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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester – 002571 Carolann E. Cervetti – 014143 John M. Fry - 020455 Attorneys for Bank of America, N.A.

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated,

Plaintiff,

v.

BANK OF AMERICA, N.A.,

Defendant.

No. CV2003-2262-PHX-ROS

STATEMENT OF FACTS IN SUPPORT OF MOTION FOR

DECERTIFICATION AND MOTION FOR PARTIAL

SUMMARY JUDGEMENT

(Assigned to the Honorable Roslyn O. Silver)

Defendant Bank of America, N.A., by and through its counsel and pursuant to

Rule 56 of the Federal Rules of Civil Procedure, and the procedures necessary to

determine collective certification pursuant to 28 U.S.C. § 216(b), hereby files this

Statement of Facts in Support of its Motion for Decertification and Motion for Partial

Summary Judgment.

I. The Bank.

1. Defendant Bank of America, National Association (the “Bank”) is a

national banking association organized and existing under the laws of the United States.

During the relevant period, the Bank was organized into banking groups, one of which

was the Consumer and Commercial Banking Group. (Exhibit 25, Mark Reale Affidavit

¶3).

2. Within the banking group was the Premier Banking division. In that

Case 2:03-cv-02262-ROS Document 283 Filed 06/26/2006 of 26

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division was the Southwest Region, consisting of Arizona and other states (which varied

through time). Within Arizona were four Markets - Tucson, East Valley, Scottsdale and

West Valley. (Exhibit 2, Reale Depo., p. 20, lns. 5-13; Exhibit 3, Steve Cortopassi

Depo., p. 28, lns. 11-17); Exhibit 18(a)(b)(c)(d).

3. Within the banking group also was the Small Business Banking division.

In that division was the Southwest Region, consisting of the Arizona Market and others.

(Exhibit 2, Reale Depo., p. 20, lns. 5-13; Exhibit 4, Patricia Roche-Fukushima Depo.,

pp. 13-14, lns. 6-3; Exhibit 5, Lynn Searles Depo., p. 12-13, lns. 8-7).

4. Client Managers in the Small Business Banking division, later known as

the Business Banking division, (“Small Business”), practice relationship banking like

Premier Client Managers, but their clientele and financial responsibilities are different.

Small Business Client Managers cater to business clients, focus on products and

services valuable to these business clients, and are involved in the general business

operations of the clients they serve. (Exhibit 18(f), affidavit of Keith Beccue, ¶¶ 4-8;

Exhibit 7, Therese Krebsbach Depo., p. 30, lns. 10-17; Exhibit 5, Searles Depo., p. 15,

lns. 9-11; p. 50, lns. 20-24, p. 91, lns. 11-15).

5. The Small Business and Premier Client Managers report to wholly

different management and through separate chains of command (Exhibit 5, Searles

Depo. p. 13, lns. 3-7; p. 54-55, lns. 19-12; Exhibit 7, Krebsbach Depo. p. 28, lns. 3-7),

there is a different incentive plan for Premier Client Mangers than Small Business

Client Managers and there is a different support staff network for Premier Client

Managers than Small Business Client Managers. (Exhibit 2, Reale Depo., p. 12, lns. 2-

8; Exhibit 5, Searles Depo., p. 12, lns. 8-15; Exhibit 3, Cortopassi Depo., pp. 74-75, lns.

18-20; Exhibit 18(a), affidavit of Frank Santos, ¶ 6).

6. The number of clients managed by Small Business Client Managers is

generally smaller. Plaintiff, Kaye Hutton,(“Ms. Hutton”) testified she had “around 400”

clients in her portfolio; Market Manager Lynn Searles testified that Small Business

Client Managers had portfolios of 250–350 clients. (Exhibit 10, Hutton Depo. p. 121,


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lns. 7-10; Exhibit 5, Searles Depo. p. 43, lns. 11-17).

7. The Premier Banking division (“Premier”) services “mass affluent” Bank

clients who have $100,000.00 or more in combined deposits, lines of credit, loans and

investments (not including a first mortgage), or $250,000.00 in combined balances

(including a first mortgage) (“qualified clients”). (Exhibit 18(a) Santos Affidavit, ¶ 8).

8. A qualified “client” includes one household and all its members (and the

client’s business if the client is a professional). (Exhibit 9, Vickie Sandve Depo., p. 52,

lns. 15-24).

II. Ms. Hutton and the Opt-Ins.

9. Ms. Hutton and the Opt-ins are some current and several former

employees of the Bank who have worked in Arizona and held the position of Client

Manager in either the Premier Banking or Small Business Banking divisions of the

Bank. (Exhibit 23, December 20, 2004 Order, p. 4-5, lns. 14-10).

10. Ms. Hutton was a Premier Client Manager. She left her employment with

the Bank on June 15, 2005. (Exhibit 10, Hutton Depo., p. 6, lns. 10-18). Ms. Hutton

worked in the Scottsdale Market under the supervision of Carlos Machado until

October, 2003. She then worked in that market until December, 2003 under the

supervision of Vickie Sandve and transitioned to the newly formed West Valley Market

where she was supervised until her resignation in June, 2005, by Frank Santos. (Exhibit

10, Hutton Depo, p. 26, lns. 7-21).

11. The conditional collective group is composed of the following 36

individuals. Their status is shown below as of March 1, 2002 or as soon thereafter as

they were employed as Arizona Client Managers or on their last dates of employment if

before.


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*Market Associate Name

Job Title Client Manager Start Date

Client Manager End Date

Premier Banking Arizona Markets

McGrory, Kathleen Premier Client Manager 01/01/01 3/1/2004

Clark, Stephanie B Premier Client Manager 02/01/01 9/1/2005

Weaver, Sherry Premier Client Manager 08/16/97 8/25/2005

Dawson, Kirsten M Premier Client Manager 03/19/01 3/18/2004

Gonzales, Paula Premier Client Manager 01/01/97 11/30/2001

Tucson

Premier

Banking

Market

Managers:

Debra

Chandler

3/02-10/02

Grace Duval

10/02-6/05 McClintic, Margaret E Premier Sr. Client Manager 06/11/01 6/15/2005

Burns, Karen Premier Client Manager 01/01/04 3/14/2003

Davis, Leeann J Premier Client Manager 07/01/02 3/11/2005

Flamm-Stutenroth, Natalie Premier Sr. Client Manager 07/16/98 6/9/2002

Landis, Richard N Premier Client Manager 11/01/00 2/28/2002

Marquardt, Carrie Premier Client Manager 11/16/96 6/9/2002

Massignani, Barbara Premier Client Manager 03/17/03 7/31/2003

Rojas, Jennifer Premier Client Manager 03/26/01 5/20/2002

Halopoff, Peter Premier Client Manager 05/17/04 12/22/2004

Leal, Joaquin A Premier Client Manager 07/01/02 4/15/2004

Southwest Maricopa Premier

Banking* Vickie Sandve

3/02-10/03 Frank Santos (West Valley)

10/03-6/05 Kevin Hudson (East Valley) 10/03-12/04 Brad Larsen (East Valley)

12/04-6/05

Voytek, Tacy L Premier Sr. Client Manager 05/01/99 3/15/2002

Simms, Charmion A Premier Sr. Client Manager 11/01/96 Present

Webster, Debra L Premier Client Manager 10/01/00 6/30/2005

Hutton, Kaye Premier Client Manager 03/22/99 6/15/2005

DeLong (Bradbury), Sherry Premier Sr. Client Manager 07/01/03 Present

Cooper, Julia L Premier Sr. Client Manager 11/01/96 Present

Staggs, Valorie R Premier Client Manager 02/01/98 Present

Roggenbuck, Diana C Premier Client Manager 10/01/01 Present

Scottsdale Premier Banking

Carlos Machado 3/02-10/03

Vickie Sandve 10/03-6/05

Lines, Gregory Premier Client Manager 10/16/00 4/16/2002


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Madison, Deborah L Premier Client Manager 12/16/96 Present

Jones, Duana Premier Client Manager 01/01/97 4/30/2002

Parsell, Gary Premier Client Manager 06/01/99 6/9/2002

Peterson, Janice L Premier Client Manager 06/18/01 4/24/2004

Small Business Banking Arizona Market

Bogdonas, Lynn R Small Business Client Manager 1/16/2001 4/15/2002

Griffiths, Robert Small Bus. Sr. Client Manager 3/1/2002 1/15/2003

Kelly, Larry Dean Small Business Client Manager 11/16/2000 8/26/2002

Krebsbach, Therese Small Business Client Manager 11/1/2000 3/31/2003

Larkin, Donna Small Business Client Manager 7/16/1999 7/18/2002

Lyftogt, Nancy Small Bus. Sr. Client Manager 7/16/1999 3/22/2002

Mohney, Robert Small Bus. Sr. Client Manager 3/16/2001 7/15/2002

Reilly, James Small Business Client Manager 9/1/2001 6/15/2002

Market Manager:

Lynn Searles 3/02-6/05

West, Michelle Small Bus. Sr. Client Manager 7/16/1999 10/16/2003

* The Southwest Maricopa County Market and Scottsdale Market were realigned in October, 2003 to form the

Scottsdale Market, West Valley Market and East Valley Market.

(Exhibit 21, affidavit of Bree Bellefeuille, ¶ 4).

12. As of July 1, 2005, only the following 9 opt-ins remain employed by the

Bank as Premier Client Managers:

1. Julia Cooper – Scottsdale 2. Sherry DeLong (Bradbury) – Scottsdale 3. Deborah Madison (Hartney) – Scottsdale 4. Diana Roggenbuck – Scottsdale 5. Charmion Simms – Scottsdale 6. Valorie Staggs – Scottsdale 7. Stephanie Clark – Tucson 8. Kathleen McGrory – Tucson 9. Sherry Weaver – Tucson

No Small Business Client Managers remained employed. (Exhibit 21, Bree Bellefeuille affidavit, ¶ 6).


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III. As Designed and Trained For, the Primary Duty of the Client Manager Job, Relationship Management is Administrative in Nature.

13. The job description for a Client Manager reflects a job whose primary

duty is to manage the Bank’s relationship with a portfolio of affluent clients, building a

financial relationship of trust and confidence, the result of which is intended to be the

selection of the Bank’s products and services over those of its competition. (Exhibit 1,

Affidavit of Steve Cortopassi, ¶ 3, Attachment A; Exhibit 6, affidavit of Patricia Roche-

Fukushima, ¶ 3, Attachment A; Exhibit 15, Janice Peterson Depo. p. 63-64, lns. 17-3).

14. The training materials for the job confirm that the primary duties of the

job center on building a financial relationship of trust and confidence. For instance, the

“CMP Roles at a Glance” notes the Client Management process disciplines to be:

1. Assess (developing client focus)

2. Design (creating advisory value)

3. Execute (creating value through expert execution)

4. Inspect (ensuring client success and satisfaction)

5. Celebrate (commemorating client services)

(Exhibit 22, Paola Tomassini Affidavit, ¶ 3, Attachment A). The Success Profile

utilized for recruiting of a Client Manager also reflects these relationship management

duties. (Exhibit 22, Tomassini Affidavit, ¶ 4, Attachment B).

15. Ms. Hutton and Opt-in Julia Cooper admit these materials accurately

reflect the job of the Client Manager. (Exhibit 10, Hutton Depo., pp. 117-119, lns. 20-

16). Exhibit 19, Julia Cooper Depo., p. 41, lns. 7-24; pp. 61-62, lns. 19-8).

16. The curriculum taught at Client Manager University reflects the fact that

the duty of the Client Manager is relationship management. (Exhibit 22, Tomassini

Affidavit, ¶ 5, Attachment C).

17. The clear goal of the Client Manager in managing the relationship is to

become the client’s trusted financial advisor. (Exhibit 22, Tomassini Affidavit, ¶ 6,

Attachment D; Exhibit 10, Hutton Depo. p. 98, lns. 14-24; Exhibit 19, Cooper Depo.,

pp. 56-57, lns. 20-12; Exhibit 15, Peterson Depo., pp. 70-71, lns. 14-9, p. 76, lns. 12-20;


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Exhibit 7, Krebsbach Depo. pp. 29-30, lns. 5-17).

IV. Arizona Client Managers’ Performance of their Primary Duty, Relationship management, was Administrative in Nature.

18. Competing financial institutions have the same products and services as

the Bank. (Exhibit 10, Hutton Depo, pp.62-63: 15-9, p. 99, lns. 11-15).

