EFiled: Apr 25 2016 10:22AMsERT
`Transaction ID 58906671
`iy?
`Case No. 10636-VCL
`
`
`
`TAB 12
`
`COMPENDIUM OF KEY AUTHORITIES
`CITED IN PLAINTIFF’S REPLY PRE-TRIAL BRIEF
`
`
`
`EFiled: Apr 25 2016 10:22AM EDT
`Transaction ID 58906671
`Case No. 10636-VCL
`
`
`
`

`

`Pyott v. Louisiana Mun. Police Employees’ Retirement System, 74 A.3d 612 (2013)
`
`74 A.3d 612
`Supreme Court of Delaware.
`
`David PYOTT,Herbert W. Boyer, Louis J. Lavigne,
`Gavin S. Herbert, Stephen J. Ryan, Leonard
`D. Schaeffer, Michael R. Gallagher, Robert
`Alexander Ingram, Trevor M. Jones, Dawn E.
`Hudson, Russell T, Ray, Deborah Dunsire, and
`Allergan, Inc., Defendants Below, Appellants,
`v.
`
`LOUISIANA MUNICIPAL POLICE EMPLOYEES’
`
`RETIREMENTSYSTEMand U.F.C.W.
`
`Local 1776 & Participating Employers
`Pension Fund,Plaintiffs Below, Appellees.
`
`No. 380, 2012.
`|
`Submitted: Feb. 5, 2013.
`|
`Decided: April 4, 2013.
`
`Synopsis
`Background: Stockholder brought derivative action against
`individual directors of pharmaceutical corporation after
`corporation pled guilty to criminal misdemeanor misbranding
`and paid civil and criminal fines. Directors moved to dismiss.
`The Chancery Court, Laster, Vice Chancellor, 46 A.3d 313,
`denied motion. Directors appealed.
`
`[3]
`
`Holdings; The Supreme Court, Berger,J., held that:
`
`[1] Delaware was required to give a california federal
`judgmentdismissing essentially the same complaintfull faith
`and credit, and
`
`(2] dismissal of derivative action in California collaterally
`estopped stockholders from bringing instant action.
`
`« Adjudications of federal courts operative in
`state courts
`
`The Full Faith and Credit Clause does not
`explicitly apply when the rendering court is a
`federal court, rather than a state court. U.S.C.A.
`Const. Art. 4, § 1.
`
`4 Cases that cite this headnote
`
`[2]
`
`Judgment
`« Operation andeffect
`
`Federal common law under Full Faith and
`Credit Clause and Full Faith and Credit Act
`(FFCA) imposedon the State ofDelaware a full-
`faith-and-credit requirement to give a California
`federaljudgmentdismissing essentially the same
`complaint brought by different stockholders the
`same force and effect as it would be entitled
`
`to in the California federal or state courts
`under California's preclusion rules; Delaware
`law required its courts to afford the same respect
`to federal court judgments that the Full Faith
`and Credit Clause required them to afford to
`judgments from other states. U.S.C.A. Const.
`Art. 4, § 1; 28 ULS.C.A. § 1738.
`
`7 Cases that cite this headnote
`
`Judgment
`# Nature and requisites of former adjudication
`as ground of estoppel in general
`estoppel
`Under California
`law,
`collateral
`precludes
`a
`subsequent
`action when the
`following five factors are satisfied:first, the issue
`sought to be precluded must be identical to that
`decided in a formerproceeding; second,the issue
`must have been actually litigated in the former
`proceeding;third, it must have been necessarily
`decided in the former proceeding; fourth, the
`decision in the former proceeding must befinal
`and on the merits; finally, the party against whom
`preclusion is sought must be the sameas, or in
`privity with, the party to the former proceeding.
`
`Cases that cite this headnote
`
`[4]
`
`Judgment
`é= Operation and effect
`
`Reversed.
`
`West Headnotes (5)
`
`[1]
`
`Judgment
`
`

