Stone v. First Union Corp. - APPELLANTS' INITIAL BRIEF

03- 13128

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO.: 03-13128-E

U.S.COt!R1_OFAPPEAL_

, Th'Ot_ASK. tg_

ARLENE M. STONE, on behalf of herself

and all other present and former

employees similarly situated,

Plaintiff-Proposed Intervenors-Appellants,

V*

FIRST UNION CORPORATION,

FIRST UNION NATIONAL BANK OF FLORIDA,

FIRST UNION CORPORATION OF FLORIDA,

WACHOVIA CORPORATION,

FOR THE SOUTHERN DI_STRICT OF FLORIDA

APPELLANTS" INITIAL BRIEF

Attorneys for Appellants:

JACK SCAROLA

Fla. Bar No. 169440

DAVID J. SALES

Fla. Bar No. 794732

SEARCY DENNEY SCAROLA

BARNHART & SHIPLEY, P.A.

Attorneys for Appellants2139 Palm Beach Lakes Blvd.

West Palm Beach, FL 33409

Tele: 561-686-6300

Fax: 561-684-5816

BRENDA J. CARTER

Fla. Bar No. 0857289

Attorney for Appellants

1451 West Cypress Creek RoadSuite 300

Fort Lauderdale, FL 33309Tele: 954-489-2718

Fax: 954-977-4608

August 18, 2003

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE

STATEMENT

Pursuant to FRAP 26.1 and 1 lth Cir. R. 26.1-1, the following is a complete list of

all persons and entities known to. have an interest in the outcome of the

instant case:

1005 Corp.

1024 Dodge Street Limited Partnership

110 Monastery Associates, Limited Partnership

1700 Associates

2-4 Potter Place Urban Renewal, L.P.

343 South Dearborn II, LLC

349-59 Lenox LLC

3716 Third Avenue LLC

425 South Tryon Street, LLC

A.M. Pappas TechAMP II International, L. P.

A4 Health Systems, Inc.

ABCA, Inc.

Patricia Abraham

Academy Venture Fund, LLC

Accel Group LLC

Acist Medical Systems, Inc.

Maxine Adams

Adhesion Technologies, Inc.

Advanced TelCom Group, Inc.

AdvisorTech Corporation

C-1 of 49

Affinity Internet,Inc.

Agilera, Inc.

AHG Tax Credit Fund1,L.L.C.

AHG Tax Credit FundII, L.L.C.

AHG Tax CreditFund IiI, L.L.C.

AHG Tax CreditFundIV, L.L.C.

AHG Tax Credit Fund IX, L.L.C.

AHG Tax Credit Fund V, L.L.C.

AHG Tax Credit Fund VI, L.L.C.

AHG Tax Credit Fund VII, L.L.C.

AHG Tax Credit Fund X, L.L.C.

AHG Tax Credit Fund XII L.L.C.

Albemarle & Bond Holdings, PLC

Donna Alexander

Alidian Investment, LLC

Cheryl Ann Allen

Allentown Development Company, Inc.

Rae Aloisio

Alston & Bird LLP

American Industrial Capital Partners Fund III, L. P.

Anacuitas Manor, Ltd.

Andalusia Senior Housing, L. P.

Annville Housing Limited Partnership

Antioch Senior Housing Limited Partnership

Apollo Tax Credit Fund-XIV LLC

Stone, et al. v. First Union Corp., et al.Case No. 03-13128-E

C-2 of 49

.AppomattoxGovernor'sSchoolL.P.

Arbor GlennL.P.

ArborVillage, L.P.

ARCapInvestors,L.L.C.

ArconHealthCare,Inc.

Argo Partnership,L. P.

Phyllis A. Aschliman

AshtonCourtStateCreditPartner,L.L.C.

AshtonCourt,L. P.

AshtonCourt,L. P.

Ashton Hills State Credit Partner, LLC

Ashton Hills, L.P.

Ashton Landing State Credit Partner, L.L.C.

Ashton Landing, L.P.

Ashton of Richmond Hill, L. P.

Ashton Pointe, LLP

Athens Rental Housing, L.P.

Atlantic Savings Bank, FSB

AZ-#1599 Garland, LLC

AZ-#3115 Rio Grande City, LLC

AZ-#3611 Birmingham, LLC

AZ-#3618 Leland, LLC

AZ-#3624 Ft. Worth, LLC

AZ-#3628 Greensboro, LLC

AZ-#3629 Columbus, LLC


C-3 of 49


AZ-#3634 Enid, LLC

AZ-#3644 Jackson, LLC

AZ-#3650 Huber Heights, LLC

AZ-#3652 Shreveport, LLC

AZ-#3653 Sharonville, LLC

AZ-#3655 San Antonio, LLC

AZ-#3663 Jeffersontown, LLC

AZ-Warehouse Zanesville, LLC

Bacon Housing, L.P.

Banco Wachovia

Banco Wachovia

Honorable Ted. E. Bandstra

April Baroni

Barrett Place II Limited Partnership

Barrett Place Limited Partnership

Barry, Evans, Josephs & Snipes, Inc.

Bart, Inc.

BaseSix, Inc.

Bateman Eichler, Hill Richards Housing Investors, Inc.

Bateman Eichler, Hill Richards Realty Co., Incorporated

Bateman Eichler, Hill Richards Realty Services, Inc.

Bateman Eichler, Hill Richards, Inc.

Margarita Bautista

BB-Erie PA, LLC

BB-Newport News VA, Inc.

C-4 of 49ATLOI/11477453vl

BB-Newport News VA, LLC

BB-Newport News VA, LLC

Beacon Industrial Group LLC

Beacon Industrial Group, LLC

Beaumont Avenue Apartments, L. P.

Beechridge II, LLC

Beech_ridge Limited Partnership

Norma Beeman

BEHR Housing Investors 1980-1, L.P.

BEHR Housing Investors 1981-1, L.P.

Belair/Chapel Development Associates, LLC

Belair/Chapel Financing Associates, LLC

Belenos, Inc.

Belenos, Inc.

Caroline Bell

Bell Ridge Associates LLC

Bell Sport Holdings, LLC

Belleview L.P.

Benchmark Cable Acquisition Fund VII, L. P.

Bensalem Senior Apa_ments, L.P.

Bernice Bernstein

Besso Holdings Limited

BGMCO PA, Inc.

BIPAN Holding Company

Black Diamonds LLC


C-5 of 49ATL01/I 1477453vi


Black Enterprise/Greenwich Street Corporate Growth Partners, L.P.

Blanton Green Associates Limited Partnership

Blue Water Venture Fund H, LLC

Blue Water Venture Fund III, LLC

Blunt, Ellis & Loewi, Inc.

BOB Title Holdings, Inc.

Boettcher & Company, Inc.

Boettcher Properties, Ltd.

Laura M. Bogan

Connie Bowers

Bowler Housing L.P.

Larry Bowman

Boxer Building LLC

BPL Holdings, Inc.

BR Limited Partnership

Bradford Equities Fund III, L.P.

Bradford Equities Fund, L.P.

Bradford Equities Fund, LP

Brand Equity Ventures I, L.P.

Brand Equity Ventures II, L.P.

Brazos Equity Fund, L.P.

Ashley D. Brightwell

Bristow Stebbins Owners, LLC

Brittany Associates II, Ltd.

Brittany Associates, Ltd.

C-6 of 49ATLOI/I I477453vi


Brittany Point Apartments Limited Partnership

BRL Universal Compression Funding I, L. P.

Broadview Capital Partners, L.P.

Brynwood Partners I, L. P.

Brynwood Partners IV, L. P.

Bull Run Creek Associates, LLC

BullsEye Telecom, Inc.

Burdale Financial Holdings Limited

Burdale Financial Limited

Mar 5, Burrell

Wesley Burrell

Shirley Bushee

Business Development Corporation of South Carolina

Edwina Byrd

Camellia Court Apartments Limited Partnership

Campus 1000 Fremont, LLC

Canaan Ventures II L. P.

Cannon/Hearthwood Limited Partnership

Cantebury of Hilliard, Ltd.

Canton Mill State Credit Member, L.L.C.

Canton Mill, LLC

Capital Across America

Capital.com, Inc.

CapitalSource Holdings, LLC

Capitol Finance Group, Inc.

C-7 of 49ATL0I/11477453vl


CapTrust Financial Advisors, LLC

CapTrust Financial Advisors, LLC

James Carlile

Carlyle High Yield Partners, L.P.

Onalee Carmer

Cecilia Carmichael

Carolina BroadBand, Inc.

Carousel Capital Partners II, L. P.

Carousel Capital Partners, L. P.

Carriage Court Apartments Limited Partnership

Brenda J. Carter

Yolanda Casanova

Emilia Castillo

Catalyst Equity Fund, L.P.

CCP Limited Partnership

Cedar Forest Limited Partnership

Celadon, Inc.

Central Fidelity Capital Trust I

Central Fidelity Properties, Inc.

Centro Interuationale Handelsbank Aktringeseelschaft

Centurion Funding, Inc. (Roseville, CA)

Centurion Funding, LLC

Century Capital Partners II, L.P.

CFTA Holdings, LLC

CFTA Holdings, LLC

C-8 of 49ATL01/11477453vl


CFTA, Inc.

Louie Challancin

Earl Chambers

Chambers Bridge Urban Renewal Housing, L. P.

Charleston Place Limited Partnership

Chartwell Capital Investors, L. P.

Chartwell Investments II, L.P.

Cherokee Hills Associates LLC

Chisholm Partners III, L. P.

Chisholm Partners IV, L. P.

CHP II, L. P.

Church Street Senior Housing, L. P.

ClassNotes, Inc.

Cimarron Estates, Ltd.

Citrus County Land Corp

Citrus County Service Corp

City Affordable Housing LLC

Claire Tower, LP

Clarity Partners, L. P.

CMLB 2001, LLC

Cobb Park Townhomes, L.P.

Coleman Swenson Hoffman & Booth IV, LP

Coliseum Lofts, L.P.

Columbia at Bells Ferry Partners, L.P.

Columbia at Bells Ferry State Credit Partner, L.L.C.

C-9 of 49ATL0 I/11477453vl

Columbia at Greens, L.P.

Columbia Gardens, L.P.

Columbia Village, L.P.

Ana Comellas

Commonwealth Investors II, L. P.

Comsys Holding, Inc.

Congress Credit Corporation

Congress Financial Corp.

Congress Financial Corporation








Carmen B. Contreras

CoreBriX, Inc.

CoreStates Capital I

CoreStates Capital II

CoreStates Capital III

CoreStates Fund Management (Ireland) Ltd.

CoreStates Holdings, Inc.

CorpRex, LLC

Denise Corredeira


C-10 of 49ATL01/I t477453vl


Altamese Council

Shirley Courtney

Craigmont II, L.P.

Cranford Avenue Apartments, L.P.

Creative Choice Homes IX, Ltd.

Creative Choice Homes X, Ltd.

Creekside at Bellemeade Limited Partnership

CREST 2000-1 Holding SPV, Inc.

Crest Communication Partners, L.P.

Crestmore Village Apartments Limited Partnership

Crestmore Village Apartments Phase II Limited Partnership

Samuel Crissinger

Crosby Financial Holdings Limited

Cross Atlantic Technology Fund, L.P.

Crosswinds Green Associates Limited Partnership

Crosswinds Green II Associates Limited Partnership

James Crowley

Patricial Crowley

CS Outsourcing Holdings Limited

CSB Information Services PTE Ltd.

CT I Limited Partnership

CTB Realty Ventures XXI, Inc.

Cupertino Town Center, LLC

Grace Curtis

CUT Holdings, LLC

C-11 of 49ATLO1 i11477453vi

Dagne Cuza

CVO Greater China Partners, L.P.

Arthur Danburg

Danville Community Development Corporation

Davenport Alley, L.P.

Delores Davis

Jane Davis

Queen Dean

Sylvia DeComo

Delaware Trust Capital Management, Inc.

DeMuth, Folger & Wetherill II, L. P.

Elaine Dennery

DI-LM Arcadia Partners, L.P.

Evangelina Diaz

Gladys Diaz

Digital Access, Inc.

Digital Access, LLC

DIMAC Corporation

DJ Investments, LLC

Virgil Dobeck

Dendra Dobson

Beverly Douglas

Draper Atlantic Venture Fund II, L. P.

DS Coinvestment I, LLC

Ginette Ducrepin

Stone, et al. v. First Union Corp., et al.

Case No. 03-13128-E

C-12 of 49ATLOI/11477453vl

Duro Communications, Inc.

Duro Communications, Inc.

Eastern/Haven Development Associates, LLC

Eastern/Haven Financing Associates, LLC

Eastgate Properties, L.P.

Sandra Eaton

Jeannette Eder

Edison Venture Fund IV, L.P.

Educaid Student Holdings, Inc.

Education Financing Services, LLC

Colleen Eggen

EIMCO Trust

EIMCO Trust

Elkmont Partners, L.P.

Ellenton Housing Associates, Ltd.

Elm Lake Apartments, Ltd.

Energy Search LP

EnerVest Energy, L,P.

Enhancement Services Corporation

Equitable Realty Associates, L. P.

Equity Insurance Agency, Inc.

ESI (MA) Insurance Agency, Inc.

ESI Insurance Agency, Inc. of Colorado

ESI Insurance Agency, Inc. of Oklahoma

ESI Insurance Agency, Inc. of Utah


C-13 of 49ATL01/I 1477453vi


ESI Insurance Agency, Inc. of Wyoming

Established Holdings Limited

Eureka I, L.P.

European Credit Management Limited

Linda Evans

Event Zero, Inc.

EVEREN Capital Corporation

EVEREN Securities Holdings, Inc.

Evergreen Advisors LLC

Evergreen Apartments, L.P.

Evergreen Asset Management Corp.

Evergreen Investment Company, Inc.

Evergreen Investment Management Company, LLC

Evergreen Investment Services, Inc.

Evergreen Management, S. A.

Evergreen Service Company LLC

Evergreen Worldwide Distributors, Ltd.

Evolution Networks, Inc.

Fairbrooke Apartments Limited Partnership

Fairfax County Redevelopment and Housing Authority/HCDC One L.P.

Fairfax County Redevelopment and Housing Authority/HCDC Two L.P.

Farmington, Incorporated

FCC-PR, Inc.

Ralph Feith

Argelia Fernandez

C-14 of 49ATL01/I 1477453vl


FFBIC New York II, Inc.

FFBIC New York, Inc.

FFBIC, Inc.

FFL Services Corporation

Fidelcor Business Credit Corporation

Fifth and Market Corporation

Financial Life Insurance Company of Georgia

Financial World Funding Corp.

First American Service Corporation

First Atlanta Corporation

First Atlanta Lease Liquidation Corporation

First Bank of Florida Mortgage Corp.

First Clearing Corporation

First Corporate Center, Inc.

First Fidelity Insurance Services of Delaware, Inc.

First Fidelity Insurance Services, Inc.

First Fidelity International Bank

First Fidelity Urban Investment Corporation

First International Advisors, LLC

First International Advisors, LLC

First Money Store Securities, Inc.

First National Bank of Atlanta, The

First National Properties, Inc.

First Penco Realty, Inc.

First Union Affordable Housing Community Development Corporation

C-15 of 49ATL01/I 1477453vl

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union

First Union


Affordable Housing Corp.

ATM Solmions, Inc.

Auto Finance, LLC

Auto Loan Securitization, Inc.

Bank and Trust Company (Cayman) Ltd.

Capital I

Capital II

Capital III

Capital Partners 2001, LLC

Capital Partners 2001, LLC

Capital Partners, Inc.

Capital Partners, LLC

Capital Partners, LLC

Commercial Corporation



First Union Commercial Corporation

First Union Commercial Leasing Group, L.L.C.

First Union Commercial Leasing Group, L.L.C.

First Union Commercial Mortgage Loan Warehouse Corp.

First Union Commercial Mortgage Securities, Inc.

First Union Commercial Mortgage Services, Inc.

First Union Commercial Shared Resources, LLC

First Union Conmmnity Development Corporation

First Union Development Corporation

C-16 of 49ATLOI/11477453vl

Stone, et al. v. First Union Corp., et al,

Case No. 03-13128-E

First Union Direct Bank, N. A.

First Union Exchange Services, LLC

First Union Financial Investments, Inc.

First Union FPS, Inc.

First Union Fremont, LLC

First Union Futures Corporation

First Union Genesis Holdings, Inc.

First Union Guaranteed Tax Credit Fund I, LLC

First Union Holdings, Inc.

First Union I, Inc.

First Union Institutional Capital I

First Union Institutional Capital II

First Union Institutional Debt Management, Inc.

First Union Institutional Mortgage Services, LLC

First Union Insurance Agency of FL, Inc.

First Union Insurance Agency of NC, Inc.

First Union Insurance Agency, Inc.

First Union Insurance Group Trust I

First Union Insurance Services Agency, Inc.

First Union Insurance Services, Inc.

First Union International Banking Corporation

First Union International Capital Markets Limited

First Union Investment Banking Partners 2000, LLC

First Union Investment Banking Partners 2001, LLC

First Union Investors, Inc.

C-17 of 49ATL01/11477453vl


First Union KM Holdings, Inc.

First Union Leveraged Capital 2001, LLC

First Union Leveraged Capital 2001, LLC

First Union Leveraged Capital, LLC

First Union Leveraged Capital, LLC

First Union Life Insurance Company

First Union Merchant Banking 1997, LLC

First Union Merchant Banking




First Union Merchant Banking,

1998, LLC

1999, LLC

2000, LLC

2001, LLC

1998-II, LLC

First Union Merchant Banking, 1999-II, LLC

First Union Money Store Home Equity Loan Warehouse Corp.

First Union Mortgage Corporation

First Union National Bank

First Union National Bank of Delaware

First Union Overseas Investment Corporation

First Union PASS Co., Inc.

First Union Private Capital, Inc.

First Union Private Equity Fund II, L. P.

First Union Private Equity Fund, L. P.

First Union Private Equity Fund, L.P.

First Union Private Investment Funds Hedged Equities Super Accredited, L. P.

First Union Private Investment Funds Hedged Equities Super Accredited, L. P.

