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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

PAUL VELASQUEZ, FAVIOLA ALVAREZ,

MARCELO ALTAMIRANO, JACKEY WILSON

II, CARLOS MARTINEZ AND DIONICIO

MARTINEZ, on behalf of themselves

and all others similarly situated,

Plaintiffs,

 v.

HSBC FINANCE CORPORATION; HOUSEHOLD

FINANCE CORPORATION; BENEFICIAL

COMPANY, LLC,

Defendant. ___________________________________

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Case No. 08-4592 SC

ORDER DENYING MOTION

FOR CONDITIONAL

CERTIFICATION

I. INTRODUCTION

This matter comes before the Court on the Motion for (1)

Conditional Certification; (2) Court-Authorized Notice; and (3)

Production of Names and Addresses filed by Plaintiffs Marcelo

Altamirano ("Altamirano") and Jackey Wilson II ("Wilson")

(collectively "Plaintiffs"). Docket No. 75. Defendants HSBC

Finance Corporation and Beneficial Company LLC (collectively

"Defendants") filed an Opposition. Docket No. 94. Plaintiffs

submitted a Reply. Docket No. 104. For the following reasons,

the Court DENIES Plaintiffs' Motion.

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1

 Robert W. Biela, attorney for Plaintiffs, filed a

Declaration in Support of the Motion for Conditional Certification. 

Docket No. 76-1. Maureen Gillan-Myer ("Gillan-Myer") is currently

the Senior Vice President of Human Resources at HSBC.

2

 Michael Robert Fitzpatrick ("Fitzpatrick") is one of

Defendants' 30(b)(6) corporate designees. 

2

II. BACKGROUND

On November 18, 2008, Plaintiffs, on behalf of themselves and

all others similarly situated, filed an Amended Complaint. Docket

No. 22 ("Am. Compl."). It contains ten counts, including (1)

failure to pay overtime compensation in violation of the Fair

Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; (2) failure

to pay the federal minimum wage in violation of the FLSA; (3)

failure to pay the California minimum wage in violation of Cal.

Code Regs. tit. 8, § 11000; and (4) failure to pay overtime

compensation in violation of Cal. Code Regs. tit. 8, § 11040, and

Cal. Labor Code § 510(a). Id. ¶¶ 58-82. 

Plaintiffs are former Account Executives ("AEs"). AEs

marketed and/or sold mortgages, insurance, home-equity loans, auto

loans and/or other financial products and services. Id. ¶ 3; see

also Biela Decl. Ex. A ("Maureen Gillan-Myer Dep.") at 22:9-24,

Ex. G ("Account Executive Job Description").1 Plaintiffs'

proposed class period runs from October 2, 2005 through March 31,

2009. Docket No. 76 ("Mem. of P. & A") at 1. It runs until the

end of March 2009, because Defendants' entire consumer lending

branch network was closed at that time. Biela Decl. Ex. B

("Michael Robert Fitzpatrick") at 36:1-2.2

 During this period,

Plaintiffs employed approximately 2100 AEs in California, and 8700

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3 The number of California AEs is for the time period October

2, 2004 to March 31, 2009. 

4 Hoffmann-La Roche addressed a collective action brought

under the Age Discrimination in Employment Act, which, the Court

recognized, incorporates § 16(b) of the FLSA. 493 U.S. at 170.

3

AEs outside of California.3 Biela Decl. Ex. C ("Defs.' Resps. to

Pls.' Interrogs.") at 17. Plaintiffs allege that they were

required to work overtime hours "off-the-clock" in violation of

the FLSA. Mem. of P. & A at 2. Plaintiffs seek to conditionally

certify this case as a collective action so that notice can be

sent to all putative members. Id.

III. LEGAL STANDARD

The FLSA provides employees with a private right of action to

sue an employer for violations of the Act on behalf of "themselves

and other employees similarly situated." 29 U.S.C. § 216(b). The

FLSA does not define "similarly situated," and the Ninth Circuit

has not spoken to the issue. The Supreme Court, in Hoffmann-La

Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989), left the term

undefined.4 However, the Supreme Court indicated that a proper

collective action encourages judicial efficiency by addressing in

a single proceeding claims of multiple plaintiffs who share

"common issues of law and fact arising from the same alleged

[prohibited] activity." Id. 

