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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

MARISELI GOMEZ BELL, ) Docket No. 12 C 1274 

Individually, and on ) 

Behalf of All Others Similarly )

Situated, )

)

 Plaintiff, ) Chicago, Illinois 

) March 12, 2014 

 v. ) 10:03 a.m. 

)

PNC BANK, NATIONAL ASSOCIATION, )

a national banking association, )

 )

 Defendant. )

TRANSCRIPT OF PROCEEDINGS - Oral Argument 

BEFORE THE HONORABLE THOMAS M. DURKIN 

APPEARANCES: 

For the Plaintiff, WEXLER | WALLACE LLP by 

Proposed Collective MR. THOMAS A. DOYLE 

Action Members, and 55 W. Monroe Street 

Proposed Class Suite 3300 

Action Members: Chicago, IL 60603 

 BURKE LAW OFFICES LLC by 

MR. ALEXANDER H. BURKE 

155 N. Michigan Avenue 

Suite 9020 

Chicago, IL 60601 

LAW OFFICES OF JAMES S. SHEDDEN by 

MR. JAMES S. SHEDDEN 

145 Deer Valley Drive 

Deer Park, IL 60010 

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APPEARANCES (Cont'd.): 

For the Defendant: MORGAN LEWIS & BOCKIUS LLP by 

MS. SARAH E. BOUCHARD 

1701 Market Street 

Philadelphia, PA 19103 

MORGAN LEWIS & BOCKIUS LLP by 

MR. JOHN R. RICHARDS 

1111 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

Court Reporter: LAURA R. RENKE, CSR, RDR, CRR 

Official Court Reporter 

219 S. Dearborn Street, Room 1432 

Chicago, IL 60604 

312.435.6053 

laura_renke@ilnd.uscourts.gov 

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(In open court.)

THE CLERK: All rise.

12 C 1274, Gomez v. PNC.

MR. DOYLE: Good morning, your Honor. I'm Thomas

Doyle for the plaintiffs, Mariseli Gomez Bell.

THE COURT: All right. Why don't we have everyone

identify themselves for the record.

MR. BURKE: Good morning. Judge. Alexander Burke for

plaintiff.

MR. SHEDDEN: Good morning, your Honor. James

Shedden, also for the plaintiff.

THE COURT: All right.

MS. BOUCHARD: Your Honor, Sarah Bouchard from Morgan

Lewis on behalf of PNC Bank.

MR. RICHARDS: Your Honor, John Richards from Morgan

Lewis on behalf of PNC Bank.

THE COURT: All right. Thank you.

All right. This oral argument was asked for by the

parties, correct?

MS. BOUCHARD: That's correct, your Honor.

THE COURT: All right. And I'm always happy to

entertain oral argument on cases. Federal court you usually

don't have it, but -- at least in the Northern District of

Illinois, we don't have it. But I'm happy to have it. It's

often helpful to me. And having read over the briefs and the

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enormous number of footnotes in the briefing by both sides,

it -- I could use some guidance and some help on what you view

as the key issues.

So how do you want to do this? Sound like plaintiffs

want to go first.

MR. DOYLE: If we could, your Honor, yes.

THE COURT: Sure.

MR. DOYLE: Could I reserve five minutes for a

rebuttal?

THE COURT: Yeah. This is not going to be as formal

as an appellate argument.

MR. DOYLE: Okay.

THE COURT: You can take the time you want. I want to

be done by noon, but -- and if we're done well before that, I

have no objection to that. But some of you traveled in from

out of town, and I'm happy to give you as much time as you want

to either make an argument or respond to one.

So why don't you go ahead. I'll probably interrupt

you with questions, and I may ask questions of either side even

if you have the floor.

So but go ahead, Mr. Doyle.

MR. DOYLE: Thank you, your Honor.

Your Honor, in this case, there is no question that

there were employees at PNC Bank who were overtime-eligible who

worked off-the-clock overtime. There isn't any question that

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that happened.

There isn't any question also that there were

frequently instructions from managers at branches that

employees were not to record their overtime hours, and there

were various ways that the managers in the branches carried out

that practice.

The off-the-clock overtime happened in three typical

scenarios most often: 

An interrupted meal break where someone might have

been a full-time teller, and during their half-hour lunch

break, someone comes and gets them in the break room and said,

"We're busy. Please come up front." That happened.

The second way is there are people who made visits

outside of branches to try and drum up business for the bank.

The third way -- and they did that on their own time,

off the clock.

The third way that it happened is there were meetings

and work obligations that people had before and after their

scheduled shifts. Some of the managers said, "We want you here

20 minutes before your shift starts," or "five minutes before

your shift starts, and don't record the time."

There were other branches where they said, "We want

you to balance your drawer, but you have to clock out at the

end of your scheduled shift. And if it takes you an extra

20 minutes, you're not to record that time."

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All of this evidence is collected in our opening

papers. I can discuss any of it in more detail.

But what it leads us to is a conclusion that there was

an unofficial policy or practice at the bank.

THE COURT: You concede that the stated policy was no

overtime without getting paid.

MR. DOYLE: Absolutely.

THE COURT: All right. Is there a -- one of the

things that struck me as I went through all these is do you

have anything above the branch manager level that there is --

you can -- and I'm not saying you can't draw a conclusion of an

unofficial policy based on a series of anecdotes.

But it might also be a series of anecdotes.

MR. DOYLE: Mm-hmm.

THE COURT: And that is where I'm -- I had some

question. One -- and I'll focus on that a little more.

Do branch managers -- are they judged on profitability

at the branch? In other words, is there an incentive for an

individual branch manager to not want to pay employees overtime

because there is profitability measurement at the branch level?

MR. DOYLE: Ms. Flores Poole, the former manager at

the Broadway and Berwyn branch, describes the incentives that

the managers at the bank faced.

THE COURT: Okay. What are those?

MR. DOYLE: She says, for example, that "We were under

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constant pressure to generate new business." She also says,

"We were very thinly staffed," and she says in her affidavit

that's in the appendix that they had instructions at the level

above her that they were not to allow recorded overtime.

She's not the only one who says that. There are other

managers who said the same thing, and we have that from

PNC Bank documents.

THE COURT: All right. Let me stop you, though.

Trying to get new business doesn't go to the expense side of

the ledger at a branch.

MR. DOYLE: It doesn't, your Honor, but it goes to the

scrambling around trying to get the work done side. And that's

the situation that Ms. Poole describes, that they were thinly

staffed, barely able to cover the obligations that they already

had. And then when something came along, like a chance for an

employee to go down the street and try and drum up new

business, they had no hours in the budget for it. That's what

she describes.

THE COURT: Well, that's where I'm going on this. Is

there a disincentive for a branch manager to have overtime --

have employees ask for overtime or ask to be paid for overtime?

It may be that's not part -- if there's nothing from the bank

saying -- certainly there's nothing directly from the bank

saying don't pay overtime.

And if there is something that doesn't state it

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directly, but it says you have a set number of -- you have a

budget for what your employees are going to be paid, the

expense for salary, there -- you know, you have a plus or minus

on overtime of 10 percent or 20 percent, if you go over that,

you, the branch manager, will not be eligible for a bonus or

you will not be eligible for some kind of merit pay increase.

Is there evidence of that at all?

MR. DOYLE: There is not. And I don't know the

specific reason why so many managers did it, but it happened

over and over again.

THE COURT: Well, that's -- I mean, things don't

happen unless there's a reason. And if the reason is there

just was not enough people to cover all the actions that should

have been covered, I'm not sure that's a policy, as opposed to

inefficiencies by the branch manager.

MR. DOYLE: But, your Honor, if it's widespread, it's,

in effect, an unofficial policy or practice. And for the

workers, it doesn't matter why it is that their managers are

telling them to do that. They're still not getting paid for

the overtime that they're working.

THE COURT: Understood. And it's -- it's -- if

they're not getting paid for it, they have a legitimate beef on

it.

But we're here to decide whether or not there's common

questions of fact or whether -- and really what I've -- what

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I'm left with, having read a lot of this, is, do we have any

common questions that would be resolved at trial, or would we

be resolving dozens and dozens of anecdotal situations?

MR. DOYLE: I understand.

THE COURT: And that's what troubles me, because I'm

not sure -- if it's the latter, a class mechanism is not the

way to resolve it.

MR. DOYLE: I disagree, your Honor.

THE COURT: All right. Go ahead.