C-18 of 49ATL01/11477453vl


First Union Private Investment Funds Hedged Technology Fund, Accredited, L. P.

First Union Private Investment Funds Hedged Technology Fund, Accredited, L. P.

First Union Private Investment Funds Multi-Strategy Accredited, L. P.

First Union Private Investment Funds Multi-Strategy Accredited, L.P.

First Union Private Investment Funds Multi-Strategy Super Accredited, L. P.

First Union Private Investment Funds Multi-Strategy Super Accredited, L. P.

First Union Rail Corporation

First Union Real Estate Asset Company of Connecticut

First Union Real Estate Asset Company of Georgia

First Union Real Estate Asset Company of New Jersey

First Union Real Estate Asset Company of North Carolina

First Union Real Estate Investment Company of Connecticut

First Union Regional Community Development Corporation, Inc.

First Union Regional Foundation

First Union Residential Securitization Transactions, Inc.

First Union Risk Management, Inc.

First Union Securities Financial Network, Inc.

First Union Securities, Inc.

First Union Services, Inc.

First Union Shared Resources, LLC

First Union Title Corporation

First Union Trust Company of California

First Union Trust Company, National Association

First Union Venture Capital Fund, L. P.

First Union/Maher Partners

C-19 of 49ATLOI/[ 1477453vl

Deborah Fitzherald

Flagship Partners, L.P.

Jessica P. Flax

L.V. Fletcher

Floral Oaks Apartments, Ltd.

FOIL, Inc.

Forum Capital Markets, LLC

Fountain Place Associates Limited Partnership

Fox Haven Limited Partnership

Franklin Capital Associates III, L.P.

Franklin Ridge, LLC

FU/DG Indianola, LLC

FUCP/NEP, LLC

FUNC Holdings, Inc.

FUSI Insurance Services of Alabama, Inc.

FUSI Insurance Services of Hawaii, Inc.

FUSI Insurance Services of Massachusetts, Inc.

FUSI Insurance Services of Nevada, Inc.

FUSI Insurance Services of Ohio, Inc.

FUSI Insurance Services, Inc.

FUSI Insurance Services, Inc. of Texas

Gary Gandy

Sharon Garcia

Susan Gardner

G. C. Leasing, Inc.


C-20 of 49ATL01/11477453vl

General Homes Corp.

Genesis Gardens, L.P.

Georgia Las Brisas, LP

Ghent-Farmington Associates

GHG Newport Landing Limited Partnership

GiantBear.com, Inc.

GJA R/E Corp.

Glen Royall Mill Limited Partnership

Glenburn Associates Limited Partnership

Global Private Equity IV L.P.

Glory Street LLC

GOCOM Holdings, LLC

Goense Bounds & Partners A, L. P.

Honorable Alan S. Gold

Gold Rush I Apartments Limited Partnership

Gold Rush II Apartments Limited Partnership

Golfview Associates Limited Partnership

Carmen Gonzalez

Douglas Good

Linda Gottsleben

Grafton 66, LLC

Grande Pointe Associates, Ltd.

Michael Graybill

Great Hill Equity Partners II, LP

Green Gables Apartments, Ltd.


C-21 of 49ATL01/1 I477453vi


Case No. 03-13128-E

Green Ridge Associates, LLC

Greenleaf Village of Groveland, Ltd.

GreenLink LLC

Greenville Agricultural Credit Corporation

Greystone of McDonough L.P.

Griffin Corporate Services, Inc.

Leonard Gross

Grottoes Partners L.P.

Grundy Gardens II Senior Apartments, L.P.

Racquel Guerrero

Hagerstown Robinwood Senior Associates, LLC

Helen Hall

Hamilton Dorsey Alston Company, Inc.

Hamilton Manor Limited Partnership

Hanover/FUDC Master Limited Partnership

Harbinger/Aurora QP Venture Fund, LLC

Decourcy Hard

Harlingen Community Development Corporation 1, LP

Linda Harmon

Haskell Limited Partnership

Haverhill Affordable Housing, Ltd.

Hawthorne Court, LLC

John Hayes

Haymount Manor Associates Limited Partnership

Headhouse Retail Associates, L.P.

C-22 of 49ATLOI/11477453v 1


Case No. 03-13128-E

Heartland Pork Enterprises, Inc.

Heatherwood Apartments Limited Partnership

Barbara Hedrick

Marie Heredia

Heritable Bank Limited

Heritable Bank Limited

Heritage Place State Credit Partner, L.L.C.

Rosemarie Herrera

Linda Herrick

HHS Property Corporation

Hickory Hollow Senior Apartments Limited Partnership

High Ridge Capital Partners II, L.P.

High Ridge Capital Partners, L. P.

HOB EntertainmenL Inc.

HOB Entertainment, Inc.

HomEq Servicing Corporation

Homes for Fredericksburg Limited Partnership

Marianne Hopkins

Horace Bushnell Limited Partnership

Horizon Management Services, Inc.

Horizon Telecom International, Inc.

Horizon Telecom International; Inca

Patricia Hosea

Housing Equity Fund of Virginia I, L.P.

Housing Equity Fund of Virginia II, L.P.

C-23 of 49ATL01/11477453vi

Houston Venture Partners, Ltd.

HRC General Partner Limited Partnership

Hub Building Limited Partnership

James Hudson

Hunt, DuPree, Rhine & Associates, Inc.

Brenda Hunter

Huntington Park Apartments Limited Partnership

Thomas Hutcheson

IDM Funding Corp.

IGI/Earth Color, Inc.

IJL Financial, Inc.

IJL Holdings, Inc.

Indian Run Limited Partnership

Industrial Valley Real Estate Co.

INFLOW Group, Inc.

INFLOW Group, Inc.

Inner City Media Corporation

Integrated Capital Group, Inc.

Interchange Partners

International Progress, Inc.

Ironbrand Capital LLC

Ironbrand Capital LLC

ISC Realty Corporation

J.D. Power Clubs, Inc.

Joe Ann Jackson


C-24 of 49ATL01/11477453vl

Jacksonville Affordable Housing, Ltd.

May Jenkins

Jose Jarquin

Jefferson Center, L.P.

Jefferson Properties, Inc.

JERSEY CENTER_IDOREO, INC.

Eva Jo

Job, Berenberg, Gossler & Co.

Felicia Marie John

Mary L. Johnson

Johnson Lane Space Smith Corporation

Richard Jones

Rosa Jordan

JPSD, Inc.

JV Mortgage Capital, Inc.

JV Mortgage Capital, L.P.

JWGenesis Capital Markets, Inc.

JWGenesis Insurance Agency, Inc.

JWGenesis Insurance Services, Inc.

KAFU Holdings, LLC

Kelmscott Communications, L.L.C.

Kelmscott Communications, L.L.C.

Kensington of Kissimmee, Ltd.

Kestrel Technologies, Inc.

Martha Kiel


Case No. 03-13128-E

C-25 of 49ATL01/11477453vl

Stone, et al. v. First Union Corp., et al,Case No. 03-13128-E

J. Thomas Kilpatrick

Catherine King

Connie King

KKM, Inc.

Knowledge Planet.corn, Inc.

Knox Homes, L.P.

Robert Kofman

Mildred Korsnick

Marlene Kowachik

Elfriede Kruger

KSI Insurance Agency, Inc. of Ohio

L & M Hoe Associates LLC

William Lacayo

Lafayette Family L.P.

Lake Street Lofts, L.L.C.

Lake Weston Apartments (Orlando) Limited Partnership

Lakeland Holdings, LLC

Lakewood Terrace, LP

Ibis Lamas

Emergene Lamons

Landsbanki Islands hf

Lantana Associates, Ltd.

Arthur Largent

Laurel Pointe of Salisbury Limited Partnership

Laurel Pointe, LLC

C-26 of 49ATL01/11477453v|


Case No. 03-13128-E

Dorothy Laurie

Emma Lima

Ricardo Linares

Leeds Equity Partners, L.P.

Liberty/Milford Mill Development Associates, LLC

Liberty/Milford Mill Financing Associates, LLC

Lifecare, Inc.

LJM2 Co-Investment, L. P.

Louis Lodato

Lodge at Shavano Park, LP

Lodge at Warner Ranch, LP

Loewen Development of Wappingers Falls, L.P.

Edward Logan

Lone Stone, L. C.

Long, Travers & FASO

Longview Green Associates, L.P.

Marie Jose Louis

Lovett Underwood Neuhaus & Webb, Inc.

LuxN Investment LLC

Malcolm MacDiarrnid

Maggie L. Walker Governor's School Tenant, L.P.

Magnolia Arbor State Credit Partner, L.L.C.

Magnolia Arbor, L.P.

Magnolia Arbor, L.P.

Magnolia Creste State Credit Partner, L.L.C.

C-27 of 49ATL01/11477453vi


Magnolia Creste, L.P.

Magnolia Heights, L.P.

Magnolia Walk Apartments, Ltd.

Major Brokerage Co., Inc.

Judith Mallett

ManagedStorage International, Inc.

Manor Ridge Limited Partnership

Marathon Fund Limited Partnership IV, L.P.

Howard Markowitz

Alberto Martin

Martin's Landing II Limited Partnership

Martin's Landing Limited Partnership

Mar) land Housing Equity Fund III Limited Partnership

Matthew International Sales, Inc.

Kathleen Mazzi

McGlirm Capital Management, Inc.

Bertha Mcogg

David McCombie

MD Sass Corporate Resurgence Partners, L.P.

Meadow Ridge Senior Apartments Limited Partnership

Meadowmont JV, LLC

Mecklenburg Securities Corporation

MedCap Properties, LLC

Medical Equipment Credit PTE Ltd.

Meigher Communications, L.P.

C-28 of 49ATL01/I 1477453vi


Case No. 03-13128-E

Melbourne Atlantic Joint Venture

Mentor Perpetual Advisors, LLC

Mercy Housing Georgia I, LLLP

Mercy Housing Georgia I, LLLP

Meridian Acceptance Corporation

Meridian Investment Company

Meridian Mortgage Corporation

Meridian Point Senior Apartments Limited Partnership

Meridian Properties, Inc.

Meridian Venture Partners

Meridian Venture Partners II, LP

Dorothy Meriweather

Miami River Park Associates, Ltd.

MicroInvestors, LLC

Midtown Square State Credit Partner, L.L.C.

Midtown Square, L. P.

Midtown Square, L.P.

Mike Fort Worth TX, LLC

Mike Jacksonville FL, LLC

MMC Capital Technology Fund II, L. P.

Monarch Place Apts. LP

Donna Motecalvo

Montgomery Homes L. P. IX

Montgomery Homes Limited Partnership X

Monument Street Funding, Inc.

C-29 of 49ATL01/11477453vl





Monument Street Funding, LLC

Monument Street International Funding-l, LLC

Monument Street International Funding-II, LLC

Rogelio Moral

Moravian House III, LP

Morgans Ridge, LLC

Regina Morera

Jorge Morin

Mountain Falls Park, Inc.

Mountain Ventures Buckeye, LLC

Mountain Ventures

Mountain Ventures

Mountain Ventures

Mountain Ventures

Mountain Ventures

Mountain Ventures

Mountain Ventures

Mountain Ventures

Mountain Ventures

Cleveland, LLC

Erlanger, LLC

Golden State, LLC

Goose Creek/St. James, LLC

Hinsdale, LLC

Indianapolis/Allisonville, LLC

Mason, LLC

Mecklenburg, LLC

Michigan, LLC

Mountain Ventures Milwaukee, LLC

Mountain Ventures New Carlisle, LLC


Case No. 03-13128-E

C-30 of 49ATL01/11477453v I

Mountain Ventures Perrysburg, LLC

Mountain Ventures Philadelphia, LLC

Mountain Ventures Shorewood, LLC

Mountain Ventures Smithfield, LLC

Mountain Ventures South Bloomfield, LLC

Mountain Ventures SRI, LLC

Mountain Ventures Waynesboro, LLC

Mountain Ventures, LLC

MSF Holding, Ltd.

Mulberry Corporation

Multi-Credit Corporation of Thailand PCL

Multi-Risk Consultants (Thailand) Ltd.

MV Atlanta Braselton II, LLC

MV Atlanta Liberty Expansion, LLC

MV Atlanta Sugarloaf II, LLC

MV Chicago Cantera I, LLC

MV Chicago Meridian Business I, LLC

MV Cincinnati Pfeiffer I, LLC

MV Cleveland Emerald Valley I, LLC

MV Cleveland Landerbrook I, LLC

MV Columbus Easton I, LLC

MV Indianapolis Plainfield II, LLC

MV Minneapolis Lunar Pointe I, LLC

MV Minneapolis Norman Center I, LLC

MV Nashville Airpark East I, LLC


C-31 of 49ATL01/11477453vi


Case No. 03-13128-E

MV Nashville Aspen Grove Business Center 1, LLC

MV Nashville Aspen Grove Business Center II, LLC

MV Nashville Metrocenter II, LLC

MV Nashville Metropolitan Airport I, LLC

MV Orlando Celebration II, LLC

MV Orlando Lee Vista I, LLC

MV Orlando Lee Vista II, LLC

MV Orlando Northpoint I, LLC

MV Orlando Northpoint II, LLC

MV Raleigh Governor's Village I, LLC

MV Raleigh Perimeter Park I, LLC

MV Raleigh Perimeter Park II, LLC

MV Raleigh Walnut Creek I, LLC

MV Raleigh Walnut Creek tI, LLC

MV Raleigh Walnut Creek III, LLC

MV St. Louis Lakeside Crossing I, LLC

MV St. Louis Lakeside Crossing II, LLC

MV St. Louis Riverport II, LLC

MV Tampa Fairfield II, LLC

MV Tampa Fairfield III, LLC

MV Tampa Lakeland I, LLC

MV Tampa Regency II, LLC

MVP Distribution Partners

Nantucket Bay Limited Partnership

National Auto Finance Company, L.P.

C-32 of 49ATLO1/11477453vi

National Temple Limited Partnership-II

Navis Partners V, LP

NeoWorld Holdings, LLC

NEP Broadcasting, LLC

NEP Supershooters, L. P.

NEP Supershooters, L. P.

NEPA Venture Fund, L.P.

New Heritage Place, LLC

New Rivers Towers Limited Partnership

New Salem of Virginia, Inc.

New Salem, Inc.

New World Development Corporation, Ltd.

New World Group Holdings, Ltd.

Shirley Newby

Barbara Newkirk

NewSouth Holdings, Inc.

NFPS, Inc.

NFPS, Inc.

Nineacres Limited

NN1 Bell Street Limited Partnership

North Carolina Bioscience Investment Fund, LLC

North Carolina Economic Opportunity Fund. L. P.

North Hart Run Joint Venture

North Hart Run. Inc.

Novient, Inc.


C-33 of 49ATL01/11477453vi

Novient, Inc.

Nth Degree Global, LLC

Oak Crest Apartments of Kannapolis, Ltd.

Jose Obrador

ODC Selborne House Limited Partnership

OFFIT Energy Income Fund, L. P.

OFFITBANK

OFFITBANK Compass Fund, Inc.

OFFITBANK Compass Fund, L.P.

OFFITBANK Cross Market Fund, Inc.

OFFrrBANK Cross Market Fund, L.P.

OFFITBANK Derivatives, Inc.

OFFITBANK Energy Fund, Inc.

OFFITBANK Greater China, Inc.

OFFITBANK Latin America Fund, Inc.

OFFITBANK Latin America Income Fund, L.P.

OFFITBANK M-R Securities Fund, Inc.

Oilwell Supply, L.P.

Magaly Oj eda

Old York Agency, Inc.

Oldbridge Urban Renewal, L.P.

Thomas Oller

One Market Street, LLC

One Pleasant Green Place, Ltd.

One South Place, L.P.


C-34 of 49ATLO1/1 lz177453vl

OneSecure, Inc.

Oosterpark Corporation

Optiglobe, Inc.

Orianna Street Limited Partnership

Orillion Corporation

Outsourcing Solutions, Inc.

Outsourcing Solutions, Inc.

Overlook at Brook Run Associates, L.P.

Overlook at Brook Run II Associates. L. P.

Pacific Horizon Partners III, L.P.

Pacific Park State Credit Partner, L.L.C.

Pacific Park, L. P.

Pacific Park, L.P.

Pacific Venture Group, L. P.

Packaging Investments, LLC

Virginia Paice

Palladium Equity Partners II, L.P.

Sharon Palmer

Ana Paredes

Parkchester Limited Partnership

Parkview Heights, L.P.

PAROG, Inc.

Partnership Homes

Pritchard Partridge

PELS Funding, LLC


Case No. 03-13128-E

C-35 of 49A'I L01/11477453vt

Stone, et al. v. First Union Corp., et al_.Case No. 03-13128-E

Barbara Peltier

Pendleton Pines Associates, LLC

Peppermill Partners, L. P.

PFS General Agency of Texas, Inc.

PFS General Insurance Agency, Inc. of New Mexico

Philadelphia International Equities, Inc.

Philadelphia International Investment Corp.

Philadelphia National Limited



Phillips-Smith Specialty Retail Group III, L. P.

Physician Partners, Inc.

Piedmont Venture Partners II, L.P.

John Pitrelli

Dorothy Pittman

Diane Pleasants

Polaris International Securities Investment Trust Co., Ltd.

Rosie Pompilio

Pooled Auto Securities Shelf, LLC

Prescott Realty Services, Inc.

Prescott, Ball & Turben, Inc.

Princeton Reconveyance Services Inc.

Professional Direct Agency, Inc.

Prometheus Laboratories, Inc.

Prometheus Laboratories, hac.

C-36 of 49ATL01/1 |477453vl


Case No. 03-13128-E

Qualitor, Inc.

Questpoint L.P., Inc.

R.B.C. Corporation

Radnor Venture Partners, L. P.

Radnor Venture Partners, L.P.

Railroad Y L.P.

Ravenwood of Kissimmee, Ltd.

Real Estate Consultants of the South, Inc.

RedCelcius, Inc.

Redwood Domestic Fund, L.P.

Arlene Reetz

Reiman Holding Company, LLC

Reiman Holding Company, LLC

Reisterstown/Northern Development Associates, LLC

Related Club West Housing Associates, Ltd.

Republic Brokerage Corp.