19. The Bank’s strategy, therefore, is for the Client Manager to establish

herself as the point of contact between her clients and the Bank and manage the

relationship so as to become the client’s trusted financial advisor and advocate. (Exhibit

15, Peterson Depo. pp. 80-81, lns. 19-3 (“I was their central point of contact, their

quarterback in the bank”; Exhibit 7, Krebsbach Depo. p. 42, lns. 5-22 (“You are an

advocate for your client,”; Exhibit 3, Cortopassi Depo, pp. 62-63, lns. 4-18; Exhibit 11,

Grace Duval Depo, p. 142, lns. 19-25; Exhibit 19, Cooper Depo, p. 64, lns. 2-11, pp. 69-

70, lns. 20-5; Exhibit 14, Margaret McClintic Depo., p. 50, lns. 7-12; Exhibit 15,

Peterson Depo. pp. 67-68, lns. 10-25).

20. Clients appreciated this effort. As an example, Ms. Hutton testified that

she would receive “letters from clients that told me they appreciated . . . me and the

work that I did.” (Exhibit 10, Hutton Depo. pp. 35-36, lns. 12-22).

21. The theory is that the client will turn to the person the client trusts for

advice regarding, and as a result, acquisition of financial products and services.

(Exhibit 10, Hutton Depo., p. 99, lns. 11-23; p. 113, lns. 11-17; pp. 135-136, lns. 11-10).

22. In order to successfully perform their job duty, Client Managers need to

have several years of experience with financial products and services. They must have

broad knowledge of all types of commercial and personal credit, debit and investment

vehicles, and of financial institutions and systems in order to formulate individual

strategies that meets the goals and needs of their clients. (Exhibit 18(a), ¶ 11; Exhibit

10, Hutton Depo., pp. 61-62, lns. 17-2, p. 74, lns. 3-24, p. 91, lns. 1-21, p. 111, lns. 6-

15; Exhibit 15; Peterson Depo. p. 62, lns. 11-22; Exhibit 7, Krebsbach Depo. p. 12, lns.

3-18).

23. Client Managers must keep abreast of evolving financial markets, grasp


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the subtleties of the market, become familiar with the needs and goals of their clients

and respond quickly to the competition’s efforts to win away the client. (Exhibit 18(a)

Santos Affidavit, ¶ 11); Exhibit 10, Hutton Depo., pp. 103-104, lns. 21-11).

24. Although Small Business Banking Client Managers work for a different

banking group, report to a different chain of command, and advise their clients about

different products and services than the Premier Client Managers (Exhibit 4, Roche-

Fukushima Depo., pp. 13-14, lns. 3-3), Small Business Banking Client Managers have

the same primary duty as Premier Client Managers – manage and develop the

relationship, becoming the Bank’s point of contact with the client and becoming the

client’s trusted financial adviser. (Exhibit 18(f), Beccue Affidavit, ¶¶ 5, 8; Exhibit 7,

Krebsbach Depo. p. 28, lns. 3-7).

25. The key to the success of a Client Manager is to market herself as the

single point of contact for the Bank in order to deepen the financial relationship between

her clients and the Bank. (Exhibit 18(a), Santos Affidavit ¶ 10; Exhibit 12, Carlos

Machado Depo, p. 30-31, lns. 24-5). For example, Ms. Hutton was very successful in

her own right. She testified that she had more than $187 million in client assets under

her management. (Exhibit 10, Hutton Depo., p. 28, lns. 1-15).

26. Client Managers assist their clients with all of their financial needs,

ranging from financial planning to basic banking services. (Exhibit 10, Hutton Depo.,

p. 93, lns. 1-21). Client Managers utilize research, planning and promotional activities

to establish their clients’ confidence and to understand the goals and financial needs of

their clients. (Exhibit 19, Cooper Depo., p. 44, lns. 7-9, pp. 60-61, lns. 18-4, pp. 62-63,

lns. 18-13, p. 70, lns. 17-22; Exhibit 14, McClintic Depo. p. 54, lns. 1-11; Exhibit 10,

Hutton Depo., pp. 116-117, ln. 4-19). This includes collecting and analyzing

information about a client’s income, assets, investments and debts. (Exhibit 7,

Krebsbach Depo. pp. 33-36, lns. 18-14; Exhibit 19, Cooper Depo., pp. 57-58, lns. 16-8;

Exhibit 15, Peterson Depo. pp. 66-67, lns. 6-8, pp. 71-72, lns. 16-25; Exhibit 18(a),

Santos Affidavit, ¶ 9).


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27. Client Managers, considering their clients’ accounts, track financial trends

and key market indicators such as interest rates and competitor practices that impact

these accounts. If a client’s account is impacted by a market change, the Client

Manager should proactively confer with the client and suggest an individualized

response. (Exhibit 18(a), Santos Affidavit, ¶ 9).

28. Even when there is no activity impacting an account, Client Managers

maintain regular contact with their clients. (Exhibit 19, Cooper Depo., p. 63, lns. 16-25;

Exhibit 10, Hutton Depo., pp. 123-124, lns. 24-8; Exhibit 15, Peterson Depo. p. 89, lns.

10-24). The purpose of this continued contact is to foster a long-term relationship

between the client and the Bank despite fierce competition from other financial

institutions. (Exhibit 18(a), Santos Affidavit, ¶ 9; Exhibit 15, Peterson Depo. pp. 89-90,

lns. 25-15; Exhibit 7, Krebsbach Depo. pp. 45-46, lns. 17-11.)

29. When determining the appropriate financial strategy for a client, the Client

Manager must consider all relevant alternatives in light of the client’s financial situation

and intentions regarding the transaction and then suggest the appropriate alternatives.

(Exhibit 10, Hutton Depo. p. 138, lns. 4-15). Based on their assessment or “diagnosis”

of their client’s financial needs and goals, Client Managers introduce the client to Bank

products or services that meet those specific needs. (Exhibit 18(a), Santos Affidavit, ¶¶

8-10; Exhibit 19, Hutton Depo., pp. 59-61, lns. 18-6, pp. 64-66, lns. 21-1, pp. 66-67, lns.

25-14, pp. 78-79, lns. 15-4, pp. 79-80, lns. 20-25; Exhibit 15, Peterson Depo. pp. 73-75,

lns. 20-7).

30. Given the duty of relationship management, it is understandable that a

Client Manager who focuses on selling, for instance, selling a client an unnecessary

product or service to make one sale, but loses the client’s trust and, ultimately, the

relationship is acting contrary to the Bank’s interest and instructions and is not

satisfactorily performing the job. (Exhibit 3, Cortopassi Depo., pp. 71-72, lns. 10-18;

Exhibit 15, Peterson Depo. pp. 70-71, lns. 24-15).


