MOORE v. NAPOLITANO

1990) (certifying a class of 36 members); Alvarado Partners, L.P. v. Mehta, 130 F.R.D. 673, 675 (D. Colo. 1990) (certifying a class of 33 members). Thus, the plaintiffs have satisfied Rule 23(a)(1)'s numerosity prong. II. COMMONALITY

"To establish commonality under Rule 23(a)(2), a plaintiff must identify at least one question common to all members of the class." Garcia, 444 F.3d at 631. "`[F]actual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.'" Encinas, 265 F.R.D. at 8 (quotingBynum v. District of Columbia, 217 F.R.D. 43, 46 (D.D.C. 2003)). Courts have noted that the commonality requirement "is `often easily met'" and that "proposed class actions seeking injunctive and declaratory relief . . . `by their very nature' present common questions of law and fact." Taylor, 241 F.R.D. at 37 (quoting 7A Wright, Miller Kane, Fed. Practice and Procedure § 1763 (3d ed. 2005)). However, plaintiffs in Title VII class actions must not only demonstrate that class plaintiffs suffered discrimination on the basis of membership in a particular group; "plaintiffs must make a `specific presentation' that identifies the questions of law or fact common to the class representative and the putative class." McReynolds, 208 F.R.D. at 440-41 (quoting Wagner v. Taylor, 836 F.2d 578, 589 (D.C. Cir. 1987)). In other words, a "plaintiff must `bridge th[e] gap' between her own alleged discrimination and a `common policy' that affected the members of the putative class." Taylor, 241 F.R.D. at 37-38 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 (1982)).

In cases where plaintiffs allege disparate treatment of a class, plaintiffs seeking class certification must "show (i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that permits the court to infer that members of the class suffered from a common policy of discrimination." Love v. Johanns, 439 F.3d 723, 728 (D.C. Cir. 2006) (internal quotation marks and brackets omitted) (emphasis in original). Regarding a complaint of "class-wide discriminatory impact, [plaintiffs] must make a showing sufficient to permit the court to infer that members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy." Garcia, 444 F.3d at 632 (internal quotation marks omitted) (emphasis in original). To satisfy Rule 23(a)'s commonality requirement, plaintiffs may put forth statistical and anecdotal evidence to support an inference that the defendant's policies and procedures are subjective and susceptible to racial discrimination and have a common impact upon the acts of discrimination that the plaintiffs allege they suffered. See Taylor, 241 F.R.D. at 40-44. The plaintiffs here offer both statistical and anecdotal evidence.

A. Statistical evidence

1. Dr. Sharf's testimony

Plaintiffs argue that the agency-wide scoring process for competitive promotions is highly subjective and that the scoring process, "in policy and practice, has adversely affected African-American Agents because they have been denied competitive promotions for which they were qualified in favor of less-qualified white Agents." (Pls.' Mem. at 32.) Plaintiffs rely, in part, on the expert testimony of Dr. James Sharf, who testified that "the MPP and its implementation by the Secret Service are based on unreliably subjective" peer review panels, assistant director panels and advisory boards, and are governed by "unreliably subjective discretion by the Assistant Directors and Director." (Id., Ex. 33 ¶ 6.) Sharf provides examples of the MPP's "subjectivity and unreliability" which include that the "reasons for Peer Panel scoring are not recorded and after the fact explanations for the scorings are arbitrary and unreliable"; that the Agency "may promote Special Agents who have not bid on a position, rendering the bidding process unreliable"; that an Assistant Director "may, in his sole discretion, change an Agent's score after a score has been assigned"; and that the significance of differences in an Agent's bid history, MPP scores and time in the field varied significantly between Assistant Directors. (Id., Ex. 33 ¶ 7.)

The defendant argues that Sharf's testimony is unreliable because Sharf "specifically conceded that he could not attest that the MPP process, even if unreliable, had disadvantaged African-Americans." (Def.'s Opp'n at 46.) Indeed, Sharf stated that he had not "formed an opinion one way or the other" as to whether African-Americans are disadvantaged as a result of the MPP process. (Id., Ex. 8, 188:23-25, 189:3-9.) However, the plaintiffs have not provided Sharf's testimony for the purpose of proving that the MPP's subjectivity disadvantaged African-Americans. Rather, they have provided it to show that subjectivity is involved at each stage of the Secret Service's evaluation system. (See Pls.' Mem. at 67.)

