Filed: 05/11/2006 Date Terminated: 08/08/2008 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question\n\nJuanita Wynne on behalf of themselves and classes of those similarly situated\n\nrepresented by James M. Finberg Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jfinberg@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nBill Lann Lee Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: blee@creeclaw.org ATTORNEY TO BE NOTICED\n\nDiana Tate Vermeire Gable Gotwals One Leadership Square Fifteenth Floor 211 B Robinson Oklahoma City, OK 73102 405−235−5519 Email: dvermeire@gablelaw.com ATTORNEY TO BE NOTICED\n\nEve Hedy Cervantez Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: 415−362−8064 Email: ecervantez@altshulerberzon.com ATTORNEY TO BE NOTICED\n\nGilmore F. Diekmann , Jr. Seyfarth Shaw LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: gdiekmann@seyfarth.com ATTORNEY TO BE NOTICED\n\nJahan C. Sagafi OUTTEN & GOLDEN LLP One Embarcadero Center 38th Floor\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 2 of 13\nSan Francisco, CA 94111−3339 415−638−8800 Fax: 415−638−8810 Email: jsagafi@outtengolden.com ATTORNEY TO BE NOTICED\nKelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com ATTORNEY TO BE NOTICED\nRebekah B. Evenson ALTSHULER BERZON LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: revenson@altshulerberzon.com ATTORNEY TO BE NOTICED\nRobert Rubin Lawyers' Committee for Civil Rights of the San Francisco Bay Area 131 Steuart Street Suite 400 San Francisco, CA 94105 415−543−9444 Fax: 415−543−0296 Email: robertrubinsf@gmail.com ATTORNEY TO BE NOTICED\nThomas A. Warren Thomas A. Warren Law Offices 2032 Thomasville Rd., #D Tallahassee, FL 32308−0734 (850) 385−1551 ATTORNEY TO BE NOTICED\nVincent Cheng Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: vcheng@lewisfeinberg.com ATTORNEY TO BE NOTICED\nWilliam Carl Thomas , III Seyfarth Shaw 2029 Century Park East Suite 3300 Los Angeles, CA 90067−3063 310−201−1516 Fax: 310−201−5219 Email: wthomas@seyfarth.com ATTORNEY TO BE NOTICED\nPlaintiff\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 3 of 13\n\nDante Byrd on behalf of themselves and classes of those similarly situated\n\nrepresented by James M. Finberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nBill Lann Lee (See above for address) ATTORNEY TO BE NOTICED\n\nDiana Tate Vermeire (See above for address) ATTORNEY TO BE NOTICED\n\nEve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED\n\nGilmore F. Diekmann , Jr. (See above for address) ATTORNEY TO BE NOTICED\n\nJahan C. Sagafi (See above for address) ATTORNEY TO BE NOTICED\n\nKelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED\n\nRebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED\n\nRobert Rubin (See above for address) ATTORNEY TO BE NOTICED\n\nThomas A. Warren (See above for address) ATTORNEY TO BE NOTICED\n\nVincent Cheng (See above for address) ATTORNEY TO BE NOTICED\n\nWilliam Carl Thomas , III (See above for address) ATTORNEY TO BE NOTICED\n\nV.\nDefendant\nMcCormick & Schmick's Seafood Restaurants, Inc.\n\nrepresented by Gilmore F. Diekmann , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED\nEric E. Hill Seyfarth Shaw LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: ehill@seyfarth.com\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 4 of 13\n\nATTORNEY TO BE NOTICED\n\nGerald L. Maatman , Jr. Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 312−460−5965 Fax: 312−460−7965 Email: gmaatman@seyfarth.com ATTORNEY TO BE NOTICED\n\nKamili Williams Dawson Seyfarth Shaw 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: kdawson@seyfarth.com ATTORNEY TO BE NOTICED\n\nMichael L. Gallion Sheppard Mullin Richter & Hampton LLP 1901 Avenue of the Stars Suite 1600 Los Angeles, CA 90067 310−228−3700 Fax: 310−228−3701 Email: mgallion@sheppardmullin.com ATTORNEY TO BE NOTICED\n\nWilliam Carl Thomas , III (See above for address) ATTORNEY TO BE NOTICED\n\nDefendant\nMcCormick & Schmick Restaurant Corp.\n\nrepresented by Gilmore F. Diekmann , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nEric E. Hill (See above for address) ATTORNEY TO BE NOTICED\n\nGerald L. Maatman , Jr. (See above for address) ATTORNEY TO BE NOTICED\n\nKamili Williams Dawson (See above for address) ATTORNEY TO BE NOTICED\n\nMichael L. Gallion (See above for address) ATTORNEY TO BE NOTICED\n\nWilliam Carl Thomas , III (See above for address) ATTORNEY TO BE NOTICED\n\nDate Filed # Docket Text\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 5 of 13\n\n05/11/2006\n05/11/2006 05/11/2006 05/11/2006 06/08/2006 06/08/2006 06/08/2006\n06/08/2006 06/09/2006 06/09/2006 06/26/2006\n06/27/2006 06/30/2006 07/07/2006 07/28/2006\n08/18/2006 08/18/2006\n\n1 COMPLAINT (with jury demand) against McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp. (Filing fee $350, receipt number 3385531). Filed by Juanita Wynne, Dante Byrd. (cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)\nSummons Issued as to McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)\n2 ADR SCHEDULING ORDER: Case Management Statement due by 9/1/2006. Case Management Conference set for 9/8/2006 01:30 PM. (Attachments: # 1 Standing Order)(cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)\nCASE DESIGNATED for Electronic Filing. (cjl, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/15/2006)\n3 NOTICE of Appearance by Gilmore F. Diekmann, Jr (Diekmann, Gilmore) (Filed on 6/8/2006) (Entered: 06/08/2006)\n4 NOTICE of Appearance by Kamili Williams Dawson (Dawson, Kamili) (Filed on 6/8/2006) (Entered: 06/08/2006)\n5 STIPULATION EXTENDING DEFENDANTS' TIME TO PLEAD by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp., Juanita Wynne, Dante Byrd. (Diekmann, Gilmore) (Filed on 6/8/2006) (Entered: 06/08/2006)\n6 NOTICE of Appearance by Thomas Larry Watts William C. Thomas (Watts, Thomas) (Filed on 6/8/2006) (Entered: 06/08/2006)\n7 NOTICE of Appearance by Eric E. Hill (Hill, Eric) (Filed on 6/9/2006) (Entered: 06/09/2006)\n8 NOTICE of Appearance by Thomas Larry Watts Michael L. Gallion (Watts, Thomas) (Filed on 6/9/2006) (Entered: 06/09/2006)\n9 MOTION for leave to appear in Pro Hac Vice (Thomas A. Warren) filed by Juanita Wynne, Dante Byrd; fee paid, receipt #4412891 (cp, COURT STAFF) (Filed on 6/26/2006) Additional attachment(s) added on 6/26/2006 (cp, COURT STAFF). (Entered: 06/26/2006)\n10 STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO PLEAD by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Diekmann, Gilmore) (Filed on 6/27/2006) (Entered: 06/27/2006)\n11 ORDER re 10 Granting STIPULATION EXTENDING TIME TO PLEAD. Signed by Judge Claudia Wilken on 6/30/06. (scc, COURT STAFF) (Filed on 6/30/2006) (Entered: 06/30/2006)\n12 ORDER by Judge Claudia Wilken GRANTING 9 Motion for Pro Hac Vice (Thomas A. Warren) (kc, COURT STAFF) (Filed on 7/7/2006) (Entered: 07/07/2006)\n13 AMENDED COMPLAINT First Amended Complaint for Injunctive, Declaratory Relief, and Damages for Violations of 42 U.S.C. Section 1981, Title VII, and the California Fair Employment and Housing Act; Jury Demand against McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. Filed byJuanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/28/2006) Modified on 7/31/2006 (cp, COURT STAFF). (Entered: 07/28/2006)\n14 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options ADR CERTIFICATION BY PARTIES AND COUNSEL (Sagafi, Jahan) (Filed on 8/18/2006) (Entered: 08/18/2006)\n15 STIPULATION and Proposed Order selecting Private ADR by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp., Juanita Wynne, Dante Byrd (Sagafi, Jahan) (Filed on 8/18/2006) (Entered: 08/18/2006)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 6 of 13\n\n08/28/2006 08/31/2006 09/01/2006 09/01/2006 09/27/2006\n09/29/2006 10/03/2006\n10/04/2006 10/04/2006 10/04/2006 10/10/2006 10/10/2006 10/12/2006 10/13/2006\n10/16/2006 10/18/2006 10/19/2006\n10/19/2006\n\n16 DEFENDANTS' ANSWER to Amended Complaint byMcCormick & Schmick's Seafood Restaurants, Inc.. (Hill, Eric) (Filed on 8/28/2006) (Entered: 08/28/2006)\n17 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 8/31/2006) (Entered: 08/31/2006)\n18 DEMAND for Trial by Jury by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Diekmann, Gilmore) (Filed on 9/1/2006) (Entered: 09/01/2006)\n19 ORDER re 15 Granting Stipulation r selecting Private ADR and REFERRING CASE to Private ADR. Signed by Judge Claudia Wilken on 9/1/06. (scc, COURT STAFF) (Filed on 9/1/2006) (Entered: 09/01/2006)\n20 MINUTE ORDER AND CASE MANAGEMENT ORDER: Case referred to Private ADR. Further Case Management Conference set for 8/10/2007 01:30 PM.. Signed by Judge Claudia Wilken on 9/27/06. (scc, COURT STAFF) (Filed on 9/27/2006) (Entered: 09/27/2006)\n21 TRANSCRIPT of Proceedings held on 9/8/2006 before Judge Claudia Wilken. Court Reporter: Diane E. Skillman. (kc, COURT STAFF) (Filed on 9/29/2006) (Entered: 10/02/2006)\n22 MOTION to Compel Production of Statistical Data and Memorandum of Points and Authorities filed by Juanita Wynne, Dante Byrd. (Attachments: # 1 Declaration of James M. Finberg in Support of Plaintiffs' Motion to Compel Production of Statistical Data# 2 Proposed Order Granting Plaintiffs' Motion to Compel Production of Statistical Data)(Lee, Bill) (Filed on 10/3/2006) (Entered: 10/03/2006)\n23 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Claudia Wilken on 10/4/06. (scc, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/04/2006)\nCASE REFERRED to Magistrate Judge Bernard Zimmerman for Discovery (wh, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/04/2006)\nMOTIONS 22 MOTION to Compel Production of Statistical Data and Memorandum of Points and Authorities REFERRED to Judge Judge Bernard Zimmerman. (cp, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/05/2006)\n24 INITIAL DISCOVERY ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/10/2006. (bzsec, COURT STAFF) (Filed on 10/10/2006) (Entered: 10/10/2006)\n25 AMENDED INITIAL DISCOVER ORDER CORRECTING CAPTION OF ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/10/2006. (bzsec, COURT STAFF) (Filed on 10/10/2006) (Entered: 10/10/2006)\n26 Letter from Bill Lann Lee to Honorable Magistrate Judge Zimmerman. (Lee, Bill) (Filed on 10/12/2006) (Entered: 10/12/2006)\n31 MOTION for leave to appear in Pro Hac Vice (Gerald L. Maatman, Jr) filed by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp..; Fee paid, receipt #3391215 (cp, COURT STAFF) (Filed on 10/13/2006) (Entered: 10/20/2006)\n27 Letter from Defendant McCormick & Schmick's. (Kaufman, Thomas) (Filed on 10/16/2006) (Entered: 10/16/2006)\n28 CLERK'S NOTICE SCHEDULING TELEPHONIC HEARING RE DISCOVERY DISPUTE(S). (bzsec, COURT STAFF) (Filed on 10/18/2006) (Entered: 10/18/2006)\n30 Minute Entry: Discovery Hearing held on 10/19/2006 before Magistrate Judge Bernard Zimmerman (Date Filed: 10/19/2006). (Tape #TC 22−06.) (bzsec, COURT STAFF) (Date Filed: 10/19/2006) Modified on 10/23/2006 (cp, COURT STAFF). (Entered: 10/20/2006)\n32 ORDER by Judge Claudia Wilken granting 31 Motion for Pro Hac Vice (Gerald L. Maatman, Jr.) (cp, COURT STAFF) (Filed on 10/19/2006) (Entered: 10/20/2006)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 7 of 13\n\n10/20/2006 10/23/2006 11/03/2006\n11/03/2006 11/03/2006\n11/06/2006 11/13/2006\n11/14/2006 11/17/2006\n11/22/2006 11/28/2006 11/28/2006 11/28/2006 12/18/2006 01/16/2007 01/16/2007 01/17/2007\n\n29 SCHEDULING ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/20/2006. (bzsec, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)\nSet/Reset Deadlines as to 22 MOTION to Compel Production of Statistical Data and Memorandum of Points and Authorities. Motion Hearing set for 11/29/2006 10:00 AM. (cp, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/23/2006)\n33 Amended MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 11/29/2006 10:00 AM in Courtroom G, 15th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Bill Lann Lee# 2 Affidavit Declaration of James M. Finberg# 3 Proposed Order # 4 Supplement Plaintiffs' Local Rule 37−2 Filing in Support of Motion to Compel)(Lee, Bill) (Filed on 11/3/2006) Modified on 11/6/2006 (cp, COURT STAFF). (Entered: 11/03/2006)\n34 STIPULATION and Proposed Order Regarding Plaintiffs' Motion to Compel Production of Statistical Data by Juanita Wynne, Dante Byrd. (Lee, Bill) (Filed on 11/3/2006) (Entered: 11/03/2006)\n35 Declaration of Bill Lann Lee with Exhibits A and B re 33 MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities by Juanita Wynne, Dante Byrd. (Lee, Bill) (Filed on 11/3/2006) Modified on 11/6/2006 (cp, COURT STAFF). (Entered: 11/03/2006)\n36 STIPULATION AND ORDER. Signed by Magistrate Judge Bernard Zimmerman on 11/6/2006. (bzsec, COURT STAFF) (Filed on 11/6/2006) (Entered: 11/06/2006)\n37 Memorandum in Opposition re 33 MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities Defendants' Opposition to Motion to Compel Production of Statistical Data filed byMcCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Attachments: # 1 Affidavit Decl of Marit Cadwell# 2 Affidavit Decl of Michael L. Gallion)(Thomas, William) (Filed on 11/13/2006) (Entered: 11/13/2006)\n38 CERTIFICATE OF SERVICE by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp. re 37 Memorandum in Opposition, Proof of Service (Thomas, William) (Filed on 11/14/2006) (Entered: 11/14/2006)\n39 Reply to Opposition re 33 MOTION to Compel Production of Statistical Data and Memorrandum of Points and Authorities filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Affidavit Declaration of Jahan Sagafi)(Sagafi, Jahan) (Filed on 11/17/2006) (Entered: 11/17/2006)\n40 CLERK'S NOTICE REGARDING TENTATIVE RULING. (Attachments: # 1) (bzsec, COURT STAFF) (Filed on 11/22/2006) (Entered: 11/22/2006)\n41 Letter from Bill Lann Lee and Michael L. Gallion to Honorable Bernard Zimmerman. (Lee, Bill) (Filed on 11/28/2006) (Entered: 11/28/2006)\n42 ORDER by Magistrate Judge Bernard Zimmerman granting in part 33 Motion to Compel (bzsec, COURT STAFF) (Filed on 11/28/2006) (Entered: 11/28/2006)\n43 CLERK'S NOTICE VACATING HEARING. (bzsec, COURT STAFF) (Filed on 11/28/2006) (Entered: 11/28/2006)\n44 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 12/18/2006) (Entered: 12/18/2006)\n45 NOTICE of Appearance by Eve H. Cervantez (Cervantez, Eve) (Filed on 1/16/2007) (Entered: 01/16/2007)\n46 NOTICE by Juanita Wynne, Dante Byrd ASSOCIATION OF COUNSEL (Finberg, James) (Filed on 1/16/2007) (Entered: 01/16/2007)\n47 NOTICE by Juanita Wynne, Dante Byrd of Change of Firm of Bill Lann Lee and Notice of Firm Name Change (Cheng, Vincent) (Filed on 1/17/2007) (Entered: 01/17/2007)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 8 of 13\n\n03/06/2007 03/07/2007 03/07/2007 03/07/2007 03/08/2007 03/12/2007 03/15/2007 03/15/2007 03/16/2007\n03/19/2007 03/19/2007\n03/19/2007 03/27/2007 03/30/2007 03/30/2007\n04/02/2007 04/05/2007 05/02/2007\n05/02/2007\n\n48 Letter from Jahan C. Sagafi to The Honorable Magistrate Judge Zimmerman. (Sagafi, Jahan) (Filed on 3/6/2007) (Entered: 03/06/2007)\n49 Letter from Reiko Furuta to Honorable Judge Bernard Zimmerman. (Thomas, William) (Filed on 3/7/2007) (Entered: 03/07/2007)\n50 ORDER GRANTING REQUEST OF DEFENDANT MCCORMICK & SCHMICK. Signed by Magistrate Judge Bernard Zimmerman on 3/7/2007. (bzsec, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)\n51 CLERK'S NOTICE SCHEDULING TELEPHONIC CONFERENCE RE DISCOVERY DISPUTE. (bzsec, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)\nSet/Reset Hearings: Telephonic Conference re discovery dispute set for 3/15/2007 09:00 AM (cp, COURT STAFF) (Filed on 3/8/2007) (Entered: 03/08/2007)\n52 Letter from William C. Thomas, III. (Thomas, William) (Filed on 3/12/2007) (Entered: 03/12/2007)\n53 Minute Entry: Discovery Hearing held on 3/15/2007 before Magistrate Judge Bernard Zimmerman (Date Filed: 3/15/2007). (Tape #TC 05−07.) (bzsec, COURT STAFF) (Date Filed: 3/15/2007) (Entered: 03/15/2007)\n54 SECOND DISCOVERY ORDER. Signed by Magistrate Judge Bernard Zimmerman on 3/15/2007. (bzsec, COURT STAFF) (Filed on 3/15/2007) (Entered: 03/15/2007)\n55 ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 4/18/2007 10:00 AM. Show Cause Response due by 3/30/2007.. Signed by Magistrate Judge Bernard Zimmerman on 3/16/2007. (bzsec, COURT STAFF) (Filed on 3/16/2007) (Entered: 03/16/2007)\n56 NOTICE by Juanita Wynne, Dante Byrd Notice of Lodging of Audiotape and Transcript (Sagafi, Jahan) (Filed on 3/19/2007) (Entered: 03/19/2007)\n57 NOTICE to Employee of Privacy Rights by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp. (cp, COURT STAFF) (Filed on 3/19/2007) Additional attachment(s) added on 4/3/2007 (cp, COURT STAFF). (Entered: 03/23/2007)\n58 CLERK'S NOTICE re: Failure to E−File (docket #57) (cp, COURT STAFF) (Filed on 3/19/2007) (Entered: 03/23/2007)\n59 CLERK'S NOTICE Order to Show Cause Hearing reset to 4/18/2007 02:00 PM. (ls, COURT STAFF) (Filed on 3/27/2007) (Entered: 03/27/2007)\n60 Response to Order to Show Cause byJuanita Wynne, Dante Byrd. (Sagafi, Jahan) (Filed on 3/30/2007) Modified on 4/2/2007 (cp, COURT STAFF). (Entered: 03/30/2007)\n61 Response to Order to Show Cause ; DECLARATION OF MICHAEL L. GALLION IN SUPPORT THEREOF byMcCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Attachments: # 1 Affidavit Proof of Service)(Thomas, William) (Filed on 3/30/2007) (Entered: 03/30/2007)\n62 ORDER DISCHARGING ORDER TO SHOW CAUSE. Signed by Magistrate Judge Bernard Zimmerman on 4/2/2007. (bzsec, COURT STAFF) (Filed on 4/2/2007) (Entered: 04/02/2007)\n63 NOTICE of Appearance by Rebekah B. Evenson (Evenson, Rebekah) (Filed on 4/5/2007) (Entered: 04/05/2007)\n64 STIPULATION and PROPOSED ORDER FOR PROTECTIVE ORDER by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Thomas, William) (Filed on 5/2/2007) Modified on 5/3/2007 (cp, COURT STAFF). (Entered: 05/02/2007)\nReceived Confidentiality Agreement and Stipulation for Protective Order by Juanita Wynne, Dante Byrd. (kc, COURT STAFF) (Filed on 5/2/2007) (Entered: 05/03/2007)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 9 of 13\n\n05/03/2007 05/14/2007 05/16/2007 05/18/2007 05/18/2007 07/16/2007 07/26/2007 09/27/2007 10/01/2007\n\n65 ORDER re 64 granting STIPULATION FOR PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 5/3/07. (scc, COURT STAFF) (Filed on 5/3/2007) (Entered: 05/03/2007)\n66 STIPULATION AND [PROPOSED] ORDER REGARDING CLASS CERTIFICATION BRIEFING SCHEDULE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 5/14/2007) (Entered: 05/14/2007)\n67 AMENDED STIPULATION AND [PROPOSED] ORDER REGARDING CLASS CERTIFICATION BRIEFING SCHEDULE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 5/16/2007) Modified on 5/17/2007 (cp, COURT STAFF). (Entered: 05/16/2007)\n68 ORDER re 67 granting AMENDED STIPULATION REGARDING CLASS CERTIFICATION BRIEFING SCHEDULE. Motion Hearing set for 10/25/2007 02:00 PM.. Signed by Judge Claudia Wilken on 5/18/07. (scc, COURT STAFF) (Filed on 5/18/2007) (Entered: 05/18/2007)\n69 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 10/25/2007 02:00 PM. (scc, COURT STAFF) (Filed on 5/18/2007) (Entered: 05/18/2007)\n70 Stipulation and Proposed Order Staying Case Pending Mediation Discussing and Deferring Class Certification Briefing Schedule by Juanita Wynne, Dante Byrd. (Evenson, Rebekah) (Filed on 7/16/2007) Modified on 7/17/2007 (cp, COURT STAFF). (Entered: 07/16/2007)\n71 ORDER re 70 GRANTING Stipulation Staying Case Pending Mediation Discussing and Deferring Class Certification Briefing Schedule. Signed by Judge CLAUDIA WILKEN on 7/26/07. (scc, COURT STAFF) (Filed on 7/26/2007) (Entered: 07/26/2007)\n72 Proposed Order and Stipulation Staying Case Pending Further Mediation Discussions, Ordering Parites and Insurance Carriers to Attend Mediation Session at Oakland Courthouse, and Deferring Class Certification Briefing Schedule by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 9/27/2007) (Entered: 09/27/2007)\n73\n\n***FILED IN ERROR, SEE DOCUMENT # 74 ***\n\n10/02/2007 10/03/2007 02/15/2008 02/28/2008\n\nRevised Stipulation and Proposed Order Staying Case Pending Further Mediation Discussions; Ordering Parties and Insurance Carriers to Attend Mediation Session; and Deferring Class Certification Schedule by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 10/1/2007) Modified on 10/2/2007 (cp, COURT STAFF). Modified on 10/2/2007 (cp, COURT STAFF). (Entered: 10/01/2007)\n74 Second Revised Stipulation and (Proposed) Order Staying Case Pending Further Mediation Discussions; Ordering Parties and Insurance Carriers to Attend Mediation Session; and Deferring Class Certification Briefing Schedule by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 10/2/2007) Modified on 10/3/2007 (cp, COURT STAFF). (Entered: 10/02/2007)\n75 ORDER re 74 granting Second Revised Stipulation Staying Case Pending Further Mediation Discussions; Ordering Parties and Insurance Carriers to Attend Mediation Session; and Deferring Class Certification Briefing Schedule. Signed by Judge Claudia Wilken on 10/3/07. (scc, COURT STAFF) (Filed on 10/3/2007) (Entered: 10/03/2007)\n76 STIPULATION AND [PROPOSED] ORDER SETTING PRELIMINARY APPROVAL BRIEFING SCHEDULE; SETTING PRELIMINARY APPROVAL HEARING DATE AND VACATING CLASS CERTIFICATION BRIEFING SCHEDULE by Juanita Wynne, Dante Byrd, McCormick & Schmick Restaurant Corp, et al. (Finberg, James) (Filed on 2/15/2008) Modified on 2/19/2008 (cp, COURT STAFF). (Entered: 02/15/2008)\n77 MOTION for Settlement Plaintiffs' Motion for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 10 of 13\n\n02/28/2008 02/28/2008 03/06/2008 03/25/2008 04/03/2008\n04/04/2008 04/04/2008 04/24/2008 04/28/2008\n\nof the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 4/3/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Evenson, Rebekah) (Filed on 2/28/2008) Modified on 2/29/2008 (cp, COURT STAFF). (Entered: 02/28/2008)\n78 Declaration of James Finberg in Support of Motion for Order: (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit to the Declaration of James Finberg)(Evenson, Rebekah) (Filed on 2/28/2008) (Entered: 02/28/2008)\n79 Proposed Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting Schedule for Final Settlement Approval Process by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1 to Proposed Order [Proposed Consent Decree], # 2 Exhibit 2 to Proposed Order [Notice of Class Action Settlement], # 3 Exhibit 3 to Proposed Order [Claim Form])(Evenson, Rebekah) (Filed on 2/28/2008) (Entered: 02/28/2008)\n80 ORDER re 76 granting STIPULATION SETTING PRELIMINARY APPROVAL BRIEFING SCHEDULE; SETTING PRELIMINARY APPROVAL HEARING DATE AND VACATING CLASS CERTIFICATION BRIEFING SCHEDULE. Signed by Judge Claudia Wilken on 3/6/08. (scc, COURT STAFF) (Filed on 3/6/2008) (Entered: 03/06/2008)\n81 Revised Proposed Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; (2) Provisionally Certifying Settlement Classes; (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1 Proposed Consent Decree, # 2 Exhibit 2 Proposed Class Notice, # 3 Exhibit 3 Proposed Claim Form)(Evenson, Rebekah) (Filed on 3/25/2008) Modified on 3/26/2008 (cp, COURT STAFF). (Entered: 03/25/2008)\n83 Minute Entry: Motion Hearing held on 4/3/2008 before Claudia Wilken (Date Filed: 4/3/2008) re 77 MOTION for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of MOTION for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of MOTION for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of filed by Juanita Wynne, Dante Byrd. Fairness Hearing set for 8/7/2008 02:00 PM. (Court Reporter Diane Skillman.) (scc, COURT STAFF) (Date Filed: 4/3/2008) (Entered: 04/07/2008)\n82 ORDER by Judge Claudia Wilken granting 77 MOTION for Settlement Plaintiffs' Motion for Order (1) Preliminarily Approving Class Action Settlement and Proposed Consent Decree; and (2) Provisionally Certifying Settlement Classes; and (3) Approving and Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (scc, COURT STAFF) (Filed on 4/4/2008) (Entered: 04/04/2008)\nSet/Reset Hearings: Fairness Hearing set for 8/7/2008 02:00 PM. (scc, COURT STAFF) (Filed on 4/4/2008) (Entered: 04/04/2008)\n84 STIPULATION EXTENDING TIME TO PRODUCE DATA by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Attachments: # 1 Proposed Order [PROPOSED] ORDER EXTENDING TIME TO PRODUCE DATA)(Thomas, William) (Filed on 4/24/2008) (Entered: 04/24/2008)\n85 ORDER re 84 granting STIPULATION EXTENDING TIME TO PRODUCE DATA. Signed by Judge Claudia Wilken on 4/28/08. (scc, COURT STAFF) (Filed on 4/28/2008) (Entered: 04/28/2008)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 11 of 13\n\n05/05/2008 05/08/2008 07/02/2008 07/02/2008\n07/02/2008 07/02/2008 07/02/2008 07/02/2008 07/02/2008\n07/02/2008 07/02/2008 07/02/2008 07/02/2008\n\n86 STIPULATION AND [PROPOSED] ORDER REVISING NOTICE MATERIALS AND EXTENDING CLAIMS ADMINISTRATOR DEADLINES by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Finberg, James) (Filed on 5/5/2008) Modified on 5/6/2008 (kc, COURT STAFF). (Entered: 05/05/2008)\n87 ORDER re 86 granting STIPULATION REVISING NOTICE MATERIALS AND EXTENDING CLAIMS ADMINISTRATOR DEADLINES. Signed by Judge Claudia Wilken on 5/8/08. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(scc, COURT STAFF) (Filed on 5/8/2008) (Entered: 05/08/2008)\n88 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF POINTS AND AUTHORITIES filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 8/7/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Finberg, James) (Filed on 7/2/2008) Modified on 7/3/2008 (cp, COURT STAFF). (Entered: 07/02/2008)\n89 Declaration of James M. Finberg IN SUPPORT OF (1) MOTION FOR FINAL APPROVAL OF SETTLEMENT; (2) CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS; AND (3) MOTION FOR SERVICE PAYMENTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n90 Declaration of John Keane RE NOTICE PROCEDURES filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n91 Proposed Order CONFIRMING FINAL CERTIFICATION OF CLASS ACTION AND GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n92 MOTION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 8/7/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Finberg, James) (Filed on 7/2/2008) Modified on 7/3/2008 (cp, COURT STAFF). (Entered: 07/02/2008)\n93 Declaration of Bill Lann Lee IN SUPPORT OF PLAINTIFFS' MOTION FOR AWARD OF ATTORNEYS' FEES filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n94 Declaration of Jahan C. Sagafi IN SUPPORT OF (1) MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, (2) APPLICATION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT FO COSTS AND EXPENSES, AND (3) MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n95 Declaration of Thomas A. Warren IN SUPPORT OF CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n96 Declaration of Eric B. Kingsley filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit 1)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n97 Declaration of Robert Rubin IN SUPPORT OF CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n98 Proposed Order GRANTING AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS by Juanita Wynne, Dante Byrd. (Finberg, James)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 12 of 13\n\n07/02/2008 07/02/2008 07/31/2008 07/31/2008 07/31/2008 07/31/2008 07/31/2008 08/07/2008\n08/07/2008 08/07/2008 08/07/2008 08/07/2008 08/07/2008\n\n(Filed on 7/2/2008) (Entered: 07/02/2008)\n99 MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT TO JUANITA WYNNE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Juanita Wynne, Dante Byrd. Motion Hearing set for 8/7/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Finberg, James) (Filed on 7/2/2008) Modified on 7/3/2008 (cp, COURT STAFF). (Entered: 07/02/2008)\n100 Proposed Order GRANTING MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/2/2008) (Entered: 07/02/2008)\n101 Reply Memorandum REPLY BRIEF IN SUPPORT OF (1) MOTION FOR FINAL APPROVAL OF SETTLEMENT, (2) APPLICATION FOR ATTORNEYS' FEES AND EXPENSES, AND (3) MOTION FOR SERVICE AWARDS filed byJuanita Wynne, Dante Byrd. (Finberg, James) (Filed on 7/31/2008) (Entered: 07/31/2008)\n102 SUPPLEMENTAL DECLARATION OF JOHN KEANE RE NOTICE, OPT OUTS, LACK OF OBJECTIONS, AND CLAIMS filed byJuanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)\n103 REVISED [PROPOSED] ORDER CONFIRMING FINAL CERTIFICATION OF CLASS ACTION AND GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE by Juanita Wynne, Dante Byrd. (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)\n104 NOTICE by Juanita Wynne, Dante Byrd OF FILING OF REVISED [PROPOSED] ORDER CONFIRMING FINAL CERTIFICATION OF CLASS ACTION AND GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)\n105 NOTICE by Juanita Wynne, Dante Byrd OF MANUAL FILING OF ORIGINAL OPT−OUT FORMS (Finberg, James) (Filed on 7/31/2008) Modified on 8/1/2008 (cp, COURT STAFF). (Entered: 07/31/2008)\n106 Minute Entry: Motion Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008) re 99 MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT TO JUANITA WYNNE filed by Juanita Wynne, Dante Byrd, 92 MOTION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES filed by Juanita Wynne, Dante Byrd, 88 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed by Juanita Wynne, Dante Byrd, Fairness Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008). (Court Reporter Raynee Mercado.) (scc, COURT STAFF) (Date Filed: 8/7/2008) (Entered: 08/07/2008)\n107 ORDER by Judge Claudia Wilken granting 88 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (Attachments: # 1 Exhibit A) (scc, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)\n108 ORDER by Judge Claudia Wilken granting 92 MOTION OF CLASS COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES (scc, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)\n109 ORDER by Judge Claudia Wilken granting 99 MOTION FOR AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENT TO JUANITA WYNNE (scc, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)\n110 [PROPOSED] CONSENT DECREE by Juanita Wynne, Dante Byrd. (Finberg, James) (Filed on 8/7/2008) Modified on 8/8/2008 (kc, COURT STAFF). (Entered: 08/07/2008)\n111 AMENDED Minute Entry: Fairness Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008), Motion Hearing held on 8/7/2008 before Claudia Wilken (Date Filed: 8/7/2008). (Court Reporter Raynee Mercado.) (scc, COURT STAFF) (Date Filed: 8/7/2008) (Entered: 08/08/2008)\n\n\fCase: 4:06-cv-03153-CW As of: 11/07/2016 09:35 AM PST 13 of 13\n\n08/08/2008 08/08/2008 08/11/2008 09/28/2009\n10/01/2009 11/09/2009\n11/10/2009 11/20/2009 12/10/2009 11/10/2010\n11/15/2010\n\n112 STIPULATION and Proposed Order to Account for Claimants Who Previously Settled Race Discrimination Claims Encompassed by Consent Decree by McCormick & Schmick's Seafood Restaurants, Inc., McCormick & Schmick Restaurant Corp.. (Thomas, William) (Filed on 8/8/2008) (Entered: 08/08/2008)\n113 ORDER re 110 granting CONSENT DECREE. Signed by Judge Claudia Wilken on 8/8/08. (scc, COURT STAFF) (Filed on 8/8/2008) (Entered: 08/08/2008)\n114 ORDER re 112 GRANTING STIPULATION to Account for Claimants Who Previously Settled Race Discrimination Claims Encompassed by Consent Decree. Signed by Judge CLAUDIA WILKEN on 8/11/08. (scc, COURT STAFF) (Filed on 8/11/2008) (Entered: 08/11/2008)\n115 JOINT STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Thomas, William) (Filed on 9/28/2009) Modified on 9/29/2009 (kc, COURT STAFF). (Entered: 09/28/2009)\n116 ORDER re 115 granting JOINT STIPULATION EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL. Signed by Judge Claudia Wilken on 10/1/09. (scc, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/01/2009)\n117 JOINT STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Thomas, William) (Filed on 11/9/2009) Modified on 11/10/2009 (cp, COURT STAFF). (Entered: 11/09/2009)\n118 ORDER re 117 granting JOINT STIPULATION EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL. Signed by Judge Claudia Wilken on 11/10/09. (scc, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)\n119 JOINT STIPULATION and [Proposed] Order Extending Time for Defendants to Submit Progress Report to Diversity Monitor and Class Counsel by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Thomas, William) (Filed on 11/20/2009) Modified on 11/23/2009 (cp, COURT STAFF). (Entered: 11/20/2009)\n120 ORDER by Judge Claudia Wilken GRANTING 119 Stipulation Extending Time for Defendants to Submit Progress Report to Diversity Monitor and Class Counsel. Signed by Judge Claudia Wilken, on 12/10/09. (scc, COURT STAFF) (Filed on 12/10/2009) Modified on 12/11/2009 (jlm, COURT STAFF). Modified on 12/11/2009 (jlm, COURT STAFF). (Entered: 12/10/2009)\n121 STIPULATION (JOINT) and PROPOSED ORDER EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL by McCormick & Schmick Restaurant Corp., McCormick & Schmick's Seafood Restaurants, Inc., Dante Byrd, Juanita Wynne. (Diekmann, Gilmore) (Filed on 11/10/2010) Modified on 11/12/2010 (cp, COURT STAFF). (Entered: 11/10/2010)\n122 ORDER Granting re 121 Stipulation EXTENDING TIME FOR DEFENDANTS TO SUBMIT PROGRESS REPORT TO DIVERSITY MONITOR AND CLASS COUNSEL. Signed by Judge Claudia Wilken on 11/15/2010. (ndr, COURT STAFF) (Filed on 11/15/2010) Modified on 11/17/2010 (kk, COURT STAFF). (Entered: 11/15/2010)\n\n\f" ]
On May 11, 2006, African-American employees of a restaurant in Berkeley, California filed this lawsuit in the United States District Court for the Northern District of California, under 42 U.S.C. § 1981, Title VII of the Civil Rights Act, and the California Fair Employment and Housing Act against McCormick & Schmick's Seafood Restaurants ("M&S"). The plaintiffs, represented by private counsel, asked the court for injunctive and declaratory relief, and damages, alleging that McCormick & Schmick's discriminated against African-Americans on the basis of race with respect to hiring, job assignment, compensation, promotion to managerial positions, discipline, and other conditions of employment. Specifically, this action was seeking an end to M&S's discriminatory policies or practices, and recovery of back pay and front pay. On November 28, 2006, U.S. District Court Judge Claudia Wilken granted the plaintiffs' motion to compel production of statistical data. The plaintiffs sought the statistical data to support their contention that the defendant's discriminatory hiring practices were company-wide, and not limited to a single restaurant. <i>Wynne v. McCormick and Schmick's Seafood Restaurants</i>, 2006 WL 3422226 (N.D. C.A. Nov. 28, 2006). On March 16, 2007, Magistrate Judge Bernard Zimmerman issued an order to show cause why the defendant should not be held in contempt of court or sanctioned for failing to comply with the Court's Discovery Order. The court preliminarily approved a class settlement on April 4, 2008. The court provisionally certified settlement classes, approved class notification, and preliminarily approved the consent decree. On August 7, 2008 the court granted final approval to the settlement and consent decree On the same day, the court granted about $900,000 in attorney fees and costs. The Consent Decree was filed on August 8, 2008. It provided injunctive relief relating to hiring, promotion, training, and reporting and record-keeping. Further, it provided that the defendant would pay $2.1 million for the benefit of the class. The Consent Decree was set to remain in effect for five years after the Court's final approval. The Decree required annual reports to the plaintiffs, but they weren't filed in court. Presumably the case ended after the 2013 report; the last entry in the docket sheet dealt with a procedural matter in 2010.
This case was brought by African American employees of McCormick and Schmick's Restaurants seeking equitable relief and damages to remedy alleged discrimination based on race. The case was settled in August 2008, resulting in more than $2 million for Plaintiffs, as well as injunctive relief relating to hiring, promotion, training, and reporting.
NH-NJ-0002
