Free Case Transferred In - District Transfer - District Court of California - California

Case 3:08-cv-04154-CRB

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CLOSED, ECF

U.S. District Court United States District Court for the Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08-cv-05141-SAS Internal Use Only

MacConnach et al v. First Franklin Financial Corporation et al Assigned to: Judge Shira A. Scheindlin Cause: 29:201 Fair Labor Standards Act

Date Filed: 06/04/2008 Date Terminated: 08/27/2008 Jury Demand: Plaintiff Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Plaintiff Chuck MacConnach individually represented by Justin Mitchell Swartz Outten & Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212) 245-1000 Fax: (212) 977-4005 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Lauren Elyse Schwartzreich Outten & Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212) 245-1000 Fax: (212) 363-7888 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED George A. Hanson Stueve Siegel Hanson LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 (816)-714-7100 Fax: (816) 714-7101 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED

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Richard M. Paul, III Stueve Siegel Hanson, L.L.P. 460 Nichols Road Suite 200 Kansas City, MO 64112 (816) 714-7100 Fax: (816) 714-7101 PRO HAC VICE ATTORNEY TO BE NOTICED Plaintiff Chuck MacConnach On behalf of a class of other similarly situated Inside Account Executives represented by Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Lauren Elyse Schwartzreich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED George A. Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Richard M. Paul, III (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Plaintiff Walter Schmidt individually and on behalf of all others similarly situated represented by Justin Mitchell Swartz (See above for address) ATTORNEY TO BE NOTICED Lauren Elyse Schwartzreich (See above for address) ATTORNEY TO BE NOTICED V. Defendant First Franklin Financial Corporation represented by A Michael Weber Littler Mendelson, P.C. (NY) 885 Third Avenue, 16th Floor New York, NY 10022 (212)-583-2660 Fax: (212)-832-2719

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Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Lisa Renee Norman Littler Mendelson P.C. 885 Third Ave. New York, NY 10022 (212) 583-2695 Fax: (212) 832 2719 Email: [email protected] ATTORNEY TO BE NOTICED Defendant Merrill Lynch & Co. Inc. represented by A Michael Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Lisa Renee Norman (See above for address) ATTORNEY TO BE NOTICED Defendant Global Markets and Investment Banking Group

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Docket Text COMPLAINT against Merrill Lynch & Co. Inc., Global Markets and Investment Banking Group, First Franklin Financial Corporation. (Filing Fee $ 350.00, Receipt Number 653039)Document filed by CHUCK MacCONNACH(individually), CHUCK MacCONNACH(On behalf of a class of other similarly situated Inside Account Executives).(mme) (Entered: 06/05/2008) SUMMONS ISSUED as to Merrill Lynch & Co. Inc., Global Markets and Investment Banking Group, First Franklin Financial Corporation. (mme) (Entered: 06/05/2008) Magistrate Judge Douglas F. Eaton is so designated. (mme) (Entered: 06/05/2008) Case Designated ECF. (mme) (Entered: 06/05/2008) 2 SUMMONS RETURNED EXECUTED. First Franklin Financial Corporation served on 6/9/2008, answer due 6/30/2008. Service was accepted by Sabrina Ambrose. Document filed by CHUCK MacCONNACH (individually). (Schwartzreich, Lauren) (Entered: 06/23/2008) SUMMONS RETURNED EXECUTED. Merrill Lynch & Co. Inc. served on