`

`Pyott v. Louisiana Mun. Police Esnployees’ Retirement System, 74 A.3d 612 (2013)
`
`Dismissal of stockholders’ derivative action
`against individual directors of pharmaceutical
`corporation in federal court
`in California
`under
`collaterally
`estopped
`stockholders,
`California law, which applied due to the
`Full Faith and Credit Clause, from bringing
`instant action against
`individual directors of
`pharmaceutical corporation which was brought
`afier
`corporation pled guilty to
`criminal
`misdemeanor misbranding and paid civil and
`criminal fines, where action was essentially the
`same action by different stockholders and, thus,
`the issue of failure to plead demandfutility was
`already litigated, the Califomia court entered a
`final judgment with prejudice, and that decision
`was on the merits, and, becausethe real plaintiff
`in a derivative suit
`is the corporation, each
`of group of stockholders that brought the two
`actions were in privity with one another for the
`purposes of issue preclusion. U.S.C.A. Const.
`Art. 4, § 1.
`
`7 Cases that cite this headnote
`
`[5]
`
`Corporations and Business Organizations
`Ability to represent other shareholders
`
`presumption of
`irrebutable
`no
`is
`There
`inadequacy of representation when stockholders
`file a derivative action quickly, without first
`bringing a books and records action.
`
`3 Cases that cite this headnote
`
`Attorneys and Law Firms
`
`*613 Kenneth J. Nachbar, Esquire and Shannon E.
`German, Esquire, Morris, Nichols, Arsht & Tunnell LLP,
`Wilmington, Delaware for Appellants David Pyott, Herbert
`W. Boyer, Louis J. Lavigne., Gavin S. Herbert, Stephen J.
`Ryan, Leonard D. Schaeffer, Michael R. Gallagher, Robert
`Alexander Ingram, Trevor M. Jones, Dawn E. Hudson,
`Russell T. Ray and Deborah Dunsire.
`
`*614 Of Counsel: Wayne W. Smith, Esquire, Jeffrey H.
`Reeves, Esquire, Kristopher P. Diulio, Esquire, Gibson, Dunn
`& Crutcher LLP, Irvine, California and Mark A. Perry,
`
`Esquire (argued) and Geoffrey C. Weien, Esquire, Gibson,
`Dun & Crutcher LLP, Washington, D.C.
`
`Cathy L. Reese, Esquire, Jeremy D. Anderson, Esquire
`and Joseph B. Warden, Esquire, Fish & Richardson P.C.,
`Wilmington, Delaware for Appellant Allergan, Inc.
`
`Pamela S. Tikellis, Esquire (argued), Robert J. Kriner, Jr.,
`Esquire and Scott M. Tucker, Esquire, Chimicles & Tikellis,
`LLP, Wilmington, Delaware for Appellees.
`
`Of Counsel: Jeffrey W. Golan, Esquire and Lisa M.
`Lamb, Esquire, Barrack, Rodos & Bacine, Philadelphia,
`Pennsylvania.
`
`John L. Reed, Esquire, R. Craig Martin, Esquire and Scott
`B. Czerwonka, Esquire DLA Piper LLP (US), Wilmington,
`Delaware for Amicus Curiae Washington Legal Foundation,
`
`Of Counsel: Richard A. Samp, Esquire, Washington Legal
`Foundation, Washington, D.C.
`
`Danielle Gibbs, Esquire and Nicholas J. Rohrer, Esquire,
`Young Conaway Stargatt & Taylor, LLP, Wilmington,
`Delaware for Amicus Curiae Chamber of Commerceofthe
`United States of America.
`
`Of Counsel: Jordan Eth, Esquire, Morrison & Foerster LLP,
`San Francisco, California; Mark David McPherson, Esquire,
`Morrison & Foerster LLP, New York, New York; DeanneE.
`Maynard, Esquire, Morrison & Foerster LLP, Washington,
`D.C.; Robin 8. Conrad, Esquire and Rachel Brand, Esquire,
`National Chamber Litigation Center, Inc., Washington D.C.
`
`Before STEELE, Chief Justice, HOLLAND, BERGER,
`JACOBS and RIDGELY,Justices, constituting the Court en
`Banc.
`
`Opinion
`
`BERGER,Justice:
`
`In this appeal we consider whether the Court of Chancery
`was required to dismiss a Delaware derivative complaint
`after a California federal court entered a final judgment
`dismissing essentially the same complaint brought by
`different stockholders, The trial court held that it was not
`required to give preclusive effect to the California judgment
`for two reasons. First, the Court of Chancery held, as a matter
`of Delaware law, that the stockholder plaintiffs in the two
`Jurisdictions are not in privity with each other. Second, the
`trial court found that the California stockholders were not
`
`

