Civil Action No. 1:98-CV-3679-RWSUnited States District Court, N.D. Georgia, Atlanta Division

Ingram v. Coca-Cola CompanyDecided Jun 7, 2001

RICHARD W. STORY, United States DistrictCourt Judge.

ORDER

This case is before the Court on the motion ofSettlement Class Representatives Ingram, Orton,Barton-Gibson and Eddings for final approval ofthe Settlement Agreement in this action andcertification of a Settlement Class ofapproximately 2200 African-American current andformer salaried employees of The Coca-ColaCompany. [302-1]. The Court, having conducted aFairness Hearing and heard from the parties andthe objectors, approves the settlement and certifiesthe Settlement Class for the reasons set forth inthis Order.

Procedural HistoryThis case originally was filed as an individualdiscrimination action against The Coca-ColaCompany ("Coca-Cola"), and an AmendedComplaint was filed on April 22, 1999, containingclass action allegations and adding additionalplaintiffs, including Ingram and Orton. TheAmended Complaint alleged that Coca-Colasystematically discriminated in promotions,compensation, and performance evaluationsagainst salaried African-American employees.Pursuant to 42 U.S.C. § 1981, the AmendedComplaint sought relief for the class includinginjunctive relief, back pay, compensatory andpunitive damages, and attorneys' fees and costs.From April 22, 1999 until June 14, 2000, theparties engaged in extensive and highly contesteddiscovery on class issues. In January 2000,plaintiffs filed a Second Amended Complaint,

adding additional plaintiffs, including Barton-Gibson and Eddings, and adding class claimsunder Title VII of the Civil Rights Act of 1964.

Around the time that the Second AmendedComplaint was filed, the Court ordered both sidesto participate in non-binding mediation, withoutstaying the litigation. Hunter R. Hughes wasappointed by the Court to serve as the mediator.Mr. Hughes testified at the recent hearing that theparties engaged in vigorously contested settlementnegotiations. Throughout the mediation, both sidescontinued with class discovery and the plaintiffsprepared their class certification motion. Theparties ultimately reached a binding Settlement inPrinciple on June 14, 2001, the deadline for filingthe class certification motion.

The parties were unable to reach agreement on theamount of back pay due the class and consented aspart of the Settlement in Principle to participate inbinding arbitration on back pay. A panel of neutralemployment discrimination experts were topreside over the arbitration proceeding, and theywould be assisted by a neutral labor economist.After reviewing the competing claims made byeach side in light of prevailing law, the Panelissued a determination of the amount required fora make-whole back pay relief fund.

Following the conclusion of arbitration, the Courtgranted preliminary approval of the settlement,provisionally certified the Class Representativesand Class Counsel, and ordered notice to be sentto the class. Twenty-four individuals opted out ofthe class, and thirteen class members filedobjections. Eleven objectors represented by thelaw firm of Gary, Williams, Parenti, Finney,Lewis, McManus, Watson Sperando ("the Gary

Objectors") filed identical objections. of theeleven Gary Objectors, four later withdrew theirobjections. On May 29, 2001, the Court held ahearing regarding the fairness of the SettlementAgreement. Parties and objectors were affordedthe opportunity to present evidence and be heardprior to final approval of the settlement.

Settlement TermsThe settlement provides the following relief to theclass. Programmatic relief is far-reaching. First,the Settlement Agreement ("the Agreement")includes a Statement of Principle committingCoca-Cola to standards of excellence in promotingand fostering equal opportunity." Next, Coca-Cola's Board of Directors is required to reviewand remain informed about the Company'sprogress toward achieving diversity goals; theBoard's oversight responsibilities includeconsidering the Company's EEO performance indetermining whether or not Company officershave met their business objectives. Third, theAgreement creates an outside, independent taskforce ("the Task Force") to oversee Coca-Cola'scompliance with the terms of the settlement. TheTask Force's duties include evaluating theCompany's existing human resources policies andpractices, making recommendations for anynecessary reforms and improvements of thosepolicies and practices, monitoring Coca-Cola'spractices for the duration of its four year term,investigating complaints, and issuing writtenreports on Coca-Cola's progress in implementingthe terms of the Settlement Agreement to theBoard, Coca-Cola's CEO, Class Counsel, theCourt, and the public. The Task Force'srecommendations are binding on Coca-Colaunless the Company seeks and obtains judicialrelief in a proceeding where it bears the burden ofproof. The Task Force will have the services ofJoint Experts, two industrial psychologistsselected by the parties, who will review andcritique Coca-Cola's existing policies andpractices and issue a written report. Fourth andfinally, Coca-Cola will hire an Ombudsperson tooversee investigations of complaints ofdiscrimination and retaliation. These

programmatic terms likely exceed what this Courtcould have required the Company to undertake ifthe class had prevailed at trial.

Second, the monetary benefits ensure a guaranteedrecovery to every class member averagingapproximately $38,000. Specifically, Coca-Colawill make payments to class members from a BackPay Fund of over $24 million and a CompensatoryDamages Fund of approximately $59 million.These finds will be distributed pursuant to anallocation formula developed by the class's expert,Dr. Janice Fanning Madden. A unique provisionallows class members to decline their share of thedetermined back pay amount, opting to obtain anindividual hearing before a United StatesMagistrate Judge. The class members requestingan individual hearing may keep their share of theCompensatory Damages Fund. In addition, thesettlement creates a $10 million PromotionalAchievement Award Fund that will pay bonuses toclass members who obtain promotions over a tenyear period. The settlement requires Coca-Cola tomake pay equity adjustments to correct anyexisting race-based inequities, estimated by ClassCounsel's expert to cost approximately $43.5million over ten years. Attorney's fees andexpenses of approximately $20.7 million areprovided, and special compensation of the ClassRepresentatives is included.

DiscussionThere is a strong judicial policy in favor ofsettlement, in order to conserve scarce resourcesthat would otherwise be devoted to protractedlitigation. Bennett v. Behring Corp., 737 F.2d 982,986 (11th Cir. 1984). Particularly given thetremendous benefits this settlement provides to theclass, there is every reason to avoid the substantialburden of further litigation. Indeed, preventing theclass from obtaining reforms and compensationfor years, if at all, would be inappropriate. Thissettlement also fulfills the policies and purposesunderlying the civil rights statutes at issue in thislitigation by strengthening equal opportunity andpromoting model voluntary measures to improvethe workplace. See Cotton v. Hinton, 559 F.2d

1326, 1331 (5th Cir. 1977) (remarking that forTitle VII cases, "the policy favoring settlement iseven stronger in view of the emphasis placed uponvoluntary conciliation by the Act itself").

1

1 The United States Court of Appeals for the

Eleventh Circuit adopted as binding

precedent the decisions of the United

States Court of Appeals for the Fifth

Circuit handed down prior to September

30, 1981. Bonner v. City of Prichard. Ala.,

661 F.2d 1206, 1207 (1981).

Courts have developed a common test forsettlement approval: whether the settlement is (1)fair, adequate and reasonable, and (2) not theproduct of collusion between the parties. Cotton,559 F.2d at 1330 (5th Cir. 1977); Bennett, 737F.2d at 986. Under this test, the settlement meritsapproval.

