attorneys for plaintiffs and the settlementdaniel m. hutchinson (sbn 239458) lieff, cabraser,...

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PLAINTIFFS’ NOT. OF MOT. & MOT. FOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. C-05-5056 PJH (MEJ)

James M. Finberg (SBN 114850)Eve H. Cervantez (SBN 164709)Caroline P. Cincotta (SBN 261056)ALTSHULER BERZON LLP177 Post Street, Suite 300San Francisco, CA 94108Telephone: (415) 421-7151Facsimile: (415) 362-8064

Bill Lann Lee (SBN 108452)Lindsay Nako (SBN 239090)Angelica K. Jongco (SBN 244374)LEWIS, FEINBERG, LEE, RENAKER &

JACKSON, P.C.476 9th StreetOakland, CA 94607Telephone: (510) 839-6824Facsimile: (510) 839-7839

Kelly M. Dermody (SBN 171716)Daniel M. Hutchinson (SBN 239458)LIEFF, CABRASER, HEIMANN &

BERNSTEIN, L.L.P.275 Battery Street, 29th FloorSan Francisco, CA 94111-3339Telephone: (415) 956-1000Facsimile: (415) 956-1008

Attorneys for Plaintiffs and the SettlementClass

Todd M. Schneider (SBN 158253)Guy B. Wallace (SBN 176151)Andrew P. Lee (SBN 245903)SCHNEIDER WALLACE COTTRELLBRAYTON KONECKY, L.L.P.180 Montgomery Street, Suite 2000San Francisco, CA 94104Telephone: (415) 421-7100Facsimile: (415) 421-7105

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JASMEN HOLLOWAY, AMY GARCIA,CHERYL CHAPPEL, ERICBLACKSHER, JESSICA TREAS,LAWRENCE SANTIAGO, JR.,MUEMBO MUANZA, MAURICECALHOUN, and NICHOLAS DIXON, onbehalf of themselves and all otherssimilarly situated,

Plaintiffs,

v.

BEST BUY CO., INC. and BEST BUYSTORES, L.P.,

Defendants.

Case No. C-05-5056 PJH (MEJ)

PLAINTIFFS’ UNOPPOSED NOTICE OFMOTION AND MOTION FOR FINALAPPROVAL OF CLASS ACTIONSETTLEMENT; MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT OF FINAL APPROVAL; ANDREPLY MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORT OFPLAINTIFFS’ MOTIONS FOR SERVICEAWARDS TO NAMED PLAINTIFFS ANDFOR AN AWARD OF ATTORNEYS’ FEESAND REIMBURSEMENT OF COSTS ANDEXPENSES

Hearing Date: November 9, 2011Hearing Time: 9:00 A.M.Courtroom of the Hon. Phyllis J. Hamilton

Case4:05-cv-05056-PJH Document373 Filed10/12/11 Page1 of 29

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- 1 -NOTICE OF MOTION AND MOTION FOR

PRELIMINARY APPROVALCASE NO. C-05-5056 PJH (MEJ)

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

NOTICE IS HEREBY GIVEN that on November 9, 2011, at 9:00 a.m., or as soon

thereafter as the matter may be heard, in the Courtroom of the Honorable Phyllis J. Hamilton of

the Northern District of California, Oakland Division, located at 1301 Clay Street, Oakland,

California, Plaintiff Cheryl Chappel (“Plaintiff”), on behalf of herself and all others similarly

situated, will, and hereby does, move this Court (1) to grant, pursuant to Federal Rule of Civil

Procedure 23(e), final approval to the settlement of this action as embodied in the Consent Decree

attached as Exhibit 1 to this Court’s August 4, 2011 Order granting preliminary approval (the

“Preliminary Approval Order”); and (2) to confirm, pursuant to Federal Rules of Civil

Procedure 23(a) and 23(b)(2), final certification of the settlement Classes conditionally certified

in this Court’s August 4, 2011 Preliminary Approval Order, except that, due to an intervening

change in controlling Ninth Circuit law, Plaintiff requests the following non-substantive change

in the Class definition: (a) instead of certifying three separate Classes – an African American

Class, a Latino Class, and a female Class – Plaintiff requests an order granting final certification

of one unified Class composed of all persons who meet the definition of any of the three Classes

defined in Section I.A. of this Court’s Preliminary Approval Order, and (b) instead of appointing

several of the Named Plaintiffs as Class representatives, Plaintiff requests an order appointing

Cheryl Chappel, an African American woman who is currently employed at Best Buy, as the sole

Class representative of that unified Class of women and minorities. Best Buy does not oppose

this motion.

The Motion is based on this Notice of Motion and Motion, the attached Memorandum of

Points and Authorities, the revised [Proposed] Order Confirming Final Certification of Class

Action and Granting Final Approval to Class Action Settlement and Consent Decree (“Final

Approval Order”), the Declaration of Eve H. Cervantez in Support of Final Approval, the

Declaration of Hazel A. Mottershead Regarding Notice Dissemination, the Declaration of Paul C.

Evans, the Declaration of Steven Hurst, the Declaration of Kelly Groehler, the Declaration of

Randy White, the pleadings and papers filed in this case, and any oral argument this Court


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- 2 -NOTICE OF MOTION AND MOTION FOR

PRELIMINARY APPROVALCASE NO. C-05-5056 PJH (MEJ)

permits.


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TABLE OF CONTENTS

Page

- i -PLAINTIFFS’ NOT. OF MOT. & MOT. FOR FINAL

APPROVAL OF CLASS ACTION SETTLEMENTCASE NO. C-05-5056 PJH (MEJ)

I. INTRODUCTION ........................................................................................................ 1

II. THE CLASS ACTION SETTLEMENT AGREEMENT PROVIDES SUBSTANTIALINJUNCTIVE RELIEF TO THE CLASS WITHOUT RELEASING CLASSMEMBERS’ INDIVIDUAL CLAIMS FOR MONETARY RELIEF.......................... 3

A. Injunctive Relief.......................................................................................... 3

1. Hiring, Promotions, and Assignment .............................................. 3

2. Exempt Compensation .................................................................... 5

3. Training........................................................................................... 5

4. Communication ............................................................................... 5

5. Evaluation of Managers .................................................................. 5

6. Complaint Process........................................................................... 6

7. Monitoring and Enforcement of the Decree.................................... 6

B. Class Member Release ................................................................................ 7

C. Resolution of the Claims of the Named Plaintiffs ...................................... 7

D. Service Payments for the Named Plaintiffs ................................................ 8

E. Attorneys’ Fees and Costs........................................................................... 8

III. NOTICE WAS SENT IN ACCORDANCE WITHTHE PRELIMINARY APPROVAL ORDER ANDNO CLASS MEMBERS OBJECTED.......................................................................... 9

IV. THE PROPOSED SETTLEMENT SHOULD BEFINALLY APPROVED BECAUSE IT IS“FAIR, REASONABLE, AND ADEQUATE.” ......................................................... 10

A. The Settlement Will Benefit the Class. ..................................................... 11

B. The Reaction of the Class Supports Approvalof the Settlement. ...................................................................................... 11

C. The Settlement Was Reached Through Arms-LengthNegotiations after the Parties Conducted An ExtensiveInvestigation and Analysis. ....................................................................... 11


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TABLE OF CONTENTS

Page

- ii -PLAINTIFFS’ NOT. OF MOT. & MOT. FOR FINAL


D. The Settlement Provides Reasonable Relief for theClass Members’ Injunctive Relief Claims, in Lightof the Risks and Delay of Protracted Litigation........................................ 12