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6/9/2008, answer due 6/30/2008; Global Markets and Investment Banking Group served on 6/9/2008, answer due 6/30/2008. Service was accepted by Sabrina Ambrose. Document filed by CHUCK MacCONNACH (individually). (Schwartzreich, Lauren) (Entered: 06/23/2008) 06/26/2008 8 STIPULATION AND ORDER EXTENDING TIME TO RESPOND TO COMPLAINT: The parties mutually agree to an extension of time of 30 days from June 27th to July 28, 2008. So Ordered (Signed by Judge Shira A. Scheindlin on 6/26/08) (js) (Entered: 07/03/2008) NOTICE OF APPEARANCE by Lisa Renee Norman on behalf of Merrill Lynch & Co. Inc., First Franklin Financial Corporation (Norman, Lisa) (Entered: 06/27/2008) NOTICE OF APPEARANCE by A Michael Weber on behalf of Merrill Lynch & Co. Inc., First Franklin Financial Corporation (Weber, A) (Entered: 06/27/2008) ORDER ADMITTING ATTORNEY Katherine M. Forster PRO HAC VICE for defendnats First Franklin and Merrill Lynch. (Signed by Judge Shira A. Scheindlin on 7/3/08) (cd) (Entered: 07/03/2008) Transmission to Attorney Admissions Clerk. Transmitted re: 6 Order Admitting Attorney Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (cd) (Entered: 07/03/2008) 7 ORDER ADMITTING ATTORNEY Terry Sanchez PRO HAC VICE for defendants First Franklin and Merrill Lynch. (Signed by Judge Shira A. Scheindlin on 7/3/08) (cd) (Entered: 07/03/2008) Transmission to Attorney Admissions Clerk. Transmitted re: 7 Order Admitting Attorney Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (cd) (Entered: 07/03/2008) 9 ORDER FOR INITIAL PRETRIAL CONFERENCE: Initial Conference set for 7/25/2008 at 04:30 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 7/7/2008) (tve) (Entered: 07/08/2008) CASHIERS OFFICE REMARK on 7 Order Admitting Attorney Pro Hac Vice, 6 Order Admitting Attorney Pro Hac Vice in the amount of $50.00, paid on 7/7/08, Receipt Number 655882. (Quintero, Marcos) (Entered: 07/09/2008) 10 AMENDED COMPLAINT amending 1 Complaint, against Merrill Lynch & Co. Inc., Global Markets and Investment Banking Group, First Franklin Financial Corporation.Document filed by Walter Schmidt, Chuck MacConnach(individually), Chuck MacConnach(On behalf of a class of other similarly situated Inside Account Executives). Related document: 1 Complaint, filed by Chuck MacConnach.(dle) (dle). (Entered: 07/10/2008) SUMMONS RETURNED EXECUTED. First Franklin Financial Corporation served on 7/11/2008, answer due 7/31/2008. Service was accepted by Axia Flores. Document filed by Chuck MacConnach

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(individually); Walter Schmidt. (Schwartzreich, Lauren) (Entered: 07/16/2008) 07/16/2008 12 SUMMONS RETURNED EXECUTED. Merrill Lynch & Co. Inc. served on 7/11/2008, answer due 7/31/2008; Global Markets and Investment Banking Group served on 7/11/2008, answer due 7/31/2008. Service was accepted by Axia Flores, Process Specialist. Document filed by Chuck MacConnach (individually); Walter Schmidt. (Schwartzreich, Lauren) (Entered: 07/16/2008) ORDER CONTINUING PRELIMINARY CONFERENCE: WHEREAS, good cause appears for the continuance, the Court hereby orders that the Preliminary Conference be continued to August 14, 2008 at 4:30 p.m. ( Preliminary Conference set for 8/14/2008 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 7/18/2008) (rw) (Entered: 07/18/2008) MOTION for George A. Hanson to Appear Pro Hac Vice; affidavit in support. Document filed by Chuck MacConnach(individually).(pl). (Entered: 07/21/2008) CASHIERS OFFICE REMARK on 14 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 7/18/08, Receipt Number 657133. (Quintero, Marcos) (Entered: 07/28/2008) 15 MOTION for Richard M. Paul III to Appear Pro Hac Vice. Document filed by Chuck MacConnach(individually), Chuck MacConnach(On behalf of a class of other similarly situated Inside Account Executives).(dle) (Entered: 07/31/2008) RULE 7.1 CORPORATE DISCLOSURE STATEMENT. N Corporate Parent. Document filed by Merrill Lynch & Co. Inc., First Franklin Financial Corporation.(Norman, Lisa) (Entered: 07/31/2008) ANSWER to Amended Complaint. Document filed by Merrill Lynch & Co. Inc., First Franklin Financial Corporation. Related document: 10 Amended Complaint, filed by Chuck MacConnach, Walter Schmidt.(Norman, Lisa) (Entered: 07/31/2008) CASHIERS OFFICE REMARK on 15 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 07/30/2008, Receipt Number 658655. (jd) (Entered: 08/04/2008) 18 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 14 Motion to Appear Pro Hac Vice; granting 15 Motion to Appear Pro Hac Vice. Richard M. Paul and George A. Hanson are hereby admitted to practice pro hac vice as counsel for Plaintiffs in the above-captioned case. (Signed by Judge Shira A. Scheindlin on 8/5/08) (tro) (Entered: 08/06/2008) Transmission to Attorney Admissions Clerk. Transmitted re: 18 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (tro) (Entered: 08/06/2008) 19 MEMO ENDORSEMENT on NOTICE OF WITHDRAWAL OF