Reservoir Hill Limited Partnership IX

Reservoir Hill Limited Partnership X

Reservoir ttfll Limited Partnership XI

Reservoir Hill Limited Partnership XII

Residential Asset Funding Corporation

Retail Investment Corp., Inc.

Retirement Plans Securities, Inc.

RFE Capital Partners, L.P.

RFE Capital Partners, L.P.

C-37 of 49ATLOI/t 1477453vl


Rhodes-Jennings Building Investors Limited Partnership

Susan Richardson

Richmond Community Development Corporation

Richmond Green Limited Partnership

Marcia Rickett

Ridgetop Realty Associates LLC

Riesterstown/Northem Financing Associates, LLC

RIHC Partners, L.P.

RIJK Corporation

River Reach of Orange County, Ltd.

RK Polymer, LLC

Roanoke Community Development Corporation

Roanoke Community Development Corporation

Roanoke Higher Education Associates, L.P.

Patricia Robertson

Robins Landing, L. P.

Rocketts View L.P.

Nieves Rodriguez

Rome Rental Housing, L.P.

Rosemont Manor Ltd.

RS Maritime Corporation

S Brooke Corporation

S.tt.E. Urban Renewal Associates, L.P.

Sable Point Apartments Limited Partnership

Sable Point II Apartments Limited Partnership

C-38 of 49ATL01 ;11477453v I

Stone, et at. v. First Union Corp., et al.

Case No. 03-13128-E

Maria Salbaluco

Salem Run Associates II, L.P.

Salem Run Associates, L.P.

David J. Sales

Salisbury Senior Housing Limited Partnership

San Benito Housing, Ltd.

Sanctum, Inc.

Sandlewood Terrace of Ludowici L.P.

Saranor Apartments Limited Partnership

SAS-1600 Arch Street, L.P.

Savings Associations Financial Enterprises, Inc.

Jack Scarola

SCM China Growth Fund LDC

Searcy Denny Scarola Bamhart and Shipley

Senior Cottages of Shippensburg, Ltd.

Senior Residences of Jacksonville I Limited Partnership

Senior Residences of Stillwater Limited Partnership

Senior Residences of West Memphis I Limited Partnership

Shawmut Equity Partners, L. P.

Shenandoah Station, L.P.

Shenandoah Valley Properties L.P.

Patricia Shepro

Dulce Sheran

Sienna Limited Partnership III

Signet Equipment Company

C-39 of 49ATLOI/I I477453,, I


Signet Student Loan Corporation

Silas Technologies, Inc.

Simonds Industries, Inc.

Honorable Andra M. Simonton

SK 55 Wail LLC

Skyhawk Agency, Inc.

Carol Slaughter

Angela M. Sless

Sheila Soloway

Somerset Apts., L.P.

Southern Provident Life Insurance Company

SouthSide Plaza 455 Ltd., L.L.P.

Southwoods Limited Partnership

Special Value Bond Fund, LLC

Spectrum EBP, LLC

SPFE, Inc.

Spinnaker Reach Apartments of Duval, Ltd.

Spire Capital Partners, L.P.

Spring Gate Manor Limited

Spring Ridge Holdings, Inc.

SRI Tanasbome, LLC

St. Charles Place, L.P.

St. Joseph's Affordable Housing Limited Partnership

St. Philip Villas State Credit Partner, L.L.C.

St. Philip Villas, L.P.

C-40 of 49ATL0 [,'11477453v I

St. Philip Villas, L.P.

Stanton Glenn Limited Partnership

Statesboro Rental Housing, L.P.

Howard Stearns

Steeplechase Apartments II, Ltd.

Steeplechase Apartments, Ltd.

STF Institutional Partners II, L.P.

Barbara Stires

Arlene M. Stone

Stonecreek Apartments of Mooresville, Ltd.

Stoneybrooke Heights Associates LLC

Structured Credit Partners, LLC

Studebaker Limited Partnership

Sugar Mill Apartments, L.P.

Sugar Mill Associates, Ltd.

Sundial Apartments, L.P.

Surinvest International Limited

SURREY DOWNS/F]DOREO, INC.

Sycamore Row, LLC

Sara Sztylerman

Tattersall Advisory Group, Inc.

Taylor & Clark Insurance Services, Incorporated

TAYLORR L_KES/FIDOREO, INC.

TCIG NC State Credit Fund, LLC

TDH I1 Limited


C-41 of 49ATLO I/1,477453"v I

Tech Resources Group, Inc.

TechAMP International, L.P.

Helena Tetzeli

The Boettcher 1981-2 Drilling Program, Ltd.

The Exchange Building Limited Partnership

The Fairfax Corporation

The First Service Corporation of South Carolina

The Maples Limited Partnership

The Money Store Advertising Services Limited

The Money Store Auto Finance Inc.

The Money Store Commercial Mortgage Inc.

The Money Store HELOC Holding, Inc.

The Money Store Holdings Limited

The Money Store Insurance Services Corp.

The Money Store Investment Corporation

The Money Store Limited

The Money Store of New York, Inc.

The Money Store, Inc.

The Money Store/Service Corp.

Betty Thomas

TI Remnaco, Inc.

Timber Run Limited Partnership

Timberlake Apts, LP

TimberleafEstates Limited Partnership

Ieanette Tin_naons

.S__tone,et al. v. First Union Corp., et al.

Case No. 03-13128-E

C-42 of 49ATI.01/11477453v I

TMS Auto Holdings, Inc.

TMS SBA Holdings, Inc.

TMS Special Holdings, Inc.

TMS SPV, Inc.

TMS Student Holdings, Inc.

TMS Venture Holdings, Inc.

Tobacco Row Phase II Associates, L.P.

Leonor Torregroza

Totten Tower L.P.

Trados Corporation

Transportation Equipment Advisors, Inc.

Transtar Investment, LLC

TRG Holdings, LLC

Tribune Tower Investors, L.P.

Triton PCS, Inc.

Trivest Fund III, L.P.

Trivest Furniture Partners, Ltd.

TRSTE II, Inc.

TRSTE, Inc.

Tryon Management, Inc.

Brenda Tuell

Jacqueline Tuttle

TWC Eighty-Eight, Ltd.

TWC Eighty-Four, Ltd.

TWC Eighty-Seven, Ltd.


Case No. 03-13128-E

C-43 of 49ATL0 I/11477453vl

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

TWC

Eighty-Three, Ltd.

Ninety-Eight, Ltd.

Ninety-Five, Ltd.

Ninety-Four, Ltd.

Ninety-Nine, Ltd.

Ninety-One, Ltd.

Ninety-Seven, Ltd.

Ninety-Six, Ltd.

Ninety-Three, Ltd.

Ninety-Two, Ltd.

Seventy-Eight, Ltd.

Seventy-Five, Ltd.

Seventy-Four, Ltd.

Seventy-Six, Ltd.

Seventy-Three, Ltd.

Seventy-Two, Ltd.

TWC Sixty-Eight, Ltd.

TWC Sixty-Six, Ltd.

Two APM Plaza, Inc.

UF-Raleigh LLC

ULQ, LP

Ultraprise Corporation

Unifirst Financial Services, Inc.

Union Commerce Title Company, LLC

Union Hamilton Assurance, Ltd.


C-44 of 49ATLO I q 1477453vl

Union Hamilton Reinsurance, Ltd.

United Bancshares, Inc.

United Bancshares, Inc.

United Bank of Philadelphia

United Bank of Philadelphia

United Messaging, Inc.

US Salt tloldings, LLC

US Salt Holdings, LLC

Utilicom Networks, LLC

Valtus, Inc.

Vanteon, Inc.

Gilbert Vazquez

VCP-Alderman Park Partners, Ltd.

VCP-SB Associates, Ltd.

Vector Divisas Casa de Cambio S.A. de C.V.

Venture eCornmerce, Inc.

Verdugt Holdings, LLC

Grace Vernon

Vestcor Fund XIV, Ltd.

Vestcor Fund XVI, Ltd.

Vestcor-WR Associates, Ltd.

V;lla BiscaDne of South Dade, Ltd.

Villages at Warner Ranch PUD, LP

Cary Villalonga

Virginia Baseball Club, L.P.


C-45 of 49AT[I?I/11477453vl

Virginia Center Associates, L.P.

Vista Point Apartments Limited Partnership

Vondelpark Corporation

VS&A Communications Partners II, L.P.

Wachovia Acquisition Corporation 2001-02

Wachovia Auto Leasing Company

Wachovia Bank Card Services, Inc.

Wachovia Bank, National Association

Wachovia Bank, National Association

Wachovia Capital Associates, Inc.

Wachovia Capital Investments, Inc.

Wachovia Capital Trust I

Wachovia Capital Trust II

Wachovia Capital Trust V

Wachovia Community Development Corporation

Wachovia Corporate Services, Inc.

Wachovia Corporation of Alabama

Wachovia Corporation of Tennessee

Wachovia Employer Solutions, LLC

Wachovia Exchange Services, Inc.

Wachovia Help Corporation

Wachovia Insurance Agency, Inc.

Wachovia Insurance Services, Inc.

Wachovxa International Banking Corporation

Wachovia International Capital Corporation


C-46 of 49ATL01/11477453vl


Wachovia International Servicos, LTDA

Wachovia International Servicos, LTDA

Wachovia Leasing Corporation

Wachovia Management Company, Inc.

Wachovia Merchant Services, LLC

Wachovia Mortgage Reinsurance Company

Wachovia Operational Services, LLC

Wachovia Realty Management Corporation

Wachovia Realty Management Holding Company, Inc.

Wachovia Securities International Limited

Wachovia Securities, Inc.

Wachovia SF Corporation

Waclaovia Trust Company

Wachovia Trust Services, Inc.

WAG Belair, LLC

WAG Eastern, LLC

WAG Fairview Boise, LLC

WAG Liberty/Milford Mill, LLC

WAG Reisterstown, LLC

Judy Walden

Thomas Walker

Waller House Corporation

Warder Mansion L.P.

Wasbington Apartments Associates, Limited Partnership

Water Street Insurance Agency, Inc.

C-47 of 49ATL01/I t477453v:


Waterford Manor II, L.P.

Waterford Manor, L.P.

WBP Associates

West 152 Street Associates LLC

West Brickell Apartments, Ltd.

West ttanover Urban Renewal, L.P.

Western Integrated Networks, LLC

Western Integrated Networks, LLC

WestPoint S_evens Inc.

Westville, Ltd.

WG Saginaw Lansing MI, LLC

Wheat Benefit Services, LLC

Wheat First Butcher Singer Private Equity Fund, Limited Partnership

Wheat Service & Equipment Corporation

Lewis White

Robert White

White Amber, Inc.

Whitney Hotel Limited Partnership

Vivian Wilkerson

William Byrd Hotel Associates, L.P.

Glena Williams

Williams Landing Limited Partnership

Willow Key Apartments Limited Partnership

Willow rake Partners, L.P.

Willow Ridge Apartments of Greensboro Limited Partnership

C-48 of 49

Willow RidgeAssociates

Willow TraceLimited Partnership

Willows, LLC

WMS, Inc.

WNB Corporation

Women'sGrowthCapitalFund I, L.L.L.P.

Woodlawn Joint Venture

Woodlawn Joint Venture

WSH Holdings, Ltd.

Xcelerate Corp.

Xpede, Inc.

French Yarbrough

Yorktown Arms Development Limited Partnership

Carol Zagame

Elaine Zajac

Zero Stage Capital II, L.P.


C-49 of 49

STATEMENT REGARDING ORAL ARGUMENT

Appellants believe oral argument would be of assistance to the

Court in clarifying the issues presented, and therefore

respectfully request oral argument be scheduled.

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ........ C-I

STATEMENT REGARDING ORAL ARGUMENT i

TABLE OF CONTENTS ...... ii

TABLE OF CITATIONS .............. v

STATEMENT OF JURISDICTION ......... xii

STATEMENT OF THE ISSUES ........ 1

STATEMENT OF THE CASE ................. 2

(i) Course of Proceedings and Disposition

in the District Court ....... 2

(ii) Statement of the Facts ............. 9

A. Ms. Stone's Situation at First Union .... 9

B. Similarity of Proposed Intervenors'

Situation at First Union ......... I0

C. Plaintiffs' Expert Reports ........ 13

(iii) Standard of Review .............. 22

SUMMARY OF THE ARGUMENT ........... 22

ARGUMENT AND CITATIONS OF AUTHORITY ........ 25

I. District Court Erred By Denying Intervention

As a Matter of Right 25

A. Standard for Granting Intervention ..... 25

B. Neither First Union Nor the District Court Contended

the Motion to Intervene Was Untimely 27

ii

C,

D,

E ,

F ,

Neither First Union Nor the District Court

Disputed That Ms. Stone Could Not Represent

Proposed Intervenors' Interests ......

Proposed Intervenors' Interests Relate to

Transactions That Are the Subject of This Action

Including Pattern-or-Practice Allegations,

Challenge to the Same Merger and Post-Merger

Selection Processes, and Injunctive Remedy

Disposition of Litigation Without Them May As a

Practical Matter Impair Proposed Intervenors'

Ability To Protect Their Interests ......

i. Potential Stare Decisis Effect

2. Stare Decisis and Reliance on Same

Expert Reports ..............

3. Inefficiency, Waste of Resources, Danger

Of Inconsistent Judgments, Overlapping

Injunctive Relief ..........

4. Potential Loss of Alternative Remedies

District Court Erred by Requiring Proposed

Intervenors Prove Too Much ......

i. Error to Require Conclusive Proof of a

Pattern-or-Practice of Age Discrimination

At This Stage ..........

2. Error to Require Proposed Intervenors Have

Exactly the Same Job Titles and Claims

iii

30

31

35

35

38

41

44

46

46

48

II. District Court Abused Its Discretion By Denying

Permissive Intervention

CONCLUSION ......

CERTIFICATE OF COMPLIANCEWITH RULE 32(a)

CERTIFICATE OF SERVICE

54

56

57

57

iv

TABLE OF CITATIONS

CASES

Albright v. Oliver,

510 U.S. 266, 114 S.Ct. 807 (1994)

*Alexander v. Fulton County,

207 F.3d 1303 (llth Cir. 2000)

Appleyard v. Wallace Co.,

754 F.2d 955 (llth Cir. 1985)

Armstrong v. Martin Marietta Corp.,

138 F.3d 1374 (llth Cir. 1998 ..........

Athens Lumber Co., Inc. v. Fed. Election Comm'n,

690 F.2d 1364 (llth Cir. 1982), cert. denied,

465 U.S. 1092, 104 S.Ct. 1580 (1984) .......

Atlantis Development Corp. Ltd. v. United States,

379 F.2d 818 (5th Cir. 1967) ............

Bazemore v. Friday,

478 U.S. 385, 106 S.Ct. 3000 (1986)

Benson v. Tocco, Inc.,

113 F.3d 1203 (llth Cir. 1997) ...........

Bhd. of R.R. Trainmen v. Baltimore & Ohio Prods. Corp.,

PAGE

26

50, 53

• 54

45

30

36

40

39

331 U.S. 519, 67 S.Ct. 1387 (1947)

Brennan v. N.Y.C. Board of Education,

260 F.3d 123 (2d Cir. 2001)

Brooks v. BellSouth Telecomms., Inc.,

164 F.R.D. 561 (N.D. Ala. 1995)

xiii

47

7, 46

v

Butler v. Home Depot, 1996 WL 421436 (N.D. Cal. 1996),

1996 U.S.Dist. LEXIS 3370 ...... 43

Carpenter v. Stephen F. Austin State University,

706 F.2d 608 (5th Cir. 1983) 49

_Chiles v. Thornburgh,

865 F.2d 1197 (llth Cir. 1989)

Clark v. Putnam County,

168 F.3d 458 (llt Cir. 1999)

*Cook v. Boorstin,

763 F.2d 1462 (D.C. Cir. 1985)

*Cox v. American Cast Iron Pipe Co.,

784 F.2d 1546 (llth Cir.), cert. denied,

479 U.S. 883, 107 S.Ct. 274 (1986) ...... 42, 49

Davis v. Butts,

290 F.3d 1297 (llth Cir. 2002) ........

Diaz v. Southern Drilling Corp.,

427 F.2d 1118 (5th cir.), cert. denied,

400 U.S. 878, 91 S.Ct. 118 (1970) ......... 31

EEOC v. Eastern Airlines,

736 F.2d 635 (llth Cir. 1984) ....... 44

Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 94 S.Ct. 2140 (1974) ..... 47

Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344 (6th Cir. 1998) 51

FSLIC v. Falls Chase Special Taxing Dist.,

983 F.2d 211 (llth Cir. 1993) 26

vi

27, 30, 33, 34, 36, 37

.......... 47

32, 38, 42, 49, 50

xiii, 55

FTC v. Am. Distribs. Inc.,

890 F.2d 363 (llth Cir. 1989)

Foster v. Gueory,

655 F.2d 1319 (D.C. Cir. 1981) .

General Tel. Co. v. Falcon,

457 U.S. 147, 102 S.Ct. 2364 (1982)

Georgia v. U.S. Corps of Engineers,

302 F.3d 1242 (llth Cir. 2002)

*Grayson v. K Mart Corp.,

xiii

.......... 32

48, 49, 50

........ 22, 36

54

15, 21, 37, 48, 51, 52

33, 34, 43

54

534 U.S. 1127 (2002)

Hoffman-La Roche, Inc. v. Sperlinq,

493 U.S. 165, Ii0 S.Ct. 482 (1989)

Hudson v. Delta Air Lines, Inc.,

90 F.3d 451 (llth Cir. 1996)

*Hyman v. First Union,

982 F.Supp. 1 (D.D.C. 1997)

Int'l Brotherhood of Teamsters v. U.S.,

431 U.S. 324, 97 S.Ct. 1843 (1977)

Kornberg v. Carnival Cruise Lines, Inc.,

741 F.2d 1332 (llth Cir. 1984)

vii

42, 43

45


519 U.S. 982 (1996) ..... 3, 40, 43, 47, 48, 51, 53

Hartman v. Duffey,

19 F.3d 1459 (D.C. Cir. 1994) ........... 49

Hippv. Liberty Nat'l Life Insur.,


Larkin v. Pullman-Standard Division,

854 F.2d 1549 (llth Cir. 1988), vacated on other

grounds, 493 U.S. 929 (1989) ......