E. The Recommendations of Experienced CounselFavor Approval of the Settlement. ............................................................ 14

F. The Court Should Explicitly Find that Class Counsel’sApplication for Attorneys’ Fees and Reimbursement ofCosts and Expenses is Reasonable. ........................................................... 14

V. THE COURT SHOULD CONFIRM FINALCERTIFICATION OF THE CLASS. ......................................................................... 15

VI. SERVICE AWARDS SHOULD BE GRANTEDTO ALL NAMED PLAINTIFFS................................................................................ 19

VII. ATTORNEYS’ FEES AND COSTSSHOULD BE AWARDED. ........................................................................................ 20

VIII. CONCLUSION........................................................................................................... 21


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TABLE OF AUTHORITIES

Page

- iii -PLAINTIFFS’ NOT. OF MOT. & MOT. FOR FINAL


FEDERAL CASES

In re Bluetooth Headset Products Liability Litigation,__ F.3d__, 2011 WL 3632604 (9th Cir. Aug. 19, 2011)...................................... passim

Boyd v. Bechtel Corp.,485 F. Supp. 610 (N.D. Cal. 1979) ........................................................................ 11,14

City of Detroit v. Grinnell Corp.,495 F.2d 448 (2d Cir. 1974)........................................................................................ 13

City of Riverside v. Rivera,477 U.S. 561 (1986) .................................................................................................... 21

Class Plaintiffs v. City of Seattle,955 F.2d 1268 (9th Cir. 1992)....................................................................................... 2

Donaldson v. Pillsbury Co,554 F.2d 825 (8th Cir. 1977)....................................................................................... 16

Dukes v. Wal-Mart,603 F.3d 571 (9th Cir. 2010)....................................................................................... 16

Ellis v. Costco,___ F.3d ___, 2011 WL 4336668 (9th Cir. Sept. 16, 2011) ................................... 2, 16

Ellis v. Naval Air Rework Facility,87 F.R.D. 15 (N.D. Cal. 1980) ........................................................................ 10, 11, 14

Ellis v. Naval Air Rework Facility,404 F. Supp. 391 (N.D. Cal. 1975) ............................................................................. 16

Gill v. Monroe County Department of Social Services,95 F.R.D. 518 (S.D.N.Y. 1982) .................................................................................. 16

Goldberger v. Integrated Resources, Inc.,209 F.3d 43 (2d Cir. 2000).......................................................................................... 13

I.M.A.G.E. v. Bailar,78 F.R.D. 549 (N.D. Cal. 1978) .................................................................................. 16

Millea v. Metropolitan-North Railroad,__ F.3d__, 2011 WL 3437513 (2nd Cir. Aug. 8, 2011).............................................. 15

Moore v. City of San Jose,615 F.2d 1265 (9th Cir. 1980)..................................................................................... 13

Officers for Justice v. Civil Serv. Commission,688 F.2d 615 (9th Cir. 1982)................................................................................. 10, 13


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TABLE OF AUTHORITIES

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In re Prudential Sec. Inc. Ltd Partnerships Litigation,163 F.R.D. 200 (S.D.N.Y. 1995) ................................................................................ 10

Staton v. Boeing Co.,327 F.3d 938 (9th Cir. 2003).............................................................................. 2, 10,14

Utility Reform Project v. Bonneville Power Admin.,869 F.2d 437 (9th Cir. 1989)....................................................................................... 10

Wal-Mart v. Dukes,___ U.S. ___, 131 S. Ct. 2541 (2011) ............................................................. 13, 17, 18

Walsh v. Great Atlantic & Pac. Tea Co.,726 F.2d 956 (3d Cir. 1983)........................................................................................ 17

FEDERAL STATUTES

29 U.S.C. § 206................................................................................................................... 7

42 U.S.C. § 1981................................................................................................................. 7

42 U.S.C. §1988 ................................................................................................................ 21

42 U.S.C. § 2000e ............................................................................................................... 7

Fed. R. Civ. P. 23(b)(2)..................................................................................... 1, 13, 17, 19

Fed. R. Civ. P. 23(e)...................................................................................................... 9, 10

Fed. R. Civ. P. 23(a)................................................................................................ 1, 15, 17

STATE STATUTES

Cal. Gov. Code § 12940...................................................................................................... 7


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- 1 -PLAINTIFFS’ NOT. OF MOT. & MOT. FOR FINAL


MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff Cheryl Chappel (“Plaintiff”) hereby requests that this Court grant final approval

of the proposed Consent Decree, which provides substantial injunctive relief to the Class. The

Consent Decree, which has a four-year term, provides, among other things, the following

important injunctive relief obligating Best Buy: (1) to use standardized selection procedures

including new interview guides prepared by an industrial organizational psychologist (“I/O

psychologist”), which have been reviewed and approved by Plaintiff’s expert I/O psychologist,

based on job analyses prepared by an I/O psychologist, for all retail store hiring and job

assignment, and for promotions to supervisor or exempt manager positions; (2) to include with

every job posted on the Company’s online application system a clear description of the position’s

duties and the required qualifications; (3) to post all open senior, supervisor, and exempt manager

positions on an electronic system accessible to all Best Buy store-level employees no less than

five days before the position is filled; (4) to create an electronic process for current store-level

employees to register interest in any full time, senior, supervisor, or exempt positions, and to

select outside applicants or employees who have not registered an interest only after having first

considered all employees who have registered interest through this system; (5) to retain an I/O

psychologist to review Best Buy’s compensation policies and make recommendations to ensure

that Best Buy is complying with its nondiscrimination policies; and (6) to explicitly train

managers that Best Buy’s marketing strategies should not be interpreted to inform or guide Best

Buy’s hiring, recruitment, job assignment, transfer, promotions, or compensation policies. This

meaningful injunctive relief will greatly enhance equal employment opportunity at Best Buy for

years to come, providing significant value to the Class and to society. The value of increased

opportunities for hiring, promotions, and higher compensation is impossible to monetize, but is

doubtless substantial. Class members are not releasing claims for individual monetary damages

or for individual injunctive relief.

This settlement is thus “fair, reasonable, and adequate” within the meaning of Federal

Rule of Civil Procedure 23(e). The Class has responded extremely favorably. Class Notice was


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sent to over 47,000 Class members, and not a single Class member has objected to any aspect of

the Consent Decree (including the separate requests for service awards to Named Plaintiffs and

for attorneys’ fees and costs). Class Counsel have conducted sufficient discovery to enable them

to evaluate the claims and defenses in the action, and have fully briefed class certification twice.

The settlement is in line with the strength and recoverability of Plaintiffs’ claims given the risk,

expense, complexity, and likely duration of further litigation. See Staton v. Boeing Co., 327 F.3d

938, 959 (9th Cir. 2003); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992).

Accordingly, the settlement easily satisfies the Ninth Circuit’s criteria for class action settlement

approval.

In connection with requesting final settlement approval, Plaintiff also requests that the

Court confirm as final the certification of the Classes conditionally certified in its August 4, 2011

Preliminary Approval Order (“Preliminary Approval Order”), as modified to take into account a

recent change in Ninth Circuit law. As discussed in more detail in Section V, Plaintiff requests

that the three Classes certified in the Court’s Preliminary Approval Order be converted into one

unified Class, with one Class representative, Cheryl Chappel, in order to satisfy the requirements

of the Ninth Circuit’s recent decision in Ellis v. Costco, __ F.3d __, 2011 WL 433668 (9th Cir.