A majority of courts, including district courts in the Ninth

Circuit, have adopted an ad hoc, two-tiered, case-by-case approach

for actions brought under the FLSA. See, e.g., Thiessen v. Gen.

Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001); Hipp

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v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.

2001); Kress v. PricewaterhouseCoopers, LLP, --- F.R.D. ----, No.

08-0965, 2009 WL 4269465, at *3 (E.D. Cal. Nov. 25, 2009); Lewis

v. Wells Fargo & Co., --- F. Supp. 2d ----, No. 08-2670, 2009 WL

3517660, at *2 (N.D. Cal. Oct. 26, 2009); Gerlach v. Wells Fargo &

Co., No. 05-0585, 2006 WL 824652, at *2-3 (N.D. Cal. Mar. 28,

2006); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466

(N.D. Cal. 2004). Determining whether a collective action is

appropriate is within the discretion of the district court.

Leuthold, 224 F.R.D. at 466. 

The first tier is the "notice stage," which asks whether the

employees are sufficiently similarly situated such that notice

should be sent to prospective plaintiffs giving them the

opportunity to "opt in." See Kress, 2009 WL 4269465, at *3. 

"[T]he court requires little more than substantial allegations,

supported by declarations or discovery, that 'putative class

members were together the victims of a single decision, policy, or

plan.'" Gerlach v. Wells Fargo & Co., No. 05-0585, 2006 WL

824652, at *2-3 (N.D. Cal. Mar. 28, 2006) (quoting Thiessen, 267

F.3d at 1102-03). The "notice stage" determination is made under

a fairly lenient standard and typically results in conditional

certification. Leuthold, 224 F.R.D. at 467. However, unsupported

assertions of FLSA violations are not sufficient to meet

Plaintiff's burden. Ellerd v. County of Los Angeles, No. 08-4289,

2009 WL 982077, *3 (C.D. Cal. Apr. 9, 2009) (quoting Edwards v.

City of Long Beach, 467 F. Supp. 2d 986, 990 (C.D. Cal. 2006). 

If a court grants conditional certification, then it engages

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in a more searching review at the second stage when discovery is

complete and the case is ready for trial. See Leuthold, 224

F.R.D. at 467. The second-tier analysis is generally triggered by

a motion to decertify. Id.

IV. DISCUSSION

A. Evidentiary Objections and Motion to Strike

In response to the evidence submitted in support of

Plaintiffs' Motion for Conditional Certification, Defendants filed

forty-six pages of evidentiary objections. Docket No. 97

("Evidentiary Objections"). Many of these objections are entirely

frivolous. For example, Defendants object to the authenticity and

admissibility of their own responses to Plaintiffs'

interrogatories, and to documents that they themselves produced in

discovery. See Evidentiary Objections at 2, 7-12. Even taking

Plaintiffs' submitted evidence into account, the Court finds that

Plaintiffs are not entitled to have this case conditionally

certified. Therefore, it is not necessary for the Court to issue

rulings regarding Defendants' evidentiary objections. 

Defendants also move to strike the deposition testimony of

Paul Velasquez ("Velasquez"). See Docket No. 96 ("Mot. to

Strike"). On July 15, 2009, Velasquez and Faviola Alvarez

("Alvarez") stipulated to the voluntary dismissal of their claims

against Defendants with prejudice. Docket No. 52. Velasquez's

employment with Defendants ended in February, 2005, Musolino Decl.

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5

 Regina A. Musolino, a partner at Seyfarth Shaw LLP, filed a

Declaration in Support of Defendants' Opposition. Docket No. 95.

6

¶ 19, Ex. A. ("Velasquez Dep.") at 68:15-69:22,5 which is more

than three years before Plaintiffs filed their Complaint in this

case on October 2, 2008. As such, Defendants contend his

testimony is irrelevant and inadmissible. Mot. to Strike at 2-3. 