Loyd v. Alabama Dep't of Corrections,

176 F.3d 1336 (llth Cir.), cert.denied,

528 U.S. 1061, 120 S.Ct. 613 (1999)

Maddow v° Proctor & Gamble Co., Inc.,

107 F.3d 846 (llth Cir. 1997)

Meek v. Metropolitan Dade County,

985 F.2d 1471 (llth Cir. 1993) .........

Mitchell v. McCorstin,

728 F.2d 1422 (llth Cir. 1984) ...........

NAACP v. New York,

413 U.S. 345, 93 S.Ct. 2591 (1973) .........

Nat'l Resources Defense Council, Inc. v. U.S. Nuclear

Regulatory Comm'n, 578 F.2d 1341

(10th Cir. 1978) .......

Nuesse v. Camp,

385 F.2d 694 (D.C. Cir. 1967)

Owens v. Bethlehem Mines Corp.,

108 F.R.D. 207 (S.D.W.Va. 1985)

Peightal v. Metropolitan Dade County,

26 F.3d 1545 (llth Cir. 1994)

Prado-Steiman v. Bush,

221 F.3d 1266 (llth Cir. 2000)

40

28

39

22, 34

26

27

33, 37

31, 32

50

39

54

viii

Purcell v. BankAtlantic Financial Corp.,


519 U.S. 867 (1996) 22, 27

Rutstein v. Avis Rent-A-Car Sys., Inc.,


532 U.S. 919 (2001) 47, 48

Sierra Club v Glickman,

82 F.3d 106 (5th Cir. 1996) ........ 36

*Stallworth v. Monsanto Co., 558 F.2d 257

(5th Cir. 1977) ...... xii, 22, 26, 28, 44, 54, 55

Stone v. First Union,

203 F.R.D. 532 (S.D. Fla. 2001) ........... 5

*Thiessen v. General Electric Capital Corp.,

267 F.3d 1095 (10th Cir. 2001), cert. denied,

536 U.S. 934, 122 S.Ct. 2614 (2002) .... 33, 43, 53

Trbovich v. United Mine Workers of America,

404 U.S. 528, 92 S.Ct. 630 (1972) ........ 30

United States v. City of Los Angeles,

288 F.3d 391 (9th Cir. 2002)

United States v. Hooker Chemicals & Plastics Corp.,

749 F.2d 968 (2d Cir. 1984)

United States v. United States Steel Corp.,

548 F.2d 1232 (5th Cir. 1977), cert. denied,

86 S.Ct. 1130 (1966)

Voilas v. General Motors Corp_,

173 F.R.D. 389 (D.N.J. 1997)

ix

35

33

27

26

Waisome v. Port Authority,

948 F.2d 1370 (2d Cir. 1991) ......

Wheeler v. Am. Home Prods. Corp.,

582 F.2d 891 (5th Cir. 1977)

Worlds v. Dep't of Health and Rehabilitative Services,

929 F.2d 591 (llth Cir. 1991)

• 39

xiii

xiii, 31, 32, 35, 44

STATUTES - Federal

28 U.S.C. § 1331

28 U.S.C. § 1367

29 U.S.C. § 216(b)

29 U.S.C. § 621

29 U.S.C. § 623(a)

29 U.S.C. § 626

29 U.S.C. § 626(b)

29 U.S.C. § 633

,.,..,...,o.4.....

,.,,,.•.,..o.....

....,......o..,...

.......... xii

................ xii

.......... 4, 26, 30, 31, 55

2

35

xii

..... 4, 31, 55

.............. xii

STATUTES - State

Fla. Stat. § 760.10

RULES OF COURT

Fed. R.Civ. P. 23

Fed.R.Civ. P. 23(f)

Fed.R.Civ. P. 24

Fed.R.Civ. P. 24(a)

........•

•..,..

48, 54

5

25, 33

xiii, 36, 54

Fed.R.Civ. P. 24(a)(i

Fed.R.Civ. P

Fed.R.Civ. P

Fed. R.Civ. P

Fed.R.Civ. P

Fed.R.Civ. P

Fed.R.Civ. P

24(a)(2

24(b)

24(b)(I

24(b)(2

30(b)(6

37

.,..,_......

........,.,,,..

26

xii, 6, 26, 27, 31, 46

xiii, 55

xii, 6, 55

xii, 6, 55

17

8, 41

CODE OF FEDERAL REGULATIONS

29 C.F.R. § 1602.14(a)

29 C.F.R. § 1627.3

............. 8, 41

............ 8, 41

OTHER

Manual for Complex Litigation, Third (Annotated)

§ 33.54, p. 442 ................ 43

xi

STATEMENT OF JURISDICTION

The district court had subject matter jurisdiction pursuant to

29 U.S.C. §§ 626, 633 (Age Discrimination in Employment Act), 28

U.S.C. § 1331 (federal question), and §1367 (pendent jurisdiction).

The district court denied Opt-in Plaintiffs' Motion to Intervene in

Omnibus Order dated May 23, 2003, entered May 29, 2003. D.E. 1272.

The Notice of Appeal was filed June 13, 2003. D.E. 1273.

On July 14, 2003, the Court posed the following question about

jurisdiction:

Whether the district court's May 28, 2003, order

denying the opt-in plaintiffs' motion to intervene

is an appealable final order? (Citations omitted).

Opt-in Plaintiffs responded July 21, 2003. In essence:

The district court granted Defendants' Motion to Decertify the

Class in September 2001. D.E. 957. On December 23, 2002, Opt-in

Plaintiffs affected by decertification filed a Motion to Intervene

both as a matter of right under Fed. R.Civ. P. 24(a)(2), and in the

alternative, as a matter of discretion under Fed. R.Civ. P. 24(b)(I)

and (2). D.E. 1207. The district court denied the motion to

intervene as a matter of right under Fed.R.Civ. P. 24(a)(2), and

denied intervention as a matter of discretion under both 24(b)(I)

and (2). D.E. 1276, pp. 30-35.

Since this involves an appeal of the denial of a motion to

intervene as a matter of right, the Court has jurisdiction pursuant

to the "anomalous jurisdiction rule" in the Eleventh Circuit. Set

Stallworth v. Monsanto Co., 358 F.2d 257, 263 (5th Cir. 1977)

(under this Circuit's "anomalous rule" governing appealability of

xii

orders denying intervention, we have provisional jurisdiction to

determine whether the district court erroneously concluded

applicant was not entitled to intervention as a matter of right

under Fed.R.Civ. P. 24(a), or clearly abused its discretion in

denying the application for permissive intervention under 24(b));

Worlds v. Department of Health and Rehabilitative Services, 929

F.2d 591, 592 (llth Cir. 1991) (jurisdiction under "anomalous rule"

to determine whether denial of motion to intervene was proper);

Davis v. Butts, 290 F.3d 1297, 1299 (llth Cir. 2002) ('court has

jurisdiction to determine whether the denial of intervention [is]

proper. If the district court was correct in denying the motion to

intervene, this court's jurisdiction evaporates and we must dismiss

the appeal for want of jurisdiction. If the district court erred,

we retain jurisdiction and must reverse.') (quoting F.T.C.v. Am.

Legal Distribs., Inc., 890 F.2d 363, 364 (llth Cir. 1989)).

Similarly, the Court in Bhd. of R.R. Trainmen v. Baltimore &

Ohio Prods. Corp., 331 U.S. 519, 524, 67 S.Ct. 1387, 1389-90

(1947), held that "where a statute or the practical necessities

grant the applicant an absolute right to intervene, the order

denying intervention becomes appealable"

Likewise, the Court in Wheeler v. Am. Home Prods. Corp., 582

F.2d 891, 896 (5th Cir. 1977), noted the "established rule" that an

order denying intervention as a matter of right is appealable.

xiii

STATEMENT OF THE ISSUES

Whether the district court erred after decertifying the age

discrimination collective action, by also denying the Motion to

Intervene filed by 160 persons who had "opted-in", where:

• they have an interest in the subject of this litigation

because all allege a pattern-or-practice of age discrimination by

First Union when it acquired banking institutions in Florida

between August 1991 and May 1994, that its violations were willful;

and all plan to rely on the same legal theories, evidence, expert

reports, and witnesses to prove it;

• they have an interest in transactions that are the

subject of this litigation because all challenge the same merger

and post-merger selection/displacement processes to which they were

all subjected and harmed as employees acquired during First Union's

takeovers in Florida, and each merger selection/displacement

decision was reviewed and approved by a single First Union

executive who also established and enforced the criteria;

• 98.8% of them allege termination, or demotion, or

termination plus demotion, as an adverse employment action;

• their interests would be impaired by potential stare

decisis effects, conflicting or overlapping injunctive relief,

inconsistent judgments, and possible loss of any remedy, if the

pending action is disposed of without them; and prosecuting 161

separate actions rather than one, would result in a colossal and

prohibitive escalation of costs and time;

• by statute, the named-Plaintiff cannot represent them.

STATEMENT OF THE CASE

(i) Course of Proceedings and Disposition in District Court

A collective action age discrimination Complaint against First

Union was filed September 23, 19941 by Arlene Stone on behalf of

herself and other similarly situated employees who were also

acquired by First Union in Florida. D.E.I. Compensatory damages,

liquidated and punitive damages, and injunctive relief are sought

for willful violations of the ADEA, 29 U.S.C. § 621 et seq., and

Fla. Stat. § 760.10. A jury trial is requested. First Union

answered the Complaint on January 31, 1995. D.E. 10.

In addition to individual claims by Ms. Stone, the Complaint

included a collective action count alleging a pattern-or-practice

of age discrimination by First Union when it acquired banks in

Florida. The Complaint challenged the merger and "post-merger"

selection processes that resulted in the various adverse employment

actions inflicted on Ms. Stone. D.E. i.

On June i, 1995, Ms. Stone filed a Motion for Leave to

Distribute Notification of Opt-in Rights to similarly situated

employees who were also acquired by First union in Florida. D.E.

20, 69. Magistrate Judge Bandstra granted the motion in December

1995. D.E. 80. The decision was appealed by First Union and

distribution of the notices was stayed at First Union's request.

D.E. 84, 86, 89 (granting stay).

The order granting Plaintiff's motion to distribute opt-in

I By leave of the district court, the Complaint was amended

May 2003 to add Wachovia Corp. as a defendant after it merged with

First Union. D.E. 1276, p. 29.

2

notices was affirmed in October 1998. 2 D.E. 127. The district court

approved Plaintiff's proffered notice, and determined the proper

"opt-in period" was February 4, 2002 to June 30, 1994, 3 thus

encompassing ten banking institutions acquired by First Union in

Florida during that time period. D.E. 127, p. 9, 129, 135.

The district court held that under the single-filing rule,

Opt-in Plaintiffs would be permitted to "piggy-back" onto Ms.

Stone's timely filed EEOC Charge because both the EEOC and First

Union were well-aware during the pendency of Ms. Stone's Charge

that more than an "isolated incident" of age discrimination was at

issue, and were well-aware that First Union was "already under

scrutiny due to other allegations of age discrimination during the

same time period". It further held that by making substantial

allegations and providing "adequate evidentiary support of

age-motivated actions", Ms. Stone met her burden under Grayson, 79

F.3d 1086 (llth Cir. 1996), "of demonstrating a 'reasonable basis'

for her claim of class-wide discrimination." D.E. 127, pp. 5-8.

First Union filed for reconsideration and to certify the

decision for interlocutory appeal. The request was denied. DE 130,

131, 135.

2 Permission to distribute opt-in notices was not affirmed

until October 1998 because this case was assigned to a succession

of district judges in the interim. See D.E. 103, 107, 108.

3 Acquired employees claiming an adverse action within that

period could opt-in to the pending lawsuit. The February 4, 1992

date was established because it was 300 days prior to the filing of

Ms. Stone's EEOC Charge (November 30, 1992), and the June 30, 1994

date was chosen by the court because it coincided with completion

of the EEOC investigation of Ms. Stone's Charge. DE 127, p. 9.

By April 1999, the deadline established by the district court,

a total of 1604 acquired employees opted-in to the action by filing

written consents with the court pursuant to the collective action

provisions of 29 U.S.C. § 216(b), incorporated into the ADEA by 29

U.S.C. § 626(b). D.E. 148-337, 342, 365-367. Each Consent form

included the Opt-in Plaintiff's date of birth, predecessor bank,

and the adverse employment action he or she was claiming. I__dd.

By June 2000, First Union had deposed all 160 Opt-in

Plaintiffs (D.E. 536-697),Sand all Opt-in Plaintiffs had responded

to written discovery requests. The majority of Opt-in Plaintiffs

also propounded individual discovery requests (in addition to the

class discovery requests), and representative Opt-in Plaintiffs

filed motions to compel discovery. D.E. 740-755 r 768-782.

When First Union objected to providing reasons for termination

other than those identified in its Termination Report for each Opt-

in Plaintiff, the district court ordered that First Union would be

limited to the reasons stated in them: "Defendants will be limited

to the reasons provided in its responses ["computerized code

indicating reason for termination"] .."; "Defendants will be

bound by their responses [computerized codes] with respect to the

reasons given for termination"). D.E. 502, p. 4. Thus, as

indicated in the Termination Reports, First Union could assert only

one reason for termination with respect to almost all Opt-in

4 This is the number of Opt-in Plaintiffs who are presently

part of this action. The total who initially opted-in was in

excess of 180, but some later withdrew.

5 A few were deposed after this date for health reasons.

Plaintiffs, and Ms. Stone herself: involuntary layoff due to the

acquisition. D.E. 947, 948, 950 (Termination Reports).

Characterizing the initial Orders granting leave to distribute

notices to those similarly situated, as merely a "conditional

certification" of an ADEA class, the district court granted First

Union's February 2001 Motion to Decertify the Class (D.E. 699) on

September 4, 2001 (D.E. 957), after oral argument on August 9, 2001

(D.E. 936). (Reported at Stone v First Union, 203 F.R.D. 532 (S.D.

Fla. 2001). The district court emphasized that decertification was

appropriate because Plaintiffs had not submitted expert reports (DE

957, pp. 26, n. 15, 39, 40, 44), and had failed to prove a pattern-

or-practice of age discrimination. DE 957, pp. 28, 36, 39, 45, 46,

50, 51). Other grounds cited were that there were too many claims

and job titles involved.

On February Ii, 2002, Plaintiffs' Motion to Reconsider

decertification (D.E. 970, 972-976, 994) was denied -- the district

court also striking, as untimely, Plaintiffs' experts' affidavits

supporting reconsideration, ordering Plaintiffs not to file for

certification of its order for interlocutory review, granting

Plaintiffs' motion to extend the deadline for their expert reports,

and ordering both parties never file a motion or petition for

reconsideration on any matter either with the magistrate or the

district judge. DE 1053, p. i; pp. 18-20 ¶¶ 8, 9, I0.

Consequently, pursuant to Fed.R.Civ.P. 23(f), all Plaintiffs

filed a Petition for Permission to Appeal with this Court within

ten days of the decertification, llth Cir. Case No. 02-90009-I.

Permission was denied May i, 2002.

The district court thereafter granted Plaintiffs' February

2002 motion seeking permission to later file a motion to intervene

(D.E. 1058, 1066), and granted Plaintiffs' motion to amend orders

to stay all decertification provisions pending resolution of

motions to be filed at a later date. D.E. 1070 (motion); 1161

(granting stay, nunc pro tunc); 1276 (extending stay to September

30, 2003).

After the September 4, 2001 Order, over 130 Opt-in Plaintiffs

filed individual charges of age discrimination against First Union

with the EEOC and received right-to-sue letters. 6 DE 1189.

After the denial of reconsideration of decertification and

after motions to compel and disposition of First union's appeals of

orders granting them, discovery responses including more than

i00,000 pages of documents were eventually produced in March 2002

so Plaintiffs' expert reports could be completed.

Armed with this additional support, and pursuant to permission

granted by the district court in its February 2002 Order, Opt-in

Plaintiffs filed their Motion to Intervene 7 in the pending age

discrimination lawsuit, both as a matter of right under Fed.R.

Civ. P. 24 (a)(2), and in the alternative, as a matter of discretion

under 24(b)(i) and (2). D.E. 1207. Named-Plaintiff, Ms. Stone, did

not object to intervention by the 160 Opt-in Plaintiffs. Id., p.

6 The remaining Opt-in Plaintiffs are eligible to piggy-back

on EEOC charges that have been filed.

7 The motion included a Complaint in Intervention (Exh. I).

3, ¶ 8. In addition, Ms. Stone filed to Amend the Complaint to add

the Opt-in Plaintiffs as named Plaintiffs. D.E. 1198. 8

On May 20, 2003 a hearing was held on a number of motions,

including Ms. Stone's Motion to Amend, and Opt-in Plaintiffs'

Motion to Intervene. On May 23, 2003, the district court denied

both motions in Omnibus Order entered May 29, 2003. 9 DE 1272/1276.

Again the district emphasized that Plaintiffs had failed to prove

a pattern-or-practice of age discrimination, and that its experts

reports were not probative. DE 1276, p. 25 ("most significant

factor precluding collective action in this matter is Plaintiffs'

failure to sufficiently establish pattern or practice evidence of

class-wide discrimination"); pp. 25-26 (Plaintiffs failed to prove

they were victims of "a single decision, policy, or plan infected

by discrimination", citing Brooks, 164 F.R.D. 561, 566 (N.D.AIa.

1995); p. 27 ("Plaintiffs have not sufficiently established that

age discrimination towards the employees of acquired institutions

was the standard operating procedure of FUNB"); p. 29 (Plaintiffs

failed to show sufficient evidence of a pattern or practice of age

discrimination to which they were all subjected).

The Omnibus Order also denied Plaintiffs' appeals (D.E. 1051,

8 Plaintiffs had also filed a motion to designate Opt-in

Plaintiffs as named-Plaintiffs after they filed their own EEOC

Charges. DE 1081. The motion was denied, the district court

finding the proper procedure was to file for intervention. DE 1187.

9 The motion to amend was granted only with respect to adding

Wachovia Corp. as a defendant after the merger with First Union.