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V. The Exercise of Discretion and Independent Judgment is Commonplace.

31. Client Managers exercise a substantial amount of discretion and

independent judgment. They decide which clients to talk to, how to approach the

clients, and what information should be obtained from the clients to best determine their

needs and goals. (Exhibit 18(a), Santos Affidavit, ¶ 12; Exhibit 14, McClintic Depo. p.

54, lns. 12-19; Exhibit 10, Hutton Depo., pp. 114-115, lns. 4-3, pp. 126-127, lns. 18-14;

Exhibit 7, Krebsbach Depo. pp. 44-45, lns. 21-8.)

32. Client Managers also exercise discretion regarding which, if any, Bank

products they present to clients. Client Managers must analyze the client’s goals and

needs and recommend the right product. (Exhibit 18(a), Santos Affidavit, ¶ 13; Exhibit

10, Hutton Depo, p. 61, lns. 7-16, pp. 63-64, lns. 11-6, pp. 75-76, lns. 21-5; Exhibit 7,

Krebsbach Depo. p. 38, lns. 3-16.)

33. The day-to-day management of the relationship involves highly

discretionary decisions by the Client Manager. For example, it is routine for Client

Managers to overrule Bank guidelines and the decisions of tellers and other Bank

associates, and instruct these associates to pay checks for which there are insufficient

funds. (Exhibit 10, Hutton Depo. p. 185, lns. 11-4; Exhibit 19, Cooper Depo. p. 64, lns.

15-21). These overdraft decisions have been in substantial amounts of several thousand

dollars. (Exhibit 13, June, 2006, Vickie Sandve Affidavit, ¶ 3, Attachment A).

34. Client Managers also have the authority to remove holds on checks and

have done so in amounts as much as several thousand dollars placed by other Bank

associates in accordance with the Bank rules. (Exhibit 19, Cooper Depo., pp. 65-66,

lns. 22-8; Exhibit 13, Sandve Affidavit, ¶ 4); Exhibit 10, Hutton Depo., pp. 140-141,

lns. 18-3, p. 142, lns. 10-21.)

35. Other examples of the discretion often exercised by Client Managers

include making wire transfers with no written order and initiating transactions or verbal

on telephone instructions prior to the Bank’s receipt of written permission by the client.

(Exhibit 13, Sandve Affidavit, ¶ 5; Exhibit 10, Hutton Depo., pp. 145-146, lns. 21-6.)


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36. Client Managers also exercise discretion and independent judgment

regarding the financial terms they offer to their clients. For example, a Client Manager

can increase the interest rate on certificates of deposit offered to clients from as much as

10 basis points to a quarter of a percent, can waive fees on check orders, and can waive

overdraft fees. (Exhibit 5, Searles depo. 69-71, lns. 5-16; Exhibit 12, Machado Depo.,

pp. 102-104, lns. 20-22, pp. 107-108, lns. 20-20.)

37. Client Managers also have the discretion to appeal an Underwriting

Department turn-down of a request for credit by advocating an exception through their

Market Manager. (Exhibit 10, Hutton Depo. p. 183, lns. 6-16.) While some Client

Managers never pursue such an exception, others do it in a substantial number of their

loans. (Exhibit 13, Sandve Affidavit, ¶ 6).

38. Client Managers can also waive certain fees for Bank products such as

loan origination fees in amounts up to $250. (Exhibit 9, Sandve Depo., pp. 61-62, lns.

16-25.)

39. The Bank’s Premier Relationship Center (“PRC”) located in Tempe,

Arizona exists solely to assist Premier Client Managers with their workloads. The PRC

is staffed by individuals who are trained to answer client calls and perform routine

functions for Client Managers. (Exhibit 3, Cortopassi Depo., p. 166, lns. 18-25).

40. Premier Client Managers can delegate many of their routine duties and

tasks to employees at the PRC. (Exhibit 19, Cooper Depo., pp. 53-55, lns. 21-3; Exhibit

14, McClintic Depo. pp. 55-56, lns. 8-6.) Thus the Client Manager can significantly

reduce her workload by utilizing the PRC to perform a number of routine tasks.

(Exhibit 3, Cortopassi Depo., p. 158, lns. 5-21.)

41. In contrast, to accomplish the same workload reduction, Small Business

Client Managers have their own assistants, in their same offices. (Exhibit 7, Krebsbach

Depo. p. 44, lns. 4-12; Exhibit 5, Searles Depo. pp. 99-100, lns. 3-1.)

42. Client Managers work relatively free from supervision. (Exhibit 19,

Cooper Depo., pp. 47-48, lns. 4-2, p. 49, lns. 11-19). While Client Managers report to a


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Market Manager, they generally only interact with the Market Manager about once a

week. (Exhibit 10, Hutton Depo., p. 128, lns. 12-23; Exhibit 14, McClintic Depo. pp.

23-25, lns. 8-25.) They essentially control their own hours and location of work, a

characteristic of the position that attracts many Client Managers to the job. (Exhibit 19,

Cooper Depo., pp. 68-69, lns. 23-5; Exhibit 18(a), Santos Affidavit, ¶ 4; Exhibit 18(b)

Vickie Sandve Affidavit, ¶ 3; Exhibit 10, Hutton Depo., pp. 134-135, lns. 21-3.)

43. Because of the skills required to perform this job, Client Managers receive

a high salary, plus the potential for a large incentive bonus, resulting in annual

compensation in the range of $62,500 to over $100,000. (Exhibit 10, Hutton Depo., pp.

43-46, lns. 11-25; Exhibit 14, McClintic Depo., p. 44, lns. 8-20, p. 48, lns. 15-23;

Exhibit 19, Cooper Depo., pp. 34-35, lns. 17-6).

VI. March 2002 Reclassification Of The Client Manager Position.

44. Prior to March 2002, the Client Manager position was classified as,

exempt from the overtime requirements of the FLSA. Client Managers were paid on a

salary basis and received the same amount of compensation regardless of variations in

the quality of their work, or the number of hours which they worked. (Exhibit 14,

McClintic Depo., pp. 45-47, lns. 18-6; Exhibit 15, Peterson Depo., p. 40, lns. 2-25).

45. Client Managers did not have their pay docked for partial day absences

during the time period they were classified as exempt. (Exhibit 13, Sandve Affidavit,

¶ 8).

46. Effective March 1, 2002, the Bank reclassified the Premier and Small

Business Client Manager positions from exempt to overtime eligible. (Exhibit 2, Reale

Depo., p. 40, lns. 9-14; Exhibit 3, Cortopassi Depo., p. 27, lns. 20-24).