MR. DOYLE: Even if we were at that, I would disagree

with that. But we aren't there.

THE COURT: All right.

MR. DOYLE: Let me tell you the first reason why we're

not there. There's two ways -- and this is -- I've thought

about this same thing that you're getting at in maybe a

slightly different way. There's two ways that you could prove

an unofficial policy or practice. You could prove it top-down,

or you could prove it bottom-up.

And to prove it top-down, you would hope to find the

great e-mail from someone senior at the bank says, "Ah, to heck

with whatever it is Policy No. 105 says in writing in the

manual. We all know that we all have to have off-the-clock

overtime and don't dare let anyone record it."

That would obviously be the sort -- those kinds of

cases don't get litigated because everybody sees what a massive

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problem that is. We don't have that e-mail here. I don't have

a single instruction that guided everyone and led to that.

There is some evidence in addition to it happening

over and over again. There is, for example, the e-mail that's

in our appendix -- and I can get you the exact page cite --

where they're encouraging people to drum up business while

you're out on your lunch hour shopping. Plainly this is

someone from above the branch level instructing branches that

they ought to be working off the clock. 

There was a promotion that went out --

THE COURT: Well, does that encourage them to work off

the -- maybe work -- it encourages them to work during lunch

hour. But doesn't the official policy say if you're working

outside of your normal hours, you should record it and you'll

get paid for it?

MR. DOYLE: But, your Honor, that didn't happen. So

why didn't it happen?

So you add that -- I agree, that e-mail is not a home

run. That e-mail doesn't create the top-down kind of proof.

THE COURT: Mm-hmm.

MR. DOYLE: But it is circumstantial, and it fits very

well with what it is that we saw happening all over in these

branches. That's the first piece of it.

The second piece of it, though, Judge, is you could

prove it from the bottom up. You could show that this happened

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so often and so similarly in so many branches that it is

plainly an unofficial policy or practice.

That's exactly what happened in the Ross v. Citizens

Bank case. In that case, it was a statewide class, the entire

state of Illinois. There were affidavits from 90 different

employees, all class members, describing that there was an

off-the-clock overtime practice at the bank. That's what

happened.

We have better proof than that here, Judge, because we

aren't relying on 90 statements from people that would be class

members; we're relying on PNC Bank's documents. And PNC Bank's

documents show that people worked off the clock.

THE COURT: Those were all complaint -- was the

majority of your exhibits --

MR. DOYLE: Yes.

THE COURT: And I can't tell you I studied every one.

MR. DOYLE: I understand.

THE COURT: But when I flipped through them, it looked

like the majority of them were you were taking information from

the complaint files that were the subject of the -- of a lot of

back and forth earlier when you were in court.

MR. DOYLE: Yes. They call them ERIC tracker reports.

THE COURT: Right.

MR. DOYLE: It's Employee Relations, their database.

And the investigator would go out. When someone would say,

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"There's an overtime issue at Branch A," the investigator would

go out and would write down who said what to whom; who did what

kind of work around here.

The problem is, Judge, that what ended up happening is

they didn't bother to pay everybody. They often disciplined

the managers, but there are dozens of examples that we've

already identified from those documents where there are people

who said, "I was subject to an off-the-clock overtime policy,

but I" -- the documents show that they never got paid. There

is nothing produced in the record that shows that those people

got paid. This is the chart. It's at pages 159 to 161 in our

appendix.

And we list 50 people who turned up in those

investigation reports describing the off-the-clock problems

that they had who were never paid. They don't appear on the

bank's master list of payments.

The bank's master list is the document that's

immediately before that in the appendix at pages 154 to 158.

And in the bank's master list, they say, "Here are all

the investigations we did. Here are all the people we paid.

Here's the amounts of money we paid."

So we went through in the course of preparing this

motion and compared those investigation reports to what they

actually did.

You can see those 50 people that are at 159 and 160 in

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the appendix are all identified by name already. And there's a

cite for each of them for where their reference is otherwise in

the appendix.

We already know that there are 50 people who worked

off-the-clock overtime at these various branches, and they

weren't paid. They weren't paid as a result of these

investigations. And the documents show it as plainly as could

be.

THE COURT: Well, is there anything in the report that

indicates why they weren't paid? In other words, was it -- was

the complaint found to be unsubstantiated?

MR. DOYLE: No. For example, your Honor -- no. And I

can give you a couple of -- a couple of reasons --

THE COURT: All right.

MR. DOYLE: -- why it happened that way.

Those 50 people don't turn up on the master list of

who got paid. And in the investigation reports along the way,

they're not -- they're not mentioned.

For example, at the -- at the branch at Chicago -- the

Chicago branch at 87th and Cottage Grove --

THE COURT: All right.

MR. DOYLE: -- they fired manager Gloria Gayle from

the branch because she was requiring employees to not record

their overtime.

There are two people from this branch, Ruth

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St. Fleurose and Tanya Guerrero. They both said that their

meal breaks in the course of the overtime investigation had

been missed or interrupted. The master list that's shown at

154 to 158 of the appendix makes no mention of Ms. St. Fleurose

or Ms. Guerrero. Neither one of them were paid.

THE COURT: Do you have -- have you talked to either

one of them?

MR. DOYLE: We have not.

THE COURT: Okay. So the basis -- your basis for

saying they weren't paid is the list from 154 to 159 are

those -- or 158 are those people who were paid.

MR. DOYLE: That's right.

THE COURT: You go -- you start first with the

complaints, and you see a complaint that says manager got fired

because she had a policy -- branch manager got fired because

she told employees to work over lunchtime but don't record it.

MR. DOYLE: Mm-hmm.

THE COURT: You have names of people who were -- in

the complaint filed, you have the names of Guerrero --

MR. DOYLE: Yes.

THE COURT: -- and -- okay.

MR. DOYLE: Yes.

THE COURT: So Guerrero and --

MR. DOYLE: St. Fleurose is the other.

THE COURT: -- St. Fleurose names are in the complaint

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file or the ERIC file --

MR. DOYLE: Right.

THE COURT: -- that indicated these were the -- were

they the only employees who complained about it, or --

MR. DOYLE: No, there were some at that branch who did

get paid.

THE COURT: Okay. And -- pardon me?

MR. DOYLE: I'm sorry, your Honor. I didn't mean to

interrupt.

THE COURT: Oh, no. There were some that got paid?

MR. DOYLE: Mm-hmm.

THE COURT: All right. So you take the complaint

file. You have a branch manager fired. You have let's say

four people who were implicated in the -- or mentioned in the

ERIC file as being told to work over lunch but don't record it.

MR. DOYLE: Mm-hmm.

THE COURT: You then go to the pages 154 through

158 --

MR. DOYLE: Yes.

THE COURT: -- which are the -- yeah, 158, which are

the listing by the bank of those who were paid, and what you

then extracted -- not just for 87th and Cottage Grove, but

DePaul, Loves Park, North and Homan and a variety of other

locations, you extracted those names of people who were

identified in the complaint file who are were not on the list

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of people paid. And that's where you come up with the

50 names.

MR. DOYLE: That's right.

THE COURT: Okay. All right. 

MR. DOYLE: The next page, the chart that's

immediately after that list of 50 --

THE COURT: Right.

MR. DOYLE: -- is six people whose names do appear on

the -- is six people whose names do appear on the master list.

THE COURT: And it's page 161?

MR. DOYLE: Correct. But no overtime was paid to

them.

THE COURT: Oh, all right. So they're on the -- I

thought the list of people on the master list were those who

have been paid.

MR. DOYLE: No, I'm sorry. The 159 and 160 is the

people whose names are nowhere on the official master list.

Okay?

THE COURT: Right. Okay.

MR. DOYLE: The master list makes mention of some of

these other people but shows that they weren't paid.

THE COURT: I see. Okay. All right.

MR. DOYLE: So we have already at this stage in this

case identified 56 people who have said that they worked

off-the-clock overtime hours and that they weren't paid.

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The branch proof is replete with instructions from

managers and employees saying, "We understood that we were not

to record our overtime hours."

This is an awful lot like the Ross v. RBS approach

that Judge Lefkow certified in that case, and the 7th Circuit

affirmed it.

THE COURT: And what is the -- there is some

controversy over the --

MR. DOYLE: The status of that case?

THE COURT: The status of the 7th Circuit affirmance

of Judge Lefkow.

MR. DOYLE: Here's what happened. After -- the

7th Circuit affirmed Judge Lefkow's certification order. After

that --

THE COURT: That was post Dukes, post Wal-Mart v.