Sept. 16, 2011), which was issued after this Court’s Preliminary Approval Order. Defendants do

not oppose this request. A revised [Proposed] Order (1) Confirming Final Certification of Classes

and (2) Granting Final Approval to Class Action Settlement and Consent Decree, agreed to by all

parties, is filed herewith.

Plaintiff also requests that the Court grant Service Awards to the Named Plaintiffs, as set

forth in the Unopposed Motion for Service Awards to Named Plaintiffs (Dkt. No. 362) and

discussed briefly in Section VI infra. Finally, Plaintiff requests that the Court award attorneys’

fees and costs as set forth in the Motion for an Award of Attorneys’ Fees and Reimbursement of

Costs and Expenses (Dkt. No. 366), and make the specific findings about attorneys’ fees required

by the Ninth Circuit’s new opinion in In re Bluetooth Headset Products Liability Litigation, __

F.3d__, 2011 WL 3632604 (9th Cir. Aug. 19, 2011) (which was decided after Plaintiff’s initial

fee brief was filed), as reflected in the revised [Proposed] Order Granting Plaintiff’s Application


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For an Award of Attorneys’ Fees and Costs, filed herewith.

II. THE CLASS ACTION SETTLEMENT AGREEMENT PROVIDESSUBSTANTIAL INJUNCTIVE RELIEF TO THE CLASS WITHOUTRELEASING CLASS MEMBERS’ INDIVIDUAL CLAIMS FOR MONETARYRELIEF.

On August 4, 2011, the Court granted Plaintiffs’ Motion for (1) Preliminary Approval of

Class Action Settlement; (2) Conditional Certification of Settlement Classes; and (3) Setting of

Schedule for Final Approval. Dkt. No. 361. The Court determined that the settlement falls

“within the range of possible settlement approval,” is “the result of extensive, arms’ length

negotiations between the Parties,” is “non-collusive,” and was reached only “after Class Counsel

had investigated the Class claims and become familiar with the strengths and weakness of

plaintiffs’ case.” Preliminary Approval Order (Docket No. 361) at 4:1-4. The Court stated that “I

certainly think the settlement is within the ballpark of what is reasonable.” August 3, 2011

Transcript of Preliminary Approval Hearing at 26:5-6.

A. Injunctive Relief

The proposed Consent Decree provides comprehensive class-wide injunctive relief

tailored to the particular violations alleged, in exchange for a release by Settlement Class

members of class claims for declaratory and injunctive relief. Settlement Class members will not

release claims for individual monetary relief or individual injunctive relief.

During the four-year period of the Decree, Best Buy will implement comprehensive

affirmative relief addressing the hiring, assignment, promotion, and exempt compensation claims

in this action, including the following:

1. Hiring, Promotions, and Assignment

Best Buy has developed and will continue to use standardized selection procedures

(including using new interview guides prepared by an I/O psychologist based on job analyses

prepared by an I/O psychologist) for all retail store hiring, initial and subsequent job assignment,

and for promotions to supervisor or exempt manager positions. Consent Decree (Dkt. 355-1),

Sections II.C., II.D.2., II.D.4. Class Counsel retained their own, independent I/O psychologist

who reviewed the new interview guides and found them materially improved from the older


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interview guides challenged by Plaintiffs. Declaration of Eve H. Cervantez in Support of

Application for Attorneys’ Fees and Costs (Dkt. No. 368) (“Cervantez Fee Decl.”) ¶37. Best Buy

will make material changes to these new selection procedures only with the approval of an I/O

psychologist and notification to the Court and Class Counsel. Consent Decree (Dkt. 355-1),

Sections II.C., D.4., I.3.

Best Buy will designate a qualified individual whose primary purpose will be to oversee

Best Buy’s processes for encouraging the recruitment and retention of qualified diverse

management candidates, including qualified African Americans, Latinos, and women, throughout

the company. Consent Decree (Dkt. 355-1), Section II.C.5.

Best Buy will post all open senior, supervisor, and exempt manager positions on an

electronic system accessible to all Best Buy store-level employees no less than five days before

the position is filled. Although Best Buy will be excused from the posting requirement in the

case of business necessity, business necessity will not include preference for a particular

candidate or urgency to fill a position. Consent Decree (Dkt. 355-1), Section II.D.3.

Best Buy will include with every job posted on the company’s online application system a

clear description of the position’s duties and the required qualifications. Consent Decree (Dkt.

355-1), Section II.C.4.

Best Buy will create an electronic process for current store-level employees to register

their interest in any full-time, senior, supervisor, or exempt position, and will remind employees

to renew their interest at 6-month intervals. Before selecting outside applicants or employees

who have not registered an interest, managers will be required to consider employees who have

registered their interest through this system. Consent Decree (Dkt. 355-1), Section II.D.1.

Best Buy will also implement processes to increase the pool of African American, Latino,

and female employees qualified for promotion to management at all its retail stores by increasing

training opportunities, and will continue to ensure that any training programs and formal

mentoring opportunities provided will be available to all employees regardless of race or gender,

except when such opportunities are targeted at minority or female employees. Consent Decree

(Dkt. 355-1), Section II.D.5.


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Best Buy will explicitly train managers that Best Buy’s marketing strategies should not be

interpreted to influence or guide Best Buy’s hiring, recruitment, job assignment, transfer,

promotions, or compensation practices. Consent Decree (Dkt. 355-1), Section II.F.3.

2. Exempt Compensation

Best Buy will retain an I/O psychologist or outside compensation specialist to review Best

Buy’s compensation policies and make recommendations to Best Buy. Best Buy will train its

managers on the use of any tools developed by this consultant. Best Buy will review the

compensation of exempt managers not less than once annually to ensure that the company is

complying with its non-discrimination policies. Consent Decree (Dkt. 355-1), Section II.E.

3. Training

Within 6 months of the date the Decree becomes effective, Best Buy will train all its

General Managers regarding the terms of the Decree pertaining to hiring, promotions, the registry

system, job postings, the complaint procedure, the company’s diversity policies, and the

distinction between customer marketing and employee staffing. Best Buy will also provide the

following training: all new hires will be trained on the company’s non-discrimination, anti-

harassment, and anti-retaliation policies; all employees will be trained on use of the registry

system; supervisors and managers will receive annual diversity trainings; and staff involved in

hiring and promotions will be trained on use of the selection procedures, including the company’s

interest in diversity. Consent Decree (Dkt. 355-1), Sections II.C, D, and F.

4. Communication

Best Buy will continuously post its non-discrimination, anti-harassment, and anti-

retaliation policies on the company’s intranet website, along with an annual message from the

CEO. A high ranking Best Buy officer will make a statement in support of these policies at

annual regional or national meetings attended by store General Managers during the term of the

Decree. Consent Decree (Dkt. 355-1), Section II.B.

5. Evaluation of Managers

Best Buy will evaluate all supervisors, exempt store managers, and District Managers

annually on their ability to manage a diverse workforce, including their compliance with the


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terms of the Consent Decree. An I/O psychologist will advise Best Buy on how best to conduct

and weigh these evaluations. Consent Decree (Dkt. 355-1), Section II.H.

6. Complaint Process

Best Buy will continue to provide a procedure for employees or job applicants to report

discrimination or retaliation on the basis of race, color, national origin, or gender, or alleged

violations of the Consent Decree. This procedure will be communicated to new hires and posted

on the company’s intranet website continuously, and on the intranet home page for seven

consecutive days at least once annually. In cases where a complaint is substantiated, Best Buy’s

policy will be to impose appropriate discipline, up to and including discharge. Consent Decree

(Dkt. 355-1), Section II.G.