[ "IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY\n\nUNITED STATES OF AMERICA,\n\nI\n\nI\n\nPlaintiff,\n\nI\n\nI\n\nv.\n\nI\n\nI\n\nMERCER COUNTY, NEW JERSEY;\n\nI\n\nBRIAN M. HUGHES, MERCER COUNTY\n\nI\n\nEXECUTIVE; APRIL AARONSON,\n\nI\n\nDIRECTOR OF MERCER COUNTY\n\nI\n\nDEPARTMENT OF HUMAN SERVICES;\n\nI\n\nROBERT F. ECROYD, ADMINISTRATOR\n\nI\n\nOF THE MERCER COUNTY GERIATRIC\n\nI\n\nCENTER; IN THEIR OFFICIAL\n\nI\n\nCAPACITIES,\n\nI\n\nI\n\n____\n\nDefendants. __________\n\n__\n\n___\n\n__\n\n_____\n\n__\n\nI I\n\nCase No. COMPLAINT\n\nPLAINTIFF, THE UNITED STATES OF AMERICA, by its undersigned attorneys, hereby alleges upon information and belief:\n1. The Attorney General files this complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, to enjoin the named Defendants from depriving residents housed in the Mercer County Geriatric Center (MCGC) of rights, privileges, or immunities secured and protected by the Constitution and laws of the United States.\n\nJURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action\n\n-2-\n\n\fpursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing\nrequirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.\n5. Venue in the District of New Jersey is proper pursuant to 28 U.S.C. § 1391.\nDEFENDANTS\n6. Defendant MERCER COUNTY (County) is a governmental subdivision created under the laws of the State of New Jersey. The DEPARTMENT OF HUMAN SERVICES is a division of the Mercer County government. The County owns and operates the MERCER COUNTY GERIATRIC CENTER (''MCGCu), a nursing home located in Trenton, New Jersey.\n7. Defendant MERCER COUNTY is the entity charged by the laws of the State of New Jersey with authority to operate the MCGC and is responsible for the living conditions and health and safety of persons living in MCGC.\n8. Defendant BRIAN M. HUGHES lS the County Executive of Mercer County and serves as the chief executive of the County government. County Executive HUGHES is sued in his official capacity.\n9. Defendant APRIL AARONSON is the Director of the Mercer County Department of Human Services. In her official capacity as Director, she is responsible for overseeing county services and\n-3-\n\n\fprograms for the elderly, including the county operation at MCGC. Director AARONSON is sued in her official capacity.\n10. Defendant ROBERT F. ECROYD is the Administrator of MCGC and is responsible for the nursing home's day-to-day operations. In his official capacity as Administrator, he has the custody, control, and charge of MCGC and MCGC residents. Administrator ECROYD is sued in his official capacity.\n11. Defendants are legally responsible, in whole or in part, for the operation of MCGC, for the nursing home conditions, and the health and safety of persons confined or residing in the facility.\n12. At all relevant times, Defendants acted or failed to act, as alleged herein, under color of state law.\nFACTUAL ALLEGATIONS 13. MCGC is an institution within the meaning of\n42 u.s.c. § 1997(1).\n14. Mercer County receives federal Medicare and Medicaid funds for care provided at MCGC.\n15. Persons institutionalized at MCGC are primarily geriatric residents, including both men and women, who have been placed in the facility to receive skilled nursing care. Many of the residents lack mobility, have significant mental impairments, or must rely on others for basic care.\n16. Persons institutionalized at MCGC include ''qualified individual[s] with a disability\" for purposes of the Americans\n-4-\n\n\fwith Disabilities Act, 42 U.S.C. § 12101 et ~., and implementing regulations.\n17. Defendants and MCGC are ''public entit(ies)\" under the ADA and implementing regulations.\n18. Defendants have failed and continue to fail to ensure MCGC residents' personal safety.\n19. Defendants have failed and continue to fail to meet MCGC residents' basic nursing and direct care needs.\n20. Defendants have failed and continue to fail to provide MCGC residents with adequate access to qualified medical care for treatment of serious medical conditions.\n21. Defendants have failed and continue to fail to provide MCGC residents with adequate access to qualified mental health care for treatment of serious mental health problems.\n22. Defendants have failed and continue to fail to provide residents with rehabilitation and restorative treatment necessary to restore, maintain, and improve living skills.\n23. Defendants have failed and continue to fail to prevent the unreasonable use of restraints.\n24. Defendants have failed and continue to fail to provide residents with adequate nutritional services, including staff mealtime assistance, weight loss prevention, and hydration programs.\n25. Defendants have failed and continue to fail to provide adequate communicable disease prevention, infection control, and\n-5-\n\n\fa sanitary and safe living environment for MCGC residents. 26. Defendants have failed and continue to fail to\nsafeguard MCGC residents' property. 27. Defendants have interfered with residents' ability to\ncommunicate with federal officials. 28. Defendants have failed and continue to fail to treat\nMCGC residents in the most integrated treatment setting appropriate to the residents' individual needs.\n29. Defendants have been aware of the unlawful conditions alleged in paragraphs 18-28 for a substantial period of time and have failed to address adequately these conditions.\n30. The unlawful conditions alleged in paragraphs 18-28 have resulted in serious injury, death, pain, suffering, and harm to MCGC residents including harm associated with improperly treated bedsores, serious falls, elopements, abuse, poor paln control, loss of mobility and living skills, infections, inadequately treated chronic and degenerative illness, serious mental illness, health conditions associated with aspiration, and undue restraint use.\nVIOLATIONS ALLEGED 31. The acts and omissions alleged in paragraphs 18-30 constitute a pattern or practice that violates MCGC residents' federal rights as protected by the Constitution and laws of the United States.\n-6-\n\n\f32. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth ih paragraphs 18-30 that deprive MCGC residents of their rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.\nCOUNT I 33. The acts and omissions alleged in paragraphs 18-30 violate rights, privileges or immunities secured or protected by the First and Fourteenth Amendments to the Constitution of the United States.\nCOUNT II 34. The acts and omissions alleged in paragraphs 23 and 28-30 violate the Americans with Disabilities Act, 42 U.S.C. § 12101 et mi9·, and implementing regulations.\nCOUNT III 35. The acts and omissions alleged in paragraphs 18-30 violate the nursing home reform provisions of the Omnibus Budget and Reconciliation Act of 1987 (Act) and its implementing regulations. 42 U.S.C. § 1396r, 42 U.S.C. § 1395i-3, 42 C.f.R. § 483 Subpart B. Through their acts and omissions, Defendants have failed to provide \"care for its residents in such matter and in such an environment as will promote maintenance or enhancement of the quality of life of each resident,'' and have further failed to provide \"the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-\n-7-\n\n\f/s/ Alberto R. Gonzales\n\n\f/s/ Christopher J. Christie\n\n/s/ R. Alexander Acosta\n\n/s/ Bradley J. Schlozman\n\n\f/s/ Shanetta Y. Cutlar /s/ Judy C. Preston /s/ Christopher N. Cheng\n\n\f/s/ Alberto R. Gonzales\n\n\f", "Case 3:05-cv-01122-GEB-TJB Document 4 Filed 10/18/2005 Page 1 of 47\n\nUNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY\n\nRECEIVED 00118.\n\nUNITED STATES OF AMERICA,\n\nr,T 8:30\n\nI.'\n\nWILLIAM T. WALSH\n\nCI.!:FH:\n\nPlaintiff,\n\nCiv. No. 05-1122 (GEB)\n\nv.\n\nSTIPULATION OF SETTLEMENT\n\nMERCER COUNTY, NEW JERSEY, :\net at..\n\nDefendants,\n\nThis matter comes before the Court upon thc Joint Motion for Approval of Settlement:\n\n\fCase 3:05-cv-01122-GEB-TJB\n•\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 2 of 47\n\nSETTLEMENT\n\n\fCase 3:05-cv-01122-GEB-TJB Document 4 Filed 10/18/2005 Page 3 of 47\nI . lntroduc:tion .............................. , ..... , ..... 3\nr I . De f.i nit i on s ....... ' ............. ' ...•................... 5\nIII. 8ackgr:ound ............... , ............................ 6 IV. Substantive Provisions ............. '\" ................ 9\nA. Assessment and Care P1.3nning ...................... 9 8. Restraints and Medication Usage .................. 13 C.Mealtime Assist~nce, Resident Nutr:ition,\n~nd Hydration Practices .......................... 17\n. D. Theupeutic Activities,\"Rehabilitation, and' Restorative Care ..................... , ............ 18\nC. .Mental Health Care ............................... 19 f. Treatment in the Most Integrated Setting\nAppropriate to Individualized Needs .............. 20 G. Management, Oversight, and Tra.ining .............. 23 V Monitoring and Technical Assi s tance .................. 29 VI. Construction, Termin~tion, and Enforcement of Set tl ement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34\n2\n\n\fCase 3:05-cv-01122-GEB-TJB Document 4 Filed 10/18/2005 Page 4 of 47\nI. INTRODUCTION,\n1. This C6urt hasjutisdiction over this action pursuant to 28 U.S.C. § 1345.\n2. Venue in the Oistricto.f New Jersey is appropriate pursuant to 28 U. S. C. § 1391 Ib) \"\n3. The United States has met ,all pre-fiiing requi,rem~nts stated in the Civil Rights of Institl.l.tionalized Persons Act, 42 U.S.C. § 1997.\n4. This Settlement Agreement (Settlement) is enter.ed into between tbe United States and Defendants.\n5. This Settlement resolves the investigation conducted by the United States Department of Justice (DOJ) at the Mercer County Geriatric Center (MCGC) pursuant to the Civil Rights of Institutionalized rsons Act (CRIPA)\", 42 U.S.C. § 1997. Th~ Settlement addresses the corrective measures set forth by DOJ in its October 9, 2002 letter to the County_ This Settlement does not serve as an admiSSion by the Defendants that corrective measures are ceces5ary to meet the constitutional and statutory rights of the residents of MCGC operated by the Defendants.\n6. In conformity with CRIPA, this Settlement represents a voluntary effort by t,he Defendants to meet the concerns raised by DOJ's inVestigation. ,::>.ee q2 U.S.C. § 1997b(a) (2)(8) ~nd § 1997g,\n7. By entering into this Set tlement, the Defendants are not admitting to any violation of [ ral or state law.\n3 .\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 5 of 47\n\nB. The signatures below of officials representing the\n\nUnited States and the Defendants signify that these parties have\n\ngiven their final approval to this Settlement.\n9. This Settlement is enforceable only by the parties and\n\nis binding upon the rt ,by and through\n\noffi als,\n\nagents, employees, and successors. No person or entity is\n\nintended to be a third party beneficiary of the provisions of\n\nthis Settlement for purposes of any civil, criminal or\n\nadministrative action, and accordingly, no persdn or entity may\n\nassert any claim or right as a beneficiary or protected class\n\nunder this Settlement in any civil, criminal, or administrative\n\naction. Similarly, this Settlement does not authorize, nor shall\n\nit be construed to authorize, access.to Defendant documents by\n\npersons or entities not a party to this Settlement.\n\n10. This iettlement .sha1l constitute the entire integrated\n\nagreement the\n\nWith the exception of the Justice\n\nDepartment's findings letter re ranCId in Part III, paragraph 4,\n\nhereof, no prior contemporaneous communications, oral or written,\n\nor prior drafts, shall be relevant or admissible for purposes of\n\ndetermining the meaning of any provisions herein in any\n\nlitigation or any other proceeding. 11. All parties shall be~r their own costs, including\n\natto;::ney fees, in this and any subsequent p;::oceedings.\n\n12: The parties agree it is in their mutual interests to\n\n4\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 6 of 47\n\n\".\na~oid litigation. To that end, the parties have resolved their\n\ndifferences by agreeing upon provisions contained in this\n\nThe\n\ns a\n\nthat resolution of this case is in\n\nthe best interests of the Mercer County Geriatric Center\n\nresidents.\n\n13. This Settlement shall take effect on the day it is\n\nfiled with the United States District Court, District of New\n\nJersey.\n\nII. PEFINITION$\n\n1. \"Plaintiff\" shall refer to the United States' of America.\n\n2. \"Defendants\" shall refer to - Mercer County, New Jersey;\n\nthe Mercer County Executive, in. his official capacity; the Mercer\n\nCounty Geriatric Center Hospital Administrator, in his official\n\ncapacity; the Director of the Mercer County Department Human\n\nServices, in her official capacity; and their agents and\n\nsticcessors in office.\n\n3. \"Qualified staff,\" \"staff,\" and ~qualified\n\nprofessional,\" shall refer to an individual (or individuals) qualified to render the ~~quisite and appropriate care~\n\ntreatment, judgment(s), training and service, based on\n\ncredentials recognized in the specific field.\n\n4. \"Substantial compliance\" shall mean that the Defendants\n\nare complying with each paragraph of this Settlement and that\n\nsuch compliance has been maintained for a period of six. months.\n\n5\n\n\f. ,\n\n.1 Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 7 of 47\n\nIsolated incidents of non-compliance shall not preclude a finding\n\nof substantial compliance.\n\n5. Any reference in this Settlement to \"Mercer County\n\n,Geriatric Center\" taking certain action implies that all of the\n\nDefendants are respons\n\nfor MCGC's compliance.\n\n6. In all instances in this Settlement in which the\n\nDefendants agree to provide care, treatment, and services in keeping with·professional standards,\" it shall mean that the Defendants will provide care, treatment, and services consistent\n\nwith \"professional standards\" as defined by Youngberg v. Romeo,\n\n457 U.S. 307 (1982); Olmstead v. L.C., 527 U.S. 581 (1999); Americans with Disabilities Act, 42 U.S.C. § 12132 et ~.(ADA); 28 C.F.R. § 35.130(d) (ADA integration regulation); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (Section\n\n··504), Grants to States for Medical Assistance Programs (Medicaid). 42 U.S.C. § 1396r (nursing home standards); 42 C.F.R.\n\n§ 483 Subpart B (Medicare & Medicaid regulations); and applicable\n\nfederal case law. 7. ~Significant incidents N shall include all instances of\n\nalleged, suspected, or SUbstantiated abuse, neglect, moderate or\n\nmajor injury, elopement, theft, hospitalization due to an injury,\n\nor unexpected death.\n\nIII. EACKGROUND\n1. The Defendant Me~cer County owns and operates the Mercer\n\n6\n\n\f. Case 3:05-cv-01122-GEB-TJB '\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 8 of 47\n\ncounty Geriatric Center (MCGCI, a nursing home located in Trenton, New Jersey.\n\n2. The Deferidants are responsible for the operation of\n\n,\n\n' ,\n\nMCGC.\n\n3. On December 10, 2001, the United States notifi\n\nDeferldants that the United States intended to investigate the\n\nMercer County\n\npur\n\nthe Civil Rights of\n\nlristitutionalized Persons Act (CRIPA), 42 U.S.C, § 1997.\n\n4. On October 9, 2002, the United States issued a letter of findings that notified Def~ndants of the result of thi~\n\ninvestigation. This letter included recommendations to address cited. deficiencies.\n\n5. In order to avoid protracted litigation regarding\n\nconditions at HeGC, the parties agree to the provisions set forth in this Settlement.\n\n6 . . MCGC residents have rights protected by the\n\nconstitution, federal statutes, and federal nursing home\n\nregulations. See Youngberg v. Romeo, 457 U;S. 307 (1982);\n\nOlmst.ead v. L.C., 527 U.S. 581 (1999); Americans with\n\nDisabilities Act, 42 U.S.C. § 12132 et~. (ADA); 28 C.F.R.\n\n§ 35.130 (d) (ADA integration regulation); Section 504 of the\n\nRehabilitation Ac:t of 1973, 29 U.S.C.A. § 794 (Section 504),\n\nGrants to States for Medioal Assistance Programs (Medicaidl, 42\n\nU.S.C. § 1396r (nursing home standards); and 42 C.r.R.§ 483\n\n7\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 9 of 47\n\nSubpart B (Medicare & Medicaid regulations). This Settlement was\n\nentered to ensure. MCGCis compliance with generally accepted\n\nprofessional standards of care consistent with federal law.\n\n7. Nothing in this Settlement is intended to serve as a\n\nwa\n\nor exemption from standax:ds identified in the above-\n\nre renced federal atutes, implementing regulation·!!; ,and\n\nas\n\ned surveyor guidance. MCGC ahallbe\n\nto continue\n\nfully complying with these federal standards.\n\n8. Nothing in this Settlement shall preclude the United\n\nStates Department of Health and Human Services (HHS), the Centers\n\nfor Medicare arid Medicaid Services (eMS), or relevant state\n\nagencies, from separately enforcing relevant nursing home\n\n. .\n\nstand\"rds. Any penalties or findings by these or other\n\ngovernment agencies may be considered as relevant evidence, but\n\n. ~hall not be determinative. as to MeGe's compliance with this\n\n.settlement. The Defendants' submission of plans of Correction\n\nto, or certification for receipt of federal funds by, .the Centers\n\nfor Medicare and Medicaid Services do not, in themselves,\n\nconstitute compliance with this Settlement .\n\n. 9. Nothing in this Settlement shall be construed as an\n\nacknowlBdgm~nt, an admission, or evidence of liability under\n\nCRIPA, the Constitution, £ederal Or state law.\n\n10. MCGC has advised the United Stktes that it has already\n\ntaken significant steps to improve the gualityof care in all\n\n8\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 10 of 47\n\nareas co~ered by this Settlement. The State recently found the Center in compliance with state and federal nursing home reg~lations with only one deficiency.\n\n11. This Settlement, voluntarily entered into, shall be\n\nante by\n\nUnit\n\nates Oi\n\nCourt for the District of\n\nNew Jersey and shall be enforceable under the terms set forth\n\nherein as an order of the Court.\n\n12. 'l'he parties agree that the provisions of this\n\nSettlement are a reasonable, lawful, and fundamentally fair resolution of this case.\n\nIV. SUBSTANTIVE PROVISIONS\n\nA. Assessment and Care P~anning\n\n1. MCGC shall provide adequate safety, medical care, and\n\nnursing care to MCGC residents. MCGC _hall develop and implement\n\npolicies and procedures to ensure timely and professionally\n\nappropriate assessfuent and treatment of MCGC residents.\n\n2. Initial assessments and rEl-assessments shall be\n\nconducted as required by generally accepted professional standards.\n\n3. MCGC will. conduct initial assessments on all new\n\nresidents and re-assessments of existing residents based on\n\nmedical need. All assessments shall be done consistent with\n\nIV. A. 3. (a) ( I ) lo~. MCGC shall assess whether each resident\n\nmay be at risk for, or have a present need for, care to address\n\n9\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n'.Filed 10/18/2005\n\nPage 11 of 47\n\nthe follo~ling lssues and problems commonly found in a geriatric population:\nB. Pressure sores, skin damage, and necrosis., b. Restraint use. c. Elopement. d. Falls and unexplained injuries. B.Loss of physical and mental function, including\ndevelopment of contractures, communication deficiencies, and cognitive impairment. f . Adaptive care ,and disability accommodation needs. g. Nutrition, hydration, and mealtime assistance needs. h. Mental health care requirements and behavioral issues. i. Rehabilitative and restorative care needs. j. Chronic disease. k. Pain. 1. Incontinence. 4. When a resident ~xperiencBs a significant change in condition, a profe~sionally appropri~te re-assessment shall be conducted. Significant changes in condit~on include: a. Development of pressure sores, une~plained skin\nwounds, skin deteri ion or necrosis. h. Deterioration in a resident'.s.mental or physical\n\n10\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 12 of 47\n\n\"\nfunction, including the development of\n\ncontractures,\n\nc, Incidents elopement, falls, or injury,\n\nd. Significant changes in weight or dehydiation.\n\ne. A resi 's trans from another long-term care\n\nfacility or a resident's return to MCGC after\n\nhospitalization at an outside medical facility.\n\nf. Behavioral symptoms, increased depression, or\n\nappearance of other serious mental illness.\n\ng. Incontinence.\n\n5. Assessments and re-assessments shall be incorporated\n\ninto resident care plans. Care plans shall meet generally'\n\naccepted professional standards.\n\n6.\n\nshall include the llowing elements;\n\na. A care planning process that is conducted in an\n\ninterdisciplinary manner by qualified direct care,\n\nnursing, physician, mental health, therapy, and\n\nsocial work staff.\n\nb. Active partJcipation by all appropriate staff\n\n(including professionally appropriate attendance,\n\ncare review, and oversight by psychiatrists,\n\nphysicians, and psychologists) in care planning\n\nmpPTings,\n\nC. Active participation by social,workers to ensure\n\n11\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 13 of 47\n\nthat residents' psychosocial needs are addressed. d. Objective, comprehensive, data-based evaluation of\nresident needs including careful incorporation of resident assessments into any care plan. e. Professionally appropriate evaluation and consideration of. reasonable, alternativ.e care options. f. Periodic update and review of care plans by qualified staff to ensure that care remains individualized and appropriate. g. Professionally appropriate consideration and monitoring of. factors that commonly contribute to the health and well-being of geriatric residents over the course of treatment, including;\ni) Restraint use, ii) Restorative or rehabilitative care\nneeds, iii) Pain management needs, iv)Medication regimens, v) Availability of adaptive devices,\nadaptive equipment, hospital fUrniture,. and <:,ppropriate housing environment, vi) Nutrition and hydration requirements. 7. Direct care staff shall be trained on the individuai\n\n12\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 14 of 47\n\nneeds and care plans for the residents in their care.\n\n8. Assessments and care plans shall be implemented and incorporated into actual resident care. All medical and mental\n\nhealth treatment, therapeutic activities, and other resident care\nshall be designed to ensure that each r~sident attains Or.\nmaintains the highest practicable physical, mental, and\n\nychos I weI ing in accordance with each resident's individualized assessments and care plans.\n\n9. MCGC shall ke reasonable\n\nto ensure that:\n\na. Residents do not develop avoidable bedsores.\n\nb. Residents are not fed by neo~gastric tubes unless unavoidable.\n\nc. Residents do not experience avoidable malnutrition or dehydration.\n\nd. Residents do not experience avoidable loss of\n\nphysical or mental function. 10. MCGC staff shall ensure that re~idents who .~eed\n\nassistance with rsonal hygiene rece professionally\n\n~ppropriate assistance .with bathing, cleaning, grooming, and\n\ntoileting.\n\nB. Restraints and Medication Usage.\n\n1. MCGC residents shall not be subjected to .unreasonable\n\nrestraints. MCGC shall meet generally 'accepted professional\n\nstandards identified in feder~l statutes and regulations\n\n13\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 15 of 47\n\ngoverning the use of restraints. The United States acknowledges\n\nthat Defendants have adopted a \"no restraints H policy designed to be consistent with this Settlement. ThIe Defendants acknowledge that MCGC restraint policies shall require implementation, staff\n\ntraining, and continued updating to ensure compliance with\n\ngenerally accepted professional standards on the use of restraints.\n\n2. In order to minimize and decrease the use of mechanical·\n\nand chemical (medication) re\n\n, MCGC shall:\n\nB. Develop and implement meaningful alternatives to\n\nrestraints including providing residents with\n\nrestorative care, therapeutic activities, and\n\nchanges to the living environment.\n\nb. Ensure that restraints are riever used for the\n\nconvenience of staff or as.punishment. ·Restraints\n\nshall not be incorporated into a resident's care\n\nplan or used on a resident unless there has been a\n\nthorough assessment of the need for restraint use,\n\nthe harm associated with restraint use, and\n\nalternatives to restraint use. If emergency\n\nrestraints are necessary, they will only bj2l imposed\n\npursuant to an clinically appropriate physician's\n\norder. Residents in emergency physical or\n\nmechanical restraints shall be monitored to ensure\n\n1.4\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 16 of 47\n\nthat they have adequate circulation.\n\nc. When restraints are recommended by st af.f to\n\nprevent falls. MCGC shall ensure that there has\n\nbeen an appropriate evaluation of the reasons for\n\nthe falls and ernatives to restraints. MCGC\n\nshall assess whether addressing a resident's need\n\nal\n\ning. strength building\n\nexercises, adapted communication, assistance with\n\ntoileting, pain management, or treatment for\n\nanxiety may be a rno!:e appropriate solution than\n\nrestraints.\n\nd. Where restraints .are determined initially to be\n\nappropriate, MCGC staff shall periodically\n\nre-assess the perceived need for such re~traints\n\nand attempt alternative approaches, as indicated.\n\ne. Ensure that the use of devices such as bedrails\n\nand \"lap buddies\" are covered by facility policies\n\nand procedures governing use of restraints.\n\nf. Ensure that residents' behavioral issues arB\n\nassessed by qualified mental health professionals\n\nand behavioral plans are developed based on valid,\n\nreliable data and assessments. Any behavioral\n\nplans shall be integrated into resi~ents'\n\ncomprehensive caie plans.\n\n15\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 17 of 47\n\n3. Residents placed in restraints shall be carefully\n\nsupervised and provided food, water, and restroom breaks\n\ni;l S requi red by.\n\nssional standards.\n\n4. MCGC shall evaluate straint use as part of MCGC's\n\nquality assurance and improvement nr\"\"\"ss.\n\n1 outcomes\n\nthat may be associated with restraint use, such as weight loss\n\nand trauma, shall be evaluated as part of this process .. Data and\n\ntrends regarding restraint use should be identified for both\n\nindividual residents and the MCGC system as a whole. Basect on\n\nthe data and trends identified by the quality assurance and\n\nimprovement process, MCGC shall make professionally .appropriate\n\nsystemic and operational changes to facility restraint practices\n\nand procedures.\n\n5. Medication audits at MCGC are conducted by an\n\nindependent pharmacy professional. The professional services\n\ncontract with the phi!lrmacy professional has been executed, and a\n\ncopy of this agreement has been provided to the Onited States\n\nDepartment of Justice. MCGC .shall continue evaluating whether\n\nresidents are receiving necessary medications. Non-\n\npharmacological interventions shall be evaluated to determine\n\ntheir efficacy and appropriateness given each resident's assessed\n\ncare needs. MCGC shall continue to identify and eliminate\n\npro ssionally inappropriate medication pra ices.\n\n~. MCGC shall monitor medication side-ef ts both as part\n\n16\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 18 of 47\n\nof each resident's care plan and as part of facility-wide\n\noversight procedures.\n\nC. Mealtime Assistance, Nutrition and Hydration Practioes\n\n1. MCGC shall provide all,residehts with adequate\n\nnutrition, hydration, and\n\nime assi ance consistent with\n\ngenerally accepted professional standards.\n\n2. Facility nurses shall participate in the coordination\n\nand oversight of staff response to residents' significant weight\n\n~hanges.\n\n3. All appropriate staff shall be given competency-based\n\ntraining on mealtime procedures and hydration. Additionally,\n\nMCGCshall train facility nurses in conducting appropriate weight\n\nevaluations. Competency-based training on feeding and hydration\n\nshall be provided\n\nifi ly for RN's, certif d nurse aides,\n\nand 'activity professionals who assist with resident feeding.\n\n4. MC~C shall ensure that nurses and,di\n\ncare sta are\n\nsupervised by facility management and physician staff to ensure\n\nappropriate follow-through when significant weight changes are\n\nidentified.\n\n5. For residents who need mealtime assistance or who are\n\nlosing, or at risk of losing, their ability to feed themselves,\n\nMCGC shall provide professionally appropriate assistive devices,\n\ntherapeutic positioning, and functional seating programs. Such\n\nassistance shall be part of the resident'S care plan and be based\n\n17\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 19 of 47\n\non the individual resident's assessments. 6. MCGC shall develop a~d implement clinically appropriate,\n\nindividualized mealtime assistance, hydration, and nutrition\n\nplans for residents assessed as requiring such plans.\n\nD. Therapeutic Aotivities, Rehabilitation., and Rest.orative Care\n\n1. As part of the assessment and treatment process, all\n\nMCGC residents shall be assessed\n\nloss of physical or mental\n\nfunction and their corresponding need for therapeutic activities,\n\nrehabilitation, and restorative care. MCGC shall ensure that\n\nresidents have professionally appropriate rehabilitation and\n\nrestorative care plans. Resident mobility and self-care skills,\n\nincluding the ability to bathe, toilet, communicate, and self-\n\nfeed, shall be specifically addressed in those plans. The\n\nactivity, rehabil atioD, and restorative care plans shall be\n\nperiodically r.viewed and upd~ted to ensure continued\n\nindividuali ion and compliance with\n\nrally\n\nprofessional standards. 2. MCGC shall develop and implement therapeutic activity\n\nprograms for residents with limited physical or cognitive function, including those ~esidents with dementia, depression,\n\naphasia, visual impairmetlts, communication issues, or hearing\n\nloss. These programs shall be designed to help residents\n\nmaintain or impx;ove their functional abilities.\n\n3.· MCGC shall obtain training and consulting services from\n\n18\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 20 of 47\n\na' qualified provider for the development and implementation of\n\nrestorative and rehabilitative care programs. The parties\n\nanticipate that the Monitor will evaluate the Defendants' current\n\ncontracts for consulting services and provide further guidance on\n\nhow additional services can be provided by outside contractors or\n\nin-house staff.\n\nE. Mental Health Care\n\n1. MCGC shall provide adequate and appropriate mental\n\n1th se\n\nin\n\nwith generally a\n\ned\n\nprofessional standards.\n\n2. Psycho-pharmacological medications shall be .ordered\n\npursuant to generally accepted professional standards. Residents\n\nshall be assessed to determine any need for anti-depressants, and\n\nanti-depressant use shall be properly documented in resident\n\nmedical records.\n\n3. MCGC shall carefully monitor residents for medication\n\nside-effects. Staff shall be trained on identifyin~ such side-\n\nef\n\nin geriatric residents whose limited function and medi\n\nproblems can sometimes obscure the existence of su~h side-\n\neffects.\n\n4. Physicians and psychiatrists shall itclude in resident\n\nmedical record$;\n\na. Resident symptomatology and functioning;\n\nb. Mental status exam;\n\n19\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 21 of 47\n\nc. Assessments, fo~mulations, and Ca~e plans; and. d. Any identified medication side-effects and\nlaboratory testing ~esults.\nF. Treatment in the Most, Integrated Setting Appropriate to Individualized Needs\n1. MCGC residents shall be provided se~vices in the most integrated setting ~ppropriate to their individualized needs.\n2. Consistent with Olmstead, the ADA, and ADA regulations, MCGC shall ensure that the facility's treatment professionals reliably assess Bach resident to determine whether community placement is appropriate for the individual. Such assessments shall be conducted iri a reasonable manner that meets generally accepted professional standards. The assessments shall take place before admission and periodically throughout a resident's placement at MCGC. If placement in a more integrated treatment setting is determined to be appropriate, then MCGC shall ensure that such placement shall be provided, if the affected person does not oppose such placement, and the placement can be reasonably accommodated. The parties acknowledge that in certain situations, an assessment cannot occur prior to admission due to a sident's tran~fer from a hospital or admission in an emergency situation. In such situations, MCGC shall conduct the placement assessment shortly after admission.\n3. Prior to discharging a resident pursuant to § G.2, above, MCGC shall provide sufficient preparation and orientation\n20\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n•Filed 10/18/2005\n\nPage 22 of 47\n\nto the resident to ensure safe and orderly transfer or discharge from the facility.\n\n4. The Defendants shall not discharge residents to\n\nfacilities that would not be considered appropriate for the\n\nresident according to\n\n.uy\n\np\n\nsional andards .\n\nMCGC and the Defendants shall provide the United States with\n\ncopies\n\n1 propos and final discharge plans. MCGC shall be\n\ngiven four months from the time this Settlement is filed to\n\nprepare such plans on all resident~ who do not currently have 'such plans.\n\n5. MCGC'$ quality assutance system shall includg evaluation\n\nand review of resident or family complaints about ,the discharge\n\nassessment and planning process.\n\n6. To ensure compliance with·ADA requirements, MCGC shall\n\nensure that the facility's therapy, restOrative,' and\n\nrehabilit\n\ncare programs are developed by gualif\n\nprofessionals with training and experience in implementing such\n\nprograms for residents with limited mental or physical function. The parties anticipate th~t the Monitor will svaluatethe\n\nDefendants' current system for providing such programs and offer\n\nfurther guidance on how additional services can be provided by\n\noutside contractors or in-house staff.\n\n7. In addition to the other reqllirements of this\n\nSettlement, MCGC shall:\n\n21\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 23 of 47\n\na. Develop and implement an equipment management program to ensure thmt adaptive equipment is in\n\ngood functioning order.\n\nb. Evaluate whether the use of ,wheelchairs or staff\n\nmealtime assistance\n\ns are resulting in the\n\nunnecessary\n\nioration of resident self-care\n\nskills.\n\nc. Develop and implement a policy for discharge planning that includes consideration of hospice\n\ncare or transfer to the most integrated community\n\nsettings.\n\nd. Participate in State planning to implement the\n\nrequirements of the Americans with Disabilities Act (ADA), ADA implementing regulations, and Olmstead.\n\nAs part of this planning process, MCGC shall\n\nidentify community placement resources\n\nany\n\nMCGC residents who may be appropriately placed in a cQmmunity setting and the barriers to such\n\nplacements' ..\n\ne. Ensure that the resident assessment and care\n\nplanning process includes asSeSsment of the\n\nappropriateness of placemerit at MCGC. The process\n\nshall also include the identification of treatment\n\noptions, therapeutic activiti~s, rehabilitation,\n\n22\n\n\fCase 3:05-cv-01122-GEB-TJB\n•\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 24 of 47\n\nand restorative care that may be necessary to\n\nensure that residents receive care in the most\n\nint\n\ning appropriate to their individual\n\nneeds.\n\nG. Management, Oversight, and Training\n\n1. Defendants shall ensure that MCGC is operat~d and managed in a manner consistent with generally accepted professional standards.\n\n2. MCGC shall develop and implement a gerontologic core\n\ntraining program that meets generally accepted profes.sional\n\nstandards. This training shall include competency evaluations of\n\nstaff to ensure that staff are proficient to implement care, plans for residents in their care. MCGCshall ensuie that the facility training program:\n\na, Trains staff on relevant federal regu~ations\n\nregarding nursing homes, the nursing horne\n\nguidelines set forth in federal law and generally accepted professional standards;\n\nb. Provides appropriate MCGC staff with educational\n\ninstruction on methods of evaluation, diagnosis,\n\nand treatment of residents with psychiatric and/or\n\nbehavioral problems;\n\nc. Provides continuing medical education on age\n\nrelated. mental health issues;\n\n23\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 25 of 47\n\nd. Bdueates all appropriate staff on g~nerally\naccepted p~ofessional app~oaches to promoting \"\nimproved function, resident safety, h~alth, hydration, and nutrition. The approach~s addressed\nby such training shall include, but not be limited\n\nto - using adaptive devices to avoid more\n\nrestrictive re\n\nor meal time practices,\n\nmodifying living conditions to allow greater\n\nresident independence, and providing app~opr\n\nthe~apy and activities; e. Ed~cates staff on \"restraint-free H treatment\n\napproaches and alternatives to restraints;\n\nf. Educates staff on their roles in the interdisciplinary care planning process, implementation of care plans and medical orders, and the individualization of re~ident assessments\n\nand treatment; g. Educates staff on medi ion side ef ets; h. Educates staff on the psychosocial needs of\n\nge~iat~ic residents; i. 'l'rains staff on therapeutic activitie.s, restorative\n\ncare, and rehabilitation programs; j. Trains staff on medical .issues specifically related\n\nto the aging process.\n\n24\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 26 of 47\n\n3. MCGC shall ensure that a qualified geriatric physician oversees resident medical care, including care provided by any physicians with privileges at MCGC. This medical director shall be board certified with a certificate of added qualifications in geriatrics. The medical director's oversight shall compQrt with\ng. ene. rally accepted standards and shall include review of care\nplans, physician orders, staff implementation of physician orders, and compliance with facility quality assurance .policies. The medical director shall ively participate in the development of policies and procedures at MCGC. The medical director shall also play an active role in the credentials and hiring approval and review process for attending physicians.\n4. In conjunction with facility management and as part of a facility-wide quality oversight process, the medical director and as appropriate, the independent pharmacy professional referenced in IV.a.S above, shall:.\na.\" Review resident charts and~edication practices to ensure that there is no pro ssionally inappropriate polypharmacy or unnecessary drug and restraint use;\nb. Review resident charts. to ensure that physicians and staff are properly documenting clinical information, including the basis fqr their treatment decisions, drug reduction efforts, care\n\n25\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 27 of 47\n\n\"\nplans, lab results, treatment data, and resident\n\nhealth evaluations;\n\nc. Monitor staff to ensure appropriate supervision of\n\nresidents and implementation of care plans;\n\nd. Ensure that the care provided at MCGC is designed\n\nto pro-actively improve resident quality of Ii\n\nand prevent declines in resident function; and\n\ne. Ensure that medication practices comport with\n\ngenerally accepted professional standards and that\n\nthe use of medications is professionallY justified,\n\ncare\"fully monitored, documented, and reviewed by\n\nqualified staft.\n\n5. MCGC shall develop and i~plement professionally\n\nappropriate quality assurance and staff civersight poli6ies.\n\nThese policies shall include;\n\na. Mortality and peer\n\news '\"\"'-J!...SCL' an org ani zed\n\nprocedGte conducted by appropriate medical\n\nprofessionals for completing detailed assessments\n\nof resident deaths, negative outcomeS, and resident\n\ncare, in order to evaluate the p,erformance of\n\ntreating professionals in meeting the standards of\n\ntheir specialty);\n\nb. Objective, reliable, verifiable data collection to\n\nidentify problem trends or issues;\n\n26\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 28 of 47\n\n\"\nc. Professionally apptopriate corrective action in\n\nresponse to any identified problem trends or issues\n\nfacility, shift, resident, or housing unit\n\npatterns of resident abuse; injuries; pressure\n\nsores; falls; restraint use; infections;\n\ncommunicable disease outbreaks; psychotropic\n\nmedication use; incontinence; or loss of function).\n\nd.Procedures to ensure accurate reporting of serio~s\n\nincidents, including the reporting of possible\n\nabuse to other-agencies as required by law.\n\n6. MCGC shall develop and implement policies and procedures\n\nto ensure adequate clinical supervision of all staff, including\n\nphysicians and psychiatrists.\n\n7. MCGC shall ensure that phys~cian and psychiatrist staff\n\n'provide adequate on-site coverage at the ,facility and 'participate\n\nmeaningfully in the assessment and care plan\n\nss .. MCGC shall\n\nmonitor and evaluate the adequacy of physician and psychiatri\n\ncoverage ptirsuant to its quality ~ssurance procedure.\n\nB. MCGC shall train and monitor staff on obtaining informed\n\nconsent as required by generally accepted professional standards.\n\nSpecifically, MCGC shall ensure that residents are not subjected\n\nto medications, restraints, or o~her treatment without\n\nappropriate consultation and consent from the residents or their\n\nguardians/medical decision-makers.\n\n27\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 29 of 47\n\n9. MCGC shall ensure that there are adequate numbers of staff to carry out the requirements of this Settlement. This shall include, but not be limited to:\n\na. Retaining three social workers to regularly provide\n\ntimely, direct, soc 1\n\nces re to the\n\nidents. These social workers shall assist with\n\ndevelopment and implementation of resident care\n\nplans, discharge planning, and ADA compliance.\n\nThis staffing requirement is based on current MCGC\n\nresident needs and assumes that the population\n\ncount remains stable at approximately 180\n\nresidents. It the resident populatiOn increases or decreases substant~allYI the 60cia1 workei staffing\n\nrequirement may be adjusted based on generally\n\naccepted professional standards ..\n\nb. Retaining a qualif~ed registered nurse to serve as\n\nthe facility's wound care nurse.\n\n10. MCGC\n\n1 develop and implement a facility\n\nhousekeeping, preventive m6intenance, and safety inspections\n\npolicy.\n\n11. Resident hygiene, including grooming condition, shall\n\nalso be reviewed periodically as part of the facility's quality\n\nassurance process. MCGC shall monitor ~nd maintain adequate supplies of ~lothirig, linens, towels, blankets and resident\n\n28\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 30 of 47\n\nh~giene supplies.\n\n12. MCGC shal.l train and monitor staff on compliance with\n\nresident advanced directives. MCGC shall ensure that such\n\ndirectives comply with applicable laws. To that end. MCGC shall\n\nnot rely on untrained staff to prepare resident's legal papers.\n\nsuch as their advanced directives and care instructions. In\n\ncases where there are no 1 I guardians, MCGC ~il1 continue to\n\nseek appointment of guardians for residents;\n\nVI. Monitoring and Technical Assistance\n\n1. The United States and its attorneys, consultants, and\n\nagents shall have access to MCGC, MCGC residents, MCGC residents\n\ndischarq- ed\n\nafter\n\nentry\n\nof\n\nthis\n\nSettlement. ,\n\nMCGC\n\nstaff, ,and'\n\ndocuments as reasonably necessary to assess compliance with this\n\nSettlement. The United States. its attorneys, consult~nts, and\n\nagents. shall have the right to request., inspect, teview and copy\n\nfacility\n\n, resident charts and other documents; conduct,\n\ninterviews with residents outside the presence of County lawyers\n\nand staff; conduct interview~ with staff outside the presence of supervisory staff; and observ~, activities normally conducted at\n\nMCGC to assess compliance with this S\",ttl\",ment. The Unit\",d\n\nStates agrees to provide the Defendants with reasonable notice\n\nbefore :;l!2eking access to documents, staff, residents, and\n\nfaci 1ities.\n\n2. Nothing in this Settlement shall Preclude the parties\n\n29\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 31 of 47\n\nfrom exercising their right to cond~ct discovery pursuant to the Federal Rules of Civil Procedure; nor shall this Settlement be construed as a waiver of any legal or equitable rights, remedies, defenses or privileges. It is not, however, the intention of the\nrties to exe se any scovery rights associ~ted with.3ctive litigation, such as depositions and interrogatories, unless litig on resumes.\n3. To evaluate the Defendants' compliance with § IV.!\" above, the United States, and the Monitor referenced below, may visit alternative placement settings. The Defendants will work with the United States and the Monitor to facilitate visits to such settings.\n4. MCGC shall submit quarterly compliance reports to the United States, the first. of which shall be submitted within 45 days after entry of this Settlement as a court order. The reports shall describe the ions MCGC has taken during the reportingperi~d to implement this Settlement and shall make specific reference to the Settlement provisions being implemented. MCGC shali make available records or other documents to verify that they have taken such actions as described in their compliance reports (~, census summaries, staffing sununaries, contrOicts, bills, incident reports), \"nd will provide copies of all documents reason'ably requested by the Oni ted States without charge. As part of the compliance t'eport,\n\n30\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 32 of 47\n\ni~form8tion provided shall include, but not be limited to:\n\n8. All mortality o~ serious incident ~eviews o~\n\ninvestigation>;;\n\nfor elopements, emergency\n\nhospitalizations, fires, staff-on-~esident abuse,\n\ncommunicable disease outbreaks, resident inju s) ;\n\nb. Su~veys by s\n\n,local, or federal officials\n\n~~ health department, Medicaid agency);\n\nmarshal, ate\n\nc. Quality assurance reports gene~ated during.the\n\nreporting period;\n\nd. ~taffing vacancy reports, staffing rosters, .~nd any\n\nstaffing needs assessments;\n\ne. Resident population rEilPort and roster; and\n. f. Resident or. fam.ily complaints/grievances, or\ninvestigation notices, and the investigation\n\nreports completed .i.n response to any of these\n\nitems.\n\n5. The Defendants shall retain a qualified Monitor with exp~rience and training on geriatric is~ues.to assist in remedial\n\nefforts under this Settlement. A copy of the Monitoring Protocol\n\nis hereby incorporated at Exhibit A.\n\n6. The Monitor shall evaluate MCGC's compliance with this\n\nSettlement, and provide a report to the. pa~ties and the Court at\n\nleast once every six months as to the status of MCGC'! remedial\n\n31\n\n\f. Case 3:05-cv-01122-GEB-TJB '\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 33 of 47\n\nefforts. Either party may use the reports or testimony of the\n\nMonitor for this case, but the reports and testimony of the\n\nMonitor shall not be determinative for purposes of a\n\nng\n\ncompliance with thi.8 Settlement. Either party may contest any\n\nfindings or recommendations by the Monitor. The Monitor shall\n\nnot testify in any other case unless both parties consent, the\n\nCourt orders the testimony, or such testimony is otherwise\n\nrequired by law.