1

  1                      UNITED STATES DISTRICT COURT

                         FOR THE DISTRICT OF COLUMBIA

  4  ROSEMARY LOVE, et al.,          :

  5           Plaintiffs,            :  Docket No. CA 00-2502 JR

                                     :  Washington, D.C.

  6           v.                     :

                                     :  Monday, July 28, 2003

  7  ANN VENEMAN, Secretary, U.S.    :  4:58 p.m.

     Department of Agriculture,      :

  8                                  :

              Defendant.

 .................................

 11                     TRANSCRIPT OF STATUS HEARING

                     BEFORE THE HONORABLE JAMES ROBERTSON

 12                     UNITED STATES DISTRICT JUDGE

 14  APPEARANCES:

     For the Plaintiffs:      ARENT, FOX, KINTNER, PLOTKIN & KAHN

 16                           MARC L. FLEISCHAKER, ESQ.

                              BARBARA S. WAHL, ESQ.

 17                           1050 Connecticut Avenue, N.W.

                              Washington, D.C. 20036-5339

 18                           WASHINGTON LAWYERS COMMITTEE FOR

                              CIVIL RIGHTS AND URBAN AFFAIRS

 19                           SUSAN E. HUHTA, ESQ.

                              11 Dupont Circle, N.W.

 20                           Washington, D.C. 20036

 22  For the Defendant:       U.S. DEPARTMENT OF JUSTICE

                              MARK T. QUINLIVAN, ESQ.

 23                           20 Massachusetts Avenue, N.W.

                              Washington, D.C. 20530

  7  Court Reporter           DENNIS A. DINKEL, FAPR, RDR, CRR

  8                           Official Court Reporter

  9                           Room 6818, U.S. Courthouse

 10                           Washington, D.C. 20001

 11                           Phone:  (202) 289-8661

 14  Proceedings reported by machine shorthand, transcript produced by

 15  computer-aided transcription

  1                       P R O C E E D I N G S

  2                                           (4:58 p.m.)

  3           THE DEPUTY CLERK:  Civil Action No. 00-2502,

  4  Rosemary Love and others versus Ann Veneman.  For the

  5  plaintiffs, Mr. Fleischaker, Ms. Wahl, and Ms. Huhta.  For the

  6  defendant, Mr. Quinlivan.

  7           MR. QUINLIVAN:  Good afternoon, Your Honor.

  8           THE COURT:  Good afternoon, everybody.  All right.

  9  We've been rocking along here with discovery for some time, and

 10  the only thing I believe that's pending before me is this motion

 11  for leave to file a third amended complaint.

 12           MR. FLEISCHAKER:  That's correct.  That's why we asked

 13  for the status conference, Your Honor.

 14           THE COURT:  Okay.  Is this holding matters up?  If so,

 15  what is it holding up?

 16           MR. FLEISCHAKER:  Yes, it is holding matters up.  I'd

 17  be glad to try to explain --

 18           THE COURT:  Okay.

 19           MR. FLEISCHAKER:  -- how we came to this decision to

 20  file this and what would happen if it doesn't get acted upon and

 21  what would happen if it does get acted upon.

 22           THE COURT:  Okay.  Because my impression was that --

 23  the defense to this -- the opposition to this motion is

 24  prejudice, and I had thought when I saw the motion that all you

 25  were really doing is streamlining the complaint, setting up

  1  subclasses --

  2           MR. FLEISCHAKER:  That is what we are doing.

  3           THE COURT:  -- so you could have a better shot at class

  4  certification.  It means more discovery --

  5           MR. FLEISCHAKER:  It doesn't mean more discovery.

  6           THE COURT:  It does not?

  7           MR. FLEISCHAKER:  It does not.

  8           THE COURT:  What's being held up?

  9           MR. FLEISCHAKER:  We filed the motion because of the

 10  discovery we took, which was not extensive in cases like these.

 11  We have lots of boxes of documents and a number of depositions.

 12  What we concluded was, based on that discovery and based upon

 13  your order in the Garcia case and the way your motion -- the

 14  other conferences we've had with you, is that we had to try to

 15  put the case in some kind of more logical sequence in order to

 16  address the class certification issues and move forward.

 17           So if I can just address the three subclasses we

 18  proposed.  The first one is people, women who sought to get

 19  applications or receive applications.

 20           What we have determined is the department has no

 21  documents on that subject, and, therefore, there is no records

 22  to get from the Department of Agriculture; and, consequently, we

 23  feel like we have to treat that really like a public

 24  accommodations kind of a claim, where -- just to take an example

 25  of a case that the lawyers' committee had, the Denny's case

  1  where there was a refusal or poor service.  They went out, the

  2  lawyers' committee went out into the country, asked for people

  3  to give them declarations and statements of what happened; and

  4  that was used to pursue the class action.  I think the class was

  5  actually certified when they did that.