7. Monitoring and Enforcement of the Decree

The term of the Decree is four years from the date the Decree becomes effective. Consent

Decree (Dkt. 355-1), Section II.M. Best Buy will make good faith best efforts to implement the

provisions of the Decree as soon as reasonably practicable. If Best Buy requires more than 12

months to fully implement the Decree, the term will be extended with respect to the specific

provisions not yet implemented by the additional time over 12 months required for

implementation. Consent Decree (Dkt. 355-1), Section II.L.

Best Buy will designate an officer (“Monitor”) who will oversee Best Buy’s policies and

practices to ensure compliance with the Decree. The Monitor will have access to statistical data

necessary to ensure that the company is complying with the terms of the Decree in its hiring, job

assignment, promotion, and compensation practices. Within 6 months after the Decree becomes

effective, and annually thereafter for the term of the Decree, the Monitor will file a Certificate of

Compliance with the Court. Consent Decree (Dkt. 355-1), Section II.I. In addition, Best Buy’s

corporate audit department will regularly audit to ensure compliance with the terms of the Decree.

Consent Decree (Dkt. 355-1), Sections II.C.2., II.D.1.d., II.D.3.c., II.E.3., II.F.5.

The Court will retain jurisdiction during the term of the Decree to enforce its provisions.

Consent Decree (Dkt. 355-1), Section II.K.


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B. Class Member Release

Under the Consent Decree members of the Settlement Class will release certain Class

claims seeking declaratory or injunctive relief. Settlement Class members will not, however,

release any claims against Best Buy for individual injunctive relief or for individual monetary

relief.

The Consent Decree provides as follows:

The members of the Settlement Classes who are not Named Plaintiffs release all claimsfor classwide injunctive and declaratory relief of whatever nature, known or unknown thatthe Named Plaintiffs and members of the Settlement Classes may have against Best Buy,its subsidiaries and affiliated companies, and in the case of all such entities, theirrespective past and present owners, representatives, officers, directors, attorneys, agents,employees, insurers, successors and assigns (collectively referred to as the "ReleasedParties"), arising out of the same transactions, series of connected transactions,occurrences or nucleus of operative facts that form the basis of the claims that were orcould have been asserted in the Civil Action including claims arising under the CivilRights Act of 1866, as amended, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of1964, as amended, 42 U.S.C. § 2000e, et seq., the Fair Employment and Housing Act("FEHA"), as amended, Cal. Gov. Code § 12940, et seq., the Equal Pay Act, 29 U.S.C. §206, et seq., or under any other federal, state, local or common laws or regulations. Thisrelease further includes, but is not limited to, claims for classwide injunctive ordeclaratory relief alleging a class-wide pattern and practice of race, national origin andgender discrimination in, or an unlawful disparate impact associated with, (1) recruitment,(2) pre-employment testing, (3) entry-level hiring, (4) job assignments, (5)promotions/transfers, (6) movement from Occasional/Seasonal to Regular status, (7)movement from part-time to full-time employment, or (8) the allocation of hours of work.This release includes and covers without limitation all actions, decisions, or omissionsoccurring up to and including the Preliminary Approval date as defined subject to theprovisions set forth herein.

[¶]The members of the Settlement Classes who are not Named Plaintiffs do not releaseany claims for individual monetary relief, including without limitation back pay, frontpay, compensatory damages, punitive damages, or prejudgment interest, nor do theyrelease any claims for individual injunctive or declaratory relief for any past or currentviolations of Title VII, Section 1981, or FEHA, or for any relief that may be appropriatefor any future violations of this Consent Decree or applicable law.

Consent Decree (Dkt. No. 355-1) Section V.

C. Resolution of the Claims of the Named Plaintiffs

Best Buy has agreed to pay Named Plaintiffs a total of $200,000 to settle all the Named

Plaintiffs’ claims for both individual monetary and individual injunctive relief. Consent Decree

(Dkt. No. 355-1) Section IV. Unlike Settlement Class members, the Named Plaintiffs will release

any and all claims against Best Buy arising out of their employment with Best Buy. Id. The total

sum will be distributed among the Named Plaintiffs as set forth in separate settlement agreements,


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which will be filed in camera with the Court, in accordance with the Preliminary Approval Order

(Dkt. No. 361) at 6:12-13.

D. Service Payments for the Named Plaintiffs

The Consent Decree provides that the nine Named Plaintiffs can apply to the Court for

service payments not exceeding $10,000 each, to compensate them for their role in bringing and

prosecuting this action. Consent Decree Section IX. Class Counsel have filed a separate motion

for approval of the service payments to Named Plaintiffs. Dkt. No. 362. As set forth in that

motion and the accompanying declarations of the Named Plaintiffs and attorney Daniel

Hutchinson, each of the Named Plaintiffs was deposed, produced documents, and spent many

hours working with Class Counsel on this matter, including actively participating in the

formulation of the injunctive relief described above. See generally Appendix of Named Plaintiff

Declarations in Support of Unopposed Motion for Service Awards (Dkt. No. 363); Declaration of

Daniel M. Hutchinson in Support of Motion for Service Awards to Named Plaintiffs (Dkt. No.

364). The settlement is not contingent on the award of service payments to the Named Plaintiffs.

Consent Decree (Dkt. 355-1) Section IX.

E. Attorneys’ Fees and Costs

Best Buy has agreed to pay Class Counsel attorneys’ fees and to reimburse Class Counsel

for the costs and expenses they have incurred in this action, not to exceed $9,999,999 total for

fees and costs. Consent Decree (Dkt. 355-1) Section X. Class Counsel filed a separate motion

for approval of attorneys’ fees and costs. Dkt. No. 366. As documented in that motion and

supporting declarations, Class Counsel have incurred almost $2 million in costs and expenses in

this case, and devoted many thousands of hours to this case, having a lodestar value of almost $16

million, even after deletion of time spent on issues on which Plaintiffs did not prevail and for

arguably duplicative or inefficient time. Cervantez Fee Decl. (Dkt. No. 368) ¶¶7, 50. The amount

that Best Buy has agreed to pay will compensate Class Counsel for approximately half their

reasonable lodestar. The Settlement is not contingent on the Court awarding any particular

amount in attorneys’ fees and costs. Consent Decree (Dkt. 355-1) Section X.


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III. NOTICE WAS SENT IN ACCORDANCE WITH THE PRELIMINARYAPPROVAL ORDER AND NO CLASS MEMBERS OBJECTED.

Class Counsel and Best Buy sent Notice in accordance with the Preliminary Approval

Order, and no Class members have objected to any part of the Consent Decree, including the

service awards to the Named Plaintiffs or the attorneys’ fees and costs. On August 18, 2011, Best

Buy emailed Class Notice to 47,621 Class members for whom active Best Buy email addresses

were available. Declaration of Randy White ¶¶2-4. Best Buy also posted Class Notice in the

break rooms of all Best Buy stores in the United States as of August 15, 2011. Declaration of

Steven Hurst ¶¶2-4. Best Buy also posted Class Notice on Best Buy’s external website,

www.bestbuy.com, under the heading “legal.” Declaration of Kelly Groehler ¶2. Counsel for

Best Buy mailed CAFA notice to the Attorney Generals of all 50 states on June 27, 2011.

Declaration of Paul C. Evans ¶3.