Defendants also contend that because his dismissal operated as an

adjudication on the merits, Plaintiffs should not be able to use

his testimony to support their position. Id. at 4. 

Relevant evidence is evidence which has "any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence." Fed. R. Evid. 401. The Court

finds that Velasquez's testimony concerning his experiences as an

AE is probative, although less probative than the testimony of AEs

employed since October 2, 2005. Therefore, his testimony is

admissible. Also, even though his dismissal operates as an

adjudication on the merits, Plaintiffs can still rely on his

testimony to corroborate the testimony and declarations of AEs who

are putative members of this collective action. The Court DENIES

Defendants' Motion to Strike Velasquez's testimony. 

B. First-Tier Analysis Applies

The Court begins by addressing Defendants' contention that

the Court should apply the stricter second-tier analysis. Opp'n

at 22. According to Defendants, significant discovery has

occurred in this case. Id. Defendants have produced over 11,000

pages of documents, and taken eight depositions. Musolino Decl. 

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¶ 35. According to Defendants, Plaintiffs have deposed four

former District Sales Managers ("DSMs") and taken seven 30(b)(6)

depositions. Id. According to Plaintiffs, only two 30(b)(6)

depositions have been conducted. Reply at 4. 

Even if seven 30(b)(6) depositions have occurred, it is clear

that discovery is far from complete. The second-tier analysis

usually occurs "[o]nce discovery is complete and the case is ready

to be tried." Leuthold, 224 F.R.D. at 467. "Courts within this

circuit refuse to depart from the notice stage analysis prior to

the close of discovery." Kress, 2009 WL 4269465, at *4. This

Court follows the majority of district courts within this Circuit

and applies the first-tier, or notice stage, analysis. 

C. Plaintiffs Have Not Shown They Are Similarly Situated

When plaintiffs allege that employers have violated the FLSA

by failing to pay overtime compensation, the case is typically

either a "misclassification" case, where the allegation is that

the employer improperly classified the employee as exempt from

overtime compensation, or an "off-the-clock" case, where the

allegation is that the employer failed to pay overtime

compensation to non-exempt, hourly, employees. In

misclassification cases, it is often easier to show the plaintiffs

were the victims of a single decision, policy, or plan. Compare

Kress, 2009 WL 4269465, at *6 ("Taken literally, this [notice

stage] standard might allow plaintiffs to receive conditional

certification solely on the basis . . . [of] an employer's uniform

classification decision.") with Castle v. Wells Fargo Fin., Inc.,

No. 06-4347, 2008 WL 495705, at *2-5 (N.D. Cal. Feb. 20, 2008)

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6

 Jeffrey Scott Barden ("Barden") is one of Defendants'

30(b)(6) corporate designees. See Mot. at 10-11.

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(denying conditional certification where plaintiffs alleged they

had been denied overtime pay for "off-the-clock" hours worked

under variety of different circumstances, and where plaintiffs

failed to identify company-wide policy or practice). 

This case is an "off-the-clock" case. See Mem. of P. & A. at

2. From 2004 through 2009, AEs were classified as non-exempt

employees. Gillan-Myer Dep. at 17:20-22. Plaintiffs' motion for

conditional certification relies upon two theories. First, they

allege that Defendants set sales targets for AEs that required AEs

to work off-the-clock so as to meet those targets. Mem. of P. &

A. at 5-8. Second, Plaintiffs allege that branch managers,

district managers, and regional managers were "incentivized" to

control overtime expenses such that AEs had to work off-the-clock. 

Id. at 8-14. According to Plaintiffs, they have "submitted

declarations and testimony from putative Class members and former

Account Executives who attest to being victims of Defendants'

unwritten policies and practices which required the employees to

meet mandatory sales targets while keeping overtime expenses to an

unrealistic minimum." Reply at 9. The Court addresses each

theory in turn. 