`

`Pyott v. Louisiana Mun. Police Employees’ Retirement System, 74 A.3d 612 (2013)
`
`adequate representatives of the defendant corporation. The
`Court of Chancery erred in both respects. Under California
`law, which controls on this issuc, derivative stockholders
`are in privity with each other because they act on behalf of
`the defendant corporation. As to adequacy of representation,
`the trial court adopted a presumption of inadequacy without
`any record to support the factual premise on which the
`presumption was based. Accordingly, the judgment of the
`Court of Chancery is reversed.
`
`Factual and Procedural Background
`
`Allergan, Inc. is a Delaware corporation that develops and
`markets specialty pharmaceuticals. One such product
`is
`BOTOX,a prescription neurotoxin that has been approved
`by the U.S. Food and Drug Administration (FDA) for several
`therapeutic and cosmetic uses. The medical community
`routinely prescribes BOTOX for therapeutic uses that have
`not been FDA approved(off-label uses). That practice is well
`known, and not illegal. It is unlawful, *615 however, for
`Allergan to market BOTOX for off-label uses.
`
`In 2007, the Department of Justice began an investigation
`mto Allergan’s allegedly improper marketing of BOTOX. On
`September 1, 2010, Allergan announced that it pled guilty
`to the criminal misdemeanor of misbranding, and that it
`agreed to pay a total of $600 million in civil and criminal
`fines. Several Allergan stockholders responded to the news
`by filing derivative suits. The Louisiana Municipal Police
`Employees' Retirement System (LAMPERS)filed this action
`on September 3rd, and other stockholders filed actions in
`the United States District Court for the Central District of
`California during the next three weeks. The California actions
`were consolidated on October 24, 2010.
`
`was based on Ch. Ct, R. 23.1. The two rules are
`
`substantially the same,
`
`Allergan again moved to dismiss, and the parties concluded
`briefing in the fall. In January 2012, shortly before the
`motion was to be argued in the Court of Chancery,
`the
`California Federal Court
`issued an order dismissing the
`California action with prejudice, 2 The parties to this action
`then filed supplemental briefs addressing the preclusive effect
`of the California Judgment. The Court of Chancery held that
`the California Judgment did not bar the Delaware action,
`and denied appellants’ motion to dismiss. This interlocutory
`appeal followed.
`
`2
`
`The California Federal Court denied the stockholder
`plaintiffs’ motion for reconsideration, and the matter is
`now under consideration by the Ninth Circuit Court of
`Appeals. If the appellate court reverses, appellants will
`be ableto file a motionfor relieffrom thejudgment under
`Ch, Ct, Rule 60(b).
`
`Discussion
`
`Collateral Estoppel Applies
`
`The Court of Chancery recognized that it was required to
`“give a judgment [from another jurisdiction] the same force
`and effect that it would be given by the rendering court.”?
`The rationale for that determination originates from the
`United States Constitution's Full Faith and Credit Clause*
`and the Full Faith and Credit Act (FFCA).° The FFCA
`“has long been understood to encompassthe doctrines ofres
`judicata, or ‘claim preclusion,’ and collateral estoppel, or
`“issue preclusion.’ ” 6
`
`Allergan and its directors (collectively Allergan) moved to
`dismiss both actions for failure to plead demand futility
`under Rule 23.1. ! The Court ofChancery postponedbriefing
`to allow another stockholder, U.F.C.W. Local 1776 &
`Participating Employers Pension Fund (UFCW), to inspect
`books and records relating to Allergan's allegedly wrongful
`Botox activities. After obtaining the books and records,
`UFCW intervenedin this action. In July 2011, appellees and
`the California plaintiffs filed essentially the same amended
`complaint in their respective courts,
`
`4
`
`5
`6
`
`La, Mun. Police Employees' Ret. Sys. v. Pyott, 46 A.3d
`313, 324 (Del.Ch.2012).
`“Full Faith and Credit shall begiven in each State to the
`public Acts, Records, and judicial Proceedings of every
`other State.” U.S. Const., Art. IV, § 1.
`
`28 US.C. § 1738.
`San Remo Hotel, L.P. v, City ofSan Francisco, 545 U.S.
`323, 336, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005).
`
`In the California federal action, the motion was based
`on Fed.R.Civ.P. 23.1. In the Delaware action, the motion
`
`[2] The Full Faith and Credit Clause does notexplicitly
`(1)
`apply when the “rendering court” is a federal court rather
`than a state court. Nonetheless, the United *616 States
`
`

