The Fund Class Action - Answer

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RAYMOND L. WHEELER (BAR NO. 52886) [email protected] MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: (650) 813-5600 Facsimile: (650) 494-0792 MAHOGANY PAULINO JENKINS (BAR NO. 235055) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WALTER V. SIEBERT (pro hac vice) [email protected] SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, Colorado 80202-3622 Telephone: (303) 297-2900 Facsimile: (303) 298-0940 Attorneys for Defendant FUND FOR PUBLIC INTEREST RESEARCH, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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RICHARD PRENTICE, CHRISTIAN MILLER, and TIFFNEY PETHERBRIDGE, on their own behalf and on behalf of classes of those similarly situated,

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Plaintiffs, v. FUND FOR PUBLIC INTEREST RESEARCH, INC., Defendant.

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No.

C-06-7776 SC

CLASS ACTION DEFENDANT FUND FOR PUBLIC INTEREST RESEARCH, INC.’S ANSWER TO COMPLAINT

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COMES NOW Defendant, Fund for Public Interest Research, Inc. (“FFPIR” or

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“Defendant”), by and through its counsel, and respectfully answers Plaintiffs’ Class and

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Collective Action Complaint and Jury Demand (“Complaint”):

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PRELIMINARY STATEMENT 1.

FFPIR admits that Plaintiffs, and all those who they purport to bring this action on

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behalf of (hereinafter collectively referred to as “Plaintiffs”), are bringing an action for unpaid

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overtime compensation and related penalties and damages. FFPIR, denies, however, that it has

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engaged in any wrongdoing or violated any federal or state statute. FFPIR further denies all

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remaining allegations in paragraph 1 of the Complaint.

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2.

FFPIR denies the allegations in paragraph 2 of the Complaint.

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3.

FFPIR denies the allegations in paragraph 3 of the Complaint.

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4.

FFPIR denies the allegations in paragraph 4 of the Complaint.

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JURISDICTION AND PARTIES 5.

FFPIR admits that this Court has jurisdiction over Plaintiffs’ asserted claims, but

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denies that a class action is appropriate, the claims of any proposed class exceed $5,000,000 in

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the aggregate or it has engaged in any wrongdoing or violated any federal or state statute. FFPIR

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states affirmatively that any supplemental jurisdiction is discretionary with the Court.

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6.

FFPIR admits this Court has personal jurisdiction, but denies the remaining

allegations in paragraph 6 of the Complaint. 7.

FFPIR admits that venue is proper, but denies the remaining allegations in

paragraph 7 of the Complaint.

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8.

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is proper.

FFPIR admits that intradistrict assignment to the San Francisco /Oakland division

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THE PARTIES 9.

FFPIR admits that it employed Richard Prentice from September 2003 through

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December 2003 as a canvasser and he did not receive overtime compensation. FFPIR denies he

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was employed as a “roaming solicitor” and is without sufficient information or knowledge to

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form a belief as to the truth or falsity of the remaining allegations contained in paragraph 9 of the

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Complaint, and therefore denies them.

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10.

FFPIR admits that it employed Tiffney Petherbridge from January 2004 through

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August 2005 and she did not receive overtime compensation. FFPIR denies she was employed as

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a roaming solicitor and is without sufficient information or knowledge to form a belief as to the

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truth or falsity of the remaining allegations contained in paragraph 10 of the Complaint, and

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therefore denies them.

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11.

FFPIR admits that it employed Christian Miller from July 2002 through April

2006 and he did not receive overtime compensation. FFPIR denies he was employed as a

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roaming solicitor, and is without sufficient information or knowledge to form a belief as to the

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truth or falsity of the remaining allegations contained in paragraph 11 of the Complaint, and

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therefore denies them.

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12.

FFPIR is without sufficient information or knowledge to form a belief as to the

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truth or falsity of the allegations contained in paragraph 12 of the Complaint, and therefore denies

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them.

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13.

but denies the remaining allegations of paragraph 13 of the Complaint.

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FFPIR admits that its corporate headquarters is located in Boston, Massachusetts,

SUMMARY OF CLAIMS 14.

