Free Answer to Amended Complaint - District Court of Arizona - Arizona

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LATHAM & WATKINS LLP Joel E. Krischer (California SBN 066489) (admitted pro hac vice) [email protected] Joanna R. Wolfe (California SBN 217409) (admitted pro hac vice) [email protected] 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 SEYFARTH SHAW LLP Andrew M. Paley (California SBN 149699) (admitted pro hac vice) [email protected] 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants Allstate Insurance Company and Allstate New Jersey Insurance Company.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION MDL NO. 1541

FRANCISCO D. ROSA, individually and on behalf of all others similarly situated, Plaintiff, vs. ALLSTATE INSURANCE COMPANY and ALLSTATE NEW JERSEY INSURANCE COMPANY, Defendants.

No. CIV-03-1741-PHX-PGR DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COLLECTIVE ACTION COMPLAINT Assigned to the Hon. Paul G. Rosenblatt

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Defendants Allstate Insurance Company and Allstate New Jersey Insurance Company ("Allstate" or "Defendants"), for their answer to the First Amended Collective Action Complaint (the "Complaint"), filed herein by Plaintiff Francisco D. Rosa ("Plaintiff") on behalf of himself and alleged similarly situated employees, in In re Allstate Insurance Co. Fair Labor Standards Litigation, MDL No. 1541, respond and allege as follows: 1. Paragraph 1 contains conclusions of law as opposed to allegations of

fact, and as such, no answer is required. To the extent that Paragraph 1 purports to contain any allegations of fact, Allstate lacks sufficient knowledge and information to form a belief as to the truth or falsity of those allegations, and therefore denies the same. 2. Paragraph 2 contains conclusions of law as opposed to allegations of

fact, and as such, no answer is required. To the extent that Paragraph 2 purports to contain any allegations of fact, Allstate lacks sufficient knowledge and information to form a belief as to the truth or falsity of those allegations, and therefore denies the same. I JURISDICTION AND VENUE 3. Paragraph 3 contains conclusions of law as opposed to allegations of

fact, and as such, no answer is required. To the extent that Paragraph 3 purports to contain any allegations of fact, Allstate lacks sufficient knowledge and information to form a belief as to the truth or falsity of the allegations of Paragraph 3, and therefore denies the same. 4. Allstate admits that this case was originally filed on March 6, 2002,

in the U.S. District Court for Nevada (Northern Division). Allstate further admits that Plaintiff worked in Allstate's Reno office. To the extent that Paragraph 4 purports to contain any further allegations, Allstate lacks sufficient knowledge and information to form a belief as to the truth or falsity of those allegations, and therefore denies the same. 5. Allstate admits to the facts contained in Paragraph 5.

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II PARTIES 6. Allstate Insurance Company admits that it does business in Nevada.

Allstate further admits that its headquarters are located in Illinois and that it maintains offices in Nevada. Allstate admits that all of its claim representatives employed within the United States, other than those in New Jersey, are employed by Allstate Insurance Company and that the claims representatives located in New Jersey are employed by Allstate New Jersey Insurance Company. Allstate denies any remaining allegations in Paragraph 6. 7. 8. Allstate denies each and every allegation contained in Paragraph 7. Allstate admits that its primary business is risk transference: i.e., the

sale of insurance policies. To the extent that Paragraph 8 purports to contain any further allegations, Allstate denies those allegations. 9. Allstate admits that it operated offices within the State of Nevada.

Allstate further admits that Allstate Insurance Company employs personnel in its claims department who handle claims made by and against its insureds. Allstate further admits that Allstate Insurance Company employs several thousand such individuals nationwide. To the extent that Paragraph 9 purports to contain any further allegations, Allstate denies those allegations. 10. 11. Allstate denies each and every allegation contained in Paragraph 10. Allstate admits that Plaintiff was employed by Allstate in the Reno

office between approximately April, 1996 and July, 2001 handling primarily homeowner property damage claims. To the extent that Paragraph 11 purports to contain any further allegations, Allstate denies those allegations. 12. Allstate denies each and every allegation contained in the first

sentence of Paragraph 12. The second sentence of Paragraph 12 contains conclusions of law as opposed to allegations of fact, and as such, no answer is required. To the extent that the second sentence of Paragraph 12 purports to contain any allegations of fact,
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Allstate denies those allegations. III FACTUAL ALLEGATIONS 13. Paragraph 13 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 13 purports to contain any allegations of fact, Allstate denies those allegations. 14. Allstate admits that claims representatives have been classified as

"exempt" and been paid a set salary. To the extent that Paragraph 14 purports to contain any further allegations, Allstate denies those allegations. 15. Paragraph 15 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 15 purports to contain any allegations of fact, Allstate denies those allegations. 16. Paragraph 16 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 16 purports to contain any allegations of fact, Allstate denies those allegations. Allstate admits that because certain claims representatives have been classified as exempt employees, Allstate does not maintain formal time records for those employees. 17. Allstate admits that it has information in its possession regarding the

salary levels of its claims representatives. To the extent that Paragraph 17 purports to contain any further allegations, Allstate lacks sufficient knowledge and information to form a belief as to the truth or falsity of those allegations, and therefore denies the same. IV COLLECTIVE ACTION ALLEGATIONS 18. Paragraph 18 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 18 purports to contain any allegations of fact, Allstate denies those allegations. 19. Paragraph 19 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 19 purports to
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contain any allegations of fact, Allstate denies those allegations. 20. Allstate denies each and every allegation contained in the first

sentence of Paragraph 20. To the extent that Paragraph 20 purports to contain any further allegations, Allstate lacks sufficient knowledge and information to form a belief as to the truth or falsity of those allegations, and therefore denies the same. 21. Allstate admits that Allstate Insurance Company has employed more

