Free Statement - District Court of Arizona - Arizona

lm i RYLEY CARLOCK & APPLEWHITE
One North Centrai Avenue, Suite 1200
2 Phoenix, Arizona 85004·—44i7
Telephone: 602/258-7701
3 Telecopier: 602/257-9582
Charles L. Chester »~ 002571
[email protected]
5
John M. Fry — 020455
6 i [email protected]
7 Attorneys for Defendant
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
10- KAYE K. HUTTON, as an individual No. CV2003—2262—PI·iX~ROS
and as representative of a class consisting
E 1 of others similarly situated,
AFFIDAVIT OF COUNSEL
12 Plaintiff,
(Assigned to the I-Ionorabie
13 v. Roslyn O. Silver)
14 BANK OF AMERICA, N.A.,
E5 Defendant.
16
STATE OF ARIZONA )
i7 ) ss.
18 County oi`Maricopa )
19 KELLY K. JOHNSON of Maricopa County, being {irst duly sworn,
20 deposes and says:
21 1. i ain an associate attorney with Ryley Carloclt and Applewhite,
1 22 counsel for Bank of America, N.A., in connection with the above—eaptioned case.
23 2. On July I3, 2006, I periorined a comprehensive Westlaw search in
24 the search database of All Federal and State Cases.
25 3. Utilizing the database Ali Federal and State Cases, I reviewed and
26 analyzed all cases which were liled before the year 2002 and contained the terms Bank
27 of America and/or Nations Bank and also contained the terms Fair Labor Standards Act.
28
visas; 1
I ase¤*2t03-cv—02262—ROS Document 288-4 Filed O7/17/2006 Page 1 of 4

1 4. By utilizing these terms, the Westlaw search engine returned sixty-
2 six (66) cases which were filed before the year 2002 and contained the terms Bank of
3 America and/or Nations Bank and Fair Labor Standards Act.
4 5. No published Westlaw opinions were found which held that the
5 Bank of America or Nations Bank were in violation of the Fair Labor Standards Act.
6 6. l am aware that Plaintiff has cited the case of Philip B Fleming v
7 Bank ofmnerica as an example ofthe Bank of America’s violation of the Fair Labor
8 Standards Act.
9 7. Fleming v. Bank Of./ll7’Z€l'lCO is not a Westlaw published opinion,
10 however, I was able to locate a reference to F leaning in the case of Fenton v Welling,
1 i 139 F.2d 609, 609 (9m Cir. 1943).
12 8. The holding of Fleming, as found in a copy of the Labor Cases —
13 Federai and State Courts reports, iinds that the court should determine whether the Bank
l4 is engaged in interstate commerce before granting or denying the relief sought by
15 Fleming.
16 9. With regard to Fenton v. Walling, the court held that the Bank of
17 America was required to produce documents and permit its employees to answer
18 questions. A Petition for Rehearing was denied on February 1, 1944. A Petition for
19 writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit was denied on
20 April E0, 1944. A Petition for Rehearing was denied on May 15, 1944. No further
21 decisions were reported in this matter.
22 10. On July 13, 2006, I performed two (2) additional comprehensive
23 Westlaw searches in the search databases of Forms and Treatises under the section of all
24 Law Reviews, Text and Journals as well as Industry News under the section of Finance
25 and Banking.
26 il. Utilizing these search databases, I reviewed and analyzed all cases
27 which were filed containing the terms Bank of`America and/or Nations Bank which also
28 contained the terms Fair Labor Standards Act.
I ase 2:03—cv—02262—ROS Document 288-4 Filed 07/17/2006 Page 2 of 4

1 I2. Under all Law Reviews, Text and .}oumals as well as Finance and
2 Banking, there were no cases cited which resulted ih a ruling that the Bank of America
3 or Nations Bank violated the Fair Labor Standards Act.
4
5 DATED this 17th day of July, 2006. t
6 /,.· `P
8
9 SUBSCRIBED AND SWORN to me this 17th day of July, 2006.
11
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My Commission Expires:
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l ase 2:03—cv—02262—ROS Document 288-4 Filed 07/17/2006 Page 3 of 4

1 CERTIFICATE OF MAILING
2 I hereby certify that on July 17m, 2006, I electronically transmitted the Afiidavit
3 of Counsel to the Clerk’s Office using the Cl\/I/ECP System for Bling and transmittal of
4 a Notice of Electronic Filing to the following CM/ECP registrants:
5 Ms, Lydia A. Iones
ROGERS & THEOBALD, LLP
6 2425 East Camelback Road
Phoenix, Arizona 85016
7 Attorneys For Plaintiff
8 Michael O’Connor
Jennings, Strouss & Sainion, P.L.C.
9 The Coiliet Center, lith Floor
201 E, Washington Street
10 Phoenix, AZ 85004
ll
By: /s/Bree Bellefeuille
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