V Case 4:07-cv-02828-CW Document 49-3 Filed O7/17/2008 Page 2 of 4, A
Vi/estlavtt . J . I .
Slip Copy , _ . · Page I »
. Slip Copy, 2007.VWL 3244186 (D.N.J.)‘ . ` _ · · , ,
(Cite as: Slip Copy) ` _ . . s . . I l . .
` ` . » O 1] ']] 3, 4), a subsidiary of JP Morgan
Bachrach v. Chase Inv. Services Corp. V ‘ i A Chase & Co. ("JP M_organ"). (Am.Compl.]]
D.N".J.,2007. _ 12.) " A ` ,
Only the Westlaw citation is currently available.
United States District Cou.rt,D. New Jersey. Plaintiffs now allege that during this employment.
_ Re BAC!-IRACH, etal. A Defendants violated two categories of New Jersey
- v. _ A . V employment law. (Am.Compl.) First, Plaintiffs allege
CHASE INVESTMENT SERVICES CORP., etal. that Defendants illegally failed to pay them overtime
Civ. No. 06-2785 (WJM). . rates. (Am.Compl.']] 1] ‘ 72-78.) Second, Plaintiffs I
A . . A . . A allege that Chase illegally deducted moneyfrom their
‘ · Nov. I, 2007, AA paychecks to pay for office expenses and to
_ reimburse dissatisfied customers. (Am.Compl.]] 1]
.V - 61-7I.) . ‘ . -
Leon. Marc Cireenberg, Las Vegas, NV, Philip , _ I .
gmghen FUOCOA Josggh AA Osgycbgm The Law ph-m Plaintiffsnow seek to ceitify a class comprising all
A of Philip `Stephen_Fuoco, I-Iaddontielcl, NJ, Stephen P. llmmclal &dVlSOY$ *’-*mPl0Y€d by AJP MOYKH in NBW
Denittis, sinisei at Dennis, Pc, -Mar1tOn, NJ, . Jersey Since June 21. 2000. (Mt. far Class
iqmmth ‘ Kauijmum L€]m_ _ winmx Bama, . Certification. 1.) The Motion alleges that this class
I-letherington, Basralian & Kahn, PC, Hackensack, POIUPYISBS OVW 200 mcmbeif (Mt;). but the €Vld€¤¤€
· NL for p_]_agmg]=5S_ ' i ` suggests that Defendants employed only seventy-five
A Scotf EA ROSS, Thclnas ]_l]n];hAO]·S[’ Morgan, Lewis S€CLl1‘ilZiGS bYOi.{El`S in `NBVV .l€`l`S€y between E‘ll'lCl
· & Bmkjus LLP, pygncgmm NL {Oy Defendant 2006, only a dozen or so of whom worked there
3;,/[LLIAM _]‘_ MARTIN], UASDAJA _ · . . A between 2004 and 2006. (Ross Certification EX. H $[1]
’ ` sl DBM Cmmgcp A ‘ A 3, 5, 7; Ross Certification Ex. O *]] ']] 5-7.) For the
A A I .A A following reasons, Plaintiffs Motion is denied. . V
i Plaintiffs David Bachrach and Lawrence Kaufmann · i · . _
(°‘Plaintiffs") bring this .Motion for Class , . AA `— ‘
Certification, pursuant to Federal Rule of Civil A _ I
Vljrocedure 23. This Court declines to certify the class ‘· `
V Vfor three reasons: (l) many members have no claims, . I- The El€m€¤TS Qf Pli1i¤til`fS' Claims. I V A
rendering the class overinclusive, (2) many remaining ‘ A , ‘
members will opt out, rendering the class . " V ·_ -
· insufficiently numerous, and (3_) the class does not tit _B€f0T€ IliT€¤'dY ¤d€lF€SSi¤g Plaintiffs Motion, this A
within any Catggow 0{C]asS€S mowed by RAUIB g3(b)_ Court briefly considers_ the elements of Plaintiffs -
- V Acccrdingly, p]amm;gS· Motion is DENIED_ claims. See Newton v. Merrill .Lynch, Pierce, Fenner `
" & Smith. Inc., 259 F.3d. l54, 166 (3d.Cir.`2001). This `
. - ~ — consicleration suggests that Plaintiffs first type of ·
A - A ‘ claim, the overtime claim, is l_ega.lly,unlikely to
’ » A succeed. This consideration also suggests that
_ , A _ , . . _ , I .‘ I _ Plaintif`fS' Second type of claim, the illegal deductions . . ·
' ;l§;ltlAfA;;`i;;A€ Dgfiigmgss A claim, is legally viable but factually tenuousi _—
mfulclal adv-ff°r5· Plfmmffil dfmcs ,°°nS]St°d ,0f With respect to the first category of claims,‘Plaintiffs
soliciting cl1ents,A gathering A their f`m¤¤¤1¤l allege that Defendants failed to pay overtime MRS, ‘
- A information, preparing a financial plan for those _ ,ViO1atmg,N€W Jersey IEWA (AmACOmplA,H .1] 72_78A)
· clients, aAnd selling them the desired plan. (Ross NAIA-S-PATA §· 34,1l_56a4 [VA/Est Su A2OO7]AS€ACmm
Ccmfjcamn EX B0 5634 states that employers must pay employees
" A A overtime unless those employees are employed. in an _
_ _ _ _ A , - “adm.inistra.tive" capacity. Plaintiffs' overtime claims
A _E_I§lgl_§éPl2;lAi§A;i;i@?AA;\;A<’fAl€ 6l'ggl
3 ("Ch`ase}’) (Certification of Scott E. Ross Ex. administrative °‘“l’l°y“S· ‘ · ‘
A A , V © 2007 Thomson/West. No Claim to Orig. ULS. Govt. Works. i ` _
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. - ~ II. Class Action Analysis -
‘ They likely are. Federal overtime law, which New " "
. . ..i>’?F$?¥..l.llE9l`PPT?'l?$ lim? H3 OWU. 0V.€lT.l.lll€.l.4W, f . . M Tlwsmeintcrlancc of suitsas class actions is .govemed.. . .. . . .