`

`Pyott v. Louisiana Mun. Police Employees’ Retirement System, 74 A.3d 612 (2013)
`
`Supreme Court has held thai a state court is required to
`give a federal judgment the same force and effect as it
`would be given under the preclusion rules of the state in
`which the federal court is sitting. In this case, that state is
`California. ? Accordingly, federal common law imposes on
`the state of Delaware a full-faith-and-credit requirement to
`give the California Federal Judgment the same force and
`effect as it would be entitled to in the California federal or
`state courts under Califomia's preclusion rules. 8 Delaware
`law,likewise, requires our courts to afford the samerespect to
`federal court judgmentsthat the Full Faith and Credit Clause
`requires them to afford to judgments from otherstates. 9
`
`7
`
`SemtekInt'lInc, v. LockheedMartin Corp., 531 U.S. 497,
`507-08, 121 S.Ct. 1021, 149 L-Ed.2d 32 (2001).
`
`lowa-Wisconsin Bridge Co. v. Phoenix Finance Corp.,
`25 A.2d 383, 391 (Del.1942) (holding that “[t]he same
`sanctity and effect is granted to a judgment of a federal
`court rendered in a like case and in similar circumstances,
`as is conceded to a judgmentof a state court.”).
`
`9
`
`id
`
`The Court ofChancery failed to apply this settled law because
`it conflated collateral estoppel with demandfutility. It began
`its analysis with a mistaken premise, stating that: “[w]Jhether
`a stockholder in a Delaware corporation can sue derivatively
`after another stockholder attempted to plead demandfutility
`raises a question of demandfutility law.” 10 Once a court of
`competent jurisdiction has issued a final judgment, however,
`a successive case is governed by the principles ofcollateral
`estoppel, underthe full faith and credit doctrine, and not by
`demand futility law, under the internal affairs doctrine.
`
`10
`
`La, Mun. Police Employees' Ret. Sys. v. Pyott, 46 A.3d
`at 326,
`
`The Rule 23.1 motion in the California Federal Court
`
`implicated the internal affairs doctrine. The internal affairs
`doctrine required the California Federal Court to apply its
`understanding of Delaware Jaw on the issue of demand
`futility. The California Federal Court held, as a matter of
`Delaware law, that demand was not futile and dismissed
`the derivative complaint. It then entered the final California
`Federal Judgment on the merits of demandfutility.
`
`basis. Under this Court's precedents, the undisputed interest
`that Delaware has in governing the internal affairs of its
`corporations must yield to the stronger national interests that
`all state and federal courts have in respecting each other's
`judgments. 1] The United States Supreme Court has held that
`the full faith and credit obligation is “exacting” and that there
`is “no roving ‘public policy exception’ to the full faith and
`credit due judgments,” 2
`
`11
`
`12
`
`See fowa-Wisconsin Bridge Co. v. Phoenix Finance
`Corp., 25 A.2d at 391; Cavalier Oil Corp. v, Harnett, 564
`A.2d 1137, 1141 (Del.1989).
`See, 2.g., Baker v. General Motors Corp., 522 U.S. 222,
`232-33, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998).
`
`The Court of Chancery should have applied California law
`or federal common law to analyze all elements of collateral
`esiuppel. If the Court of Chancery had done so, rather than
`invoking the internal affairs doctrine to apply Delaware law
`to the issues of privity and adequacy of representation, the
`13
`
`decision in LeBoyer v. Greenspan *617
`compelledit to dismiss the case.
`
`would have
`
`2007 WL 4287646 (C._D.Cal.).
`13°
`[4] Under Califomia law, collateral estoppel precludes
`[3]
`a subsequent action when the following five factors are
`satisfied:
`
`be
`to
`sought
`issue
`the
`First,
`to
`precluded ... must be identical
`that decided in a former proceeding.
`Second,
`the issue must have been
`actually
`litigated
`in
`the
`former
`proceeding. Third, it must have been
`necessarily decided in the former
`proceeding. Fourth, the decision in the
`former proceeding must be final and
`on the merits. Finally, the party against
`whom preclusion is sought must be the
`sameas, or in privity with, the party to
`the former proceeding. 14
`
`14
`
`LeBoyer v. Greenspan, 2007 WL 4287646, at *1
`(C.D.Cal.) (Quotation and citation omitted.).
`
`the motion to dismiss, based
`In the Court of Chancery,
`on collateral estoppel, was about federalism, comity, and
`finality. It should have been addressed exclusively on that
`
`The dismissal ofthe Califomia action forfailure to adequately
`plead demand futility meets each requirement. The issue
`sought to be precluded is whether, under Rule 23.1, the failure
`
`