\n\n7. The Monitor shall provide on-site technical assistance\n\nto' staff to assist the Defendants in achieving compliance with\n\nthis Settlement. To facilitate such technical assistahce and\n\ncompliance evaluation, the Monitor shall have the right to\n\nrequest, inspect, review and copy f.acility records, resident\n\ncharts and other documents, conduct interviews with residents Dutside the presence of Defendants' laWyers and ~taff, conduct\n\ninterviews with staff outside the presence of Defendants' la0yers\n\nand supervisory staff, and observe activities normally conducted\n\nat MCGC to assess compliance with this Settlement.\n\n8. The Defendants §hall bear all cost of the Monitor\n\nconsistent with the Monitoring, Protocol and budget incorpor-ated\n\ninto this Settlement as Exhibit A. A copy of the contract shall\n\nbe filed with the Court and served upon the United States.\n\n9. Both the United States and the Defendants\n\nto\n\nagree on the Monitor selected for this position. If the parties.\n\n32\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 34 of 47\n\nhave not agreed to an Monitor before submission of this\n\nSettlement, the parties intend to meet and confer on selection of\n\nthe Monitor within 45 days after entry of this Settlement.\n\nAssuming the parties agree to the selection of a Monitor, the\n\nparties shall file a Joint ~otion requesting that the Court\n\nappoint the selected individual as Monitor. If the United States\n\nand the Defendants cannot\n\non the Monitor within the 45 day\n\nconferral period, then either party may file a unilateral Mo~ion\n\nrequesting that the Court select the Monitor. In that\n\ncircumstance, each party shall submit a list of no more than\n\nthree candidates with its motion (or response) to the Court for\n\nreview and appointment of an Monitor from those lists. After the\n\nCourt appoints the Monitor, the Def~ndant. shall file a copy of a\n\ncompleted contract within 60 days after the Court's decision.\n\n10. The Monitor shall not be terminated without leave of\n\nth~ Court. Neither party shall move to terminate the Monitor\n\nwithout providing at least 30 days' written notice to. the other\n\nparty their intention to do so. If a party unilaterally seeks\n\nto terminate the Monitor, termination shall be granted only for\n\ncause. The Monitor may be terminated on any grounds, however, if\n\nboth parties agre·e to such termination. If both parties agree to\n\nterminate the Monitor, they shall file a Joint Motion for\n\nTermination with the Court.\n\n11. In the eVent the Monitoi is unable to carry out his or\n\n33\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 35 of 47\n\n\"\nher obligations due to unforeseen circumstances (~ due to\n\ndeath, illness, termination, or resignation), the parties shall\n\nconfer on the replacement of the Monitor. If they are unable to\n\njointly agree on a replacement, then the procedure outlined above\n\nfor appointment by the Court shall be applicable.\n\n12. The Defendants, their, agents, employees, contractors,\n\nand subcontractors 11 not take any aliatory action against\n\nany individual or individuals who cooperated with the United\n\nStates' investigation of HeGe, or who cooperate with the United\n\nStates or the Monitor during the pendency of this Settlement.\n\nVII. Construction, Termination, and Enforcement of Sliilttlement\n\n1. This Settlement shall be applicable to and binding upon\n\nall parties, their o.fficers, agents, employees, assigns, and\n\ntheir successors in office.\n\n2. The Defendants shall begin implementing this Settlement\n\nimmediately upon the ling of the Settlement with the Court .\n\n. Except where otherwise specifically indicated, the Defendants\n\nshall complete implementation of all the provisions of this\n\nSettlement within one hcindred and eighty (180) days after the\n\nfiling of this Settlement with the Court. If Defendants are\n\nunable to complete implementation of any provisions of this\n\nSettlement within this one hundred and eighty (IBO} day period,\n\nthey may seek an ~dditional sixty (60) day-extension from the\n\nCourt by filing a motion with the Court. The Motion for\n\n34\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 36 of 47\n\nExtension shall include a certification from the Monitor that a\n\ngood faith basis exists for granting this extension. Prior to\n\nfiling such a Motion ,for Extension, Defendants shall conslllt with\n\nthe United States. If the Defendants fail to implement the terms\n\nof this Settlement on a timely basis, the United States may\n\nappropriate relief from the Court, including immediate injunctive\n\nrelief if Defendants' failure to comply with the Settlement\n\ncreates a condition or practice at MCGe that rises to the level\n\nof an emergency (imminent threat to the health, safety, or life\n\nof a resident or residents) .\n\n3. This Settlement will terminate three years after\n\napproval of this Settlement by the Court. Nothing in this\n\n,Settlement shall preclude early termination of this Settlement\n\nbe\n\nthe three year date if Defendants attain substantial\n\n. compliance with this Settlement (as defined in II . 4 above) before\n\nthe\n\nyear termination date.\n\n4. Any time after aPl?roval of this. Settlement by the Court,\n\nthe parties may seek termination of the Settlement by filing a,\n\nJoint Motion for Termination. If the parties jOintly move for\n\ntermination, termination may be granted without ~ny further\n\nproceedings, and the case will be dismissed with prejudice.\n\nAlternatively, Defendants may file a Motion for Termination once\n\nthey have substantially complied (as defined in. II.4 above) with\n\nthis tlement. If Defendants unilaterally move for\n\n35\n\n\f'. Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 37 of 47\n\n,\ntermination, early dismissal shall bm granted unless the United StateS objects to termination within 90 days after Defendants filed their Motion for Termination. If the United States objects to termination, a hearing shall be held on the Motion for Termination, and dismissal shall not be grantmd un ss Defmndants have substantially complied (as defined in II.4 above) with this\n1ement. 5. Consistent with the Federal Rules of Civil E'roceci'ure,\nthe burden of proof shall be on the movant in any adversarial\nhearing set by the Court.\n6. All staff members <:md other individuals responsible for implementing this Settlement shall be apprised of the contents of this Settlement. This Settlement shall be made available promptly to residents and resident family members upon request. Notices that this Settlement has been entered shall be posted in\n1 resident housing areas. A copy of the Settlement shall be post~d on the Justice Department, Civil Rights Division, Special Litigation Section website.\n7. The parties reserve the right to withdraw cons'ent to this Settlement in the event that this Settlement is not approved by the Court in its entirety.\n8. If any provision of this Settlement, or the application thereof to any person or circumstance, is held invalid after entry of the Settlement, the remainder of ,the Settlement and its\n\n36\n\n\f- - - - - - - - - - - - - - - - - - .....\n\n'.\n\n• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 38 of 47\n\napplication to other persons or circumstances shall not be affected thereby.\n\n9. Except as otherwise expressly provided in this\n\nSettlement, any notice or request to be given hereunder by either party to the other shall be in wri~ing and may be a cted either by personal delivery or by mai~, registered or certified, postage\n\npr id with return receipt requested, Mailed notices shall be\n\naddressed to the parties at the following addresses, but ei the,r\n\nrty may change s not address by providing written notice to the other in accordance with this paragraph.\n\n10. In the event this Settlement is challenged in state or\n\nfederal court, either party may seek removal to federal court.\n\n11. The parties may jointly agree, in writing, to modify this Settlement.\n\n12. Any notice br request that must. be given under this\n\nSettlement in writing by either party to the other may be\n\neffected either by personal delivery, Federal Express, o~ by\n\nmail,\n\nste or certifi , post prepaid with return\n\nreceipt requested.\n\n37\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 39 of 47\n\nAgreed to by:\nCOUNSEL FOR THE UNITED STATES:\nDate: .::z1:;-p , 2005\n\nChristopher United Stat District of New Jersey 970 Broad Street Room 700 Newark, NJ 07102\n\nR_ Alexander Acosta Assistant Attorney General Civil Rights Division\nUnited States Department Of Justice\n\n3.8\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 40 of 47\n\n'.\n\n1 netta Y. Cutlar hief U.S. Department of Justice. Civil Rights Division Special Litigation Section\n\nDeputy Chief Civil Rights Division Special Litigation Section\n\nChristo er N. aheng\nTrial Attorney 0\nU.S. Department of Justice\n.Civil Rights Division Special Litigation Section 601 D. Street N.W. Washington D.C. 20004\n(:2 02) 514 ~ 8.~ 92\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 41 of 47\n\n. \"\n\nCOUNSEL FOR DEFENDANTS - MERCER COUNTY, MERCER COUNTY EXECUTIVE, AND MERCER COUNTY BOARD OF CHOSEN FREEHOLDERS.\n\nDate: 1'l::.11-t , 2004\n•\n\n~~ijSb: Brian M. Hughes County Executive Office of the County Executive Mercer County\nMcDade Administration Building .. 640 S. Broad Street\n. NJ 08611\n\n, Jr. Mercer unt Counsel Mercer Cou Executive's Office McDade Administration Building 640 South Broad Street P.O. Box 8068 Trenton, NJ 08650-0068 (609) 989-6511\nrow eputy county Mercer County Executive's Office McDade Administration Building 640 South Broad Street P.O. Box 8068 Trenton, NJ 08650-0068 (609) 989 6513\n\n40\n\n\f• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005\n\nPage 42 of 47\n\nWHEREFORE, the parties to this action ha~ing agreed to the\n\nprovisions in tha Settlement set forth above, and the Court being\n\nadvi\n\nthe\n\nses, thi~ Settlement is hereby ent\n\nas the\n\norder and judgment of this Court.\n\n~ay It is so ordered, this\n\nof 0 (Y/Vf;eI1-, 20 OS, at Trenton,\n\nNew Jersey.\n\nJudge\n\n41\n\n\f.'~.\n\n• Case 3:05-cv-01122-GEB-TJB Document 4\n\n• Filed 10/18/2005 Page 43 of 47\n\nMONITORING PROTOCOL\n\nThe United\n\n, the County of Mercer and\n\n...-J\n\nin his/her capacity as the Monitor as specified in the Settlement Agreement, captioned:\n\nUni ted States of America, Plaintiff, v. the County of Mercer, etc. Defendartts,\n\nhereby agree that all monitoring called for in the. Settlement Agreement, shall be conducted pursuant to the following terms .and\nconditions:\n\n1. Appligation of settlement A~~eement\n\nA. Pursuant the Settlement Agreement (\"Agreement\") between the united States and the County of Mercer, the Monitor shall monitor and report on the County's substantial compliance or noncompliance with all provisions of the Agreement at the Mercer County Geriatric Center (~MCGC\").\n\nB. All monitoring· shall be done in accoTdance with this Monitoring Protocol (~Protocol\") and the Agreement.\n\nC. To the extent that the Protocol and the Agreement are\n\nlll.UCIIlBi\n\nto one another, all. monitoring shall take place\n\nin accordance with the Agreement.\n\nII. Budget and Payment\n\nA. The costs for the Monitor and his or her consultants; including all expenses, shall not exceed $200,000.00 per fiscal year ·(July 1 to June 30). The budget sball include all\nPage 1 of 5\n\n\f,\n\n• Case 3:05-cv-01122-GEB-TJB Document 4\n\n• Filed 10/18/2005 Page 44 of 47\n\ntravel costs and other expenses. If the Monitor needs additional resources to investigate a death caused by alleged abuse, neglect or improper care I the Monitor will provide written notice to the parties and the County agrees to pay all of the Monitor's reasonable requests for costs, but the reasonable cos I including all travel costs and other expenses, shall not exceed an additional $50,000.00 per year.\nB. The County will arrange for payment of all Monitoring costs upon presentment of monthly, itemized invoices from the Monitor. Travel costs for the Monitor and his/her consultants shall be reimbursed consistent with State and Federal per diem rates and guideline~. The Monitor agrees to provide any and all additional documentation requested by the County in order to facilitate payment to the Monitor.\n\nIII. Monitoring Visits:\nA. lilequla:l: Monitoring Visits; Monitoring shall occur in accordance with the Agreement, two times per year at approximately 6 month intervals and shall be arranged for. dates and at times mutually agreeable to the County and the Monitor. The first visit will occur within 30 days of execution of the settlement Agreement. The County shall not unreasonably fail to agree on the time for Monitor visits.\n\nB. Additional Monito:l: Visit:\n\nIn the event of the death of a resident caused by alleged\n\nabuse, neglect or improper care at MCGC, MCGC.will report the\n\ndeath .to the MOnitor within 5 business days and provide an\n\ninvestigation report with preliminary findings. MCGC's report\n\nwill also include what, if any, addi~ional information is\n\nnecessary for a final conclusion. Based on MCGC's report, the\n\nMonitor may conduct· an additional review prior to the neltt\n\nscheduled review. The scope of the review, including whether\n\ndocument\n\new, in-person or telephone interviews, and/or on-\n\nsight visit are n.ecessary, shall be in the Monitor.' s\n\ndiscretion.\n\n1. If the monitor elects to conduct an additional review pursuant. to this Paragraph, the monitor will give reasonable notice of theadditio~al r~view.\nPage 2 of 5\n\n\f. .\n\n. • Case 3:05-cv-01122-GEB-TJB Document 4\n'\n\n• Filed 10/18/2005 Page 45 of 47\n\nC. Componen~B of Monitoring Visi~s\n1. Matters inquired into during any such monitoring visit, interview or review of records or other documents shall be limited to matters directly addressed in Part IV of the Agreement.\n2. These monitoring visits may include the following, as the Monitor determines is necessary:\na. on-site inspection of MCGC;\nb. interviews with staff, contractors and residents.\ni. The Monitor will work with MCGC to arrange interviews with staff at mutually agreeable times, in an effort not to disrupt the operation of MCGC.\nii. The County may have a MCGC representati;ve present for any interview with staff or contractors unless the Monitor, in her discretion, believes that the presence of a such representative would be detrimental to. the Monitor or her consultant's interview'with staff or contractors.\niii. Any staff member who is a member of a collective bargaining unit, consistent with the contract between the collective bargaining unit and the County, may have a representative present at any interview.\nIV. Monitoring Visits:\nA. If the Monitor determines that the County is not in substantial compliance with a provision of the Agreement, the Monitor shall so state in its written report and provide the factual basis for the findings, including, as . appropriate: identification of residents involved; dates and times of incidents; and/or care, treatment, or services at issue and a summary specifying the documents and records the\nPage 3 of 5\n\n\f• Case 3:05-cv-01122-GEB-TJB Document 4\n\n• Filed 10/18/2005 Page 46 of 47\n\nMonitor reviewed and the interviews the Monitor conducted that support the Monitor's determination.\nB. If the Monitor determines that the County is'in substantial compliance with all prOVisions of the Agreement, the Monitor shall so state and provide the factual basis for the findings, including a summary specifying the documents and records the Monitor reviewed and the interviews the Monitor conducted that support the Monitor's determination.\n\nVI. contact with Monitor by Either Party\nA. The Monitor shall make him or herself and the consultants available for an ex parte meeting or conference call with aither party within a reasonabl,e time from a request for any such meeting or call.\nVI. Modifioation\n\nAny of the provisions of the ~rotocol that do not appear in the Agreement may be modified with the written consent of the ,Uni ted StateB, the County,\" and the Monitor.\n\nRespectfully submitted,'\n\n'Agreed to by the undersigned:\n\nFOR THE UNITED STATES:\n\nK,<m.\nMe~cer County Counsel 640 South Broad Street P.O. Box 8068 Trenton, New Jersey 08650\n(609) 98,9,-6511\n\nR. ALEXANDER ACOSTA Assistant Attorney General Civil Rights Division\nBRADLEY J. SCHLOZMAN Deputy Assistant Attorney General Civil Rights Division\n\nPage 4 of 5\n\n\f, '., \"\n•\n\n• Case 3:05-cv-01122-GEB-TJB\n\nDocument 4\n\n• Filed 10/18/2005 Page 47 of 47\n\n~. AH G. CROWLEY Deputy County Co'\" ...!Oclf 640 South Broad Street P.O. Box 8068 Trenton, New Jersey OB650\n(609) 989-6511\n\nSHANETTAY. CUTLAR Chief Special Litigation Section\nJUDY C. PRESTON Deputy Chief Special Litigation section\n\nCHRISTOPHER N. CHENG\n\nTrial Attorney\n\nU.S. Department of Justice\n\nCivil Rights Division Special\n\nLitigation Section\n\n950 Pennsylvania Avenue, NW Washington, D.C. 20~30\n\n(202) 514-8892'\n\n(202)514-4883 (fax)\n\n,\n\n'\n\nPage 5 of 5\n\n\f", "Case 3:05-cv-01122-GEB-TJB Document 14 Filed 01/09/09 Page 1 of 3 PageID: 254 Case 3:05-cv-01122-GEB-TJB Document 13 Filed 11/21/2008 Page 6 of 9\n\nUNITED STATES DISTRICT COURT FO~ THE P:X:STRIC'l' OP NEW JERSEY\n\nt)lUTED. STATES OF AMER~C,!I., Plaip.tiff,\nv.\nMERCER COUNTY 1 et aJ..\nDefen4ants. (DOCUMENT ELECTRONICALLY FILED)\n\n) ) ) )\n) C;;tJOe No·. 3: 05-CV-01122\n) ) .. ) ) ) ) )\n\nP~OPO~~D ORDER OF CONDITIONAL DISMISSAL\n\nWHEREFORE, the Parties filed and stipulated to a Settlement\n\nAgreement (Agreement) in this case on February 18, 2005;\n\nWHEREFORE, 'the Co).lrt signed and or_dered the ,!l.greement on\n\n\\\nOctober 14, 2005;\n\n·~.\n\n;·.\n\nWHEREFO:\\l.E;\n\n.··\nthe.Agreement was\n\nE;~ritere.d by the\n\nClerk o!\n\nthe\n\nCourt on Octob'er :19, '200\"5;\n\n...,\n\n::\n\n':'\n\nWHEREFORE, VI1.3 of the Agreement-provides that the\n\n.Agreement expired on October 14, 2008, \"tl:lree years after the\n\n[Court' s] approval\" of the Agreement; .\n\nWHEREFORE tho:l Parties have agreed to continue wo'rking\n\ntogether to address disputes arisin~ out of this Agreement;\n\nBOT WHEREFORE the Parties agree that Defendants have made\n\nsignificant prbgress in implementing the ·Agreement;\n\nAND the Parties have jointly filed a Motion for conditional\n\n\fCase 3:05-cv-01122-GEB-TJB Document 14 Filed 01/09/09 Page 2 of 3 PageID: 255 Case 3:05-cv-01122-GEB-TJB Document 13 Filed 11/21/2008 Page 7 of 9\n\nDismissal With One Year of Continued Oversight;\n\nPursuant to Federal Rule of Civil Procedure 4l(a) (2), it is\n\ntherefore ORDERED:\n\n1. This case is hereby conditionally dismissed without\n\nprejudice. 2. The Court's <;lismissal· of this case is conditioned on\nDefendants attaining substantial compliance with the remain;i.n~\n\nprovisions of the Agreement.\n\n3. This ·case· shall. remain on the court's inactive docket.·\n\n4. The Court retains· ju~isdiction over this civil action\n\nand\n\nto\n\nresolve\n\nany\n\ndisputes\n\n·'\narising\n\nout\n\nof\n\nthe\n\nAgree~nt\n\nuntil\n\none year after entry of this Order, This paragraph supersedes\n\n, VII ..3 of the Ag;J:\"eement . ·\n\n5. If any dispute arises in this civil action or under the\n\nAgreement, either Party may file a motion with the court to restore this case to the Court's active docket, and the Co~rt may\n\ngrant any appropriate relief.\n\n6. The services of the court's Monitor are no longer\n\nrequired .. The United States shall continue to have the right to\n\nindependently evaluate conditions at Mercer County Geriatric\n\nCenter. To that end, thepnited· States Department of Justice;\n\nCivil Rights Division, Special Litigation Section (Division),\n\nshall have the.right to conduct .one additional on-site inspection\n\nof the Mercer County Geriatri'<:! CEOnter with the Division's OW!).\n\nexperts.\n\n\fCase 3:05-cv-01122-GEB-TJB Document 14 Filed 01/09/09 Page 3 of 3 PageID: 256 Case 3:05-cv-01122-GEB-TJB Document 13 Filed 11121/2008 Page 8 of 9\n7. Final dismissal of this case shall. continue to be governed by the ~rocess·outlined in·~ VII of the ·Agreement. Final dismissal of this Agreement shall occur one year after. the parties signed the Motion for Cond~tional Pismissal with ·one Year of Continued oversight unless a party has filed a motion to stay dismissal with the Court .\nso. ORDE!mD, t)1is ~..-.tfdf-a, ; o£/-t-}-f-;!14IJJ?.'f\nJersey.\nJudge\n\n\f", "Case 3:05-cv-01122-GEB-TJB Document 18 Filed 08/26/10 Page 1 of 2 PageID: 338 \"' • Case 3:05-cv-01122-GEB-TJB Document 15-8 Filed 08/06/10 Page 1 of 2 PageiD: 328\n\nARTHUR R. SYPEK, JR. (AS1361)\n\nMERCER COUNTY COUNSEL\n\nMcDade Administration Building\n\n640 South Broad Street\n\nPO Box 8068\n\nTrenton, New Jersey 08650\n\n(609)989-6511\n\nAUG 2 6 20t\n\nBY: Sarah G. Crowley, Deputy County Counsel AT ..\n\nO\n\nAttomey(s) for Defendant Mercer County\n\n8l;J,~~M\nC~ 7. WA!..SH LERK\n\nUNITED STATES DISTRICT COURT\n\nFOR THE DISTRICT OF NEW JERSEY\n\nUNITED STATES OF AMERICA,\n\n: CIVIL ACTION NO. 3:05-cv-01122\n\nPlaintiff\n\n: Civil Action\n\nv.\n\nORDER\n\nMERCER COUNTY, et al.,\n\nDefendants.\n\nTHIS MATTER, having been opened to the Court by the Mercer County Counsel's\n\nOffice, attorneys for Defendant, Mercer County, Sarah G. Crowley, Deputy County Counsel\n\nappearing, on Notice of Motion for Dismissal of Plaintiffs Complaint against Defendants Mercer\n\nCounty, and the Court having reviewed the moving and opposing papers and good cause having\n\nbeen shown,\n\nJl.\n\nI r IT IS on this ). ' day of WGtt s\n\n'2010\n\nORDERED that Plaintiffs Complaint against Defendant Mercer County, is hereby\n\ndismissed with prejudice, and;\n\nIT IS FURTHER ORDERED that a copy of this Order shall be served upon all counsel\n\n\fCase 3:05-cv-01122-GEB-TJB Document 18 Filed 08/26/10 Page 2 of 2 PageID: 339 • Case 3:05-cv-01122-GEB-TJB Document 15-8 Filed 08/06/10 Page 2 of 2 PageiD: 329\nof record within seven (7) days from the date hereof.\n\n\f", "Case: 3:05-cv-1122 As of: 08/09/2013 10:44 PM EDT 1 of 3\nU.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:05−cv−01122−GEB−TJB\n\nCLOSED\n\nUNITED STATES OF AMERICA v. MERCER COUNTY, NEW JERSEY et al Assigned to: Judge Garrett E. Brown, Jr Referred to: Magistrate Judge Tonianne J. Bongiovanni Cause: 42:1983 Civil Rights Act\nPlaintiff\n\nDate Filed: 02/18/2005 Date Terminated: 11/29/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff\n\nUNITED STATES OF AMERICA\n\nrepresented by CHRISTOPHER N. CHENG U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION − SPECIAL LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20530 (202) 514−8892 Email: christopher.cheng@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nCHRISTOPHER JAMES CHRISTIE UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW JERSEY 970 BROAD STREET SUITE 700 NEWARK, NJ 07102 (973) 645−2890 Email: christopher.christie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nV. Defendant MERCER COUNTY, NEW JERSEY\nDefendant BRIAN M. HUGHES Mercer County Executive\nDefendant APRIL AARONSON Director of Mercer County Department of Human Services\n\nrepresented by SARAH G. CROWLEY OFFICE OF THE MERCER COUNTY COUNSEL MCDADE ADMINISTRATION BUILDING 640 SOUTH BROAD STREET PO BOX 8068 TRENTON, NJ 08650−0068 (609) 989−6511 Email: scrowley@mercercounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED\nrepresented by SARAH G. CROWLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED\nrepresented by SARAH G. CROWLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\n\fCase: 3:05-cv-1122 As of: 08/09/2013 10:44 PM EDT 2 of 3\n\nDefendant\nROBERT F. ECROYD Administrator of the Mercer County Geriatric Center\n\nrepresented by SARAH G. CROWLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nDate Filed 02/18/2005\n08/04/2005\n08/04/2005 10/18/2005 11/22/2005 11/29/2005 11/29/2005 08/29/2006 08/30/2006 12/21/2006 12/21/2006 10/10/2007 05/16/2008 11/21/2008 11/24/2008\n\n# Docket Text\n1 COMPLAINT against MERCER COUNTY, NEW JERSEY, BRIAN M. HUGHES, APRIL AARONSON, ROBERT F. ECROYD ( Filing fee $0 ), filed by UNITED STATES OF AMERICA. (Attachments: (1) Exhibit Settlement)(tp ) (Entered: 03/01/2005)\n2 STIPULATION of Settlement by UNITED STATES OF AMERICA. (Attachments: # 1 Attachment − Joint Motion# 2 Text of Proposed Order Proposed Settlement Order# 3 Proposed Monitor's c.v.)(CHENG, CHRISTOPHER) (Entered: 08/04/2005)\n3 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 2 Stipulation (Amended cert. of service) (CHENG, CHRISTOPHER) (Entered: 08/04/2005)\n4 STIPULATION &ORDER OF SETTLEMENT. Signed by Judge Garrett E. Brown, Jr. on 10/14/05. (ij). (Entered: 10/19/2005)\n5 Letter from Christopher Cheng (US Dept. of Justice − Civil Rights Division). (Attachments: # 1 Text of Proposed Order to Appoint Marie Boltz as Monitor)(CHENG, CHRISTOPHER) (Entered: 11/22/2005)\n***Civil Case Terminated pursuant to 4 STIPULATION &ORDER OF SETTLEMENT. Signed by Judge Garrett E. Brown, Jr. on 10/14/05. (ms) (Entered: 11/29/2005)\n6 ORDER appointing Marie Boltz as the monitor in this case. Signed by Judge Garrett E. Brown, Jr. on 11/28/05. (ck ) (Entered: 11/29/2005)\n7 STATUS REPORT (Monitor's Report) by UNITED STATES OF AMERICA. (Attachments: # 1)(CHENG, CHRISTOPHER) (Entered: 08/29/2006)\n8 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 7 Status Report (Amended Certificate of Service) (CHENG, CHRISTOPHER) (Entered: 08/30/2006)\n9 NOTICE by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Monitor's Second Report)(CHENG, CHRISTOPHER) (Entered: 12/21/2006)\n10 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 9 Notice (Other) (Amended certificate) (CHENG, CHRISTOPHER) (Entered: 12/21/2006)\n11 NOTICE by UNITED STATES OF AMERICA Submission of Monitor's Third Status Report (Attachments: # 1 Exhibit Monitor's Third Status Report)(CHENG, CHRISTOPHER) (Entered: 10/10/2007)\n12 STATUS REPORT by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Monitor's March 21 2008 Report)(CHENG, CHRISTOPHER) (Entered: 05/16/2008)\n13 MOTION to Dismiss Conditionally with One Year of Continued Oversight by UNITED STATES OF AMERICA. (CHENG, CHRISTOPHER) (Entered: 11/21/2008)\n13 MOTION to Dismiss Conditionally with One Year of Continued Oversight set for 12/15/08 will be decided on the papers before Chief Judge Garrett E. Brown, Jr. No appearance required unless notified by the Court. (ij, ) (Entered: 11/24/2008)\n\n\fCase: 3:05-cv-1122 As of: 08/09/2013 10:44 PM EDT 3 of 3\n\n01/09/2009 08/06/2010\n08/09/2010\n08/09/2010 08/09/2010 08/25/2010 08/26/2010\n\n14 ORDER granting 13 Motion to Dismiss. Signed by Chief Judge Garrett E. Brown, Jr. on 1/7/09. (ij, ) (Entered: 01/09/2009)\n15 MOTION to Dismiss by APRIL AARONSON, ROBERT F. ECROYD, BRIAN M. HUGHES, MERCER COUNTY, NEW JERSEY. Responses due by 8/24/2010 (Attachments: # 1 Brief, # 2 Certification of Sarah G. Crowley, # 3 Exhibit A pages 1−10, # 4 Exhibit A pages 11−23, # 5 Exhibit A pages 24−41, # 6 Exhibit B, # 7 Exhibit C, # 8 Text of Proposed Order, # 9 Certificate of Service)(CROWLEY, SARAH) (Entered: 08/06/2010)\nCLERK'S QUALITY CONTROL MESSAGE − The Brief attached to the Motion to Dismiss 15 appears to be incomplete. Counsel is advised to review the attachment and if the document is incomplete to please RESUBMIT THE INCOMPLETE DOCUMENT ONLY. This message is for informational purposes only. (gxh) (Entered: 08/09/2010)\nSet Deadlines as to 15 MOTION to Dismiss. Motion set for 9/7/2010 before Chief Judge Garrett E. Brown, Jr.. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 08/09/2010)\n16 Letter from Sarah G. Crowley to Hon. Garrett E. Brown, U.S.D.J. re 15 MOTION to Dismiss. (CROWLEY, SARAH) (Entered: 08/09/2010)\n17 RESPONSE to Motion re 15 MOTION to Dismiss filed by UNITED STATES OF AMERICA. (CHENG, CHRISTOPHER) (Entered: 08/25/2010)\n18 ORDER granting 15 Motion to Dismiss; that Pltf's Complaint against Deft Mercer County is dismissed with prejudice. Signed by Chief Judge Garrett E. Brown, Jr. on 8/26/2010. (gxh) (Entered: 08/26/2010)\n\n\f", "Findings Letter for Mercer County Geriatric Center\n\nPage 1 of 9\n\nRobert D. Prunetti County Executive 640 South Broad Street P.O. Box 8068 Trenton, NJ 08650-0068\nRe: CRIPA Investigation of Mercer County Geriatric Center\nDear Mr. Prunetti:\nOn December 10, 2001, we notified you that we were investigating the Mercer County Geriatric Center (MCGC) pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. Consistent with statutory requirements, we are now writing to advise you of our findings, supporting facts, and recommended remedial measures, pursuant to 42 U.S.C. § 1997b(a)(1).\nUnfortunately, Mercer County officials declined to cooperate with this investigation. They refused to turn over any documents, allow access to the facility, or permit any on-site witness interviews. Mercer County's conduct is unusual in this regard. Most government officials cooperate with CRIPA investigations because they recognize that protecting the rights of institutionalized citizens warrants a thorough and impartial review.\nWe met promptly with County officials to explain the reasons for our investigation and its procedures. We then also communicated repeatedly with County officials in an effort to convince them that cooperation was in the public interest and could only improve the fact-finding process. If the County had agreed to our proposed investigation procedures, County officials would have had an early opportunity to work directly with our experts and staff. They also would have had an opportunity to address any identified problems on a voluntary basis at an early stage of this investigation. County officials declined, however, to provide even the most basic policies and procedures, access to staff, or even exculpatory documents. Most recently, County officials, through their attorney, Harry G. Parkin, interfered with our access to the residents themselves. These residents are all independent witnesses, and your counsel offered no legal basis for such an unusual act.\nAs we repeatedly advised you and your counsel, however, our investigations proceed regardless of whether officials choose to cooperate. Indeed, when CRIPA was enacted, lawmakers considered the possibility that local officials might not assist a federal investigation. Such non-cooperation is a factor that may be considered adversely when drawing conclusions about a facility. We now draw such an adverse conclusion. The County's non-cooperation is, however, only one factor that we have considered in preparing our statutory findings and recommendations. We have also considered federal and state survey information, news articles, medical records, family interviews, private attorney and advocate interviews, and publicly available data.\nAccording to our information, MCGC houses approximately 200 residents and has a 240-bed capacity. MCGC participates in both Medicare and Medicaid and provides nursing home services for an elderly population with significant medical problems. Approximately 57% of the residents are incontinent, 26% have restricted joint motion, 38% need help in eating, and 35% have behavioral symptoms. (1)\nUnder the United States Constitution and federal law, nursing home residents have a right to reasonably safe living conditions, adequate health care, restorative and rehabilitative care services, freedom from unreasonable restraints, and a treatment setting that is the most integrated and appropriate based on individual resident needs. See United States Constitution Amendments I, XIV; Youngberg v. Romeo,\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 2 of 9\n\n457 U.S. 307 (1982); Olmstead v. L.C., 527 U.S. 582 (1999). Federal statutes governing the operation of nursing homes and their implementing regulations create similar rights. See, e.g., Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (Section 504); Grants to States for Medical Assistance Programs (Medicaid) 42 U.S.C. § 1396r; Health Insurance for Aged and Disabled (Medicare) 42 U.S.C. § 1395i-3; 42 C.F.R. § 483 Subpart B.\nBased upon our investigation, we find that Mercer County has violated the federal rights of MCGC residents.\nI. MCGC residents are exposed to unsafe living conditions.\nMercer County does not maintain sanitary and safe living conditions at MCGC.\nFirst, the facility does not maintain sanitary living conditions. Family members report finding feces on the fingernails of their relatives, unchanged diapers, a stench in living areas, and dirty sheets. On more than one occasion, state surveyors cited MCGC for failing to serve food at temperatures that are safe from food-borne pathogens. Surveyors have also noted concerns with staff hand-washing practices, disinfection techniques, tuberculosis prevention, and infection control investigations. For instance, surveyors observed improper cleaning of an incontinent resident. The surveyors noted that the resident's sacrum and buttocks were covered with feces. Staff changed a wound dressing and rinsed the area with some saline solution. They did not, however, use soap and water to disinfect. This resident had only recently been hospitalized for septic shock and dehydration. These types of problems have appeared in a number of surveys and been identified by a number of sources.\nSecond, the facility fails to ensure residents' personal safety. Staff have left residents, including those with mobility and mental impairments, completely unattended for long periods of time. Staff inattention in general results in serious accidents, falls and unexplained injuries. For example, one visiting family member repeatedly found her relative lying on the floor of the facility. On at least one occasion, the resident wandered out of the facility itself. From the time another resident entered the facility to the time of her discharge, she suffered from numerous falls, bone fractures, and unexplained injuries. One time, the resident was dropped on her head while being moved. How this could happen if staff had been attentive was never explained satisfactorily to the resident's relatives. In a third example, a family member used to visit at odd hours, only to find her unattended relative lying in urine, with parts of her naked body exposed. This family member also noted unexplained skin bruises.\nThese types of personal safety problems extend beyond mere resident neglect. MCGC also has problems with staff verbal abuse and the unexplained disappearance of residents' personal belongings. Residents' glasses, dentures, bedding, and other personal possessions reportedly disappear, and then the facility staff fail to investigate adequately or remedy the situation. Visitors have observed that staff inappropriately berate residents who rely on those staff for their daily care.\nII. MCGC residents do not receive adequate medical and mental health care.\nMCGC medical staff fail to assess and treat residents properly for potentially serious medical and mental health problems. When basic medical care is not provided, fragile geriatric residents often face increased risk of harm from their medical conditions and inappropriate medication practices.\nFor instance, during a recent inspection, surveyors reported that MCGC staff did not obtain information required to develop individualized, comprehensive treatment plans to address resident weight loss and\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 3 of 9\n\ndehydration. Another survey found problems with treatment and prevention of bedsores. A number of sources report residents with deep, bleeding bedsores, infections, and other potentially life-threatening conditions. In a nursing home, it is essential that staff take vigorous action to prevent and treat such conditions.\nMCGC's weakness in assessing and treating serious medical conditions also includes the treatment of mental health problems. Many nursing home residents have dementia, schizophrenia, and other psychiatric diagnoses. Where warranted, appropriate mental health care and review should be closely integrated into the resident's general care plan. We noted deficiencies at MCGC in the documentation and drug practices associated with treating such mental illnesses. For instance, a resident was kept on the same drug regimen for an extended period of time without adequate justification in the resident record. A state survey suggests that the facility staff fail to appreciate how resident mental health issues may act as a contributing factor to other medical problems. In one case, a resident with possible depression lost approximately 22% percent of her body weight. MCGC social services recommended a psychiatric evaluation, but the facility staff failed to respond in a timely manner. In a second case, a resident also exhibited symptoms of weight loss and depression. Yet, in both cases, MCGC staff apparently failed to follow-up on the symptoms of depression by conducting prompt, comprehensive causal assessments and appropriate professional intervention.\nInadequate medication practices contribute to problems with medical and mental health care. MCGC staff have failed to provide adequate pain medication to some residents; provided medications without adequate monitoring of their effects; and prescribed or terminated medications to residents for reasons that are not supported by resident medical data. A number of examples illustrate this problem. For instance, staff prescribed Zyprexa to one resident for restlessness, delusions, and self-injury. Yet, when asked by surveyors, staff could not explain what delusions the resident actually experienced, nor could they identify any examples of resident self-injury. If the medication was for restlessness only, that would be an inappropriate reason in this case for prescribing an anti-psychotic medication. In another example, a resident had to take medications through a gastrostomy tube. Inspectors noticed however that the medication nurse administered medications and food to this resident without properly checking that the tube was actually in place. This failure was cited as a departure from basic standards of practice. In a third example, surveyors discovered medical staff were giving a resident two different medications on a daily basis, despite a physician's order to the contrary.\nIII. MCGC residents are denied rehabilitation, restorative care, and freedom from unreasonable restraints.\nWhen a facility lacks comprehensive assessment, rehabilitation, and restorative treatment programs, residents are more likely to lose their living skills. When treatment options are limited and as a resident's condition deteriorates, nursing home staff sometimes rely on inappropriate restraints as a substitute for treatment. MCGC denies residents rehabilitation and restorative care, and instead relies on inappropriate restraints.\nWhile MCGC residents may have access to some recreational programs, the facility does not always develop the individualized restorative care and rehabilitation programs needed to maintain or improve resident functioning. For example, a resident entered the facility able to walk, eat, and use the bathroom with little or no staff assistance. Within a few days of his admission, however, MCGC staff obtained a physician's order to keep the resident in bed with side rails and a bed alarm. No assessment was made to justify the use of these measures. Even as the resident's physical condition declined, the treatment team failed to develop a plan to try to help the resident regain his former functional level. In the month after his arrival, the resident lost seventeen pounds and developed pressure sores. Shortly afterwards, the resident had to be hospitalized.\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 4 of 9\n\nSecond, staff sometimes rely on inappropriate restraints instead of providing appropriate, individualized, interdisciplinary care. Data reported by MCGC itself suggests restraint usage rates at least two times the State average. Staff routinely restrain residents while the staff engage in various tasks. For instance, one resident was frequently tied to his chair. He apparently beat on the arms of the chair so often that his arms were constantly bloodied. In addition to physical restraints, some reports indicate the inappropriate use of medication as restraints. Both physical and chemical restraints are inappropriate when they are used for the convenience of staff.\nIV. MCGC mealtime assistance, nutrition, and hydration practices are not adequate.\nMCGC's own data suggests that some 38% of MCGC residents are very dependent on staff for mealtime assistance. A breakdown in the facility's system for feeding residents therefore exposes large numbers of residents to serious risk of harm. While feeding issues are often complicated in a geriatric population, MCGC has failed to develop consistent and appropriate nutrition and hydration plans.\nThus, we have reports of residents losing ten percent or more of their body weight after just a month's stay in MCGC. Even as they lost such large amounts of weight, staff failed to develop appropriate intervention and feeding assistance plans. We have reports of residents who could not get a drink of water because staff failed to assist with their hydration.\nMCGC administrators and staff have long been aware of deficiencies with the facility's nutrition and hydration practices. State surveyors have repeatedly advised Mercer County officials of a number of incidents. For example, there have been at least two hospitalizations identified in recent state survey reports regarding residents who suffered from dehydration and other problems. Our own review of resident deaths found signs of improper nutrition and malnourishment in some cases. Separately, one of our sources reported the case of a resident with an improperly positioned feeding tube. This resident slowly starved without adequate MCGC staff intervention.