than 1000 claims representatives during the alleged time period and possesses information regarding the names and salary levels of those employees. To the extent that Paragraph 21 purports to contain any further allegations, Allstate denies those allegations. 22. Paragraph 22 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 22 purports to contain any allegations of fact, Allstate denies those allegations. 23. Paragraph 23 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 23 purports to contain any allegations of fact, Allstate denies those allegations. 24. Paragraph 24 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 24 purports to contain any allegations of fact, Allstate denies those allegations. V GENERAL ALLEGATIONS AS TO CLASS REPRESENTATIVE 25. Allstate admits that it employed Plaintiff as a claims representative

and classified him as "salaried exempt." To the extent that Paragraph 25 purports to contain any further allegations, Allstate denies those allegations. 26. 27. Allstate denies each and every allegation contained in Paragraph 26. Allstate denies each and every allegation contained in Paragraph 27.

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VI FIRST CAUSE OF ACTION FAILURE TO PAY OVERTIME WAGES Violation of Fair Labor Standards Act (As Against All Defendants) 28. Allstate incorporates its answers to Paragraphs number 1 through 27

as and for its answer to Paragraph 28. 29. Paragraph 29 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 29 purports to contain any allegations of fact, Allstate denies those allegations. 30. Paragraph 30 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 30 purports to contain any allegations of fact, Allstate denies those allegations. 31. Paragraph 31 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 31 purports to contain any allegations of fact, Allstate denies those allegations. 32. Paragraph 32 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 32 purports to contain any allegations of fact, Allstate denies those allegations. 33. Paragraph 33 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 33 purports to contain any allegations of fact, Allstate denies those allegations. VII SECOND CAUSE OF ACTION WILLFUL VIOLATIONS (As Against All Defendants) 34. Allstate incorporates its answers to Paragraphs number 1 through 33
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as and for its answer to Paragraph 34. 35. Paragraph 35 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 35 purports to contain any allegations of fact, Allstate admits that Plaintiff was classified as an exempt employee under the Fair Labor Standards Act. Allstate denies all other allegations. 36. 37. Allstate denies each and every allegation contained in Paragraph 36. Paragraph 37 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 37 purports to contain any allegations of fact, Allstate denies those allegations. DENIAL OF PRAYER FOR RELIEF Allstate expressly denies that Plaintiff is entitled to any relief, including but not limited to the relief sought by Plaintiff in his Complaint. Allstate generally denies any allegations of Plaintiff's Complaint not specifically admitted herein.

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) Plaintiff's Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff's alleged claims are barred, in whole or in part, by the applicable statute of limitations under the Fair Labor Standards Act. THIRD AFFIRMATIVE DEFENSE (Exempt Employees) Plaintiff's alleged claims are barred, in whole or in part, because Allstate's Claims Adjusters are salaried employees performing claims adjusting functions and are exempt employees within the meaning of the Fair Labor Standards Act.

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FOURTH AFFIRMATIVE DEFENSE (Good Faith) Plaintiff's alleged claims are barred, in whole or in part, because Allstate has at all times acted in good faith in conformity with and in reliance on the applicable administrative regulations, orders, rulings, approvals and interpretations and on the applicable administrative practices and enforcement policies. FIFTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiff's alleged claims are barred, in whole or in part, by the doctrine of estoppel. SIXTH AFFIRMATIVE DEFENSE (Laches) Plaintiff's alleged claims are barred, in whole or in part, by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Primary Jurisdiction) Plaintiff's alleged claims are barred, in whole or in part, by the doctrine of primary jurisdiction. The Complaint and each purported cause of action should be abated and Plaintiff should be compelled to pursue their administrative remedies with the appropriate administrative entity, which has primary jurisdiction over Plaintiff's claims.

RESPECTFULLY SUBMITTED this 30th day of May, 2006.

By: s/Joel E. Krischer Joel E. Krischer LATHAM & WATKINS LLP 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 891-7939 Facsimile: (213) 891-8763

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By: s/Andrew M. Paley______________________ SEYFARTH SHAW LLP 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants Allstate Insurance Company and Allstate New Jersey Insurance Company

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CERTIFICATE OF SERVICE I hereby certify that on May 30, 2006, I electronically transmitted the attached document described as DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COLLECTIVE ACTION COMPLAINT to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clerk, United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, Suite 130, SPC 1 Phoenix, AZ 85003-2118 Kelly McInerney, Esq. McInerney & Jones 18124 Wedge Parkway, Suite 503 Reno, NV 89511 [email protected] Attorneys for Plaintiffs George Sintsirmas, Esq. George Sintsirmas, LLC 6212 Coldstream Road Highland Heights, OH 44143 [email protected] Attorneys for Plaintiffs Mark Wintering, Esq. Robert E. Sweeney Co., LPA 55 Public Square, Suite 1500 Cleveland, OH 44113 [email protected] Attorneys for Plaintiffs Steven M. Weiss, Esq. Law Offices of Steven M. Weiss 1250 Illuminating Building 55 Public Square, Suite 1009 Cleveland, OH 44113 [email protected] Attorneys for Plaintiffs James A. Jones, Esq. Karla S. Jackson, Esq. Gillespie, Rozen & Watsky 3402 Oak Grove Avenue, #200 Dallas, TX 75204 [email protected] [email protected] Attorneys for Plaintiffs

Andrea Elisabeth Watters, Esq. Watters Law Office, PC 2807 East Broadway Boulevard Tucson, AZ 85716 [email protected] Attorneys for Plaintiffs

By: s/Joel R. Shields

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