`

`Pyott v. Louisiana Mun. Police Employees’ Retirement System, 74 A.3d 612 (2013)
`
`to make demand on the Allergan board is excused because
`such a demand would have been futile. The California
`
`court addressed that exact question. The issue was actually
`litigated in that the appellees had “notice, opportunity and
`incentive to litigate the issue at the prior proceeding.” 15
`The California court entered a final judgment with prejudice,
`and that decision was on the merits, '® Finally, because the
`real plaintiff in a derivative suit is the corporation, “differing
`groups of shareholders who can potentially stand in the
`corporation's stead are in privity for the purposes of issue
`preclusion.” Wy
`
`15
`
`16
`
`17
`
`id at *2.
`
`id, at™3, citing Kaplan v. Peat, Marwick, Mitchell & Co.,
`540 A.2d 726, 730 (Del.1988).
`
`Tha
`
`The trial court acknowledged that a California court would
`conclude that the California decision precludes appellees
`from pursuing the Delaware action. Indeed, the trial court
`noted that numerous other jurisdictions, and at least onc
`Delaware decision, also hold that stockholders bringing
`derivative suits are in privity for purposes of collateral
`estoppel. !8 But the trial court stated that because one's
`status as a derivative plaintiff falls within the internal affairs
`doctrine, derivative status must be decided as a matter of
`Delaware law. The court then opined that all
`the other
`jurisdictions finding privity for purposesofcollateral estoppel
`missed the dual nature of a Delaware derivative action.
`
`According to the Court of Chancery, there is no privity
`between derivative stockholders because, until a stockholder
`survives a motion to dismiss based on failure to make
`
`demand, the stockholder is not acting for the corporation.
`Rather, the stockholder is asserting an “individual claim to
`obtain equitable authority to sue.” 19 Thus,a final judgment
`denyingthatindividual claim has no preclusive effect on other
`stockholders’ derivative claims.
`
`18
`
`See, ¢.g.: In re Sonus Networks, Inc. S‘holderDeriv. Lit,
`499 F.3d 47 (1st Cir.2007); Henik ex rel. LaBranche &
`Co. v. LaBranche, 433 F.Supp.2d 372 (8.D.N.Y.2006);
`Arduini ex rel. Int'l Game Tech. v. Hart, 2012 WL
`893874 (D.Nev.); Jn re Career Educ. Corp. Deriv. Litig.,
`2007 WL 2875203 (Del.Ch.}; In re Bed Bath & Beyond
`ine. Deriv. Litiz.,, 2007 WL 4165389 (D.N.J.).
`
`19
`
`La. Mun. Police Empioyees' Ret. Sys. v. Pyott, 46 A.3d
`313, 330 (Del.Ch.2012).
`
`We will not address this analysis because, as discussed,
`the Court of Chancery should not have applied Delaware
`law in deciding whether the California Federal *618
`Court Judgment must be given preclusive effect. We note,
`however, as did the Court of Chancery, that numerous other
`jurisdictions have held that there is privity between derivative
`stockholders. Although the Court of Chancery is divided on
`0
`the privity issue as a matter of Delaware law,” we cannot
`address the merits of that issue in this case.
`
`20
`
`See: In re Career Educ. Corp. Deriv. Litig., 2007 WL
`2875203 (Del.Ch.).
`
`The adequacy of the California plaintiffs’ representation
`remains
`to be
`considered.
`If they were
`inadequate
`Tepresentatives, collateral estoppel will not bar a second,
`identical claim.*! The trial court held that the California
`plaintiffs were inadequate representatives. It found that,
`“frjather
`than representing the best
`interests of the
`corporation, the California plaintiffs sought to maximize the
`potential retums of the specialized law firms who filed suit
`on their behalf”? In doing so, the Court of Chancery sua
`sponte announced and applied an irrebutable presumption that
`derivative plaintiffs who file their complaints without secking
`books and records, very shortly after the announcementof a
`“corporate trauma,” are inadequate representatives.
`
`21
`
`See, e.g., Restatement (Second) Judgmenis, § 42(1) (“A
`person is not bound by a judgment for or against a
`party who purports to represent him if ... (e) [t]he
`representative failed to prosecute or defend the action
`with due diligence and reasonable prudence....”); Career
`Educ., 2007 WL 2875203, at *10 (Del.Ch.); Sonus
`Networks, 499 F.3d at 64; Prezant v. De Angelis, 636
`A.2d 915, 924 (Del.1994); see aiso Matsushita Elec.
`Indus. Co., Lid. v. Epstein, 516 U.S. 367, 395-96,
`116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (Ginsburg, J.,
`concurring in part, dissenting in part) (finding final
`judgments can be attacked collaterally on due process
`grounds for failure to satisfy the adequate representation
`Tequirement).
`
`22
`
`La, Mun. Police Employees' Ret. Sys. v. Pyott, 46 A.3d
`at 350-51.
`
`[5] Unlike the issue of privity, we address the inadequate
`Tepresentation issue because the Court of Chancery addressed
`it both as a matter of Delaware law and as a matter
`
`of Califomia Law. We reject the “fast filer” irrebuttable
`presumption of inadequacy. Undoubtedly there will be
`cases where a fast filing stockholder also is an inadequate
`
`