FFPIR admits that Plaintiffs are purporting to bring this action on behalf of

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themselves and all persons who were, are, or will be employed by it nationwide as Canvassers or

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Field Managers at any time within the three years prior to this action’s filing date through the date

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of the final disposition of this action, who have not been compensated at a rate not less than the

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federal statutory minimum wage rate. FFPIR denies that the persons on whose behalf Plaintiffs

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claim to bring the action are an appropriate class, that these persons are similarly situated, or that

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three years is the proper limitations period. FFPIR further denies that it has engaged in any

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wrongdoing or violated any federal or state statute, or that a collective action is appropriate.

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15.

FFPIR admits that Plaintiffs are purporting to bring this action on behalf of all

persons who were, are, or will be employed by it in California as Canvassers or Field Managers at DEFENDANT FFPIR’S ANSWER TO COMPLAINT NO. C-06-7776 SC sf-2285041

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any time within the four years prior to this action’s filing date through the date of the final

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disposition of this action, who have not been compensated at a rate not less than the California

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minimum wage rate. FFPIR denies, however, that it has engaged in any wrongdoing or violated

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any federal or state statute, or that a class action is appropriate.

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16.

FFPIR admits that Plaintiff Christian Miller purports to bring this action on behalf

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of all persons who were, are, or will be employed by it in New York as Canvassers or Field

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Mangers at any time within the six years prior to this action’s filing date through the date of the

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final disposition of this action. FFPIR denies, however, that it has engaged in any wrongdoing or

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violated any federal or state statute, or that a class action is appropriate.

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17.

FFPIR denies the allegations in paragraph 17 of the Complaint.

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18.

FFPIR denies the allegations in paragraph 18 of the Complaint.

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19.

FFPIR denies the allegations in paragraph 19 of the Complaint.

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20.

FFPIR denies the allegations in paragraph 20 of the Complaint, denies that it has

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engaged in any wrongdoing or violated any federal or state statute, and denies that Plaintiffs are

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entitled to any relief whatsoever.

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COLLECTIVE AND CLASS ACTION ALLEGATIONS

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21.

FFPIR denies the allegations contained in paragraph 21 of the Complaint.

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22.

FFPIR admits that a 16(b) collective action may be maintained as an “opt-in”

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action. FFRIP denies that a collective action is appropriate in this case and denies that Plaintiffs’

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claims are similar to any other prospective Plaintiffs.

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23.

FFPIR denies the allegations contained in paragraph 23 of the Complaint.

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24.

FFPIR admits Plaintiffs seek to bring the second, third, fourth, fifth, sixth, seventh,

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and eighth claims for relief pursuant to Fed.R.Civ.P. 23. FFPIR denies that a Rule 23 class action

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is appropriate, and FFPIR denies any wrongdoing or a violation of any federal or state statute.

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25.

FFPIR denies the allegations contained in paragraph 25 of the Complaint.

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26.

FFPIR denies the allegations contained in paragraph 26 and subparagraphs a-i of

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the Complaint. 27.

FFPIR denies the allegations contained in paragraph 27 of the Complaint.

DEFENDANT FFPIR’S ANSWER TO COMPLAINT NO. C-06-7776 SC sf-2285041

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FFPIR admits that Plaintiffs’ counsel are competent and experienced in class

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actions, the FLSA, and state labor and employment litigation. FFPIR denies the remaining

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allegations contained in paragraph 28 of the Complaint.

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29.

FFPIR denies the allegations contained in paragraph 29 of the Complaint.

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30.

FFPIR denies the allegations contained in paragraph 30 of the Complaint.

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31.

FFPIR denies the allegations contained in paragraph 31 of the Complaint.

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32.

FFPIR denies the allegations contained in paragraph 32 of the Complaint.

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33.

FFPIR denies the allegations contained in paragraph 33 and subparagraphs 1-d of

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the Complaint.

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34.

FFPIR denies the allegations contained in paragraph 34 of the Complaint.

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35.

FFPIR admits that Plaintiffs’ counsel are competent and experienced in class

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actions, the FLSA, and state labor and employment litigation. FFPIR denies the remaining

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allegations contained in paragraph 35 of the Complaint.

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36.

FFPIR denies the allegations contained in paragraph 36 of the Complaint.

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37.

FFPIR denies the allegations contained in paragraph 37 of the Complaint.

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38.

FFPIR is without knowledge or information sufficient to form a belief as to the

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truth or falsity of the allegations contained in paragraph 38 of the Complaint, and therefore denies

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them.