There were 199 Class members in Class Counsel’s database who had contacted Class

Counsel about the case at some point during the litigation. Declaration of Hazel Mottershead re:

Notice Dissemination ¶4. On August 17, 2011, Class Counsel mailed Notice to all Class

members in Class Counsel’s database who had physical mailing addresses, and emailed Notice to

Class members for whom only an email address was available. Id. ¶¶5-6. Notices that were

returned as undeliverable were either emailed to Class members, or mailed to updated addresses.

Id. ¶7. There was only one Class member for whom Class Counsel was unable to locate either an

email address or an updated address. Id.

On August 17, 2011, Class Counsel posted the complete Motion for an Award of

Attorneys’ Fees and Reimbursement of Costs and Expenses, and the Motion for Service Awards

to Named Plaintiffs, on the settlement website established for this case, www.bbclassaction.com.

Id. ¶10. The Class Notice has also been posted on the settlement website since June 17, 2011. Id.

¶9.

The postmark date for objections was October 1, 2011. Preliminary Approval Order (Dkt.

No. 361) at 6:3-5. As of October 12, 2011, no objections were received. Declaration of Eve H.

Cervantez in Support of Final Approval (“Cervantez Final Approval Decl.”) ¶4.


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IV. THE PROPOSED SETTLEMENT SHOULD BE FINALLY APPROVEDBECAUSE IT IS “FAIR, REASONABLE, AND ADEQUATE.”

“[V]oluntary conciliation and settlement are the preferred means of dispute resolution,”

especially in complex class actions. Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615,

625 (9th Cir. 1982); Utility Reform Project v. Bonneville Power Admin., 869 F.2d 437, 443 (9th

Cir. 1989). Class action lawsuits readily lend themselves to compromise because of the

difficulties of proof, the uncertainties of the outcome and the typical length of the litigation. As a

result, courts should exercise their discretion to approve settlements “in recognition of the policy

encouraging settlement of disputed claims.” In re Prudential Sec. Inc. Ltd Partnerships Litig.,

163 F.R.D. 200, 209 (S.D.N.Y. 1995). Because “cooperation and voluntary compliance are the

preferred means for achieving the statutory goals of Title VII,” “settlement is favored in resolving

Title VII litigation in general.” Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal.

1980).

To approve a proposed settlement of a class action under Fed. R. Civ. P. 23(e), the Court

must find that the proposed settlement is “fair, adequate and reasonable,” recognizing that ‘“it is

the settlement taken as a whole, rather than the individual component parts, that must be

examined for overall fairness.”’ Staton, 327 F.3d at 959-60 (quoting Hanlon v. Chrysler Corp.,

150 F.3d 1011, 1026 (9th Cir. 1998)(internal alterations omitted)).

When determining whether to grant final approval, “the court’s intrusion upon what is

otherwise a private consensual agreement negotiated between the parties to a lawsuit must be

limited to the extent necessary to reach a reasoned judgment that the agreement is not the product

of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement,

taken as a whole, is fair, reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d

at 625. The Court should balance “the strength of plaintiffs’ case; the risk, expense, complexity,

and likely duration of further litigation; the risk of maintaining class action status throughout the

trial; the amount offered in settlement; the extent of discovery completed, and the state of the

proceedings; the experience and views of counsel . . . and the reaction of the class to the proposed

settlement.” Id. “The recommendations of plaintiffs’ counsel should be given a presumption of


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reasonableness.” Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979); Ellis, 87 F.R.D.

at 18 (“[T]he fact that experienced counsel involved in the case approved the settlement after

hard-fought negotiations is entitled to considerable weight”).

A. The Settlement Will Benefit the Class.

The injunctive relief in the Consent Decree provides substantial benefits to the Class. The

Consent Decree modifies Best Buy’s employment practices in ways that will enhance

employment opportunities for thousands of African Americans, Latinos, and women nationwide

for years to come. The injunctive relief addresses the concerns raised in Plaintiffs’ complaint,

and covers hiring, assignment, promotion and compensation policies and practices at all Best Buy

retail stores in the United States. Although it is impossible to determine the monetary value of

the effects of the injunctive relief, it is clear that Class members will reap substantial benefits

from these improved employment policies and practices, which will increase hiring, promotions,

and compensation for women and minorities many years into the future.

B. The Reaction of the Class Supports Approval of the Settlement.

Notice was distributed pursuant to this Court’s Preliminary Approval Order to over 47,000

Class members, and Class Counsel did not receive a single objection. This indicates support for

the settlement and strongly favors its approval.

Moreover, all of the Named Plaintiffs have thoroughly reviewed the Consent Decree, and

believe that the injunctive relief will make Best Buy a better place to work for women and

minorities, and will address the specific problems they encountered at Best Buy, as alleged in the

Complaint. Appendix of Named Plaintiff Declarations (Dkt. No. 363): Blacksher Decl. ¶6,

Calhoun Decl. ¶6, Chappel Decl. ¶6, Dixon Decl. ¶6, Garcia Decl. ¶6, Holloway Decl. ¶6,

Muanza Decl. ¶6, Santiago Decl. ¶6, Treas Decl. ¶6.

C. The Settlement Was Reached Through Arms-Length Negotiations after theParties Conducted An Extensive Investigation and Analysis.

The parties and their counsel engaged in extensive formal discovery and motion practice

before reaching the Settlement Agreement. Cervantez Fee Decl. (Dkt. No. 368) ¶¶8-38.

Class Counsel spent many thousands of hours litigating this case and vigorously


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investigating the claims asserted against Best Buy. Through discovery, Class Counsel obtained

from Best Buy over 12 million pages of documents and comprehensive employment data

covering many hundreds of thousands of Best Buy employees. Id. ¶10. Class Counsel took 23

depositions of corporate designees, 10 depositions of additional corporate fact witnesses, and 7

depositions of expert witnesses. Id. ¶¶16, 20, 23. Class Counsel also defended the depositions of

50 store-level witnesses, including the Named Plaintiffs and other Class members. Id. ¶17.

Additionally, Class Counsel received reports from statistical and social science expert witnesses

who reviewed thousands of documents relating to the numerous policies and practices at issue in

this case and comprehensive payroll data. Id. ¶¶19-26. Class Counsel fully briefed class

certification twice, and argued for class certification before this Court. Id. ¶¶29-33.

As a result, Class Counsel negotiated the proposed settlement with complete knowledge

regarding the strengths and weaknesses of the case and the benefits of the proposed settlement for

the Class members. Preliminary Approval Order (Dkt. No. 361) at 4. The proposed settlement is

the non-collusive product of hard-fought litigation. Id.

D. The Settlement Provides Reasonable Relief for the Class Members’ InjunctiveRelief Claims, in Light of the Risks and Delay of Protracted Litigation.

Best Buy has denied any intentional discrimination against African Americans, Latinos, or

women, and has denied that the company’s employment policies or practices had a disparate

impact on these groups. It is apparent from the proceedings to date and the parties’ negotiations

that if the case is not settled, Best Buy will continue to aggressively contest liability and the

propriety of class certification.

Although Class Counsel believe that Plaintiff’s claims are meritorious, and that they

would eventually prevail in certifying this case as a class action and on the merits, Class Counsel

have also considered the risks associated with protracted litigation. Class Counsel have

considered the possibility that the case, if not settled now, might not result in any injunctive relief

for the Class members, or might result in injunctive relief several years from now that is less

favorable to Class members than that offered by the Consent Decree. Declaration of James M.