`

`Pyott v. Louisiana Mun. Police Employees’ Retirement System, 74 A.3d 612 (2013)
`
`representative. But, there is no record support for the trial
`court's premise that stockholders who file quickly, without
`bringing a § 220 books and records action, 23 are a priori
`acting on behalf of their law firms instead of the corporation,
`This Court understands the trial court's concerns about fast
`filers. But remedies for the problems they create should be
`directed at the lawyers, not the stockholder plaintiffs or their
`complaints. 24
`
`23
`
`24
`
`8 Del. C. § 220 provides that stockholders have the
`right to inspect corporate books and records for a proper
`purpose.
`
`See: King v. VeriFone Hoidings, Inc., 12 A.3d 1140,
`1152 (Del.2011); White v. Panic, 783 A.2d 543, 549-50
`(Del.2001).
`
`Absent the presumption, there was no basis on which to
`conclude that the California plaintiffs were inadequate. The
`two complaints are se similar that the California complaint
`
`could notbe “grossly deficient” when, according to the Court
`of Chancery, the Delaware complaint adequately states a
`claim forrelief. >
`
`25
`
`in re Sonus Networks, Inc. S'hoider Deriv. Lit, 499 F.3d
`at 66. (Quoting Restatement (Second) Judgments, § 42(1)
`(e) Commentf.)
`
`Conclusion
`
`Based on the foregoing, the Court of Chancery's judgment
`denying appellee's motion to dismiss is reversed. Jurisdiction
`is not retained.
`
`All Citations
`
`74 A3d 612
`
`End of Document
`
`© 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
`

`

`TAB 13
`
`COMPENDIUM OF KEY AUTHORITIES
`CITED IN PLAINTIFF’S REPLY PRE-TRIAL BRIEF
`
`

`

`Rossini v. Ogilvy & Mather,Inc., 597 F.Supp. 1120 (1984)
`
`597 F.Supp. 1120
`United States District Court,
`S.D, New York.
`
`Carlotta ROSSINI and Jane Zukofsky
`on. behalf of themselves andall
`persons similarly situated, Plaintiffs,
`Vv.
`
`OGILVY & MATHER, INC., Defendant.
`
`No.78 Civ. 1713.
`
`Nov. 13, 1984.
`
`Employment discrimination action was brought against
`employer, an advertising agency. Followingtrial, the District
`Court, Gagliardi, J., held that: (1) named plaintiff did not
`show common issues of law and fact predominating with
`respect
`to claims based on denial of transfer, denial of
`promotion and training; (2) class would not be decertified as
`to claims ofsalary discrimination; (3) individual plaintiffs did
`not show that they were discriminated against on the basis
`of sex with respect to transfers, placement, or promotions;
`and (4) additional evidence was needed on claim of disparate
`impact of salary structure.
`
`Ordered accordingly.
`
`West Headnotes (67)
`
`[1]
`
`Federal Civil Procedure
`* Sex Discrimination Actions
`
`Question of whether the absence offixed salary
`ranges for each job title served to depress
`women's wages in a discriminatory fashion and
`whether the lack of objective salary criteria
`served to depress women's wages presented
`common questions of law and fact for individual
`plaintiff and members of proposedclass.
`
`Cases that cite this headnote
`
`[2]
`
`Federal Civil Procedure
`Sex Discrimination Actions
`
`in
`law and fact
`Common questions of
`sex discrimination action based on salary
`predominated
`over
`individual
`questions.
`Fed.Rules Civ.Proc.Rule 23(a),
`(b)(3),
`28
`U.S.C.A.
`
`Casesthat cite this headnote
`
`[3]
`
`Federal Civil Procedure
`@ Sex Discrimination Actions
`
`Claims that employer's failure to post jobs or to
`maintain a formal, centralized list of employees
`requesting transfers,
`its failure to make such
`a list accessible to management considering
`filling vacancies and new positions, and lack
`of objective criteria for determining when an
`employee would be eligible for a transfer
`served to discriminate against women presented
`common questions in sex discrimination class
`action.
`
`Casesthat cite this headnote
`
`[4]
`
`FederalCivil Procedure
`@ Sex Discrimination Actions
`
`statistics did not suggest
`Where plaintiff's
`that there existed a class of women alleging
`discriminatory denial of transfer into various
`positions and where namedplaintiffdid not name
`any woman other than herself alleged to have
`been discriminatorily denied a transfer, it was
`not shown that her claim of discrimination in the
`denial of a transfer was typical of claims which
`could be raised by unnamed class members and
`previously certified class would be decertified
`with respect
`to the claim of discriminatory
`transfer.
`
`2 Cases that cite this headnote
`
`[5]
`
`Federal Civil Procedure
`
`= Sex Discrimination Actions
`
`In view of evidence that, in evaluating candidate
`for promotion, employer relied primarily on
`individual's performance in his or her present
`job within particular department or job family,
`claims of discrimination against women in
`transfer did not
`raise issues
`common to
`
`