The defendant further argues that the promotion recommendations "include a consideration of specific, objective criteria." (Def.'s Opp'n at 46.) However, "[w]hether a particular [decision-maker] uses objective criteria in making particular promotion decisions is irrelevant to the commonality analysis; instead what is significant is that the determination of which criteria to use is left entirely to the individual [decision-maker]." McReynolds, 208 F.R.D. at 442. The plaintiffs have offered at least some evidence that the MPP promotions process includes some subjective decision-making. For example, the ADs sitting on Second Level Panels are able to review and adjust candidates' ratings without justification. Also, ADs are given no instruction, guidance, or criteria to use in making promotion recommendations to the Directors. (Pls.' Mem. 18-20.) Thus, even though objective criteria are a component of the MPP scoring process, the process still includes some subjective decision making, and Sharf's testimony can support an inference that the plaintiffs were victims of promotion decisions that were affected by a discriminatory MPP.

2. Dr. Charles Mann's report

Plaintiffs also rely on Dr. Charles Mann's report, which considers "whether the data [plaintiffs] have provided supports an assertion of adverse impact of the [Secret Service's] employment policies against African-American . . . SAs . . . as compared with non-African-American SAs." (Pls.' Mem., Ex. 2 ¶ 12.) "Mann found that for the years 1998 to 2000, the difference between expected African-American promotions in the absence of discrimination, taking as given the presence of African-Americans on the [BQL], and actual African-American promotions to GS-14 was statistically significant and adverse to African-Americans with a probability level of .0045, which corresponds to less than one chance in 222 or more than 2.8 standard deviations." (Pls.' Mem. at 13 (citing Mann Report, Ex. 2 ¶ 45) (footnote omitted).) Mann further found that "[f]or promotions to the GS-15 level, . . . for the years 2002 to 2005, the difference between expected African-American promotions in the absence of discrimination, taking as given the presence of African-Americans on the [BQL], and actual African-American promotions to GS-15 was statistically significant and adverse to African-Americans with a probability level of .0195, which corresponds to less than one chance in 51 or more than 2.3 standard deviations." (Id. (citing Mann Report, Ex. 2 ¶ 47) (footnote omitted).) From this evidence, the plaintiffs conclude that fewer African-Americans were promoted to GS-14 and GS-15 levels "than would be expected in the absence of discrimination based even on the number of African-Americans who actually made the [BQL]." (Id.)

The defendant attacks Mann's report on several grounds. First, the defendant asserts that the results fail to demonstrate that African-American SAs as a class were under-promoted during the relevant time periods and that the evidence is restricted to two cherry-picked time periods of three and four years which are different for applicants to the GS-14 level than for those to the GS-15 level. (Def.'s Opp'n at 49.) The defendant also argues that Mann's report fails to consider the composition of all the BQLs and ignores a "substantial number of BQLs where all African-American bidders were included." (Id. at 54.) According to the defendant, for "approximately 34% of vacancies during the period from 1995 to 2004 for GS-14 positions, and for approximately 73% of vacancies from 1995 to 2005 for GS-15 positions, all candidates who applied for the vacancy were considered for promotion." (Id. at 53.)

A large portion of the defendant's opposition is devoted to a discussion of the merits of the analyses of the parties' respective statistical experts. Specifically, the defendant argues that there is "un-rebutted evidence that African-American agents as a class were promoted at the same speed, if not faster than, non-African-American agents." (Def.'s Opp'n at 49.) However, "[t]he battle of statistical experts, while central to the ultimate issue of liability, is not relevant to the issue of class certification." Jarvaise, 212 F.R.D. at 3 n. 1. "[A]n examination of the statistics proffered by plaintiffs" is appropriate in determining class certification, McReynolds, 208 F.R.D. at 435, if the court can infer discrimination from them.Taylor, 241 F.R.D. at 44.

Notwithstanding these arguments, Mann's evidence is statistically significant because a "standard deviation of 1.96 or higher indicates a `level of statistical significance [that] is sufficient to establish a prima facie case of both disparate treatment and disparate impact.'" Taylor, 241 F.R.D. at 44 (quoting Anderson v. Zubieta, 180 F.3d 329, 340 (D.C. Cir. 1999)) (alteration in original). Moreover, Mann's conclusions are appropriate to consider since they measure only time periods that fall within the proposed class periods.