A "corrected" Omnibus Order was filed July i, 2003 which changed

what was characterized as "typographical" errors. D.E. 1276. It is

DE 1276 that is included in the Record Excerpts and cited here.

1112, 1178, 1248) of the magistrate's partial denial I0 of

Plaintiffs' February 2001 Motion for Sanctions for Discovery Abuses

(D.E. 703, 721, 762, 894, 980), including First Union's destruction

of relevant employment records both before and after it was served

with the EEOC Charge and this lawsuit, in violation of 29 C.F.R.

§1602.14(a) and § 1627.3, Fed. R.Civ. P. 37, and common law

obligations. 11D.E. 1276, pp. 48-50.

It is from the denial of the Motion to Intervene, that Opt-in

Plaintiffs and Ms. Stone now appeal. Notice was filed June 13,

2003, D.E. 1273.

On June 27, 2003, Proposed Intervenors filed a Motion to

Correct the Record for purposes of Appeal. DE 1274. They sought to

file the Final version of expert Dennis' July 5, 2002 report with

which First Union had been served, and upon which First Union and

Plaintiffs relied and quoted in their briefs on Opt-in Plaintiffs'

Motion to Intervene. 12 The motion was denied. D.E. 1277. A motion

to correct the record is currently pending with this Court.

Jury trial of Ms. Stone's individual case is scheduled for

October 20, 2003. D.E. 1270. On July 3, 2003, Plaintiffs filed a

Motion with the district court to Stay Trial Pending Appeal. D.E.

I0 The magistrate imposed monetary sanctions against First

Union for sham production of thousands of pages of documents, and

this was affirmed by the district judge.

11 The magistrate acknowledged First Union admitted it

destroyed such documents both before and after it was served. D.E.

1242, pp. 9-10.

12 A June 26, 2002 draft version of the report had

inadvertently been filed, but only the Final version was served.

1279. The motion was denied July i0, 2003. D.E. 1281. A Motion

to Stay Trial was filed with this Court and is still pending.

(ii) Statement of the Facts

A. Ms. Stone's Situation at First Union

At age sixty, Ms. Stone had thirty years banking experience,

including twenty years with Southeast Bank (SEB). Along with more

than 6,000 others, she was acquired by First Union September 19,

1991 when First Union acquired SEB. Ms. Stone was a branch manager

and vice president when she was acquired. (Facts uncontested).

During First Union's merger and then "post-merger" selection

processes, 13 Ms. Stone was demoted to assistant branch manager --

a position she was later told was scheduled for elimination,

transferred to a series of locations and positions, applied and was

interviewed for various open positions within First union but never

hired, denied training that she maintains was given to younger

workers, subjected to an attempted disciplinary action that was

withdrawn for failure to follow procedure, and terminated on

October 30, 1992 (slightly more than a year after the merger, and

right after the formal "conversion" of SEB to First Union). The

official reason given on her First Union Termination Report was

layoff due to the merger. (These facts are not disputed and were

13 The initial process by which acquired employees were

designated as immediately terminated, or assigned a job end date

(usually six months to a year after acquisition, when the actual

"conversion" to First Union took place), or "placed" (even if into

a demoted position), was termed the "merger selection" process by

First Union. The process during which acquired employees actively

sought positions within First Union prior to their end date, or

sought "promotion" back to the position from which they had been

demoted, was the "non-merger" or "post-merger" selection process.

included in Ms. Stone's and First Union's filings with the EEOC).

Ms. Stone filed a Charge of Discrimination and Affidavit with

the EEOC and the Florida Commission on Human Relations on November

30, 1992. First Union responded in part, that there was no evidence

of a pattern or practice of age discrimination when it acquired

SEB. Although it found that after acquisition by First Union, those

forty and older were four times more likely to have been demoted

than those younger than forty, in June 1994 the EEOC issued a "No

Cause" determination and Right-to-Sue letter. (Facts not disputed).

A collective action age discrimination Complaint against First

Union was filed September 23, 1994 by Ms. Stone on behalf of

herself and other former and present similarly situated employees.

D.E. i. The Complaint challenged the merger and "post-merger"

selectiondisplacement processes that resulted in the various

adverse employment actions inflicted on Ms. Stone, and alleged a

pattern and practice of age discrimination by First Union when it

acquired banking institutions in the State of Florida.

B. Similarity of Proposed Intervenors' Situation at First Union

Those who opted-in to Ms. Stone's lawsuit, and who now seek to

intervene because the collective action was decertified, are

described as follows14:

• As is Ms. Stone, 100% claim a pattern-or-practice of age

14 Information is compiled from the Chart (which First Union

did not dispute) attached to the Motion to Intervene. DE 1207, Exh.

2. The Chart was compiled from filed EEOC Charges (D.E. 1189),

First Union Termination Reports (D.E. 947, 948, 950), and Opt-in

Plaintiffs" Consent forms filed with the court, D.E. 148-337, 342,

365-367. See also Exh. 1 (Complaint in Intervention) to D.E. 1207.

i0

discrimination by First Union during its acquisition of banking

institutions in Florida between August 1991 and May 1994, and that

its violations were willful; 100% are relying on the same five

expert reports showing standard deviations far in excess of that

required in this Circuit for a finding of age discrimination, and

showing large disparities between those over and under forty in

almost all terms and conditions of employment after acquisition by

First Union; all will rely on the same legal theories, evidence and

witnesses in the liability phase of a pattern-or-practice trial.

• As was Ms. Stone, 100% were acquired by First Union and

subjected to -- and now challenge -- the same merger selection/

displacement process. The process was devised, implemented, and

enforced by a single First Union Human Resources officer who

reviewed -- with authority to override -- every individual merger

selection/displacement decision regardless of the acquired

employee's job title, location, FLSA status, and regardless of the

type of acquisition or bank acquired. The mandated procedure and

criteria left no room for discretion by the local decision maker.

DE 702 (Affidavit of Ms. Huber supporting Motion to Decertify), ¶¶

5, 7, 8, 9; DE 737, Exh. 815 (Huber (I), pp. 26-27, 32, 33, 40).

• 100% claim at least one adverse employment action that is

the same as that claimed by Ms. Stone.

• 98.8% are claiming termination, or demotion, or

termination plus demotion, as an adverse employment action imposed

15 Excerpts of deposition transcripts cited in this Brief are

included with sealed documents, D.E. 737, filed in support of

Plaintiffs' Response to Motion to Decertify, D.E. 736.

ii

by First Union after they were acquired. (Ms. Stone claims both).

• 93.2% of Plaintiffs were acquired during the same six-

month period; 88.2% were acquired during the same month; 73.3% were

acquired the same day as Ms. Stone.

• 81% of those claiming termination were terminated within

ten months of Ms. Stone's termination, including almost 10% who

were terminated the same month as Ms. Stone.

• Although the opt-in period the district judge established

encompassed ten acquisitions, 94% of Plaintiffs were acquired from

four banking institutions; 90.1% were from three acquisitions; and

73.3% were acquired from Southeast Bank, as was Ms. Stone.

• As acquired employees, 100% of Plaintiffs were treated

differently and less favorably with respect to placement, than were

the substantially younger class of existing First Union employees

who were shielded from displacement. This included a First Union

policy that existing First Union employees be retained even if an

acquired employee was better qualified (D.E. 737, Exh. 9, Huber II

pp. 31-32; Exh. 12, Miyares I, p. 81); and a college recruiting

program -- which operated and expanded during the mergers in

Florida -- that First Union admitted denied equal access to those

forty and older. D.E. 737, Exh. ii, McFayden pp. 70-71, 77; Exh.

18 at FU-336723, 336725, 336739, 336741.

• 94.4% of Plaintiffs went through and now challenge the

very same entirely subjective "post-merger" selection/displacement

process that applied regardless of job title, location, FLSA

status, predecessor institution, or type of acquisition.

12

• Almost 85% filed EEOC Charges during the pendency of the

lawsuit and received Right-to-Sue letters. D.E. 1189.

• 63% of Plaintiffs held the related positions of branch

manager, assistant branch manager, branch service manager, customer

service representative, or teller/teller supervisor. 16 These were

positions held or sought by Ms. Stone as she attempted to find a

permanent position with First Union after she was acquired. We can

infer from their job titles, that nearly all remaining Plaintiffs

would have qualified for these positions with little or no

training. D.E. 1200 (sealed), Exh. B.I, B-2 to Janulaitis report.

• It is undisputed that all Opt-in Plaintiffs were deposed

by First Union (D.E. 536-697), responded to written discovery

requests, and that many propounded individual discovery requests,

in addition to the class requests.

C. Plaintiffs' Expert Reports Iz

Plaintiffs submitted reports by six experts in support of

their Motion to Amend and Motion to Intervene. Two experts

reported on the failure of First Union's merger and post-merger

16 These are interrelated and almost interchangeable positions

according to First Union. See DE 807, Response to Plaintiffs'

Motion to Compel Responses; DE 947, Exh. 2 to Plaintiffs' August

1991 Supplement to Oral Argument on Motion to Decertify; and First

Union head of Recruiting and Staffing testimony that job titles are

not meaningful. DE 737, Exh. 13, Miyares II, pp. 21-26.

17 Plaintiffs' expert reports may be found at D.E. 1200

(sealed). Ms. Stone and the Proposed Intervenors also submitted

anecdotal evidence of age discrimination by way of testimony by

Plaintiffs and Defendants, and documents including First union's

own "displacement reports" showing, for example, the Southeast Bank

workforce forty and older at 39%, but displaced at a rate of 66%.

See D.E. 1207, Motion to Intervene pp. 54-69.

13

selection/displacement processes and how this contributed to an

atmosphere that was a breeding ground for age discrimination.

First Union's expert did not dispute these two experts:

• Dr. Lundquist examined First Union's selection/displacement

processes and concluded the process for making merger selection

decisions was "ill-conceived, inconsistently applied and lacking in

validity", and that

This method of making selection decisions was

flawed, without appropriate standardization or

sufficient controls, thus opening up the

decisionmaking process to non job-related factors,

including bias against older individuals.

Lundquist 12, 27.

Dr. Lundquist also found that since First Union employees were

not subject to the merger selection process when an acquisition

took place and were therefore retained even if an acquired employee

was more qualified, this "served to perpetuate a younger workforce,

independent of job related bases for the retention decisions."

Lundquist 13-14. Indeed, the average age of First Union's Florida

workforce was substantially younger than the acquired banks"

workforce. See Dr. Drogin pp. 8-9.

As a result, according to Dr. Lundquist:

It is likely that better performing individuals in

the acquired institutions were passed over because

employees at First Union were retained regardless

of their performance.

Lundquist 14.

Another failure of the First Union processes cited by Dr.

Lundquist was the fact that First Union ignored its own reports

showing older acquired employees were being disproportionately

14

displaced -- a warning sign of possible age discrimination.

Lundquist 23-25, 28. Dr. Lundquist also strongly criticized First

Union's destruction of documents in this case. Lundquist 6-8, 23.

• Ms. Dennis. An expert in age stereotyping, Ms. Dennis

explained, "'discrimination against older people is more ingrained

in American minds than racism or sexism." Dennis at 9, quoting

advisor to former-President Carter. Ms. Dennis further explained

that stereotyping older workers as "less flexible, less adaptable

and non-aggressive" is often reverted to in ambiguous situations,

as a mechanism to reduce the dissonance or discord

that decision makers may feel between the pressure

to make cost-cutting decisions and eliminating

older workers through downsizing.

Dennis 10, 16, 18.

Reviewing the evidence in this case, Ms. Dennis found

conditions leading to age stereotyping existed at First Union

during the mergers at issue here:

• "Conditions existed [at First Union] that were breeding

grounds for age stereotyping";

• "Decisionmakers [from the president to branch managers]

expressed little awareness, knowledge or concern about age-related

stereotypes" and ignored their own reports showing disproportionate

displacement of older workers;

• "The First Union culture valued characteristics often

associated with young as opposed to older workers" (sales ability,

aggressiveness, high energy, and self-starter) as evidenced at a

statistically significant level in Hyman v. First Union, (May 1994

age discrimination lawsuit with 229 plaintiffs). Dennis 5-6, 18-28.

15

Four of Plaintiffs' experts reported on the statistical

disparities in terms and conditions of employment after acquisition

by First Union, between those forty and older compared to those

younger than forty. For example:

• Dr. Drogin. The conclusion reached by Dr. Drogin was:

[O]ider employees [of banking institutions acquired

by First Union] were disproportionately terminated

.... The Z-values for these analyses ranged from

3.16 to 18.1 standard deviations, which correspond

to probabilities of less than one chance in 500 and

less than 1 chance in I0 to the 50th power.

Disparities as large as those observed in this case

are practically impossible to occur by randomfluctuation.

Drogin p. 9. (Emphasis added). Dr. Drogin's findings included:

Controlling for acquired bank and salary and comparing those

forty and older to those younger than forty, there was a 10.14

standard deviation disparity in the age of acquired employees

involuntarily terminated compared to those who remained active;

comparing those fifty and older to those younger, there was an

11.33 standard deviation disparity in age of acquired employees

involuntarily terminated compared to those who remained active.

Thus, older workers were more likely to be involuntarily terminated

than younger workers among those who worked for the same acquired

bank and who had similar salaries. Drogin p. 7, Table 6.

Controlling for acquired bank and job family and comparing

those forty and older to those younger than forty, there was a 3.64

standard deviation disparity in the age of acquired employees

involuntarily terminated compared to those who remained active;

comparing those fifty and older to those younger than fifty, there

16

was a 4.83 standard deviation disparity in the age of acquired

employees involuntarily terminated compared to those who remained

active. Drogin p. 6, Table 5.

• Drs. Bernardin and Villanova found large disparities in most

terms and conditions of employment after acquisition by First Union

and concluded, "These results support plaintiffs' allegations of

age discrimination in termination decisions", and "do not support

the validity of the processes claimed by FUNB representatives to be

used in decisions to retain or terminate employees from the

acquired institutions." Bernardin 28.

Using logistic regression, Drs. Bernardin and Villanova tested

Ms. Huber's 18 testimony and documentary evidence that selection

decisions about acquired employees were strictly based upon the

last numerical performance rating at the acquired bank, with

seniority used as a tie-breaker (service-performance model). Their

conclusion was that the ADEA discrimination model, rather than the

service-performance model, was the best predictor, and the "single

best explanation" for involuntary terminations. Bernardin 64-67.

Their analyses found 19% of workers younger than 40 were

involuntary layoffs, 25.6 % of those 40-49 were involuntary

layoffs, 28.4 % of those 50-59 were involuntary layoffs, and 35.1%

of workers over 60 were involuntary layoffs. This equated to 2.998

standard deviations for the group 40-49; 3.768 standard deviations

18 Ms. Huber is First Union's Human Resources V.P., its "legal

liaison", its 30(b)(6) representative here, and was the person

responsible for designing and enforcing its merger selection/

displacement procedures, and reviewing every merger selection/

displacement decision for compliance with her criteria.

17

for the 50-59 age group; and 5.261 standard deviations (p< .0001)

for the age 60 and over group. These numbers are even more

significant because they reflect a statistically significant linear

trend in increasing proportion, meaning rates of involuntary

termination increase with each older age grouping. Bernardin p. 6.

The relationship between employee age and involuntary

termination for all First Union employees was also examined:

The proportion of involuntary terminations

constituting each employee age group reflected a

statistically significant monotonically increasing

trend as a function of employee age group

membership (p< .000) [so that] the rate of

involuntary layoff among employees 60 years of age

and above (42.2%) was almost four times that

experienced by employees under 30 years of age

(11.9%).

(Emphasis in original). In 1993, the rate of involuntary lay-offs

among employees 60 years and older was over six times that of

employees under the age of 30. Bernardin 60. In sum, "the odds of

experiencing a lay-off are without exception, within any given

year, higher if an employee was a member of any age group other

than under 40 years of age. Bernardin p. 8 (emphasis in original).

Analyzing FLSA exempt positions, they found a "statistically

significant relationship (p <.001) between age and retention." The

effects were dramatic when focused on particular age groups: 68% of

those 60 or older and 56% of those 50 and older were involuntarily

terminated, compared to 37% of exempt workers 18 to 29 who were

involuntarily terminated. Bernardin pp. 11-12.

When focusing on FLSA non-exempt positions, "a statistically

significant relationship (p< .001) between age and retention" was

18

also found. Again, the effect was more dramatic (and statistically

significant, p < .0001) when focusing on particular age categories:

63.3% of those 60 years old and older were involuntarily terminated

while only 37.1% of non-exempt workers between 18 and 29 were

involuntarily terminated. Bernardin 12.

Statistically significant results were also obtained when

analysis focused on managerial positions determined by the position

held at the acquired bank: 42% of those 50 and older from

managerial positions were involuntarily terminated, compared to

only 14.3% of those 18 to 29. Bernardin 13.

Among tellers, the difference in treatment was "highly

significant (p < .001)", and showed a "monotonic linear trend"

between age groups and rate of involuntary termination: 35.2% of

tellers in the 60 and older age group, compared to only 9.4% of

those in the 20 to 29 age group. Bernardin 14-15.

With respect to promotions, from 1992 to 1993 the rate of

promotion was almost three times as high for those under 40 years

of age as for those over age 40; from 1993 to 1994, the rate of

promotion was nearly double for those under 40. Bernardin 34, 36.

Analyzing First Union's Consumer Associate Program, the

conclusion was:

During the same period of time that FUNB was

promoting these [new and inexperienced college

students from the program, who ranged in age from

21 to 24] to managerial positions along the Branch

Manager career path, FUNB was terminating numerous

experienced [and over 40 years of age] personnel

who had been Consumer Bankers, Assistant Branch

Managers, Branch Sales Managers, and Branch

Managers.

19

Bernardin 38-40 (noting this occurred throughout Florida, and was

the case even though 65.7% of those terminated received performance

appraisal ratings of 'consistently meets expectations' or higher,

just prior to termination. 19

Analysis of performance appraisal data for former SEB (the

largest acquisition) employees, revealed that while there was no

difference between ADEA and non-ADEA employees on p_re-acquisition

appraisals, "all post-acquisition appraisals demonstrated

statistically significant differences between ADEA and non-ADEA

employees." Bernardin 40 - 46, 48.