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MOTIONS RE: Please take notice that Plaintiffs hereby withdraw the pro hac vice motions of George A Hanson, and Richard M. Paul III (Docket Entries 14 and 15). ENDORSEMENT: So Ordered. (Signed by Judge Shira A. Scheindlin on 8/6/08) (tro) (Entered: 08/06/2008) 08/08/2008 20 CONSENT TO BECOME PARTY PLAINTIFF UNDER THE F.L.S.A.. Document filed by Chuck MacConnach(individually).(Hanson, George) (Entered: 08/08/2008) CONSENT TO BECOME PARTY PLAINTIFF UNDER THE F.L.S.A.. Document filed by Chuck MacConnach(individually).(Hanson, George) (Entered: 08/13/2008) ORDER TRANSFERRING VENUE PURSUANT TO 28 U.S.C. 1404(A): It is hereby ordered that this matter is transferred to the United States District Court for the Northern District of California. ENDORSEMENT: The Clerk is directed to transfer the file forthwith and to close the case in this district. (Signed by Judge Shira A. Scheindlin on 8/14/2008) (jpo) Modified on 8/14/2008 (jpo). (Entered: 08/14/2008) CONSENT TO BECOME PARTY PLAINTIFF UNDER THE FLSA. Document filed by Chuck MacConnach(individually).(Hanson, George) (Entered: 08/15/2008) CASE TRANSFERRED OUT from the U.S.D.C. Southern District of New York to the United States District Court - Northern District of California. Sent original file along with certified copy of docket entries and transfer order. Mailed via Federal Express AIRBILL # 8651 7529 0221 on 8/27/2008. (jpo) (Entered: 08/27/2008)

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EXHIBIT A

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHUCK MACCONNACH, individually, and on behalf of class of others similarly situated, Civil Action No. 08 CV 5141 (SAS) Plaintiff, -againstNOTICE OF APPEARANCE FIRST FRANKLIN FINANCIAL CORPORATION and MERRILL LYNCH and CO., INC., GLOBAL MARKETS and INVESTMENT BANKING GROUP, Defendants. PLEASE TAKE NOTICE that the undersigned hereby enters an appearance on behalf of Defendants FIRST FRANKLIN FINANCIAL CORPORATION and MERRILL LYNCH & CO., INC., in the above-captioned matter. Dated: June 27, 2008 New York, New York Respectfully Submitted, LITTLER MENDELSON, P.C. /s/ Lisa R. Norman Lisa R. Norman (LN 9725) 885 Third Avenue, 16th Floor New York, NY 10022.4834 212.583.9600 (telephone) 212.832.2719 (facsimile) [email protected] (email)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHUCK MACCONNACH, individually, and on behalf of class of others similarly situated, Civil Action No. 08 CV 5141 (SAS) Plaintiff, -againstNOTICE OF APPEARANCE FIRST FRANKLIN FINANCIAL CORPORATION and MERRILL LYNCH and CO., INC., GLOBAL MARKETS and INVESTMENT BANKING GROUP, Defendants. PLEASE TAKE NOTICE that the undersigned hereby enters an appearance on behalf of Defendants FIRST FRANKLIN FINANCIAL CORPORATION and MERRILL LYNCH & CO., INC., in the above-captioned matter. Dated: June 27, 2008 New York, New York Respectfully Submitted, LITTLER MENDELSON, P.C. /s/ Michael Weber Michael Weber 885 Third Avenue, 16th Floor New York, NY 10022.4834 212.583.9600 (telephone) 212.832.2719 (facsimile) [email protected] (email)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHUCK MacCONNACH and WALTER SCHMIDT, individually, and on behalf of all others similarly situated Plaintiffs, -againstFIRST FRANKLIN FINANCIAL CORPORATION AND MERRILL LYNCH & CO., INC., GLOBAL MARKETS AND INVESTMENT BANKING GROUP, Defendants. In accordance with Rule 7.1(a) of the Federal Rules of Civil Procedure, the undersigned counsel for Defendants, non-governmental parties, represents that Defendant Merrill Lynch & Co., Inc., a publicly held corporation, directly or indirectly owns 10% of more of the securities of Defendant First Franklin Financial Corporation; (2) no other publicly held corporation owns 10% or more of the securities of First Franklin Financial Corporation; and (3) no publicly held corporation owns more than 10% of the stock of Merrill Lynch & Co., Inc. Civil Action No. 08 CV 5141 (SAS) ECF CASE DEFENDANTS RULE 7.1 STATEMENT