Further, the fact that the report makes no explicit findings related to the rate at which African-American SAs receive promotions in comparison to non-African-American SAs (see Pls.' Mem, Ex. 2) does not necessarily undermine a finding of an inference of discriminatory policy or practice within the MPP promotions system. Title VII disparate impact cases are not measured only at the "bottom line" — in this case, the plaintiffs' promotions — because "Title VII guarantees . . . individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria." Connecticut v. Teal, 457 U.S. 440, 451 (stating that "Title VII strives to achieve equality of opportunity by rooting out `artificial, arbitrary, and unnecessary' employer-created barriers to professional development that have a discriminatory impact upon individuals") (emphasis in original). If the MPP scoring process did, as alleged, prevent the plaintiffs from being promoted to GS-14 and GS-15 levels, then Mann's failure to make ultimate conclusions regarding the rate of African-Americans promoted within the Secret Service is not fatal to the plaintiffs' statistical showing.

Finally, although Mann's report omits an analysis of the MPP in promotions from pools of applicants who all made the BQL (Pls.' Mem., Ex. 2 ¶ 77), this omission does not preclude proof that the MPP was used to discriminate in promotions in which not all applicants made the BQL. Thus, Mann's report could support an inference that the MPP promotions policies and process during the relevant class period was susceptible to racial discrimination and affected plaintiffs' experiences.

Mann also did not analyze promotions made without the use of a BQL, nor could he have analyzed the impact of the MPP upon agents who were deterred from seeking an MPP score and bidding for a promotion. (See Pls.' Mem, Ex. 2 ¶¶ 44, 78.)

B. Anecdotal evidence

The plaintiffs also offer anecdotal evidence of discrimination from the testimony of African-American current and former Secret Service agents and state that the employees' declarations "provide the `personal experiences . . .' that bring `the cold numbers [of disparity] convincingly to life.'" (Pls.' Mem. at 69 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977).) In addition to anecdotal evidence provided by the named plaintiffs, the record includes numerous declarations of putative class members who allege that they have experienced discrimination at the hands of the Secret Service.

Plaintiffs also offer anecdotal evidence of discrimination that should not actually bear upon commonality here because it does not involve promotions or fall within the class period. (See,e.g., id., Ex. 1, Banner Decl. ¶ 9 ("When I arrived at work one morning, I found two Nigerian postage stamps on my desk with a message to `Go back to Africa.'"); Bryant Decl. ¶ 27 ("In September of 1991, frustrated with the discriminatory policies and practices that had repeatedly resulted in denials of promotions to which I was entitled, I left the [Agency.]").)

For example, Agent Wayne Robinson testified that "two of his immediate supervisors . . . told [him] that [he] could improve his chances for promotion if [he] bid on positions that would require [relocation.] However, many white Agents . . . have been promoted . . . and did not have to relocate." (Id., Ex. 1, Robinson Decl. ¶ 20.) Robinson "believe[s] this is an example of the Secret Service imposing requirements on African-American [SAs] for promotion that are not required of white Agents." (Id.)

Agent Tamara Blair testified that "[b]ecause of the Secret Service's discriminatory . . . practices, [she] did not receive recognition for work equal to or better than that of white [SAs] who were recognized" and that supervisors "would often give awards to white male SAs . . . [even though she] had significantly higher [performance ratings] than the other [SAs]." (Id., Blair Decl. ¶ 12.) She testified further that "[d]espite achieving consistently strong First Level Evaluation scores, [her] overall MPP scores have not reflected [her] performance. . . . [T]he scores given by the panel bear little relationship to an Agent's abilities and accomplishments but rather reflect whether the Agent is hooked into the right network[.]" (Id., Supp. Blair Decl. ¶ 14.) "[W]hite Agents . . . get higher scores." (Id.)