Regarding pay rates, analysis revealed that after acquisition,

"ADEA employees experienced significantly lower rates of pay

increases" in contrast to the higher rate of pay increase they

experienced prior to acquisition; employees under the age of 30

experienced a three-fold multiple of percentage income growth

compared to employees 60 years old and older; management employees

under 30 received a ten-fold percentage increase in pay compared to

those over 60. Bernardin 49-52. Further, analysis of the entire

First Union workforce population revealed "ADEA employees received

on average, just 65% of the raise given to non-ADEA employees in

1993 and less than 70% of the raise given to non-ADEA employees in

1994." This observation held true for management employees,

19 The district court previously held, "recruiting efforts

aimed at younger workers at the same time that older workers are

terminated is probative of age discrimination." D.E. 501, October

25, 2000 Omnibus Discovery Order Re Specific Items, p. ii. First

Union admitted its college recruiting program denied equal access

to older workers. See D.E. 737, Exh. Ii, MS. McFayden, high-ranking

HR executive in Charlotte and Jacksonville, at pp. 70-71, 77.

20

tellers, and all First Union employees. Bernardin 53, 56-57.

• Mr. Janulaitis. Mr. Janulaitis assigned Plaintiffs to job

families 2° and then identified other employees in the First union

electronic payroll database who belonged to the same job families.

These job family assignments were also used by Dr. Drogin.

Mr. Janulaitis concluded that "older employees had a

significantly greater chance than younger employees to end their

employment with First Union by being involuntarily terminated" and

that the average age of First Union's Florida workforce was

significantly younger than the Florida non-agriculture labor force

during the relevant time period. Janulaitis 16 (Graphs).

The Tables and Graphs included in the Report show that within

job families, those over 40 years of age were involuntarily

terminated at higher rates than those younger than 40.

First Union's expert, Dr. Haworth, primarily criticized

Plaintiffs' statistical experts for not controlling for

responsibility center, and performing analysis on an aggregated

basis rather than at the individual decision level. D.E. 1243.

During her later depositions, however, she basically conceded

Plaintiffs' experts' analysis may have been appropriate here. D.E.

1263 (Plaintiffs' Supplement to Motion to Intervene); D.E. 1266

Haworth pp. 59-60 (conceding if decisions were not made at

responsibility centers, but by Ms. Huber in a central location (as

2o The term "job family" is defined at p. 5; Exh. B.I lists the

job family assigned to each Plaintiff. Mr. Janulaitis assigned the

229 plaintiffs in Hyman v. First Union to ii job families, and the

court allowed the case to proceed as a collective action.

21

asserted by Plaintiffs), then analysis would be proper at the Huber

level; D.E. 1267 Haworth p. 183 (admitting aggregated analysis

appropriate if "the decision process was not made at the micro

level, but rather was a decision made across the board.").

(iii) Standard of Review

Except as to timeliness, review of denial of a motion to

intervene as a matter of right is de novo. Georgia v. United

States Corps of Engineers, 302 F.3d 1242, 1249 (llth Cir. 2002),

citing Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (llth

Cir.), cert. denied, 519 U.S. 867 (1996). Subsidiary factual

findings are subject to review for clear error. Id., citing Meek

v. Metropolitan Dade County, 985 F.2d 1471, 1477 (llth Cir. 1993).

Whether an application for intervention is timely, is within

the discretion of the district court and will not be overturned on

appeal except for abuse of discretion. Stallworth v. Monsanto Co.,

558 F.2d 257, 263 (5th Cir. 1977).

SUMMARY OF THE ARGUMENT

An age discrimination in employment lawsuit was brought by Ms.

Stone on her own behalf and those similarly situated. After they

received court-authorized notification of their right to "opt-in"

to the pending lawsuit, 160 persons who had also been acquired by

First Union in Florida, and who satisfied all criteria established

by the district court, filed their written Consents to join. For

three years, they all actively participated in the litigation.

When the district court later "decertified" the collective

action, the Opt-in Plaintiffs filed their Motion to Intervene, and

22

included five expert reports that, because of pending discovery

issues, were not available when responding to First Union's Motion

to Decertify. The district court erred when it denied them

intervention in Ms. Stone's case.

If four elements for intervention as a matter of right are

met, intervention must be permitted. There is no dispute with

respect to two of these elements: neither First Union nor the

district court contended the Motion to Intervene was untimely; and

neither disputed the fact that by statute, Ms. Stone cannot

represent the Proposed Intervenors' interests in the pending

litigation. The other two elements -- interest in the litigation

and possible impairment of that interest if they are not allowed to

intervene -- are met here.

Proposed Intervenors have an enormous interest in the very

transactions that are the subject of Ms. Stone's pending lawsuit.

First, as is Ms. Stone, they are all making the same

allegation of a pattern-or-practice of age discrimination by First

Union when it acquired banking institutions in Florida between

August 1991 and May 1994, and that its violations were willful. As

such, denying them intervention deprives Ms. Stone and the Proposed

Intervenors the opportunity for the substantial advantage of a

Teamsters burden-shifting pattern-or-practice trial.

Second, as is Ms. Stone, all challenge the same merger and

post-merger selection/displacement processes to which they were all

subjected as employees acquired during First Union's takeovers in

Florida, and by which they were all harmed. The merger selection

23

criteria was mandatory, and designed, implemented, and enforced by

the same First Union Human Resources official who personally

reviewed every merger selection/displacement decision for

compliance with her criteria -- regardless of the acquired

employee's job title, location, type of merger, or the banking

institution that was acquired. As designed by First Union, the

_ost-merger selection process was entirely subjective.

Third, as does Ms. Stone, they all seek back and front pay,

fringe benefits, injunctive relief, and liquidated (or punitive)

damages.

Fourth, as does Ms. Stone, they all have an interest in

proceeding collectively to conserve funds and resources. For

example, the combined hourly rates of Plaintiffs' six experts is

$ 2,400. Assuming conservatively that each expert spent fifteen

hours traveling, preparing for trial, and testifying, the cost of

presenting expert testimony alone would be $ 36,000 for one trial,

but a combined total of $ 5.8 million for 161 separate trials.

Fifth, as does Ms. Stone, they all have an interest in their

statutorily protected right to be free of age discrimination in

employment.

As to the next element, their interests would be impaired by

potential stare decisis effects, the danger of overlapping and

conflicting injunctive relief, inconsistent judgments, loss of

alternative remedies if the pending action is disposed of without

them, and impaired by the enormous economic burden of separately

financing the prosecution of their individual cases rather than

24

sharing a very small fraction of the cost of a joint prosecution.

It is easy to imagine another court viewing Proposed

Intervenors as similar enough to Ms. Stone to apply stare decisis

to their claims and follow evidentiary and other rulings rendered

in Ms. Stone's trial since:

• they all plan to rely on the same legal theories, expert

reports, evidence, and witnesses to prove First Union's liability

for a pattern-or-practice of age discrimination during its

acquisition of banking institutions in Florida between August 1991

and May 1994, upon which Ms. Stone plans to rely;

• the majority of Proposed Intervenors were acquired the

same day as Ms. Stone, went through the same merger selection

"test", through the same subjective "post-merger" selection

process, were terminated within weeks of her termination, and are

also claiming a pattern-or-practice of age discrimination;

• 98.8% of them allege termination, or demotion, or

termination plus demotion, as an adverse employment action -- Ms.

Stone is alleging termination and demotion.

Lastly, with all due respect to the district judge, it simply

makes no sense to try the same pattern-or-practice issue 161 times

over ten more years, given the substantial similarity of Proposed

Intervenors, Ms. Stone, and their overlapping claims.

ARGUMENT AND CITATIONS OF AUTHORITY

I. District Court Erred By Denying Intervention As Of Righ_

A. Standard for Granting Intervention

The purposes of Rule 24 are to foster economy of judicial

25

administration and protect non-parties from having their interests

adversely affected by litigation without their participation.

Stallworth v. Monsanto Co., 558 F.2d 257, 265 (5th Cir. 1977).

Any doubt concerning the propriety of allowing intervention

should be resolved in favor of the proposed intervenors because it

allows the court to resolve all related disputes in a single

action. F.S.L.I.C. v. Falls Chase Special Taxing District, 983

F.2d 211 (llth Cir. 1993) (reversing denial of leave to intervene

as a matter of right); see also Voilas v. General Motors Corp., 173

F.R.D. 389, 398 (D.N.J. 1997) (adding 176 plaintiffs after class

certification denied, since there were common questions of law and

fact and to do otherwise would cause parties to "re-litigate the

entire case from its inception, resulting in unnecessary

duplication of effort" that "would be counter-productive for all

parties involved, including the Court.").

A court must construe a complaint in intervention liberally in

favor of intervention and accept its well-pleaded allegations as

true. See, e.g., Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct.

807, 810 (1994) (plurality).

Fed.R.Civ. P. 24(a)(2), governing non-statutory intervention as

a matter of right, 21 provides:

Upon timely application anyone shall be permitted

to intervene in an action: .; (2) when the

21 Opt-in Plaintiffs did not move to intervene as a matter of

right under 24(a)(I) which mandates intervention if a statute

provides an unconditional right to intervene. Mitchell v.

McCorstin, 728 F.2d 1422 (llth Cir. 1984), held the governing

statute here, 29 U.S.C. § 216(b), does not grant an unconditional

right to intervene.

26

applicant claims an interest relating to theproperty or transaction which is the subject of theaction and the applicant is so situated that thedisposition of the action may as a practical matterimpair or impede the applicant's ability to protectthat interest, unless the applicant's interest isadequately represented by existing parties.

Interpreting Rule 24(a)(2), the Court set out criteria that,

if established, requires a district court to allow intervention:

I. The application to intervene must be timely;

2. She must have an interest relating to the property or

transaction which is the subject of the action;

3. She must be so situated that disposition of the action,

as a practical matter, may impede or impair her ability

to protect that interest; and

4. Existing parties to the lawsuit may inadequately

represent her interests.

Chiles v. Thornburgh, 865 F.2d 1197, 1213 (llth Cir. 1989); Purcell

v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (llth Cir. 1996).

B. Neither First Union Nor the District Court

Contended The Motion to Intervene Was Untimely

First Union did not contend that the Motion to Intervene was

untimely and the district court did not discuss this element in its

opinion. The motion could not have been found untimely.

An application to intervene must be "timely", but timeliness

is not limited to chronological considerations, rather it "is to be

determined from all the circumstances." United States v. United

States Steel Corp., 548 F.2d 1232, 1235 (5th Cir. 1977), quoting

NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603 (1973).

The length of time since initiation of the litigation is irrelevant

27

to timeliness. Stallworth v. Monsanto Co., 558 F.2d 257, 266 (5th

Cir. 1977) (absolute measures of timeliness are not appropriate,

and likelihood intervention may interfere with "orderly judicial

processes" has nothing to do with timeliness).

In determining whether a motion to intervene is timely, a

court should consider:

(a) length of time during which intervenor actually knew or

reasonably should have known of his interest in the case;

(b) extent of prejudice to existing parties resulting from

proposed intervenor's failure to move for intervention as

soon as he knew or reasonably should have known of his

interest in the case;

(c) extent of prejudice that proposed intervenor would suffer

if the motion to intervene is denied;

(d) existence of unusual circumstances weighing either in

favor or against a determination that motion is timely.

Stallworth v. Monsanto Co., 558 F.2d 257, 263-267 (5th Cir. 1977)

(district court abused discretion by denying application for

intervention on grounds of untimeliness). See also Loyd v. Alabama

Dep't of Corrections, 176 F.3d 1336, n. 8 (llth Cir.) (when

considering intervention of right, prejudice to existing parties is

not a factor, except as to prejudice caused by failure to act

promptly), cert. denied, 528 U.S. 1061, 120 S.Ct. 613 (1999)).

The Motion to Intervene here was timely. First, the Opt-in

Plaintiffs acted promptly as soon as their interest in the pending

action was made known to them, by filing their Consents by the

28

April 1999 deadline established by the district court.

Second, there was no need to move to intervene until the

district court granted Defendants' Motion to Decertify on September

4, 2001. Since the grounds for the September 4, 2001 Order were

primarily that Plaintiffs had failed to prove there was a pattern

or practice of age discrimination at First Union during the subject

acquisitions (D.E. 957, pp. 28, 36, 39, 45, 46, 50, 51), and had

failed to submit experts' reports (D.E. 957, pp. 26, n. 15, 39, 40,

44), it would have been futile to file the motion to intervene

prior to completion of Plaintiffs' experts" reports.

Third, it was not possible for Plaintiffs' experts' reports to

becompleted and served until July 2002 (after court-approved

extensions of time) because of the great number of outstanding

discovery responses from First Union which were needed by

Plaintiffs' experts. See, e.g., D.E. 535, February 20, 2001 Order

("Plaintiffs' Experts' Reports will be due thirty days after

Defendants provide Plaintiffs with corrected electronic data");

D.E. 403, Order March 28, 2000 ("experts reports and summaries is

extended to sixty (60) days after Defendants produce the necessary

documents requested by Plaintiffs"); corrected 22 transcript of

hearing held June i4, 2001 on Plaintiffs' motion seeking to delay

oral argument on Defendants' Motion to Decertify because of pending

discovery issues. D.E. 1091, corrected Tr. pp. 5-6.

Fourth, from the outset the district court and First Union

22 The original transcript reversed speaker identifications

between Mr. Scarola, Plaintiffs' attorney, and Mr. Kilpatrick,

First Union's attorney.

29

were alerted that if decertification occurred, intervention would

be sought. DE 736, p. 7; Plaintiffs' Response to court Question 4.

Fifth, within ten days of denial of reconsideration of the

Order granting decertification, Plaintiffs sought permission to

file Opt-in Plaintiffs' Motion to Intervene. D.E. 1058.

Sixth, there was no prejudice to Defendants. Opt-in Plaintiffs

filed their written Consents in 1999, were deposed by Defendants by

June 2000, and all produced, and most propounded, discovery. No

further discovery was necessary.

C. Neither First Union Nor the District Court

Disputed That Ms. Stone Could Not Represent

Proposed Intervenors' Interests

The district court did not discuss whether the Proposed

Intervenors' interests may be inadequately represented, and First

Union basically conceded that 29 U.S.C. § 216(b), which authorizes

collective actions in FLSA and ADEA cases, prevents Ms. Stone from

representing anyone's interest but her own.

Proposed intervenors' burden of showing their interests may be

inadequately represented, is minimal. Chiles v. Thornburgh, 865

F.2d 1197, 1214 (llth Cir. 1989) (citing Trbovich v. United Mine

Workers of America, 404 U.S. 528, 538 n. I0, 92 S.Ct. 630, 636 n.

I0 (1972) (inadequate representation prong satisfied if proposed

intervenor shows representation of interests "may be" inadequate).

Representation is presumed adequate if the existing party

pursues the same ultimate objective as the party seeking

intervention. See Athens Lumber Co., Inc. v. Federal Election

Comm'n, 690 F.2d 1364, 1366 (llth Cir. 1982), cert. denied, 465

30

U.S. 1092, 104 S.Ct. 1580 (1984). However, similarity of legal

contentions does not assure adequate representation. Nuesse v.

C__, 385 F.2d 694, 703 (D.C. Cir. 1967).

The named-Plaintiff, Ms. Stone, cannot represent the interests

of the Proposed Intervenors because representation of absent

parties (if Opt-in Plaintiffs were dismissed) is prohibited by 29

U.S.C. § 216(b), incorporated into the ADEA by 29 U.S.C. § 626(b).

While Ms. Stone could obtain injunctive relief aimed at changing

First Union's discriminatory practices, this would not protect the

Proposed Intervenors' interests because most do not work there any

longer. 23 Moreover, she could not recover any monies for back pay,

front pay, or other compensatory damages for the Proposed

Intervenors -- which is a primary objective.

D. Proposed Intervenors' Interests Relate to Transactions

That Are the Subject of This Action Including Pattern-or

Practice Allegations, Challenge to the Same Merger and

Post-Merger Selection Processes, and Injunctive Remedy

A proposed intervenor must show an interest relating to the

transaction or property that is the subject of the action.

Fed.R.Civ.P. 24(a)(2). To meet this element, a proposed intervenor

must have "a direct, substantial, legally protectable interest in

the proceedings." Diaz v. Southern Drilling Corp., 427 F.2d 1118,

1124 (Sth Cir.), cert. denied, 400 U.S. 878, 91 S.Ct. 118 (1970).

The Court in Worlds v. Department of Health and Rehabilitative

Services, 929 F.2d 591, 594 (llth Cir. 1991), held that being free

of discrimination in employment was enough of a significantly

23 A few Opt-in Plaintiffs are still employed with First Union

(now Wachovia).

31

protectable interest to warrant intervention as of right. 24

In reaching the conclusion that the proposed intervenors met

this standard, the Court in Worlds quoted Nuesse v. Camp, 385 F.2d

694, 700 (D.C. Cir. 1967) for the proposition, "The 'interest test'

is primarily a practical guide to disposing of lawsuits by

involving as many apparently concerned persons as is compatible

with efficiency and due process." Id.

The Worlds Court also relied on Foster v. Gueory, 655 F°2d

1319 (D.C. Cir. 1981), where in an employment discrimination case

that had not been certified, the court found denial of intervention

was error because intervenors" interests were adequate because:

Appellants are persons who allege that they have

suffered injury from the same or very similar

wrongful acts as those complained of by the

original plaintiffs, and appellants' claims for

relief are founded on the same statutory rights as

are the claims of the plaintiffs. While the

individual acts of discrimination suffered by the

plaintiffs and the appellants may differ, they eachassert their claims as a result of the same

'significantly protectable interest' in being free

of racial discrimination in employment.

Id. (emphasis added), quoting Foster at 1324-1325, and quoting Cook

v. Boorstin, 763 F.2d 1462, 1470 (D.C. Cir. 1985) ("Compared to the

alternative of forcing [them] to bring separate civil actions,

allowing intervention seems fully consistent with, if not

mandated by, concerns of judicial efficiency.").