— v. Friend/vJ`ee Cream Corg., 882 A.2d 374, 379 & n. by Federal Rule of Civil Procedure 23. Rule 23[a)
5 (N.J.Super.Ct.A.pp.Div.2005 l, also contains an ’ contains four prerequisites: (1) the · class is so
exemption for "ad1ninistrative" employees. 29 U.S numerous that joinder of all members is _ _
.C. § 213[a)(1) (2000). As an example of impracticable, (2) the class presents common .
administrative employees, federal regulations list ' questions, (3) the claims of the representatives are
"[e]mployees. in the financial services industry" typical of the class, and (4) the representatives will
whoseduties include collecting- information about adequately protect the·class's interests. The class
customers' finances, preparing a financial plan for must then tit within one of three types of cases, under
their customers, and ultimately selling the plan. 22 Rule 23(bl: (ll the prosecution of separate actions
C.F.R. § 541.203 (2007). This is precisely what the . might establish incompatible standards ofconduct, _ `
_ class members do. lt is thus likely that the members (2) the defendant has acted in a manner generally
· do not have a viable claim to overtime. applicable to the class, making injunctive relief
r , » i , appropriate,·or (3) common questions predominate i
*2 The class faces one more barrier to asserting over individual questions.
overtime claims: the statute of limitations. The statute ‘ A .
of limitations on overtime claims is two years. § » Pla.intiffs' class fails this analysis. As an initial
34:1l-56a25.l. The class, however, comprises matter, the class fails even before it reaches the Egg ‘
financial advisors who have worked for Chase at any 23 analysis because it is overinclusive. The class also
time since 2000. (Mt.l.) Any members who left fails the numerosity requirement in Rule 23(a)(l)andr ‘
. l Chase at least two years prior to the commencement " fails to tit into one of the categories of cases in Eg
of this action are barred from even asserting their_ ·g1*;(ln_). ` _ 1 ’ —
overtime claims .‘·· . · ‘ t
With respect to the second category of claims, A. The Putative Class Fails Because It Is l .
Plaintiffs allege that Chase illegally deducted money A · ` Overinclustve
from_ their paychecks to pay for office expenses and
~ to reimburse dissatisfied customers. (Am.Compl.‘ll ll , Plaintiffs cannot maintain this suit as a class action
6l—7·l.) if these allegations are true, they are . because the proposed class is overinclusive; Courts
A violations of New Jersey law, which prohibits 7 may deny certification where the proposed class
. `withholding portions of employees' wages. ‘ includes many members without claims, see Pagan v.
STAT. § 34:11-4.4 (West 2000); Male v. Acme Dubois, 884 F.Sup_p. 25, 28 §Q.Mass.1995), as this
· S Markets, fm:. 264 A.2d 245 one does. With respect to the deductions claims, there ‘
V i (N..l.Super.Ct.App.Div.1970). A is no evidence that Chase deducted money from any
_ - S F v members' paychecks but Plaintiffs'. With respect to
But while theseiclaims are legally viable, they are V the overtime claims, only a minority ofthe members ·
e factually tenuous. Bachrach and Kaufinann- are the- may assert them since most left Chase at least two
only members alleging that Defendants deducted years before this litigation commenced and so their
. money from their paycheck. (Decl. of David i claims are barred by the statute of limitations. Thus, -
Bachrach 'll 10; Declf of Lawrence Kaufmann 'll 9.) V the proposed class is overinclusive.
Indeed, other members denied ever being the victim _ ` · - · _ `
of such deductions. (Ross Certification Ex.s B, C, E, i r "
r G.) Thus Bachrach and Kaufmann may be the only B. The Putative Class is insufficiently Numerous
' members who actually possess such claims. ‘ to Satisfy Rule Z3la)g1) · .