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Finberg in Support of Preliminary Approval (Dkt. No. 357) ¶6. In light of these considerations,

Class Counsel are satisfied that the terms and conditions of the Consent Decree are fair,

reasonable and adequate and that the Consent Decree is in the best interests of the Settlement

Class. Finberg Decl. (Dkt. No. 357) ¶6; Cervantez Final Approval Decl. ¶6.

As discussed at the hearing on Plaintiffs’ Motion for Preliminary Approval, the United

States Supreme Court’s recent decision in Wal-Mart v. Dukes, ___ U.S. ___, 131 S. Ct. 2541

(2011) increased the risks that Plaintiff would face in further litigation of this action. Although

the Dukes case was not decided until after the settlement was reached, the oral argument in the

Dukes case had occurred before the settlement was reached, and was considered during the

negotiation process. Cervantez Final Approval Decl. ¶5. Class Counsel’s decision to negotiate a

Consent Decree with an injunctive-relief-only Class under Rule 23(b)(2) was influenced by Class

Counsel’s prediction, which proved accurate, that after the Dukes decision, claims for monetary

relief would, in most cases, have to be certified under the additional requirements of Rule

23(b)(3). Id.

Significantly, Class members are not releasing their claims for individual monetary relief,

or for individual injunctive relief. In a Title VII case brought predominantly to change

employment practices and to assure equal opportunities for minorities and women in the future, it

is entirely reasonable for Class members to settle for injunctive relief, leaving litigation over

individual monetary relief to those Class members who choose to separately seek such relief.

See, e.g., Moore v. City of San Jose, 615 F.2d 1265, 1271 (9th Cir. 1980) (discussing settlement in

which individual plaintiffs “gave up the possibility of back pay” in exchange for specific

injunctive relief). “It is well-settled law that a cash settlement amounting to only a fraction of the

potential recovery will not per se render the settlement inadequate or unfair.” Officers for Justice,

688 F.2d at 628 (citing City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated

on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000)). “The

proposed settlement cannot be judged without reference to the strength of plaintiffs’ claims.”

City of Detroit, 495 F.2d at 455. Here, Plaintiff has strong claims for injunctive relief, but faced

considerable risk with respect to certification of the Class claims for monetary relief, which were


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not released, and may be litigated individually by individual Class members as they see fit.

E. The Recommendations of Experienced Counsel Favor Approval of theSettlement.

The judgment of experienced counsel regarding the settlement is entitled to great weight.

Boyd, 485 F. Supp. at 622; Ellis, 87 F.R.D. at 18. Here, counsel for both parties endorse the

settlement as fair, adequate, and reasonable. The recommendation of Class Counsel should be

given a presumption of reasonableness. See, e.g., Boyd, 485 F. Supp. at 622. Class Counsel here

have extensive experience in prosecuting and litigating class actions. Cervantez Fee Decl. (Dkt.

No. 368) ¶¶52-54, 58-59, 73; Declaration of Kelly M. Dermody in Support of Attorneys’ Fee

Motion (Dkt. No. 369) ¶¶ 4-5; Declaration of Guy B. Wallace in Support of Attorney’s Fee

Motion (Dkt. No. 372) ¶¶4-5; Declaration of Bill Lann Lee in Support of Attorneys’ Fee Motion

(Dkt. No. 371) ¶¶4-5. The fact that qualified and well-informed counsel endorse the settlement as

being fair, reasonable, and adequate heavily favors this Court’s approval of the settlement.

F. The Court Should Explicitly Find that Class Counsel’s Application forAttorneys’ Fees and Reimbursement of Costs and Expenses is Reasonable.

In In re Bluetooth, ___ F.3d ___, 2011 WL 3632604 at *3, *6, *9 (9th Cir. Aug. 19, 2011)

the Ninth Circuit, seemingly in conflict with prior decisions, see e.g. Staton v. Boeing, 327 F.3d

938 (9th Cir. 2003), indicated that a trial court should make findings about the reasonableness of

the attorneys’ fees requested in a class action settlement as part of its overall evaluation of the

settlement, even if the settlement is not contingent on approval of a specific amount of fees,

because a high payment of fees where the class gets little from the settlement might indicate a

collusive settlement. The Ninth Circuit’s Bluetooth decision did not change the standards for

either class action settlement approval or for award of attorneys’ fees in class action lawsuits;

rather, it instructed district courts to make certain detailed findings. Bluetooth at *12. As

discussed in detail in Plaintiffs’ Motion for Attorneys’ Fees and below (infra, Section VII),

Plaintiffs’ request for attorneys’ fees of approximately half of Class Counsel’s reasonable lodestar

(after reductions for issues on which Plaintiffs did not prevail and for arguably duplicative or

inefficient work) is easily fair and reasonable, given the extensive and beneficial injunctive relief

obtained, particularly when considered in light of the purposes of the fee-shifting provisions of


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the civil rights statutes at issue here, in which injunctive relief to end discrimination is a primary

goal of the statutory scheme. See, e.g., Millea v. Metro-North Railroad, __ F.3d__, 2011 WL

3437513 at *10 (2nd Cir. Aug. 8, 2011) (Title VII case: “The whole purpose of fee-shifting

statutes is to generate attorneys’ fees that are disproportionate to the plaintiff’s recovery”)

(emphasis in original). Bluetooth was not a civil rights case, and thus did not address the special

considerations underlying attorneys’ fees awards in such cases. Moreover, the injunctive relief in

this case is far more meaningful than the injunctive relief in Bluetooth,1 and the Class here, unlike

the class in Bluetooth, is not releasing claims for monetary relief.

In this case, the Court has already found, based on the settlement and record in this case,

that this settlement is “non-collusive.” Preliminary Approval Order at 4. Moreover, in Bluetooth,

the Ninth Circuit emphasized that there had only been a statement at oral argument that fees were

negotiated after the other relief was agreed to, but no evidence had been submitted on that point.

Bluetooth, 2011 WL 3632604 at *10. Here, Class Counsel have already submitted a declaration

under penalty of perjury stating that the parties agreed upon the injunctive relief and payments to

the Named Plaintiffs before negotiating attorneys’ fees. Finberg Decl. (Dkt. No. 357) ¶3. The

record is clear in this case that both the settlement terms and the fees requested are reasonable.

The Bluetooth decision requires express findings on these points, and accordingly Class Counsel

have modified the previously submitted proposed orders granting final approval and granting the

attorneys’ fee application, and are submitting the revised proposed orders with this brief.

V. THE COURT SHOULD CONFIRM FINAL CERTIFICATION OF THE CLASS.

The Court’s August 4, 2011 Preliminary Approval Order provisionally certified three

injunctive relief settlement Classes pursuant to Rules 23(a) and (b)(2) of the Federal Rules of

Civil Procedure. Preliminary Approval Order (Dkt. No. 361) at 2:1-3:10. The Court ruled that,

for purposes of settlement, these three injunctive relief only Classes meet the Rule 23

1 See In re Bluetooth, 2011 WL 3632604 at *7 n.8 (“We note, however, that the value of theinjunctive relief is not apparent to us from the face of the complaint, which seeks to recoversignificant monetary damages for alleged economic injury, nor from the progression of thesettlement talks, the last of which occurred after defendants had already voluntarily added newwarnings to their websites and product manuals”).


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requirements. Id. The Court provisionally appointed seven of the Named Plaintiffs to serve as

Class Representatives of those three Classes. Id at 3:14-3:17. The Court should confirm

certification of the Class, but with a slight modification to take into account a recent Ninth Circuit

decision.