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39.

FFPIR is without knowledge or information sufficient to form a belief as to the

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truth or falsity of the allegations contained in paragraph 39 of the Complaint, and therefore denies

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them.

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FIRST CLAIM FOR RELIEF (FLSA Claims, 29 U.S.C. § 210, et seq., Brought by All Plaintiffs on Behalf of Themselves and all Nationwide FLSA Collective Plaintiffs)

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40.

FFPIR incorporates by reference its responses to Paragraphs through 1- 39 of the

Complaint as if fully set forth herein. 41.

FFPIR admits that at all relevant times it has engaged in interstate “commerce”

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and/or in the production of “goods” for “commerce,” within the meaning of the FLSA, 29 U.S.C.

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§ 203. FFPIR further admits that it has gross operating revenues in excess of $500,000. FFPIR is DEFENDANT FFPIR’S ANSWER TO COMPLAINT NO. C-06-7776 SC sf-2285041

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without sufficient knowledge or information to verify the truth or falsity of the remaining

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allegations in paragraph 41 of the Complaint, and therefore denies them.

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42.

FFPIR is without sufficient knowledge or information to form a belief as to the

truth or falsity of the allegations in paragraph 42 of the Complaint, and therefore denies them.

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43.

FFPIR admits the allegations in paragraph 43 of the Complaint.

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44.

FFPIR denies the allegations in paragraph 44 of the Complaint.

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45.

FFPIR is without sufficient knowledge or information to form a belief as to the

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truth or falsity of the allegations in paragraph 45 of the Complaint, and therefore denies them.

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46.

FFPIR denies the allegations in paragraph 46 of the Complaint.

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47.

FFPIR denies the allegations in paragraph 47 of the Complaint.

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48.

FFPIR denies the allegations in paragraph 48 of the Complaint.

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49.

FFPIR denies the allegations in paragraph 49 of the Complaint.

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50.

FFPIR admits that Plaintiffs, on behalf of themselves and a proposed class action,

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seek legal and equitable relief, but FFPIR denies any wrongdoing and/or that Plaintiffs and/or the

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proposed class, are entitled to any relief whatsoever.

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51.

FFPIR admits that Plaintiffs, on behalf of themselves and a proposed class action,

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seek legal and equitable relief, but FFPIR denies any wrongdoing and/or that Plaintiffs and/or the

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proposed class, are entitled to any relief whatsoever.

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SECOND CLAIM FOR RELIEF (California Labor Code §§ 510,1194)

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52.

FFPIR incorporates by reference its responses to Paragraphs 1 through 51 of the

Complaint as if fully set forth herein. 53.

FFPIR denies the allegations in paragraph 53 of the Complaint, and states

affirmatively that the laws of California speak for themselves.

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54.

FFPIR denies the allegations in paragraph 54 of the Complaint.

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55.

FFPIR is without sufficient knowledge or information to form a belief as to the

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truth or falsity of the allegations in paragraph 55 of the Complaint, and therefore denies them. 56.

FFPIR denies the allegations in paragraph 56 of the Complaint.

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57.

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FFPIR denies the allegations in paragraph 57 of the Complaint. THIRD CLAIM FOR RELIEF (California Labor Code § 1197 – Minimum Wage)

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58.

FFPIR incorporates by reference its responses to Paragraphs 1 through 57 of the

Complaint as if fully set forth herein.

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59.

FFPIR denies the allegations in paragraph 59 of the Complaint.

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60.

FFPIR denies the allegations in paragraph 60 of the Complaint.

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61.

FFPIR denies the allegations in paragraph 61 of the Complaint.

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FOURTH CLAIM FOR RELIEF (California Labor Code §§ 201, 202, 203 – Wages Due Upon Discharge and Penalties) 62.

FFPIR incorporates by reference its responses to Paragraphs 1 through 61 of the

Complaint as if fully set forth herein. 63.

FFPIR denies the allegations in paragraph 63 of the Complaint and states

affirmatively that the referenced statutes speak for themselves.

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64.

FFPIR denies the allegations in paragraph 64 of the Complaint.

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65.

FFPIR admits the allegations in paragraph 65 of the Complaint.

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66.

FFPIR denies the allegations in paragraph 66 of the Complaint.

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FIFTH CLAIM FOR RELIEF (California Labor Code § 226, 1174 – Record-Keeping and Providing Violations) 67.

