Free Statement - District Court of Arizona - Arizona

Exhibit 8
1 AFFIDAVIT OF JAY J. PRICE
2
3 STATE OF CALEORNIA gss
4 COUNTY OF SAN FRANCISCO )
5 I, Jay J. Price, first being duly sworn, upon my oath, depos and say:
6 1. I have personal knowledge of the facts stated herein and am competent to
7 testify to those facts.
8 2. I am licensed to practice law in the state of California and at all times
9 relevant to this affidavit have done so as an associate in the Legal Department of the
10 Bank of America.
11 3. Since in or before 1999, and to date, one of my primary areas of
12 responsibility has been compliance with the federal and various state wage and hour
13 laws. In that capacity, I provide advice and counsel to the Bank’s various businesses
14 regarding compliance with wage and hour laws, and manage the defense of judicial
15 proceedings in which the Bank is accrued of violating wage and hour laws.
i6 4. in or about 1996, the Bank reorganized, creating the Premier Banking and
17 Small Business Banking divisions as a part of the Consumer and Commercial Banking
18 group.
19 5. Because of the highly competitive nature of banking and the difficulty
20 distinguishing products and services, the Bank adopted a strategy founded upon Client
2i Managers (previously Financial Relationship Managers). These associates were highly
22 trained and charged with the primary duty of managing the Banl<’s relationship with a
23 portfolio of qualified clients, building a financial relationship of trust and confidence,
24 the result of which is intended to be the selection of the Banics products and services
25 over those of the competition.
26 6. As created, implemented and trained for, I believed the Client Manager
27 jobs qualified for the administrative exemption under federal and state wage and hour
28
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1 laws. I know of no one within the Bank’s management considering the matter who
2 disagreed.
3 7. In 1999, a number of class actions were filed against the Bank in
4 California alleging that Client Managers (and other job classifications) were
5 misclassified as exempt. I oversaw the defense and successful settlement of those
6 actions. Neither in those actions nor in any other judicial or administrative proceeding
7 has a Client Manager been found to be non—exempt. To my knowledge, the same holds
8 true for the Client i\/Ianager’s analogous counterparts at the Bank’s competitors.
9 8. As a means of checking rny judgment, I asked Lloyd Aubry, Esq., who I
10 consider to be an expert in wage and hour law, especially that of California, to travel to
ll Seattle, interview some Client Managers and give me his impressions. He did so in
12 May, 2000. Mr. Aubry told me that as designed and intended, the Client Manager job
13 was exempt, confirming my views.
I4 9. Mr. Aubry also told me that, despite this design and intention, some Client
15 Managers were emphasizing sales too much, causing them to perhaps perform the job in
16 a non-exernpt manner at least under Califomia law. Mr. Aubry reminded me that wage
17 and hour litigation was becoming more prominent and suggested I consider
18 recommending closer monitoring, _job modification or even conversion to overtime
19 eligibility. This was not surprising to me. I considered this to be an issue to be
20 addressed by training, rather than job modification or reclassification, since client
21 relationship management was key to the Bank’s strategy of competition.
22 10. From my contact with Personnel leaders, such as Patty Roche-Fukushima,
23 I beiieved that the Bank was improving its training for die job and its analysis of the
24 behaviors of successful Client Managers for recruiting purposes. Therefore, 1 did not
25 believe Client Manager’s were performing in a noirexempt manner if they did their job
26 properly, and saw no reason to recommend conversion to overtime eligibility.
27 ll. During 2000 and 2001, the Bank prepared its defense of the above
28 referenced class actions and sought a reasonable settlement. The causes were settled in
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1 July, 2001 as I recall
2 12. In March, 2001, a California Court of Appeals handed down the Bgll
3 decision, applying the production/administrative dichotomy to the insurance industry
4 under California law. This was of substantial concern to ine because I believed that
5 analysis did not apply in industries such as financial services and insurance. If not
6 reversed, the @11 decision was a problem. Regrettably review was denied by the
7 California Supreme Court in June, 2001.
8 13. I have reviewed pertinent parts of the deposition of Mark Reale. My
9 recollection is consistent with his as to what led to the decision in the Pali of 2001 to
10 convert Client Managers to overtime eligible. The "1ega1 landscape" he refers to likely
11 was painted by me. I have no recollection of specific conversations, and all are
12 privileged, however, factors I was aware of in the legal landscape included, whether by
13 name or not, the Bpll decision, the increase in wage and hour litigation, the impressions
14 Mr. Aubry provided me, my beliefs and analysis, and Mr. Ken Lewis’ desire for the
15 Bank to avoid being sued by our associates. Mr. Lewis was our new CEO.
16 14. At the time of conversion, before conversion and after conversion, I
17 believed, and stiil believe that Premier Banking and Small Business Banking Client
18 Managers are exempt under the administrative exemption of the Fair Labor Standards
19 Act.
20 Further affiant sayetli naught. ,
21 Lb
ay J. rice
22
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