Free Request for Oral Argument - District Court of Delaware - Delaware

Case 1 :07-cv-00735-JJF Document 28 Filed 06/23/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KATHRYN L. FITZGIBBON, :
LAUREN M. FLEMING, and ALL :
SIMILARLY SITUATED CURRENT :
AND FORMER EMPLOYEES OF : CIVIL ACTION
ING BANK, fsb, AND ITS WHOLLY :
OWNED SUBSIDIARIES : NO. 07-735 (JJF)
Plaintiffs, :
v.
ING BANK, fsb and ALL OTHER
WHOLLY OWNED SUBSIDIARIES :
OF ING BANK, fsb, WHICH HAVE 1
EMPLOYED SIMILARLY SITUATED 1
CURRENT AND FORMER EMPLOYEES :
SINCE November 16, 2004 :
Defendants. :
APPLICATION FOR ORAL ARGUMENT
Defendant ING Bank, fsb ("Defendant" or "ING Banl<"), by and through its undersigned
counsel, hereby requests oral argument to be held on July 1 1, 2008 regarding Plaintiffs’ Motion
to Proceed as a Collective Action (D.I. 24) in accordance with Local Rule 7.1.4 and the Court’s
Standing Order for filing non-dispositive, non-patent motions and states as follows:
1. On May 19, 2008, Plaintiffs filed both a Motion to Proceed as a Collective Action
and a Notice ofthe motion. See D.l. 24. The Notice of motion provided that oral argument
regarding the motion would be heard by the Court on June 6, 2008. Id
2. On June 4, 2008, the Court ruled that Plaintiffs’ Notice of Motion was defective,
cancelled the proposed oral argument scheduled for June 6, 2008, and informed Plaintiffs’
counsel that they must re—notice the motion in accordance with the Court’s procedure for filing
non-case dispositive motions. See D.I. dated 6/4/08.

Case 1:07-cv-00735-JJF Document 28 Filed 06/23/2008 Page 2 of 3
3. On June 13, 2008, Plaintiffs’ filed a Reply Briefin support of their Motion to
Proceed As a Collective Action. See D.l. 27.
4. As of today’s date, Plaintiffs’ counsel has not re-noticed their initial Motion as
instructed by the Court. Thus, out of an abundance of caution, Defendant requests oral argument
regarding Plaintiffs’ Motion to Proceed as a Collective Action in accordance with Local Rule
7.1.4.
5. Oral argument is especially warranted in this case to address the issues raised for
the first time in Plaintiffs’ Reply Brief which include, but are not limited to (1) Plaintiffs’
proposed class definition, and (2) Plaintiffs’ contention that the Court is not entitled to consider
evidence in the form of declarations, or any other form of discovery, when deciding whether a
proposed class is appropriate.
6. First, Plaintiffs’ proposed class definition completely discounts the "similarly
situated" standard, which requires that plaintiffs in a misclassification case share common job
duties and responsibilities. See 29 U.S.C. § 216(b). Plaintiffs would include every former and
current employee in grades G-14 and below who were classified as exempt regardless of their
job duties and daily activities. At a minimum, Plaintiffs should Hrst take discovery and propose
a class tailored to those who are in fact "similarly situated to them", if any. See eg., Bosley v.
Chubb Corp., 2005 U.S. Dist. LEXIS 10974 at *10-1 l (E.D. Pa. June 3, 2005) (only approving
conditional class certification after plaintiffs conducted limited discovery and submitted evidence
to support their motion).
7. Second, Plaintiffs’ contention that it is premature at this stage of the litigation to
explore through declarations whether putative class members are “‘similarly situated" is entirely
2

Case 1:07-cv-00735-JJF Document 28 Filed 06/23/2008 Page 3 of 3
inconsistent with the body of case law. In fact, the determination of whether the putative class
members are "similarly situated" to the plaintiffs is exactly the analysis to be performed. Where,
as here, there has been no discovery and Plaintiffs seek to join numerous employees who work in
different departments and have vastly different job duties, there is nothing improper with
Defendant submitting evidence regarding these subjects through declarations so that the Court
can make the requisite determination of whether the putative members are "similarly situated" to
named Plaintiffs. See eg., Herring v. Hewitt Assoc., Inc., 2007 WL 2121693 (D.N.J. July 24.
2007) (holding that Plaintiffs ‘“must show a ‘factual nexus between their situation and the
situation of other current and former [employees] sufficient to determine that they are ‘similarly
situated"’).
WHERE}? ORE Defendant ING Bank, fsb respectfully requests Oral Argument to be held
on July 1 1, 2008 regarding Plaintiffs’ Motion to Proceed as a Collective Action.
Respectfully submitted,
Dated: June 23, 2008 /s David Primack
David P. Primack (I.D. No. 4449)
DRINKER BIDDLE & REATH LLP
1 100 N. Market Street
Wilmington, DE 19801-1254
(302) 467-4220
(302) 467-4201 fax
Attorneys for Defendant/Counterclaim Plaintiff
ING Bank, fsb
OF COUNSEL:
David J. Woolf
Edward N. Yost
DRINKER BIDDLE & REATH LLP
One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103
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Case 1:07-cv-00735-JJF Document 28-2 Filed 06/23/2008 Page 1 of 1
CERTIFICATE OF SERVICE
1, David P. Primack, do hereby certify that, on this date, a true and correct copy ofthe
foregoing Application for Oral Argument was timely served by C M/ EMF and by first class mail,
postage prepaid, upon the following counsel for Plaintiffs:
Timothy J. Wilson, Esquire
1508 Pennsylvania Avenue
Wilmington, Delaware 19806
Dated: June 23, 2008 /s David P. Primack
David P. Primack (1.D. No. 4449)
DRINKER BIDDLE & REATH LLP
1 100 N. Market Street
Wilmington. DE 19801-1254
(302) 467-4220
(302) 467-4201 fax
david.primacl<@dbr.com
pnrrrz 925025.1

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