47. This decision as it relates to Arizona, was made by Mark Reale, Personnel

Executive for Premier Bank and Liz Ferrer, Personnel Executive for the Small Business

Bank, in the Fall of 2001. (Exhibit 2, Reale Depo., pp. 52-53, lns. 17-21).

48. There is no evidence that any court or administrative agency has

concluded or even contended that Client Managers are non-exempt, or that competitors’


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counterparts are non-exempt.

49. The Bank’s management always has believed Client Managers are exempt

within the FLSA. (Exhibit 2, Reale Depo., p. 40, lns. 15-23; pp.102-103, lns. 4-12).

50. In 1999, class actions were filed in California claiming the Client

Manager position and other positions were non-exempt under California law. Susanne

Watson, Personnel Manager for the California Consumer and Commercial Bank

division until August, 2001, managed the suit. She reported to John Harris, Personnel

Executive for the Consumer and Commercial Group. Jay Price was the in-house Bank

attorney involved in over seeing the defense of these class actions. (Exhibit 2, Reale

Depo, p. 45, lns. 3-24, p. 49, lns. 1-20.)

51. Following his one day trip at the request of Jay Price to Seattle, where he

interviewed a Market Manager and a few Premier Client Managers, Lloyd Aubry, an

expert on California Wage and Hour law, advised Mr. Price that the Client Manager job,

as designed and intended was exempt. (Exhibit 16, Lloyd Aubry Depo., p. 125, lns. 14-

24). This confirmed the views of the Bank’s management noted above.

52. Mr. Aubry also advised Mr. Price that:

a) The job is performed by at least some client managers emphasizing sales too much, causing them to perhaps perform the job in a non-exempt manner at least under California law.

b) Wage and Hour class actions are the lawsuit du jour of the day in California and elsewhere.

c) Therefore, the Bank may want to: 1) More closely monitor job performance to assure exempt

performance, 2) Modify the job; or 3) Avoid continuous litigation by making Client Managers

overtime eligible. (Exhibit 16, Aubry Depo. p. 140, lns. 13-21, Exhibit 15, ¶¶ 8, 10-15.)

53. These concerns raised more of a training issue than a classification issue.

Since relationship management was the crux of the Bank’s strategy to beat competition,

that aspect of the position was key to the success of the strategy and would not be

abandoned. The Bank had been improving its training and behavior analysis for

recruiting specifically to better focus Client Managers on relationship management, that


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is relationship focused rather than product focused, and to understand that a strong

relationship founded on financial trust and confidence would naturally result in the

client selecting more and more Bank products and services over its competitors.

Therefore, reclassification was not needed. (Exhibit 8, Affidavit of Jay Price, Esq, ¶5;

Exhibit 6, Roche-Fukushima Affidavit, ¶¶ 4-8).

54. In March, 2001, a California Court of Appeals applied the “production/

administrative dichotomy test” to a job in the insurance industry in Bell v. Farmer

Insurance Exchange, 87 Cal. App. 4th 805 (Cal. App. 2001), rev. denied June 20, 2001.

The same reasoning could be applied to banks. Exhibit 8, Price Affidavit.

55. A great deal of commentary circulated concerning the wage and hour

litigation threat to business after the Bell decision. (Exhibit 24, Contra Costa Times

article 6/29/01; San Diego Union-Tribune article July 12, 2001).

56. About May 1, 2001, Ken Lewis became CEO of the Bank. He set as a

goal, 8 conservative quarters of meeting or exceeding expectations, asking that expenses

become predictable. Litigation expense is not predictable. He also expressed

displeasure with seeing the Bank’s name in the news as an employer whose associates

sue. (Exhibit 2, Reale Depo., pp. 66-67, lns. 6-9).

57. In July, 2001, the California class actions were successfully mediated.

(Exhibit 2, Reale Depo., pp. 36-37, lns. 21-9).

58. About August 1, 2001, the Bank was realigned from a geographic basis to

a business unit basis. In the personnel function, John Harris remained responsible for

the Consumer and Commercial Banking Group. Ms. Watson took the Consumer Bank

nationally; Ms. Ferrer took the Small Business Bank nationally, and Mr. Reale took the

Premier Bank nationally. These Personnel Executives reported to Mr. Harris. Mr.

Harris reported to Steele Alpin, the Bank’s Personnel Director. With realignment, the

Six Sigma concept became prevalent, including the concept that variability is your

enemy. (Exhibit 25, Reale Affidavit, ¶4).

59. In the fall of 2001, about 50% of all Client Managers were located in


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California. Mr. Reale understandably believed the legal landscape was moving against

employers in California wage and hour litigation. Therefore, he accepted the proposal

that California Premier Banking Client Managers be converted to overtime eligible

status to avoid ongoing expensive litigation. Ms. Ferrer made the same decision for

Small Business Client Managers. (Exhibit 2, Reale Depo., pp. 52-53, lns. 2-12; pp. 98-

99, lns. 23-14; p. 100, lns. 8-23).

60. Mr. Reale and Ms. Ferrer could have blocked conversion outside of

California, but for system consistency and simplicity, they decided in late September

2001, to convert nationwide. Therefore, Arizona Client Managers was converted to

overtime eligible. All managers nevertheless continued to believe the job was exempt.

(Exhibit 2, Reale Depo., p. 55, lns. 4-12; pp. 50-51, lns. 11-10.)

61. At the Personnel Executive level, implementation started in the sense that

issues were identified. Consideration was give to how the conversion would impact

Client Manager moral since Client Manager’s considered themselves professionals.

Also, budget issues needed to be addressed. (Exhibit 25, Reale Affidavit, ¶5; Exhibit 3,

Cortopassi Depo., p. 43, lns. 6-16).

62. The target conversion date was delayed, reasonably, to March 1, 2002 due

to the pending payroll system conversion to Exault. (Exhibit 2, Reale Depo., pp. 101-

102, lns. 19-6).

63. In December, 2001, yet another reorganization occurred. Ms. Ferrer

became Personnel Executive for Premier Banking and Mr. Reale moved to another job.

Ms. Watson, who intended to retire about at this time, was placed in charge of

implementation. A working team was convened in or before December, 2001. The

working team prepared an implementation schedule. (Exhibit 4, Roche-Fukushima

Depo., pp. 26-27, lns. 20-24; Exhibit 25, Reale Affidavit., ¶6).