Dukes.

MR. DOYLE: Correct. And after the Comcast decision

came out, there was a petition to the U.S. Supreme Court. The

U.S. Supreme Court issued a grant, vacate, and remand order and

sent it back to the 7th Circuit. It's one of these

two-sentence orders that says, you know, "We grant the

petition, vacate the 7th Circuit's ruling, and remand it for

further consideration."

The -- it goes back to the 7th Circuit. Before the

7th Circuit did anything with it, the case was transferred to

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New York to be part of a larger settlement.

THE COURT: Okay.

MR. DOYLE: The Ross case was never -- was never

vacated by the 7th Circuit. The 7th Circuit case, according to

some of the cases that we cite in our brief, remains good law

in these circumstances. Moreover --

THE COURT: Remind me what the Comcast case said.

MR. DOYLE: Pardon me?

THE COURT: Remind me what the Comcast case said.

MR. DOYLE: Comcast is an antitrust case, and the

plaintiffs in that case had four theories of damages, three of

which got knocked out, only their damages model was not

flexible enough to allow for only Damages Model D. It was

impossible to unpack the overcharge in that case.

The Supreme Court said in Comcast that that was a

failure of classwide proof because there was no longer a way to

measure impact or damages on a classwide basis given that

circumstance. Comcast was solely about how damages are proven

on a classwide basis.

By the way, we've not asked for damages on a classwide

basis.

THE COURT: I understand.

MR. DOYLE: Your Honor, there's another way that all

of this that we've paid attention to what's going on in the

cases and that distinguishes us from Dukes, from Comcast, from

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a lot of the cases that have really tried to rein in abuses in

the class action practice, where the courts have tried to do

that.

We have been careful, your Honor, to not try and do a

blunderbuss nationwide class or to try to not do a statewide

class. There are 200 branches in the state of Illinois, I

believe, of PNC Bank. We chose the 27 where you can see that

this unofficial policy or practice exists.

THE COURT: All right. Yeah, I -- well, Illinois, I

guess, there's southern Illinois or -- there's Chicago,

Wisconsin, and then there's the rest of Illinois.

MR. DOYLE: Mm-hmm.

THE COURT: The 23 branches you are seeking to -- in

your class definition are all in the Illinois/Wisconsin?

MR. DOYLE: It's 27 branches.

THE COURT: 27, rather.

MR. DOYLE: All, I believe, except for one. There's

one in Bloomington-Normal --

THE COURT: Okay.

MR. DOYLE: -- that's -- that's listed in the 27.

THE COURT: All right. And are the 26 all in the

Chicago area, or are any of them in Wisconsin?

MR. DOYLE: They're -- if you call Rockford the

Chicago area.

THE COURT: It is.

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MR. DOYLE: There's none in Wisconsin.

THE COURT: Okay. 

MR. DOYLE: If you call Rockford the Chicago area,

then yes.

THE COURT: Okay. All right. How did you pick that

group?

MR. DOYLE: We went through the investigative reports

and tried to figure out where -- where do we have evidence of

this and tried to be conservative.

I believe, your Honor, that this practice happened all

over the state. And the reason I believe that is because these

pressures were all over the state and because of the way that

we see it in the branches that we've got.

But to avoid sweeping in branches that could make for

a certification that would be overbroad, we focused on these

27. It's a conservative approach.

THE COURT: Is there any commonality between the 27

other than what happened at each particular branch?

MR. DOYLE: The only --

THE COURT: In other words, is there a -- I know you

talked about top-down/bottom-up. But is there anything that is

common among the 27 branches other than your -- other than

complaints about one of these three forms of overtime abuses?

MR. DOYLE: To be fair, your Honor, that's the most

important common thing about them --

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THE COURT: Right.

MR. DOYLE: -- is that all of them have the issue that

is up on this case. All of them have unpaid off-the-clock

overtime.

And all of -- and, yes, so there -- but is there --

are they all subject to the same district manager, for example?

No, I don't believe they are. Are they all in the same place

on the organizational chart? I don't believe they are. Are

they all in some same reporting structure? I don't know that.

I suspect that they are not.

THE COURT: Given what the defendants have put out in

an affidavit, I don't think they are.

MR. DOYLE: Well, your Honor, I don't know that that

matters. And the reason it doesn't matter is, for example, in

Ross v. Citizens Bank, they certified a statewide class with

more than 100 branches, some of which they had no proof at all

that there was off-the-clock overtime happening at.

And the Court there certified a statewide class, and

it proceeded. And surely they weren't all part of the same

business units. There wasn't proof that they were all part of

the same management team, that they were all part of the same

organizational chart.

The thing is, your Honor, the most important common

fact is the most important fact in the case. And the most

important fact in the case is there was off-the-clock overtime

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and it happened over and over.

There are other issues that we can try classwide. We

can try classwide how did the bank respond to all of this. In

other words, did the bank act willfully, or did the bank act in

good faith?

Those not only can be tried classwide, they ought to

be. And the reason they ought to be is because everyone ought

to be working from the same statute of limitations.

Willfulness drives the statute of limitations. Everyone ought

to be working from the same measure of damages as a

possibility, the same methodology.

Is there liquidated damages? Good faith is about

liquidated damages. We can try those issues on a classwide

basis because there is -- and that reminds me of something

else, your Honor.

There is another way that all of these branches have

something in common: They were all subject to an

investigation. They were all subject to an investigation that

left people unpaid, an investigation that didn't go through and

figure out who in this branch didn't get paid. 

At the Bloomington branch, the manager told people in

a meeting that if you've got overtime hours, record them next

week, and that will keep it off this week's budget.

THE COURT: Do you have anything from the 50 people

that were not on the list that indicates they think they're

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entitled to overtime?

MR. DOYLE: Other than what they say in the

investigation reports where they say that they worked off the

clock.

THE COURT: Okay.

MR. DOYLE: No, I do not. I do not have affidavits

from them. I do not have witness statements from them.

THE COURT: Wouldn't you expect them to complain if

they see a coworker who presumably was similarly situated who

complained along with them? The coworker gets paid and they

don't. Wouldn't you have -- I would be surprised if -- I'm

surprised there's this many people who were not paid if there

were others in the same boat who did get paid.

MR. DOYLE: I'm not surprised, your Honor.

THE COURT: All right.

MR. DOYLE: And the reason I'm not surprised is in

this economy, employers get more than they do in a different

economy. People are worried about their jobs, your Honor. And

people aren't as likely to complain or rock the boat in this

economy. It doesn't surprise me.

THE COURT: But why would the bank, if they're going

to pay some, not pay them all? To --

MR. DOYLE: I -- perhaps the bank paid the squeakiest

wheels. Perhaps the bank paid the people who complained the

loudest without really trying to figure out what's the scope of

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the problem? Who really is owed money here?

THE COURT: Well, you went through these complaint

files very carefully, as did the defendants. Is there anything

in the complaint files to indicate any reason why the 50

weren't paid? In other words, was there something about the

complaint they made themselves? In other words, was there

some -- basically a studied reason why they didn't get paid?

MR. DOYLE: No. I don't believe so, your Honor. And

there are -- there are examples of that that we didn't include

on that list.

THE COURT: All right.

MR. DOYLE: There are examples of people who the bank

said, well, you've asked for 90 hours; we'll pay you for 66.

Or you've asked for -- in the case of Tess Claveria from the

Broadway and Berwyn branch, she asked for I believe 68 hours,

and they paid her for four.

Your Honor, there is -- there are people who they made

decisions about. These people they didn't. And these people

they did not say so and so is definitely not entitled to

overtime. Therefore, we're not going to pay them overtime.

Your Honor, they have branches where they fired the

manager and then didn't pay the people who complained. This

was not an effort to get to the bottom of the overtime problem

in the sense that they wanted to make sure everyone got their

dollars. This was -- if it was anything by the bank, it was an

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effort to put out a fire and move on. It was an effort to stop

the bleeding and move on.

That's not a good-faith effort to comply with the Fair

Labor Standards Act, and that's the kind of conduct that

exposes companies to liquidated damages under that statute.

That ought to be tried on a classwide basis.

THE COURT: Well, if we had a trial on a classwide

basis, what would your -- other than Ms. Bell, who would you

call?