Agent Kenneth Bradshaw testified that despite ranking "very highly on performance evaluations by [his] direct supervisors[,]" his total scores were low because "an Agent's scores are easily manipulated by the peer panels to the advantage of white Agents." (Id., Bradshaw Decl. ¶ 17.) Bradshaw "once heard [an AD] admit . . . that, for many promotions, the Secret Service leadership already knows who they are going to give the position(s) to from the time they are posted [and] before Agents even bid. In such cases, the scoring process is meaningless." (Id. ¶ 18.)

Agent Angela Burns-Ramirez stated that even though she "received a 96% from [her] direct supervisor" on her 2003-2004 MPP score, she received only 52% on the portion of the evaluation completed by those who did not supervise her work, which "demonstrates the subjectivity and potential for abuse of the construction of the MPP scores." (Id., Supp. Burns-Ramirez Decl. ¶ 19.) She believes that her "low score was the result of [racial] discrimination." (Id.) Burns-Ramirez "bid on more than 75 GS-14 positions before [she] was finally promoted" and "believe[s] that [she] did not get the GS-14 positions [on which she earlier bid] . . . because of [her] race." (Id. ¶ 14.)

Further, Agent Burrell testified that despite having received positive performance reviews, having served in "two of the most demanding squad positions in the Los Angeles Field Office[,]" and having had "more supervisory experience than most white Agents promoted to GS-14," his white co-workers have been promoted over him. (Id., Burrell Decl. ¶¶ 13, 15, 18.) Agent Rodney Stewart testified that despite receiving high first-level scores, his overall MPP scores have been low. (Id., Supp. Stewart Decl. ¶ 22.) "For example, in 2004-2005, [Stewart] received a 48/50 on [his] First Level Evaluation, but only a . . . 56% on the remainder of [the] evaluation." Id. He testified that "MPP scores are entirely subjective and used to keep African-American Agents from receiving promotions." Id. Given the plaintiffs' extensive anecdotal accounts of discrimination within the Secret Service and their statistical showing that raises an inference of a causal discriminatory policy, the plaintiffs have carried their burden of establishing Rule 23(a)'s commonality requirement.

III. TYPICALITY

"Typicality requires that the claims of the representative be typical of those of the class." Encinas, 265 F.R.D. at 9 (internal quotation marks omitted). "This inquiry overlaps with the commonality inquiry, as each seeks to determine the practicality of proceeding with a class action and the extent to which the plaintiffs will protect the interests of absent class members." Id. "A plaintiff's claims can be typical of those of the class even if there is some factual variation between them."Id. Most importantly, "the named plaintiffs' injuries [must] arise from the same course of conduct that gives rise to the other class members' claims." Id. (internal quotation marks omitted).

The plaintiffs seek to certify a broad class of all African-American current and former agents who were employed as Criminal Investigators and who had the required time-in-grade to seek promotion during the class period. The plaintiffs assert that "[j]ust like Class Plaintiffs, any class member who was eligible for promotion to a GS-14 or GS-15 position was subject to the same excessively subjective policies and practices of the MPP, including those Agents who were discouraged completely from participating" in the MPP promotions process. (Pls.' Reply at 41.) The defendant argues that the plaintiffs have failed to show that the individuals' claims will be typical of the class claims because all class representatives elected to obtain MPP scores and bid on announced vacancies. Thus, the class cannot include individuals who elected not to participate in the promotion process or were selected for promotion during their first promotion bid cycle because the "class representatives all participated in the promotion process on multiple occasions[.]" (Def.'s Opp'n at 56-57.)

Here, the named plaintiffs all participated in the bid process, and all but two eventually received promotions. "[A] formal [bid] for employment is not a condition precedent to relief from unlawful discrimination where the `application would have been a useless act serving only to confirm a discriminatee's knowledge that the job he wanted was unavailable to him.'" Rodriguez v. U.S. Dep't of Treasury, 131 F.R.D. 1, 6 (D.D.C. 1990) (quotingInt'l Bhd. of Teamsters, 431 U.S. at 367). Indeed, in some cases, courts have "included within a class those persons who were discouraged from applying based upon the knowledge that the discriminatory policy was in place." Id.