\nIn one particularly serious incident, staff fed a resident so quickly, she aspirated and died. Emergency room hospital physicians pumped a significant volume of food from the resident's lungs. If staff are properly trained in feeding practices and sensitive to residents' mealtime assistance needs, it is difficult to explain how such an incident could occur. This incident took place in January 2002, just weeks after we met with County officials to request their cooperation in our CRIPA investigation. County officials have continued to ignore all of our requests for information pertaining to such resident deaths.\nV. MCGC residents are not treated in the most integrated setting appropriate to individual resident needs.\nUnder federal law, MCGC residents have the right to be treated in the most integrated setting appropriate to their individual needs. At MCGC, however, staff make little effort to identify options for providing more integrated treatment settings. When combined with a failure to develop restorative treatment programs, MCGC's failure to address the integration issue may result in the unnecessary institutionalization of some residents. Alternatively, it may result in excessively segregated treatment within a nursing home setting.\nOur sources report little discussion by treatment teams regarding resident discharge issues, and the treatment meetings themselves do not include family members on a regular basis. Treatment plans also reflect the lack of an interdisciplinary approach.\nWhen discharge and hospitalization decisions take place without adequate planning, inappropriate and\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 5 of 9\n\npotentially dangerous situations may arise. For instance, in one case, lack of thorough discharge planning may have resulted in the premature discharge of a resident whose medical condition was still very fragile. After this resident was sent home, a visiting nurse complained that the resident needed emergency hospitalization. In another example, MCGC delayed providing a highly-functional resident who was deaf with interpreter services for nearly a year. If that resident was a candidate for services at home or in another community setting, this failure to accommodate a disability effectively resulted in the lengthy and improper segregation of the resident from society.\nVI. Staffing, administration, and policy deficiencies contribute to inadequate care.\nOur concerns about deficiencies with respect to resident care are heightened by a number of other systemic issues.\nFirst, MCGC has staffing issues that contribute to deficiencies in care. Nurse staffing is a particular weakness at this facility. Our data indicates that MCGC registered nurse staffing levels fall well below the state average. Complaints about inadequate nurse response times, gaps in physician and psychiatrist oversight, and the County's unwillingness to share staffing data all evidence significant staffing problems.\nSecond, the County's policy towards residents' civil rights also causes us concern. While we recognize that jurisdictions may have legitimate reasons to monitor access to their facilities, Mercer County has gone one step further. They recently have denied us access to the residents themselves. As we have explained to the County in separate correspondence, interfering with communications between residents and federal officials is a violation of both federal law and state policy. See United States Constitution Amendments I, XIV; In re Quarles 158 U.S. 532, 535-36 (1895) (discussing right of citizens to communicate with federal law enforcement officials regarding violations of federal law); Lutz v. City of York, 899 F.2d 255, 263-266 (3rd Cir. 1990) (noting strict limits on State's ability to interfere with transactions between United States government and its citizens); see, e.g., Johnson v. Avery, 393 U.S. 483, 485 (1969) (institutionalized persons retain freedom to petition government for redress of grievances); see, also, New Jersey Rules of Professional Conduct Rules 3.4, 4.4. Residents do not lose their civil rights simply because they rely on the County for care. The County's approach towards the residents and their families is problematic. Such an approach can reflect or result in an institutional environment that places institutional interests over resident rights.\nMINIMUM REMEDIAL MEASURES\nIn order to remedy the identified deficiencies and to protect the constitutional and federal rights of MCGC residents, MCGC should implement, at minimum, the following measures:\nI. Resident safety and living conditions.\nA. Regularly provide pre-service and in-service training for staff on resident care procedures. Such training must address general resident supervision, wound treatment, resident hygiene, and infection control. Facility management and medical administrators must begin direct and vigorous monitoring of the direct care staff's actual resident care practices and policy compliance. More particularly, training and procedures must address implementation of individualized resident care plans, cleaning and prevention of bedsores, communicable disease prevention, catheter use, hand-washing, facility maintenance, resident grooming, and prevention of injuries.\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 6 of 9\n\nB. Ensure that individual staff are specifically trained on the needs and treatment of residents in their care. Staff must be evaluated in part on their compliance with care plans, and competency-based training must be incorporated into facility policies.\nC. Ensure that staff routinely assist residents with their personal hygiene needs as necessary under their treatment and care plans. Where professionally indicated, such services must include assistance with toileting, dressing, and bathing.\nD. Develop and implement meaningful incident review, peer review, and quality improvement procedures to allow investigation and follow-up of significant nursing home incidents. Issues to be targeted specifically, but not exclusively, include resident deaths, abuse, neglect, falls, unexplained injuries, property loss, medication errors, infectious disease transmission, and training failures. Injury, abuse, death, and infection trends must be fully investigated, and emerging issues must be identified and addressed. While individual staff accountability is a component of any staff oversight and quality improvement process, any such process must also identify systemic deficiencies and facility-wide remedies to address such deficiencies.\nII. Medical and mental health care.\nA. Provide nursing home residents with comprehensive, clinically defensible, and individualized treatment for their medical and mental health conditions.\n1. Base medication prescriptions, behavioral interventions, and other treatment on thorough resident assessments, valid and reliable data, clearly established goals, and professionally justified diagnoses.\n2. Develop comprehensive treatment plans that are individualized for each resident. Such plans must address residents' medical, mental health, nursing, disability, communication, discharge planning, and daily activity issues. Plans must be developed by an interdisciplinary team that has representatives from all appropriate disciplines, including physicians, psychologists, psychiatrists, nurses, therapists, direct care aides, nurses, and social workers. This treatment planning process must be an ongoing one for each resident. Staff must monitor the effectiveness of treatment and update treatment plans regularly.\n3. Document treatment plans, behavioral programs, progress notes, medical orders, and other information in resident medical records as required by professional standards. Reliable, valid data must underlie treatment and behavioral planning decisions, and staff must be trained on proper documentation and data collection.\nB. Conduct mortality reviews on all deaths that have occurred at MCGC in the last three years. Mortality reviews must be conducted by qualified, independent medical professionals. Mortality reviews must also be conducted regularly as part of any staff oversight and quality improvement program. MCGC must take appropriate corrective action based upon those reviews.\nC. Conduct regular, comprehensive audits of medication use at MCGC. Qualified, independent medical professionals must be retained to target specifically any inappropriate\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 7 of 9\n\npoly-pharmacy, clinically indefensible prescriptions, or problems with medication distribution and monitoring.\nIII. Rehabilitation, restorative care, and freedom from excessive restraints.\nA. Develop rehabilitation and restorative care programs to help residents improve or maintain levels of functioning, ensure resident safety, and protect against excessive restraints. These programs must be part of an integrated, individualized treatment process, and must reflect interdisciplinary planning.\n1. Develop rehabilitation and restorative care planning, policies, and protocols through structured procedures that allow facility-wide adoption and participation.\n2. Tailor treatment plans to a resident's individual treatment goals, desires, interests, and lifestyle preferences.\n3. As with resident treatment in general, monitor rehabilitation and restorative care plans for effectiveness and update regularly.\nB. Implement policies to prevent inappropriate restraints. These policies must include safeguards against clinically indefensible restraint orders, prohibition and deterrence of unauthorized restraint use, development of behavioral support programs, and improved monitoring of individual and system-wide restraint use.\n1. Consistent with professional standards, make every reasonable effort to reduce the use of restraints at MCGC. Restraints must never be used for the convenience of staff.\n2. At a minimum, limit restraints only to emergency situations as permitted by professional standards. If restraints are required, staff must promptly obtain necessary physician authorization. Physicians and nursing managers must also personally and frequently review such orders during the period a resident is restrained.\n3. Document properly all restraint usage at MCGC. Such documentation must include records on how often a resident was checked and the reasons for placing the resident in restraints. The documentation must also include clear criteria establishing when a resident should be released from restraints. Aggregate and trend data must be collected and incorporated into facility staff oversight and quality improvement processes.\n4. Require treatment teams to review and address causal factors, including behavioral issues, that result in the restraint of a resident.\n5. Develop policies and procedures to prevent the inappropriate use of medications as restraints. Oversight of inappropriate staff restraint usage must include review of physicians who prescribe psychotropic and sedative medications without professional justification.\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 8 of 9\n\n6. Prohibit use of any restraint methods that do not meet professional standards and have not been approved in advance by qualified medical management staff.\nIV. Mealtime assistance, resident nutrition, and hydration practices.\nA. Regularly assess residents for dehydration, weight loss, and swallowing difficulties. Appropriate mealtime assistance, nutrition, and hydration plans must be developed and implemented. Necessary therapeutic positioning and functional seating programs must be developed for residents to facilitate feeding.\nB. Carefully train and supervise staff in the implementation of nutrition and hydration plans. Training must include competency-based training on mealtime procedures, supplemented with quality monitoring of mealtimes. Only staff who have demonstrated competency with an individual's mealtime plan may provide assistance to that individual.\nC. Ensure that the kitchen prepares and serves meals in a safe manner.\nV. Community integration and ADA.\nA. Assess residents to determine whether placement in the facility constitutes placement in the most integrated setting appropriate to individual needs. These assessments must be conducted in a manner consistent with a facility-wide policy and professional standards. Assessments must occur at admission and periodically during any resident's stay. If a more integrated setting would appropriately meet an individual's needs, MCGC must develop promptly a transition plan that includes clear target dates, measurable goals and outcomes, training and transition strategies, and responsible staff. Discharge and transition planning must be closely integrated into individual treatment plans. MCGC must identify barriers to discharge, make reasonable efforts to address such barriers, and follow-up on discharged residents in order to improve the quality of the discharge process.\nB. Make a greater effort to include re\nsidents and family members in the treatment and discharge planning process.\nC. Provide reasonable accommodations for disabilities to ensure meaningful participation in treatment and activities by residents with disabilities.\nVI. Staffing, administration, and policy.\nA. Retain sufficient numbers of qualified registered nurses, aides, licensed practical nurses, therapists, nutritionists, social workers, psychologists, psychiatrists, and physicians to provide adequate care.\nB. Develop and implement accurate and reliable systems for identifying problems with individual resident care, problems with facility-wide practices, and root causes for serious incidents. Incidents must be reported accurately to all appropriate federal, state, and local officials.\nC. Maintain accurate, current, complete, and organized records on resident care. The quality assurance procedures must address the quality and accuracy of records.\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\fFindings Letter for Mercer County Geriatric Center\n\nPage 9 of 9\n\nD. Fully protect residents' legal rights, including their First Amendment right to communications with government officials. Mercer County must allow residents to meet with governmental and legal representatives.\nWe invite the County to discuss with us these remedial recommendations, with the goal of remedying the identified constitutional and statutory violations without resort to litigation. In the event we are unable to reach a resolution regarding our concerns, we are obligated to advise you that the Attorney General may initiate a lawsuit pursuant to CRIPA, to correct deficiencies or otherwise protect the rights of MCGC residents, 49 days after the receipt of this letter.\n42 U.S.C. § 1997b (a)(1). Accordingly, we will soon contact County officials to discuss in more detail the measures that the County must take to address the deficiencies identified in this letter. (2)\nSincerely,\nRalph F. Boyd, Jr. Assistant Attorney General\ncc: Harry G. Parkin, Esq. Chief of Staff Mercer County Executive's Office\nSylvia Mulraney Acting Director of Human Services Mercer County Department of Human Services\nDonald E. Lynch Mercer County Geriatric Center Hospital Administrator\nChristopher J. Christie United States Attorney District of New Jersey\n\n1. While we presume these figures are correct, they are based principally on self-reported data. Because MCGC has demonstrated an unwillingness to assist with fact-finding and may not have in place the systems necessary to identify accurately residents with serious needs, we are concerned that problems are under-reported.\n2. We understand that Mr. Parkin, your Chief of Staff, is serving as counsel due to the fact that your County Attorney, Alfred Vuocolo, has a conflict of interest in this matter.\n\nhttp://www.usdoj.gov/crt/split/documents/mercercounty.htm\n\n8/3/2007\n\n\f" ]
Pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, the Civil Rights Division of the U.S. Department of Justice ("DOJ") conducted an investigation of conditions at the Mercer County Geriatric Center ("MCGC"), a public nursing home facility in New Jersey, evidently operated by Mercer County. The investigation resulted in an October 9, 2002, findings letter being sent to the County Executive. The letter stated that in December 2001, DOJ advised county officials of its intent to conduct an investigation of the facility pursuant to CRIPA authority, but the county and its counsel wholly declined to cooperate in the investigation. The investigation occurred nonetheless, even though the county's attorney interfered with the investigators' access to the MCGC's residents. The letter stated that non-cooperation is one factor considered adversely when drawing conclusions about a facility, but the DOJ explained it also relied upon federal and state survey information, news articles, medical records, family interviews, private attorney and advocate interviews, and publicly available data. The letter advised that the DOJ's investigation led it to find that certain conditions at MCGC violated residents' federal rights, in that (1) Mercer County did not maintain sanitary and safe living conditions at MCGC; (2) MCGC residents did not receive adequate medical and mental health care; (3) MCGC residents were denied rehabilitation, restorative care, and freedom from unreasonable restraints; (4) MCGC mealtime assistance, nutrition, and hydration practices were not adequate; (5) MCGC residents were not treated in the most integrated setting appropriate to individual resident needs; and (6) staffing, administration, and policy deficiencies contributed to inadequate care at MCGC. Among the policy deficiencies listed was the county's denial of MCGC residents' First Amendment right to communicate with federal officials who were conducting the CRIPA investigation. The DOJ findings letter proposed remedial actions to remedy the deficiencies, invited the county to address the issues, and alerted the county to the possibility of a CRIPA lawsuit brought by the United States to compel remedial action. Negotiations evidently followed, because the county and the DOJ eventually entered into a settlement agreement obligating the county to improve a wide range of policies and practices at MCGC. The settlement contained substantive provisions addressing (A) assessment and care planning, (B) restraints and medication usage, (C) mealtime assistance, resident nutrition, and hydration practices, (D) therapeutic activities, rehabilitation, and restorative care, (E) mental health care, (F) treatment in the most integrated setting appropriate to individualized needs, and (G) management, oversight, and training. The settlement allowed for DOJ and its' consultants to retain access privileges to MCGC, its residents, and documents and records, for monitoring and technical assistance purposes, as well as to have access privileges to alternative placement settings. Further, the agreement called for the county to fund a jointly agreed-upon monitor. The county had 180 days to implement the changes called for in the settlement document which, by its terms, expired in three years. Attorneys for the county signed the agreement on December 28, 2004, followed by relevant DOJ officials' signatures being added on February 18, 2005, when the document and its attached monitoring protocol were received by the U.S. District Court for the District of New Jersey. The same date, the United States filed its complaint against the county and its subdivision and officials responsible for the operation of the MCGC. The CRIPA-based complaint sought declaratory and injunctive relief, citing the deficiencies at MCGC and alleging that the defendants' conduct violated residents' federal constitutional, statutory, and regulatory rights, including those provided by the First and Fourteenth Amendments, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the nursing home reform provisions of the Omnibus Budget and Reconciliation Act of 1987, 42 U.S.C. §§ 1395i-3 and 1396r, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (and implementing regulations). District Judge Garrett E. Brown, Jr., signed the settlement as the order and judgment of the court October 14, 2005. The judge's unpublished order of November 29, 2005, appointed Marie Boltz as monitor in the case. Her subsequent reports were attached as part of the United States' status reports to the court on the case. On Nov. 24, 2008, the parties jointly moved to conditionally dismiss the case with one year of oversight in response to the defendants' progress implementing the settlement agreement. The court granted the motion on Jan. 9, 2009. The defendants moved to dismiss the case on Aug. 6, 2010, which the court granted later that month. The case is closed.
Pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, the Civil Rights Division of the U.S. Department of Justice ("DOJ") conducted an investigation of conditions at the Mercer County Geriatric Center ("MCGC"), a public nursing home facility in New Jersey, evidently operated by Mercer County. The investigation led the DOJ to find that certain conditions at MCGC violated residents' federal rights. The parties settled and the case is now closed.
NS-CA-0021
[ "Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 1 of 11\n\n1 Marcia Hofmann (SBN 250087)\nLaw Office of Marcia Hofmann 2 25 Taylor Street\nSan Francisco, CA 94102 3 Telephone: (415) 830-6664\nmarcia@marciahofmann.com 4\nD. Victoria Baranetsky (pro hac vice application pending) 5 FREEDOM OF THE PRESS FOUNDATION\n601 Van Ness Ave., Suite E731 6 San Francisco, CA 94102\nTelephone: (415) 767-5566 7 victoriabaranetsky@gmail.com\n\n8 Attorneys for Plaintiff\nFREEDOM OF THE PRESS FOUNDATION 9\n\n10\n\nUNITED STATES DISTRICT COURT\n\n11\n\nFOR THE NORTHERN DISTRICT OF CALIFORNIA\n\n12\n\nSAN FRANCISCO DIVISION\n\n13 FREEDOM OF THE PRESS FOUNDATION, )\n\n)\n\n14\n\n15\n\nv.\n\nPlaintiff,\n\n) COMPLAINT FOR INJUNCTIVE\n\n) )\n\nRELIEF\n\n)\n\n16 UNITED STATES DEPARTMENT OF\n\n) )\n\n17 JUSTICE,\n\n)\n\n)\n\n18\n\nDefendant. )\n\n)\n\n19\n\n20\n\n1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,\n\n21 for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of\n\n22 records requested from the Federal Bureau of Investigation concerning the procedures by which the\n\n23 Bureau issues National Security Letters and exigent letters to investigate members of the press.\n\n24 There is no dispute that the requested records concern a matter about which there is “[a] matter of\n\n25 widespread and exceptional media interest in which there exist possible questions about the\n\n26 government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R.\n\n27 § 16.5(d)(1)(iv). Therefore, Plaintiff is statutorily entitled to the expedited treatment it seeks.\n\n28\n\n-1-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 2 of 11\n\n1\n\nPARTIES\n\n2\n\n2. Plaintiff Freedom of the Press Foundation (“FPF”) is a non-profit organization\n\n3 established under the laws of the State of California, with its primary office in San Francisco,\n\n4 California. The organization’s mission is to advocate for government transparency and\n\n5 accountability by preserving the rights guaranteed to the press under the First Amendment and\n\n6 fortifying the public’s right to know. As part of that mission, FPF campaigns for policy changes to\n\n7 protect members of the media, educates the public about government protocols and procedures\n\n8 involving the press, and supports the development of technology to protect investigative\n\n9 newsgathering. FPF also uses FOIA to obtain and publish documents detailing government\n\n10 activities that impinge on press freedom.\n\n11\n\n3. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch\n\n12 of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. §552(f)(1).\n\n13 The Federal Bureau of Investigation (“FBI”) and Office of Information Policy (“OIP”) are\n\n14 components of DOJ.\n\n15\nJURISDICTION 16\n4. The Court has subject matter jurisdiction over this action and personal jurisdiction 17\nover the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). The Court also has 18\njurisdiction over this action pursuant to 28 U.S.C. § 1331. 19\n\n20\n\nVENUE AND INTRADISTRICT ASSIGNMENT\n\n21\n\n5. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §\n\n22 1391(e).\n\n23\n\n6. Assignment to the San Francisco division is proper pursuant to Local Rule 3-2(c)\n\n24 and (d) because a substantial portion of the events giving rise to this action occurred in this district\n\n25 and division, where Plaintiff is located.\n\n26 //\n\n27 // 28 //\n\n-2-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 3 of 11\n\n1\n\nFACTUAL BACKGROUND\n\n2\n\nThe DOJ’s Guidelines for Obtaining Information\n\n3\n\nAbout the Media and Recent Surveillance of Journalists in Leak-Related Investigations\n\n4\n\n7. The DOJ maintains special regulatory guidelines instructing federal officers how to\n\n5 gather information about members of the news media during investigations, which are codified at\n\n6 28 C.F.R. § 50.10 (hereafter “Media Guidelines,” discussed more below). To protect the First\n\n7 Amendment interests of the press, the Media Guidelines require agents to observe advance\n\n8 procedures before they can compel production of reporters’ telephone records and other\n\n9 information about members of the press.\n\n10\n\n8. The Media Guidelines have recently undergone two revisions in the wake of public\n\n11 criticism of the Obama Administration’s heightened focus on journalists in investigations of leaked\n\n12 classified information.\n\n13\n\n9. To date, the Administration has filed criminal charges against eight government\n\n14 whistleblowers for allegedly leaking classified information to members of the media in violation of\n\n15 the Espionage Act of 1917, 18 U.S.C. §§ 793 and 798. All previous presidential administrations\n\n16 combined have filed Espionage Act charges in only three leak-related cases.\n\n17\n\n10. On May 13, 2013, the Associated Press revealed that the DOJ had secretly seized\n\n18 telephone records for at least twenty phone lines used by the media organization’s reporters and\n\n19 editors to communicate with confidential sources and others. Letter from Gary Pruitt, Executive\n\n20 President and CEO, Associated Press, to Attorney General Eric Holder, Department of Justice\n\n21 (May 13, 2013), http://www.ap.org/Images/Letter-to-Eric-Holder_tcm28-12896.pdf. At that time,\n\n22 the U.S. Attorney’s Office in the District of Columbia was conducting an ongoing investigation\n\n23 into the leak of information about a Central Intelligence Agency operation disrupting of a Yemen-\n\n24 based terrorist plot. The AP condemned the government’s conduct as a “serious interference” with\n\n25 its First Amendment rights. Id.; see also Charlie Savage and Leslie Kaufman, Phone Records of\n\n26 Journalists Seized by U.S., N.Y. TIMES, May 13, 2013, at A1, http://nyti.ms/1xVYWfe.\n\n27\n\n11. Six days later, media outlets reported that the DOJ had investigated James Rosen,\n\n28\n\n-3-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 4 of 11\n\n1 chief Washington correspondent for Fox News, in connection with a possible leak of classified\n\n2 information by a government contractor. Ann E. Marimow, A Rare Peek Into a Justice\n\n3 Department Leak Probe, WASHINGTON POST, May 19, 2013, http://wapo.st/115Hzqg. The DOJ\n\n4 reportedly “used security badge access records to track the reporter’s comings and goings from the\n\n5 State Department,” “traced the timing of his calls with a State Department security advisor,” and\n\n6 “obtained a search warrant for the reporter’s personal email.” Id. When applying for that search\n\n7 warrant to the court, an investigative agent characterized Rosen in an affidavit as an “aider, abettor,\n\n8 and/or co-conspirator” to the leak in violation of the Espionage Act. Id.\n\n9\n\n12. Furthermore, Pulitzer Prize-winning Washington Post reporter Barton Gellman\n\n10 believes the FBI obtained his phone records through a National Security Letter. Darren\n\n11 Samuelsohn, Barton Gellman Aware of Risks, POLITICO, Feb. 25, 2014,\n\n12 http://www.politico.com/blogs/media/2014/02/barton-gellman-ready-for-doj-183998.html.\n\n13\n\n13. Reports of the DOJ’s investigation of journalists from the Associated Press and Fox\n\n14 News have prompted government watchdogs, news agencies, and First Amendment scholars to\n\n15 express grave concern about the DOJ’s surveillance of the press. See, e.g., ACLU and Human\n\n16 Rights Watch, The Impact of Digital Surveillance on Journalists, Lawyers, and Human Rights\n\n17 Defenders (2014); Ann E. Marimow, Justice Department’s Scrutiny of Fox News Reporter James\n\n18 Rosen in Leak Case Draws Fire, WASHINGTON POST, May 20, 2013, http://wapo.st/18ZTg9P;\n\n19 Leonard Downie Jr. and Sara Rafsky, The Obama Administration and the Press, COMMITTEE TO\n\n20 PROTECT JOURNALISTS, Oct. 10, 2013, https://cpj.org/x/5729.\n\n21\n\n14. Members of Congress have also voiced alarm about the DOJ’s investigation of\n\n22 journalists in criminal leak-related matters. Letter from Chairman Bob Goodlatte, United States\n\n23 House Judiciary Committee, and Chairman F. James Sensenbrenner, Jr., Crime, Terrorism,\n\n24 Homeland Security, and Investigations Subcommittee, to Attorney General Eric Holder,\n\n25 Department of Justice (May 29, 2013), http://judiciary.house.gov/index.cfm/press-\n\n26 releases?ID=1B5AA9A4-C8E0-B782-473E-C7B3BF895DD2; see also House Republicans\n\n27 Challenge Holder Testimony on Reporter Surveillance, FOXNEWS.COM, May 29, 2013,\n\n28 http://fxn.ws/12OsiNz.\n\n-4-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 5 of 11\n\n1\n\nThe FBI’s Longstanding and Well Documented Misuse of\n\n2\n\nNational Security Letters and Exigent Letters, Including in Leak-Related Investigations\n\n3\n\n15. 18 U.S.C. § 2709 authorizes the FBI to issue National Security Letters (“NSLs”) to\n\n4 obtain subscriber information, toll billing records, and transactional records from wire or electronic\n\n5 communications service providers in national security investigations. The FBI issues these NSLs\n\n6 without any prior judicial review, and Section 2709(c) allows the FBI to impose an indefinite\n\n7 nondisclosure order on an NSL recipient.\n\n8\n\n16. Section 2709 NSLs are a highly controversial investigative tool. Indeed, this Court\n\n9 has held that parts of the NSL statutory framework are facially unconstitutional because they\n\n10 violate the First Amendment and separation of powers principles. In re NSL, 930 F. Supp. 2d\n\n11 1064, 1081 (N.D. Cal. 2013). That decision is stayed pending an appeal in which the Ninth Circuit\n\n12 is considering three consolidated cases challenging the constitutionality of the NSL statutory\n\n13 framework. Under Seal v. Lynch, Nos. 13-15957, 13-16731, 13-16732 (9th Cir. argued Oct. 8,\n\n14 2014). At least one other action is currently pending in this Court disputing the constitutionality of\n\n15 the framework. Twitter, Inc. v. Lynch, No. 4:14-cv-04480-YGR (N.D. Cal. filed Oct. 7, 2014).\n\n16\n\n17. The Department of Justice Office of Inspector General (“OIG”) has issued two\n\n17 reports exhaustively documenting the FBI’s widespread, systematic misuse of NSLs between 2003\n\n18 and 2006. See generally Department of Justice Office of the Inspector General, A Review of the\n\n19 Federal Bureau of Investigation’s Use of National Security Letters (March 9, 2007) (“2007\n\n20 Report”); Department of Justice Office of the Inspector General, A Review of the FBI’s Use of\n\n21 National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in\n\n22 2006 (March 2008) (“2008 Report”).1\n\n23\n\n18. While the FBI adopted some corrective measures in response to the OIG’s findings,\n\n24 a follow-up report issued in 2014 found that the FBI may have continued to issue NSLs beyond the\n\n25 scope permitted by Section 2709. Department of Justice Office of the Inspector General, A Review\n\n26 of the Federal Bureau of Investigation’s Use of National Security Letters: Assessment of Progress\n\n27\n\n28 1 The OIG reports cited in this complaint are available at www.usdoj.gov/oig.\n\n-5-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 6 of 11\n\n1 in Implementing Recommendations and Examination of Use in 2007 through 2009 viii (Aug. 2014)\n\n2 (“2014 Report”).\n\n3\n\n19. In a separate report prompted by the findings in the 2007 and 2008 Reports, the OIG\n\n4 determined that the FBI also issued hundreds of so-called “exigent letters” and used other informal\n\n5 methods to obtain telephone records from three major telephone carriers without serving prior legal\n\n6 process. 2007 Report at 87-98; see generally Department of Justice Office of the Inspector\n\n7 General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other\n\n8 Informal Requests for Telephone Records (Jan. 2010) (“2010 Report”).\n\n9\n\n20. The exigent letters were not authorized by any law, flouted internal FBI policy, and\n\n10 violated the Attorney General’s Guidelines for FBI National Security Investigations and Foreign\n\n11 Intelligence Collection. 2007 Report at 95-99; 2010 Report at 10-11.\n\n12\n\n21. The OIG identified at least three media leak investigations in which the FBI\n\n13 improperly used an exigent letter and grand jury subpoenas to obtain telephone records or calling\n\n14 activity information for telephone numbers assigned to reporters. 2010 Report at 89-122.\n\n15\n\n22. The FBI issued the exigent letter to obtain toll billing records of reporters for the\n\n16 Washington Post and New York Times. 2010 Report at 37.\n\n17\n\n23. While the DOJ’s Media Guidelines detail procedures for issuing subpoenas in\n\n18 media-related investigations, the procedures do not address the use of NSLs or exigent letters to\n\n19 obtain information about members of the press.\n\n20\n\n24. With respect to the three media leak investigations discussed in the 2010 Report, the\n\n21 OIG found that the FBI failed to comply with the Media Guidelines and DOJ policy requiring\n\n22 “Attorney General approval and a balancing of First Amendment interests and the interests of law\n\n23 enforcement before issuing subpoenas for the production of reporters’ telephone toll billing\n\n24 records.” 2010 Report at 89.\n\n25\n\n25. The OIG recommended that the FBI and the Department implement specific\n\n26 controls and procedures to correct the misuses of investigative authority detailed in the 2007, 2008,\n\n27 and 2010 reports. 2014 Report at viii.\n\n28\n\n26. According to the 2014 Report, the FBI did in fact implement “specific [new]\n\n-6-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 7 of 11\n\n1 procedures” in 2011 for investigations involving the media (as indicated by the citation to 28\n\n2 C.F.R. § 50.10):\n\n3\n\n4\n\n5\n\n6\n\n7\n\n8\n\n9\n\n10\n\n11 2014 Report at 179.\n\n12\n\n27. The OIG also recommended that the FBI’s procedures for obtaining information\n\n13 about members of the media should be reviewed by the DOJ because of “significant First\n\n14 Amendment issues.”\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28 2014 Report at 192.\n\n-7-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 8 of 11\n\n1\n\n28. These excerpts suggest that the FBI has specific procedures for obtaining\n\n2 information about journalists through NSLs or exigent letters that are not specifically addressed in\n\n3 the Media Guidelines, and are therefore unknown to the public.\n\n4\n\nThe DOJ’s Recently Updated Media Guidelines\n\n5\n\nFail to Include Procedures for Issuing National Security Letters or Exigent Letters\n\n6\n\n29. On July 12, 2013, in response to criticism from the press, public, and members of\n\n7 Congress about increased investigation of the media in leak-related investigations, the DOJ issued\n\n8 a report stating that the Department would update the Media Guidelines. Department of Justice,\n\n9 Report\n\non\n\nReview\n\nof\n\nNews\n\nMedia\n\nPolicies,\n\nJuly\n\n2013,\n\n10 http://www.justice.gov/iso/opa/resources/2202013712162851796893.pdf.\n\n11\n\n30. In a statement to the New York Times, a DOJ spokesman said that although the\n\n12 updated Media Guidelines would not include procedures for issuing NSLs to obtain information\n\n13 about members of the media, the FBI’s issuance of NSLs is subject to an “extensive oversight\n\n14 regime.” Charlie Savage, Holder Tightens Rules on Getting Reporters’ Data, N.Y. TIMES, July 12,\n\n15 2013, at A1, http://nyti.ms/1SLxxbJ.\n\n16\n\n31. The DOJ published a final rule updating the Media Guidelines in the Federal\n\n17 Register on February 27, 2014. The rule did not address the FBI’s procedures for issuing NSLs or\n\n18 exigent letters to obtain information about members of the press. Policy Regarding Obtaining\n\n19 Information From, or Records of Members of the News Media; and Regarding Questioning,\n\n20 Arresting or Charging Members of the News Media, 79 Fed. Reg. 10989-01 (Feb. 27, 2014)\n\n21 (amending 28 C.F.R. § 50.10).\n\n22\n\n32. In January 2015, several months after the OIG’s 2014 Report confirmed that the FBI\n\n23 had new procedures for gathering information about the media, the DOJ published another final\n\n24 rule in the Federal Register amending the Media Guidelines. Again, the updated policy included\n\n25 no procedures for issuing NSLs or exigent letters to obtain information about members of the press.\n\n26 Updated Policy Regarding Obtaining Information From, or Records of Members of the News\n\n27 Media; and Regarding Questioning, Arresting or Charging Members of the News Media, 80 Fed.\n\n28\n\n-8-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 9 of 11\n\n1 Reg. 2819-01 (Jan. 21, 2015) (amending 28 C.F.R. § 50.10).\n\n2\n\nPlaintiff’s FOIA Request\n\nand Request for Expedited Processing 3\n\n33. In a letter to the FBI dated March 10, 2015, FPF requested under the FOIA all\n\n4\n\nrecords from January 2009 to the present concerning:\n\n5\n\n6\n\n(A) the extensive regime, rules, guidelines, or infrastructure that oversees the issuance of NSLs or exigent letters to obtain records regarding a member\n\n7\n\nof the media;\n\n8\n\n(B) the current procedures that FBI agents must undertake in advance of\n\nissuing a NSL or exigent letter to obtain records regarding any member\n\n9\n\nof the media, including any pre-approval process;\n\n10 (C) the current procedures that FBI agents must undertake after issuing a\n\n11\n\nNSL or exigent letter to obtain records regarding any member of the\n\nmedia, including any mandatory subsequent reporting process; and\n\n12\n\n(D) any changes in FBI policy, procedure, or practice after the issuance of the\n\n13\n\nU.S. Department of Justice, Report on Review of News Media Policies\n\n14\n\n(2013) and U.S. Department of Justice, Updated Policy Regarding\n\nObtaining Information From, or Records of, Members of the News\n\n15\n\nMedia; and Regarding Questioning, Arresting, or Charging Member of\n\nthe News Media (2015).\n\n16\n\n34. FPF asked that the processing of the request be expedited because disclosure of the\n\n17\n\nrequested documents is in the public interest and “[a] matter of widespread and exceptional media\n\n18\n\ninterest in which there exist[s] possible questions about the government’s integrity which affect\n\n19\n\npublic confidence.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R. § 16.5(d)(1)(iv).\n\n20\n\n35. By letter dated March 20, 2015, the FBI acknowledged receipt of FPF’s FOIA\n\n21\n\nrequest and informed FPF that its request for expedited processing had been granted.\n\n22\n\n36. To date, the FBI has not made a final determination on FPF’s request.\n\n23\n\n37. By letter to OIP dated May 18, 2015, FPF appealed the FBI’s constructive denial of\n\n24\n\nthe request.\n\n25\n\n38. By letter dated July 1, 2015, OIP acknowledged receipt of FPF’s appeal on June 2,\n\n26\n\n2015.\n\n27\n\n39. By letter dated July 15, 2015, OIP informed FPF that the request was being\n\n28\n\n-9-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 10 of 11\n\n1 processed, but stated that no final determination had yet been made by the FBI.\n\n2\n\n40. In a telephone conversation on July 23, 2015, the FBI informed counsel for FPF that\n\n3 the processing of the request would take approximately seven months to complete.\n\n4\n\n41. The DOJ has not only failed to expedite the processing of FPF’s request, but has\n\n5 also exceeded the generally applicable 20-day deadline for the processing of any FOIA request.\n\n6\n\n42. FPF has exhausted all applicable administrative remedies.\n\n7\n\n43. The DOJ has wrongfully withheld the requested records from FPF.\n\n8 CAUSE OF ACTION\n9\n\n10\n\nViolation of the Freedom of Information Act for Wrongful Withholding of Agency Records\n\n11\n\n44. Plaintiff repeats and realleges paragraphs 1-43.\n\n12\n\n45. The DOJ has wrongfully withheld agency records requested by Plaintiff by failing\n\n13 to comply with the statutory time limit for the processing of Plaintiff’s FOIA request.\n\n14\n\n46. Plaintiff has exhausted the applicable administrative remedies with respect to the\n\n15 FBI’s wrongful withholding of the requested records.\n\n16\n\n47. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of\n\n17 the requested documents.\n\n18 //\n\n19 //\n\n20 //\n\n21 //\n\n22 //\n\n23 //\n\n24 //\n\n25 //\n\n26 //\n\n27 //\n\n28\n\n-10-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\fCase 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 11 of 11\n\n1\n\nRequested Relief\n\n2 WHEREFORE, Plaintiff prays that this Court:\n\n3\n\nA. Order Defendant DOJ to process immediately the requested records in their entirety;\n\n4\n\nB. Order Defendant DOJ, upon completion of such expedited processing, to disclose\n\n5 the requested records in their entirety and make copies available to Plaintiff;\n\n6\n\nC. Provide for expeditious proceedings in this action;\n\n7\n\nD. Award Plaintiff its costs and reasonable attorneys fees incurred in this action; and\n\n8\n\nE. Grant such other relief as the Court may deem just and proper.