I. The Settlement Is Fair, Adequate andReasonable.

In Bennett v. Bebring, the Eleventh Circuitapproved a district court's reliance on thefollowing six factors in assessing the fairness of aclass action settlement: (1) the likelihood ofsuccess at trial; (2) the range of possible recovery;(3) the point on or below the range of possiblerecovery at which a settlement is fair, adequate,and reasonable; (4) the complexity, expense andduration of litigation; (5) the substance andamount of opposition to the settlement; and (6) thestage of proceedings at which the settlement wasachieved. Bennett, 737 F.2d at 986. In addition,the judgment of experienced counsel is relevant toapproval. See. e.g., Cotton, 559 F.2d at 1330(stating that trial court is "entitled to rely on uponthe judgment of experienced counsel for theparties" in evaluating settlement); see also Warrenv. City of Tampa, 693 F. Supp. 1051, 1055 (M.D.Fla. 1988), aff'd 893 F.2d 347 (11th Cir. 1989); InRe Motorsports, 112 F. Supp.2d 1329, 1333 (N.D.Ga. 2000); Meyer v. Citizens and Southern Nat'lBank, 677 F. Supp. 1196, 1201 (M.D. Ga. 1988).These factors strongly support approving thissettlement.

A. Likelihood of Success at Trialand Range of Potential RecoveryFirst, the benefit this settlement provides to theclass, both in terms of injunctive and monetaryrelief, should be compared with the likelyrecovery for the class at trial. Cotton, 559 F.2d at1330. This question implicates the first three ofthe Bennett factors, which are closely related: "(1)the likelihood of success at trial; (2) the range ofpossible recovery; and (3) the point on or belowthe range of possible recovery at which asettlement is fair, reasonable andadequate."Bennett, 737 F.2d at 986. This standardoften justifies approving settlements that aresubstantial compromises of the relief that could beobtained through litigation. However, in this case,the result obtained under the settlement isconsistent with and in some respects exceeds therelief that the class could expect to obtain at trial,while obviating the risks that further litigationentails.

The class would undertake significant risks byproceeding further with litigation. For instance,the class might not prevail on the threshold issueof class certification, either initially or on aninevitable appeal. Even if the class were certified,the class faces the risk of losing at Stage I of trial,where the class would bear the burden of provingthat Coca-Cola engaged in a pattern and practiceof discrimination. Int'l Bhd. of Teamsters v. UnitedStates, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52L.Ed.2d 396 (1977). Success at Stage I wouldrequire making a successful case on statistical andanecdotal evidence, a case that Coca-Cola wouldcertainly contest in a battle of experts. Even ifclass-wide liability were established, there is asubstantial risk that some unknown number ofclass members would lose their Stage II hearingsand receive no compensation at all. See Teamsters,431 U.S. at 344; 97 S.Ct. at 1859 (noting thatemployer may challenge any particularindividual's entitlement to recovery in Stage IIproceeding). In general, plaintiffs face an uphillbaffle in prevailing on employment discriminationcases in federal court. Class Counsel submitted areport by Professor Stewart J. Schwab analyzing

data on federal employment discrimination cases,and the report concluded that employmentdiscrimination plaintiffs are much less likely thanother types of plaintiffs to win their cases at trialand sustain their victories on appeal. ClassCounsel and the mediator attested to thesubstantial challenges facing class action plaintiffsin particular.

2

2 Professor Schwab's data shows the

following: only about 7% of all

employment cases go to trial, and

employees win only about about one-fourth

of those cases. (Rpt. of Prof. Stewart J.

Schwab ("Schwab Rpt.") at 3-4.) This

success rate is one of the lowest ones for

plaintiffs in almost any category of cases.

(Id. at 4.) If the employer appeals one of

those rare plaintiff wins, the employer has

a 44% chance of getting the verdict

reversed. (Id. at 5.) By contrast, if an

employee attempts to get an employer win

reversed, the plaintiff has only a 5.8%

chance of success, the worst plaintiff

success rate of any category of cases

except petitions for habeas corpus relief.

(ID.)

In light of these risks, it is significant that thesettlement terms compare so favorably with whatmight be obtained at trial. With respect to theprogrammatic relief, the class has obtained a resultsuperior to what could be ordered by the Courteven after a successful trial establishing liabilityon every issue. The Court would be exceedinglyreluctant in a contested proceeding to order abusiness to submit to an outside oversight panelsuch as the Task Force. Further, the Board ofDirectors reforms appear to be unique.

With respect to the monetary relief, the relief isconsistent with what could reasonably be expectedif the case were fully litigated. The back pay fundwas actually litigated before an arbitration panel.The per class member payments in theCompensatory Damages Fund are consistent witha reasonable trial recovery. In fact, the average perclass member payments from the two funds underthis settlement are more than six times what

Professor Schwab determined to be the medianverdict (including back pay, front pay, andcompensatory and punitive damages) for plaintiffsin individual employment discrimination cases,once success rates are considered. Further, thecredible testimony of Class Counsel and themediator establishes that the monetary benefit tothe class compares favorably to the likely outcomeof litigation. The monetary relief also includesunique benefits for class members that enhance itsfairness. Under the formula for distribution toclass members in this case, no class member is leftuncompensated. The approach in this casesignificantly lessens the burden on members of theclass, who do not have to file and substantiate anindividual claim. The Settlement Agreementproposes a fair and reasonable means of allocatingsettlement payments, dividing the fund based ontime at Coca-Cola. As explained by Dr. Madden inher report, this means of allocating the funddirects larger shares to those employees mostlikely to be under-compensated because of largerrace-based pay disparities, taking into accountfactors such as education, experience and type ofjob. (Madden Rpt. at 3.) However, class membersstill have another option, which is to gain thebenefits of an individual hearing on back payunder the Promotional Claims Procedure, whilekeeping a guaranteed compensatory damagespayment. The Court finds the amount of the backpay fund and the formula distribution mechanismfair; the Promotional Claims Procedure, however,provides added protection for individual classmembers who believe they should obtain greaterback pay recovery.

3

4

5

3 Prof. Schwab estimates that the value of a

typical employment discrimination case

that goes to trial, accounting for the risk of

losing at trial and the risk of losing on

appeal, is only $5,995. See (Schwab Rpt. at

5-6.)

4 Typically, employment discrimination

cases, whether at Stage II of litigation or in

a settlement context, are resolved by a

claims procedure or individual hearings to

determine each class member's entitlement

to recovery.

5 Accord Roberts v. Texaco. Inc., No. 94

Civ. 2015 (CLB) Mem. Decision at 4

(S.D.N.Y. March 21, 1997) (approving of

the allocation of damages by formula "in

order that the cost and uncertainty of

separate hearings or trials to prove the

damages of each Class member is

obviated").

Counsel for the Gary Objectors submitted reportsfrom Dr. Robert Petersen and Donald Frankenfeldchallenging Dr. Madden's report describing theBack Pay Fund allocation formula. However, noneof the Gary Objectors challenged (1) the use of anallocation formula; (2) the use of any of thespecific factors relied on by Dr. Madden toallocate back pay and disclosed in the Notice; or(3) Dr. Madden's failure to use any particularfactor in this formula. The concerns raised by theobjectors related to the total monetary reliefprovided by the settlement. The Petersen andFrankenfeld reports erroneously attempted toestablish that Dr. Madden's formula understatedthe damages due to class members. As the GaryObjectors' counsel conceded at the FairnessHearing, these reports relied on a basicmisunderstanding of the purpose of Dr. Madden'sreport. Dr. Madden's report was not designed todetermine the actual damages due todiscrimination suffered by any particular Coca-Cola employee, but rather to develop a rationalmeans of allocating the sum predetermined by thearbitration procedure among class members.