MR. DOYLE: Who would we call? We would put in a lot

of it with the documents that we've already got. We would put

in some of it with hostile witnesses from the defendants. I'd

put on some of the authors of these reports and find out what

it is that they did and find out -- Margaret Alvarez is someone

I would put on the stand in a moment at a trial, your Honor,

and she is the employee relations person who wrote a lot of

these reports.

The questions -- the way we would try this case we

laid out in the trial plan that we put in our brief. And --

THE COURT: Well, I saw that. And I had a question on

that.

MR. DOYLE: Yes.

THE COURT: It says at the top of page 12 of your

brief --

MR. DOYLE: Right.

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THE COURT: -- "Ms. Bell will" -- well, on the bottom

of 11, it says, "Ms. Bell will offer evidence of her own

experience," and the rest of your paragraph deals with that.

And that's fine. She can do that in a class case; she can do

it in an individual case.

But then moving to page 12, you say, "Ms. Bell will

also prove the existence of PNC Bank's companywide unofficial

policy or practice that required employees to work overtime on

an off-the-clock basis."

How will her testimony of her own individual

circumstance offer evidence of a companywide unofficial policy?

MR. DOYLE: Her manager's testimony can do that, your

Honor.

THE COURT: And her manager was?

MR. DOYLE: Is Letticia Flores Poole. And her manager

said, "I didn't create this system. I didn't come up with this

idea. This was pressure that was imposed upon me from the way

the bank is set up."

We can put her on in the course of Ms. Bell's case,

and she would also offer proof that would be probative of was

there an unofficial policy or practice at the bank.

THE COURT: Now, she was the branch manager, correct?

MR. DOYLE: At Broadway and Berwyn. That's right.

THE COURT: Does she identify -- remind me -- and she

was deposed, correct?

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MR. DOYLE: She was not.

THE COURT: She was not deposed.

MR. DOYLE: She was not. We have an affidavit from

her. The defendants never took her deposition.

THE COURT: All right.

MR. DOYLE: She's a former employee.

THE COURT: Right. But her affidavit says what?

MR. DOYLE: Her affidavit says that I -- we were

thinly staffed. We had pressure to -- it's -- it appears in

the appendix. I can point you to it fairly quickly.

THE COURT: Sure.

MR. DOYLE: It appears in the appendix -- I don't want

to misstate what it is that she says.

THE COURT: I remember seeing it --

MR. DOYLE: Yes. It's at pages -- 

THE COURT: -- when we were fighting about discovery.

MR. DOYLE: -- 8 to 11 of the appendix.

THE COURT: All right.

MR. DOYLE: She says, "We had a lean staffing model.

We had pressure to generate accounts." 

She says, "PNC Bank would not permit me to report

overtime for the branch." 

She says that she passed along PNC Bank's solution as

it had been communicated to her, to the branch employees,

telling them that overtime would not be permitted.

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THE COURT: Say that last -- what paragraph are you on

for the last --

MR. DOYLE: On page 10.

THE COURT: Yeah.

MR. DOYLE: (d) and (e).

THE COURT: All right. Give me a moment to read it.

Is Romis the person who has passed away?

MR. DOYLE: She is deceased. That's right, your

Honor.

THE COURT: Is she the only regional manager who there

is -- admittedly, it's hearsay, but the only regional manager

who says that PNC would not permit a branch manager to report

overtime?

MR. DOYLE: I'm looking for one other thing.

The -- she's the only one I think of at the moment.

THE COURT: All right. No, and if it's in there.

MR. DOYLE: There was one other thing, I thought, and

I don't see it, your Honor.

THE COURT: All right.

MR. DOYLE: The -- and she says she -- she did not

create the situation. It was dictated to her by the business

model created by the bank, created by the bank's top

management. That model relied on thin staffing, required

branches to meet aggressive targets on new business.

THE COURT: All right. Was Romis ever -- did she ever

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give an affidavit?

MR. DOYLE: She did not. She died before this case

started.

THE COURT: Okay. All right.

Okay. Go ahead.

MR. DOYLE: So, your Honor, it's one of these -- it's

one of these cases where I do not stand here in front of you

with that e-mail from a regional manager that was in charge of

all of these branches. Instead, we're doing a bottom-up style

approach, relying on PNC Bank's documents. We --

THE COURT: Okay. Well, one of the things -- two

questions.

MR. DOYLE: Yes.

THE COURT: Is Ross your best case?

MR. DOYLE: Ross, I believe, is the case that is most

on point. There are others that talk about unofficial policy

and practice.

THE COURT: Right. But Ross you would view as the one

that's most analogous to your situation.

MR. DOYLE: I think that's right. It's a bank. it's

off-the-clock overtime. Class was certified.

THE COURT: Okay. And the 7th Circuit affirmed it.

MR. DOYLE: Correct.

THE COURT: Affirmed the objection to it and then, as

said, there's some fights about its vitality. But I think the

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7th Circuit has at least cited it --

MR. DOYLE: Yes, they have.

THE COURT: -- since the time the Supreme Court asked

it to revisit the decision based on Comcast. Did they outright

reverse it, the Supreme Court, or did they just --

MR. DOYLE: It's a GVR order. And it's grant, vacate,

and remand is what they stand for. And then there's some

discussion among the district courts what that means.

The one thing that's true is there's no question that

Judge Lefkow's opinion remains standing. Judge Lefkow's

opinion had been affirmed by the 7th Circuit, and Judge

Lefkow's opinion is certainly still good law.

THE COURT: Okay. What about -- you know, the

defendants at pages I think 21 or 22, maybe 23 of their brief,

go through a long list of cases where class certification has

been denied when there is an official policy prohibiting the

nonpayment of -- or prohibiting people from not getting paid

for overtime. And the Court's commenting that with an official

policy, we are often to anecdotes when we are considering the

exceptions where people violate that policy.

I get it if an entity has no policy and then the

practice, similar to Monell in a 1983 situation, the practice

becomes the policy. But when you have a written policy that

says no, it seems like there's an overwhelming number of cases

that have not certified classes in those situations.

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MR. DOYLE: There are two that have that I can think

of as I stand here.

THE COURT: All right.

MR. DOYLE: One of them is Ross. In Ross, there was

an official policy --

THE COURT: Right.

MR. DOYLE: -- you must pay overtime. That did not

sway Judge Lefkow, and it did not sway the 7th Circuit. Both

of them deal with that fact in their opinions.

The second case is McReynolds v. Merrill Lynch. And

in that case -- it's a race discrimination case; it's not an

overtime case. But there was an official policy at Merrill

Lynch we do not discriminate on the basis of race.

And the 7th Circuit said that there were two ways that

would support a race discrimination claim in that. It had to

do with staffing, and it had to do with work assignments. It

was a disparate impact case.

And even though there was a written policy at Merrill

Lynch that we will not discriminate based on race, race

discrimination happened at the bank -- or at the investment

bank, and the class certification was allowed because there

were these practices going on that were flatly inconsistent

with the major premise that the investment bank was touting as

their defense.

In addition, your Honor, there's one more fact not to

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lose track of. If it is correct, if the written policy is a

defense for the bank, that's a classwide issue.

THE COURT: How so?

MR. DOYLE: Because it would apply to everybody. If

you certified the class, it would apply to everybody. That can

be answered for all class members. Is that a complete defense

or not a complete defense? That can be answered for the entire

class and, in fact, should be.

THE COURT: Well, how would that -- there's a jury

demand in this case, correct?

MR. DOYLE: Correct.

THE COURT: So how would a jury in a class action --

how would that play out?

MR. DOYLE: We have -- in the trial plan, we -- it's

like under Rule 23(c)(4), you certify individual questions for

trial.

THE COURT: Right.

MR. DOYLE: We list what the questions are. One of

the questions is, does PNC Bank's written policy provide the

bank with an absolute defense in this case?

THE COURT: Well, if it's an absolute defense, isn't

that a legal question, or would that be a factual?

MR. DOYLE: Well, I don't know if it's a factual or --

I haven't thought that through, your Honor, to be honest.

THE COURT: All right.

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MR. DOYLE: And if it is a jury question, you could do

it by special interrogatory. You could do all of these by

that.

THE COURT: All right. But if it's a jury question,

they come in and -- you start, but maybe you put it in too.

You put in their written policy because they're going to do it

in their case if you don't.

MR. DOYLE: Mm-hmm.

THE COURT: They'll put in their -- you'll put in

their written policy to blunt the effect of it. And then you

will bring in what sounds like will be scores and scores of

people who will say maybe that written policy existed, but I

didn't get paid overtime and I worked overtime.