`

`Rossini v. Ogilvy & Mather, Inc., 597 F.Supp. 1120 (1984)
`
`all women which would predominate over
`individual
`issues with respect
`to particular
`transfers.
`
`Casesthat cite this headnote
`
`employees and which, during the relevant time
`period, were more than 80% female.
`
`Cases that cite this headnote
`
`[6]
`
`Limitation of Actions
`
`= Filing Pleadings
`
`[7]
`
`Where class action complaint has been filed
`but class certification is denied, filing of the
`complaint tolls the statute of limitations for
`members of the purported class who act in a
`timely fashion to protect their rights.
`
`Casesthat cite this headnote
`
`Civil Rights
`@ Time for Proceedings; Limitations
`Where female employee objected not only to
`her initial hiring into a particular department,
`which she alleged was a result of discriminatory
`placement by the employer, but also to the
`employer's alleged maintenance of a number of
`departments or subdepartments as largely sex-
`segregated units, her claim was one ofcontinuing
`discrimination and she could base it in part upon
`discriminatory placement even though that Act
`fell outside the limitations period.
`
`1 Cases that cite this headnote
`
`[8]
`
`Federal Civil Procedure
`
`@= Sex Discrimination Actions
`
`Where issue which was central to all claims
`of discriminatory placement and sex-segregated
`jobs was proofofthe existence of sex-segregated
`departments, common issues of law and fact
`predominated and claim could be maintained as
`a class action.
`
`Casesthat cite this headnote
`
`[9]
`
`Federal Civil Procedure
`
`«= Sex Discrimination Actions
`
`Definition of class of plaintiffs with respect
`to claims of discriminatory placement and sex-
`segregated jobs could include only those persons
`employed in job families which had five or more
`
`[10]
`
`Civil Rights
`Practices Prohibited or Required in General;
`Elements
`
`Title VII prohibits discrimination on the basis
`of gender
`in the administration of training
`programs. Civil Rights Act of 1964, § 701 et seq.,
`42 U.S.C.A. § 2000e et seq.
`
`Cases that cite this headnote
`
`[11]
`
`Federal Civil Procedure
`
`«= Sex Discrimination Actions
`
`Single, broad question of whether employer
`discriminated against women with regard to
`training was insufficiently specific to meet
`tequirements of class action rule and class
`alleging discrimination in training opportunities
`would be decertified,
`
`Casesthat cite this headnote
`
`{12}
`
`Civil Rights
`«= Effect of Prima Facie Case; Shifting
`Burden
`
`Once plaintiff has established a prima facie
`case of employment discrimination, employer
`assumes
`the
`burden of production,
`i.e.,
`of articulating,
`through admissible evidence,
`a clear and reasonably specific legitimate,
`nondiscriminatory reason for disfavoring the
`plaintiff,
`
`Cases that cite this headnote
`
`(13)
`
`Civil Rights
`@= Prima Facie Case
`
`If employer has met its burden of production,
`court need not determine whether employee
`has
`established a prima
`facie
`case but,
`rather, must proceed to determine the ultimate
`question of whether the defendant intentionally
`discriminated against the plaintiff.
`
`

