Free Amended Complaint - District Court of California - California

Case 3:08-cv-00863-JM-AJB

Document 8

Filed 07/09/2008

Page 1 of 4

1

)
a J

4
5

JAMES F. CLAPP (145814) J. KÌRK DONNELLY (179401) MARTTA MURPTTY LAUTNGER (t99242) DOSTART CLAPP GORDON & COVENEY,LLP 4370La Jolla Village Dr. Ste. 970 San Diego, CA921.22 Tel. (858) 623-4200 Fax. (858) 623-4299 Attorneys for Plaintiff

6

7
8

LINITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

9 10
11

DOSTART CLAPP GORDON & COVENEY, LLP, a limited liability partnership,

CASE NO. 3:08-cv-0863-JM (AIB)

t2

l3
14
15
V.

Plaintiff,

FIRST AMENDED COMPLAINT FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT (5 u.s.c. $ 5s2)

UMTED STATES DEPARTMENT OF LABOR,
Defendant.

I6
77
18 T9

1.
ofLabor.

This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. $ 552 to

20
27

compel the production and release of agency records requested by plaintiff from the U.S. Department

22
23

2. 3. 4.

This Court has jurisdiction over this action pursuant to 5 U.S.C. $ 552(aXa)(B). Venue

lies in this District under 5 U.S.C. $ 552(a)(a)@).

24
25

Plaintiff Dostart Clapp Gordon

&

Covene¡ LLP is a Califomia limited liability

parhrership located in San Diego County, California.

26
27 28

Defendant United States Department

of Labor ("DOL") is an executive

Cabinet

Department of the Executive Branch of the United States Government. DOL is an agencywithin the meaning of 5 U.S.C. $ 552(Ð.

First Amended Complaint for Violation of the Freedom of Information Act

3:08-cv-0863-JM (AJB)

Case 3:08-cv-00863-JM-AJB

Document 8

Filed 07/09/2008

Page 2 of 4

1

5.

On November 27, 2006, the DOL issued an opinion letter (FLS A2006-43) regarding

2
J

whether certain "registered representatives"

in the financial

services industry qualify

for

the

administrative exemption under Section 13(a)(1) of the Fair Labor Standards Act and 29 C.F.R. Part
547.

4
5

6.

On November 29,2006, plaintiff sent a FOIA request to Paul DeCamp, Adminishator

6 7
8

ofthe Wage and Hour Division ofthe DOL, requesting copies of all documents which led to the issuance of opinion letter FLSA2006-43. A true and correct copy of plaintiff
as

s

FOIA request is attached hereto
as required under 29

Exhibit 1. Plaintiff sent the FOIA request via U.S. Mail and by facsimile,

C.F.R.

9 10
11
1,2

$ 70.1e(a).

7.

Plaintiff s FOlArequest soughtproduction ofthe following: (1) all documents reflecting

any oral or written communications between any representative of the Securities Industry Association
(also known as the Securities Industry and Financial Markets Association)

("SIA")

and

DOL conceming

13

whether registered representatives, account executives, broker-representatives, financial executives,

t4
15

financial consultants, financial advisors, investment professionals, and stockbrokers (collectively
referred to as "registered representatives") in the financial services industry are exempt from the
overtime payrequirements ofthe Fair Labor Standards Act ("FLSA"); (2) any and all documents in any

l6
17
18

way related to the SIA's request for an opinion letter from the DOL concerning whether registered
representatives are exempt from the overtime payrequirements ofthe FLSA; (3) any and all documents

I9
20
21

provided by the SIA to the DOL in connection with the SIA's request for an opinion letter from the DOL concerning whether registered representatives are exempt from the overtime pay requirements of the

FLSA; (4) any and all documents reviewed or relied upon by the DOL in formulating its response to any
request for anopinion letter fromthe SlAconcerningwhetherregisteredrepresentatives are exempt from the overtime pay requirements of the FLSA; and (5) any andall documents in the possession of the

22
23

DOL

24
25

relating to any lawsuit alleging that registered representatives are entitled to overtime pay under the FLSA, including without limitation any documents relating to lawsuits against A.G. Edwards & Sons, Inc.,
'Wachovia,

26 27
28

Prudential, Merrill Lynch, Morgan Stanley, Citigroup/Smith Barney, UBS, Edward

Jones, andlor Banc of America.