\n\n9\n\n10\n\n11 DATED: July 30, 2015 12 13 14 15 16 17 18\n\nBy /s/ Marcia Hofmann Marcia Hofmann Law Office of Marcia Hofmann 25 Taylor Street San Francisco, CA 94102 Telephone: (415) 830-6664\nD. Victoria Baranetsky (pro hac vice pending) 601 Van Ness Ave. Suite E731 San Francisco, CA 94102 Telephone: (415) 767-5566\nAttorneys for Plaintiff FREEDOM OF THE PRESS FOUNDATION\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n-11-\nCOMPLAINT FOR INJUNCTIVE RELIEF\n\n\f", "1\n\n2\n\n3\n\n4\n\nUNITED STATES DISTRICT COURT\n\n5\n\nNORTHERN DISTRICT OF CALIFORNIA\n\n6 FREEDOM OF THE PRESS\n7 FOUNDATION,\n\n8\n\nPlaintiff,\n\n9\n\nv.\n\n10 UNITED STATES DEPARTMENT OF JUSTICE,\n11 Defendant.\n12\n\nCase No. 15-cv-03503-HSG\nORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 30, 37\n\nUnited States District Court Northern District of California\n\n13\n\nPending before the Court are the parties’ cross-motions for summary judgment. Dkt. Nos.\n\n14 30, 37. For the reasons articulated below, the Court GRANTS Defendant’s motion for summary\n\n15 judgment and DENIES Plaintiff’s cross-motion.\n\n16\n\nI. BACKGROUND\n\n17\n\nPlaintiff Freedom of the Press Foundation filed this action on July 30, 2015, seeking an\n\n18 injunction to compel Defendant DOJ to disclose records requested under the Freedom of\n\n19 Information Act (“FOIA”). Plaintiff submitted a FOIA request on March 10, 2015, seeking\n\n20 records related to the Federal Bureau of Investigation’s (“FBI”) procedures for issuing national\n\n21 security letters (“NSLs”) to obtain information regarding any member of the media from January\n\n22 2009 to the present. Dkt. No. 1. The FBI is empowered to issue NSLs to obtain “subscriber\n\n23 information and toll billing records information, or electronic communication transactional\n\n24 records” from third-party wire or electronic communication providers if such information is\n\n25 “relevant to an authorized investigation to protect against international terrorism or clandestine\n\n26 intelligence activities.” 18 U.S.C. §§ 2709(a)–(b). Plaintiff, however, suspects government\n\n27 misuse of this investigative tool.\n\n28\n\nIn response to Plaintiff’s FOIA request, the FBI conducted a search of its records. See Dkt.\n\n\f1 No. 30-1 (Hardy Decl.) ¶¶ 17–21 & Exs. H, I. It identified 302 pages of records and released 156,\n\n2 withholding the rest pursuant to FOIA Exemptions 1, 3, 5, 7(C), and 7(E). Id. ¶ 15. Defendant\n\n3 also consulted with another agency — the Office of the General Counsel (“OGC”) — regarding\n\n4 responsive records, identifying another 134 pages of records and releasing 72, again withholding\n\n5 the rest pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 16 & Exs. H, I. In total,\n\n6 Defendant identified 436 pages of records responsive to Plaintiff’s FOIA request and released 228\n\n7 documents (171 in part and 57 in full). See ¶¶ 5, 16 & Ex. H. The FBI detailed its search and the\n\n8 nature of its withholdings in an affidavit in the form described in Vaughn v. Rosen, 484 F.2d 820\n\n9 (D.C. Cir. 1973), generally known as a “Vaughn Index,” as well as two Declarations from David\n\n10 M. Hardy (“Hardy Declarations”), the Section Chief of the Record/Information Dissemination\n\n11 Section (“RIDS”) of the FBI’s Record Management Division. See Hardy Decl. Ex. I (Vaughn\n\nUnited States District Court Northern District of California\n\n12 Index); see also Dkt. No. 44-1 (Suppl. Hardy Decl.).\n\n13 II. LEGAL STANDARD\n\n14\n\nA. Summary Judgment\n\n15\n\nSummary judgment is proper when a “movant shows that there is no genuine dispute as to\n\n16 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\n\n17 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson\n\n18 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence\n\n19 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id.\n\n20 But in deciding if a dispute is genuine, the Court must view the inferences reasonably drawn from\n\n21 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec.\n\n22 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), and “may not weigh the evidence\n\n23 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).\n\n24\n\nWith respect to summary judgment procedure, the moving party always bears both the\n\n25 ultimate burden of persuasion and the initial burden of producing those portions of the pleadings,\n\n26 discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp.\n\n27 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will bear the burden of proof on an\n\n28 issue at trial, it must show that no reasonable trier of fact could not find in its favor. Celotex, 477 2\n\n\f1 U.S. at 325. “If a moving party fails to carry its initial burden of production, the nonmoving party\n\n2 has no obligation to produce anything, even if the nonmoving party would have the ultimate\n\n3 burden of persuasion at trial.” Id. at 1102–03.\n\n4\n\n“If, however, a moving party carries its burden of production, the nonmoving party must\n\n5 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party\n\n6 “must do more than simply show that there is some metaphysical doubt as to the material facts.”\n\n7 Matsushita Elec., 475 U.S. at 586. A nonmoving party must also “identify with reasonable\n\n8 particularity the evidence that precludes summary judgment,” because the duty of the Court is not\n\n9 to “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275,\n\n10 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its claim or\n\n11 defense, courts must enter summary judgment in favor of the movant. Celotex, 477 U.S. at 323.\n\nUnited States District Court Northern District of California\n\n12\n\nB. FOIA\n\n13\n\nFOIA, 5 U.S.C. § 552, “was enacted to facilitate public access to Government documents.”\n\n14 Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (internal quotations omitted).\n\n15 The goal of FOIA is to “ensure an informed citizenry, vital to the functioning of a democratic\n\n16 society, needed to check against corruption and to hold the governors accountable to the\n\n17 governed.” Id. (quotation omitted). At the same time, FOIA contemplates that the government\n\n18 may have legitimate reasons for withholding some information from the public. Id. Accordingly,\n\n19 FOIA “requires federal agencies to make Government records available to the public, subject to\n\n20 nine exemptions for specific categories of material.” Milner v. Dep’t of Navy, 562 U.S. 562, 564\n\n21 (2011). These nine FOIA exemptions are “explicitly made exclusive and must be narrowly\n\n22 construed.” Id. at 565 (quotation omitted).\n\n23\n\nFOIA cases are typically decided on motions for summary judgment because the facts are\n\n24 rarely in dispute. See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996).\n\n25 Upon a motion for summary judgment, a district court analyzes the withholding of documents de\n\n26 novo. 5 U.S.C. § 552(a)(4)(B). FOIA permits a district court to enjoin a defendant agency from\n\n27 withholding agency records or to order a defendant agency to produce any improperly withheld\n\n28 records. Id. 3\n\n\f1\n\nA defendant agency “must show that its search for responsive records was adequate, that\n\n2 any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of\n\n3 records have been disclosed after redaction of exempt information.” Light v. Dep’t of Justice, 968\n\n4 F. Supp. 2d 11, 23 (D.D.C. 2013); accord Lahr, 569 F.3d at 973; Pac. Fisheries, Inc. v. United\n\n5 States, 539 F.3d 1143, 1148 (9th Cir. 2008). The agency bears the burden to show that it has\n\n6 complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B).\n\n7 III. DISCUSSION\n\n8\n\nDefendant asserts that it is entitled to summary judgment on Plaintiff’s FOIA claim\n\n9 because the FBI, a component of the DOJ, has fully complied with its obligations under FOIA.\n\n10 Dkt. No. 30 at 1 (“Gov’t MSJ”). Specifically, Defendant contends that the FBI (1) conducted a\n\n11 reasonable search in response to Plaintiff’s FOIA request; (2) properly withheld documents 12 pursuant to FOIA exemptions 1, 3, 5, and 7E;1 and (3) disclosed all reasonably segregable\n\nUnited States District Court Northern District of California\n\n13 information that is not covered by a FOIA exemption. Id. at 1–2. Plaintiff opposes Defendant’s\n\n14 motion for summary judgment and instead seeks judgment that (1) Defendant has failed to\n\n15 conduct an adequate search for responsive documents; (2) Defendant’s Vaughn Index fails to meet\n\n16 Defendant’s burden under FOIA; (3) Defendant has failed to show that it properly withheld\n\n17 documents pursuant to FOIA exemptions 1, 3, 5, and 7E; and (4) Defendant has failed to disclose\n\n18 all reasonably segregable information that is not covered by a FOIA exemption. Dkt. No. 37\n\n19 (“FPF MSJ”).\n\n20\n\nC. The FBI Has Conducted an Adequate Search for Responsive Records\n\n21\n\nFOIA requires a defendant agency to “demonstrate that it has conducted a search\n\n22 reasonably calculated to uncover all relevant documents.” Lahr, 569 F.3d at 986. An agency may\n\n23 make such a showing by “reasonably detailed, nonconclusory affidavits submitted in good faith.”\n\n24 Id.; Citizens Comm’n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir.\n\n25 1995). Because of courts’ “limited institutional expertise on intelligence matters” and the risk of\n\n26\n\n27 1 The FBI also redacted material under FOIA exemptions 6 and 7(C) and withheld duplicate\n\n28\n\ndocuments. Gov’t MSJ at 2 n.1. Plaintiff does not challenge those withholdings. Id.; see generally FPF MSJ.\n\n4\n\n\f1 adversaries aggregating even “small pieces” of intelligence data, “[a]ffidavits submitted by an\n\n2 agency to demonstrate the adequacy of its response are presumed to be in good faith” when\n\n3 submitted in the national security context. Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 770\n\n4 (9th Cir. 2015).\n\n5\n\n“In evaluating the sufficiency of an agency’s search, the issue to be resolved is not whether\n\n6 there might exist any other documents possibly responsive to the request, but rather whether the\n\n7 search for those documents was adequate.” Lahr, 569 F.3d at 987 (quotation omitted). A district\n\n8 court assesses the adequacy of an agency’s search against a standard of reasonableness, construing\n\n9 all facts in the light most favorable to the FOIA requestor. Citizens Comm’n, 45 F.3d at 1328.\n\n10 Summary judgment is inappropriate “if a review of the record raises substantial doubt, particularly\n\n11 in view of well-defined requests and positive indications of overlooked materials . . . .” Hamdan,\n\nUnited States District Court Northern District of California\n\n12 797 F.3d at 771 (quotation omitted). Nevertheless, the Ninth Circuit has made clear that a search\n\n13 is not inadequate for failing to turn up a single document or even several documents. Id.; Lahr, at\n\n14 987 (“[T]he failure to produce or identify a few isolated documents cannot by itself prove the\n\n15 searches inadequate.”). Similarly, “[s]peculative claims about the existence of additional\n\n16 documents are insufficient to rebut the presumption of good faith . . . .” Coleman v. Drug Enf’t\n\n17 Admin., 134 F. Supp. 3d 294, 301 (D.D.C. 2015); accord Lahr, 569 F.3d at 987–88.\n\n18\n\nThe Court finds the Hardy Declarations establish that the FBI conducted an adequate\n\n19 search that was reasonably calculated to uncover all relevant documents. According to Hardy,\n\n20 while the FBI typically searches its Central Records System (“CRS”) database in response to\n\n21 FOIA requests, Plaintiff’s request did not lend itself to a CRS index search. Hardy Decl. ¶ 17.\n\n22 The CRS index is organized by individuals, organizations, companies, and events, but Plaintiff’s\n\n23 request was for more generalized information about NSLs and agency policy. Accordingly, the\n\n24 FBI conducted a more targeted search of the FBI divisions and offices reasonably likely to possess\n\n25 responsive information about the procedures governing and oversight of NSLs used to obtain\n\n26 records for members of the media. Id. ¶¶ 18, 19. RIDS requested records that were created on or\n\n27 before August 10, 2015. Id. Specifically, the FBI’s Discovery Processing Unit (“DPU”)\n\n28 determined that the OGC was reasonably likely to have, or at least know where to locate, 5\n\n\f1 responsive records. Id. ¶ 20. DPU contacted all three OGC branches — the National Security\n\n2 Law Branch, the Litigation Branch, and the Investigative and General Law Branch — to search for\n\n3 responsive documents. Id. Further, RIDS reviewed an unclassified version of the Domestic\n\n4 Investigations and Operations Guide (“DIOG”), which contains substantially all of the FBI’s\n\n5 procedures, techniques, and strategies for conducting investigations. Id. ¶ 21; Suppl. Hardy Decl.\n\n6 ¶ 7. Through this process, RIDS identified Section 18 — entitled “National Security Letter” — as\n\n7 potentially responsive. Hardy Decl. ¶ 21.\n\n8\n\nPlaintiff maintains that the FBI failed to perform an adequate search for two reasons:\n\n9 (1) although the FBI represents that it reviewed the DIOG, the FBI failed to identify Appendix G,\n\n10 which falls within Plaintiff’s FOIA request because it specifies the procedures for issuing NSLs to\n\n11 obtain telephone records of media members; and (2) the FBI primarily identified records from\n\nUnited States District Court Northern District of California\n\n12 2014 and 2015, which Plaintiff finds “surprising” given that the FBI updated the DIOG in 2011.\n\n13 FPF MSJ at 13–14. Plaintiff asserts that these “conspicuous omissions” establish that the FBI did\n\n14 not perform a search reasonably calculated to uncover all responsive documents. Id. at 14. The\n\n15 Court is not persuaded.\n\n16\n\nThe Supplemental Hardy Declaration explains that the FBI did not identify Appendix G\n\n17 because it was not included in the unclassified version of the DIOG that RIDS reviewed. Suppl.\n\n18 Hardy Decl. ¶ 7 & n.4. Even if the Court agreed with Plaintiff that Defendant should have\n\n19 otherwise identified Appendix G, that omission, standing alone, is insufficient to render the FBI’s\n\n20 search inadequate. See id. at 771 (concluding that the Ninth Circuit has made clear that a search is\n\n21 not inadequate for failure to turn up a single document).\n\n22\n\nSimilarly, the Hardy Declaration adequately establishes that the FBI searched for\n\n23 documents for the entire period between January 2009 and March 10, 2015. Hardy attests that the\n\n24 FBI’s search actually encompassed a significantly broader time period, directing all OGC\n\n25 branches to locate records created on or before August 10, 2015. Hardy Decl. ¶ 19; see also\n\n26 Suppl. Hardy Decl. ¶ 7. Plaintiff’s “[s]peculative claims about the existence of additional\n\n27 documents are insufficient to rebut the presumption of good faith” to which Hardy’s declarations\n\n28 are entitled. See Coleman, 134 F. Supp. 3d at 301. 6\n\n\f1\n\nBecause Plaintiff’s speculation cannot overcome the FBI’s reasonably detailed, non-\n\n2 conclusory declarations, the Court holds that the FBI has conducted an adequate search for\n\n3 responsive records. While the FBI’s search may not have been perfect, Plaintiff was “entitled to a\n\n4 reasonable search for records, not a perfect one.” Hamdan, 797 F.3d at 772.\n\n5\n\nD. FOIA Exemptions\n\n6\n\nNext, the Court must determine whether Defendant properly withheld records under the\n\n7 asserted FOIA exemptions.\n\n8\n\n“FOIA’s strong presumption in favor of disclosure places the burden on the government to\n\n9 show that an exemption properly applies to the records it seeks to withhold.” Hamdan, 797 F.3d\n\n10 at 772. When a government agency seeks to withhold documents under FOIA exemptions, courts\n\n11 have required the agency to “to supply the opposing party and the court with a Vaughn index,\n\nUnited States District Court Northern District of California\n\n12 identifying each document withheld, the statutory exemption claimed, and a particularized\n\n13 explanation of how disclosure of the particular document would damage the interest protected by\n\n14 the claimed exemption.” Wiener v. F.B.I., 943 F.2d 972, 977–78 (9th Cir. 1991). The purpose of\n\n15 a Vaughn index and any accompanying affidavits is to “afford the FOIA requester a meaningful\n\n16 opportunity to contest, and the district court an adequate foundation to review, the soundness of\n\n17 the withholding,” and thus partially restore the adversary process to judicial review of the\n\n18 agency’s decision. Id. “Specificity is the defining requirement of the Vaughn index.” Id. at 979.\n\n19\n\n“Where the government invokes FOIA exemptions in cases involving national security\n\n20 issues, [courts] are required to accord substantial weight to the agency’s affidavits.” Hamdan, 797\n\n21 F.3d at 769; Minier, 88 F.3d at 800. A court must be mindful of its “limited institutional expertise\n\n22 on intelligence matters, as compared with the executive branch.” Hamdan, 797 F.3d at 770.\n\n23 However, the affidavits still “must describe the justifications for nondisclosure with reasonably\n\n24 specific detail, demonstrate that the information withheld logically falls within the claimed\n\n25 exemptions, and show that the justifications are not controverted by contrary evidence in the\n\n26 record or by evidence of agency bad faith.” Id. at 769. “[A]n agency’s justification for invoking a\n\n27 FOIA exemption is sufficient if it appears logical or plausible.” Id. at 774. “If the affidavits\n\n28 contain reasonably detailed descriptions of the documents and allege facts sufficient to establish 7\n\n\f1 an exemption, the district court need look no further.” Lane v. Dep’t of Interior, 523 F.3d 1128,\n\n2 1135–36 (9th Cir. 2008).\n\n3\n\nHere, Defendant withheld information from several categories of documents: (1) a Policy\n\n4 Implementation Guide, with instructions for managing and conducting cyber investigations;\n\n5 (2) the DIOG; (3) Media Guidelines, with instructions for investigating and charging members of\n\n6 the news media; (4) a NSL PowerPoint training presentation; (5) internal emails regarding the\n\n7 creation and revision of the Policy Implementation Guide, DIOG, and Media Guidelines; and (6)\n\n8 Office of Information Policy (“OIP”) drafts of the Media Guidelines. Hardy Decl. ¶¶ 23–31.\n\nUnited States District Court Northern District of California\n\n9\n\ni. Exemption 1 - Classified Information\n\n10 Defendant withheld seven pages in full from the DIOG pursuant to Exemption 1 as\n11 containing intelligence activities and methods. Hardy Decl. ¶¶ 40–44. Exemption 1 exempts from\n12 disclosure records that are “specifically authorized under criteria established by an Executive order\n13 to be kept secret in the interest of national defense or foreign policy . . . .” 5 U.S.C. § 552(b)(1).\n14 Executive Order 13526 permits an agency to classify information as national security information\n15 if:\n16\n\n17\n\n(1) an original classification authority is classifying the information; 18\n\n(2) the information is owned by, produced by or for, or is under the\n\n19\n\ncontrol of the United States Government;\n\n20\n\n(3) the information falls within one or more of the categories of\n\ninformation listed in section 1.4 of [Executive Order 13526];\n\n21\n\nand\n\n22\n\n(4) the original classification authority determines that the\n\nunauthorized disclosures of the information reasonably could be\n\n23\n\nexpected to result in damage to the national security, which\n\nincludes defense against transnational terrorism, and the original\n\n24\n\nclassification authority is able to identify or describe the\n\ndamage. 25\n\n26 Exec. Order 13526 § 1.1(a) (emphasis added). Executive Order 13526 § 1.4(c), in turn, allows\n\n27 classification of “intelligence activities (including covert action), intelligence sources or methods,\n\n28 or cryptology.” 8\n\n\f1\n\nPlaintiff asserts that Defendant has failed to meet its burden to show that these pages\n\n2 constitute intelligence sources or methods or that disclosure of the withheld documents would\n\n3 reveal intelligence sources or methods. FPF MSJ at 15–19. Specifically, Plaintiff contends that\n\n4 the Hardy Declaration and Vaughn Index do “little more than recite the applicable exemption” and\n\n5 thus “fall short” of providing a particularized justification as required under FOIA. Id. at 16–17.\n\n6\n\nThe Court finds that the FBI has carried its burden to demonstrate that it properly classified\n\n7 the seven withheld pages under Exemption 1. The Hardy Declaration first explains the procedural\n\n8 and substantive requirements with which Hardy complied in order to properly withhold\n\n9 information under Exemption 1. Hardy Decl. ¶¶ 34–40. Next, in addition to describing the\n\n10 general justifications for shielding intelligence sources and methods from public disclosure, the\n\n11 Declaration explains the specific rationale for withholding the relevant seven pages. Id. ¶¶ 41–44.\n\nUnited States District Court Northern District of California\n\n12 Hardy attests that the withheld pages detail intelligence activities or methods that are still used by\n\n13 the FBI today to gather information. Id. ¶ 42. Hardy further elaborates that the withheld\n\n14 intelligence activities or methods contain information gathered by the FBI on a specific type of\n\n15 individual or organization of national security interest. Id. ¶ 44. Examined in context, Hardy\n\n16 determined that the withheld information could reasonably be expected to cause serious damage to\n\n17 national security as it would, for example, reveal the breadth of the FBI’s intelligence on a specific\n\n18 target. Id. ¶ 45–46. He consequently exercised his original classification authority to designate\n\n19 the information under Exemption 1. Id.\n\n20\n\nThe Hardy Declaration provides sufficient detail regarding the withheld information to\n\n21 make the Exemption 1 classification plausible. See Hamdan, 797 F.3d at 770. Moreover, the\n\n22 Declaration does not contain conditional language or attempt to categorize multiple distinct\n\n23 documents under a single, general justification. Recognizing the Court’s “limited institutional\n\n24 expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation\n\n25 that “any greater specificity in the descriptions and justifications . . . could reasonably be expected\n\n26 to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national\n\n27 security, “it is conceivable that the mere explanation of why information must be withheld can\n\n28 convey valuable information to a foreign intelligence agency.” See Hamdan, 797 F.3d at 775. 9\n\n\f1\n\nAccordingly, the Court finds that Defendant properly withheld information under\n\n2 Exemption 1.\n\n3\n\nii. Exemption 3 — Information Protected by Statute\n\n4\n\nDefendant asserts that the same seven DIOG pages withheld in full under Exemption 1 are\n\n5 also properly withheld under Exemption 3. Compare Hardy Decl. ¶ 44 with ¶ 47. The Court\n\n6 agrees.\n\n7\n\nExemption 3 protects information “specifically exempted from disclosure by statute . . . if\n\n8 that statute (A)(i) requires that the matters be withheld from the public in such a manner as to\n\n9 leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refer to\n\n10 particular types of matters to be withheld; and (B) if enacted after the date of enactment of the\n\n11 OPEN FOIA Act of 2009, specifically cites to the paragraph.” 5 U.S.C. § 552(b)(3); Berman v.\n\nUnited States District Court Northern District of California\n\n12 C.I.A., 501 F.3d 1136, 1140 (9th Cir. 2007). In determining whether information has been\n\n13 properly withheld under Exemption 3, the Court asks “whether the statute identified by the agency\n\n14 is a statute of exemption within the meaning of Exemption 3” and “whether the withheld records\n\n15 satisfy the criteria of the exemption statute.” Hamdan, 797 F.3d at 776.\n\n16\n\nAccording to Defendant, the FBI is required to “protect from unauthorized disclosure\n\n17 intelligence sources and methods” pursuant to Section 102A(i)(1) of the National Security Act of\n\n18 1947. Id. ¶¶ 49–50. Section 102A(i)(1) requires the Director of National Intelligence to “protect\n\n19 from unauthorized disclosure intelligence sources and methods.” Plaintiff does not appear to\n\n20 contest that Section 102A(i)(1) is a statute of exemption within the meaning of Exemption 3, see\n\n21 FPF MSJ at 15–19, and the Court finds that it is. See Berman, 501 F.3d at 1140.\n\n22\n\nThe Court is similarly satisfied that the withheld records would disclose intelligence\n\n23 sources and methods. Although, as Defendant acknowledges, the initial Hardy Declaration\n\n24 regarding Exemption 3 contains circular reasoning, the detail provided under Exemption 1\n\n25 demonstrates that the FBI also properly withheld portions of the DIOG under Exemption 3. Hardy\n\n26 states that the withheld pages detail intelligence activities or methods that are still used by the FBI\n\n27 today and that the relevant pages contain information gathered by the FBI on a specific type of\n\n28 individual or organization of national security interest. Hardy Decl. ¶¶ 42, 44. 10\n\n\f1\n\nPlaintiff vigorously asserts that Wiener, 943 F.2d at 977–78, requires more detail than\n\n2 Defendant provided here. FPF MSJ at 15–17. However, the Ninth Circuit has recently rejected\n\n3 that precise argument in a national security context like this one. See Hamdan, 797 F.3d at 775\n\n4 (“It is reasonable to say that the government can explain its reasons for withholding the records at\n\n5 issue in Wiener, relating to the government’s investigation of John Lennon twenty years earlier,\n\n6 with more detail than the records at issue here, in a case that relates to current intelligence and law\n\n7 enforcement activity of the government, including sensitive issues that may involve possible\n\n8 cooperation with foreign governments.”). As such, the Court accords “substantial weight” to the\n\n9 FBI’s declarations, see Hamdan, 797 F.3d at 769, and finds that Defendant has properly withheld\n\n10 documents under Exemption 3.\n\n11\n\niii. Exemption 5 — Privileged Information\n\n12\n\nDefendant purports to withhold portions of five categories of documents under Exemption\n\nUnited States District Court Northern District of California\n\n13 5: (1) Policy Implementation Guide; (2) DIOG; (3) NSL PowerPoint training presentation; and\n\n14 (4) internal emails regarding the creation and revision of the Policy Implementation Guide, DIOG,\n\n15 and Media Guidelines; and (5) OIP’s drafts of the Media Guidelines.\n\n16\n\nExemption 5 shields disclosure of “interagency or intra-agency memorandums or letters\n\n17 which would not be available by law to a party other than an agency in litigation with the agency.”\n\n18 5 U.S.C. § 552(b)(5). Information withheld under Exemption 5 must “satisfy two conditions: its\n\n19 source must be a Government agency, and it must fall within the ambit of a privilege against\n\n20 discovery under judicial standards that would govern litigation against the agency that holds it.”\n\n21 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Specifically,\n\n22 Exemption 5 covers the attorney-client privilege and the deliberative process privilege. Maricopa\n\n23 Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997). It is to be “applied as\n\n24 narrowly as consistent with efficient Government operation.” Lahr, 569 F.3d at 979.\n\n25\n\nPlaintiff argues that Defendant “has failed to provide sufficient information to determine if\n\n26 the [deliberative process or attorney-client] privilege applies” to the withheld information. FPF\n\n27 MSJ at 19.\n\n28 11\n\n\fa. Deliberative Process Privilege 1\n\n2\n\nThe deliberative process privilege “shields certain intra-agency communications from\n\n3 disclosure to allow agencies freely to explore possibilities, engage in internal debates, or play\n\n4 devil’s advocate without fear of public scrutiny.” Lahr, 569 F.3d at 979. To qualify under the\n\n5 deliberative process privilege, information must be both “predecisional” and “deliberative.” Id.\n\n6\n\nA document is “predecisional” if it is “prepared in order to assist an agency decisionmaker\n\n7 in arriving at his decision . . . .” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir.\n\n8 2002). This “may include recommendations, draft documents, proposals, suggestions, and other\n\n9 subjective documents which reflect the personal opinions of the writer rather than the policy of the\n\n10 agency.” Id. (quotation omitted); see also Lahr, 569 F.3d at 979–80. This contrasts with\n\n11 “postdecisional” documents such as “communications made after [a] decision [that are] designed\n\nUnited States District Court Northern District of California\n\n12 to explain it . . . .” N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975).\n\n13\n\nA document is “deliberative” if it is “actually . . . related to the process by which policies\n\n14 are formulated.” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1118–19 (9th Cir.\n\n15 1988) (quotation omitted). “[T]he key question . . . [is] whether the disclosure of materials would\n\n16 expose an agency’s decision-making process in such a way as to discourage candid discussion\n\n17 within the agency and thereby undermine the agency’s ability to perform its functions.” Assembly\n\n18 of State of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992), as amended on\n\n19 denial of reh’g (Sept. 17, 1992).\n\n20\n\nDefendant withheld information under the deliberative process privilege in four categories\n\n21 of documents: (1) Policy Implementation Guide; (2) DIOG; (3) internal emails; and (4) Media\n\n22 Guidelines. Plaintiff does not dispute that all the withheld documents are either non-final drafts or\n\n23 contain employee comments and recommendations on specific FBI policies. As such, Plaintiff\n\n24 does not appear to dispute that such documents were “predecisional.” Regardless, the Hardy\n\n25 Declaration specifically notes that these documents were sent “between personnel responsible for\n\n26 making policy decisions” and that the withheld documents “contain predecisional policy\n\n27 recommendations.” Suppl. Hardy Decl. ¶ 9. This is not mere ipse dixit. The Hardy Declarations\n\n28 and Vaughn Index provide sufficient detail about the policies and decisions at issue in each 12\n\n\f1 withheld category. In each, the FBI was evaluating its policies for conducting cyber\n\n2 investigations, including investigations into members of the news media and the use of NSLs.\n\n3\n\nThe withheld Policy Implementation Guide was a draft in which “FBI employees were\n\n4 engaged in deliberate comments in order to help formulate the FBI’s policies concerning how to\n\n5 conduct cyber investigations.” Vaughn Index at 1. The withheld pages of the DIOG included\n\n6 draft operational directives about the use of NSLs. Id. at 2; see also Hardy Decl. ¶ 26. The\n\n7 withheld emails included exchanges between personnel from the FBI’s Office of General Counsel\n\n8 about revising the Media Guidelines, including discussions of the legal implications of certain\n\n9 interpretations and applications of the guidelines. Id. at 5–6. And the withheld Media Guidelines\n\n10 were a red-lined draft with “comments, suggestions and proposed updates in the margin of the\n\n11 documents.” Hardy Decl. ¶ 31. As such, these documents are both predecisional and deliberative,\n\nUnited States District Court Northern District of California\n\n12 and thus fall squarely within the deliberative process privilege. Carter, 307 F.3d at 1089.\n\n13\n\nPlaintiff suggests that more detail is needed about the character of the decisions being\n\n14 made and how these documents influenced those decisions. See FPF MSJ at 20. Yet Defendant\n\n15 has already explained the nature of the withheld information. It need not disclose the specific\n\n16 comments or how the final policies ultimately changed in light of such feedback because that\n\n17 would create an end-run around the exemption. See Mobil Oil Corp. v. U.S. E.P.A., 879 F.2d 698,\n\n18 703 (9th Cir. 1989) (“[T]here is no merit to [the] argument that in order to establish the privileged\n\n19 character of a draft, [an agency] must show to what extent the draft differs from the final\n\n20 document. The effect of this would be to expose what occurred in the deliberative process\n\n21 between the draft’s creation and the final document’s issuance.” (quotation omitted)). Plaintiff’s\n\n22 reliance on United States v. Rozet, 183 F.R.D. 662, 666 (N.D. Cal. 1998), to argue otherwise is\n\n23 unavailing. That case merely stands for the proposition that even informal documents should be\n\n24 produced if they reflect an agency’s existing guidelines or current understanding of its own 25 policies.2\n\n26\n\n27\n\n2 Plaintiff points to four pages from a partially redacted email thread from February 2015 that it suggests are not deliberative since they contain solicitations from an FBI employee to OGC\n\n28\n\nseeking advice on agency procedure. FPF MSJ at 22. But Defendant stated that these pages were also withheld as exempt under the attorney-client privilege. Vaughn Index at 5. The Court\n\n13\n\n\f1\n\nPlaintiff next suggests that Exemption 5 cannot be invoked “where there is reason to\n\n2 believe the documents sought may shed light on government misconduct” because “shielding\n\n3 internal government deliberations in this context does not serve the public’s interest in honest,\n\n4 effective government.” In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997). Plaintiff’s\n\n5 argument cannot be reconciled with the Ninth Circuit’s opinion in Hamdan, which emphasized the\n\n6 deference given to government affidavits in cases involving national security issues. 797 F.3d at\n\n7 769. The Court highlighted that “government misconduct is easy to allege and hard to disprove,\n\n8 so courts must insist on a meaningful evidentiary showing.” Id. (citing Nat’l Archives & Records\n\n9 Admin. v. Favish, 541 U.S. 157, 175 (2004)) (internal quotation marks omitted). It was not\n\n10 enough in Hamdan for the plaintiffs to “pepper[] their briefs with allegations of FBI involvement\n\n11 in Hamdan’s abduction and torture by Emirati authorities, and suggestions that the agencies’\n\nUnited States District Court Northern District of California\n\n12 withholdings . . . are calculated to cover up proxy detention practices that allegedly would allow\n\n13 suspects to be detained and tortured by foreign governments.” Id. at 772–73. So too here.\n\n14 Moreover, general allegations of misconduct are insufficient to overcome the deliberative process\n\n15 privilege because “disproving the general, substantive allegations of misconduct is not the\n\n16 government’s obligation in FOIA litigation.” Lahr, 569 F.3d at 980. Plaintiff does not point to\n\n17 any specific, contemporaneous misconduct that may warrant disclosure, nor does it provide any\n\n18 evidence of such misconduct.\n\n19\n\nb. Attorney-Client Privilege\n\n20\n\n“The attorney-client privilege protects confidential communications between attorneys and\n\n21 clients, which are made for the purpose of giving legal advice.” United States v. Richey, 632 F.3d\n\n22 559, 566 (9th Cir. 2011). To claim the privilege, a party must show: (1) a communication;\n\n23 (2) between privileged persons; (3) made in confidence; (4) to solicit or provide legal advice. See\n\n24 United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002), as amended on denial of reh’g (Mar.\n\n25 13, 2002).\n\n26\n\nDefendant withheld information under the attorney-client privilege for two categories of\n\n27\n\n28 discusses this exemption below in Section III.D.iii.a. 14\n\n\f1 documents: (1) NSL PowerPoint training presentation and (2) internal emails. Hardy Decl.\n\n2 ¶¶ 53–54; Suppl. Hardy Decl. ¶¶ 11–12. The PowerPoint presentation was created to train\n\n3 employees on the issuance of NSLs. Hardy Decl. ¶ 28; Suppl. Hardy Decl. ¶ 12. Defendant\n\n4 withheld portions of the PowerPoint presentation that contained legal advice from the OGC to FBI\n\n5 employees on the use of NSLs as an investigative technique. Suppl. Hardy Decl. ¶¶ 11–12. The\n\n6 PowerPoint presentation was, at least in part, the method by which OGC provided FBI employees\n\n7 with legal advice. Id. ¶ 12. The withheld portions described legal issues and scenarios involving\n\n8 the use of NSLs. Id. The withheld emails similarly conveyed legal advice from OGC to FBI\n\n9 employees about the use of NSLs. Id. Any public information contained in the emails was\n\n10 intertwined with the attorneys’ legal advice in light of specific and general scenarios. Id. The\n\n11 information was not otherwise disclosed outside the agency. Id.\n\nUnited States District Court Northern District of California\n\n12\n\nPlaintiff argues that Defendant failed to describe in sufficient detail the nature of the\n\n13 withheld legal advice and to whom this legal advice was disseminated. Plaintiff further suggests\n\n14 that because the documents were not all marked “confidential” Defendant cannot claim the\n\n15 privilege.\n\n16\n\nThe Court disagrees and finds that Defendant has provided sufficient detail to demonstrate\n\n17 that the privilege applies to the withheld documents. Defendant explained that the withheld\n\n18 information involved advice solicited from or given by the OGC to FBI employees regarding the\n\n19 issuance of NSLs and their use as an investigative technique. See, e.g., Suppl. Hardy Decl. ¶¶ 11–\n\n20 12. The Vaughn Index similarly provides a reasonable description of the legal issue in question.\n\n21 Vaughn Index at 3–5, 7. The PowerPoint presentation in particular was a training tool for\n\n22 employees on the use of NSLs. Suppl. Hardy Decl. ¶ 12. That some of the documents were not\n\n23 marked confidential is simply inapposite. See In re Sealed Case, 737 F.2d 94, 102 (D.C. Cir.\n\n24 1984) (“[A]n express request for confidentiality is not required.”). These documents were\n\n25 maintained internally and Plaintiff has not pointed to circumstances that would suggest Defendant\n\n26 otherwise waived the privilege.\n\n27\n\n28 15\n\n\fiv. Exemption 7(E) — Investigative Techniques and Strategies 1\n\n2\n\nExemption 7(E) protects from disclosure law enforcement records that would reveal\n\n3 “techniques and procedures for law enforcement investigations or prosecutions, or would disclose\n\n4 guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably\n\n5 be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E); see also Hamdan, 797\n\n6 F.3d at 778 (rejecting argument that government must prove that disclosing its “techniques and\n\n7 procedures” would risk circumvention of the law). Because the FBI has a clear law enforcement\n\n8 mandate, it “need only establish a ‘rational nexus’ between enforcement of a federal law and the\n\n9 document for which [a law enforcement] exemption is claimed.” Rosenfeld v. U.S. Dep’t of\n\n10 Justice, 57 F.3d 803, 808 (9th Cir. 1995) (quotation omitted).\n\n11\n\nDefendant withheld information from five categories of documents under Exemption 7(E):\n\nUnited States District Court Northern District of California\n\n12 (1) Policy Implementation Guide; (2) DIOG; (3) Media Guidelines; (4) NSL PowerPoint training\n\n13 presentation; and (5) internal emails regarding the creation and revision of the Policy\n\n14 Implementation Guide, DIOG, and Media Guidelines.\n\n15\n\nPlaintiff’s challenge to Defendant’s use of Exemption 7(E) is narrow. First, Plaintiff\n\n16 argues that Defendant improperly withheld information because Defendant failed to provide an\n\n17 adequate explanation of what was withheld and how disclosure would risk circumvention of the\n\n18 law. Second, Plaintiff argues exemption was improper because the use of NSLs is already\n\n19 publicly known.\n\n20\n\nHere too, however, the Court finds Defendant has met its burden and properly withheld\n\n21 documents under Exemption 7(E) for all five categories of documents. Defendant described with\n\n22 particularity that the withheld documents all contained non-public information about the FBI’s\n\n23 investigative techniques and procedures. These pages not only identified NSLs as an investigative\n\n24 technique, but also described information such as the circumstances under which the techniques\n\n25 should be used, how to analyze the information gathered through these techniques, and the current\n\n26 focus of the FBI’s investigations. See, e.g., Hardy Decl. ¶¶ 66–67; Suppl. Hardy Decl. ¶¶16–17.\n\n27 As in Hamdan, the Court concludes that the declarations, which state that further detail would\n\n28 “reveal[] the very information it seeks to protect,” Suppl. Hardy Decl. ¶ 13, are sufficient to satisfy 16\n\n\f1 Defendant’s burden. Hamdan, 797 F.3d at 778; accord Lewis-Bey v. U.S. Dep’t of Justice, 595 F.\n\n2 Supp. 2d 120, 138 (D.D.C. 2009) (upholding government’s withholding of “the circumstances\n\n3 under which [electronic surveillance] techniques were used, the specific timing of their use, and\n\n4 the specific location where they were employed.”).\n\n5\n\nPlaintiff misreads the statute in demanding an explanation for how disclosure of these\n\n6 techniques would harm the FBI’s interests. The Ninth Circuit rejected this very argument in\n\n7 Hamdan, finding it “an unpersuasive reading of the statutory text and structure.” Hamdan, 797\n\n8 F.3d at 778. Even so, Defendant provided over twelve pages of additional explanation in the\n\n9 Supplemental Hardy Declaration. See Suppl. Hardy Decl. at 9–21. Defendant explains, for\n\n10 example, that “[a]ccess to such detailed information would greatly increase the risk that potential\n\n11 lawbreakers would be able to evade detection and/or be emboldened to engage in criminal\n\nUnited States District Court Northern District of California\n\n12 activities” as they could “improve the ability of such individuals to take countermeasures to\n\n13 circumvent the effectiveness of the techniques and to continue to violate the law and engage in\n\n14 intelligence, terrorist, and criminal activities.” Id. ¶¶ 16–18, 20. Withholding information about\n\n15 the logistics of where and to whom information is reported is similarly essential to prevent\n\n16 individuals from “seek[ing] to sway, infiltrate, or otherwise undermine the FBI operations . . . .”