1. Sales Targets

The evidence submitted to the Court indicates that Defendants

set "new money goals" which were performance targets for AEs and

branch managers. Biela Decl. Ex. F ("Barden Dep.") at 18:15-22,6

Ex. S ("2007 Compensation Plan"), Ex. T ("2008 Incentive

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Compensation Plan"). According to Barden:

New Money is the incremental amount of new

dollars that come into the business from

originating a loan, so depending on what part of

the country that you're in, what's the average

loan size for that part of the country, and

based on the unit production expected of that

part of the country , you would be assigned a

New Money goal . . . . Each branch went through

an evaluation process, depending on, you know,

where they were, what their history had been,

what was going on in their economic environment

to determine what their opportunity was which

plugged directly into the New Money goal. 

Barden Dep. at 18:23-19:17. By the end of 2008, Defendants had

approximately 800 branches operating in about 80 districts. 

Fitzpatrick Dep. at 31:21-32:4. Barden's testimony indicates that

the sales targets of AEs differed depending on the location, and

changed over time, which undercuts the inference that these

targets were the basis of a common policy or practice which forced

AEs throughout the country to work overtime without compensation. 

Determining which sales targets required which AEs to work

overtime without compensation would require individualized

determinations. 

According to Plaintiffs, these performance targets forced AEs

to work overtime hours without compensation in order to preserve

their jobs. Mem. of P. & A. at 7. In support of this contention,

Plaintiffs rely on the deposition testimony of five former AEs,

and the declarations of six former AEs. In the declarations

submitted by Plaintiffs, six former AEs state that they were

required to meet a "pre-determined sales quota" each month, and

that they regularly had to work more than forty hours without

compensation in order to meet these sales quotas. Biela Decl. Ex.

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M ("Carney Decl.") ¶¶ 3-4, Ex. N ("Carson Decl.") ¶¶ 3-4, Ex. O

("Griffiths Decl.") ¶¶ 3-4, Ex. P ("Klingensmith Decl.") ¶¶ 3-4,

Ex. Q ("Martin Decl.") ¶¶ 3-4, Ex. R ("Walters Decl.") ¶¶ 3-4. 

In response, Defendants have submitted eighty-three

declarations from employees, most of whom are Branch Sales

Managers ("BSMs"), and all of whom claim they never required AEs

to work off-the-clock. See App. of Evidence in Support of Defs.'

Opp'n Ex. P ("Decls. in Support of Opp'n"). Approximately

nineteen of these employees served as AEs, or Senior Account

Executives ("SAEs"), and they claim that when employed in those

positions they did not work off-the-clock. See Decls. in Support

of Opp'n. While Plaintiffs question the validity and accuracy of

these declarations, see Reply at 4 n.5, they suggest the

experiences of Carney, Carson, Griffiths, Klingensmith, Martin,

and Walters were not the result of a company-wide policy or plan.

Plaintiffs also rely on the deposition testimony of five

former AEs. According to the testimony of Velasquez, his branch

manager never told him to work outside of office hours, but

"insinuated" that he should generate his own sales leads outside

of work. Biela Decl. Ex. K ("Velasquez Dep.") at 43:7-44:22. 

Velasquez did not notify his branch manager that he was generating

leads after office hours. Id. at 44:23-45:1. According to

Velasquez, he worked late two nights a week, and if he was not

making his goals, he had to extend that to an extra night. Id. at

86:12-18. He testified that branch managers would cut back his

requested hours if the district manager sent out emails saying no

overtime was allowed. Id. at 92:8-25.

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According to Alvarez, she worked after she had clocked out

approximately three or four times. Biela Decl. Ex. L ("Alvarez

Dep.") at 39:1-11. In response to a question about whether anyone

told her she had to continue to work after she had clocked out,

she responded: "I want to say they didn't give me that impression,

but I had to continue to work. . . . I couldn't leave . . .

things unfinished . . . ." Id. at 39:23-40:3. Alvarez told

managers twice that she had work to finish after she clocked out,

and they responded that it didn't matter. Id. at 40:4-16.