First Amended Complaint for Violation of the Freedom of Information Act

3:08-cv-0863-JM (AJB)

Case 3:08-cv-00863-JM-AJB

Document 8

Filed 07/09/2008

Page 3 of 4

1

8.

In violation of 5 U.S.C. $ 552(a)(6)(Ð(Ð and29 C.F.R. $ 70.25(a), defendant failed to

2
J
a

determinewitlnn2} days afterreceivingplaintiff srequestwhetherto complywiththerequestand failed
immediately to notiff plaintiff of such determination and the reasons therefor. To date, defendant has failed to produce a single document in response to plaintiff
s request.

4
5

9.

No "unusual circumstances" existed under 5 U.S.C. $ 552(a)(6)(B) to extend the2}-day

6 7
8

deadline established under 5 U.S.C. $ 552(a)(6)(Ð(Ð, and in any event: (a) defendant failed to give

plaintiff written notice of any need for an extension, and (b) more than 10 working days have elapsed
since the defendant's response was originally due.

9
10
11

10.

No "exceptional circumstances" existed under 5 U.S.C. $ 552(aX6XC) to

excuse

defendant's failure to comply with the FOIA, and defendant has not exercised due diligence in
responding to plaintiff s request.
1

T2

1.

In an effort to avoid the need to file this lawsuit, plaintiff contacted the DOL several times

t3

to inquire about the status of its FOIA request:
On January 25,2007,plaintiff telephoned Brad Sinkovic, the FOIA Coordinator
at the

t4
15

DOL. Mr. Sinkovic advised plaintiff that its request had been received and was being processed.

16
T7 18

b.

On February 6, 2007, plaintiff spoke to Mr. Sinkovic agun by telephone.

Mr. Sinkovic advised plaintiff that the DOL was behind in processing FOIA requests, but that the DOL
would respond to plaintiff
s request

by February 8,2007.

I9
20

Defendants failed to respond to plaintiff s request by February 8, 2007 . Over the next six weeks, plaintiff attempted to contactMr. Sinkovic several times, buthe didnotreturnplaintiff telephone calls.
s

2t
22
23

d.

On March 20,2007, plaintiff telephoned Barbara Bingham, the DOL's "FOIA

Liaison." Ms. Bingham advisedplaintiff that the DOL's response to plaintiffls FOIA request was "on
the desk of the Clearance Department waiting for approval" and would be sent out promptly.

24
25

e.
response to

Having received nothing from the DOL, on November 14,2007, plaintiff again

26
27
28

called Ms. Bingham. Ms. Bingham said that she was unable to determine a release date for the DOL's

plaintiffs request.

She suggested calling Michael Ginley, the Director

of the Office of

Enforcement.

First Amended Complaint for Violation of the Freedom of Information Act

3:08-cv-0863-JM (AJB)

Case 3:08-cv-00863-JM-AJB

Document 8

Filed 07/09/2008

Page 4 of 4

1

On or about Novemb er | 4, 2007,plaintiff telephoned Mr. Ginley. Mr. Ginley told

2
J

plaintiff

he would check on the status of

plaintiff s request

and call

plaintiff back. To date, Mr. Ginley

has not called plaintiff back.

4
5

12. 73. 14.
and costs.

It has been 17 months since plaintiff sent its FOIA request to the DOL. Defendant has

acted arbitrarilyand capriciouslyin failing to respondto

plaintiff s requestwithin

the statutory deadlines.

6 7
8

Under 5 U.S.C. $ 552(a)(6)(CXÐ, by virtue of defendant's failure to comply with the

FOIA's time limits, plaintiff is deemed to have exhausted its administrative remedies.
Pursuant to 5 U.S.C. $ 552(a)(6)(E), plaintiff is entitled to its reasonable attomey's fees

9 10
11
1,2

WHEREFORE, plaintiff prays for the following relief against defendant:

1. 2.
plaintiff

For an order compelling defendant to produce the requested documents to

plaintiff

For a finding that defendant acted arbitrarily and capriciously in failing to respond to

13

s request;

t4
15
1,6

3. 4.

For reasonable attorney's fees and costs of suit; and For such other relief as the Court deems proper.

t7
18

July 9, 2008

DOSTART CLAPP GORDON & COVENEY, LLP

I9
20

2t
22
23

MARITA MURPHY LA Attorneys for Plaintiff

24
25

26
27 28

First Amended Complaint for Violation of the Freedom of Information Act

3:08-cv-0863-JM (AJB)