\n\n17 Id. ¶ 19.\n\n18\n\nv. Official Acknowledgment\n\n19\n\nPlaintiff argues that even if an exemption otherwise applies, five paragraphs of Section 18\n\n20 and Appendix G of the DIOG have already been publicly released by the FBI in unclassified form\n\n21 and thus that information cannot be withheld. FPF MSJ at 34. An official acknowledgment\n\n22 requires that the information requested be as specific as the information previously released, match\n\n23 the information previously disclosed, and already have been made public through an official and\n\n24 documented disclosure. Pickard v. Dep’t of Justice, 653 F.3d 782, 786 (9th Cir. 2011) (quoting\n\n25 Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). Plaintiff “bear[s] the initial burden of\n\n26 pointing to specific information in the public domain that appears to duplicate that being\n\n27 withheld.” Wolf v. CIA, 473 F.3d at 378. Here, although Plaintiff has pointed to an unclassified\n\n28 version of Appendix G, it has missed the critical step of specifying how the material being 17\n\n\f1 withheld “matches” any previously disclosed material. Without more specificity, the Court cannot\n\n2 conclude that Defendant waived its ability to assert any FOIA exemptions.\n\n3\n\nvi. Segregability\n\n4\n\nFOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to\n\n5 any person requesting such record after deletion of the portions which are exempt under this\n\n6 subsection.” 5 U.S.C. § 552(b). “The burden is on the agency to establish that all reasonably\n\n7 segregable portions of a document have been segregated and disclosed.” Pac. Fisheries, Inc., 539\n\n8 F.3d at 1148. Nevertheless, the agency is also “entitled to a presumption that [it] complied with\n\n9 the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494\n\n10 F.3d 1106, 1117 (D.C. Cir. 2007). Similarly, the Court “may rely on an agency’s declaration in\n\n11 making its segregability determination. Agency affidavits that are sufficiently detailed are\n\nUnited States District Court Northern District of California\n\n12 presumed to be made in good faith and may be taken at face value.” Hamdan, 797 F.3d at 779.\n\n13 The Court “need not conduct a page-by-page review of an agency’s work.” Id.\n\n14\n\nAlthough the segregability paragraph is boilerplate, the Court finds that Defendant has met\n\n15 its burden through its tailored explanations of the withheld documents. Defendant conducted an\n\n16 extensive review of the documents in question, including “a line by line review of the responsive\n\n17 records.” Hardy Decl. ¶ 24. Defendant also provided a description as to why it withheld\n\n18 particular documents — and even why it withheld particular pages — in whole or in part\n\n19 following that review. Defendant similarly avers that it “has made every effort to provide plaintiff\n\n20 with all material in the public domain and has taken all reasonable efforts to ensure that no\n\n21 segregable, nonexempt portions were withheld from the plaintiff.” Id. Plaintiff’s only argument\n\n22 in response is that the sheer volume of pages withheld under the deliberate process doctrine\n\n23 “suggests that the FBI likely has failed to make an adequate effort to segregate non-exempt\n\n24 material from exempt material, as FOIA requires.” FPF MSJ at 35. The question is not whether\n\n25 Defendant withheld numerous pages, but rather whether they were properly withheld and\n\n26 segregated. Plaintiff’s speculative suggestion is not enough to overcome the presumption of good\n\n27 faith. Hamdan, 797 F.3d at 779.\n\n28 18\n\n\fvii. In Camera Review 1\nThe Court can review documents in camera to determine whether exemptions have been 2\nproperly asserted. 5 U.S.C. § 552(a)(4)(B). In camera inspection, however, should “not be 3\nresorted to lightly,” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), and is “disfavored” where 4\n“the government sustains its burden of proof by way of its testimony or affidavits.” Lion Raisins 5\nv. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “In camera inspection is particularly a 6\nlast resort in national security situations like this case — a court should not resort to it routinely on 7\nthe theory that it can’t hurt.” ACLU v. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011). The 8\nCourt finds that in camera review is unnecessary here as Defendant already provided sufficiently 9\ndetailed factual information in support of its exemptions in the Hardy Declarations and Vaughn 10\nIndex. As discussed, Plaintiff has failed to overcome the good faith presumption to which they are 11\nentitled. Hamdan, 797 F.3d at 770. 12\n\nIV. CONCLUSION 13\nFor the foregoing reasons, the Court finds that Defendant is entitled to summary judgment\n14 on Plaintiff’s FOIA claim. Accordingly, Defendant’s Motion for Summary Judgment is\n15 GRANTED in its entirety, and Plaintiff’s Motion for Summary Judgment is DENIED. The clerk\n16 is directed to enter judgment in favor of Defendant and close the file.\n17 IT IS SO ORDERED.\n18 Dated: 3/13/2017\n19 ______________________________________\n\n20\n\nHAYWOOD S. GILLIAM, JR.\n\nUnited States District Judge 21\n\nUnited States District Court Northern District of California\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28 19\n\n\f", "Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 1 of 6\nADRMOP,CLOSED\nU.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15−cv−03503−HSG\n\nFreedom of the Press Foundation v. United States Department of Date Filed: 07/30/2015\n\nJustice\n\nDate Terminated: 03/13/2017\n\nAssigned to: Judge Haywood S Gilliam, Jr\n\nJury Demand: None\n\nCause: 05:552 Freedom of Information Act\n\nNature of Suit: 895 Freedom of\n\nInformation Act\n\nJurisdiction: U.S. Government Defendant\n\nPlaintiff\n\nFreedom of the Press Foundation\n\nrepresented by Ahmed Ghappour 200 McAllister St San Francisco, CA 94602 415−505−5083 Email: ghappour@uchastings.edu ATTORNEY TO BE NOTICED\n\nDiana Victoria Baranetsky The Center for Investigative Reporting 1400 65th Street Suite 200 Emeryville, CA 94608 510−809−3160 Fax: 510−849−6141 Email: vbaranetsky@revealnews.org TERMINATED: 05/18/2016 ATTORNEY TO BE NOTICED\n\nMarcia Clare Hofmann Zeitgeist Law PC 25 Taylor Street San Francisco, CA 94102 415−830−6664 Email: marcia@marciahofmann.com ATTORNEY TO BE NOTICED\n\nV. Defendant United States Department of Justice\n\nrepresented by Andrew Marshall Bernie Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 United Sta 202−616−8488 Email: andrew.m.bernie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED\nNeill Tai Tseng United States Attorney's Office 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 (415) 436−7155 Fax: (415) 436−6748 Email: neill.tseng@usdoj.gov TERMINATED: 02/08/2017 ATTORNEY TO BE NOTICED\n\n\fCase: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 2 of 6\n\nAmicus\nReporters Committee for Freedom of the Press\n\nrepresented by Townsend KatieLynn Reporters Committee for Freedom of the Press 1156 15th St. NW Suite 1250 Washington, DC 20005 202.795.9300 Email: ktownsend@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED\n\nDate Filed 07/30/2015 07/30/2015 07/30/2015 07/30/2015\n07/30/2015 07/30/2015 07/30/2015 07/31/2015 07/31/2015 07/31/2015 07/31/2015\n\n# Docket Text\n1 COMPLAINT against United States Department of Justice ( Filing fee $ 400, receipt number 0971−9719556.). Filed byFreedom of the Press Foundation. (Attachments: # 1 Civil Cover Sheet)(Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)\n2 Proposed Summons. (Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)\n3 Certificate of Interested Entities by Freedom of the Press Foundation (Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)\n4 Case assigned to Hon. Haywood S Gilliam, Jr.\nCounsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.\nStanding orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (bwS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)\n5 Summons Issued as to United States Department of Justice (dtmS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)\n6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/27/2015. Case Management Conference set for 11/3/2015 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (dtmS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)\n7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−9722378.) filed by Freedom of the Press Foundation. (Attachments: # 1 Supplement NY Certificate of Good Standing, # 2 Supplement NJ Certificate of Good Standing)(Baranetsky, Diana) (Filed on 7/30/2015) (Entered: 07/30/2015)\n8 ORDER by Judge Haywood S. Gilliam, Jr. Granting 7 Motion for Pro Hac Vice. (ndrS, COURT STAFF) (Filed on 7/31/2015) (Entered: 07/31/2015)\n9 CERTIFICATE OF SERVICE by Freedom of the Press Foundation (Hofmann, Marcia) (Filed on 7/31/2015) (Entered: 07/31/2015)\nElectronic filing error. E−filer's Attestation Required. http://cand.uscourts.gov/ecf/signatures Re: 9 Certificate of Service filed by Freedom of the Press Foundation (dtmS, COURT STAFF) (Filed on 7/31/2015) (Entered: 07/31/2015)\n10 CERTIFICATE OF SERVICE by Freedom of the Press Foundation re 5 Summons Issued as to USA, 6 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 8 Order on Motion for Pro Hac Vice, 1 Complaint (Baranetsky, Diana) (Filed on 7/31/2015) (Entered: 07/31/2015)\n\n\fCase: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 3 of 6\n\n09/02/2015 10/13/2015 10/13/2015 10/13/2015 10/13/2015 10/14/2015\n10/22/2015\n10/27/2015 10/29/2015 11/02/2015 11/03/2015\n\n11 Defendant's ANSWER to Complaint for Injunctive Relief byUnited States Department of Justice. (Tseng, Neill) (Filed on 9/2/2015) (Entered: 09/02/2015)\n12 NOTICE of Appearance by Andrew Marshall Bernie (Bernie, Andrew) (Filed on 10/13/2015) (Entered: 10/13/2015)\n13 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Hofmann, Marcia) (Filed on 10/13/2015) (Entered: 10/13/2015)\n14 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Hofmann, Marcia) (Filed on 10/13/2015) (Entered: 10/13/2015)\n15 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Bernie, Andrew) (Filed on 10/13/2015) (Entered: 10/13/2015)\n16 ADR Clerk's Notice Setting ADR Phone Conference on October 22, 2015 at 10:30 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 10/14/2015) (Entered: 10/14/2015)\nADR Remark: ADR Phone Conference held by Tamara Lange, ADR Program Staff Attorney, on 10/22/2015. A further ADR Phone Conference is scheduled on 1/20/2016 at 10:00 AM Pacific time. The call−in information remains the same. (af, COURT STAFF) (Filed on 10/22/2015) Modified on 10/22/2015 (af, COURT STAFF). (Entered: 10/22/2015)\n17 CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Baranetsky, Diana) (Filed on 10/27/2015) (Entered: 10/27/2015)\n18 Consent MOTION to Appear by Telephone at the November 3, 2015 Case Management Conference filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Bernie, Andrew) (Filed on 10/29/2015) (Entered: 10/29/2015)\n19 ORDER by Judge Haywood S. Gilliam, Jr. Granting 18 Motion to Appear by Telephone at the November 3, 2015 Case Management Conference. (ndrS, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/02/2015)\n20 Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Case Management Conference held on 11/3/2015. FTR Time 2:14−2:26 (12 Minutes). Plaintiff Attorney Marcia Hoffman; D. Victoria Baranetsky. Defendant Attorney Andrew Berbia appeaeing via CourtCall. Matter is continued to January 19, 2016 at 2:00 for further case management conference. Court not opposed to counsel for Defendant appearing via CourtCall at the next case management conference upon request.\n\n(This is a text minute entry, there is no document associated with this entry.)\n\n01/11/2016 01/11/2016\n01/12/2016 01/19/2016\n\n(ndrS, COURT STAFF) (Date Filed: 11/3/2015) (Entered: 11/04/2015)\n21 Consent MOTION to Appear by Telephone at the January 19, 2016 Case Management Conference filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Bernie, Andrew) (Filed on 1/11/2016) (Entered: 01/11/2016)\n22 ORDER by Judge Haywood S. Gilliam, Jr. Granting 21 Motion to Appear by Telephone at the January 19, 2016 Case Management Conference. Counsel shall contact CourtCall at (866) 582−6878 to make arrangements for the telephonic appearance. (ndrS, COURT STAFF) (Filed on 1/11/2016) (Entered: 01/11/2016)\n23 CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Hofmann, Marcia) (Filed on 1/12/2016) (Entered: 01/12/2016)\n24 Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Further Case Management Conference held on 1/19/2016 (16 minutes). FTR Time 2:02−2:18. Plaintiff Attorney Marcia Hoffman; D. Victoria Baranetsky. Defendant Attorney Andrew Bernie appearing via CourtCall. The parties are directed to meet and confer regarding briefing schedule and e−file a stipulation and proposed order by the end of the day on Friday, January 23, 2016. The Court sets March 21, 2016 as the deadline to exchange the Vaughn index. Parties are directed to follow through with their currently scheduled ADR call.\n\n\fCase: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 4 of 6\n\n01/20/2016 01/21/2016 01/21/2016 01/21/2016\n01/28/2016 04/01/2016 04/11/2016\n05/09/2016\n05/17/2016 05/18/2016 06/01/2016 06/03/2016 06/03/2016 06/10/2016\n\n(This is a text minute entry, there is no document associated with this entry.)\n(ndrS, COURT STAFF) (Date Filed: 1/19/2016) (Entered: 01/20/2016)\nADR Remark: ADR Phone Conference held by TL on 1/20/2016. (af, COURT STAFF) (Filed on 1/20/2016) (Entered: 01/20/2016)\n25 STIPULATION WITH PROPOSED ORDER Concerning Briefing Schedule filed by United States Department of Justice. (Bernie, Andrew) (Filed on 1/21/2016) (Entered: 01/21/2016)\n26 ORDER by Judge Haywood S. Gilliam, Jr. Granting 25 Stipulation Concerning Briefing Schedule. (ndrS, COURT STAFF) (Filed on 1/21/2016) (Entered: 01/21/2016)\nSet Deadlines/Hearings Pursuant to Docket No. 26 : Case Management Statement due by 4/1/2016; Motions due by 5/9/2016. Responses/Cross Motions due by 6/10/2016; Replies/Oppositions due by 7/1/2016; Replies due by 7/1/2016; Motion Hearing set for 8/11/2016 02:00 PM before Hon. Haywood S Gilliam Jr.. (ndrS, COURT STAFF) (Filed on 1/21/2016) (Entered: 01/21/2016)\n27 NOTICE by Freedom of the Press Foundation of Change of Law Practice Name (Hofmann, Marcia) (Filed on 1/28/2016) (Entered: 01/28/2016)\n28 CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Baranetsky, Diana) (Filed on 4/1/2016) (Entered: 04/01/2016)\n29 ORDER directing Defendant to notice the motion for summary judgment due May 9, 2016, for hearing on August 18, 2016, at 2:00 pm in Courtroom 10, 19th Floor, San Francisco. Any cross−motion for summary judgment by Plaintiff should also be noticed for August 18, 2016. The motion hearing previously set for August 11, 2016, is vacated. (This is a text−only entry; there is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 4/11/2016) (Entered: 04/11/2016)\n30 MOTION for Summary Judgment filed by United States Department of Justice. Motion Hearing set for 8/18/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 6/10/2016. Replies due by 7/1/2016. (Attachments: # 1 Declaration Declaration of David Hardy, # 2 Exhibit Exhibits to Declaration of David Hardy, # 3 Proposed Order)(Bernie, Andrew) (Filed on 5/9/2016) (Entered: 05/09/2016)\n31 STIPULATION WITH PROPOSED ORDER Substituting Counsel filed by Freedom of the Press Foundation. (Ghappour, Ahmed) (Filed on 5/17/2016) (Entered: 05/17/2016)\n32 ORDER by Judge Haywood S. Gilliam, Jr. Granting 31 STIPULATION OF SUBSTITUTION OF COUNSEL FOR PLAINTIFF FREEDOM OF THE PRESS FOUNDATION. (ndrS, COURT STAFF) (Filed on 5/18/2016) (Entered: 05/18/2016)\n33 STIPULATION WITH PROPOSED ORDER to Exceed Page Limit filed by Freedom of the Press Foundation. (Hofmann, Marcia) (Filed on 6/1/2016) (Entered: 06/01/2016)\n34 DISREGARD, INCORRECT DOCUMENT ATTACHED. SEE DOCKET NO. [35[ FOR CORERCT ORDER. ORDER by Judge Haywood S. Gilliam, Jr. Granting 33 Stipulation to Exceed Page Limit. (ndrS, COURT STAFF) (Filed on 6/3/2016) Modified on 6/7/2016 (ndrS, COURT STAFF). (Entered: 06/03/2016)\n35 ORDER Granting 33 STIPULATION to Exceed Page Limit. Signed by Judge Haywood S. Gilliam, Jr. on 6/3/2016. (ndrS, COURT STAFF) (Filed on 6/3/2016) (Entered: 06/07/2016)\n36 MOTION to File Amicus Curiae Brief of the Reporters Committee for Freedom of the Press and 37 Media Organizations and Brief Amicus Curiae in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment filed by Reporters Committee for Freedom of the Press. Motion Hearing set for 8/18/2016 02:00 PM in\n\n\fCase: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 5 of 6\n\n06/10/2016 06/10/2016\n06/10/2016\n06/10/2016 06/13/2016 06/24/2016\n06/27/2016 06/27/2016 06/27/2016 07/15/2016 08/08/2016 08/08/2016 08/18/2016\n\nCourtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 6/24/2016. Replies due by 7/1/2016. (KatieLynn, Townsend) (Filed on 6/10/2016) (Entered: 06/10/2016)\n37 RESPONSE (re 30 MOTION for Summary Judgment ) and CROSS MOTION for Summary Judgment filed byFreedom of the Press Foundation. (Attachments: # 1 Proposed Order)(Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)\n38 Declaration of Marcia Hofmann in Support of 37 Opposition/Response to Motion and Cross Motion for Summary Judgment filed byFreedom of the Press Foundation. (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)(Related document(s) 37 ) (Hofmann, Marcia) (Filed on 6/10/2016) (Entered: 06/10/2016)\n39 EXHIBIT 10 re 38 Declaration in Support, filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 10 part 1, # 2 Exhibit 10 part 2, # 3 Exhibit 10 part 3, # 4 Exhibit 10 part 4, # 5 Exhibit 10 part 5, # 6 Exhibit 10 part 6, # 7 Exhibit 10 part 7)(Related document(s) 38 ) (Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)\n40 EXHIBITS 11 − 15 re 38 Declaration in Support, filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15)(Related document(s) 38 ) (Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)\nElectronic filing error. Incorrect event used. Correct event is EXHIBIT.Corrected by Clerk's Office. No further action is necessary. Re: 40 Declaration in Support, 39 Declaration in Support, filed by Freedom of the Press Foundation (dtmS, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/13/2016)\n41 STIPULATION WITH PROPOSED ORDER To Extend by Fourteen Days Defendant's Deadline to File its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment filed by United States Department of Justice. (Bernie, Andrew) (Filed on 6/24/2016) (Entered: 06/24/2016)\n42 ORDER by Judge Haywood S. Gilliam, Jr. Granting 41 Stipulation Extend by Fourteen Days Defendant's Deadline to File its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)\nReset Deadline Pursuant to Docket No. 42 as to 30 MOTION for Summary Judgment : Replies due by 7/15/2016. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)\n43 ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 36 Motion to File Amicus Curiae Brief. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)\n44 REPLY (re 30 MOTION for Summary Judgment ) and Opposition to Plaintiff's Cross−Motion for Summary Judgment filed byUnited States Department of Justice. (Attachments: # 1 Declaration)(Bernie, Andrew) (Filed on 7/15/2016) (Entered: 07/15/2016)\n45 REPLY (re 30 MOTION for Summary Judgment ) filed byFreedom of the Press Foundation. (Hofmann, Marcia) (Filed on 8/8/2016) (Entered: 08/08/2016)\n46 Declaration of Marcia Hofmann in Support of 45 Reply to Opposition/Response (Supplemental) filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 45 ) (Hofmann, Marcia) (Filed on 8/8/2016) (Entered: 08/08/2016)\n47 Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Motion Hearing held on 8/18/2016 (Total Time in Court 35 Minutes). Court Reporter Name Rhonda Aquilina. Plaintiff Attorney Marcia Hoffman. Defendant Attorney Andrew Bernie. The parties cross motions for summary judgment (docket nos. 30 , 37 ) are argued and submitted by the parties, and taken under submission by the\n\n\fCase: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 6 of 6\n\n02/07/2017 02/08/2017 03/01/2017\n03/13/2017 03/13/2017\n\nCourt. This is a text only Minute Entry (ndrS, COURT STAFF) (Date Filed: 8/18/2016) (Entered: 08/19/2016)\n48 NOTICE of Withdrawal of Counsel Neill T. Tseng and Proposed Order Permitting Withdrawal by United States Department of Justice (Tseng, Neill) (Filed on 2/7/2017) Modified on 2/8/2017 (alsS, COURT STAFF). (Entered: 02/07/2017)\n49 ORDER Granting 48 Notice of Withdrawal of Counsel Neill T. Tseng and Permitting Withdrawal. Signed by Judge Haywood S. Gilliam, Jr. on 2/8/2017. (ndrS, COURT STAFF) (Filed on 2/8/2017) (Entered: 02/08/2017)\n50 CLERKS NOTICE REGARDING CHANGE OF LOCATION FOR JUDGE GILLIAM:\nEffective March 2, 2017, Judge Haywood S. Gilliam, Jr.'s courtroom and chambers will be located in the Ronald V. Dellums Federal Building and United States Courthouse, Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612.\nOn or after March 2, 2017, all filings for matters pending on Judge Gilliam's docket, all court appearances, and all deliveries of chambers copies of documents must be made at the Oakland Courthouse. The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.\nPlease note that all of Judge Gilliam's case files will be moved to the Oakland Courthouse; therefore, all case numbers assigned to him will be changed slightly to reflect the correct location. Previously, all case numbers started with 3 to indicate the San Francisco office (Example: 3:15−cv−1129−HSG). As of March 2, 2017 all of Judge Gilliam's case files will begin with 4 to indicate the Oakland office, but everything else will stay the same (Example: 4:15−cv−1129−HSG). When e−filing, using the short case number format will always avoid problems when searching for the correct case: 12−12345 (YY−NNNNN).\nFor information on the Oakland Courthouse please go to: http://cand.uscourts.gov/locations−oakland\nThis is a text only docket entry; there is no document associated with this notice. (slhS, COURT STAFF) (Filed on 3/1/2017) (Entered: 03/01/2017)\n51 ORDER by Judge Haywood S. Gilliam, Jr. RE ( 30 , 37 ) CROSS MOTIONS FOR SUMMARY JUDGMENT. (ndrS, COURT STAFF) (Filed on 3/13/2017) (Entered: 03/13/2017)\n52 CLERK'S JUDGMENT in favor of United States Department of Justice against Freedom of the Press Foundation. (ndrS, COURT STAFF) (Filed on 3/13/2017) (Entered: 03/13/2017)\n\n\f" ]
On July 30, 2015, the Freedom of the Press Foundation (a non-profit organization focusing on First Amendment press rights) sued the U.S. Department of Justice in the Northern District of California seeking injunctive relief under the Freedom of Information Act. Plaintiff sought the expedited processing and release of records from the FBI concerning the procedures by which the Bureau issues National Security Letters ("NSLs") and exigent letters to investigate members of the press. Plaintiff believes that the records met FOIA’s requirements for expedited processing as they are are “of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(v)(II). 18 U.S.C. § 2709 authorizes the FBI to NSLs to obtain subscriber information, toll billing records, and transactional records from wire or electronic communications service providers in national security investigations. The FBI issues these NSLs without any prior judicial review, and Section 2709(c) allows the FBI to impose an indefinite nondisclosure order on an NSL recipient. Similarly, exigent letters allow the FBI to obtain phone records in emergency situations without serving prior legal process. In three cases simultaneously before the Ninth Circuit, the constitutionality of the NSL framework was being challenged, though the practice of issuing NSLs continues. See Under Seal v. Lynch, Nos. 13-15957, 13-16731, 13-16732 (9th Cir. argued Oct. 8, 2014). FBI procedures for interacting with the media are contained in a publicly available document called “Media Guidelines.” The latest update to the Guidelines in January 2015 contains no procedures for issuing NSLs or exigent letters, so Plaintiff requested this information in a FOIA request dated March 10, 2015. While the FBI granted the request for expedited processing only ten days later, the agency has yet to make a final determination to release the records. Plaintiff appealed the constructive denial in May 2015, and received a letter in July indicating that the request would take a further seven months to be decided upon. This is far beyond the generally applicable twenty-day deadline for processing any FOIA request. A hearing schedule was set on January 21, 2016 and the hearing occurred on August 18, 2016. On March 13, 2017, the Court (Judge Haywood S. Gilliam) granted summary judgment in favor of the defendant. The Court found that the defendant conducted an adequate search in response to the request, and properly invoked exemption 1 (authorized to be kept secret in the interest of national defense by Executive Order), exemption 3 (exempted from disclosure by statute), exemption 5 (exempted from disclosure because document is an interagency or intra-agency memorandum which should not be available by law to a party other than an agency unless in litigation with the agency), exemption 7(E) (exempted from disclosure as it is a law enforcement record that would reveal techniques and procedures for law enforcement investigations, prosecutions, or guidelines for investigations or prosecutions). The Court also found the plaintiff did not sufficiently specify how the withheld material matched previously disclosed material and thus could not raise Official Acknowledgment over the FOIA exemptions. Next, the Court found the defendant appropriated segregated and disclosed the portions of documents that were not exempted. Finally, the Court denied a request of in camera review, finding the defendant sufficiently supported its exemptions. 241 F. Supp. 3d 986. The case is now closed.
A non-profit organization dealing with rights of the press sued the USDOJ over its unreasonable withholding of a FOIA request about the FBI's use of National Security Letters and exigent letters to retain information about the press. These methods of investigation allow for seizure of phone records and other telecom info without prior legal process. The FBI's criteria for issuing NSLs and exigent letters was not contained in the most recent version of its Media Guidelines, so Plaintiff submitted a FOIA request in March 2015. In March 2017, the Court granted summary judgment in favor of the defendant, finding that the defendant properly withheld information under FOIA exemptions 1, 3, 5, and 7(E).
FH-DE-0001
[ "Case 1:99-mc-09999 Document 97 Filed 03/04/10 Page 1 of 7\n\nUNITED STATES DISTRICT COURT DISTRICT OF DELAWARE\n\n. UNITED STATES OF AMERICA, Plaintiff, )\n\n)\n\nv.\n\n)\n\n)\n\nAIG FEDERAL SAVINGS BANK and\n\n)\n\nWILMINGTON FINANCE, INC.,\n\n)\n\nDefendants.\n\n)\n\n)\n\nNo. COMPLAINT\n\nThe United States of America alleges: 1. This action is brought by the United States to enforce the provisions of the Fair Housing Act, 42 US.C. §§ 3601-3619 (FHA), and the Equal Credit Opportunity Act, 15 US.C. §§ 1691-169lf(ECOA). 2. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1345,42 U.S.c. § 3614, and 15 US.C. § 1691(h). Venue is appropriate pursuant to 28 U.S.C. § 1391. 3. AIG Federal Savings Bank (AIG FSB) is a wholly-owned subsidiary of American International Group, Inc. It is a federal savings bank with its principal place ofbusiness at One Alico Plaza, 600 King Street, Wilmington, Delaware. AIG FSB engages in business typical of a financial depository and lending institution, including extending credit and making loans for the purchase of dwellings, and making loans secured by residential real estate. AIG FSB is subject to the regulatory authority ofthe Office of Thrift Supervision (OTS). 4. Wilmington Finance, Inc., (WFI) is also a wholly-owned subsidiary of American International Group, Inc. It is a Delaware corporation with its principal place of business at 401 Plymouth Road, Plymouth Meeting, Pennsylvania. WFI is a mortgage company that engages in residential mortgage lending though marketing, sourcing, processing, underwriting, and closing\n\n\fCase 1:99-mc-09999 Document 97 Filed 03/04/10 Page 2 of 7\nunderwriting, and closing loans. 5. AlG FSB and WFI are subject to Federal laws governing fair lending, including the\nFHA and ECOA and the regulations promulgated under each of those laws. The FHA and the ECOA prohibit financial institutions from discriminating on the basis of, inter alia, race or color in their lending practices. AlG FSB and WFI are and have been \"creditors\" within the meaning of section 702(e) of the ECOA, 15 U.S.C. § 1691a(e), and have engaged in \"residential real estate-related transactions\" within the meaning of section 805 ofthe FHA, 42 U.S.C. § 3605.\n6. In October 2007 the OTS conducted an examination ofthe lending practices of AlG FSB to evaluate its compliance with, among other laws, the Fair Housing Act and the Equal CreditOpportunityAct. Based on information gathered in its examination, the OTS determined that it had reason to believe that AlG FSB and WFI had engaged in a pattern or practice of discrimination on the basis of race by charging black borrowers higher broker fees than similarly . situated white borrowers.\n7. On December 21,2007, following its determination described in the previous paragraph, the OTS referred this matter to the United States Department of Justice pursuant to 15 U.S.C. § 1691e(g).\n8. Between approximately July 2003 and May 2006, pursuant to a Mortgage Loan Services Agreement between AlG FSB and WFI (Defendants), AlG FSB funded mortgage loans for which WFI provided marketing, sourcing (including identifying, approving, and monitoring mortgage loan brokers), processing,underwriting, closing, funding, and investor-finding services.\n9. All loans made under the Mortgage Loan Services Agreement were originated by WFI\n-2-\n\n\fCase 1:99-mc-09999 Document 97 Filed 03/04/10 Page 3 of 7\non behalf ofAIG FSB and funded by and in the name of AIG FSB in accordance with AIG FSB's credit underwriting standards and other policies and procedures.\n10. The services perfonned by WFI under the Mortgage Loan Services Agreement for and on behalf of AIG FSB included, but were not limited to, identifying, approving, and monitoring mortgage loan brokers; preparation and transmission of rate, product, and other infonnation on mortgage loans to mortgage brokers; provision of pre-application loan-grading and qualification services to mortgage brokers and consumers; creation of loan applications and packages from infonnation received from mortgage brokers and consumers; preparation and dissemination oflegal disclosures and notifications to loan applicants; processing and documenting loan applications; and underwriting all loan applications in the name of AIG FSB.\n11. Under the Mortgage Loan Services Agreement, between 2003 and 2006 WFI originated and AIG FSB funded approximately 179,000 home mortgage loans throughout the United States. Approximately 94% of these loans were \"wholesale\" loans procured by WFI\n- - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - -\nthrough third-party mortgage brokers. 12. Mortgage brokers who supplied WFI and AIG FSB with wholesale loans were\ncompensated in two ways: through direct fees paid by borrowers to brokers, and/or through yieldspread premiums paid by WFI and AIG FSB to brokers. Taken together, this compensation is hereinafter referred to collectively as \"total broker fees.\"\n13. It was the policy and practice ofWFI and AIG FSB to allow brokers unsupervised and subjective discretion in setting the amount oftheir direct fees. WFI and AIG FSB placed ceilings on the amount of the yield-spread premium that could be paid to a broker in connection with a loan, but did not place any ceiling on direct fees. WFI and AIG FSB did not establish any\n-3-\n\n\fCase 1:99-mc-09999 Document 97 Filed 03/04/10 Page 4 of 7\nobjective criteria to be followed by the brokers in setting direct fees, or oversee or supervise brokers in setting the amounts of direct fees, or monitor the amounts of direct fees for racially discriminatory disparities.\n14. For each loan originated under the Mortgage Loan Services Agreement, information about each borrower's race and the amounts and types of broker fees paid was available to, and was known or reasonably should have been known by WFI and AlG FSB prior to the approval and funding ofthe loan.\n15. From July 2003 to May 2006 black borrowers nationwide were charged total broker fees 20 basis points higher! as a percentage of the loan amount, on average, than the total broker fees charged to white borrowers for WFI and AlG FSB's loans. These disparities extended to at least the following 19 metropolitan areas in which AlG FSB and WFI made a substantial number - - - - - - - - -of brokered-loans-to black-and white-borrowers: Atlanta, Baltimore, Birmingham, Cincinnati, Chicago, Cleveland, Detroit, Hartford, Kansas City, Las Vegas, Memphis, Nassau County, New York, Orlando, Philadelphia, Phoenix, Portland OR, St. Louis, and Tampa. In these MSAs black borrowers paid total broker fees ranging from 25 to 75 basis points higher, on average, than the total broker fees paid by white borrowers. All of these disparities are statistically significant.\n16. The higher total broker fees charged to black borrowers are a result ofWFI and AlG FSB's policy and practice of allowing unsupervised and subj ective discretion by brokers in the setting of direct fees, and cannot be fully explained by factors unrelated to race that WFI and AlG FSB claim were taken into account.\n! One basis point represents one hundredth of a percentage point (0.01 %); thus a 25 basis point differential represents one quarter of one percent.\n-4-\n\n\fCase 1:99-mc-09999 Document 97 Filed 03/04/10 Page 5 of 7\n17. WFI and AIG FSB's policy and practice of allowing unsupervised and subj ective discretion by brokers in the setting of direct fees is not justified by business necessity or legitimate business interests.\n18. The Defendants' policies and practices, as alleged herein, constitute: a. Discrimination on the basis of race or color in making available, or in the terms\nor conditions of, residential real estate-related transactions, in violation of the fair Housing Act, 42 U.S.C. § 3605(a);\nb. Discrimination on the basis of race or color in the terms, conditions, or privileges of sale of a dwelliJ.?-g, in violation of the fair Housing Act, 42 U.S.C. § 3604(b); and\nc. Discrimination against applicants with respect to credit transactions on the basis of race or color in violation of the Equal Credit Opportunity Act, 15 U.S.c. § 1691(a)(1). 19. The Defendant's policies and practices, as alleged herein, constitute:\na. A pattern or practice of resistance to the full enj oyment of rights secured by the Fair Housing Act, as amended, 42 U.S.C. §§ 3601-3619, and the Equal Credit Opportunity Act, 15 U.S.c. §§ 1691-1691f; and\nb. A denial of rights granted by the Fair Housing Act, as amended, to a group of\n,\npersons that raises an issue of general public importance. 20. Persons who have been victims of Defendants' discriminatory policies and practices are aggrieved persons as defined in the FHA, 42 U.S.C. § 3602(i), and aggrieved applicants as defined in the ECOA, 16 U.S.C. § 1691e, and have suffered damages as a result of Defendants'\n-5-\n\n\fCase 1:99-mc-09999 Document 97 Filed 03/04/10 Page 6 of 7\nconduct as described herein. 21. The discriminatory policies and practices of the Defendants were intentional and\nwillful, and were implemented with reckless disregard for the rights of black borrowers. WHEREFORE, the United States prays that the Court enter an ORDER that: 22. Declares that the policies and practices of the Defendants constitute violations of the\nFair Housing Act, 42 U.S.C. §§ 3601-3619, and the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f;\n23. Enjoins the Defendants, their agents, employees, and successors, and all other persons in active concert or participation with them, from:\na. Discriminating on the basis of race or color against any person in making available, or in the terms or conditions of, a residential real estate-related transaction;\nb. Discriminating on the basis of race or color in the terms, conditions, or privileges of the provision of services in connection with the sale of dwellings;\nc. Discriminating on the basis of race or color against any person with respect to any aspect of a credit transaction;\nd. Failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, the victims of the Defendants' unlawful conduct to the position they would have been in but for the discriminatory conduct; and\ne. Failing or refusing to take such actions as may be necessary to prevent the recurrence of any such discriminatory conduct in the future. 24. Awards monetary damages to all the victims ofthe Defendants' discriminatory policies and practices for the injuries caused by the Defendants, pursuant to 42 U.S.C.\n-6-\n\n\fCase 1:99-mc-09999 Document 97 Filed 03/04/10 Page 7 of 7\n\n§ 3614(d)(1)(B) and 15 U.S.C. § 1691e(h); and\n\n25. Assesses a civil penalty against the Defendants in an amount authorized by 42 U.S.c.\n\n§ 3614(d)(1)(C), in order to vindicate the public interest. .\n\nThe United States further prays for such additional relief as the interests or justice may\n\nreqUIre.\n\nERIC H. HOLDER, JR.\nY:7.~U·\n\nDAVID C. WEISS United States Attorney\n\nTHOMAS E. PEREZ Assistant Attorney-G Civil Rights Division\n\nSHANNON T. HANSON Chief, Civil Division Nemours Building P.O. Box 2046 Wilmington, DE 19899-2046 302-573-6277\n\nChief H~Enforcement Section\n'-\n\nDONNA M. MURPHY Deputy Chief HOWARD R. GRIFFIN ROBIN L. DULL Attorneys U.S. Department of Justice Civil Rights Division Housing and Civil Enforcement Section 950 Pennsylvania Ave. NW - NWB Washington, DC 20530 howard.r. griffin@usdoj.gov robin.dul1@usdoj.gov 202-514-4741 202-305-7780\n-7-\n\n\f", "Case 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 1 of 21\n\nUNITED STATES DISTRlCTCOURT DISTRlCT OF DELAWARE\n\nUNITED STATES OF AMERlCA, Plaintiff, )\n\n)\n\nv.\n\n).\n\n)\n\nAIG FEDERAL SAVINGS BANK and\n\n)\n\nWILMINGTON FINANCE, INC.,\n\n)\n\nDefendants.\n\n)\n\n)\n\nCONSENT ORDER I. INTRODUCTION\nThis Consent Order (Order) is submitted jointly by the parties for the approval of and entry by the Court simultaneously with the filing of the United States' complaint (Complaint) in this action. The Order resolves the claims of the United States that the Defendants, AIG Federal\nSavings Bank (AIG FSB) and Wilmington Finance, Inc. (WFI), (collectively, \"Defendants\")\nhave engaged in a pattern or practice of conduct in violation of the Fair Housing Act (FHA), 42 U.S.C. §§ 3601~3619, and the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691~169lf, by allowing wholesale mortgage brokersl to charge African-American borrowers higher direct broker fees for residential real estate-related loans than white borrowers. Defendants deny these allegations. The parties submit this Order to resolve fully and fmally all claims asserted or that could have been asserted arising out of or relating to the matters referred to in the Complaint.\n\n1 For purposes of this Order, wholesale mortgage brokers are independent third-party entities in which the Defendants have no ownership interest and no exclusive relationship, who act as an intermediary with borrowers to procure home-mortgage loan applications for funding by Defendants, and who are paid a fee directly by borrowers for such services. The wholesale mortgage brokers at issue in this lawsuit entered into broker agreements with one or both Defendants regarding their procurement of home-mortgage loan applications for funding by a Defendant.\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 2 of 21\nI\nDefendants AIG FSB and WFI represent that they have ceased their wholesale home· mortgage lending operations in 2006 and 2008, respectivdy, and WFI represents that it is currently winding down its business operations. Under the provisions ofthis Order, the Defendants agree that if either Defendant re-enters the wholesale lending business, that Defendant will implement policies and procedures designed to ensure that direct broker fees for their residential loan products are assessed in a nondiscriminatory manner consistent with the requirements of the FHA and ECOA. In addition, Defendants will compensate certain African­ American borrowers based on an agreed upon formula to identify such borrowers by reference to, among other factors, the direct mortgage broker fees they paid.\nThere has been no factual finding or adjudication with respect to any matter alleged by the United States. The parties have entered into this Order to avoid the risks and burdens of litigation, and to resolve voluntarily the claims in the United States' Complaint relating to Defendants' alleged violations of fair-lending laws. The parties agree that full implementation of the terms of this Order will provide a fair and reasonable resolution of the claims ofthe United States in a manner consistent with the Defendants' legitimate business interests.\nII. BACKGROUND AIG FSB is 'a wholly-owned subsidiary of American International Group, Inc. It is a federal savings bank with its principal place of business at One Alico Plaza, 600 King Street, Wilmington, Delaware. WFI is a wholly-owned subsidiary of American International Group, Inc. rt is a Delaware corporation with its principal place of business at 401 Plymouth Road, Plymouth Meeting, Pennsylvania. Between approximately July 2003 and May 2006, pursuant to an agreement between AIG FSB and WFI, WFI provided various services for loans that were made and funded by AIG FSB.