`

`Rossini v. Ogilvy & Mather, Inc., 597 F.Supp. 1120 (1984)
`
`Cases that cite this headnote
`
`[18]
`
`Civil Rights
`= Sex Discrimination
`
`f14]
`
`Civil Rights
`@ Presuwmptions, Inferences, and Burden of
`Proof
`
`Once an employer has made a showing of a
`legitimate reason for disfavoring the plaintiff,
`the plaintiff must demonstrate that the proffered
`reason was not
`the true reason for
`the
`employmentdecision.
`
`Casesthat cite this headnote
`
`[15]
`
`Civil Rights
`« Weight and Sufficiency of Evidence
`
`Evidence of pretext may include statistical
`evidence regarding the defendant's work force.
`
`Cases that cite this headnote
`
`[16]
`
`Civil Rights
`@- Time for Proceedings; Limitations
`
`Liability in sex discrimination action could
`be premised on discriminatory employment
`practices occurring prior to date of filing of
`named plaintiffs EEOC complaint
`if those
`practices formed part of a continuing pattern of
`discriminatory conduct; even if acts occurring
`prior
`to the date of EEOC filing were
`not part of that pattern,
`they could be
`considered as relevant background evidence to
`the allegedly discriminatory practices which
`were appropriately before the court.
`
`Casesthat cite this headnote
`
`[17]
`
`Civil Rights
`«= Admissibility of Evidence; Statistical
`Evidence
`
`Evidence of gender-neutral assignment of job
`tasks to other female employees was relevant
`to issue of allegedly discriminatory denial of
`certain job experience to plaintiff female.
`
`Cases that cite this headnote
`
`Evidence demonstrated that employer's criticism
`of female employee's numerical/analyticalskills
`was not a pretext to cover sex discrimination
`in the assignment of jobs as those skills were
`indisputably relevant to jobs which she claimed
`she had been denied because of sex.
`
`Casesthat cite this headnote
`
`[19]
`
`Civil Rights
`= Sex Discrimination
`
`In view of the employer's failure to post job
`openings and in view of the possibility of
`discrimination resulting from that
`failure,
`it
`was appropriate to consider, in connection with
`female's claim of discrimination in promotions,
`certain positions for which she did not make a
`timely formal application.
`
`Casesthat cite this headnote
`
`[20]
`
`Federal Civil Procedure
`
`@ Reception of Evidence
`
`In resolving claim of sex discrimination in
`assignments
`and promotions,
`court would
`consider only those promotion opportunities
`which were raised by the employeeat trial and
`would not consider denied promotions which
`were cited in her posttrial briefs but not presented
`attrial.
`
`Cases that cite this headnote
`
`[21]
`
`Federal Civil Procedure
`«= Protective Orders
`
`Plaintiff who did not object before trial
`protective order could not dispute it after trial.
`
`to
`
`Cases that cite this headnote
`
`[22]
`
`Civil Rights
`@= Admissibility of Evidence; Statistical
`Evidence
`
`Statistical evidence regarding the number of
`men and women occupying variousjobtitles in
`
`

`

`Rossini v. Ogilvy & Mather, Inc., 597 F.Supp. 1120 (1984)
`
`account management with advertising firm was
`relevant with regard to motive or pretext in an
`individual disparate treatment claim.
`
`Casesthat cite this headnote
`
`i23]
`
`Civil Rights
`= Particular Cases
`
`to
`assignment
`requested
`Employee who
`particular job in December of 1975 adequately
`alerted the employerto her interest in the position
`when it became vacant in early 1976 and was
`filled in July of 1976 and court could consider
`claim that denial of the position to the employee
`was based on sex.
`
`Cases that cite this headnote
`
`[24]
`
`Civil Rights
`@ Sex Discrimination
`
`Evidence that account supervisor position was
`located in Chicagooffice ofadvertising firm and
`that female who was denied the position had
`indicated her disinclination to leave New York,
`evidenceofher feeling that any move to another
`office would be of considerable detriment to
`her professional progress, and evidence that she
`stated that she at no time maintained any interest
`in the position after learning that she would have
`to go to the Chicago office demonstrated that
`employce was not qu