64. Ms. Roche-Fukushima was on the working team and recalls being

informed of the decision to convert during a conference call to working team members

in late 2001 or early 2002. She recalls that Ms. Watson told the group of the decision,


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attributing the decision to Mr. Aplin. (Exhibit 4, Roche-Fukushima Depo., pp.70-72,

lns. 19-36).

65. Mr. Reale explained that the attribution of this decision to Mr. Alphin

likely was because he is ultimately responsible for all personnel decisions as the highest

personnel officer of the Bank, and because attribution to him would reduce second

guesses. (Exhibit 2, Reale Depo., pp. 122-124, lns. 18-11).

66. John Morton, President of Premier Banking, advised the Premier Banking

management group of the conversion via a February, 2002, Knowledge Channel

Broadcast. He had learned of the conversion decision in the fourth quarter of 2001. In

the Broadcast, he stated he believed the conversion was “exactly the right thing for our

company.” In Interrogatory Responses, Mr. Morton explained his statement:

(i) I was told there was uncertainty around the definitions of the law regarding exempt/non-exempt status at least in California and that we had just settled costly litigation there. I agreed it was the most prudent choice to make all Client Managers overtime eligible for system continuity and to avoid costly litigation.

Mr. Morton also said the potential risks facing the Bank included “some problems in

managing the actual overtime expense that we have budgeted for this year.” He

explained the comment in his Interrogatory Responses:

(i) The comment was designed toward concern about administrative inefficiencies. There was no prior system or procedure in place to capture and report actual overtime or to manage overtime expense.

(See Morton Interrogatory Responses Nos. 2-3, dated March 27, 2006, attached as

Exhibit 17).

67. There was no change in the duties and responsibilities of the Client

Managers following the March 2002 reclassification. (Exhibit 3, Cortopassi Depo., pp.

43-45, lns. 23-12.)

VII. Subsequent to March 2002 Client Managers Were Repeatedly Advised Of The Bank’s Requirement That They Record All Their Hours Of Work.

68. By early 2002, the Bank had developed a formal program to implement

the reclassification of Client Managers from exempt to overtime eligible. Briefings

were held, and talking points and tips were distributed to ensure implementation of the


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reclassification. These talking points and tips clearly state that, “[w]hen a position is

classified as overtime eligible (non-exempt), all associates in that position are required

to be paid overtime pay for time worked over the state or federal requirement.”

((Exhibit 3, Cortopassi Depo, p.12, lns. 6-13; Exhibit 4 Roche-Fukushima Depo, Exh.

3-4).

69. The Overtime-Eligibility Guide for Associates notes (a) “accurate

reporting of hours worked is required,” and (b) “double-check all information on the

timesheet to make sure it is accurate.” (Exhibit 13, Sandve Affidavit ¶¶ 9, Attachment

B).

70. In March 2002, Market Managers held meetings in each market to instruct

Client Managers on how to complete time cards and keep track of their hours of work.

(Exhibit 4, Roche-Fukushima Depo, Exh. 4).

71. Small Business Market Manager Lynn Searles “rolled out” the conversion

to overtime eligibility to her Client Managers in accordance with the Bank’s policy.

(Exhibit 5, Searles Depo. p. 61, lns. 16-19).

72. Following the reclassification, Bank executives met with Market

Managers and stressed with them the need to ensure that Client Managers were

preparing their timesheets accurately and were being appropriately compensated for all

hours of work in excess of 40 in a workweek. (Exhibit 3, Cortopassi Depo, p. 48, lns.

11-20, p. 154-155, lns. 7-2, Exhibit 2).

73. Steve Cortopassi, then the Regional Executive responsible for Premier

Banking in Arizona, met with Client Managers a number of times to emphasize that

they needed to record all of their overtime hours worked. In an effort to stress the need

for Client Managers to record all hours of work, Mr. Cortopassi advised them that

“[y]ou’ve got to sign for your overtime. I don’t like stripes, and I don’t like bread and

water.” (Exhibit 3, Cortopassi Depo, p. 155, lns. 3-19).

74. At the time of the reclassification of the Client Manager position and

periodically thereafter, Client Managers also received reminders on the need to record


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all hours worked on their timesheets, including overtime hours. For instance, Frank

Santos (Ms. Hutton’s Market Manager after December, 2003) made clear that each

Client Manager was responsible for recording all hours worked, and that the Bank

would rely on the submitted timesheets when calculating Client Manager compensation.

(Exhibit 18(a), Santos Affidavit, ¶ 14). Carlos Machado (Ms. Hutton’s Market Manager

from the March 2002 to October, 2003), met with his Client Managers to emphasize the

need to accurately complete timesheets. (Exhibit 12, Machado Depo, p. 67-68, lns. 23-

24).

75. The timesheets filled out and signed by the Client Managers specifically

state, “I understand that I am responsible for accurately reporting all time worked,

including any overtime, and that my failure to do so may result in disciplinary action. I

certify that the above is an accurate record of time worked during this period.” (Exhibit

14, McClintic Depo, p. 31-32, lns. 25-5, Exh. 8).

76. The Bank also held Associate Listening Sessions in order to help Client

Managers adjust to completing timesheets and tracking their hours of work. (Exhibit 4,

Roche-Fukushima Depo, pp. 83, lns. 7-23, Exh. 4).

77. The contents of the Bank’s “Q & A” documents regarding the conversion

were brought to the Client Managers’ attention and emphasized that Client Managers

needed to record all hours of work:

When your position is reclassified as eligible for overtime pay, you are required to receive overtime pay for time worked beyond 40 hours in a workweek. In order to receive accurate payment for time worked, you must keep track of your work hours. Generally, you will do this by completing a timesheet. Training will be provided to fill out your timesheet.

(Exhibit 13, Sandve Affidavit ¶ 10).

78. The Bank’s Associate Handbooks also instructed Client Managers that

they were required to record all overtime hours and accurately complete their

timesheets. For example, the Bank’s 2002 Associate Handbook, provides:

If you are an overtime-eligible associate, you are expected to record the hours you work on a timesheet or other


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company approved time record or timekeeping system. This reporting is required to satisfy state and federal laws and to ensure that you are properly paid. You are expected to record daily time worked accurately and truthfully. You should report all time spent doing work for the company, including work at home.

(Exhibit 10, Hutton Depo, p. 161, lns. 6-14 Exhibit 13). Vicki Sandve (Ms. Hutton’s

Market Manager the last few months of 2003) enforced this requirement. (Exhibit 9,

Sandve Depo, pp. 79-81, lns. 11-25).