\n-2-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 3 of 21\nIn 2006 and 2007 the Office ofThrift Supervision (OTS) conducted examinations ofthe lending practices ofAlG FSB to evaluate compliance with, among other laws, the FHA and the ECOA. Based on analysis of2005 HMDA lending data, the OTS found reason to believe that AIG FSB had displayed a pattern or practice of charging minority borrowers higher broker fees than similarly situated non-minority borrowers. The OTS referred this matter to the United States Department ofJustice (DOJ) for appropriate enforcement pursuant to 15 U.S.C. § 1691e(g).\nThe United States contends that Defendants engaged in a pattern or practice of discrimination on the basis of race or color by allowing wholesale mortgage brokers to charge higher direct broker fees2 to African-American borrowers than to white borrowers for loans originated and funded ~y AIG FSB and/or WFL The Defendants deny all allegations and claims of discrimination on both factual and legal grounds and maintain that at all times they conducted their lending and other activities in compliance with the· fair-lending laws. Th,ere has been no factual or legal finding or adjudication with respect to any matter alleged by the United States. Accordingly. the entry of this Order is not, and is not to be construed as, a precedent, admission, or fmding of any violation of the FHA or the ECOA by the Defendants. Rather, both parties have agreed to the entry of this Order to resolve voluntarily the claims asserted by the United States in order to avoid the costs. risks, and burdens of litigation.\nIn. REMEDIAL ORDER A. General Nondiscrimination Injunction\n2 \"Direct\" broker fees (sometimes called \"up-front\" broker fees) means fees paid directly by the borrower to the broker for services rendered by the broker to the borrower in connection with securing a real estate-related loan. A borrower typically pays these fees at closing either with cash brought to the closing, or out of the loan proceeds. Direct broker fees .do not include amounts paid by the lender to the broker or miscellaneous fees, such as appraisal costs and title searches.\n-3-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 4 of 21\n1. The Defendants, including all oftheir officers, employees, agents, assignees, successors in interest, and all those in active concert or participation with any of them, are hereby enjoined from engaging in any act or practice in wholesale home mortgage lending that discriminates on the basis of race or color in any aspect of a residential real estate-related transaction in violation of the Fair Housing Act, 42 U.S.C. §§ 3604 and 3605, or in any aspect of a credit transaction in violation of the Equal Credit Opportunity Act, 15 U.S.c. § 1691(a)(1). This prohibition includes, but is not limited to, the adoption, performance, or implementation of any policy, practice, or act that results in race or color discrimination against residential mortgagors in the assessment of direct mortgage broker fees.\n2. Unless otherwise stated herein, the remedial provisions of this Order shall be j\nimplemented within thirty days of the effective date of this Order and shall continue throughout its term. The effective date of this Order shall be the date on which it is approved and entered by the Court.\nB. Applicability of Specific Provisions 3. Each Defen4ant represents that it is not currently in the business of wholesale home-mortgage lending3 and has no plans to re-enter this line of business. Moreover, AIG FSB represents that it currently maintains at least annual fair-lending training appropriate to the nature of its lending activities. AIG FSB shall maintain during the period of this Order at least annual fair lending training appropriate to the nature of its lending activities and regarding the requirements·of the FHA and ECOA. Based on the representations and obligations above, the provisions of paragraphs 4-9 shall apply to each Defendant, and to each Defendant's officers, employees, ag~nts, and representatives and all those in active concert or participation with any of 3 \"Wholesale home-mortgage lending\" means providing home-mortgage loans in conjunction with wholesale mortgage brokers acting as an intermediary with the borrower.\n-4-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 5 of 21\nthem with respect to wholesale home-mortgage lending operations, only if that Defendant re­ enters the business of wholesale home-mortgage lending during the tenn of this Order. In the event of such re-entry, the Defendant must notify the United States within thirty days of re-entry, and paragraphs 4-9 must be implemented within ninety days of re-entry.\nC. Pricing Policy and Procedures 4. AIG FSB and WFI shall each develop and implement, as part of a loan-pricing policy, specific, nonr<;l.cial standards for the assessment of direct broker fees on residential real . estate-related loans that AIG FSB or WFI underwrites, originates, or funds that are designed to . avoid unlawful race discrimination by the Defendants. The loan pricing policy shall also require written documentation of such fees be maintained in each loan file and be among the application documents submitted to either Defendant. These requirements shall be made part of any broker agreement between a wholesale mortgage broker and either Defendant. AIG FSB and WFI have represented that when they have engaged in the wholesale home-mortgage lending business they had in place limits on the amount of yield-spread premiums (YSPs) that may be earned by mortgage brokers on loans. Defendants also shall incorporate YSP limits into their loan-pricing policies. 5. Defendants' loan-pricing policies shall require them to post and prominently display in each location where loan applications are received by the Defendant a notice of non­ discrimination (a sample of which is attached as Exhibit A). Defendants shall impose the posting requirements described in this paragraph on all brokers who submit loan applications to the Defendants. 6. Defendants' policy shall require brokers to make the following disclosures to applicants, to the extent not inconsistent with applicable.law: (a) the full amount of the direct broker fee, any YSP and all other fonns of broker compensation, and that such compensation\n-5-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 6 of 21\nmayor may not be negotiable between the broker and borrower, and (b) a notice ofnon­ discrimination that provides substantially the same information as is contained in Appendix A. Such disclosures shall be in writing, signed by the broker and the borrower (if the borrower executes), and submitted by the broker to be made part ofthe loan file by AIG FSB or WFL This disclosure shall be made as early as practicable but not later than 48 hours prior to the closing of the loan.\n7. Defendants' loan-pricing policies shall require all wholesale mortgage brokers from whom they accept wholesale home-mortgage loan applications to comply with the requirements established in paragraphs 4-6. Defendants' policies shall also require an appropriate manager, under the supervision of a designated senior official of AIG FSB or WFI, to review applications received from wholesale mortgage brokers for compliance with loan-pricing policies. Any loan that is not in compliance with the pricing policy may not be funded. All reviews shall be documented and kept in the loan file.\nD. Monitoring Program 8. Each Defendant'shall develop and implement direct broker-fee monitoring programs designed to ensure compliance with this Order. The programs shall be designed to monitor loans sourced through wholesale mortgage brokers and funded by AIG FSB or WFI for potential racial disparities in direct broker-fee levels. Each program also shall require a quarterly review by senior managers of the Defendant with respect to all wholesale home-mortgage loans originated during the preceding quarter by that Defendant. Each such quarterly review shall be documented and presented to the Defendant's respective Board for review and approval not later than sixty days after the end of each quarter. Each quarterly review shall include, but not be limited to, a direct broker-fee analysis designed to detect significant race disparities in such fees with respect to all wholesale loans funded by the Defendant.\n-6-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 7 of 21\na. In the event that any such review discloses significant disparities, the Defendant in question shall attempt to determine the reason(s) for those disparities (if any) and shall promptly take corrective action to address significant disparities that were attributable to a policy or practice of the Defendant, and not justified by legitimate business need. Corrective action shall include, as warranted, financial remediation for borrowers, modifications to the Defendant's pricing policies and/or monitoring programs as appropriate, and modification or termination of broker relationship(s). Defendant shall document all such disparities, determinations, and actions taken and shall provide the quarterly reviews and any documentation and analysis relating thereto to the Unit~d States on a quarterly basis.\nb. In the event that any such review discloses significant disparities with respect to any particular broker's direct broker fee pricing practices, the Defendant shall require the broker to explain the non-discriminatory reason(s) for those disparities. If there is no reasonable, nonracial explanation for the noted disparities, Defendant shall undertake good faith efforts to require the broker to take prompt corrective action to address the disparities. Ifthe United States raises any objections to the Defendant's determinations or remedial actions, Defendant and the United States shall meet and confer to consider appropriate steps to address the concerns raised by the United States' review. If the parties are unable to come to an agreement regarding such objections, any party may bring the dispute to this Court for resolution. In that event, the fact that a Defendant's policies and monitoring programs were not objected to by the United States under paragraph 9 ofthe Order shall be relevant to determining the proper coUrse of action.\n-7-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 8 of 21\nE. Notification to the United States and Right to Object 9. Each Defendant shall provide a copy of the loan policies required under paragraphs 4-7 and descriptions of the monitoring programs required under paragraph 8, to counsel for the United States within ninety days of any return to the business of wholesale homemortgage lending by that Defendant.4 The United States shall have thirty days from receipt of these documents from ~ach Defendant to raise any objections to the relevant Defendant's policies and programs, and, if it raises any, the parties shall confer to resolve their differences. In the event they are unable to do so, any party may bring the dispute to this Court for resolution. Until the Court resolves such a dispute, the disputed policies and programs will not go into effect. Subsequent proposed material revisions to these policies and programs, pursuant to paragraphs 7 and 8 or otherwise, shall be submitted to the United States for objection and. resolution in the manner provided for in this paragraPh.. F. Consumer Education 10. Through the funding mechanism set forth in paragraph 21, Defendants shall provide a minimum of $1,000,000 to qualified organization(s) to provide credit counseling, financial literacy, and other related educational programs targeted at African-American borrowers. The Defendants will consult with and obtain the non-objection of the United States in selecting recipient(s) of these funds, and the parties shall obtain the Court's approval prior to distribution of the fund. G. Equal Credit Opportunity Training Program\n4 All material required by this Order to be sent to counsel for the United States shall be sent by commercial overnight delivery service addressed as follows: Chief, Housing and Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice, 1800 G Street NW, Washington, DC 20006, Attn: DJ 188-15-11, or by facsimile to 202-514-1116.\n-8-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 9 of 21\n11. Each Defendant shall, at least annually, provide training with respect to their responsibilities and obligations under the FHA, the ECOA, and this Order to all management officials, loan officers, and any other employees, or agents who: (a) participate in the pricing of wholesale home-mortgage real-estate loans, or (b) have significant involvement in wholesale home-mortgage lending, including contact with or oversight of brokers. In the event that either Defendant re-enters the business of wholesale home-mortgage lending, that Defendant shall provide training within 30 days after that Defendant's new loan policy is implemented, and during this training, each Defendant shall provide to each participant: (a) a copy of this Order and of the relevant Defendant's new loan pricing policy; and (b) training on the terms of this Order, the relevant new loan pricing policy, the requirements of the Fair Housing and Equal Credit Opportunity Acts, and his or her responsibilities under each.\n12. In the event that either Defendant re-enters the wholesale home-mortgage lending business, that Defendant shall secure from each employee or agent specified in the preceding paragrapna signed statement acknowledging that he or she has received a copy of this Order and the loan pricing policy and has completed the initial equal credit opportunity training. These statements shall be substantially in the form of Appendix B (Acknowledgment) and Appendix C (Equal Credit Opportunity Training). During the term of the Order, each new employee or agent whose responsibilities include those set forth in paragraph 11, shall be provided a copy of this Order and given an opportunity to have any questions answered, and shall sign the acknowledgment form statement (Appendix B) within ten days of beginning his or her employment in that position. Defendants shall retain these statements for the duration of the Order, and make them available to the United States upon request.\n-9-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 10 of 21\n13. In the event that either Defendant re-enters the wholesale home-mortgage lending business, that Defendant shall offer all brokers from whom it accepts wholesale home-mortgage loan applications the opportunity to undergo fair lending training similar to the training described in paragraph 11 ofthis Order. Defendants shall retain documentation of any training or requests for training for the duration ofthe Order, and make such documentation available to the United States upon request.\n14. In the event that either Defendant re-enters the wholesale home-mortgage lending business, the trainjng required by this Section shall be conducted by independent qualified third parties approved in advance by the United States. Any expenses associated with this training program shall be borne by the Defendant re-entering the business.\nB. Satisfaction of United States' Claims for Monetary Relief 15. Defendants shall deposit in an interest-bearing escrow account the total sum of $6.1 million for the purpose of paying damages to aggrieved persons who may have suffered as a result of the alleged violations of the Fair Housing and Equal Credit Opportunity Acts (the \"Settlement Fund\"). The Defendants shall provide written verification of the deposit to the United States within five days of the effective date ofthis Order. Any interest that accrues shall become part of the Settlement Fund and be utilized and disposed of as set forth herein. 16. Within 30 days ofthe effective date of this Order, the United States shall request any information it believes will assist in identifying aggrieved persons and determining any damages. Defendants shall, within 15 days, supply, to the extent that it is within their control, such information as requested. Requested data may be supplied as a supplement to the database already provided to the United States by Defendants in the course of the United States' investigation.\n-10-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 11 of 21\n17. The United States shall, upon reasonable notice, be allowed access to the Defendants' records and files to verify the accuracy ofthe data provided and to otherwise identify persons entitled to the payments from the Settlement Fund.\n18. Within 90 days of the Effective Date of this Consent Order, the United States shall provide to Defendants a list of aggrieved persons and an amount each individual shall receive from the Settlement Fund to compensate for both economic and non-economic damages these persons may have suffered, subject to the conditions set forth in paragraph 19 below. Defendants shall have fifteen days in which to review the list and the United States shall consider in good faith any issues raised by Defendants.\n19. Payments from the Settlement Fund to aggrieved persons shall be subject to the following conditions, provided that the details in administration of the Settlement Fund set forth in paragraphs 16, 17, 18, and 20, can be modified by agreement of the parties and without further Court approval:\n(a) No aggrieved person shall be paid any amount from the Settlement Fund until he or she has executed and delivered to Defendants a written release, as set forth in Appendix D, of all claims, legal or equitable, that he or she might have against the released persons and entities regarding the claims asserted by the United States in this lawsuit, so long as such claims accrued prior to the entry of this Order; and\n(b) No person shall be eligible for payment from the Settlement Fund with respect to a loan if such person has previously received remediation with respect to such loan and has executed a release in exchange for such remediation; 'and\n(c) The total amount paid by the Defendants collectively to the aggrieved persons shall not exceed the amount of the Settlement Fund, including accrued interest.\n-11-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 12 of 21\n20. The Defendants shall, no later than 45 days after receiving the compensation list referred to in paragraph 18, notify each identified person eligible for compensation by a letter (using their best efforts to locate each person). The form of this letter shall be subject to the review and approval of the United States. At a minimum, the letter shall state that the identified person is eligible for compensation in the indicated amount provided he or she executes and returns to Defendants a copy of the agreed-upon release, which release shall be enclosed with the notice along with an addressed and postage-paid return envelope. Each letter shall identify the loan(s) the identified person has or had with AlG FSB or WFI. The letter shall explain the complaint resolution program referenced in paragraph 22 of this Order. Ifthe parties are unable to agree on the terms of the letter, any party may bring the dispute to the Court for resolution. Any letters that are returned with a forwarding address shall promptly be re-sent to that new address. Defendants shall provide an accounting of these notifications, indicating the name and address to which each was dispatched, within the 45-day period referred to in this paragraph. Defendants shall issue checks in the amount indicated on the compensation list to all identified persons who execute and return the releases. Defendants shall issue and mail such checks no later than 21 days after the receipt of the release. Defendants shall set forth reasonable deadlines for requirements of return of releases, and for the timely deposit of checks, subj ect to approval of the United States, so that the compensation is distributed and checks are presented for payment or become void prior to the date that is one year from the date the initial notifications are sent. The Defendants shall provide, as part of the reporting required in paragraph 25, an accounting of releases received, checks sent, and notifications for which no response has been received or that were reported to be undeliverable. The United States may make its own efforts to locate aggrieved persons.\n-12-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 13 of 21\n21. Any moneys not distributed from the Settlement Fund including accrued interest within one year of the date the initial notifications are sent to persons deemed to be aggrieved by the United States pursuant to paragraph 19 (Remaining Moneys) shall be distributed for educational purposes as provided for in paragraph 10. In the event the Remaining Moneys total less than $1,000,000 at that time, Defendants shall replenish the Settlement Fund so that it contains $1,000,000 for distribution for those educational purposes.\n22. In addition to the above, during the period of this Order the Defendants shall maintain a robust complaint resolution program to address consumer complaints regarding wholesale home-mortgage loans originated by the Defendants. Documentation regarding such complaint resolution program, inciuding documentation of individual complaints and resolutions, if any, shall be made available to the United States on a quarterly basis and included in the semi­ annual reports referenced in paragraph 25. A person shall not be deemed ineligible for the complaint resolution program on the basis of having executed the release described in paragraph 19(a), but there is no requirement under this Order that any complaint necessarily be resolved for or against Defendants.\nIV. EVALUATINGAND MONITORING COMPLIANCE\n23. For the duration of this Order, both AIG FSB and WFI shall retain all records, relating to their obligations hereunder, including their wholesale home-mortgage lending activities, as well as their compliance activities as set forth herein. The United States shall have the right to review and copy such records upon request, including loans files and electronic data for loans made during the period ofthis,Order.\n24. Each Defendant shall provide to counsel for the United States the data on its lending that is submitted to the Federal Financial InStitutions Examination Council (FFIEC) pursuant to the Home Mortgage Disclosure Act and the Community Reinvestment Act. The data\n-13-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 14 of 21\nwill be provided in the same format in which it is presented to the FFIEC, within thirty days of its submission to the FFIEC each year, for the duration ofthis Order, including the record layout.\n25. In addition to the submission of any other plans or reports specified in this Order, both AIG FSB and WFI shall submit semi-annual reports to the United States on their progress in completing the requirements of paragraphs 3-22 of this Order. Each such report shall provide a complete account of each Defendant's actions to comply with each requirement ofthis Order during the previous year, an objective assessment ofthe extent to which each quantifiable obligation was met, an explanation ofwhy any particular component fell short of meeting its goal for that year, and any recommendations for additional actions to achieve the goals of this Order. Each Defendant shall submit its first report no later than 180 days after entry ofthis Order, and every 180 days thereafter for so long as the Order is in effect. In addition, if applicable, each Defendant shall attach to the semi-annual reports representative copies of training materials disseminated pursuant to this Order.\n26. In the event AIG FSB seeks to transfer or assign its charter or either AIG FSB or WFI seeks to transfer or assign all its operations in a transaction that requires the approval of a federal bank or thrift regulatory agency, AlO FSB or WFI must notifY counsel for the United States at the same time it notifies the regulatory agency. If such notification is made and the relevant regulatory agency approves such transaction, this Order shall terminate with respect to that Defendant upon consunirnation of the transfer or assignm~nt transaction, except that the requirements of paragraphs 10 and 15-21 of this Order shall continue in force against the\nDefendant's successor in interest until such time as those requirements are completed. In the\nevent either AIG FSB or WFI seeks to transfer or assign all or part of its operations in a transaction that does not require the approval of a federal bank or thrift regulatory agency and the\n-14-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 15 of 21\nsuccessor or assign is engaged in or intends to carry on a wholesale mortgage-lending business, the relevant Defendant shall, as a condition of sale, obtain the written agreement of the successor' or assign to be bound by any obligations remaining under this Order which are applicable to that Defendant for the remaining term of this Order. Nevertheless, in the event of a proposed, arms­ length transaction of transfer or assignment of operations affecting AlG FSB or WFI, the Defendants may petition the United States to waive the requirement for a successor or assign to be bound under this Order, and the United States, after such review, may, in its discretion, waive such requirement. The Defendants shall supply such information as the United States may request to enable the United States to effectively review the waiver petition.\nV. ADMINISTRATION\n27. The requirements of this Order shall be in effect for three years, except as specified elsewhere in this Order, at which time they will expire and be of no further applicability. Notwithstanding the above, this Order may be extended further upon motion of the United States to the Court, for good cause shown. Upon satisfaction of paragraphs 10 and 15-21, or upon making arrangements, in which the United States concurs, that all procedures and requirements of these paragraphs will be satisfied, any Defendant may seek and obtain a separate dismissal of the case against it in the event the Order no longer applies to it or upon demonstration to the Court that it has permanently ceased its business operations.\n28. Any time limits for performance fixed by this Order may be extended by mutual written agreement ofthe parties. Other modifications to this Order may be made only upon approval ofthe Court, upon motion by either party. The parties recognize that there may be changes in relevant and material factual circumstances during the term of this Order which may impact the accomplishment of its goals. The parties agree to work cooperatively to discuss and attempt to agree upon any proposed modifications to this Order resulting therefrom.\n-15-\nI·\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 16 of 21\n29. In the event that any disputes arise about the interpretation of or compliance with the terms of this Order, the parties shall endeavor in good faith to resolve any such dispute between themselves before bringing it to this Court for resolution. The United States agrees that if it reasonably believes that any Defendant has violated any provision of this Order, it will provide the appropriate Defendant written notice thereof and allow thirty days to resolve the alleged violation before presenting the matter to this Court. In the event of either a failure by a Defendant to perform in a timely manner any act required by this Order or an act by a Defendant in violation of any provision hereof, the United States may move this Court to impose any remedy authorized by law or equity, including attorneys' fees and costs.\n30. Each Defendant's compliance with the terms of this Order, or the termination of this Order with respect to a Defendant in accordance with its provisions, shall fully and fmally resolve all claims of the United States relating to the alleged violations by that Defendant ofthe fair lending laws, as alleged in the Complaint in this action, including all claims for equitable relief and monetary damages and penalties. Each party to this Order shall bear its own costs and attorney's fees associated with this litigation.\n31. The Court shall retain jurisdiction for the duration of this Order to enforce the terms of the Order, after which time the case shall be dismissed with prejudice.\n/9 SO ORDERED, this day of ~2010.\nUNI\n-16-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 17 of 21\n\nThe undersigned hereby apply for and consent to the entry of this Order:\n\nFor Defendant AIG Federal Savings Bank\n\nFor Defendant Wilmington Finance, Inc.\n\nMaICtHAiEfL B.. MvI/E~RZ~EKLI t!~\n\nArnold & Porter LLP 555 Twelfth Street, NW Washington, DC 20004-1206 Tel: (202) 942~5995 Fax: (202) 942-5999 michael.mierzewski@aporter.com\n\nGoodwin Procter, LLP 901 New York Ave., NW Washington, D.C. 20001 Tel: (202) 346-4029\nFax: (202)346-4444\nthefferon@goodwinprocter.com\n\nFor Plaintiff United States\n\nSTEVEN H. ROSENBAUM Chief\n\nDONNA M. MURPlN Deputy Chief\n\nARD R. GRIFFIN\n\n-\"\n\nttorney\n\n:i12'~-- --\nROBIN L. D\\JLL \" Attorney\n\nU.S. Department ofJustice Civil Rights Division Housing and Civil Enforcement Section 950 Pennsylvania Ave. NW Northwest Building Washington, DC 20530 howard.r.griffin@usdoj.gov robin.dull@usdoj.gov Tel: (202) 514-4741 Tel: (202) 305-7780\n\n~17-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 18 of 21\n\nAPPENDIX A\nWe do Business in Accordance with Federal Fair Lending Laws\nUNDER THE EQUAL CREDIT OPPORTUNITY ACT, IT IS ILLEGAL TO DISCRIMINATE IN ANY\nCREDIT TRANSACTION:\n\nOn the basis of race, color, national origin, religion, sex, marital status, or age;\n\nBecause income is from public· assistance; or\n\nBecause a right has been exercised under the Federal Consumer Credit Protection Laws.\n\nIF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND\nA COMPLAINT TO:\n\nOffice of Thrift Supervision\n\nOR\n\n. U.S. Department of Justice\n\nWashington, DC 20530\n\nTel: 1-800-896-7743\n\nWebsite:\n\nhttp://www.usdoj.gov/crt/housing\n\n-18-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 19 of 21\n\nAPPENDIXB Employee Ackn:owledgment\n\nI acknowledge that on\n\n,2010, I was provided copies of the Consent\n\nOrder entered by the Court in United States v. AIG Federal Savings Bank, et al., (D. Del.), and\n\nthe loan policy developed pursuant thereto. I have read and understand these documents and\n\nhave had my questions about these documents answered. I understand my legal responsibilities\n\nand shall comply with those responsibilities.\n\nSignature\nPrint Name\nJob Title Date\n\n~19~\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 20 of 21\n\nAPPENDIXC\nEmployee Training Certification\n\nI certify that on\n\n, 2010, I received training with respect to my\n\nresponsibilities under the Consent Order entered by the Court in United States v. AIG Federal\n\nSavings Bank, et al., (D. Del.), and the federal fair lending laws. I have had the opportunity to\n\nhave my questions about them answered. I understand my legal responsibilities not to\n\ndiscriminate under the federal fair lending laws, including the Equal Credit Opportunity Act and\n\nthe Fair Housing Act, and shall comply with those responsibilities.\n\nSignature\nPrint Name\nJob Title Date\n\n-20-\n\n\fCase 1:10-cv-00178-JJF Document 4 Filed 03/19/10 Page 21 of 21\nAPPENDIXD Release\nIn consideration for the parties' agreement to the terms of the Consent Order entered in United States v. AIG Federal Savings Bank and Wilmington Finance, Inc. (D. DeL), and the payment to me of $_ _ _~, pursuant to the Consent Order and effective upon that payment, I hereby release and forever discharge all claims, rights,remedies, and recoveries related to the facts at issue in the litigation referenced above or in any way related to that litigation, and release and forever discharge all claims, rights, remedies, and recoveries arising from housing and credit discrimination alleged in that litigation in connection with my loan(s), known and unknown, up to and including the date of execution of this release.\nr understand that this releases those claims, rights, remedies and recoveries against AIG\nFederal Savings Bank and/or Wilmington Finance, Inc., and against any and all entities, parents, predecessors, successors, subsidiaries, and affiliates related to either of those companies, and against any and all of the past and present directors, officers, agents, managers, supervisors, shareholders, and employees and .their heirs, executors, administrators, successors in interest, or assigns of either of those companies in connection with my loan(s).\nExecuted on _ _ _ _ _-', 2010. Signature Print Name Address\n-21-\n\n\f", "I .\ni\nI\n\n\\ \n\nCase 1:10-cv-00178-LPS Document 6 Filed 07/07/11 Page\"1 of 2 PageID #: 71 Case 1:10-cv-00178-LPS Document 5-1 Filed 07/05/11 Page 1 of 2 PagelD #: 63\n\nUNITED STATES DISTRICT COURT \n FOR THE DISTRICT OF DELAWARE \n\n\nUNITED STATES OF AMERICA,\n\n) \n\n\n) \n\n\nPlaintiff,\n\n) \n\n\n) \n\n\nv.\n\n)\n\nCivil Action No. 1O-cv-178\n\n)\n\nAIG FEDERAL SAVINGS BANK and )\n\nWILMINGTON FINANCE, INC.,\n\n)\n\n) \n\n\nDefendants.\n\n) \n\n\n)\n\nDISBURSEMENT ORDER 1. On March 22, 20 I0, this Court entered a Consent Order between Plaintiff United States and Defendants AIG Federal Savings Bank and Wilmington Finance, Inc. The Consent Order resolved all claims set forth in the United States' Complaint against the Defendants in this matter. 2. Paragraph 10 of the Consent Order mandates that the Defendants must provide at least $1,000,000 to qualified organization(s) to provide credit counseling, financial literacy, or other related educational programs targeted at African-American borrowers. It further provides that if more than $1,000,000 remains in the settlement fund after distribution of moneys to affected borrowers, that excess will also go to such organizations. 3. Paragraph 10 of the Consent Order also requires that Defendants consult with and obtain the non-objection of the United States in selecting the recipient(s) of these funds. The parties must also obtain the Court's approval prior to the distribution of the funds. 4. The parties informed the Court that $1,268,372.93 will be left in the settlement fund. The Defendants have selected the National Urban League, Operation HOPE and the American\n\n\fCase 1:10-cv-00178-LPS Document 6 Filed 07/07/11 Page 2 of 2 PageID #: 72 Case 1:10-cv-00178-LPS Document 5-1 Filed 07/05/11 Page 2 of 2 PagelD #: 64\n\nFinancial Services Association Education Foundation (AFSAEF) to receive those funds. The United States does not object to the selection of these organizations. 5. The National Urban League will receive $422,790.97. 6. Operation HOPE will receive $422,790.98. 7. AFSAEF will receive $422,790.98. 8. The Court hereby approves the selection of these charities and approves the disbursement of the above-referenced funds. 9. The Defendants are hereby ordered to disburse the funds required by Paragraph 10 to the National Urban League, Operation Hope, and AFSAEF, in the amounts reflected above within 30 days of the issuance of this order.\n\nIT IS SO ORDERED:\n\n'1 ofJ This {~y\n\nu \\ ,2011.\n\nUNITED TATES DISTRICT COURT JUDGE \n\n\n2 \n\n\n\f", "Case: 1:10-cv-00178-LPS As of: 07/30/2012 02:18 PM EDT 1 of 2\nU.S. District Court District of Delaware (Wilmington) CIVIL DOCKET FOR CASE #: 1:10−cv−00178−LPS\n\nCLOSED\n\nUSA v. AIG Federal Savings Bank et al Assigned to: Judge Leonard P. Stark Cause: 42:405 Fair Housing Act\nPlaintiff USA\n\nDate Filed: 03/04/2010 Date Terminated: 03/19/2010 Jury Demand: None Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: U.S. Government Plaintiff\nrepresented by Howard R. Griffin U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW, G Street Washington, DC 20530 202−514−4741 Fax: 202−514−1116 Email: howard.r.griffin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED\nShannon Thee Hanson U.S. Attorney's Office The Nemours Building 1007 Orange Street, Suite 700 P.O. Box 2046 Wilmington, DE 19899−2046 (302) 573−6277 Email: shannon.hanson@usdoj.gov ATTORNEY TO BE NOTICED\n\nV. Defendant AIG Federal Savings Bank\nDefendant Wilmington Finance Inc.\n\nDate Filed 03/04/2010\n03/04/2010 03/04/2010 03/04/2010 03/10/2010 03/19/2010\n\n# Docket Text\n1 COMPLAINT filed against AIG Federal Savings Bank, Wilmington Finance Inc. − (Filing fee $ 350.) − filed by USA. (Attachments: # 1 Civil Cover Sheet)(els) (Entered: 03/05/2010)\n2 Notice, Consent and Referral forms re: U.S. Magistrate Judge jurisdiction (els) (Entered: 03/05/2010)\nNo Summons Issued (els) (Entered: 03/05/2010)\n3 UNOPPOSED MOTION Consent Order − filed by USA. (Attachments: # 1 Text of Proposed Order)(els) (Entered: 03/05/2010)\nCase assigned to Judge Joseph J. Farnan, Jr. Please include the initials of the Judge (JJF) after the case number on all documents filed. (rjb) (Entered: 03/10/2010)\n4 ORDER Granting 3 Unopposed MOTION for Entry of Consent Order filed by USA. Signed by Judge Joseph J. Farnan, Jr. on 3/19/2010. (nms) (Entered: 03/22/2010)\n\n\fCase: 1:10-cv-00178-LPS As of: 07/30/2012 02:18 PM EDT 2 of 2\n\n03/19/2010 07/05/2011\n07/06/2011 07/06/2011 07/07/2011\n\nCASE CLOSED per entry of D.I. 4 . (nms) (Entered: 03/25/2010)\n5 JOINT Motion for Entry of Proposed Order − by USA. (Attachments: # 1 Proposed Order)(Griffin, Howard) Modified on 7/6/2011 (nms). (Main Document 5 replaced on 7/6/2011) (rwc). (Entered: 07/05/2011)\nCORRECTING ENTRY: Replaced DI# 5 with corrected pdf document per request of counsel. (rwc) (Entered: 07/06/2011)\nCase Reassigned to Judge Leonard P. Stark. Please include the initials of the Judge (LPS) after the case number on all documents filed. (rjb) (Entered: 07/06/2011)\n6 DISBURSEMENT ORDER −− granting 5 Joint MOTION for Entry of Disbursement Order. Signed by Judge Leonard P. Stark on 7/7/11. (ntl) (Entered: 07/08/2011)\n\n\f" ]
On March 4, 2010, the United States of America filed this lawsuit under the Fair Housing and Equal Credit Opportunity Acts against AIG Federal Savings Bank in the United States District Court, District of Delaware. The plaintiff, represented by attorneys from the U.S. Department of Justice and the U.S. Attorney's office asked the court for declaratory, injunctive, and monetary relief, claiming that AlG had engaged in a pattern or practice of discrimination on the basis of race. Specifically, the U.S. claimed that from July 2003 to May 2006, black borrowers nationwide were charged broker fees 20 basis points higher, on average, than the broker fees charged to white borrowers. On March 19, 2010, the parties entered into a consent decree in which the bank agreed to: 1) refrain from engaging in any act or practice in wholesale home mortgage lending that discriminates on the basis of race or color; 2) maintain during the period of the order annual fair lending training; 3) develop and implement specific, nonracial standards for the assessment of direct broker fees on residential real estate-related loans; 4) post and prominently display in each location where loan applications are received by the lender a notice of nondiscrimination; 5) require brokers to make certain disclosures to applicants; 6) participate in a monitoring program to ensure compliance with the provisions of the consent decree; 7) provide a minimum of $1 million to certain organizations to provide credit counseling, financial literacy; and other related educational programs to African-American borrowers; 8) provide employees with equal credit opportunity training; and 9) pay $6.1 million in damages to those affected by AIG's discriminatory lending practices. On July 7, 2011, the Court (Judge Leonard P. Stark) entered an order for distribution of the funds remaining in the settlement fund ($1,268,372.92) among the National Urban League, Operation HOPE and the American Financial Services Association Education Foundation.
The United States of America filed a lawsuit under the Fair Housing and Equal Credit Opportunity Acts against AIG Federal Savings Bank, claiming that AlG had engaged in a pattern or practice of discrimination on the basis of race. Specifically, the U.S. claimed that from July 2003 to May 2006, black borrowers nationwide were charged higher broker fees than white borrowers. The parties entered into a consent decree in which the lender agreed to implement policies designed to aid in the prevention of racial discrimination, to provide monetary relief to the affected parties, and to assist in funding financial education programs. This case is ongoing.
PB-WV-0002
["Case 3:13-cv-24068 Document 8 Filed 10/01/13 Page 1 of 30 PageID #: 16\n\nUNITED STATES DISTRICT C (...TRUNCATED)
"On October 1, 2013, three same-sex couples and the minor child of one of the couples filed a lawsui (...TRUNCATED)
"On October 1, 2013, three same-sex couples and the minor child of one of the couples filed a lawsui (...TRUNCATED)
"Three same-sex couples, and the minor child of one of the couples won this same-sex marriage lawsui (...TRUNCATED)
PN-MI-0008
["Case 1:13-cv-00469-PLM Doc #1 Filed 05/01/13 Page 1 of 23 Page ID#1\n\nIN THE UNITED STATES DISTRI (...TRUNCATED)
"On May 1, 2013, two men who were arrested for trespassing on property open to the public filed this (...TRUNCATED)
"Two men who were arrested for trespassing on property of businesses open to the public filed a laws (...TRUNCATED)
"Settlement reached in 2019 for @ACLU case on arrests for trespassing without a warning under Grand (...TRUNCATED)
EE-MI-0184
["UNITED STATES DISTRICT COURT\nWESTERN DISTRICT OF MICHIGAN\nNORTHERN DIVISION\nLOUIS OWEN, Plainti (...TRUNCATED)
"On March 28, 2000, a Jewish employee filed a lawsuit under Title VII of the Civil Rights Act of 196 (...TRUNCATED)