FFPIR incorporates by reference its responses to Paragraphs 1 through 66 of the

Complaint as if fully set forth herein.

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68.

FFPIR denies the allegations in paragraph 68 of the Complaint.

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69.

FFPIR denies the allegations in paragraph 69 of the Complaint.

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SIXTH CLAIM FOR RELIEF (California Labor Code §§ 218.5, 225.7 & 512–California Meal and Rest Period Provisions) 70.

FFPIR incorporates by reference its responses to Paragraphs 1 through 69 of the

Complaint as if fully set forth herein. 71.

FFPIR denies the allegations in paragraph 71 of the Complaint.

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72.

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FFPIR denies the allegations in paragraph 72 of the Complaint. SEVENTH CLAIM FOR RELIEF (California Business and Professions Code §§ 17200-17208)

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73.

FFPIR incorporates by reference its responses to Paragraphs 1 through 72 of the

Complaint as if fully set forth herein.

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74.

FFPIR denies the allegations in paragraph 74 of the Complaint.

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75.

FFPIR denies the allegations in paragraph 75 of the Complaint.

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76.

FFPIR denies the allegations in paragraph 76 of the Complaint.

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77.

FFPIR denies the allegations in paragraph 77 of the Complaint.

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78.

FFPIR denies the allegations in paragraph 78 of the Complaint.

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EIGHTH CLAIM FOR RELIEF (Conversion)

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79.

FFPIR incorporates by reference its responses to Paragraphs 1 through 78 of the

Complaint as if fully set forth herein.

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80.

FFPIR admits the allegations in paragraph 80 of the Complaint.

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81.

FFPIR denies the allegations in paragraph 81 of the Complaint.

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82.

FFPIR denies the allegations in paragraph 82 of the Complaint.

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83.

FFPIR denies the allegations in paragraph 83 of the Complaint.

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NINTH CLAIM FOR RELIEF (New York Labor Law, § 650 et seq., § 190 et seq., and 12 N.Y.C.R.R. Part 142)

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84.

FFPIR incorporates by reference its responses to Paragraphs 1 through 83 of the

Complaint as if fully set forth herein.

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85.

FFPIR denies the allegations in paragraph 85 of the Complaint.

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86.

FFPIR admits that it is an “employer” within the meaning of New York Labor

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Law § 651. FFPIR denies the remaining allegations in paragraph 86 of the Complaint.

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87.

FFPIR denies the allegations in paragraph 87 of the Complaint.

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88.

FFPIR denies the allegations in paragraph 88 of the Complaint.

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89.

FFPIR denies the allegations in paragraph 89 of the Complaint.

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90.

91.

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FFPIR admits that Plaintiffs seek monetary relief, but denies Plaintiffs are entitled

to any monetary relief. TENTH CLAIM FOR RELIEF (New York “Spread of Hours” Compensation, New York Law, § 650 et seq., § 190 et seq., and 12 N.Y.C.R.R. Part 142)

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FFPIR admits that Plaintiffs seek recovery of attorneys’ fees and costs, but denies

Plaintiffs are entitled to any recovery of fees or costs.

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92.

FFPIR incorporates by reference its responses to Paragraphs 1 through 91 of the

Complaint as if fully set forth herein. 93.

FFPIR is without sufficient information to verify the truth or falsity of the

allegations in paragraph 93, and, therefore denies them.

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94.

FFPIR denies the allegations in paragraph 94 of the Complaint.

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95.

FFPIR denies the allegations in paragraph 95 of the Complaint.

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96.

FFPIR denies the allegations in paragraph 96 of the Complaint.

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97.

FFPIR admits that Plaintiffs seek recovery of attorneys’ fees and costs, but denies

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Plaintiffs are entitled to any recovery of fees or costs. 98.

FFPIR admits that Plaintiffs seek monetary relief, but denies that Plaintiffs are

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entitled to any monetary relief. FFPIR denies the remaining allegations in paragraph 98 of the

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Complaint.

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99.

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FFPIR denies each and every allegation of the Complaint that is not specifically

admitted herein. 100.

FFPIR denies that Plaintiffs are entitled to any relief whatsoever, and to the extent

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a response is necessary to Plaintiffs’ Prayer for Relief, denies each and every subparagraph of the

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Prayer for Relief.