The district court here did not discuss or consider Proposed

24 But denying intervention where party had filed separate

lawsuit after denial of intervention, and separate action would

benefit proposed intervenor because statistical evidence could be

presented in new action that was excluded in original action.

32

Intervenors' interests in the pending litigation and thus erred by

considering only whether their interests would be impaired by

disposition of this lawsuit in their absence, without also

considering the magnitude of their interest. D.E. 1276, p. 31

(Plaintiffs' request for intervention as of right rests on the

third prong, whether there may be impairment of their interests).

The interest prong, and the impairment of that interest prong,

are closely related and one cannot be answered without reference to

the first. Chiles v. Thornburqh, 865 F.2d 1197, 1214 (llth 1989).

See also Nat'l Resources Defense Council, Inc. v. U.S. Nuclear

Regulatory Comm'n, 578 F.2d 1341, 1345 (10th Cir. 1978) (question

of impairment is not separate from question of existence of

interest); U.S.v. Hooker Chemicals & Plastics Corp., 749 F.2d 968,

983 (2d Cir. 1984) (Rule 24 elements should be read together so a

very strong interest may warrant intervention upon a lesser showing

of impairment or inadequacy of representation).

Here, Proposed Intervenors have an enormous interest in

proceeding together with respect to the (Int'l Brotherhood of

Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843 (1977)), pattern-or-

practice trial because success at the liability phase of that trial

would result in a presumption of discrimination and shift the

burden to First Union.

The court in Thiessen v. General Electric Capital Corp., 267

F.3d 1095, 1105-1108 (10th Cir. 2001), cert. denied, 536 U.S. 934,

122 S.Ct. 2614 (2002), held the order and allocation of proof as

well as the overall nature of trial proceedings in a pattern-or-

33

practice case "differ dramatically from the case of only individual

claims of discrimination", so a district court must take into

account the framework outlined in Teamsters when plaintiffs rely on

a pattern-or-practice and come forward with evidence to support

that theory. Thus, the court concluded, it was an abuse of

discretion to decertify a pattern-or-practice ADEA class because it

deprived plaintiffs of an opportunity for the substantial advantage

of the Teamsters shifting burden in employment discrimination

pattern-or-practice cases. Id___.

Proposed Intervenors are also greatly interested in

adjudication of the matter of whether First Union's selection

processes, to which they were all subjected and adversely affected,

fostered systematic discrimination based upon age. See, e.g.,

Chiles v. Thornburqh, 865 F.2d 1197, 1214 (llth 1989) (when party

seeking to intervene claims an interest in the very transaction

that is the subject of the main action, the potential stare decisis

effect may supply that practical disadvantage which warrants

intervention as of right); Meek v. Metropolitan Dade County, 985

F.2d 1471 (llth Cir. 1993) (reversing denial of intervention as a

matter of right because proposed intervenors had substantial

legally protectable interests where they sought to "vindicate

important personal interests", not to merely challenge unlawful

conduct in the abstract).

Proposed Intervenors and Ms. Stone, as a class of acquired

employees, were treated differently and less favorably than the

class of younger existing First Union employees who were

34

intentionally shielded from displacement even if they were less

qualified than an acquired employee. D.E. 1200, Dr. Lundquist 13-

14; D.E. 737, Exh. 9 Huber II pp. 31-32, Exh. 12 Miyares I, p. 81.

The ADEA makes it unlawful for an employer "to limit,

segregate, or classify his employees in any way which would deprive

or tend to deprive any individual of employment opportunities or

otherwise adversely affect his status as an employee, because of

such individual's age .... " 29 U.S.C. § 623(a). Thus, they have

a significant interest in a single coherent plan for injunctive

relief to rectify First Union's past violations, and prevent future

violations. See U.S. v. City of Los Angeles, 288 F.3d 391, 399

(9th Cir. 2002) (error to deny right to intervene where protectable

interest in merits and remedies).

Lastly, Proposed Intervenors' interests are "practically

indistinguishable from those of the plaintiff[]", including the

statutorily protected right to be free from discrimination in

employment. See Worlds v. Dep't of Health and Rehabilitative

Services, 929 F.2d 591, 594 (llth Cir. 1991) (being free of

discrimination in employment is enough of a significantly

protectable interest to warrant intervention of right).

E. Disposition of Litigation Without Them May As

A Practical Matter Impair Proposed Intervenors_

Ability to Protect Their Interests

1. Potential Stare Decisis Effect

Even though Proposed Intervenors would not literally be bound

by a judgment in Ms. Stone's case, certain determinations could be

relied upon as precedent in their own individual lawsuits -- which

35

is reason to grant intervention as a matter of right. See Georgia

V. U.S. Army Corps of Engineers, 302 F.3d 1242, 1258 (llth Cir.

2002) (citing Chiles v. Thornburgh, 865 F.2d 1197, 1214 (llth Cir.

1989), for proposition that potential stare decisis effect may

supply the practical disadvantage which warrants intervention as of

right); Sierra Club v. Glickman, 82 F.3d 106 (5th Cir. 1996) (stare

decisis effect of an adverse judgment constitutes a sufficient

impairment to compel intervention" (citation omitted).

The district court erred by assuming that Proposed Intervenors

had to prove another court would be bound by decisions in Stone

before they could establish potential impairment of their interest

due to the effect of stare decisis. D.E. 1276, p. 33 (Plaintiffs

"ultimately concede" that other courts would not be compelled to

make the same decisions against any of the Opt-in Plaintiffs)_

In reversing denial of intervention as of right, the Court in

Atlantis Development Corp., Ltd. v. United States, 379 F.2d 818,

829 (5th Cir. 1967), held that because the 1966 Amendment to Rule

24(a) removed the condition that the applicant "is or may be bound

by a judgment in the action", stare decisis may now "supply that

practical disadvantage which warrants intervention of right"

without the applicant being bound by a judgment, because "realistic

view [is] that the first decision will in all likelihood be the

second and the third and the last one."

The district court also erred by concluding stare decisis did

not support Proposed Intervenors' assertion of possible impairment

to their interest because "by previous order" it held disposition

36

of Ms. Stone's individual age discrimination case was not

sufficiently related to the class members' claims to support a

collective action. D.E. 1276, pp. 32-33. There is no guarantee

that other courts would agree, however.

In reality, it is the substantial similarity of the facts

Proposed Intervenors share with Ms. Stone that strongly implicates

stare decisis problems.

1989) (intervention of

"might be an exercise

See Chiles, 865 F.2d 1197, 1214 (llth Cir.

right warranted where separate lawsuit

in futility if the instant lawsuit was

decided in favor of the [defendant]."); Natural Resources Defense

Council, Inc. v. U.S. Nuclear Regulatory Comm'n, 578 F.2d 1341,

1345 (10th Cir. 1978) (that an issue "can be repeatedly litigated

is not an answer, for the chance of getting a contrary result in a

case which is substantially similar on its facts to one previously

adjudicated seems remote.").

Indeed, Proposed Intervenors here may suffer the worst of both

worlds. Other courts may instead follow the reasoning in Hyman v.

First Union, 982 F.Supp. 1 (D.D.C. 1997), 2s that those acquired and

terminated by First Union within the same two-year period were

similarly situated, and then rely on adverse decisions in Ms.

Stone's case to negatively impact all subsequently litigated claims

of those similarly situated persons.

2s H__l_Dg_nwas an age discrimination case against First Union for

its acquisitions of banking institutions in Maryland, Virginia, and

D.C. during the same time period covered by the case at bar. The

H_3!___ court permitted a collective action with 229 plaintiffs. Nine

Opt-in Plaintiffs worked for one of the banks covered by H_yman.

H_yman was settled for $ 58.5 million in November 1997.

37

Here, the majority of Proposed Intervenors were acquired the

same day as Ms. Stone, went through the same merger selection

"test", through the same subjective "post-merger" selection

process, were terminated within weeks of her termination, are also

claiming a pattern-or-practice of age discrimination, and using the

same legal theories, experts, evidence, and witnesses to prove it.

It is easy to imagine another court viewing such plaintiffs as

similar enough to apply stare decisis to their claims, including

admissibility of expert reports, and whether First Union engaged in

a pattern-or-practice of age discrimination during its Florida

merger and "post-merger" selection/displacement processes. See

D.E. 1276, p. 34, (Opt-in Plaintiffs raised issues of law and fact

similar to Ms. Stone "in some respects").

2. Stare Decisis and Reliance on Same Experts' Reports

When Plaintiff and Intervenors plan to rely on the same expert

evidence, the potential for stare decisis applies forcefully and

supplies the practical impairment necessary for granting

intervention as a matter of right. Cook v. Boorstin, 763 F.2d

1462, 1470 (D.C. Cir. 1985) (vacating denial of intervention as a

matter of right in employment discrimination case even though

proposed intervenors held different job titles).

Here, Ms. Stone and Proposed Intervenors will rely on the same

five expert reports in support of their claim that First Union

engaged in a pattern-or-practice of age discrimination during its

takeovers in Florida between 1991 and 1994.

The district court erred by disregarding Plaintiffs' experts'

38

reports as not persuasive. DE 1276, pp. 28-29. First, Plaintiffs'

experts reported standard deviations in excess of the level

considered "highly significant" in the Eleventh Circuit, so it was

beyond the scope of the district court's discretion to discount

them. See Maddow v. Proctor & Gamble Co., Inc., 107 F.3d 846, 850,

852 (llth Cir. 1997) (ADEA collective action, standard deviation of

3.83 is strong statistical evidence and "sufficient for a

reasonable person to infer discrimination based on age and that the

reasons given were pretextual."); Benson v. Tocco, Inc., 113 F.3d

1203, 1209 (llth Cir. 1997) (ADEA collective action, finding 2.66

and 3.04 standard deviations significant); Peightal v. Metropolitan

Dade County, 26 F.3d 1545, 1556 n. 16 (llth Cir. 1994) (employment

discrimination case, standard deviation of two or three is highly

probative of discriminatory treatment quoting Waisome v. Port

Authority, 948 F.2d 1370, 1376 (2d Cir. 1991) (a finding of two or

three standard deviations is generally considered highly probative

of discriminatory treatment).

Second, the district court relied on Defendants' expert's

criticisms about failure to control for responsibility center and

conducting analysis on an aggregated rather than individual basis,

as grounds for discrediting Plaintiffs' expert reports. DE 1276,

pp. 27, 28. In doing so, the district court overlooked Plaintiffs'

May 13, 2003 Supplement to the Motion to Intervene (DE 1263),

citing testimony of Defendants' expert at her May 2 and 6, 2003

depositions wherein these criticisms were significantly weakened,

with Defendants" expert conceding aggregated analyses and not

39

controlling for responsibility center may have been appropriate.

DE 1266, Haworth pp. 59-60 (if decisions were made by Ms. Huber in

a central location (as asserted by Plaintiffs), then analysis would

be proper at the Huber level); DE 1267, Haworth p. 183 (aggregated

analysis appropriate if "the decision process was not made at the

micro level, but rather was a decision made across the board.").

Moreover, while acknowledging that defendant contradicted

plaintiffs' evidence which included an expert affidavit, the Court

in Grayson v. K Mart, 79 F.3d 1086, 1097, 1099 n. 17 (llth Cir.

1996), nevertheless affirmed an ADEA collective action. Grayson,

is applicable to the matter at bar because the Court found the

plaintiffs' evidence was "more than sufficient to meet either" the

29 U.S.C. § 216(b), or Rule 20 (joinder) standards, and so affirmed

plaintiffs in 700 stores over 18 states proceeding collectively.

Id. at 1095-1096. Plaintiffs here produced far more evidence.

In a pattern-or-practice employment discrimination case, the

Court in Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000,

3009 (1986), held plaintiffs even at trial do not need to prove

discrimination with "scientific certainty, rather, his or her

burden is to prove discrimination by a preponderance of the

evidence" so regression analysis that accounts for major variables

but omits another, may still prove a plaintiff's case. See also

Larkin v. Pullman-Standard Division, 854 F.2d 1549, 1581-1582 (llth

Cir. 1988), vacated on other grounds, 493 U.S. 929, 110 S.Ct. 316

(1989) (at trial, flaws in statistical evidence do not render it

inadmissible, "Unless the flaws are so egregious as to

4O

completely deprive the evidence of relevance").

Third, in discrediting Plaintiffs' experts" reports for

failure to conduct analyses on an individualized basis, the

district court improperly permitted First Union to use its own

destruction of the very documents essential to conduct

individualized analyses, as a sword against employees who never had

custody or control of them. The interests of the employees the

federal regulations were expressly designed to protect, 26 were

violated by First Union's document destruction. First Union's

expert herself testified she re'quested these documents for review

but was not provided them. See Plaintiffs" May 13, 2003 Supplement

to their Appeal of Supplemental Rpt & Rec. D.E. 1264.

Although the magistrate judge denied Plaintiffs' Motion for

Sanctions (D.E. 1014, 1242 (Supplemental R & R) for destruction of

documents, he acknowledged First Union admitted it destroyed

employment records for Plaintiffs and others both before and after

service of this lawsuit. D.E. 1242, pp. 9, 10. Even though the

district judge affirmed (DE 1276, pp. 48-50), and may not have

deemed First Union's actions worthy of sanctions, it was improper

to allow First Union to actually benefit from its destruction of

records specifically protected by federal regulations.

3. Inefficiency, Waste of Resources, Danger of

Inconsistent Judgments, Overlapping Injunctive Relief

Denying Proposed Intervenors the opportunity to proceed

collectively here, also impairs their ability to protect their

26 The relevant regulations are 29 C.F.R. § 1602.14, § 1627.3,

in addition to Fed. R.Civ. P. 37, and common law obligations.

41

interests because separate actions would be prohibitively

expensive, duplicative, and an extraordinary waste of resources --

even if all 160 could obtain representation and begin all over

again with respect to claims that are ten years old. Costs for

Plaintiffs' experts alone would escalate from $ 36,0002z for a

single pattern-or-practice trial to $ 5.8 million for 161 separate

trials (excluding costs for travel from 5 states, and lodging).

The inherent efficiencies of one action is a goal advocated by

the courts, especially where the authority to proceed collectively

is statutory. See, e.g., Hoffman-La Roche, Inc. v. Sperling, 493

U.S. 165, Ii0 S.Ct. 482 (1989):

A collective action allows age discrimination

plaintiffs the advantage of lower individual costs

to vindicate rights by the pooling of resources.

The judicial system benefits by the resolution in

one proceeding of common issues of law and fact

arising from the same alleged discriminatory

activity.

Id., U.S. at 170, S.Ct. at 486 (emphasis added); Cox v. American

Cast Iron, 784 F.2d 1546 (llth Cir.), where in an employment

discrimination case, finding decertification was a "clear abuse of

discretion", the Court held:

By releasing some class members from the suit at

[certification] stage, a trial judge would invite

the repeated litigation of the pattern and practice

issue, with lamentable consequences for judicial

economy and the finality and consistency of

judgments.

Id. at 1554, cert. denied 479 U.S. 883, 107 S.Ct. 274 (1986)

(emphasis added); see also Cook v. Boorstin, 763 F.2d 1462 (D.C.

2z This is based upon an estimate of 15 hours for travel,

preparation, and testimony, at a combined rate of $ 2,400 an hour.

42

Cir. 1985), another employment discrimination case holding:

Compared to the alternative of forcing those

appellants who have exhausted their administrative

remedies to bring separate civil actions, allowing

intervention by the thirty-one appellants [in

employment discrimination case] seems fully

consistent with, if not mandated by, concerns of

judicial efficiency.

[T]he judicial system as a whole benefits

substantially when similar complaints are resolved

in a single unified proceeding, and the advantages

in terms of efficiency and uniformity are simply

too great to ignore.

Id. at 1470, 1472 (emphasis added).

Indeed, Grayson v. K Mart Corp., 79 F.3d 1086 (llth Cir. 1996)

cited Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct

482 (1989), for the proposition that Congress stated its policy

that ADEA plaintiffs should proceed collectively. Grayson at 1096,

1102, 1109. Allowing Proposed Intervenors to proceed collectively

rather than in 161 separate actions, would also be consistent with

the admonition in Grayson, 79 F.3d 1086, 1091 n. 2 (llth Cir.

1996), not to commence "separate actions which assert essentially

the same facts and legal theories, before two different judges."

At a minimum, Proposed Intervenors should be allowed to

intervene in Ms. Stone's pending lawsuit for purposes of the

liability phase of the Teamsters pattern-or-practice trial. 2s

2s After the liability phase of the pattern-or-practice case,

the district court could sever certain issues for purposes of the

remedial stage. See Manual for Complex Litigation, Third

(Annotated) § 33.54, p. 442, n. 1185; Thiessen v. General Electric

Capital Corp., 267 F.3d 1095, n.12 (10th Cir. 2001), citing Butler

v. Home Depot, 1996 WL 421436 (N.D. Cal. 1996), 1996 U.S.Dist.

LEXIS 3370, for proposition district court may certify class for

43

With respect to injunctive relief, as the Court in Stallworth

v. Monsanto Co., 558 F.2d 257, 268 (5th Cir. 1977), held, if a

judge in a separate proceeding could find the rejected intervenor's

contentions meritorious, but be unable to award her relief without

generating an injunctive command that would overlap or conflict

with an order already granted in the existing litigation, then

intervention as of right is appropriate because she is so situated

that disposition of the action without her may, as a practical

matter, impair or impede her ability to protect her interest. In

the case at bar, with 161 separate lawsuits, there would be great

potential for conflicting and overlapping plans for injunctive

relief, and inconsistent judgments.

4. Potential Loss of Alternative Remedies

The existence of an alternative remedy may support denial of

intervention. Worlds v. Department of Health and Rehabilitative

Services, 929 F.2d 591, 595 (1991) (denial of intervention affirmed

where party filed separate lawsuit after denial of intervention,

and separate action would benefit proposed intervenor because

statistical evidence could be presented in new action that was

excluded in original action). See also EEOC v. Eastern Airlines,

736 F.2d 635 (llth Cir. 1984) (where independent private action

remained viable after entry by EEOC, proposed intervenor could

preserve all of her rights without prejudice without intervention).

purposes of Stage I liability issues, while reserving decision on

certification with respect to Stage II remedial issues. In the

case at bar, the remedial phase would involve a minimal number of

issues, given that the court has restricted First Union to the same

defense for about 90% of Plaintiffs. DE 502, p. 4.