Comparing the relief obtained to the issuespresented in the Second Amended Complaint, theclass has achieved a reasonable result with respectto the major objectives of the litigation. Thebenefit of obtaining guaranteed relief, in the faceof serious obstacles to successful litigation,enhances the value of the settlement to the classand strongly demonstrates its fairness.

B. The Complexity, Expense andDuration of Further Litigation

The class obtained a significant benefit from therelatively rapid litigation and settlement of thiscase. The testimony of the mediator, evidencesubmitted by Class Counsel, and the experience ofthe Court establish that cases such as this typicallytake years, if not decades, to resolve to judgment.See Cotton, 559 F.2d at 1331 (describing "lengthof time and expense which must be incurredbefore the dust of combat has finally settled");Pettway v. American Cast Iron Pipe Co., 576 F.2d1157, 1168 (5th Cir. 1978) ("[i]n the instant case,we encounter another judicial paleolithic museumpiece") (case originally filed in 1966);Hartman v.Wick, 88 F.3d 1232, 1234 (D.C. Cir. 1996), cert.denied, 520 U.S. 1240 (1997) (noting that sexdiscrimination class action "appears before us onappeal for the third time" after "working its wayup and down the system for nearly 20 years").Indeed, a credible projection for litigating this casethrough class certification and Stage I and Stage IItrials, not to mention multiple opportunities forappeal, is ten years from the date of filing. Eachphase of litigation would entail substantial expertcosts, attorney time, travel and deposition costs,and other expenses. Trial on the merits wouldrequire consideration of complex duelingstatistical models. In short, the likely alternative tosettlement now is lengthy, burdensome, andexpensive litigation. Particularly given thestrength of the relief, the added benefit ofobtaining it now rather than years from nowmakes approval of this settlement in the bestinterests of the class.

C. The Stage of Litigation at Whichthe Settlement Was ReachedIn this case, although the time from filing toSettlement in Principle was a relatively quickfourteen months, the settlement was not achieveduntil both sides had engaged in extensivediscovery and had fully developed importantissues. The parties actively pursued numerousdiscovery-related motions and issues. Theplaintiffs conducted discovery of Coca-Cola'shuman resources database, took depositions ofsenior management officials and reviewed over140,000 pages of documents related to the

In a case where experienced counsel represent theclass, the Court "absent fraud, collusion, or thelike, should hesitate to substitute its own judgmentfor that of counsel." Cotton, 559 F.2d at 1330; seealso, e.g., Warren, 693 F. Supp. at 1060 ("Court isaffording great weight to the recommendations ofcounsel for the parties, given their considerableexperience in this type of litigation"). Given thequalifications of Class Counsel, which includesubstantial experience in class action and othercomplex litigation and employment discriminationcases, the Court has confidence in their collectivejudgment that the benefits of this settlement faroutweigh the delay and considerable risk ofproceeding to trial.

Both the substance and amount of opposition tothis settlement are small. The Court has carefullyconsidered the contentions of the nine individualswho filed objections to the settlement. Althoughthe Court must review and address suchobjections, "this is not to say that the trial judge isrequired to open to question and debate everyprovision of the proposed compromise." Cotton,559 F.2d at 1331. The central question at issue is

not whether any particular provision could havebeen negotiated in a slightly different ormarginally more favorable way. Rather, the Courtmust determine the fundamental fairness,adequacy, and reasonableness of the settlement,taken as a whole. While the Court may interpretprovisions subject to dispute, it may notunilaterally rewrite the terms of the bargain struckbetween the parties. Officers for Justice v. CivilService Comm'n, 688 F.2d 615, 630 (9th Cir.1981); Domestic Air Transp., 148 F.R.D. 297, 313(N.D. Ga. 1993) (stating that district court cannotimpose modifications on parties). None of theobjections here are sufficient to overcome thebasic fairness of the Settlement Agreement.

Company's employment policies and practices anddiversity and EBO performance. The mediationpresentations and arbitration proceedings providedeach side further information about the merits ofthe class claims and the strength of Coca-Cola'sdefenses. Class Counsel credibly attested to theirability to make a reasoned judgment about themerits of the case during settlement negotiations.

6

6 Indeed, the class took all the discovery

required to file its motion for class

certification, and in fact had that motion,

its accompanying expert report,

documents, deposition excerpts and

affidavits at the courthouse ready to file the

day the parties reached a Settlement in

Principle.

D. The Judgment of ExperiencedCounsel

E. The Substance and Amount ofOpposition to the Settlement

7

7 While the number of objectors is "not

controlling," Cotton, 559 F.2d at 1331, a

relatively small number of objectors can be

taken as "some indication that the class

members as a group did not think the

settlement was unfair." Kincade v. General

Tire Rubber Co., 635 F.2d 501, 506 n. 4

(5th Cir. 1981).

With respect to specific objections of the GaryObjectors, the Court has already ruled onObjections 1 and 2, which claim certaindeficiencies in the Notice, rejecting these sameclaimed deficiencies and determining that theNotice not only meets but exceeds therequirements of due process. Objection 3 assertsthat four former named plaintiffs in this actionshould receive compensation comparable to theClass Representatives in this case. These fourindividuals have opted out, are no longer parties tothis action, and are pursuing individual claims.They are therefore not entitled to or eligible toparticipate in the benefits provided by thissettlement. Objections 4 and 5 seek proceduralmodifications, including creation of subclassesand a so-called "parallel class action." There is nofactual justification for these vague contentionsand no explanation of how the Court wouldimplement either of these concepts in the absenceof anyone claiming to represent a subclass orparallel class, anyone having filed or proposed analternative class, or anyone presenting a request

8

that the Court certify such classes. Any suchrequest would of course have to satisfy therequirements of Rule 23. Objections 6, 7, 10, and12 assert in varying respects that the monetaryrelief provided by the settlement is inadequate. Asexplained above, the monetary relief is fair,adequate, and reasonable. Further, any classmember dissatisfied with the amount being paidunder the Settlement Agreement had theopportunity to opt out and preserve the right tolitigate individually. Objection 9 asserts a series ofdeficiencies with the programmatic relief in thiscase. The Court is not persuaded that any of theseobjections goes to the fundamental fairness of asettlement that provides such impressiveprogrammatic benefits to the class. Moreimportantly, these criticisms, along with Objection11, wrongly presume that Coca-Cola will be freeto disregard the terms of a binding and judicially-enforceable consent decree. Finally, Objection 13filed by the Gary Objectors complains that Coca-Cola did not admit fault. While it isunderstandable that employees who feel they werediscriminated against want such an admission, thisdesire does not warrant rejecting the importantbenefits provided under the settlement.