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Further answering, Defendant states the following as defenses. By listing these as

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defenses, Defendant does not concede that any of these constitute affirmative defenses upon

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which they would bear any burden of proof:

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SEPARATE DEFENSES

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FIRST SEPARATE DEFENSE

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Plaintiffs are not entitled to overtime compensation to the extent that for any applicable

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work week they have been compensated at a rate not less than one and one-half times his or her

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regular rate of pay, which met or exceeded the applicable minimum wage, for all hours worked in

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excess of forty (40) hours per week in accordance with the Fair Labor Standards Act (“FLSA”),

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and/or the New York Wage Payment Act, and/or the New York Minimum Wage Act, and/or eight

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(8) hours per day or forty (40) hours per week pursuant to the California Labor Code.

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SECOND SEPARATE DEFENSE Plaintiffs and all those they purport to include in any collective or class action are exempt

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(or under applicable corrective measures are entitled to be exempt) from requirements of the

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FLSA and/or the California Labor Code and/or the New York Wage Payment Act and/or the New

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York Minimum Wage Act.

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THIRD SEPARATE DEFENSE Plaintiffs’ claims are barred, in whole or in part, by the applicable federal and/or state statutes of limitations. FOURTH SEPARATE DEFENSE

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Plaintiffs have impermissibly joined and combined parties.

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FIFTH SEPARATE DEFENSE

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The claims of any Plaintiffs are barred to the extent they are claims which have been the

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subject of any prior litigation against Defendant brought by the United States Department of

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Labor or a state labor agency/department.

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SIXTH SEPARATE DEFENSE To the extent any Plaintiff employed by Defendant as a canvasser and/or field manager

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was not exempt from overtime compensation requirements of the FLSA and/or the California

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Labor Code and/or the New York Wage Payment Act and/or New York Minimum Wage Act,

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which Defendant denies, such individuals were properly compensated in accordance with a

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reasonable agreement between such individual and Defendant and applicable law and regulations,

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including but not limited to, 29 C.F.R. § 785.23.

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SEVENTH SEPARATE DEFENSE

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Based on information and belief, Defendant states that at all times relevant hereto, it acted

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in good faith and with absence of malice with regard to Plaintiffs and had reasonable grounds for

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believing its actions as to Plaintiffs were not in violation of the FLSA and/or the California Labor

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Code, California Business & Professions Code, New York Minimum Wage Act and/or the New

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York Wage Payment Act.

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EIGHTH SEPARATE DEFENSE

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Plaintiffs are estopped and/or barred from bringing any claims herein by virtue of their

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own conduct if, and, or to the extent they signed a settlement agreement and/or accepted

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payments in release and/or as an accord and satisfaction of any and all claims.

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NINTH SEPARATE DEFENSE

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Plaintiffs’ recovery is barred in whole or in part to the extent the doctrines of waiver, laches, estoppel, and/or unclean hands apply.

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TENTH SEPARATE DEFENSE

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To the extent Plaintiffs are entitled to recover on the claims alleged, which Defendant

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denies, Defendant is entitled to offset against any such recovery any and all amounts owed

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Defendant by such person, any overpayments to such person, any premium pay paid to such

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person, and any damages or harm caused to Defendant by the actions or inaction of any such

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person.

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ELEVENTH SEPARATE DEFENSE

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The claims asserted herein are barred to the extent such claims were the subject of any

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prior governmental investigation, part of or covered by any other judicial action, or part of any

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other judicial action that was settled, resolved or dismissed, or to the extent such claims have

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been settled, waived and/or released.

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TWELFTH SEPARATE DEFENSE Defendant is entitled, pursuant to Rule 20(b), to a separate trial on each individual claim asserted by any Plaintiff.

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THIRTEENTH SEPARATE DEFENSE Plaintiffs’ claims are barred by Section 10 of the Portal to Portal Act, 29 U.S.C. § 259, to

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the extent Defendant acted in good faith in conformity with and in reliance on written

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administrative regulations, orders, rulings, approvals and/or interpretation of the Administrator of

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the Wage and Hour Division of the Department of Labor, and/or any administrative practice or

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enforcement of the Administrator.

