The U.S. Court of Appeals for the First Circuit in Boston is pushing for a settlement in Susan Rosenbergs discrimination case against Merrill Lynch. That case produced a landmark ruling by Federal District Judge Nancy Gertner, stating that arbitration at the NYSE is inherently unfair (see March 98 RR, Page 36).

That ruling is being appealed by Merrill, which is still trying to stop Rosenberg from proceeding in court. The appeals court has ordered the two sides to discuss a possible settlement, with a deadline of Sept. 1 for a report summarizing their attempts to dispose of this matter given pending, and already operative, rules of various Exchanges.

According to Rosenbergs attorney, Marc Redlich, during a hearing in July, one of the appeals court judges questioned why the firm was still fighting to force Rosenberg into arbitration, given the NASDRs rule change (which goes into effect Jan. 1, 1999) and Merrills own new system of dispute resolution, which allows current employees to pursue court actions (on incidents that take place after July 1 of this year). Redlich says that Merrill gave its standard response--that it believes employees should be bound by rules in effect when they were employed by the firm.

That did not seem to satisfy the court, Redlich says.

Meanwhile, Rosenberg has opted out of the class-action settlement in Cremin v. Merrill Lynch, which was scheduled for a fairness hearing on Sept. 2, and has filed an objection with the U.S. District Court for the Northern District of Illinois. Out of roughly 2,500 former female consultants or trainees with production numbers employed between Jan. 1, 1994, and mid-June of this year, Rosenberg is one of five women who opted out by the due date of July 30.

Her objection centers on the same point--that Merrills previous employees are being given fewer rights, and more limited remedies than its current employees. The settlement could and should ... accord the trail-blazing class members an unconstrained choice among options, including the right to go to court, Rosenberg wrote to the court.

If the Boston case is not settled, but Rosenberg wins on appeal, it could still be somewhere up to two years before she gets to a trial, Redlich says. And if she loses, the case would be referred to arbitration.