8 The only supposed "conflicts" the objectors

allude to — between employees who have

signed releases and those who have not,

and between current and former employees

— are not conflicts and do not justify

subclassing. Employees who have signed

releases are not in "conflict" with those

who have not. They are eligible to

participate on equal footing in the

settlement. Current employees are

obtaining injunctive benefits that are not

relevant to former employees, but these are

not extra benefits for one group at the

expense of another; rather they reflect

complementary anti-discrimination

remedies consistent with the goals of civil

rights law and are a consequence of Coca-

Cola's agreement to comply with such

laws. In any event, the Class

Representatives who negotiated the

settlement included current and former

employees.

The Court is sympathetic to, but not ultimatelypersuaded by, the objections filed by Larry Jonesto two aspects of the distribution of settlementproceeds. Jones argues that distribution of fundsshould take into account not only time as anemployee of Coca-Cola, but an employee's"bridged service, or time spent working as acontractor for Coca-Cola while an employee of aseparate company, prior to hire as an employee ofCoca-Cola. Jones also argues that formeremployees should have additional time to exercisestock options granted under the settlement. Thesettlement requires former employees (exceptretirees) to exercise options within eighteen (18)months of settlement approval or termination,whichever is later, while current employees andretirees have a ten-year term for exercising theiroptions. Neither of these objections warrantsrejection of the Settlement Agreement orundermines its fundamental fairness,reasonableness, and adequacy.

9 It should be noted that Jones conceded he

never worked as a contract employee and

has no bridged service time, and that the

circumstances of his departure from the

Company mean that he has the same ten-

year period to exercise stock options paid

under this settlement as current employees

do. He thus lacks standing to raise these

objections.

9

The Court has no power to require Coca-Cola toadd money to the settlement but can only evaluatethe overall fairness of the bargain struck by theparties. Since the compensatory damages fund isdistributed solely on the basis of total timeemployed by Coca-Cola and time factors into theback pay calculations as well, counting bridgedservice time would directly decrease the amountclass members who were never temporary workerswould receive. This dilution is inappropriate giventhe legal theories at issue and the intent of theSettlement Agreement. The class action complaintin this case sought relief on behalf of those"employed by The Coca-Cola Company insalaried exempt and non-exempt positions" (thesame individuals covered by the Settlement Class

The Court must consider whether there is anyevidence the settlement was the product ofcollusion, by examining the negotiating process,to determine whether the compromise was theresult of arms-length bargaining between theparties. In Re Domestic Air Transp., 148 F.R.D. at313;Warren, 693 F. Supp. at 1055. The Court hadthe opportunity to personally observe the conductof the parties during the litigation of this case andto hear the testimony of the mediator. There is nodoubt that this case has been adversarial, featuringa high level of contention between the partiesthroughout the litigation, the mediation and the

arbitration and drafting of the SettlementAgreement. The fact that the entire mediation wasconducted under the auspices of Mr. Hughes, ahighly experienced mediator, lends further supportto the absence of collusion. Indeed, it took all ofMr. Hughes's skill to mediate this settlementbecause it was so difficult to reach agreementbetween the parties. Parties colluding in asettlement would hardly need the services of aneutral third party to broker their deal. Further, thefee was negotiated separately from the rest of thesettlement, and only after substantial componentsof the class settlement had been resolved. Counselfor the Gary Objectors suggested that the fact thatthe fee negotiation was not "the very last item onthe table" shows collusion. Given all the facts andcircumstances pointing to a true arms-lengthnegotiation, and the testimony of the mediator, thefact that the fee was being discussed on the lastday of negotiation but not the very last minute isnot credible evidence of collusion. Moreover, thiscase is not one where Class Counsel will obtain adisproportionately large fee in relation to the sizeof the settlement and where the class will receive alimited or dubious benefit. See Hanlon v. ChryslerCorp., 150 F.3d 1011, 1021 (9th Cir. 1998) (statingthat courts should be cautious "when counselreceive a disproportionate distribution of thesettlement, or when the class receives no monetarydistribution but class counsel are amplyrewarded").

Linda Ingram, Kimberly Orton, Elvenyia Barton-Gibson and George Eddings have requestedincentive awards of $300,000 each, to be paid outof the Compensatory Damages Fund. Suchcompensation would be in lieu of, not in additionto, the compensation they would otherwise receiveas members of the class from the CompensatoryDamages Fund and Back Pay Fund. No objectionto this proposed compensation has been filed."Courts routinely approve incentive awards tocompensate named plaintiffs for the services theyprovided and the risks they incurred during the

definition) for harms caused by the Coca-Colaemployment policies and practices applicable tothose individuals. The plaintiffs never asserted intheir complaint the kind of legal theory that wouldhold Coca-Cola responsible for damages incurredby its temporary or contract workers, and theparties have demonstrated no intention to includesuch damages in the settlement funds paid underthe Agreement.

With respect to the exercise time for stock options,the Settlement Agreement treats former employeesmore favorably than Company policy, whichrequires terminated employees to exercise stockoptions within six months after the date oftermination. The fact that former employee classmembers do not have the same tenyear term ascurrent employee class members is notfundamentally unfair.

10 The objection filed by Edward C.

Holloway protests that his individual

settlement share is not adequate. Mr.

Holloway is in the same position as every

other class member, and he could have

opted out and filed an individual case

asserting his claims for these damages.

Otherwise, he can take the funds payable

under the settlement, or he can pursue his

individual claims under the Promotional

Claims Procedure. This set of options is

fair.

10

II. The Settlement Is Not the Productof Collusion III. Class Representative

Compensation

course of the class action litigation." In ReSouthern Ohio Correctional Facility, 175 F.R.D.270, 272 (S.D. Ohio 1997) (citing cases). Suchawards are justified when the class representativesexpend considerable time and effort on the case,especially by advising counsel, or when therepresentatives risk retaliation as a result of theirparticipation. Id. at 273; See also In re Lease OilAntitrust Lit., 186 F.R.D. 403, 449 (S.D. Tex.1999) (recognizing that class representatives wereentitled to additional compensation for their timeand effort).

The settlement provides for approximately $20.7million in attorneys' fees, representingapproximately 20% of the total current cashsettlement fund, to be paid to Class Counsel forwork related to and arising out of this litigation,including all necessary monitoring of futurecompliance with the settlement during the life ofthe Consent Decree. In the absence of anyevidence of collusion or detriment to the class,the Court should give substantial weight to anegotiated fee amount, assuming that it representsthe parties' "`best efforts to understandingly,sympathetically, and professionally arrive at asettlement as to attorney's fees.'" See Elkins v.Equitable Life Ins. Co, 1998 WL 133741 (M.D.Fla. Jan. 27, 1998) (quoting Johnson v. GeorgiaHighway Express Inc., 488 F.2d 714, 720 (5th Cir.1974), overruled on other grounds, Blanchard v.Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103L.Ed.2d 67 (1989)). This weight is particularlyappropriate when, as here, no objection has beenraised to the fee award and the amount of fees isentirely consistent with a reasonable fee awardunder the circumstances of the case. It is well-established that parties to a lawsuit may negotiatea settlement wherein the defendant makes a totalcash payment encompassing both monetary reliefand any liability for attorneys' fees. See Evans v.Jeff D., 475 U.S. 717, 733, 106 S.Ct. 1531, 1540,89 L.Ed.2d747 (1986). Any such agreement as tofees, like any provision of a class actionsettlement, remains subject to district courtapproval. See Piambino v. Bailey, 610 F.2d 1306,1328 (5th Cir. 1980) ("A district court is notbound by the agreement of the parties as to theamount of attorneys' fees") (citation omitted).