44

Conversely, lack of an alternative remedy supports intervention.

Here, if separate actions had to be filed by the Proposed

Intervenors, judges in subsequent actions would not be bound by the

district court's rulings with respect to the opt-in period

(February 4, 1992 to June 30, 1994) and the ability of the Opt-in

Plaintiffs to piggy-back on Ms. Stone's timely filed EEOC charge.

Virtually all the Proposed Intervenors meet the rearward scope

as defined by Hippv. Liberty Nat'l Insur., 252 F.3d 1208 (llth

Cir. 2001) (300 days prior to the date Ms. Stone's EEOC Charge was

filed). It is the forward scope of the class definition that is

subject to varying definitions by different judges, and jeopardize

a number of Proposed Intervenors. Consequently, after complying

with all terms established by the court in the court-authorized

notification of opt-in rights, the court-imposed deadline, and all

discovery obligations -- many may be denied their day in court for

redress of age discrimination First Union inflicted on them and

hundreds of others during its acquisition of banks in Florida.

Lastly, the sad practical reality is that many Proposed

Intervenors are now in their sixties and seventies 29 (Ms. Stone is

over seventy years old), some are in ill-health, and they do not

have the luxury of time to begin this lawsuit all over from square

one to redress injuries that occurred ten years ago. Indeed, as a

reason for avoiding delay in age discrimination cases, the Court in

Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1388 n. 31 (llth

Cir. 1998), cited concerns that "plaintiffs and witnesses are at or

29 Dates of birth are in the Consents filed with the court.

45

near retirement age when the litigation commences, and could be in

failing health or deceased by the time a final judgment is entered

..'_). Starting over for 160 Proposed Intervenors here, could

last an additional ten years given the logistical problems and

costs of trials with the same experts and witnesses.

F. District Court Erred By Requiring ProposedIntervenors Prove Too Much

The district court erred by requiring Proposed Intervenors to

prove too much at this stage of the proceedings, and requiring that

they prove more than the standard established in Rule 24(a)(2).

i. Error to Require Conclusive proof of a Pattern-or

Practice of Age Discrimination At This Stage

The incorrect legal standard was applied by requiring Proposed

Intervenors definitively prove a pattern-or-practice of

discrimination before they could proceed collectively to have a

"u/9__ydecide the issue. Se___eDE 1276, p. 25 ("most significant factor

precluding collective action in this matter is Plaintiffs' failure

to sufficiently establish pattern or practice evidence of class-

wide discrimination"); pp. 25-26 (Plaintiffs failed to prove they

were victims of "a single decision, policy, or plan infected by

• " 566 (N.D.AIa.discriminatlon , citing Brooks, 164 F.R.D. 561,

Plalntlffs have not sufficiently established that1995); p. 27 (" '

age discrimination towards the employees of acquired institutions

was the standard operating procedure of FUNB"); p. 29 (Plaintiffs

failed to show sufficient evidence of a pattern or practice of age

46

discrimination to which they were all subjected). 30

This "put the cart before the horse", and required Proposed

Intervenors prove too much at this stage of the proceedings. See

Brennan v. N.Y.C. Bd. of Edu., 260 F.3d 123, 129-130 (2d Cir.

2001), where in an employment discrimination pattern-or-practice

case, the court held an application to intervene cannot be resolved

by reference to the ultimate merits of the claims the intervenor

wishes to assert after intervention: "An interest that is otherwise

sufficient under Rule 24(a)(2) does not become insufficient because

the court deems the claim to be legally or factually weak."); Clark

v. Putnam County, 168 F.3d 458, 462 (llth Cir. 1999) (whether

applicant for intervention will prevail in a suit is not an element

of intervention by right); Grayson v. K Mart, 79 F.3d 1086, 1097

(llth Cir. 1996) (for collective action, ADEA plaintiffs need only

show a "reasonable basis" for their claims of class-wide

discrimination and "successfully engage defendant's affidavits to

the contrary"; proving "a unified policy, plan, or scheme of

discrimination may not be required"); Eisen v. Carlisle, 417 U.S.

156, 178, 94 S.Ct. 2140, 2152-2153 (1974) (in determining propriety

of (Rule 23) class action question is not whether plaintiffs have

stated a cause of action or will prevail on the merits).

Lastly, although the Court in Rutstein v. Avis Rent-A-Car

Sys., Inc., 211 F.3d 1228 (llth Cir. 2000), expressly noted that

30 Although this was mentioned in the section of the opinion

denying Ms. Stone's Motion to Amend the Complaint to add the Opt-in

Plaintiffs as named-Plaintiffs, the district court stated the

reasons for denying the amendment applied to its reasons for

denying intervention. DE 1276, p. 30.

47

holdings in that case did not apply to employment discrimination

cases, the district judge here (who was also the district judge

reversed in Rutstein) was still influenced by, and erroneously

relied in part on, its holdings. See DE 1276 p. 14, n. 5.

2. Error to Require Proposed Intervenors Have

Exactly the Same Job Titles and Claims

While not all Proposed Intervenors had the same job title,

they were all harmed by the same triggering event -- First Union's

acquisition of their employer -- and all went through the same

merger selection/displacement process where decisions were reviewed

by the same person, and then went through the post-merger selection

process that was entirely subjective. See Hyman v. First union,

982 F.Supp. I, 3 (D.D.C. 1997) (ADEA collective action with 229

plaintiffs approved because acquisition was same triggering event).

The fact that plaintiffs may have had different job titles

does not preclude a collective or class action, and the district

court misread Grayson v. K-Mart, 79 F.3d 1086 (llth Cir. 1996) and

H_ip_, 252 F.3d 1208 (llth Cir. 2001), by concluding otherwise.

The Court in General Tel. Co. v. Falcon, 457 U.S. 147, 159 n.

15, 102 S.Ct. 2364, 2371 n. 15 (1982), noted that even Rule 23

class members need not be identically situated, and a broad class

is permissible where there is,

significant proof that an employer operated under a

general policy of discrimination . . . if the

discrimination manifested itself in hiring and

promotion in the same general fashion, such as

through entirely subjective decisionmaking

processes.

("class action on behalf of every applicant or employee who may

48

have been prejudiced by the biased test procedure clearly would

satisfy the commonality and typicality requirements" of 23(a)").

Similarly, in an employment discrimination case where

allegations centered around a system of subjective evaluations and

word of mouth hiring, Cox v. American Cast Iron Pipe Co., 784 F.2d

1546, 1557-1558 (llth Cir.), reversed decertification and held

'allegations of similar discriminatory employment practices, such

as . [the] use of entirely subjective personnel practices that

operate to discriminate, would satisfy the commonality and

typicality requirements of Rule 23(a).', cert. denied, 479 U.S. 883

(1986), citing Carpenter v. Stephen F. Austin State University, 706

F.2d 608 (5th Cir. 1983), quoting Falcon n. 15.

Also relying on Falcon, 457 U.S. at 159 n. 15 (1982), Hartman

v. Duffey, 19 F.3d 1459, 1471-1472 (D.C. Cir. 1994), held, "where

a plaintiff charges that subjective employment decisions have

allowed the employer systematically to discriminate on the basis of

[age] in choosing among the minimally qualified applicants, the

potential for common issues of law and fact among applicants for

different positions clearly exists regardless of individual

differences in job descriptions or minimal qualifications." See

also Carpenter v. Stephen F. Austin State University, 706 F.2d 608,

617 (Sth Cir. 1983) (allowing custodial workers to represent class

including clerical workers because the same subjective employment

practices applied to both groups).

Likewise, Cook v. Boorstin, 763 F.2d 1462, 1468-1470 (D.C.

Cir. 1985), vacated the trial court's denial of intervention by

49

employees in administrative and professional positions because the

Falcon standard was met where evidence suggested the employer's

subjective standards for advancement resulted in systematic

discrimination. The Cook court found that especially where there

is a "plethora of job categories in white collar

organizations" it would be "silly" and "pernicious" to exclude

evidence of discrimination in various occupational categories:

We think the appellants are clearly correct that

evidence of discrimination throughout the Libraryis relevant to each of their claims. The

plaintiffs and the intervenors all say they plan to

make such evidence of systemic discrimination the

centerpiece of their case, . ..

Id____.1468-1470. (Citations omitted; emphasis added).

In approving joinder of corporals, sergeants, lieutenants,

captains and majors after the Rule 23 employment discrimination

class was decertified, the Court in Alexander v. Fulton County, 207

F.3d 1303 (llth Cir. 2000) held:

Given the common core of allegations, the

substantial overlap of the particular claims, and

the logical interconnection of several of the

different forms the alleged discrimination took, weare satisfied that the district court did not abuse

its discretion in finding that the efficiency of a

consolidated trial outweighed the potential for

unfair prejudice or jury confusion.

Id. at 1326 (emphasis added).

Further, whenever there is a massive "reduction-in-force" as

occurred with First Union's acquisitions in Florida over a short

period of time, there will, of necessity, be diversity of job

titles. Se___eeOwens v. Bethlehem Mines Corp., 108 F.R.D. 207, 212

(S.D.W.Va. 1985) (sufficient similarity existed even though they

5O

worked in different divisions, because all were subjected to same

allegedly discriminatory reduction-in-force; "a systematic

reduction of the workforce" involves "a decision obviously

made at a high level in the organization" and it is this special

nature of a reduction-in-force "which makes the broader class

definition appropriate").

Similarly, as Ercegovich v. Goodyear Tire & Rubber Co., 154

F.3d 344 (6th Cir. 1998) held, especially in a reduction-in force

case, job titles are not a "meaningful distinction":

We believe that when an employer makes selective

offers of transfers following a reduction in force

or a reorganization, differences in the job

activities previously performed by transferred and

non-transferred employees do not automatically

constitute a meaningful distinction that explains

the employer's differential treatment of the two

employees. Common sense suggests that when an

employer harboring age-discriminatory animus

eliminates several employees' positions, its

decision to transfer its younger workers to new

positions while denying its older workers the same

opportunity irrespective of past differences in

their particular job functions may reflect

proscribed age bias.

Id____.at 353 (emphasis added).

In addition, Grayson, 79 F.3d 1086, 1096 (llth Cir. 1996),

held, "plaintiffs need show only 'that their positions are similar,

not identical,' to the positions held by the putative class

members." (Citations omitted).

Notably, the court in Hyman v. First Union allowed a

collective ADEA action that included a wide variety of job titles,

including all those who had direct contact with the public and a

revenue and fee-generating component to their job responsibilities.

51

_, 982 F.Supp. I, 2 n. 2 (D.D.C. 1997). This was based in part

on its finding that there was a reasonable basis for concluding

that (during the same time period at issue here and with the same

top management as here), the alleged age discrimination was a

_ompany-wide practice "made because of a bias on the part of top

management [at First Union] that filtered down to the

decisionmakers." Id., at I, 4, 6, 7, 18 (D.D.C. 1997).

In the case at bar, all Proposed Intervenors went through the

same merger-selection process designed by Ms. Huber who reviewed

each of the merger-selection decisions regardless of the acquired

employee's job title or location. Proposed Intervenors, again

regardless of their job title, also went through the subsequent

post-merger selection process that was entirely subjective and

resulted in systematic age discrimination. Moreover, nearly two-

thirds of them held and sought the same related positions as those

held and sought by Ms. Stone.

The district court also found Proposed Intervenors presented

too many different types of claims and therefore proceeding

together was inappropriate. DE 1276, p. 25. Even a cursory review

of what the district court's characterized as "different claims",

shows this is simply not the case. For example, demotion with or

without a pay cut, and change in job title are the same adverse

action; failure to reassign after job elimination and failure to

hire after acquisition are the same as involuntary termination;

failure to communicate privately is merely an evidentiary fact, not

an actionable "claim". Moreover, the important facts are that

52

virtually all the claims asserted by Proposed Intervenors are also

asserted by Ms. Stone, and 98.8% of all Plaintiffs are claiming

termination, or demotion, or termination in addition to demotion.

In Alexander v. Fulton County, 207 F.3d 1303, 1324 (llth Cir.

2000) the Court found the fact that plaintiffs suffered different

effects of discrimination -- denial of reclassification, denial of

promotion, denial of restoration of rank, discipline, failure to

consider for appointment to unclassified positions, and

discriminatory transfers and assignments -- did not preclude a

finding that there are common questions of law and fact and that

intervention was appropriate. Indeed, the Court found plaintiffs'

claims "logically relate or overlap and each of plaintiff's claims

and evidence of discrimination undoubtedly are relevant to every

other plaintiff's core allegations of systemic discrimination."

Id. 1325 (citation omitted). 31

In a similar vein, Thiessen v. General Electric Capital Corp.,

267 F.3d 1095, ii00, 1107-1108 (10th Cir. 2001), cert. denied, 536

U.S. 934, 122 S.Ct. 2614 (2002), held ADEA plaintiffs were

similarly situated where elimination as "blockers" was effectuated

by demotion, termination, negative evaluations, reductions in

31 While the Alexander Court noted there may be concerns if

discrimination occurs during different time periods, by different

decision makers, or at geographically removed places, these

concerns are not present here. Grayson allowed an ADEA collective

action covering 700 stores in 18 states for actions over a two-year

period. The discrimination for which recovery is sought here,

occurred during a discrete two-year period of time (1992 to 1994),

the policies and procedures giving rise to discrimination were

formulated and administered by the same person, and selection

decisions were reviewed by the same person regardless of the

acquired employee's location, job title, or local decision maker.

53

force, and elimination of positions through restructuring.

In sum, the substantial similarities of the Proposed

Intervenors and Ms. Stone dwarf any differences there may be

between them. Even under the strict standards of Rule 23, the

claims of class members need only share the same essential

characteristics to proceed together, and a strong similarity of

legal theories will satisfy the typicality requirement despite

substantial factual differences. See Prado-Steiman v. Bush, 221

F.3d 1266, n. 15 (llth Cir. 2000); Appleyard v. Wallace Co., 754

F.2d 955, 958 (llth Cir. 1985) (typicality satisfied when "strong

similarity of legal theories"); Kornberg v. Carnival Cruise Lines,

Inc., 741 F.2d 1332, 1337 (llth Cir. 1984) ("sufficient nexus"

established if claims "arise from the same event or pattern and

practice and are based on the same legal theory"); Hudson v. Delta

Air Lines, Inc., 90 F.3d 451, 457 (llth Cir. 1996) (commonality

satisfied if issues susceptible to class-wide proof).

If. District Court Abused Its Discretion By

Denying Permissive Intervention

In Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.

1977), the Court held that under its "anomalous rule" governing

appealability of orders denying intervention, it has provisional

jurisdiction to determine whether a district court erroneously

concluded an applicant was not entitled to intervene under

Fed.R.Civ. P. 24(a), or clearly abused its discretion in denying an

54

application for permissive intervention under Rule 24(b). 32

In the alternative, in the event the Court reverses the

district court's denial of Proposed Intervenors' Motion to

Intervene as a matter of right and determines that an opinion on

the district court's denial of permissive intervention is

warranted, Proposed Intervenors submit that the district court

abused its discretion in doing so.

Fed.R.Civ. P. 24(b)(i) provides, "Upon timely application

anyone may be permitted to intervene in an action: when a statute

of the United States confers a conditional right to intervene".

Under the governing statute, 29 U.S.C. § 216(b) incorporated into

the ADEA in 29 U.S.C. § 626(b), Proposed Intervenors met the

conditions for intervention: they all filed written Consents to

join, and they are similarly situated for all the reasons set forth

in their arguments for intervention as a matter of right.

Fed.R.Civ. P. 24(b)(2) provides:

Upon timely application anyone may be permitted tointervene in an action: .; (2) when an

applicant's claim or defense and the main action

have a question of law or fact in common .... In

exercising its discretion the court shall consider

whether the intervention will unduly delay or

prejudice the adjudication of the rights of the

original parties.

Under Fed.R.Civ. P. 24(b(2), the first determination is whether

there is a common question of law or fact, and this determination

is an issue of law, and not discretionary. Stallworth, 558 F.2d

32 Standing a__lone a motion for permissive intervention is

neither a final decision nor an appealable interlocutory order.

Davis v. Butts, 290 F.3d 1297, 1299 (llth Cir. 2002) (without

discussion of Stallworth).

55

257, 269 (5th Cir. 1977). If there is a common question, then the

district court must make a determination, in its discretion,

whether to allow intervention. Id. at 269-270.

Proposed Intervenors submit that for the reasons set forth in

their arguments for intervention as of right, they share common

questions of law and fact and that denial of permissive

intervention was an abuse of discretion because it would result in

161 separate trials and a horrendous waste of time and resources.

CONCLUSION

For the above reasons, Proposed Intervenors respectfully

request the Court reverse the district court's denial of their

Motion to Intervene, so that they may all proceed collectively to

have their common issues of law and fact adjudicated in the same

action, and protect their interests. Allowing them to intervene --

whether as of right or permissively -- is the most cost-effective,

efficient, and the least prejudicial to all parties.

JACK SCAROLA

Fla. Bar No. 169440

DAVID J. SALES

Fla. Bar No. 794732

SEARCY DENNEY SCAROLA

BARNHART & SHIPLEY, P.A.

Attorneys for Appellants2139 Palm Beach Lakes Blvd.

West Palm Beach, FL 33409Tele: 561-686-6300

Fax: 561-684-5816

Respectfully submitted,

BRENDA J. CARTE_Fla. Bar No. 0_57289


1451 West Cypress Creek RoadSuite 300

Fort Lauderdale, FL 33309

Tele: 954-489-2718

Fax: 954-977-4608

56

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitations of

Fed.R.App.p. 32(a)(7)(B) because this brief contains 13,624 words,

excluding the parts of the brief exempted by Fed. R.App. P. 32(a)(7)

(B)(iii).

Brenda J. Cater


CERTIFI_TE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent by

Federal Express to J. THO_S KILPATRICK, ESQ., Alston & Bird,

Attorneys for Appellees, One Atlantic Center, 1201 West Peachtree

St., Atlanta, GA 30309-3424 on this /_ day of August, 2003.

JBRENDA J. CART

57

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