Rodriguez warned, though, that including within a class a group of deterred or discouraged bidders could undermine "the interest of judicial economy which class litigation is designed to serve" since "[t]he focus of the class litigation with regard to these individuals would most certainly shift from defendants' conduct to the factual circumstances of individual plaintiffs." Rodriquez, 131 F.R.D. at 7; see also Selzer v. Bd. of Educ. of N.Y., 113 F.R.D. 165, 167 (S.D.N.Y 1986) (citing Falcon, 457 U.S. at 157 n. 13). Rodriquez also opined that deterred bidder claims could undermine numerosity. See Rodriguez, 131 F.R.D. at 6. Where the "existence of a substantial group of deterred applicants remains speculative following plaintiff's discovery," id. — as appears to be the case here, considering that the plaintiffs do not include any estimate of the number of deterred bidders in the putative class because the Secret Service's database does not include deterred bidders (see Pls.' Reply at 35 n. 28) — such a group may be unidentifiable. Id. at 7.

Tyler is the closest the class representatives come to having as a member a deterred bidder. Tyler's bidding was merely deferred, though, not wholly deterred. With no class representative who was deterred from ever bidding, there is every risk that the interests of the absent, wholly deterred bidders would not at all stages of this litigation be equally advanced and protected by the merely deferred bidders.

Further, the class representatives' claims are not typical of the claims of any putative class member who was eligible for a promotion and received it on her first bid. That particular class member may not have suffered an injury at all, much less an injury typical of the injuries alleged by the class representatives. See, e.g., Cohen v. Chilcott, 522 F. Supp. 2d 105, 115 (D.D.C. 2007) ("The typicality requirement aims at ensuring that the class representatives have suffered injuries in the same general fashion as absent class members." (internal quotation marks omitted)).

The defendant also argues that plaintiffs have no representative for claims by GS-13 SAs denied promotion because all class representatives seeking promotion to the GS-14 level were in fact promoted, save for Tyler and Rooks. The defendant contends that Tyler's non-promotion claim is not typical of those of the putative class because she never made a single BQL for any position on which she bid and that Rooks's non-promotion claim is not typical because she became eligible to bid and began bidding only in 2004. (Def.'s Opp'n at 57-58.) However, this argument is unpersuasive since "[t]he facts and claims of each class member do not have to be identical to support a finding of typicality." Cohen v. Chilcott, 522 F. Supp. 2d 105, 115 (D.D.C. 2007). Rather, class representatives must have suffered injuries in the same general fashion as have absent class members. Id. Here, Tyler's and Rooks's non-promotions are injuries suffered in the same general fashion as those suffered by putative class members who bid, but were never promoted. That Tyler did not make a BQL or that Rooks became eligible to bid only in 2004 does not undermine this finding.

Here, then, the mere fact that there may be a broad group of African-American agents who were eligible for promotion to the GS-14 or GS-15 levels is insufficient, on its own, to satisfy Rule 23(a)'s typicality requirement. See, e.g., Falcon, 457 U.S. at 162 ("We have repeatedly held that the bare fact that a plaintiff alleges racial or ethnic discrimination is not enough to justify class certification."). The plaintiffs are attempting to certify a broad class of African-American agents who were eligible for promotion, but who may or may not have claims that are typical of those of the class representatives. Thus, the plaintiffs' class, as proposed, does not satisfy the typicality requirement of Rule 23(a).

IV. ADEQUACY OF REPRESENTATION

The final requirement of Rule 23(a) requires the court to "determine whether the proposed representatives can adequately represent the interests of the class." Taylor, 241 F.R.D. at 45. A representative is adequate if "(1) his interests do not conflict with those of other class members, and (2) he will vigorously prosecute the interests of the class through qualified counsel."Lindsay v. Gov't Employees Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008). When there is a dispute as to the existence of a conflict of interest between class members, a court must bear in mind that "[c]lass members whose interests are antagonistic in fact to, or even `potentially conflicting' with, the interests of the ostensibly representative parties cannot be bound, consistent with the requirements of due process to an adjudication taken in their name." Phillips v. Klassen, 502 F.2d 362, 366 (D.C. Cir. 1974) (quoting Hansberry v. Lee, 311 U.S. 32, 41-42 (1940)). In employment discrimination cases, although the fact that some class members are supervisors does not constitute per se a conflict of interest, it does pose a serious problem where class plaintiffs have accused class members of the same type of discrimination from which they seek relief. Wagner, 836 F.2d at 595; McReynolds, 208 F.R.D. at 447 (D.D.C. 2002).