Here, the Settlement Class Representatives havemade a factual showing with respect to theservices they provided to the class and the risksthey incurred. A great deal of evidence has beenpresented to the Court regarding the unique andextraordinary contribution these four individualsmade to the investigation, prosecution, andsettlement of this case. That factual showing isbolstered by the testimony of Class Counsel andthe mediator, who uniformly agreed that in noprior case within their experience had ClassRepresentatives been as involved with thelitigation as in this case. of note is the fact that thefour Class Representatives in this case directlyparticipated in the mediation process andvigorously asserted the interests of the class, asClass Counsel and the mediator attested. Further,the Class Representatives took risks, borehardships, and made sacrifices that absent classmembers did not. Significantly, the ClassRepresentatives have agreed never to seek re-employment with Coca-Cola.

In addition to the services they have provided andthe risks they have incurred, the magnitude of therelief the Class Representatives obtained on behalfof the class warrants a substantial incentive award.The Class Representatives have fulfilled both theclass's interest in effecting fundamental change atCoca-Cola and its interest in receiving fair amendsfor injuries allegedly suffered while working forthe Company. Rewarding such efforts creates theproper incentives for individuals to come forwardand undertake the arduous efforts needed tochallenge alleged discrimination on a class-wide

level, thus fulfilling the policies and purposesunderlying Title VII. The Court finds therequested awards are appropriate in light of thesubstantial services performed on behalf of theClass. The Court also finds that the affiantcompensation of $3000 each is appropriate as acontribution to the litigation that entails risk andeffort.

IV. Attorneys' Fees

11

12

11 Under the settlement, the Company has

agreed to current cash payments of

approximately $103.5 million. This current

cash settlement fund is comprised of the

Compensatory Damages Fund

(approximately $58.7 million); the Make-

Whole Relief Back Pay Fund

(approximately $24.1 million); and

specified attorneys' fees (approximately

$20.7 million). While attorneys' fees

constitute 20% of these current cash

payments, the fee percentage becomes

much smaller as additional, future relief to

the class is factored in. For example, if the

$10 million Promotional Achievement

Award Fund, to be paid out to class

members by the Company over a period of

ten years, is included in the value of the

cash payments, attorneys' fees drop to

approximately 18%. Similarly, if one

includes in the value of the cash payments

the estimated $43.5 million in future pay

equity adjustments, which will inure to

class members over a period of years under

the settlement, attorneys' fees drop to

approximately 13%.

12 The evidence submitted by Class Counsel

and the mediator demonstrates that

attorneys' fees were negotiated separately,

at arms-length, and without collusion.

During negotiations, Class Counsel

informed the mediator of the bases for

Class Counsel's reasonable fees and

expenses — including the approximate

number of hours spent on the case, the

results obtained, the risks undertaken and

the initial undesirability of the case — and

the Company agreed to pay these fees and

expenses.

Camden I Condominium Ass'n. Inc. v. Dunkie,946 F.2d 768, 775 (11th Cir. 1991), establishedthat attorneys' fees should be a reasonablepercentage of a common fund created for thebenefit of the class, and set a 25% recovery as anappropriate "benchmark." Nonetheless, theEleventh Circuit indicated that this benchmarkcould be adjusted according to the circumstancesof the case. Id. at 775. Numerous factors are

relevant for determining court awarded statutoryfees: (1) the time and labor required; (2) thenovelty and difficulty of the questions; (3) the skillrequisite to perform the legal service properly; (4)the preclusion of other employment by theattorney due to acceptance of the case; (5) thecustomary fee; (6) whether the fee is fixed orcontingent; (7) time limitations imposed by theclient or the circumstances; (8) the amountinvolved and the results obtained; (9) theexperience reputation, and ability of the attorneys;(10) the "undesirability" of the case; (11) thenature and length of the professional relationshipwith the client; and (12) awards in similar cases.Johnson v. Georgia Highway Express Inc., 488F.2d 714, 717-19 (5th Cir. 1974), overruled onother grounds, Blanchard v. Bergeron, 489 U.S.87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). TheEleventh Circuit has noted in Camden that severaladditional factors are pertinent for setting andevaluating percentage fee awards in common fundcases: (1) whether the settlement confers non-monetary benefits upon the class; (2) whetherthere are any substantial objections to thesettlement terms or the fees request; (3) theeconomics involved in prosecuting a class action;(4) the time required to reach settlement; and (5)any additional factors unique to a particular casewhich may be relevant to the district court'sconsideration. 946 F.2d at 775.

The challenges inherent in this case support a highpercentage fee award. For instance, an earlymotion to dismiss by Coca-Cola raisedcomplicated issues related to the application ofFED. R. CIV. P. 23 in civil rights cases. Moreover,a demanding arbitration process requiredextensive briefing of legal issues related to laboreconomics. Considering the Johnson factors, thiscase's facts substantiate claims that prosecutingthis case required considerable time and labor,presented novel and difficult legal questions, andrequired a high level of legal skill. In addition,because so much work was required to resolvethese issues, many of the attorneys involved had toforego other employment to pour their energies

As part of the Settlement Agreement, the partieshave consented to certification of a settlementclass in this case. The Supreme Court's decision inAmchem Prods. v. Windsor, 521 U.S. 591, 621,

into this lawsuit. Notably, counsel have achieved asuperior result for the class, including bothmonetary and injunctive relief.

Furthermore, this litigation was considered highlyundesirable at the outset, and counsel took asignificant risk in taking the case. The high levelof undesirability and risk that class actiondiscrimination cases entail merit particular weight,since there is a corresponding public benefit inencouraging the private bar to devote resources toenforcing our nation's civil rights laws. SeeRoberts v. Texaco, 979 F. Supp. 185, 197(S.D.N.Y. 1997). . . . . . racial discrimination in theworkplace [is] a class action concern that has notreceived the same focus as have, for example,securities and products liability class actions,although it implicates concerns of considerablepublic importance"). Historically, claims allegingsystemic employment discrimination are difficultto win, and the undesirability of the type oflitigation at issue is compounded by the fact thatthe defendant here is highly respected in theAtlanta area and possesses the financial resourcesto vigorously defend the action. Given thepotential public policy impact of the settlement,counsel's undertaking of the risk of this litigationmerits recognition in the fee award. Despite theseobstacles, Class Counsel provided unique,professional, and high quality services to the class.

The additional factors adopted in the Camden casealso support an upward adjustment from the 25%benchmark. First, the settlement confersunprecedented non-monetary benefits on the classin the form of programmatic changes within theCoca-Cola Company. Second, no objection to thefee award in the settlement agreement has beenfiled. Third, as discussed above, Class Counselexpended significant resources in prosecuting theclass action, both in terms of out-of-pocket costsand thousands of hours of attorney time, with noguarantee the litigation would succeed. Finally, incontrast to many other similar civil rights actions,this case was brought to a swift and successfulconclusion with consequent benefits to the classand the Court.

Under these circumstances, a high percentage feeaward would be warranted. However, ClassCounsel and Coca-Cola have negotiated a feeaward that is well below the benchmark of 25% ofthe recovery appropriate in such a case. As such,the award is fair and reasonable.