79. There were no unwritten policies or plans in contravention of, or intended

to subvert, the requirement that Client Managers were to record and receive overtime

compensation for all hours worked in excess of 40 in a workweek. The Arizona Market

Managers during the relevant time period have testified, under oath, that there were

absolutely no unwritten or tacit policies to encourage Client Managers to work “off the

clock.” (Exhibit 23, December 20, 2004 Order, p. 7: 2-51; Exhibit 5, Searles Depo. pp.

110-112, lns. 18-2; See Original Market Manager Affidavits attached as Exhibit 18(a),

(b), (c), (d)).

80. Neither Mr. Cortopassi nor the Market Managers sent any message to the

Client Managers that could be interpreted as a message that they should work more

hours than they actually recorded. (Exhibit 3, Cortopassi Depo, p. 161, lns. 10-18; see

Original Client Manager Affidavits attached as Exhibit 18(a), (b), (c), (d)).

81. If a Market Manager had pressured a Client Manager to work off the clock

or to not record all overtime hours worked, this conduct would have been unacceptable

to the Bank and the Market Manager who engaged in this type of misconduct would be

disciplined and potentially terminated. (Exhibit 3, Cortopassi Depo, pp. 161-162, lns.

19-3).

82. Ms. Hutton admits she was never told by anyone to work hours and not

record them:

Q: Has anybody in the management of the bank ever told you to work hours and not record them?

A: Not in those words.


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Q: Has anybody presented you with a document that told you to work hours and not record them?

A: No.

Q: Was there a rule that [market manager] Vicki Sandve imposed that said you can only work four hours of overtime a week, or was it that you can only work four hours of overtime without my permission a week?

MS. JONES: Objection to form.

A: If you reported more than four hours of overtime in a week, you needed to get prior approval for that.

Q: Did the administrative assistant that worked with Vicki ever tell you to work hours and not report them?

A: No.

(Exhibit 10, Hutton Depo, p. 157, lns. 8-25).

83. The Opt-ins deposed admit they were told to record all hours worked,

including overtime hours:

Q: Has she [market manager Grace Duvall] told you since that time either in a group meeting or individually that you are to record all of the overtime hours that you work?

MS. JONES: Objection, form and foundation.

A: Yes.

Q: And do you have a specific recollection as to when she told you that?

A: No, I don’t. Probably when she first came on board . . . I believe it was sometime in 2002.

(Exhibit 14, McClintic Depo, p. 8, lns. 5-15).

Q: Were you told by anyone at the bank that you were to record all of the hours you worked?

MS. JONES: Objection, foundation and form.

A: I was told to write down my hours that I worked, correct.

. . .

A: He [market manager Frank Santos] said to start filling out timesheets and to record overtime if we worked it.

(Exhibit 15, Peterson Depo, pp. 47-48, lns. 17-18; p. 49, lns. 3-12).


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84. Individual Market Managers may have instructed Client Managers not to

work overtime hours, i.e., to only work 40 hours in a workweek. Individual Market

Managers may have instructed Client Managers to limit their overtime hours worked to

a certain number per week. Despite any such instructions, if a Premier Client Manager

worked overtime hours and submitted a timesheet reflecting those hours, they were paid

for those hours. (Exhibit 3, Cortopassi Depo, pp. 49-50, lns. 20-6). For example,

Market Manager Grace Duval asked the Client Managers reporting to her to let her

know in advance if they were going to work any overtime hours. (Exhibit 14,

McClintic Depo. p. 30, lns. 10-14). Market Managers Vickie Sandve and Frank Santos

asked that Client Managers obtain prior approval before working more than four or five

hours of overtime in a week. In contrast, Market Manager Carlos Machado did not

require Client Managers to obtain prior approval before working overtime hours.

(Exhibit 10, Hutton Depo, p. 157, lns. 14-21; Exhibit 15, Peterson Depo, p. 49, lns. 14-

21; Exhibit 9, Sandve Depo, p. 56, lns. 20-25; Exhibit 12, Machado Depo, pp. 77-78,

lns. 14-3).

85. Arizona Small Business Market Manager Ms. Searles simply wanted the

Client Managers to keep her abreast of the general number of hours of overtime which

they were working each week so she could ensure that they were not overworked.

Nevertheless, Small Business Client Managers were paid for all overtime hours which

they recorded. (Exhibit 5, Searles Depo. p. 111, lns. 4-14).

86. Ms. Searles testified that “[m]y statement has always been if you are

working on behalf of the Bank, document it.” (Exhibit 5, Searles Depo. p. 112, lns. 12-

13).

87. Small Business Opt-in Therese Krebsbach confirmed that when questions

about recording overtime were raised in Ms. Searles’ presence “she [Lynn] would read

the corporate statement.” (Exhibit 7, Krebsbach Depo. pp. 71-72, lns. 21-1).

88. Opt-in Janice Peterson alleges that Mr. Machado’s unwritten policy

regarding overtime was that he allotted a certain number of overtime hours per Client


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Manager, but “he wouldn’t have a problem going over budget if we were producing.”

(Exhibit 15, Peterson Depo. pp. 92-93, lns. 15-3).

89. Ms. Hutton admitted that if they testified truthfully, every Client Manager

would say “we were told there was a budget constraint on overtime and we were not

allowed to go over four hours a week without prior approval.” (Exhibit 10, Hutton

Depo, p. 160, lns. 12-24).

90. The Opt-ins from whom individual discovery has been permitted by

Plaintiff’s counsel admit they did report overtime, often in excess of four or five hours

in a given week, and that they were always paid for every hour of overtime which they

recorded. (Exhibit 10, Hutton Depo, pp. 155, 6-17; Exhibit 14, McClintic Depo, p. 30,

lns. 15-19; Exhibit 15, Peterson Depo, p. 34, lns. 17-25, p. 37, lns. 1-8.

91. For example, although Ms. Hutton claims she was told by Market

Manager Vickie Sandve, that Client Managers should not work holidays without prior

approval, Ms. Hutton admits that she did turn in hours for holiday work and was paid

for that time. (Exhibit 10, Hutton Depo, p. 155, lns. 6-17).

92. Opt-in McClintic concedes Market Manager Grace Duval never refused a

request to work overtime, but rather claims Duval led her to believe by doing so she was

taking overtime away from the other Client Managers. (Exhibit 14, McClintic Depo. pp.