MR. DOYLE: Scores and scores would be true if we were

talking about a nationwide class. We're talking about

something much smaller than that. There are documents -- we

could put in one witness who would put in a bunch of these

reports that could show without a doubt that there was

off-the-clock overtime happening at a whole list of branches.

THE COURT: Well, how would you -- what's your

evidentiary basis to put in the reports? Were they admissions?

MR. DOYLE: Sure they're admissions.

THE COURT: You've got hearsay within them, although,

you know -- are they really a -- they may very well be

admissions, but would there be an issue about whether the

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variety of hearsay statements within the reports ought to be

admissible because --

MR. DOYLE: I don't think so.

THE COURT: -- the -- PNC is collecting the

information and taking statements from people. These are not

necessarily attributable statements to PNC the entity.

Now, maybe they are. And I'm just -- I'm a little

confused on, you know, typically just about anything produced

by a party you call an admission. It's an easy call on an

evidence question.

But here where you have a variety of statements of

people who are not subject to cross-examination, you know,

you'd put on the investigator or the -- there's, what,

20 investigators. I don't know how many were involved here.

MR. DOYLE: There were two investigators assigned to

the state of Illinois.

THE COURT: Okay. So you've got two investigators.

And really the cross is going to be, well, was this person

telling the truth when they told you this or weren't they?

That's not effective cross-examination. I'm not sure that's

fair to either side and fair to the jury.

Ultimately wouldn't you -- wouldn't you have to bring

in the people who claim they worked and didn't get paid? And

if you do that, aren't we off into an area of -- isn't that

what we're not supposed to be doing in a class action, where

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you get dozens and dozens and dozens of people coming in?

Because even if it's not scores, it's going to be dozens and

dozens.

MR. DOYLE: Well, your Honor, we have -- our standard

of proof would be by preponderance a class certification.

THE COURT: Right.

MR. DOYLE: And then at trial, we'd have to prove

those facts by a preponderance also.

Do we have to prove for all 600 class members that

they worked off-the-clock overtime? I don't think so. I think

we have --

THE COURT: Well, Ross had --

MR. DOYLE: They had 90.

THE COURT: 90 affidavits, right?

MR. DOYLE: Yes. They did not have statements from

Citizens Bank saying that it had happened.

THE COURT: Yeah, but these are -- but they were --

you have statements from investigators who say people said

something.

MR. DOYLE: Correct.

THE COURT: You don't have -- do you have anything

from the people themselves?

MR. DOYLE: Well, we have --

THE COURT: You've got the named plaintiff.

MR. DOYLE: We have the named plaintiff. We have

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Ms. Poole. We have Mr. Cobb's affidavit describing what

happened at DePaul.

THE COURT: Mm-hmm.

MR. DOYLE: It would be one thing, your Honor, if we

had one stray little document that looked unreliable. This is

how the bank addressed the problem. That's the reliability to

it.

THE COURT: I see.

MR. DOYLE: The bank sent out the employee relations

investigator to try and figure out what do we do because

they're saying out there that somebody's working off-the-clock

overtime.

I don't think the bank is going to want to object to

these things getting in. Maybe they will.

But, your Honor, the bank wants to try and prove these

in -- put these in because the bank will want to try and say we

responded to overtime as it was happening out there. The real

question in this case -- and it can absolutely be tried on a

classwide basis -- is, was there an unofficial policy or

practice? We don't have to prove that for 600 individual

instances.

And is it more sensible, Judge, to have one person

prove that and then fire up another jury and have another

person prove it and fire up a third jury and have another

person prove it and a fourth jury and have another one prove

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it?

THE COURT: Well, that's always the argument of

plaintiffs posing class certification. The question is,

though, is, in my mind -- is at what point do you -- what is

the quantum of evidence you need to convince me to certify a

class of a -- basically a series of vignettes that in total

amount to an unofficial policy? Is there a magic number? Is

it, you know, you have to come up at this stage with -- not

with your trial proof, but with enough that I -- is there any

law about what you need to -- short of what you put in at

trial, which is going to have to be more. Doesn't have to be

more, but it certainly can be more, and you don't have to prove

your case as if you were trying it in front of me for me to

certify a class.

But there's got to be a level of proof that makes this

a -- makes an unofficial policy a -- makes a series of acts by

individuals at branch levels and turns it into an unofficial

policy.

Policy is a classwide issue. But to get to that, I

have the bank saying we have a bunch of rogue branch managers

or -- that's the primary one -- rogue branch managers who are

telling people don't sign up for overtime and a fair amount of

evidence that, when caught, they get fired or disciplined in

some way.

So at what point does what they say -- where do you go

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from these vignettes to what would amount to an unofficial

policy? I guess that's where I'm going.

MR. DOYLE: I guess I don't have a number for you.

The test --

THE COURT: No, there probably isn't.

MR. DOYLE: But the test is a preponderance of the

evidence. Is there a -- at this stage. Is there a

preponderance of evidence to suggest that this can be tried on

a classwide basis? And of course it can based on the mountain

of evidence that's in front of you. It kept happening.

The other safeguard that we have on all of this is

that we have been careful to avoid sweeping in branches that

would be an overreach. So we aren't including branches from

Peoria or from suburban St. Louis.

THE COURT: Well, what's the difference between Peoria

and Rockford? Why would you include Rockford and not Peoria?

Why would you include Bloomington and not Peoria? What is

common between all your classes and Rockford and Bloomington

and not Peoria? Why do you have --

MR. DOYLE: The proof that I have.

THE COURT: All right. All right. That's --

MR. DOYLE: I don't have proof for Peoria.

THE COURT: All right.

MR. DOYLE: Wouldn't surprise me --

THE COURT: Well, that's a little different.

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MR. DOYLE: Wouldn't surprise me for a moment if

branches in Peoria had exactly the same thing going on. But

because I can't stand here in front of you and say by a

preponderance of the evidence Peoria ought be included we

didn't include it.

THE COURT: All right. So the basis of your including

27 branches is I assume you have complaint files indicating

complaints at those 27 branches.

MR. DOYLE: Correct.

THE COURT: Okay. And if they're not -- if you didn't

have a complaint or ERIC file for a branch and it was roughly

in the geographical area of Chicago, you simply didn't -- well,

that's really where your discovery was focused anyway.

MR. DOYLE: As it turns out, that's where they all

happened.

THE COURT: Right.

MR. DOYLE: There's one exception to that, I believe.

I believe there is not an official ERIC report for the DePaul

branch.

THE COURT: All right.

MR. DOYLE: We have Mr. Cobb's affidavit, and we have

him describing the conversations he had with the ERIC

investigators where they told him leave that alone; we're not

going to investigate that farther.

THE COURT: All right. 

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MR. DOYLE: And he describes 37 people in his branch

who worked hours that he thinks may have been off the clock,

but no one ever wanted to look at it and figure it out.

There is one other fact, your Honor.

THE COURT: All right.

MR. DOYLE: There are many cases beyond Ross and

McReynolds. Ross and McReynolds I answered the way I did

because in both of those there was the major premise written

policy that seemed to be flatly inconsistent with what was

actually happening out in the workforce.

There are many other cases where unofficial practice

or policy classes have been certified. We cited the Chavez v.

Stoltzner Mason case in our reply brief at page 4. That's a

common practice on off-the-clock work.

We cited Clark v. Honey-Jam in our opening brief at

page 16. That's a tip credit case where there was common

practices about what they required tipped employees to do and

whether they abused the tip credit rules.

There's Driver v. AppleIllinois. Very interesting

case, also a tip credit case. That's cited in our opening

brief at page 16.

There's Gallardo v. Scott Byron. That's in our reply

brief at page 12. That's a 216(b) case, but in that case --

and it's just from a few weeks ago. That's an off-the-clock

case, I believe.

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Jankuski v. Health Consultants is in our reply brief

at page 12. Also a 216(b) case.

Courts certify these classes all the time based on an

unofficial policy or practice that is in violation of the wage

laws.

THE COURT: Let me go back. This is more fundamental,

I guess. You have a two-count complaint. One alleges a Fair

Labor Standards Act case, which is an opt-in class.

MR. DOYLE: Yes.

THE COURT: And then one alleges a violation of the

Illinois wage protection laws, which is the Rule 23 class.

MR. DOYLE: That's right.

THE COURT: Remind me of the history of your opt-in

class because I know there have been very few, if any, opt-ins.