As further support for the fee award, the Courtnotes that the fee would also be fair andreasonable under the lodestar approach, whichconsiders the hours expended in prosecuting thecase. According to affidavits submitted by co-leadcounsel, more than 22,000 hours of professionalservice have been expended in relation to thiscase. Counsel estimate that the time expendedresults in a lodestar amount for this case ofbetween $5.2 and $6 million. Moreover, classcounsels' work is not complete. They mustperform work related to distribution of the fundsfrom the settlement, oversee the implementationof the programmatic relief, and take on the burdenof monitoring compliance with the settlementterms. In similar cases, courts have used appliedmultipliers that range from less than two times thereasonable time charges to more than five timesthe reasonable charge. See e.g., Roberts v. Texaco.Inc., 979 F. Supp. 185, 197-98 (S.D.N.Y. 1997)(citing cases in which multipliers were used).Granting the requested fee award would betantamount to applying a multiplier between 2.5and 4 to the lodestar amount submitted by counsel.Using such a multiplier would be reasonableconsidering the factors outlined which support theproposed percentage fee award. The same factorswould support application of a significantmultiplier to the lodestar amount; nonetheless,counsel have only requested a fee equal to whatwould have been calculated by using only a mid-range multiplier. Hence, the Court finds that thenegotiated fee award would also be reasonableunder the lodestar approach.

III. Class Certification

117 S.Ct. 2231, 2248, 138 L.Ed.2d 689 (1997),however, counsels that this Court shouldindependently determine whether this case meetsthe requirements for class certification under FED.R. CIV. P. 23(a) and 23(b). The Supreme Courtstates, "Subdivisions (a) and (b) focus courtattention on whether a proposed class hassufficient unity so that absent members can fairlybe bound by decisions of class representatives.That dominant concern persists when settlement,rather than trial, is proposed." Id. UnderAmchem,manageability concerns are eliminated in thesettlement class context, but the Court mustaddress other aspects of Rule 23. 521 U.S. at 620,117 S.Ct. at 2248 ("Confronted with a request forsettlement-only class certification, a district courtneed not inquire whether the case, if tried, wouldpresent intractable management problems, for theproposal is that there be no trial. But otherspecifications of the rule — those designed toprotect absentees by blocking unwarranted oroverbroad class definitions — demand undiluted,even heightened, attention in the settlementcontext.").

Cox 784 F.2d at 1557 (citations omitted); seeShores v. Publix Super Mkts., Inc., No. 95-1162-CIV-T-25, 1996 WL 407850, at *6 (M.D. Fla.Mar. 12, 1996) ("Publix's policy of delegatinghiring and promotion decisions to managers, whomake those decisions on the basis of subjectivecriteria, is a common course of conduct. Plaintiffs'allegation that this course of conduct results in adiscriminatory practice is adequate to meet thecommonality requirement of Rule 23."). SeeCaridad v. Metro-North Commuter R.R., 191 F.3d283, 292 (2d Cir. 1999) (finding commonality forclass claim that granting discretionary authority tosupervisory employees resulted in pattern andpractice of discrimination)cert. denied, 529 U.S.1107 (2000); Shipes v. Trinity Indus., 987 F.2d311, 316 (5th Cir. 1993) (stating that allegations ofsimilar discriminatory employment practices like

A. Rule 23(a)Rule 23(a) sets forth four prerequisites tomaintenance of a class action:

Prerequisites to a Class Action. One ormore members of a class may sue or besued as representative parties on behalf ofall only if (1) the class is so numerous thatjoinder of all members is impracticable,(2) there are questions of law and factcommon to the class, (3) the claims ordefenses of the representative parties aretypical of the claims or defenses of theclass, and (4) the representative partieswill fairly and adequately protect theinterests of the class.

FED. R. CIV. P. 23(a).

Numerosity. The class in this case is so numerousthat joinder is impracticable. The classencompasses approximately 2200 people. (Aff. ofRobert A. Boas [277-1].) This number is well

beyond that which courts accept as satisfying thenumerosity requirement. Cox v. American CastIron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.)(citation omitted), cert. denied, 479 U.S. 883(1986) ("`more than 40 adequate'" to satisfynumerosity requirement).

Commonality. Questions of law and fact arecommon to the members of the class. TheEleventh Circuit has held that commonality existswhere plaintiffs allege that company-wide policiesand practices, including the company-wide use ofsubjective decision-making practices, discriminateagainst a class:

But Rule 23 does not require that all thequestions of law and fact raised by thedispute be common. . . . Nor is it clearfrom the interrogatories that plaintiffsallege no policy of discrimination; indeedthe "individual acts" they cite could verylikely be manifestations of such a policy.Among plaintiffs, "[a]llegations of similardiscriminatory employment practices, suchas . . . [the] use of entirely subjectivepersonnel processes that operated todiscriminate, would satisfy thecommonality and typicality requirementsof Rule 23(a)."

using entirely subjective personnel processes thatdiscriminate satisfy commonality requirement).

Shores, 1996 WL 407850, at *7 (citationsomitted); see Appleyard v. Wallace, 754 F.2d 955,958 (11th Cir. 1985).

Here, the plaintiffs alleged that Coca-Colamaintains company-wide policies and practicesgoverning compensation, promotions andperformance evaluations and that Coca-Cola'scommon compensation, promotion andperformance evaluation systems are subjective,discretionary and un-monitored. Plaintiffsfurther alleged that such company-wide policies,practices and systems fostered a pattern andpractice of race discrimination against African-American employees, under both a disparatetreatment theory and a disparate impact theory.The plaintiffs placed evidence in the recordconcerning these allegations, but the Court neednot and does not resolve the merits of thoseallegations or Coca-Cola's defenses.

13

14

15

13 (Second Am. Compl. ¶¶ 19-22.)

14 (Id. ¶¶ 4(a), 35, 46-55, 106, 110

(performance evaluation system); 4(b), 35,

60 73, 106, 110 (compensation system);

4(c), 35, 78, 84-93, 106, 110 (promotion

system).

15 (Id. ¶ 6, Counts I-III; see also id. ¶¶ 3-5,

35.)

The salient point is that the questions of whetherCoca-Cola maintains company-widecompensation, promotion, and performanceevaluation policies and practices, whether thesepolicies and practices are subjective, discretionary,and unmonitored, and whether these policies andpractices constitute a pattern and practice ofintentional discrimination or adverse impactagainst African-American employees are commonquestions.

Plaintiffs' intent to rely on statistical evidence toestablish class-wide discrimination also raisescommon questions. For example, the questions ofwhether statistically significant disparities exist inCoca-Cola's compensation and promotion ofAfrican-American employees relative to whiteemployees are questions of fact common to allclass members. In addition, by their very nature,

allegations that particular employment practicesdisparately impact a protected class presentcommon questions. Shores, 1996 WL 407850, at*7.