56, lns. 7-17). Ms. Duval disputes the latter allegation. (Exhibit 11, Duval Depo. pp.

216, ln. 22 – pp. 219, ln. 22).

93. Market Managers also confirmed that Client Managers were paid for all

overtime hours which they worked. For example, Mr. Machado testified that even if a

Client Manager was inefficient and worked 60 hours per week, the Client Manager

would be paid for 20 hours of overtime. (Exhibit 12, Machado Depo, p. 67, lns. 11-17).

94. Premier Market Managers did not have any difficulty with overtime

expenses in their budget. (Exhibit 3, Cortopassi Depo, p. 58, lns. 15-20).

95. The Arizona Small Business Market Manager, Ms. Searles testified she

was “never held accountable” for exceeding any budget for overtime and that she did


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not even pay that much attention to her overtime budget. (Exhibit 5, Searles Depo., pp.

62-65, lns. 25-1).

96. The Premier Market Managers’ supervisor, Ms. Cortopassi, did not

instruct them that they needed to reduce their overtime expense for Client Managers.

(Exhibit 9, Sandve Depo, p. 52, lns. 9-14).

97. Client Managers were not evaluated on the basis of whether or not they

worked overtime hours. (Exhibit 3, Cortopassi Depo, p. 145, lns. 11-18).

VIII. The Bank Had No Knowledge That Certain Opt-Ins Were Not Recording Some Overtime Hours, If Such Was the Case.

98. The Bank was not aware that certain Opt-ins may have been reluctant to

record all of their overtime hours if such was the case. (Exhibit 3, Cortopassi Depo,

pp. 47-48, lns. 8-10).

99. Opt-in Margaret McClintic claims she did not record all of her overtime

hours, but felt justified in not doing so because the Bank’s incentive pay plan for Client

Managers was generous enough to make working overtime hours worthwhile, not

because she was led to believe she should not record this time. (Exhibit 14, McClintic

Depo, pp. 43-44, lns. 20-7).

100. Opt-in Julia L. Cooper (“Cooper”) has waived any claim to overtime

following the reclassification of the Client Manager position to overtime eligible in

March 2002. (Exhibit 19, Cooper Depo, p. 7, lns. 7-9, p. 15, lns. 6-11). Plaintiff’s

counsel even repeatedly instructed Ms. Cooper not to answer any questions regarding

this time period. (Exhibit 19, Cooper Depo. pp. 16-21; lns. 8-3).

101. Opt-in Janice Peterson (“Peterson”) claims that she “may” have worked

some overtime hours for social events, training trips or Saturday projects which she did

not record, but she admits she has no way of even estimating the number of those hours.

(Exhibit 15, Peterson Depo, pp. 28-30, lns. 15-16, p. 35, lns.10-17).

102. Ms. Peterson also claims that at times she recorded a lunch break on her

timesheet when she actually worked through lunch because an administrative assistant,

Sandy Guthrie, allegedly told her that her timesheets needed to show a lunch hour.


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However, Peterson admits that her Market Manager told her that she needed to record

all of her hours of work. (Exhibit 15, Peterson Depo, pp. 43-44, lns. 25-1, p. 47, lns. 15-

21).

103. Sandra Guthrie encouraged Client Managers to take lunch breaks to

“recharge themselves” but they were not required to do so. All Client Managers with

whom she worked were paid for all time recorded. (See October 27, 2005 affidavit of

Sandra Guthrie attached hereto as Exhibit 20, ¶ 4).

104. There is no evidence that the Bank received an internal complaint that

Client Managers were being forced to work overtime hours for which they were not

being paid.

a. For example, Ms. Hutton never contacted the Bank’s Personnel

Department to allege that she was being forced to work overtime hours but not record

them. Similarly, Ms. Hutton never complained to a Market Manager that she allegedly

was not being paid for all the overtime hours she worked. (Exhibit 10, Hutton Depo,

p. 161, lns. 15-24, p. 164, lns. 20-22).

105. A review of the overtime records of each opt-in between March 2002 and

June 2005 demonstrates that there is no consistency in the number of overtime hours

which these individuals recorded. Some Client Managers recorded absolutely no

overtime, others recorded a few hours on a sporadic basis and others recorded between

5 and 20 hours a week. (Exhibit 21, Bellefeuille Affidavit ¶ 3).

106. Even Ms. Hutton concedes that at certain times she did report all of her

overtime hours. (Exhibit 10, Hutton Depo. pp. 166, lns. 2-16).

IX. With One Isolated Exception, No Docking Occurred.

107. One Client Manager, Sherry Weaver (“Weaver”) had her pay docked for

about 5 hours in 2 or 3 pay periods from the October to December, 2003 (Client

Managers were overtime eligible when this docking occurred). (Exhibit 21, Bellefeuille

Affidavit, ¶ 6(c)).

108. Mr. Cooper assumed that if a Client Manager exceeded his or her allotted


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sick and vacation days, the Client Manager’s pay would be docked. However, no one at

the Bank told her this was the case and her pay was never actually docked. (Exhibit 19,

Cooper Depo, pp. 76-79, lns. 8-3).

109. Ms. McClintic claims that she was told that if she took extra vacation days

beyond her allotted vacation time, she would not be paid for this time. Ms. McClintic

never actually exceeded her allotted vacation and sick days. (Exhibit 14, McClintic

Depo, p. 81, lns. 8-25, p. 82-83, lns. 10-2).

110. Ms. Peterson never had her pay docked. (Exhibit 15, Peterson Depo,

p. 40, lns. 23-25).

X. July 2005 Reclassification.

111. In July 2005, the Premier Client Managers were reclassified back to

exempt. (Exhibit 25, Reale Affidavit, ¶ 7).

112. Small Business Client Managers were re-classified back to exempt in

April 2005. (Exhibit 25, Reale Affidavit, ¶8.)

Dated this 26th day of June, 2006.

RYLEY CARLOCK & APPLEWHITE By /s/Charles L. Chester

Charles L. Chester Carolann E. Cervetti John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Defendants


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CERTIFICATE OF SERVICE

I hereby certify that on June 26th, 2006, I electronically transmitted the

attached document to the Clerk’s Office using the CM/ECF System for filing and

transmittal of a Notice of Electron Filing to the following CM/ECF registrants:

Ms. Lydia A. Jones ROGERS & THEOBALD, LLP 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff Michael O’Connor Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 /s/Bree Bellefeuille An employee of Ryley, Carlock & Applewhite


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