David Almazan ("Almazan") worked in the Cerritos and Buena

Park branches of HSBC. Biela Decl. Ex. J ("Almazan Dep.") at

51:15, 75:6-10. Almazan testified that not everyone worked

outside of their scheduled hours, id. at 73:20, but for those who

did "there was an unwritten rule or kind of understanding that if

you had too much overtime for one reason or another that you

showed up on the company radar." Id. at 74:6-9, 158:10-14. 

Almazan acquired this understanding from his colleagues, not from

management. Id. at 74:14-18. Almazan sometimes had to use his

cell phone outside of work to call a customer, he sometimes had to

stay late at the end of the month to complete a loan deal, and

once or twice a month he worked weekends without recording his

time. Id. at 78:2-19. Almazan testified that, although he does

not recall specific conversations, branch sales managers and

district sales managers "conveyed" to AEs that it was frowned upon

to have too much overtime. Id. at 155:3-25. He testified that if

he was still on the phone with a customer at 7:00 p.m., he had to

continue the phone call "because that's how I made my living was

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by booking loans. I mean, I had to do what I had to do to get the

job done. If it was five minutes later, 30 minutes later. I

mean, ultimately my hourly [pay] was measly compared to the bonus

that was potentially made, so you did what had to be done." Id.

at 158:20-159:5. He does not recall any branch manager

specifically having an issue with the amount of overtime he was

recording. Id. at 159:7-12.

Marcelo Altamirano ("Altamirano") worked as an AE at the

Fullerton branch. Biela Decl. Ex. H ("Altamirano Dep.") at 78:1-

6. Altamirano recalls being told by a supervisor that AEs were

not supposed to work overtime, and that he was working too much

overtime. Id. at 100:17-19, 103:8-25. He does not recall anyone

specifically telling him not to record the time he spent working

for the company. Id. at 110:11-15. Altamirano was required to

have a minimum number of deals in order to continue his

employment, and he states that "I had to do what I had to do to

generate the business," but he does not recall ever telling anyone

at HSBC that he was required to work off-the-clock to generate

enough business to stay employed. Id. at 111:1-22. He recalls

that there were times when AEs in his branch had to work Saturdays

or overtime in order to meet the sales goals set for the area or

the branch. Id. at 118:17-25. Jackey Wilson II ("Wilson") worked

at the Brea and Cerritos branch. Biela Decl. Ex. I ("Wilson

Dep.") at 29:10, 75:13. He testified that at the end of the

month, AEs had to stay late to close loans, and that branch

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7 Although Plaintiffs' Memorandum quotes from Wilson's

deposition, Mem. of P.& A. at 7, the page containing the quotation

is not included in the exhibits Plaintiffs filed with the Court.

13

managers were present.7 Id. at 183:21-25, 185:3-7. Wilson

testified that he was paid his regular wages when he should have

been paid time-and-a-half on approximately five occasions. App.

of Evidence in Support of Opp'n Ex. D ("Wilson Dep.") at 101:14-

102:20. 

There are a number of aspects of this deposition testimony

that undermine its value in showing that Plaintiffs were the

victims of a common policy or plan. As noted above, Velasquez's

testimony has less probative value because he was no longer

employed by Defendants during the time period that would apply to

this putative collective action. See Part IV(A), supra. 

According to Alvarez, she worked off-the-clock only about three or

four times, and Wilson worked off-the-clock approximately five

times. Almazan's testimony suggests he worked off-the-clock for

the sake of trying to acquire bonuses, rather than in a effort to

meet mandatory sales quotas. Putting all this evidence together,

the Court finds Plaintiffs have not met their light burden of

showing they were the victims of a single decision, policy, or

plan whereby sales targets were set so high that AEs were required

to work overtime without compensation.

In an effort to portray AEs' sales targets as strict sales

requirements, Plaintiffs also rely on a Performance Improvement

Plan issued to Almazan indicating an "[i]nability to perform"

during November and December 2006. Biela Decl. Ex U.