Typicality. The claims of the ClassRepresentatives are typical of the claims of theclass. As set forth above, the ClassRepresentatives' claims concerning Coca-Cola'salleged company-wide policies and practicesestablish typicality as well as commonality. Cox,784 F.2d at 1557. The Class Representatives'claims are typical because those claims arise outof and involve application of the same allegedlysubjective, discretionary, and un-monitoredpromotion, compensation, and performanceevaluation systems and the same alleged patternand practice of discrimination as the claims of theother class members. See Caridad, 191 F.3d at 293("[F]or the seven named Plaintiffs who allegedthat they were not promoted as the result of racialdiscrimination, the question of whether [thedefendant]'s policy of delegating discretion todepartment supervisors to make subjectivedecisions regarding employee promotions isadministered in a racially discriminatory manneror has a disparate impact on African-Americanworkers is crucial to their claims, as well as tothose of the proposed class."). As another courtstated,

Plaintiffs' claims are typical of the classwhere, as here, their claims "arise from thesame event or pattern or practice and arebased on the same legal theory" as theclaims of the class. There is norequirement that the named plaintiffs eachpersonally experience every difficultyoutlined in the complaint. Rather, it issufficient that the claims of the namedPlaintiffs are substantially similar to theclaims of the class.

The parties have consented to certification, forsettlement purposes only, of all claims for

injunctive and equitable relief under Rule 23 (b)(2) and to certification of claims for compensatoryand punitive damages under Rule 23(b)(3). TheSettlement Agreement provides that either sidemay present the Court with additional, alternativebases for certification. Plaintiffs urge the Court tocertify the class: as a (b)(2) class with notice andopt out rights, following the approach outlined bythe Eleventh Circuit in Holmes v. Continental CanCo., 706 F.2d 1144 (11th Cir. 1983); as a (b)(3)class; and as the agreed upon (b)(2)/(b)(3) hybrid.However, the Court finds that certification is onlyappropriate as a (b)(2)/(b)(3) hybrid.

Plaintiffs Barton-Gibson, Eddings, and Ingrameach challenge Coca-Cola's promotion system andeach allege that they have been subjected to apractice pursuant to which Coca-Cola providesmanagers with the discretion to fill availablepositions without fair and open competition. Allfour Class Representatives challenge theCompany's compensation system, alleging thatCoca-Cola permitted managers the discretion topay them unfairly and to pay them less thansimilarly or less qualified white employees.Plaintiffs Barton-Gibson, Eddings, and Ingramalso challenge Coca-Cola's performanceevaluation system, alleging that their performancewas judged by different standards than thoseapplied to white employees. See, e.g., (SecondAm. Compl. ¶¶ 117-137, 153-169, 189-195.)

Adequacy. The Class Representatives in this casehave fairly and adequately protected the interestsof the Class. The Eleventh Circuit has stated that "[t]he adequate representation requirement involvesquestions of whether plaintiffs' counsel arequalified, experienced and generally able toconduct the proposed litigation, and Griffin v.Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985)(citation omitted).

The record in this case establishes and the Courtfinds that Class Counsel are "qualified,experienced, and generally able to conduct theproposed litigation." Class Counsel vigorously andskillfully prosecuted this case on behalf of theclass, both during the litigation and the mediation.Their representation of the class was more thanadequate.

Furthermore, the Class Representatives do nothave interests that are antagonistic to the class.Rather, they share common interests with the classin obtaining injunctive and monetary relief. As setforth above, the record reflects that PlaintiffsIngram, Barton-Gibson, Eddings, and Ortonserved the class with distinction.

B. Rule 23(b)

FED. R. CIV. P. 23(b)(2) permits certificationwhen "the party opposing the class has acted orrefused to act on grounds generally applicable tothe class, thereby making appropriate finalinjunctive relief or corresponding declaratoryrelief with respect to the class as a whole." Thissubsection was expressly intended to apply to"actions in the civil-rights field where a party ischarged with discriminating unlawfully against aclass." Adv. Comm. Notes, 1966 Amendments toFED. R. CIV. P. 23. Although the language of thesubsection contains no "predominance"requirement, the 1966 Advisory Committee Notesindicate that the provision "does not extend tocases in which the appropriate final relief relatesexclusively or predominantly to money damages."Id. Absent class treatment, it is virtuallyimpossible for employees to obtain company-wideinjunctive relief. The changes to Coca-Cola'scompany-wide compensation, promotion,evaluation and other human resources policies thatwill result from the Settlement Agreement andwill benefit class members would not haveoccurred if this controversy were pursued throughindividual actions.

FED. R. CIV. P. 23(b)(3) requires "that thequestions of law or fact common to the membersof the class predominate over questions affectingonly individual members, and that a class action issuperior to other available methods for the fair andefficient adjudication of the controversy."

First, this case satisfies the predominancerequirement because common questions,particularly the over-arching question of whetherCoca-Cola engaged in a pattern and practice ofrace discrimination, predominate over individualquestions. The pattern and practice questionpredominates because it has a direct impact onevery class member's effort to establish liabilityand on every class member's entitlement toinjunctive and monetary relief. Under the SupremeCourt's decision inInt'l Bhd. of Teamsters v.United States, 431 U.S. 324, 336, 97 S.Ct. 1843,1855, 52 L.Ed.2d 396 (1977), which establishesthe method of proof in this case, the question ofwhether Coca-Cola engaged in a pattern andpractice of discrimination is a linchpin thatconnects the claims of all class members. Afinding that Coca-Cola engaged in such a patternand practice would create a presumption that theCompany discriminated against every member ofthe class. 431 U.S. at 362; 97 S.Ct. at 1868; seeRossini v. Ogilvy Mather, Inc., 798 F.2d 590, 599(2d Cir. 1986).

17

The opinion in Rutstein v. Avis Rent-A-Car Sys.,Inc. ("Avis"), 211 F.3d 1228 (11th Cir. 2000), cert.denied, 121 S.Ct. 1354 (2001), confirms that classemployment discrimination cases in whichTeamsters applies satisfy the predominancerequirement of Rule 23(b)(3). The EleventhCircuit conspicuously distinguished Avis, a "non-employment discrimination case" in which itreversed certification, 211 F.3d at 1239, frompattern and practice employment discriminationcases in whichTeamsters applies. See. e.g., id. at1237 (rejecting plaintiffs' argument because "theTeamsters rationale is particularly appropriate inemployment discrimination cases"); id. at 1240-41(rejecting notion thatAvis eliminates disparatetreatment class actions and stating, "[W]e find itappropriate to note, in conclusion, what this caseis not about. This is not a case allegingemployment discrimination."). Avis alsodistinguished Jackson v. Motel 6 Multipurpose.Inc., 130 F.3d 999 (11th Cir. 1997), as beingoutside the employment context and relying on anindividualized method of proof that differs from

the Teamsters approach.See 211 F.3d at 1234-35.Teamsters cases satisfy the predominancerequirement because of "[t]he importance of afinding of class-wide discrimination in[subsequent] individual proceedings." 211 F.3d at1237 n. 16. As Axis notes, in a Teamsters case,proof of a pattern and practice of discrimination(which is common, statistical proof) creates apresumption of discrimination and entitlement torelief on which every member of the class canrely. Id. at 1237 (citing Franks v. Bowman Transp.Co., 424 U.S. 747, 772 (1976), as holding that "ademonstration by the plaintiff class of theexistence of a discriminatory pattern or practiceestablishes a presumption that the individual classmembers had been discriminated against onaccount of race"); id. ("`Once purposefuldiscrimination against a class is proved, apresumption of an entitlement to back pay andindividual injunctive relief arises with respect tothe members of that class.'") (citation omitted); id.at 1238 n. 19.