But give me -- remind me of when -- what notices have been sent

out, when they were sent out, what your return have been on all

that.

MR. DOYLE: Okay. No notice has gone out yet. This

is the first step asking for notice to go out to the class. In

these cases you do a two-step notice where in step one you look

and see is there some evidence -- this is Jirak is the case

that's the lead case in this district from Judge Castillo --

and say is there some evidence that people are similarly

situated. You send out the notice.

After you get the opt-ins and all of the discovery has

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then been completed on the merits, the Court often does a

decertification motion at stage two and says now we see who it

is that we have. Are they really similar now that we know the

opt-in list? 

No notice has gone out here. We have one opt-in who

has opted into the case, even though notice has not gone out.

Her name is Tess Claveria.

THE COURT: All right. So the practice would be to

have -- and I'm -- I'm not -- I haven't had these cases before,

so bear with me.

MR. DOYLE: Sure.

THE COURT: But the practice would be -- your

suggestion would be that -- what? How do the -- how does the

opt-in notice on a -- on the collective action and the Rule 23

class notice, how does that interact?

MR. DOYLE: It goes out in a single notice. And

people are advised of their rights under both statutes. If

they don't opt out, then they're in the Rule 23 class. If they

wish to participate under Illinois law, then they're -- they

would opt in as a response.

People only recover once, obviously, for the hours

that they work. They don't get to recover under both statutes.

But people would only recover once.

Some people will inevitably have both claims. Some

people probably will not.

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THE COURT: Why wouldn't the claim be the same?

MR. DOYLE: It's from the same core facts. What I

mean, some people would not have the same legal claim because

some people -- if -- for example, if Fred gets a notice and

Fred never opts out of the Rule 23 case, then he's proceeding

under Illinois law. If he also never sends in anything, then

he does not get FLSA rights.

THE COURT: Right. But if -- is there anything

different about what your recovery could be under federal law

versus state law?

MR. DOYLE: Slight differences. There are slight

differences in the math of how damages are calculated. Under

Illinois, there's a 2 percent punitive damages provision that

applies. And under federal law, there is, for example,

liquidated damages under the FLSA.

But that's to figure out at the very back end. The

fundamental feature of the proof, especially on liability,

isn't different for one statute versus another.

THE COURT: I think Judge Guzman said you can't do

both, and I think he got -- I think the 7th Circuit said, in

fact, that was proper to do.

MR. DOYLE: There's -- and the case is Ervin v.

Outback Steakhouses. That went to the 7th Circuit. And my

recollection is that it's Judge Wood in the 7th Circuit who

wrote that no, this could be managed. You can manage this on a

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notice and do both notices to a single class.

There have been some cases -- for example, we cite

this one in our brief. I don't have the page number in front

of me. But we cite Johnson v. Pinstripes, and I believe it's

Judge Gettleman. And he certified both notices to go out. 

THE COURT: All right. 

MR. DOYLE: And it's a -- I think a tip credit case at

one of these bowling alley restaurant places.

THE COURT: So procedurally, if I thought there

were -- the requirements of Rule 23 were met and the

requirements for a collective action -- for at least

notification of collective action were met, it would be done

simultaneously.

MR. DOYLE: That's right.

THE COURT: Okay. 

MR. DOYLE: And after that notice period, we would

have some idea of who had opted in --

THE COURT: Well --

MR. DOYLE: -- and also who had opted out, if anyone.

THE COURT: -- the defendants make much of the fact

only one person has opted in.

MR. DOYLE: Right.

THE COURT: But is that of any moment since there's

been no notice sent to people?

MR. DOYLE: It's of no moment for exactly the reason

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you said, because notice hasn't gone out. And there are cases

that say that also.

THE COURT: All right. Okay.

Go ahead, unless you --

MR. DOYLE: Your Honor, I think that we have offered

you the answer to the question this morning. And the question

is if this happened over and over again, what is the most

sensible response for the Court? Should we try and deal with

this to the extent that we can in one proceeding or should we

not? In other words, should we certify this for

collective/class treatment or not? 

And if we don't, there isn't any doubt about what

happens. Either there will be multiple lawsuits proving up the

same thing or maybe, just as likely, a bunch of people might

never pursue their claims.

A class case is superior to the alternatives if the

alternative means that people look at this and say the money

isn't worth it for me to bring an individual lawsuit. That's

the cases we cited in our reply brief on superiority.

THE COURT: That always happens. I mean, every class

that is not certified inevitably -- for reasons unrelated to

whether or not this is a better mechanism than not, there

are -- it's -- it's always easier for a plaintiff to join in

with a hundred other plaintiffs and have a single lawyer do it

for them than try and find a lawyer to collect on a $100 or

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$1,000 or even a $5,000 claim in federal court.

So that -- that I'm not -- that I don't find a

determinative fact. You're always going to have the situation

where if I deny class certification, people who are -- have to

live with that order are going to be worse off than if I

granted it.

MR. DOYLE: I understand. That's the reality that we

all live with.

THE COURT: Yeah, that's the reality of what attorneys

cost and what time is involved in bringing a lawsuit and

what -- you know, the bank has a single set of lawyers. I'm

not sure the -- if there were 100, 200 people that would have

to bring these claims individually if any of them brought them,

I don't know if they would go out and hire someone less

expensive than you.

MR. DOYLE: It -- it ought to matter, your Honor. And

the reason why it ought to matter is because if the alternative

is to leave people unremedied, to leave the bank with the

benefit of the work that the bank never paid for, that goes to

Rule 23(b)(3) superiority. A class mechanism is superior to

leaving people sitting in the -- in the winter without --

without any remedies.

Your Honor, the question is, is a class better? Can a

class be done? A class can be done. We've offered I believe

some thoughtful, some careful answers to the problems that the

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cases present. We offered a narrow class. We offered an

issue-only class. And we identify the classes.

In these circumstances, your Honor, a class ought to

be certified because it can happen and because it makes sense

to happen.

If you have no further questions, your Honor, I'll

cede the floor.

THE COURT: Well, one more.

MR. DOYLE: Yes.

THE COURT: Remind me again how you would -- so you'd

put on Ms. Bell to talk about her own experience. You'd put on

as admissions the files of the bank showing a series of

incidents where various people complained about having to work

overtime when they didn't get paid for it.

MR. DOYLE: Mm-hmm.

THE COURT: Presumably you would take away from those,

from that proof -- well, maybe not. Maybe you'd then show the

bank responded to some people and not to others.

MR. DOYLE: Mm-hmm.

THE COURT: And I suppose if you got -- if class

notice went out and you learn of a lot of other people who had

complaints, presumably you'd -- at least on the opt-in class,

you'd get names of people who will say me too, and they might

be on the list of people who complained in the first place;

they might not be. And so if they're not, that would give you

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additional people to give their complaints.

That's how you'd -- that's how this would proceed if

we were -- you had people right there and people right there.

MR. DOYLE: There's two other people that I can think

of as I stand here that I can name by name that I would be

interested in as trial witnesses. I'd be interested in

Ms. Poole and Mr. Cobb, who were both managers, who can both

describe how it is that off-the-clock overtime happened at

their branch and why.

And all of that together, plus whatever other -- you

know, I don't know who my other trial witnesses would be. I

don't think I have to know exactly at this stage. But I think

if there are other managers like them that would come testify,

I'd be interested in hearing their testimony.

THE COURT: Well, this is why I went back. This is

where I started at the very beginning, with the issue of

whether or not there is an incentive that is driven by PNC's

structure to cause branch managers to want to minimize

expenses, to allow for a branch manager to show greater

profitability and presumably get a bonus, a pay raise, some

feather in their cap.

The few -- at least the one person you have the

affidavit from -- I think it was called -- well, the branch

manager who managed Ms. Gomez said that they just didn't have

enough people to cover the work that they had to do. Well,

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that's, you know, welcome to the world. Everyone says that.

And so they have people do more than they should do -- more

than they're getting paid to do.

If that is just bad management by a branch manager,

there's a lot of branch managers that can live within their

budget, and so they pay the people the overtime. 

And maybe this is just a factual defense. But it

seems as if if they -- if branch managers can live within the

budget and run their branch without having people work off the

clock, then those that can't do it -- I'm not sure that's a

class issue, as opposed to just some -- a classwide issue

that's capable of economies being obtained through a class

trial, as opposed to back where I started, a series of

vignettes about some managers who were inefficient and couldn't

run their branch in a manner in which -- in a manner within

their budget.