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Dated: July 31, 2008 New York, New York Respectfully Submitted,

_________/s/____ _____________ A. Michael Weber (AW-8760) Lisa R. Norman (LN-9725) LITTLER MENDELSON A Professional Corporation 885 Third Avenue, 16th Floor New York, NY 10022-4834 (212) 583-9600 (212) 832-2719 (fax) Terry E. Sanchez (Admitted Pro Hac Vice) California State Bar No. 101318 Katherine M. Forster (Admitted Pro Hac Vice) California State Bar No. 217609 (Attorneys-in-Charge) MUNGER TOLLES & OLSON LLP 355 S. Grand Ave., 35th Floor Los Angeles, CA 90071-1560 213.683.9538 (direct) 213.593.2838 (fax) Attorneys for Defendants First Franklin Financial Corporation and Merrill Lynch & Co., Inc.

86073787.1 028275.1016

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHUCK MacCONNACH and WALTER SCHMIDT, individually, and on behalf of all others similarly situated Plaintiffs, -againstFIRST FRANKLIN FINANCIAL CORPORATION AND MERRILL LYNCH & CO., INC., GLOBAL MARKETS AND INVESTMENT BANKING GROUP, Defendants. Civil Action No. 08 CV 5141 (SAS) ECF CASE DEFENDANTS ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT

Defendants First Franklin Financial Corporation ("First Franklin") and Merrill Lynch & Co., Inc. ("Merrill Lynch"; erroneously sued as Merrill Lynch & Co., Inc., Global Markets and Investment Banking Group)1 (collectively "Defendants"), as and for their Answer to the First Amended Complaint of Plaintiffs filed July 10, 2008 ("FAC"), hereby state as follows: NATURE OF THE ACTION 1. With respect to the allegations of the first paragraph numbered "1," state that such

allegations consist of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied. Further responding, Defendants specifically deny that Defendant Merrill Lynch employed Plaintiffs or other individuals as inside account executives or closer/funders. Defendants also specifically deny that First Franklin's inside account executives and closers were classified as exempt employees at any time during the relevant time period. Upon information and belief, Defendants state that First Franklin did not have a position known as closer/funder during the
1

The Global Markets and Investment Banking Group is a business segment within Merrill Lynch & Co, Inc.; it is not a separate entity.

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relevant time period, but rather had the position of closer. Finally, Defendants specifically deny that Plaintiffs' claims may appropriately proceed as a collective action. JURISDICTION AND VENUE 1. With respect to the allegations of the second paragraph numbered "1," state that

such allegations consist of statements and/or conclusions of law to which no responsive pleading is required.2 2. With respect to the allegations of paragraph 2, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied, except Defendants admit that Defendants do or have done business in this district and maintain a registered agent in this district. PARTIES 3. With respect to the allegations of paragraph 3, Defendants lack sufficient

information to form a belief as to the truth of these allegations and, on that basis, deny them, except they admit that Plaintiff Chuck MacConnach worked as a First Franklin inside account executive in its Mt. Laurel, New Jersey, location, at some point during the three years preceding the filing of this action. 4. With respect to the allegations of paragraph 4, Defendants lack sufficient

information to form a belief as to the truth of these allegations and, on that basis, deny them, except they admit that Plaintiff Walter Schmidt worked as a First Franklin closer in its Mt. Laurel, New Jersey, location at some point during the three years preceding the filing of this action.

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The FAC contains two paragraphs numbered "1."

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5.