  6           In any event, we have about 200 or a little more than

  7  200 women already who signed declarations like that.  We believe

  8  it is nationwide.  We know we have to -- we have a burden of

  9  persuading you that it is nationwide; and, therefore, we are

 10  prepared to go out and try to get a broader example beyond the

 11  200 we already have of that particular subclass.

 12           The second subclass -- and we also have about 200 women

 13  who have signed declarations in this subclass -- is women

 14  who -- who never received a loan.  They actually applied for

 15  loans and never received loans.  Again, we did receive some

 16  discovery on this.  There's documents at the department but only

 17  going back for two to three years.

 18           Excuse me.

 19           So they don't go back as long as the case goes back,

 20  for sure.

 21           So we want to get a broader sampling in that, too.

 22           Now, there are a few -- we don't have any new discovery

 23  in that subclass.  There are a couple of minor matters, frankly,

 24  that need to be cleaned up that we may need to ask the

 25  department to -- I think the proper way is to finish the

  1  discovery that's outstanding, some definitional questions on

  2  what a male or family unit is, for example, so we can interpret

  3  the data that we've received; but no new kinds of discovery.

  4           Obviously, it's a little more complicated because

  5  hopefully we'll have applications, but the department does not

  6  have applications going back, so what we get from our class

  7  members or putative class members will be what's available.

  8           The third subclass is the one, I think, that has caused

  9  most of the problems in the case.  And, frankly, we're being

 10  candid.  We're not quite yet in a position to solve those

 11  problems.  We don't have as many people.  Those are women who

 12  received a loan, at least one loan, and had servicing problems

 13  or had problems in the -- in receiving a second loan.

 14           If they were denied a second loan, the department does

 15  have that data or those data, but they did -- they don't -- they

 16  only don't have data for women who never got a single loan.

 17           So we have -- we have fewer women in that category,

 18  frankly, than we have declarations from.  We think the

 19  declarations are very compelling in the personal stories that

 20  they tell; but, frankly, we don't think in that particular

 21  category there's enough yet to come back on a renewed motion for

 22  class certification; and so, frankly, what we want to do is to

 23  put that third in our process of how we proceed.

 24           We think it is very logical and straightforward to

 25  proceed now in the first two classes.  We're not giving up the

  1  third subclass; but we understand, given what's happened in the

  2  case already, that it's a more difficult issue for us to try to

  3  address.

  4           You know, in terms of delay, Your Honor, one of the

  5  things we had to do -- originally, there were 86 plaintiffs. So

  6  after the discovery was completed -- the discovery that was

  7  already approved was completed, and we decided to use this

  8  approach:  One of the things we had to do was go back to 76 of

  9  those plaintiffs and tell them we were going to suggest dropping

 10  them as named plaintiffs 'cause we were trying to deal with

 11  these as real people and didn't want to do it without talking to

 12  people.    So we have done that.  That took a period of time.

 13  They are still class members, putative class members, but they

 14  are no longer named plaintiffs.

 15           We -- and then we, as I say, we -- the discovery ended

 16  in December.  We filed a motion in April.  So that four-month

 17  period is when we redid the complaint and went back to all the

 18  original plaintiffs to try to explain to them the approach we

 19  were taking and get permission to do that.

 20           So I don't think that the amendment -- I think it is

 21  true, without any doubt, the amendment is going to make the case

 22  more straightforward, easier to analyze on the various

 23  components of it, and it will, in fact, over the course of the

 24  next period of time, I think, expedite resolution of the case

 25  rather than delay resolution of the case.

  1           And in terms of the discovery concerns that the

  2  government has expressed, we don't think there's any reason to

  3  be concerned, because we're not asking for any additional

  4  discovery than what we were already entitled to.

  5           You may or may not recall expert discovery has not

  6  really started yet.  We appeared in front of you at one point

  7  and that process was accepted, and you said, well, we'll put it

  8  on hold for the moment while we try to figure this out in terms

  9  of the fact discovery, and that's what we've been doing.

 10           So we want to get moving again in the amended way.

 11           If you approve the amendment, then we will proceed as

 12  I've suggested; and I think it will take us four to six months

 13  to get -- you know, the real nationwide sample that, I think, we

 14  want in order to move forward, again, without any additional

 15  discovery from -- unasked discovery from the defendants.

 16           THE COURT:  When you say you're going to get the

 17  nationwide sample, where are you going to get it?

 18           MR. FLEISCHAKER:  We're going to put notices in farm

 19  journals, and we may ask the department -- we haven't done this

 20  yet, so I don't want to complain it hasn't been accepted -- put

 21  notices up in various farm county offices.  We're going to use

 22  radio.  We're going to go out and try to find --

 23           THE COURT:  We're not talking about a new discovery

 24  request?