MR. DOYLE: Your Honor, I don't know that I agree.

And the reason I don't agree is if there was proof, and the

defense was for each of these 27 managers they brought them in

and they said, gosh, I sure tried, but I was not very good at

my job, and I wasn't able to make it all meet, and I couldn't

cover all the staffing. So, yeah, I did have people working

off the clock, and they didn't get paid.

That was their defense? I think a jury could look at

that and say it happened at 27 different branches? That's an

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unofficial policy or practice. That's a widespread practice

classwide. If it kept happening over and over again? It would

be one thing if we were talking about two branches and I was

trying to get a class for the state of Illinois.

But we're focusing on the branches where we know it

happened. The precise reason why it happened -- for example,

did the vice president of operations for the state of Illinois

region order people to do it? That would be great proof. If,

for example, there was a bonus structure that the managers were

all incentivized to do this, that would be great proof. Or if

there was just widespread incompetence in the way that the bank

hired their branch managers, that may be where we are.

THE COURT: All right. Let me -- okay. Go ahead,

finish, and then I have a follow-up.

MR. DOYLE: But I don't know that it matters. And the

reason it doesn't matter is because it kept happening over and

over.

THE COURT: Well, that was my next question then. You

say it kept happening over and over. And I thought I read in

the defense papers that they -- these were -- they may have

happened on -- on an occasion or more than one occasion at all

27 branches you selected because you selected them based on the

fact it happened.

MR. DOYLE: Mm-hmm.

THE COURT: But if you take 365 days or 300 workdays

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or whatever it is and then you look at the number of complaints

where it occurred, are we talking about a small -- when you say

over and over, are you talking about over and over at each

branch or over and over collectively at the 27?

MR. DOYLE: There are some branches where there was

more than one manager, for example, that one manager replaced

another and that it happened over again.

The one that I'm thinking of as I stand here where I

know that happened is at -- give me just a second, and I'll

have it -- at the Loves Park branch where the two managers were

Darlene Apgar, and the other manager was her predecessor. And

I only have a first name. The person's name is Larry.

There are four different employees that reported that

they worked under the same instruction from both managers that

they could not record overtime if they stayed past the end of

their shift. The four employees are Danielle Green, Randall

Heims, Jacki Mendoza, Nikia Nelson. The bank never paid any of

them.

THE COURT: All right.

MR. DOYLE: Your Honor, I can't tell you that it

happened every single day at every single branch for the entire

class period. That's a damages issue to be dealt with at the

very end of the case.

THE COURT: Well, it's a little more than a damages

issue. I think it's an issue of whether or not -- it goes back

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to whether or not you've met your preponderance standard as

showing that it's a pattern and practice.

MR. DOYLE: But surely I don't have to show 365 days a

week.

THE COURT: No, no. You don't. And this goes back to

the question which is probably unanswerable. You've got what I

referred to earlier as anecdotes or vignettes, and then you've

got a -- you know, that's the least amount of evidence. And

then the most amount, obviously, is a companywide policy that

says we won't pay.

MR. DOYLE: Mm-hmm.

THE COURT: Somewhere in between is where you have to

meet your standard to get me to certify, and then you can let a

jury decide whether or not you've met your proof of a

companywide policy or the company acts responsibly and fires

people who engage in the practice when they catch them.

MR. DOYLE: The other piece of it, your Honor, is when

they did address it, did they actually try and get people paid?

That happened over and over again, that even when the bank

responded, for example, fired a manager, they left people

unpaid.

We have the list. The list -- we know that there's at

least that many who worked off-the-clock overtime.

Now, I understand the point that it's one thing to

talk about something as a class case, and it's another thing to

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talk about it as a mashed-together bunch of branches that have

been cobbled -- quilted together into a class. I understand.

But, your Honor, it's the same. It keeps happening.

And if you keep hearing the same song every time you switch the

station on the radio, it's the same song playing everywhere.

And it means that all of the stations have a common playlist.

That, your Honor, is what we're looking at. You keep seeing

the same thing over and over again, and it qualifies as an

unofficial policy or practice.

That's the question. And I think that's the question

that's hard about this case. I also think that we meet that

standard.

Your Honor, I can answer whatever else.

THE COURT: No, that's it. That's all I have for now,

Mr. Doyle. Thank you. 

MR. DOYLE: I appreciate it. Thank you very much,

your Honor.

THE COURT: Why don't we take five minutes before we

start. I just want to get some water. And we'll start up in

five minutes.

MS. BOUCHARD: Sure.

THE COURT: All right. Thank you.

MS. BOUCHARD: Thank you. 

THE CLERK: All rise.

(Recess at 11:04 a.m., until 11:11 a.m.)

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THE COURT: Okay. Why don't you identify yourself for

the record again.

MS. BOUCHARD: Absolutely, your Honor. My name is

Sarah Bouchard. And along with my colleague John Richards, we

represent PNC Bank in this matter.

THE COURT: Okay. Mr. Richards has been here before.

I don't think you have.

MS. BOUCHARD: Once before.

THE COURT: Once before. All right. 

MS. BOUCHARD: Once before. Thank you.

THE COURT: All right. Go ahead.

MS. BOUCHARD: Your Honor, this case has been going on

for two years with significant amounts of discovery.

As you may recall, there were e-mail searches that

involved the production of 55,000 pages of documents. And

based on those extensive e-mail searches, plaintiff has

conceded that there is no top-down policy other than isolated

acts which are set forth in both the ERIC reports, as well as

Ms. Alvarez's affidavit.

And interestingly, if you read Exhibit H to her

affidavit, it does not suggest that people were not paid. It

suggests that there were employees who voluntarily worked off

the clock and, as a result of an investigation, were reminded

of the hours of work policy and paid.

At times there were managers who were violating

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policies, including Ms. Poole, of which they rely so highly on.

She was terminated for violating the hours of work policy. And

you see, as you stated earlier in the argument, that many

people were terminated or disciplined.

So rather than not paying people for off-the-clock

work, what you see is a very robust process and a very legal

practice of having a policy prohibiting off-the-clock work.

And then where those instances are reported -- and employees

reported this, meaning that this is a policy that works in

practice -- people were investigated, disciplined, terminated.

And where it was supported, hours were paid. So I just want to

put that out there.

If this class were certified, it would comprise

individuals who either never worked off the clock and therefore

suffered no injury or no longer have an injury because PNC

investigated their claim and paid for all hours worked. This

is not the basis for a class action.

Now, instead of going through a little bit of my

argument, I wanted to address some glaring misrepresentations

in the record. And the way I -- the reason I say that is

because Mr. Doyle really emphasized the 50 people listed in 159

and 161 of his appendix.

And what you should know is that 37 of those 50 are

people who worked at what's called a table day in the DePaul

branch. And he stated that those people worked off the

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clock -- okay? -- and that that's one of the reasons why he

believes he has numerosity here.

But actually, if you go back and look at Mr. Cobb's

declaration, which is supporting those 37 individuals -- and

that's at Appendix page 14 -- he states, "I do not know whether

these people have been paid for those hours through their home

branches."

And then in page -- on paragraph 7 he states, "Even

today, I do not know if any of those 37 employees were paid for

the hours that they worked when they were assigned to work

table days at DePaul."

Now, what's interesting about some of the declarants

in this case is that Mr. Ward is Mr. Cobb's spouse. And

Mr. Ward chose to voluntarily work at the table day and not get

paid.

Well, when his own manager, Mr. Ward's manager,

realized that, he was disciplined for both not letting him know

that he was going to work at the DePaul branch and for not

letting him know that he actually worked instead of volunteered

because there is no practice of volunteering at PNC Bank.

So --

THE COURT: These table days are what? You just go to

a branch and hand out free coffee and try and get people to

sign up?

MS. BOUCHARD: Basically.

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THE COURT: All right.

MS. BOUCHARD: Basically.

So what we have here is a class that's both

unidentifiable and lacks numerosity under (a)(1) of Rule 23.

And there are many cases that support the fact that when the

class is so broad to include individuals who are without

standing and where the named representatives fall within the

class but they don't suffer the same injury, there cannot be

any class certification.

And the case to support that is Humphrey v.

International Paper, and that's included in our brief.