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("Performance Improvement Plan"). However, in his deposition,

Almazan explained this performance review as due to the fact that

he had just returned from an eight-to-ten week leave of absence. 

App. of Evidence in Support of Defs.' Opp'n ("Almazan Dep.") at

151:2-21. Almazan did not explain the poor review as due to the

fact his sales targets were too high, and he explicitly testified

that he was never told by a branch manager or district sales

manager not to record all of his time. Id. at 156:2-7. 

The evidence submitted by Plaintiffs does not show that

Plaintiffs were sufficiently similarly situated such that the

Court should authorize that notice be sent to approximately 10,000

former AEs around the country. Instead, this evidence from eleven

former AEs indicates that they may have individual FLSA claims

against Defendants. There is not enough evidence of a companywide policy that required AEs to meet "mandatory sales targets

while keeping overtime expenses to an unrealistic minimum." Reply

at 9. 

2. Management Incentives

Plaintiffs' second basis for alleging they were similarly

situated relies on management incentives to control overtime. 

Mot. at 9-11. Plaintiffs allege that branch managers, district

managers, and regional managers were "incentivized" to control

overtime expenses such that AEs regularly had to work off-theclock. Id. at 9. The management hierarchy consisted of branch

sales managers ("BSMs"), district sales managers ("DSMs"),

divisional general managers ("DGMs"), and two regional general

managers ("RGMs"). Fitzpatrick Dep. at 47:15-50:2. AEs were

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required to obtain approval from their BSMs before working

overtime. Gillan-Myer Dep. at 38:11-24.

 The Court begins by noting that Plaintiffs provide no

evidence showing that the immediate supervisors of AEs, the BSMs,

received bonuses tied to overtime expenses. Instead, Plaintiffs

present evidence showing that DSMs could receive a small bonus

based, in part, on controlling the amount of overtime within the

district. Barden Dep. at 51:5-20; Biela Decl. Ex. T ("2008

Incentive Compensation Plan") at HSBC0001970, Fitzpatrick Dep. at

75:10-17. Plaintiffs also point out that RGMs were eligible for a

large bonus based on a number of business metrics including

"profit measures, employee engagement results, insurance results,

loan account growth, productivity, expenses and employee

recruitment development." Gillan-Myer Dep. at 104:21-106:3.

Based on this evidence, Plaintiffs want the Court to conclude

that AEs were subjected to a common policy or practice requiring

them to work overtime without compensation. The evidence

regarding bonuses for district and regional managers is simply

insufficient for the Court to conclude that management was

"incentivized" on a company-wide basis to deny AEs overtime

compensation. While the declarations and deposition testimony of

former AEs submitted by Plaintiffs show that there were occasions

when AEs worked overtime without compensation, the evidence

regarding management bonuses is too tenuous to suggest that these

instances were the result of a common, company-wide policy or

plan. 

Many of the Plaintiffs in this case acknowledged that there

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were occasions when they were paid overtime compensation. See

App. of Evidence in Support of Defs.' Opp'n Ex. B ("Alvarez Dep.")

at 55:11-15 (Alvarez thinks he was paid overtime at HSBC), Ex. C.

("Altamirano Dep.") at 105:11-13, Ex. E ("Almazon Dep.") at 157:4-

11, Ex. F ("Walters Dep.") at 87:15-89:15, Ex. G ("Carney Dep.")

at 68:18-24, Ex. H ("Klingensmith Dep.") at 42:2-7. This evidence

weakens the allegation that management was incentivized to deny

overtime compensation. 

Finally, Plaintiffs present evidence that Defendants' Human

Resources Department investigated complaints by AEs that

management was requiring them to work off-the-clock. Mem. of P.&

A. at 13; Biela Decl. Exs. AA, BB, DD, EE, and FF. To the extent

that management knew it could be subject to such an investigation,

this evidence also weakens Plaintiffs' allegations regarding

management incentives to deny overtime compensation.

