BARRINGTON D. PARKER, District Judge:
In December, 1980, Plaintiff Ms. Sharon A. Moore, a black female, filed an employment discrimination suit against the National Association of Securities Dealers (NASD), a self-regulatory body for federal and state securities laws. At the time of filing, she was no longer employed by the NASD. She started with NASD in November, 1978, and left the defendant's employment in February, 1980. Her complaint alleged violations of the Equal Pay Act, 29 U.S.C. § 206(d) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Title VII count alleged sex and race discrimination in recruitment, selection, training, evaluation, promotion, and work assignments. The complaint sought declaratory, injunctive and monetary relief for the plaintiff and a class of all past, present and future employees of and applicants for employment with NASD. The sex discrimination claims were later abandoned.
On August 31, 1981, an order was entered certifying a class of all past, present and future black employees of the NASD. Plaintiff's request to include unsuccessful applicants within the class or certify a separate class of women was denied out of a concern that the presence of these groups could create conflicts of interest. After additional discovery, the Court redefined the class, in October 1982, to include all past, present and future black employees of the NASD who have been engaged in surveillance of over-the-counter securities markets.
Following rounds of discovery and extensive pretrial proceedings, and on the eve of the scheduled trial on the merits, the parties represented at a status call on May 23, 1983, that a settlement had been reached. At that hearing, counsel for the plaintiffs represented that a total settlement had been reached. The settlement included a pending appeal denying a motion to amend the complaint, the withdrawal of all pending motions and a "walk-away from any petitions for fees or expenses, a total give up of all of that, and in return we get . . . affirmative relief provided for in a consent decree which we would jointly urge [the Court] to sign . . . after a hearing calling for affirmative relief over a period of five years . . . ."
Plaintiffs' counsel represented in a subsequent pleading
that the terms of the proposed settlement constituted a fair resolution of the claims advanced by members of the class and that it did not provide for immediate monetary relief to Sharon Moore and the class. Pretrial discovery revealed that while disparties existed between salaries paid to black and white employees, they were neither uniform nor marked, and that any potential award of back pay would have been problematical at best and would have paled in comparison with the importance of the affirmative relief to the members of the class. Counsel further represented that the most important objective was to establish policies and procedures that ensure that members of the class have a fair opportunity in the future for upward mobility within the NASD.
In that same pleading, Ms. Moore's counsel represented that she undertook and assumed an obligation to promote and advance the interests of the class before any personal concerns, including a responsibility as guarantor of the costs of the litigation. She receives no personal financial benefits from the settlement, and in fact, is left with a liability for litigation expenses, including transcript costs, expert witnesses, and computer time. However, those expenses are specifically waived by the agreement and counsel for the class representative agreed to accept whatever the defendant will offer her.
In the same memorandum, at page 10, plaintiffs' counsel represented:
[Ms. Moore] faced with the conflict of having been offered what she regards as significant affirmative relief for the class that she represents, some of which could not ever have been obtained after a fully successful trial on the merits, decided that consistent with her responsibility as a representative of the class, she could not place her own economic interest before the interest of the class. The problem was clear and the choice equally clear. She had to forego the claim for reimbursement of expenses and accept the economic burden that her position as class representative placed on her. Consequently, with full knowledge of the burden, she authorized the signing of the letter of May 11, 1983 attached as Exhibit B.