 25           MR. FLEISCHAKER:  No.  No, we're not.

  1           THE COURT:  How about it, Mr. Quinlivan?

  2           MR. QUINLIVAN:  Your Honor, when we filed our

  3  opposition, our primary concern was that there was no guarantee

  4  being offered us that the amendment to the complaint would not

  5  lead to new discovery.

  6           As I said, that was our primary concern.  If what

  7  Mr. Fleischaker is saying is that they are not going to be

  8  propounding new discovery as a result of the amendment, then I

  9  think that -- as I said, I think our primary objection to the

 10  amendment of the complaint falls away.

 11           With respect to the delay issue, that, I think is a

 12  point which several courts have held that delay, oftentimes has

 13  to accompany some additional form of prejudice.  In this case,

 14  it was the concern about discovery.  So if the understanding is

 15  that we are not going to be seeing additional discovery requests

 16  in this case, I can say that our objection to the motion to

 17  amend, we'll withdraw it.

 18           THE COURT:  Well, that's easy.  Turns out the delay

 19  then is my delay in granting it.  I thought you were still

 20  plugging away at discovery and thought that it really wasn't

 21  necessary to deal with this since you could always move for

 22  subclasses; but at any rate --

 23           MR. FLEISCHAKER:  Your Honor.

 24           THE COURT: -- the objection having been

 25  withdrawn -- comma -- yes, Mr. Fleischaker?

  1           MR. FLEISCHAKER:  I was told many times never to look

  2  victory in the eye and change your mind.  I'm not changing my

  3  mind, but I want to clarify:

  4           As I said to you, on the third subclass, there may turn

  5  out to be some additional.  But we have nothing in mind at this

  6  point.

  7           THE COURT:  You are not abandoning that.  You are

  8  putting it on a siding.  Is that reasonable?

  9           MR. FLEISCHAKER:  That's correct.

 10           THE COURT:  All right.

 11           With that understanding, the motion to amend is

 12  granted.

 13           So where do we go from here?

 14           MR. FLEISCHAKER:  Well, we will very quickly decide

 15  exactly how we're going to put these notices out, as I say.  We

 16  will talk to Mr. Quinlivan about it and hopefully -- and I think

 17  for the most part, Mr. Quinlivan has been cooperative, if slow.

 18  Not always his fault.  We understand that.

 19           And I think that we will be in a position to finalize

 20  this by the -- either -- let's say, very early in the year,

 21  we'll be able to come back to you with hopefully strong evidence

 22  of a nationwide problem on at least those first two subclasses.

 23           THE COURT:  Can I take it, Mr. Fleischaker, that the

 24  nature of this motion will not require the government to file a

 25  new answer?

  1           MR. FLEISCHAKER:  Honestly, we don't care whether they

  2  technically -- there is no new claims in it, nor would you have

  3  to file a new decision dismissing the APA claim which is in here

  4  for appeal -- potential appeal reasons.

  5           THE COURT:  Mr. Quinlivan, unless you just, out of a

  6  sense of tidiness, feel compelled to file an answer to this, you

  7  don't have to answer the second amended complaint.

  8           MR. QUINLIVAN:  I appreciate that, Your Honor.

  9           THE COURT:  Let's set a -- you say the first of the

 10  year, Mr. Fleischaker?

 11           MR. FLEISCHAKER:  Yes, I think that's right.  We're

 12  going to certainly be in touch with Mr. Quinlivan before then.

 13  I think in terms of finishing this process on at least the first

 14  two subclasses, that's -- should give us enough time.

 15           THE COURT:  So I can expect what, a motion?

 16           MR. FLEISCHAKER:  You can expect at least a motion to

 17  certify those first two subclasses at that point.

 18           THE COURT:  All right.  By when?

 19           MR. FLEISCHAKER:  Or a red face.

 20           THE COURT:  I'm just looking for a control date here.

 21  By the middle of January?  Is that a safe date?

 22           MR. FLEISCHAKER:  That should be fine.

 23           THE COURT:  All right.  The plaintiffs' motion to

 24  certify one or both of the first two subclasses will be due by

 25  January 16, and the government can have whatever reasonable

  1  amount of time you all negotiate and agree to to respond.

  2           MR. FLEISCHAKER:  Okay.

  3           THE COURT:  And then we'll see where we go from there.

  4           MR. QUINLIVAN:  Very good, Your Honor.

  5           THE COURT:  Thank you.

  6           MR. QUINLIVAN:  Thank you.

  7           MR. FLEISCHAKER:  Thank you.

  1                        *  *  *  *  *  *

  2                         CERTIFICATE

  3           I, DENNIS A. DINKEL, Official Court Reporter, certify

  4  that the foregoing pages are a correct transcript from the

  5  record of proceedings in the above-entitled matter.

  6                    ____________________________________

  7                    Dennis A. Dinkel

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