Free Motion to Certify Class - District Court of Arizona - Arizona

Case 2:03-cv-02262-ROS Document 158-2 Filed 10/07/2005 Page 1 of 3

PRELIMINARY EXPERT REPORT OF ORAN CLEMONS
Ihave been retainedasan expertwitness bythe lawiirm ofRogers&Theobald, LLP of
Phoenix, Arizona, in the case ot`Kay E Hutton, er al v. Bank ofrtmerica, NA (CV 03-2262 PHX-
ROS), in the United States Dimct Court for the District of Arizona, and have performed a
preliminary investigation under the Fair Labor Standards Act, FLSA, as amended, concerning the
pay practices of`Bank of America (hereinafter “Bank") at issue in this case. This Report states my
expert qualifications and the types of approved expert testimony thatl have given in Federal Court
in the past as well as the types of information that I and other experts in my field reasonably rely
upon in reaching opinions about violations of wage and hour laws. This Report also contains and/or
attaches: -
1) A statement of the preliminary opinions I have formed to date and the basis for same
(integrated in this Report);
2) The data or other information I have considered to date in forming my opinions (See
this Report and Attachment “A”);
3) A preliminary list ofthe exhibits I know of at this time that may be used to summarize
and/or support my opinions (See Attachment "A");
4) A description of my expert qualifications (See this Report and Attachment “B");
5) My fee schedule for my work as an expert and bills l have generated in this matter to
date (See Attachment "C”); and
6) A listing of other cases in which I have testified as an expert at trial or by deposition.
(See this Report).
Since my investigation is continuing in this matter and will continue through the time of
Case 2:O3—cv—O2262—ROS Document_j'§h8;2hr1AFiIed 10/O7/2005 Page 2 of 3

Department of Labor for Californiaf This study was completed by 1999; however these
employees were not paid overtime until March 2002. On May 31, 2005 I telephoned the U.S.
Department of Labor, Wage-Hour Division and learned that they have initiated 79 compliance
actions against the Bank during the past 10 years. Five of these are in Arizona A very large
percentage of these actions resulted in overtime violations of Section 7(a) of the FLSA. The
combination of (l) the report requested by the Bank which atleast partially resulted in
eventually changing the status of employees from exempt to nonexempt, (2) several lawsuits
against the Bank which were settled out of court, and (3) numerous investigations by the U.S.
Department of Labor which have resulted in the Bank paying back wages for overtime problems
for many years, show that the Bank for many years has willfully violated the overtime provisions
of the FLSA. Based on this history I believe the standards of willfulness have m met in this
case and the Bank is subject to the three year statute of limitations.
LIQUIDATED DAMAGES
29 U.S.C. Section 2l6(b) provides that "an employer who violates the provisions of
Section 6 or Section 7 of this Act shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may
be, and in an additional equal amount as liquidated damages". Liquidated damages are the rule,
not the exception. Employees are normally entitled to liquidated damages. Section 2l6(b) goes
on to say that the Court shall allow a reasonable attomey’s fee mid costs of the action.
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Case 2:03-cv-02262-ROS

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