On September 16, 2011, the Ninth Circuit issued its opinion in Ellis v. Costco, ___ F.3d

___ , 2011 WL 4336668 (9th Cir. Sept. 16, 2011), that modified the law in this Circuit for when a

named plaintiff is an adequate representative for a class seeking injunctive relief. Specifically,

the Ninth Circuit held that only a current employee is an adequate representative of a class

seeking injunctive relief. Id. at *12, *14. This is a change from the prior law in this Circuit,

which was that a named plaintiff could represent a class seeking injunctive relief if he or she had

been a current employee at the time the complaint was filed. See, e.g. Dukes v. Wal-Mart, 603

F.3d 571, 623 (2010).

Cheryl Chappel is the only one of the Named Plaintiffs who is still a current employee of

Best Buy. Under the Costco decision, Cheryl Chappel is an adequate Class representative for the

injunctive relief Class in this case, whereas the other Named Plaintiffs, who no longer work at

Best Buy, are not. Since Ms. Chappel is both a woman and a minority (African American), she is

an adequate representative for a Class comprised of women, African Americans, and Latinos.

See, e.g., Donaldson v. Pillsbury Co, 554 F.2d 825, 826, 831-32 (8th Cir. 1977) (woman of color

may represent class alleging race and gender discrimination); I.M.A.G.E. v. Bailar, 78 F.R.D.

549, 557-58 (N.D. Cal. 1978) (same); Gill v. Monroe County Dept. of Social Servs., 95 F.R.D.

518, 521 (W.D.N.Y. 1982) (African-American adequate to represent Latinos); Ellis v. Naval Air

Rework Facility, 404 F.Supp. 391, 396-97 (N.D. Cal. 1975) (similar).

To comply with the Ninth Circuit’s Costco decision, Plaintiff requests that this Court (1)

grant final certification of one unified Class defined as including any person meeting the

definition of any of the three Classes certified in this Court’s Preliminary Approval Order (Dkt.

No. 361), and (2) appoint Ms. Chappel as the sole representative of that unified Class.

Defendants do not oppose this request. The proposed form of order submitted to the Court with

this motion modifies the settlement Class and the appointed Class representative in that fashion.


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Since the modified Class is composed of the three separate Classes certified by this

Court’s Preliminary Approval Order, the settlement will still cover exactly the same group of

people. The group is not being expanded or contracted. The same individuals are members of the

Class, and are releasing the exact same Class claims for injunctive relief. There is no conflict or

antagonism among the three Classes. The terms of the injunctive relief provided will not change.

In sum, this modification of the settlement Class from three Classes to one unified Class is a

change of form, not substance. It does not alter who is affected by the settlement, or what the

settlement will provide.

No new notice is required here, because the Court has broad discretion over what notice is

given for settlements of class actions arising under Rule 23(b)(2), and could even have ordered

that no notice be sent at all. Fed. R. Civ. P. 23(b)(2), (e); Wal-Mart v. Dukes, 131 S.Ct. at 2558

(no notice is required for class certification under Rule 23(b)(2)). Here, the Notice ordered by

this Court’s Preliminary Approval Order has been distributed. See supra Section III. The

purpose of notice in such a case is to provide the Court with an avenue for hearing class

members’ views of the proposed settlement. Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956,

962 (3d Cir. 1983). Since the injunctive relief has not changed, and the group of persons covered

by the settlement has not changed, the purposes of notice have been fulfilled here, and no

additional notice is needed.

The Supreme Court’s decision in Wal-Mart v. Dukes, ___ U.S. ___, 131 S.Ct. 2541

(2011), decided after the settlement was reached but before the August 4th Preliminary Approval

hearing, reaffirmed that certification of an injunctive-relief-only Class is appropriate under Rule

23(b)(2), where, as here, there are alleged to exist uniform policies and practices across stores that

affect all Class members in a similar manner. Plaintiff asserts that the Settlement Class certified

here easily meets the Rule 23(a) commonality requirement, as explained by the Supreme Court in

Dukes.2 First, the Court in Dukes held that commonality could be satisfied if plaintiffs showed

2 At oral argument on preliminary approval, the Court preliminarily stated that “the facts of thiscase are distinguishable from the Dukes decision so that I wouldn’t have any difficulty in findingcompliance at this stage with 23(a)” (Aug. 3, 2011 Tr. at 12:15-18), but indicated that Class


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that there was some “glue” or “common direction” instructing managers how to make

employment decisions. Dukes, 131 S.Ct. at 2552, 2555. Here, it is undisputed that Best Buy’s

customer centricity marketing policies were in effect at all stores during the class period.

Plaintiffs alleged that these common marketing policies served as implicit “directions” to store

managers about staffing. Plaintiffs’ Motion for Class Certification (Dkt. No. 304) at 16-19, 28

(noting that customer centricity policy made this case “[u]nlike Dukes”); Plaintiffs’ Reply in

Support of Class Certification (Dkt. No. 339) at 9. Although Best Buy disputes the effect of these

marketing policies on its staffing decisions, whether or not the uniform marketing policies

affected staffing is a common question. Similarly, Plaintiffs argued on class certification that the

evidence presented “exceed[s] Dukes by presenting direct evidence of corporate knowledge of

discrimination in the form of the Risk Mitigation Report,” which was presented to the Best Buy

Board. Class Certification Motion at 27. These alleged centralized policies or corporate

knowledge were not at issue in Dukes. Additionally, the Supreme Court in Dukes indicated that a

class could be certified when plaintiffs pointed to a “companywide discriminatory pay and

promotion policy.” Dukes, 131 S.Ct. at 2556. Here too, this case differs from Dukes. Rather

than challenging undifferentiated subjective decision making, Plaintiffs here pointed to four

specific nationwide policies that Plaintiffs alleged caused the discrimination, such as the use in all

retail stores of the same standardized interview guides, which Plaintiffs contended were not

validated to select employees on the basis of job-related, non-discriminatory criteria. Motion for

Class Certification (Dkt. No. 304) at 7. The injunctive relief in this case is tailored to address

these specific challenged common policies and practices.

Accordingly, the Class that this Court provisionally certified for settlement purposes

should be finally certified for settlement purposes, as one unified Class comprised of all

individuals fitting within the definition of any of the three Classes provisionally certified, with

current employee Cheryl Chappel as the Class representative.

Counsel should address these issues in writing in their final approval papers.


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VI. SERVICE AWARDS SHOULD BE GRANTED TO ALL NAMED PLAINTIFFS.

This Court should approve the payment by Best Buy of service awards of $10,000 to each

of the nine plaintiffs who are named in the complaint (“Named Plaintiffs”). As explained in

detail in Plaintiffs’ Unopposed Motion for Service Awards to Named Plaintiffs (Dkt. No. 362)

and the accompanying declarations, all nine Named Plaintiffs provided many hours of valuable

service to the Class, and are thus entitled to service awards under applicable law. No Class

member has objected to the payment of these service awards.

As discussed in our opening brief in support of service awards, these awards can and

should be paid to all of the Named Plaintiffs in recognition of the service they have performed for

the Class, even though, because of a change in the law regarding who may be appointed Class

representative, some of the Named Plaintiffs are not serving as Class representatives. Motion for

Service Payments (Dkt. No. 362) at 12-15. This argument originally applied to Plaintiffs

Blacksher, Dixon, and Holloway, who were not current employees as of the date the complaint

was filed, and thus could not serve as Class representatives of the Settlement Classes

provisionally certified in the Preliminary Approval Order. Motion for Service Payments (Dkt.