With respect to the allegations of paragraph 5, admit that Plaintiffs were both

employed by First Franklin at some point within the three years preceding the filing of this action. Defendants state that the remaining allegations in this paragraph consist of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied. 6. Deny the allegations of paragraph 6, except admit that Defendant First Franklin is

a Delaware corporation with a registered agent in the State of New York and can be served through its registered agent, CT Corporation System, 111 Eighth Avenue, New York, New York, 10011; and that Defendant Merrill Lynch is a Delaware corporation with its principal place of business in New York and can be served through its registered agent, CT Corporation System, 111 Eighth Avenue, New York, New York, 10011. Further responding, Defendants state that

Merrill Lynch, through a subsidiary, acquired the shares of First Franklin from National City on or about December 30, 2006. FACTS 7. Deny the allegations of paragraph 7, except admit that First Franklin was an

originator of residential mortgage loans and originated such loans in New York. 8. Deny the allegations of paragraph 8, except admit that Merrill Lynch is a wealth

management, capital markets and advisory company with its headquarters in New York City and, through its First Franklin subsidiary, provided mortgage loan services to brokers nationwide. 9. Deny the allegations of paragraph 9, and specifically deny that Defendant Merrill

Lynch employed Plaintiff MacConnach or other inside account executives. 10. With respect to the allegations of paragraph 10, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied, except Defendants 3

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admit that First Franklin's inside account executives' job duties generally included, among other things, initiating and maintaining working relationships with brokers, which would, on some occasions, include using internal leads. 11. With respect to the allegations of paragraph 11, these allegations are denied,

except Defendants admit that First Franklin's inside account executives' job duties generally included, among other things, collecting some information from brokers to prepare initial information for loan applications and submitting the applications for underwriting and approval. 12. With respect to the allegations of paragraph 12, these allegations are denied,

except Defendants admit that First Franklin's closers' job duties generally included, among other things, setting up the closing transaction and ensuring that the funding requirements were prepared correctly. 13. Deny the allegations of paragraph 13, and specifically deny that Defendant

Merrill Lynch employed Plaintiff Schmidt or other closers. 14. With respect the allegations of paragraph 14, state that such allegations consist of

statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied, except Defendants admit that neither inside account executives nor closers had any authority or discretion to approve or disapprove a loan. 15. With respect the allegations of paragraph 15, state that the allegation that "During

the past three years, both inside AEs and closer/funders regularly worked far in excess of forty hours per week" consists of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, this allegations is denied, and Defendants deny the remaining allegations of paragraph 15.

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16.

With respect the allegations of paragraph 16, state that such allegations consist of

statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied. 17. Deny the allegations of paragraph 17. COLLECTIVE ACTION ALLEGATIONS 18. With respect to paragraph 18, repeat and reallege the applicable responses

contained herein. 19. With respect to the allegations of paragraph 19, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, the allegations are denied. Further responding, Defendants specifically deny that Defendant Merrill Lynch employed Plaintiffs or other inside account executives or closer/funders. Defendants also specifically deny that this claim may appropriately proceed as a collective action. 20. With respect to the allegations of paragraph 20, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, the allegations are denied. Further responding, Defendants specifically deny that this claim may appropriately proceed as a collective action. COUNT I 21. With respect to paragraph 21, repeat and reallege the applicable responses

contained herein. 22. With respect to the allegations of paragraph 22, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, Defendants admit that the FLSA applied to

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Plaintiffs but denies the remaining allegations of this paragraph. Further responding, Defendants specifically deny that any of First Franklin's employees were similarly situated to either Plaintiff. 23. With respect to the allegations of paragraph 23, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. 24. With respect to the allegations of paragraph 24, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. 25. 26. Deny the allegations of paragraph 25. With respect to the allegations of paragraph 26, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, Defendants deny that any of First Franklin's employees were similarly situated to either Plaintiff. 27. With respect to the allegations of paragraph 27, state that such allegations consist

of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied, except Defendants admit that First Franklin's inside account executives and closers were subject to company compensation policies. 28. 29. Deny the allegations of paragraph 28. With respect to the allegations of paragraph 29, state that the following

allegations consist of statements and/or conclusions of law to which no responsive pleading is required: "Alternatively, should the Court find Defendants did not act willfully in failing to pay overtime pay, Plaintiffs and all similarly situated employees are entitled to an award of prejudgment interest at the applicable legal rate." To the extent a response is deemed required,