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FOURTEENTH SEPARATE DEFENSE Plaintiffs are not employees under the New York Wage Payment Act and/or New York Minimum Wage Act. FIFTEENTH SEPARATE DEFENSE To the extent Plaintiffs are entitled to any recovery, which Defendant denies, Plaintiffs are

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barred and precluded from securing any double recovery, including with respect to overtime

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compensation, liquidated damages, punitive damages, or other recovery.

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SIXTEENTH SEPARATE DEFENSE Plaintiffs are precluded from proceeding and not entitled to any recovery to the extent they have waived their right to recover or are estopped by their own actions from doing so.

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SEVENTEENTH SEPARATE DEFENSE

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The claims for attorney’s fees, court costs, restitution, injunctive and other equitable

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remedies and relief, including, but not limited to, liquidated and exemplary damages and back

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pay, restitution and injunctive relief are not triable to a jury.

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EIGHTEENTH SEPARATE DEFENSE

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Any award of penalties, liquidated damages or exemplary damages, to Plaintiffs, would

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violate the constitutional safeguards provided under the Constitution of the United Sates and of

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the various states, including the Constitutions of the States of California and New York.

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NINETEENTH SEPARATE DEFENSE Plaintiffs have failed and neglected to mitigate their respective alleged damages, injuries,

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and/or losses, and, therefore, any recovery against Defendant should be barred or reduced

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accordingly.

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TWENTIETH SEPARATE DEFENSE Defendant has not knowingly and/or intentionally failed to comply with any federal or state statute.

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TWENTY-FIRST SEPARATE DEFENSE Some or all of Plaintiffs may be exempt under California law and/or applicable Wage

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Orders as they may receive half their compensation in commissions and their regular rate of pay

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exceeds 1.5 times the minimum wage.

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TWENTY-SECOND SEPARATE DEFENSE Plaintiffs are outside salesmen under New York Minimum Wage Act.

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TWENTY-THIRD SEPARATE DEFENSE Plaintiffs are exempt as outside salespersons under California Labor Code and the Fair Labor Standards Act. TWENTY-FOURTH SEPARATE DEFENSE Defendant reserves the right to amend its answer and to add additional Affirmative and/or Separate Defenses as Plaintiffs’ claims are more fully discovered in the course of this litigation. TWENTY-FIFTH SEPARATE DEFENSE Plaintiffs’ Complaint fails to state a claim upon which relief may be granted. TWENTY-SIXTH SEPARATE DEFENSE Some or all of Plaintiffs are not similarly situated to each other or any other current or former employee of Defendant. TWENTY-SEVENTH SEPARATE DEFENSE This matter should not be certified as a collective action pursuant to 29 U.S.C. § 216. TWENTY-EIGHTH SEPARATE DEFENSE This matter should not be certified as a class action under Fed.R.Civ.P. 23. DEFENDANT FFPIR’S ANSWER TO COMPLAINT NO. C-06-7776 SC sf-2285041

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TWENTY-NINTH SEPARATE DEFENSE

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Some or all of Plaintiffs are exempt under 29 U.S.C. § 207(i).

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THIRTIETH SEPARATE DEFENSE

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Some of Plaintiffs’ claims are preempted.

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THIRTY-FIRST SEPARATE DEFENSE

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Some of Plaintiffs may be exempt under applicable administrative and/or executive

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exemptions.

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WHEREFORE, after fully answering Plaintiffs' Complaint, Defendant prays as follows:

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A.

That Plaintiffs take nothing by this action;

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B.

That judgment be entered in Defendant’s favor;

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C.

That Defendant recover all costs of Court and reasonable attorneys’ fees as

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authorized by statute and/or common law; and D.

That Defendant be awarded such other and further relief, both at law and in equity,

to which it may show itself to be justly entitled. Dated: March 16, 2007

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RAYMOND L. WHEELER MAHOGANY PAULINO JENKINS MORRISON & FOERSTER LLP

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WALTER V. SIEBERT SHERMAN & HOWARD L.L.C.

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By: /s/Walter V. Siebert Walter V. Siebert (pro hac vice)

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Attorneys for Defendant FUND FOR PUBLIC INTEREST RESEARCH, INC.

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ECF CERTIFICATION Pursuant to General Order No. 45, § X.B., the filing attorney attests that she has obtained concurrence regarding the filing of this document from the signatory to the document.

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By: /s/Mahogany Paulino Jenkins Mahogany Paulino Jenkins

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