No. 362) at 13-14. As explained above, under the Ninth Circuit’s recent decision in Ellis v.

Costco, even employees who were current as of the time the complaint was filed are considered

“inadequate”—instead, only current employees as of the date of the class certification decision

are adequate class representatives for a Rule 23(b)(2) class solely seeking injunctive relief. See

supra Section V. Thus, Named Plaintiffs Maurice Calhoun, Amy Garcia, Muembo Muanza,

Lawrence Santiago, and Jessica Treas are also ineligible to serve as Class representatives.

However, they were all named in the Complaint and sought appointment as Class representatives.

Third Amended Complaint (Dkt. No. 144) ¶¶12, 15-18; Motion for Class Certification (Dkt. No.

304) at 20-23. They too performed the exact same duties as their fellow Named Plaintiffs: They

exhausted administrative remedies, reviewed pleadings and other documents for accuracy and

completeness, responded to written discovery, sat for deposition, submitted declarations in

support of class certification, and advised Class Counsel with respect to Best Buy policies and the

proposed injunctive relief. Appendix of Named Plaintiff Declarations in Support of Unopposed


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Motion for Service Awards (Dkt. No. 363), Calhoun Decl. ¶¶ 4-5, 7-8; Garcia Decl. ¶¶ 4-5, 7-8;

Muanza Decl. ¶¶ 4-5, 7-8; Santiago Decl. ¶¶ 4-5, 7-8; Treas Decl. ¶¶ 4-5, 7-8. Accordingly, as

Named Plaintiffs they are entitled to service awards for their participation in this case as Named

Plaintiffs and their many hours of work on behalf of the Class, even though, due to a change in

the law, they are no longer eligible to serve as class representatives. A revised proposed order

granting the motion for service awards which addresses this change in Class representatives is

being filed with this motion.

VII. ATTORNEYS’ FEES AND COSTS SHOULD BE AWARDED.

Attorneys’ fees and costs of $9,999,999 should be awarded, as set forth in Plaintiffs’

Motion for an Award of Attorneys’ Fees and Reimbursement of Costs and Expenses (Dkt. No.

366). No Class Member has objected to the attorneys’ fee application, which has been posted on

the settlement website, www.bbclassaction.com, since Notice was disseminated on August 17,

2011.

Plaintiff respectfully requests that the Court make the specific findings about attorneys’

fees required by the Ninth Circuit’s recent decision in In re Bluetooth, 2011 WL 3632604, as set

forth in the revised [Proposed] Order Granting Plaintiffs’ Application for an Award of Attorneys’

Fees and Costs submitted with this brief. As explained in our opening fee brief, and as re-

affirmed by Bluetooth, this Court “must calculate the lodestar figure based on the number of

hours reasonably expended on the litigation, adjusting the figure to account for the degree of

success class counsel attained.” Bluetooth, 2011 WL 3632604 at *6 (emphasis in original), Fee

Motion 9-20. The only change made by Bluetooth is that “the face of the Fee Order” must

provide “sufficient information from which to conclude that the district court included a

reasonable number of hours in its lodestar ‘calculation’ [and] that it ‘considered the relationship

between the amount of the fee awarded and the results obtained.’” Bluetooth, 2011 WL 3632604

at *6 (quoting Hensley v. Eckerhart, 461 U.S. 424 (1983)).3 As demonstrated in the fee motion

3 Bluetooth also discusses, but does not require, a comparison of the amount of attorneys’ fees tothe total amount Defendants are spending to settle the case (not including the injunctive relief).Bluetooth at *7. Bluetooth is not a civil rights case, and this part of Bluetooth is inapplicable to


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and supporting documentation, including declarations from Class Counsel describing the work

they performed and detailed attorney time records submitted to the Court for in camera review,

Class Counsel expended over 40,300 hours of time worth $15,983,694, after taking reductions to

account for all time expended unsuccessfully opposing Best Buy’s Motion for Judgment on the

Pleadings, and after taking a further reduction of 4,649 hours (worth $1,765,994) in the exercise

of billing judgment, to the extent work was deemed potentially duplicative or inefficient.4 After

reimbursement of documented expenses of $1,836,858.67, Class Counsel seeks $8,163,140.33 in

attorneys’ fees -- or 51% -- of their lodestar after these already sizeable reductions. As explained

in our opening papers and above, the injunctive relief obtained here is meaningful and lasting, and

constitutes an “excellent result” for the Class which would justify a fully compensatory fee of

$15,983.694. Motion for Attorneys’ Fees at 13-19. Nonetheless, Class Counsel is only

requesting half of that amount. Accordingly, the attorneys’ fees requested are easily reasonable,

considering the great degree of success obtained.

VIII. CONCLUSION

For the reasons set forth above, Plaintiff respectfully requests that the Court (1) grant final

approval to the Settlement Agreement, (2) grant final class certification of the settlement Class

conditionally certified in this Court’s Preliminary Approval Order, as modified to account for the

Ninth Circuit’s recent Costco decision, (3) grant service awards to the nine Named Plaintiffs; and

(4) grant Plaintiff’s application for attorneys’ fees and costs.

//

//

attorneys’ fees awarded under 42 U.S.C. §1988 for the discrimination claims alleged here. SeeCity of Riverside v. Rivera, 477 U.S. 561, 576 (1986) (attorneys’ fees awarded in civil rights casesunder Section 1988 are “not conditioned upon and need not be proportionate to an award ofmoney damages.”).4 Class Counsel have expended considerable additional time and costs since submitting their feerequest, including time preparing and disseminating Notice, speaking with Class members whocalled after receiving Notice, and preparing this Motion for Final Approval. Cervantez FinalApproval Decl. ¶7. Given the fact that Class Counsel’s reasonable lodestar far exceeds theamount of fees that Class Counsel is requesting, Class Counsel will not burden the Court withadditional attorney time records submitted for in camera review for time expended since their lastsubmission.


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Respectfully Submitted,

Dated: October 12, 2011

James M. Finberg (SBN 114850)Eve H. Cervantez (SBN 164709)Caroline P. Cincotta (SBN 261056)ALTSHULER BERZON L.L.P.177 Post Street, Suite 300San Francisco, CA 94108Telephone: (415) 421-7151Facsimile: (415) 362-8064

By:_____/s/ Eve H. Cervantez________

Kelly M. Dermody (SBN 171716)Daniel M. Hutchinson (SBN 239458)LIEFF, CABRASER, HEIMANN &BERNSTEIN, L.L.P.275 Battery Street, 29th FloorSan Francisco, CA 94111-3339Telephone: (415) 956-1000Facsimile: (415) 956-1008

Bill Lann Lee (SBN 108452)Lindsay Nako (SBN 239090)Angelica K. Jongco (SBN 244374)LEWIS, FEINBERG, LEE, RENAKER &JACKSON, P.C.476 9th StreetOakland, CA 94607Telephone: (510) 839-6824Facsimile: (510) 839-7839

Todd M. Schneider (SBN 158253)Guy B. Wallace (SBN 176151)Andrew P. Lee (SBN 245903)SCHNEIDER WALLACE COTTRELLBRAYTON KONECKY, L.L.P.180 Montgomery Street, Suite 2000San Francisco, CA 94104Telephone: (415) 421-7100Facsimile: (415) 421-7105

Attorneys for Plaintiffs and the Settlement Class


attorneys for plaintiffs and the settlementdaniel m. hutchinson (sbn 239458) lieff, cabraser,...

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