D. Other Cases

In support of their motion for conditional certification,

Plaintiffs rely on this Court's rulings in other cases. These

cases are distinguishable. In Beauperthuy v. 24 Hour Fitness USA,

Inc., this Court conditionally certified a class of personal

trainers who alleged they were required to work overtime without

compensation. No. 06-0715, 2008 WL 793838, at *1 (N.D. Cal. Mar.

24, 2008). In that case, the trainers alleged that their payroll

system set strict quotas on the number of floor time hours each

employee could record so that the total hours per week never

exceeded forty. Id. at *3. Here, the allegations of a common

policy or plan are less clear, based on sales targets and

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management incentives. Unlike the plaintiffs in Beauperthuy, many

of the Plaintiffs in this case were sometimes paid overtime

compensation. See Part IV(C)(2), supra. Furthermore, in

Beauperthuy, the defendants did not offer a single declaration

from a 24 Hour Fitness employee stating that the company followed

its written rules, or otherwise contradicting the trainers'

declarations. Id. at *4. Here, Defendants have presented eightythree declarations from their employees in support of their

opposition. See Part IV(C)(1), supra.

Plaintiffs also rely on this Court's decision in Gilbert v.

Citigroup, Inc., No. 08-0385, 2009 WL 424320 (N.D. Cal. 2009). In

that case, there were allegations that employees were both

misclassified as exempt, and they were required to work off-theclock after they had been reclassified as non-exempt employees. 

Id. at *1. Based on Citigroup's decision to reclassify the

plaintiffs, the Court found there were sufficient allegations of a

common policy or plan to warrant conditional certification. Id.

at *2-3. In this case, the evidence presented to the Court does

not support the inference that Plaintiffs who worked overtime

without compensation were the victims of a single decision,

policy, or plan. The Court finds no inconsistency between its

prior decisions in Beauperthuy and Gilbert, and its current

determination that conditional certification is not warranted. 

Finally, the Court notes that it should not consider the

merits of Plaintiffs' claims at the conditional certification

stage. Madden v. Corinthian Colleges, Inc., No. 08-6623, 2009 WL

4757269 (N.D. Ill. Dec. 8, 2009) at *3; Mowdy v. Beneto Bulk

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Transp., No. 06-5682, 2008 WL 901546, at *6 (N.D. Cal. Mar. 31,

2008); Centurioni v. City and County of San Francisco, 2008 WL

295096, at *2 (N.D. Cal. Feb. 1, 2008). Here, the Court has not

considered the merits of Plaintiffs' claims that they were

required to work overtime without compensation in violation of the

FLSA. Instead, the Court has focused almost exclusively on the

evidence submitted by Plaintiffs in support of their Motion for

Conditional Certification. Based on the evidence submitted

concerning the experiences of former AEs, and based on the sparse

evidence submitted to support Plaintiffs' contentions relating to

sales targets and management incentives, it is simply too much of

a stretch for the Court to conclude that approximately 10,000

former AEs were the victims of a single decision, policy or plan

to deprive them of overtime compensation. See Thompson v.

Speedway SuperAmerica LLC, No. 08-1107, 2009 WL 130069, at *2, *8,

*13 (D. Minn. Jan. 20, 2009) (denying conditional certification in

case where there was a "dearth of evidence" to support allegations

that FLSA violations resulted from a common policy or plan);

Simmons v. T-Mobile USA, Inc., No. 06-1820, 2007 WL 210008, at *6

(S.D. Tex. Jan. 24, 2007) (denying conditional certification in

case where sales staff were required to meet minimum monthly sales

quotas and where T-Mobile discouraged supervisors from authorizing

sales people to work overtime). The Court finds that Plaintiffs

have not succeeded in making a minimal showing that the members of

this proposed collective action are similarly situated.

///

///

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V. CONCLUSION

For the reasons stated above, Plaintiffs' Motion for

Conditional Certification is DENIED. The Court DENIES Plaintiffs'

request for Court-Authorized Notice, and the Court DENIES

Plaintiffs' request for the production of names and addresses.

IT IS SO ORDERED.

Dated: February 18, 2010 

UNITED STATES DISTRICT JUDGE

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