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however, these allegations are denied, and Defendants deny the remaining allegations of paragraph 29. 30. Deny the allegations of paragraph 30. PRAYER FOR RELIEF With respect to Plaintiffs' prayer for relief and each of its subparts, deny that Plaintiffs and/or other First Franklin inside account executives or closers are entitled to the relief claimed, and state that the remaining allegations in this paragraph consist of statements and/or conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, however, these allegations are denied. Defendants deny all allegations not specifically admitted herein. AFFIRMATIVE DEFENSES Defendants assert the following separate and independent affirmative defenses: AS AND FOR A FIRST AFFIRMATIVE DEFENSE 31. The FAC fails to state a claim upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 32. Each cause of action in the FAC is barred, in whole or in part, by the applicable

statute of limitations, including but not limited to 29 U.S.C. § 255(a) or other applicable law. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 33. Without assuming the burden of proof on this issue, each cause of action in the

FAC is barred, in whole or in part, because at all relevant times Plaintiffs and others allegedly similarly situated were paid all wages owed, including premium overtime compensation as required by applicable law.

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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 34. Each cause of action in the FAC is barred, in whole or in part, because the time

for which Plaintiffs and others allegedly similarly situated seek overtime compensation is not compensable working time under the FLSA. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 35. Each cause of action in the FAC is barred, in whole or in part, by unavailability of

the relief requested, including without limitation, the unavailability of damages, interest and/or attorney fees. Specifically, and among other things, claims for liquidated damages under the FLSA are precluded by the "good faith" defense set forth in 29 U.S.C. § 260 and 29 C.F.R. § 790.22(b). AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 36. Each cause of action in the FAC is barred, in whole or in part, because to the

extent Defendants engaged in any alleged wrongful conduct, such conduct was undertaken in good faith and with reasonable grounds for believing such actions were not in violation of federal law or other applicable law. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 37. Each cause of action in the FAC is barred, in whole or in part, because Plaintiffs

and others allegedly similarly situated have not sustained any injury or damage by reason of any act or omission of Defendants.

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AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 38. Each cause of action in the FAC is barred, in whole or in part, because if

Plaintiffs and others allegedly similarly situated were damaged in any way as a result of the matters alleged in the FAC, the damage or injury was due wholly to their own conduct. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE 39. Each cause of action in the FAC is barred, in whole or in part, because Plaintiffs

lack standing to pursue the claim. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 40. Plaintiffs cannot establish that any of their claims are appropriate to proceed on a

representative and/or collective action basis. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 41. To the extent that Plaintiffs and others allegedly similarly situated were paid

compensation beyond that to which they were entitled while employed by First Franklin, such additional compensation would satisfy in whole or part any alleged claim for unpaid overtime or other monetary relief. AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE 42. Upon information and belief, Defendants allege that Plaintiffs are barred and

precluded from any relief on their FAC because they have failed and refused to mitigate their damages, if any.

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AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 43. Without assuming the burden of proof on this issue, each cause of action in the

FAC is barred, in whole or in part, because Defendant Merrill Lynch did not employ Plaintiffs or other inside account executives or closers. AS AND FOR AN FOURTEENTH AFFIRMATIVE DEFENSE 44. Each cause of action in the FAC is barred, in whole or in part, by the doctrines of

laches, waiver, estoppel, and/or unclean hands.

Defendants state that they currently have insufficient knowledge or information on which to form a belief as to whether they may have additional, as yet unstated, affirmative defenses available. Defendants reserve the right to assert additional affirmative defenses in the event that discovery indicates they would be appropriate.

WHEREFORE, Defendants respectfully request that judgment be entered: 1. 2. Dismissing the FAC with prejudice; Granting Defendants their costs and attorneys fees incurred herein pursuant to relevant statutes; and 3. Granting Defendants such other and further relief as the Court may deem just and proper.

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Dated: July 31, 2008 New York, New York Respectfully Submitted,

_________/s/____ _____________ A. Michael Weber (AW-8760) Lisa R. Norman (LN-9725) LITTLER MENDELSON A Professional Corporation 885 Third Avenue, 16th Floor New York, NY 10022-4834 (212) 583-9600 (212) 832-2719 (fax) Terry E. Sanchez (Admitted Pro Hac Vice) California State Bar No. 101318 Katherine M. Forster (Admitted Pro Hac Vice) California State Bar No. 217609 (Attorneys-in-Charge) MUNGER TOLLES & OLSON LLP 355 S. Grand Ave., 35th Floor Los Angeles, CA 90071-1560 213.683.9538 (direct) 213.593.2838 (fax)

Attorneys for Defendants First Franklin Financial Corporation and Merrill Lynch & Co., Inc.

86073671.1 028275.1016

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