In summary, the class appears to have few viable *3 The class fails Rule 23(al(1l's numerosity
claims. \lVhile this deficiency does not directly; requirement because .joincler of all members is
‘ weaken Plaintiffs' Motion, Eisen v. Cczrlrsle & _ practicable. Joinder is practicable where the members
Jucrgzrelin, 417 U.S. 156, 177-78 (1974), it will weigh are few and easily located. Grrrcirrv. Gloor 6l8 F.2d
against certification when considered within the class 264. 267 (5th Cir.l980). Here, the class contains a
action analysis. ’ , maximum of seventy-tive members, many of whom
do not.have claims and. thus cannot remain in the
s . · . ‘ _ ‘ - class. And given that all putative class members are ’_
V © 2007 Thomson/West. No Claim to Orig. U,S..G·ovt. Works. · ' . A
Case 4:07-cv-02828-CW Document 49-3 Filed O7/17/2008 Page 4 of 4
Slip Copy ` ` . Page 3
Slip Copy, 2007 VJL 3244l86 (D.N..l.) V V
(Cite as: Slip Copy) · .
` current or former New Jersey employees, most are individual questions would predominate this_
likely easily located in New Jersey. Furthennore, . . litigation, so the class is not maintainable under gulg -
·· njgsf Ofitljg pnglnbgys gpg ·hOS[ilB.tO {his .Su.jt..E_nd.WiS1] .. . .. L _... .. . .... .:r....., . ._,.... .,,, .. ., ,. ,.... . . .,.. . . ,.
to opt out. (See, ag., Ross Certification Exs. B, C, E, · ° - V
G, l, J.) The class will ultimately include only a few . ’ ' ‘ · ·
members and perhaps only Kaufinann and Bachrach. · V V
V Thus, the putative class is insufficiently numerous to V V ·
` warrant certification. ‘ V V Plairrtiffs‘Vproposed class is overirrclusive and does
V not satisfyVRule 23. Accordingly, Plaintiffs Motion
V · for Class Certificationf is DEN1ED.Arr appropriate ’
C. The Putative Class Fails to Fall Within One of Order accompanies this Letter Opinion. V
the Categoriesin Rule 23gb) . . . . V.
V ` . ‘ ‘ D.N.J.,2007. ‘ - .
V Rule 230;) requires a class to fall into one of three Bachrach v. Chase lnv. Services Corp. i
_ V categories. This suit does not. Slip Copy, 2007 WL 3244186 (D.N.J.) _ `
Rule 23(bl( l l permits a class action if the prosecution END OF DOCUMENT V ‘ - _ V
of separate actions might establish incompatible _ - ‘ ' ` .
standards of conduct for the defendant., Here, Y V . _ ` _ » ,
however, the Defendants' standards of conduct are . _ V
clear. New Jersey law strongly suggests that , ’ _ ‘ . V V -
employees with the members‘ job descriptions are not A l .
entitled to overtime. New Jersey law is also clear that V V r » ·
employers may not deduct money from their V V ‘ . V
employeesi paychecks. Accordingly, there is little V V . .
· danger that individual suits would subject Defendants V V · · -V _
to incompatible standards of conduct, so this case ‘ ‘ V V V
does not fall within Rule 23(b)( l ). V . V ° l . _
Rule 23(b)(2) permits a class action if the defendant. ‘ "V
. has acted in a manner generally applicable to th.e . - _ ‘ ‘
class, making injunctive relief appropriate. Here., ` · ~ ~ 4
such injunctive relief is inappropriate. With respect to - . . V » ° `
V the deductions claims, these appear to be only W ‘ _ ‘
isolated incidents, which do not justify broad · . — . `
injunctive relief. See Monreczl v. Potter,367 F.3d V · , V
l2.24. 1236 .(lOth Cir.200¢l). With respect to the V V V
overtime claims, there are few employees who would · `
even . assert such claims, again perhaps only V `
Kaufmann and Bachrach, who no longer work at ‘ ’ _ _
. Chaseh and thus don‘t need injunctive relief. · V "
Accordingly, broad injunctive relief here is A '
inappropriate, so the class is not maintainable under i · V ,
Rule 23(b)g2). . V - · V- _
Rule 23(b)g3l permits a class action only if common . ‘ i A _
questions predominate. Here, individual questions ° V _ V . ·
would predominate. With respect to the deductions i · ` l .
claims, the law clearly bars such deductions. The ` .*·V
' only issues are whether each member was actually a V _ · V
victim ofideductions. With respect to the overtime ·
claims, the law strongly suggests that the members V V
were not entitled to overtime. Proving otherwise _ - ‘ · -
° would require individual exploration of each ' 4 V ` _ ,
_ member's specific work habits. Accordingly, ·i i
V ‘ © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. . _
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