Avis states that "[w]hether an issue predominatescan only be determined after considering whatvalue resolution of the class-wide issue will havein each class member's underlying cause ofaction." Id. at 1234. The decision recognizes thatin an employment discrimination class action suchas this one, resolution of the common pattern andpractice issue fundamentally affects "each classmember's underlying cause of action," (id.), byestablishing a presumption of liability andentitlement to individual injunctive and monetaryrelief.

The Court thus finds predominance in accordancewith Amchem, which counsels that (b)(3)'spredominance requirement focuses on thesubstantive aspects of class members' legal claims,rather than on the terms of a proposed settlement.In Amchem, the plaintiffs attempted to establishpredominance almost entirely on the basis ofcommon questions arising out of the settlementitself. 521 U.S. at 594; 117 S.Ct. 2235-36. Theplaintiffs argued that class members' commoninterests "in receiving prompt and faircompensation'" under the settlement and in a

determination of the settlement's fairnesspredominated over individual questions. Id. TheSupreme Court found such settlement-basedarguments for predominance insufficient becausethey did not "train" on the legal or factualquestions that qualify each class member's case asa genuine controversy." Id. (footnote omitted). TheCourt further found that common questionsconcerning the health hazards of asbestos wouldhave little "significance" with respect to litigationof each class member's claim.Id. Here, the classmeets (b)(3)'s predominance requirement preciselybecause of the "significance" of common issuesunder the substantive law governing each classmember's claim of discrimination. The pattern andpractice question thus satisfies the predominancerequirement of (b)(3).

Avis does not preclude certification of claims fordamages in this employment discriminationaction. First, in Axis, because of the absence of theTeamsters presumption, a finding that thedefendant engaged in a pattern and practice ofdiscrimination would have had no effect on eachclass member's claim for damages. 211 F.3d at1239. Here, however, because of that presumption,proof that Coca-Cola engaged in such a patternand practice would establish a necessary predicatefor the recovery of damages — proof ofintentional discrimination — for each classmember. Second, in an employmentdiscrimination case litigated under the Teamstersframework, bifurcated proceedings can be used toaddress any individual issues relating to damages.Third, in the context of this settlement, concernsabout the management of individual issues are notrelevant. Fourth, the Court has a sufficient recordto determine that the amount and allocation ofdamages in this case are fair, adequate, andreasonable.

The Court further finds that a class action is thesuperior method for the fair and efficientadjudication of this controversy. Resolution ofclass members' claims for injunctive and monetaryrelief in this single class action is superior toresolution of this controversy through the filing ofa host of individual actions. Class treatment is

superior as a matter of efficiency, consistency, andensuring that class members actually obtain relief.With regard to efficiency and consistency, classtreatment permits the common adjudication ofquestions that would otherwise be litigated overand over and thus avoids duplicative proceedingsand inconsistent results. See Cox, 784 F.2d 1554("repeated litigation of the pattern and practiceissue" would have "lamentable consequences forjudicial economy and the finality and consistencyof judgments"). Class treatment is also superiorbecause it removes real barriers to class membersobtaining relief. Absent class treatment, eachemployee would have to incur the difficulty andexpense of filing an individual claim and wouldhave to undertake the personal risk of litigatingdirectly against his or her current or formeremployer. Many employees would likely beunable to bear such costs and risks.

The Court also addresses the four specific"matters" set forth in the text of Rule 23(b)(3).With respect to "the interest of members of theclass in individually controlling the prosecution ordefense of separate actions," each class memberwas provided the right to opt out and pursue anindividual action; only twenty-four (24) membersof the class (approximately one percent) chose todo so. Further, class members do not have stronginterests in separately litigating the key questionof whether Coca-Cola engaged in a company-widepattern and practice of discrimination or inpursuing company-wide injunctive relief. Withrespect to "the extent and nature of any litigationconcerning the controversy already commencedby or against members of the class," only eight ofthe 2200 class members now have actions pendingagainst the Company, and those plaintiffs arepursuing individual claims in which they do notseek any relief that would affect the remainingclass members. The "desirability . . . ofconcentrating the litigation of the claims in [this]forum" is clear. Coca-Cola is headquartered here,the majority of the class is here and this Court isfamiliar with the issues in the case. With regard to"the difficulties likely to be encountered in the

management of a class action," the SettlementAgreement essentially eliminates anymanageability issues.

Because this action alleged entitlement to bothinjunctive and monetary relief, the class does notfit squarely within either subsection (b)(2) orsubsection (b)(3). However, courts have approvedof (b)(2)/(b)(3) hybrid certification of employmentdiscrimination claims. Holmes, 706 F.2d at 1158n.10 ("[It is] possible to create hybrids in givencases. Since in theory there should be no hardrequirement that (b)(2) be mutually exclusive, andsince subpart (c)(4)(a) allows an action to bemaintained `with respect to particular issues,' thefact that damages are sought as well as aninjunction or declaratory relief should not be fatalto a request for a (b)(2) suit, as long as theresulting hybrid case can be fairly and effectivelymanaged.") (citation omitted); Lemon v. Int'lUnion of Operating Eng'rs, 216 F.3d 577, 581 (7thCir. 2000) ("The district court could certify a Rule23(b)(2) class for the portion of the caseaddressing equitable relief and a Rule 23(b)(3)class for the portion of the case addressingdamages."); Eubanks v. Billington, 110 F.3d 87,96 (D.C. Cir. 1997) (stating that district court mayadopt hybrid approach under subsection (b)(2) and(b)(3)). A hybrid certification is the mostappropriate method of certifying this class forsettlement and the Court finds that the resultinghybrid class action can be effectively managed.The fact that the parties have agreed only tocertification of this seftlement class as a (b)(2)I(b)(3) hybrid lends support to the Court's conclusion.

Conclusion

The Class Representatives' Motion for Approvalof Settlement [302-1] is hereby GRANTED. TheSettlement Agreement dated November 16, 2000is hereby approved, and the Court certifies thefollowing Settlement Class:

All African-American persons employedby Defendant Coca-Cola in salariedexempt and non-exempt positions(commonly referred to as "Associates" byDefendant) in the United States at any timefrom April 22, 1995, to June 14, 2000,including, but not limited to, current orformer salaried employees of theCorporate Office, Coca-Cola USA, andMinute Maid.

This Settlement Class is certified as a hybridpursuant to Fed.R.Civ.P. 23(b)(2) and 23(b)(3).

Plaintiffs Elvenyia Barton-Gibson, George H.Eddings, Jr., Linda Ingram and Kimberly GrayOrton are hereby designated as Settlement ClassRepresentatives.

The following attorneys are designated asSettlement Class Counsel: Cyrus Mehri, PamelaCoukos and Gouri Bhat of Mehri, Malkin Ross,PLLC; Jeffrey O. Bramlett, H. Lamar Mixson,Joshua F. Thorpe and Steven J. Rosenwasser ofBondurant, Mixson Elmore, LLP; James E. Voylesof Deville, Milholin, Voyles Wales; and Robert L.Wiggins, Samuel Fisher and Byron R. Perkins ofGordon, Silberman, Wiggins Childs, PC. Messrs.Mehri, Bramlett and Mixson are herebydesignated Co-Lead Counsel.

So ORDERED this 7th day of June 2001.