Here, there is no dispute as to the competency of counsel to represent the class's interest. There is a dispute, however, regarding a potential conflict of interest among class plaintiffs and class members. The plaintiffs assert that there is no conflict of interest because class plaintiffs "share identical interests in this lawsuit as the class members, and . . . desire the same relief[,]" namely, "to prove the existence of the Secret Service's pattern and practice of race discrimination in the promotions process, and the adverse impact on African-American Agents from the excessively subjective and unfettered policies and practices of the MPP." (Pls.' Mem. at 71-72.) The defendant counters that the plaintiffs cannot satisfy the adequacy requirement because the "proposed class would include . . . former and current supervisors who have been personally and substantially involved in the very promotion process that plaintiffs claim is discriminatory." (Def.'s Opp'n at 75.)

As one example, the defendant notes that "Andrew Harris, one of the named plaintiffs, has served on a promotion rating panel[,]" and in this capacity, he "personally rated four . . . [of] his fellow class representatives [who] claim discrimination in the very scores that he was involved in assigning." (Id. (citing Ex. 5 ¶ 67).) The defendant further states that Agents Summerour and Moore have accused potential class members of making discriminatory promotion decisions. (Id. at 77.) Plaintiffs counter that Summerour and Moore did not accuse the identified potential class members of actual discrimination, but merely asserted that these senior agents "were going along with or participating in the Agency's discriminatory promotions process." (Pls.' Reply at 44 n. 38.)

The record reflects direct accusations of discrimination within the class. For example, Summerour testified that she believed that Larry Cockell — a putative class member — discriminated against her when he denied her a higher MPP score. (Def.'s Opp'n at 77, Ex. 42, 46:8-15 ("Q: Did you believe that Larry Cockell discriminated against you when he refused to change the score? A: Yes, I do. Q: And why do you say that? A: Because . . . I think he facilitated [the Agency's discriminatory] system by letting it continue and not trying to change it.").) When asked whether there were senior-level African-American agents who were a part of the Secret Service's "Good `ol Boy Network," Summerour stated that she believed that Cockell and other African-American agents were a part of that network. (Id., Ex. 42, 253:11-24.)

The record also demonstrates that several potential class members were directly involved in the Peer Panel or Second Level evaluation process, which raises a specter of these class members' participation in the discriminatory conduct of which plaintiffs complain. For example, between 1995 and 2005, sixteen African-American supervisors participated, at least once, as a Peer Panel member rating SAs for promotion to GS-14 positions. (Id. at 77 n. 59 (citing Ex. 5 ¶ 67).) During the same time period, eight African-American Supervisors participated as Second-Level Panel evaluation members rating SAs for promotion to GS-14 and GS-15 positions. (Id., Ex. 5 ¶ 68.)

Although the existence of supervisors among the class members does not automatically undermine the adequacy of representation, the conflict of interests here — which includes direct accusations of discrimination among and between class members and class representatives — is not insignificant. Because plaintiffs have not proposed for consideration a class free of conflicts of interests, the representation as proposed is inadequate. See,e.g., In re PEPCO Employment Litig., Civil Action No. 86-0603 (RCL), 1992 WL 442759, at *22 (D.D.C. Dec. 4, 1992) (denying certification of a subclass in light of direct accusations of discrimination among class members and holding that the existence of any conflict is sufficient to prevent certification).

CONCLUSION AND ORDER

Given the plaintiffs' proposed definition of the class and the current composition of the group of class representatives, the plaintiffs have failed to satisfy the typicality and adequacy of representation elements required by Rule 23(a), and their motion for class certification will be denied without prejudice. Accordingly, it is hereby

In response to plaintiffs' motion for class certification, the defendant has filed a motion in limine, seeking to exclude Dr. Mann's testimony. Because the plaintiffs' motion for class certification will be denied, the defendant's motion [633] in limine will be denied as moot. Plaintiffs' motion [650] for oral argument also will be denied as moot.

ORDERED that plaintiffs' motion [585] for class certification be, and hereby is, DENIED without prejudice. It is further

ORDERED that defendant's motion [633] in limine be, and hereby is, DENIED as moot. It is further

ORDERED that plaintiffs' motion [650] for oral argument be, and hereby is, DENIED as moot.