Dataset Card for Multi-LexSum

Dataset Summary

The Multi-LexSum dataset is a collection of 9,280 such legal case summaries. Multi-LexSum is distinct from other datasets in its multiple target summaries, each at a different granularity (ranging from one-sentence “extreme” summaries to multi-paragraph narrations of over five hundred words). It presents a challenging multi-document summarization task given the long length of the source documents, often exceeding two hundred pages per case. Unlike other summarization datasets that are (semi-)automatically curated, Multi-LexSum consists of expert-authored summaries: the experts—lawyers and law students—are trained to follow carefully created guidelines, and their work is reviewed by an additional expert to ensure quality.

Languages

English

Dataset

Data Fields

The dataset contains a list of instances (cases); each instance contains the following data:

Field Description
id (str) The case ID
sources (List[str]) A list of strings for the text extracted from the source documents
summary/long (str) The long (multi-paragraph) summary for this case
summary/short (Optional[str]) The short (one-paragraph) summary for this case
summary/tiny (Optional[str]) The tiny (one-sentence) summary for this case

Please check the exemplar usage below for loading the data:

from datasets import load_dataset

multi_lexsum = load_dataset("allenai/multi_lexsum", name="v20220616")
# Download multi_lexsum locally and load it as a Dataset object 

example = multi_lexsum["validation"][0] # The first instance of the dev set 
example["sources"] # A list of source document text for the case

for sum_len in ["long", "short", "tiny"]:
    print(example["summary/" + sum_len]) # Summaries of three lengths

Data Splits

Instances Source Documents (D) Long Summaries (L) Short Summaries (S) Tiny Summaries (T) Total Summaries
Train (70%) 3,177 28,557 3,177 2,210 1,130 6,517
Test (20%) 908 7,428 908 616 312 1,836
Dev (10%) 454 4,134 454 312 161 927

Dataset Sheet (Datasheet)

Please check our dataset sheet for details regarding dataset creation, source data, annotation, and considerations for the usage.

Additional Information

Dataset Curators

The dataset is created by the collaboration between Civil Rights Litigation Clearinghouse (CRLC, from University of Michigan) and Allen Institute for AI. Multi-LexSum builds on the dataset used and posted by the Clearinghouse to inform the public about civil rights litigation.

Licensing Information

The Multi-LexSum dataset is distributed under the Open Data Commons Attribution License (ODC-By). The case summaries and metadata are licensed under the Creative Commons Attribution License (CC BY-NC), and the source documents are already in the public domain. Commercial users who desire a license for summaries and metadata can contact info@clearinghouse.net, which will allow free use but limit summary re-posting. The corresponding code for downloading and loading the dataset is licensed under the Apache License 2.0.

Citation Information

@article{Shen2022MultiLexSum,
  author    = {Zejiang Shen and
               Kyle Lo and
               Lauren Yu and
               Nathan Dahlberg and
               Margo Schlanger and
               Doug Downey},
  title     = {Multi-LexSum: Real-World Summaries of Civil Rights Lawsuits at Multiple Granularities},
  journal   = {CoRR},
  volume    = {abs/2206.10883},
  year      = {2022},
  url       = {https://doi.org/10.48550/arXiv.2206.10883},
  doi       = {10.48550/arXiv.2206.10883}
}

Release History

Version Description
v20220616 The initial v1.0 release
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