Also -- and what really wasn't discussed here is the

plaintiff is not an adequate class representative. She in all

respects worked as a manager. Although she was overtimeeligible as a financial sales consultant, she really was doing

day-to-day duties that were a manager, and, in fact, Mr. Ward

and Ms. Claveria both wrote her recommendations to support a

promotion which stated -- and they're attached to Ms. Alvarez's

declaration -- that she was doing managerial duties.

So the cases state that where the individual named

plaintiff lacks any typicality, faced with an overbroad class,

that does not support commonality and typicality for purposes

of Rule 23.

Moreover, her own testimony is contrary to her

complaint, and this fact alone in this circuit is sufficient to

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make her an inadequate class representative.

So as you correctly pointed out, we only have one

person through hearsay testimony from the regional level that

stated in some form or fashion to someone else you can't

work -- you need to work off the clock.

But plaintiff herself stated in her testimony that

Ms. Romis said to her, "I understand that you're going to have

overtime. You may submit your overtime." So even for that

deceased regional manager, Ms. Gomez stated that she stated,

"You may submit your overtime."

THE COURT: All right. Well, and I -- I get that.

And I assume -- really what they're saying is we don't have

a -- we have a series of incidents at a variety of branches.

We picked our class to mirror those branches.

MS. BOUCHARD: Mm-hmm.

THE COURT: But if you look at 27 branches, we've got

a series of complaints, sometimes a single complaint, sometimes

multiple complaints. Some of the complaints involve a single

incident; some involve a practice. You'll never -- you always

work over lunch or you always have to open up before -- you

know, do some work on your teller drawer before the bank opens,

and you never get paid for it.

So you've got those types of different fact scenarios.

And they're saying you add them all together and they meet

their standard of preponderance that there is a common -- there

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is a practice that they can establish through that proof.

How would you respond to that?

MS. BOUCHARD: I would respond to that by stating

exactly what you stated. This is a bunch of historical -- and

I use the word "historical" -- vignettes of investigations that

previously occurred and were resolved. Just because someone

did not get any money doesn't mean that that's evidence of any

illegal activity.

Now, let me just give you one example. In the

Naperville branch, Naperville South, they seek to include that

branch. That branch is based on conduct from 2010 for a case

that was already litigated and settled and had six opt-ins. So

why should those people be allowed to relitigate a claim that

was already resolved in this federal court?

THE COURT: I guess -- well -- and I should have asked

this of Mr. Doyle, but I'll ask it of you.

Has there been a case where the proof is the fact of

the investigation? In other words, you know, the proof is

what -- much of the proof, beyond the named plaintiff and

possibly Ms. Cobb -- Mr. Cobb and the other individual, but the

main proof comes from the fact of -- from these investigations.

But isn't the fact of an investigation -- and I don't

mean to be giving you a layup question. This is probably a

tougher question for Mr. Doyle. 

And you can respond to it from there.

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But isn't the fact that your proof comes from the --

their investigative files means they're looking at it? In

other words, it's one thing to come up with a series of

affidavits because the bank had no internal structure when they

investigated allegations of failure to pay overtime.

MS. BOUCHARD: May I answer?

THE COURT: Yes, and then I'll allow Mr. Doyle to

answer too.

MS. BOUCHARD: Okay. Great.

THE COURT: But I'm not going to cut you off. It's --

I do want -- because it's a tougher question for him.

MS. BOUCHARD: Right.

THE COURT: Go ahead.

MS. BOUCHARD: Right. It goes to whether common

questions predominate. And even if PNC's investigations were

improper, that would require a series of mini trials as to

which ones were improper and which ones were not. And the case

of which we rely on is Bolden and where in Bolden, the case

said where the company allows considerable discretion to

managers or here, the employee relations investigators, it's

just the opposite of a uniform employment practice that

provides commonality.

And, therefore, there's no -- there's no superior way

of litigating this in the class context.

THE COURT: Okay.

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And, Mr. Doyle I should have asked you this, but I

think Ms. Bouchard's argument has raised it with me, is I see

some difference between, as in Ross, where you have 60 or 70 or

90 affidavits, whatever it was, you know, that that's some

proof that something was going on, and you can infer from it a

policy.

But the fact that the majority of your proof comes

from -- comes from the bank itself having recognized -- having

gotten the complaint and dealt with it, adequately or

inadequately, is -- you know, maybe that's another issue. But

the fact is they dealt with it because it's in their files.

Doesn't that indicate a -- at least a structure that

shows they aren't tolerating this policy?

MR. DOYLE: No.

THE COURT: The way you're proving it almost in some

ways proves their point.

MR. DOYLE: I don't believe so, your Honor. The -- a

couple of responses. Number one, there's two investigators

assigned to the state of Illinois.

THE COURT: Right.

MR. DOYLE: Number two, they tell us -- and we cite

this in our papers. They tell us that there is no standard for

those people to conduct investigations. The bank doesn't offer

them approaches on how they ought to do this. There's no

standard way to do it.

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Number -- and, you know --

THE COURT: But they say they have good reason for

that, and that's because they don't want to have a -- and I --

I kind of get this. I think if you put standards -- you know,

basic standards: get to the bottom of it, be truthful, record

information you receive.

I don't know if those are implicit, explicit, or

followed.

But, you know, telling an investigator you've got

to -- every case you've got to go interview the complainant

first as opposed to look at records or you've got to look at

records first before you interview the complainant or you've

got to talk to the boss of the complainer before you talk to

the complainant. I mean, that kind of minutiae is

counterproductive for investigators.

MR. DOYLE: Absolutely. But they don't even have

standards like -- you know, we asked, "Do you have any

standards? Are there any?" And the answer is unequivocal.

They say, "We have none."

THE COURT: All right.

MR. DOYLE: So, your Honor, to say that that is a

lawful good-faith response is -- is a reach on the way these

facts work.

In addition, your Honor, the proof is in the pudding.

We believe there are people who were not paid. We believe that

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those 56 that are listed on those -- on those three pages

didn't get paid.

THE COURT: Well, that -- and I'll go back to

Ms. Bouchard. That was a question I did have.

MS. BOUCHARD: Mm-hmm.

THE COURT: And I think you alluded to it, but I

didn't hear an answer about what the reason was.

One, do you disagree about these 56 not being paid?

MS. BOUCHARD: Absolutely.

THE COURT: Okay.

MS. BOUCHARD: And what happened is when they

presented these 56 people for the first time in their brief --

THE COURT: All right.

MS. BOUCHARD: -- the -- we went back -- and

Ms. Alvarez, because what happened with the DePaul table days

is they would not have been paid through Mr. Cobb at the DePaul

branch. They would have been paid through their home offices.

So at Alvarez, paragraph 22, she confirms that all 37

individuals were paid. And Mr. Doyle suggests that we should

strike that testimony because it wasn't produced in discovery.

Well, we're just responding to this list of 56 that

was presented for the first time in his brief, and I would

imagine that your Honor would want to know that information,

that they were, in fact, paid.

So, again, the DePaul branch and the table day

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situation is a very unique circumstance. I can imagine if my

husband said, "Hey, will you help me out at a table day?" I

would say, "Sure." But it doesn't mean that 37 of my friends

are also going to volunteer from other different branches.

THE COURT: All right. So --

MS. BOUCHARD: And --

THE COURT: So your point is that the majority of the

50 that Mr. Doyle said were not paid were -- at this DePaul

table day, in fact, they were paid, but not through -- they

wouldn't be on the list -- the list that he has at pages --

MS. BOUCHARD: 159 through 161, your Honor.

THE COURT: Correct, and that -- well, 159 through 161

is his list of people who weren't paid. But he's saying

they're on this list because they were not on the list in

pages 154 through 158.

MS. BOUCHARD: Right. There was no investigation of

the DePaul branch because there was not one necessary.

THE COURT: Okay.

MS. BOUCHARD: Mr. Cobb states in his declaration that

he raised these 37 names to an employee relations manager. But

both Mr. Cobb and Mr. Ward were terminated, Mr. Ward for

falsification issues and policy violations and Mr. Cobb as a

result of a reduction in force.

The employee relations center has no record of these

37 names, so that's simply why they're not on the ERIC sheet.

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But we're telling you here today that all of these people were

paid, and, additionally, nine of those people were paid

overtime for -- on the weeks that that occurred.

With respect to the remaining individuals on those --

THE COURT: Why wouldn't they -- I assume they weren't

all paid overtime because some of the time where they went over

and did this was on their normal clock at the branch they came

from?

MS. BOUCHARD: Absolutely.

THE COURT: All right.

MS. BOUCHARD: And for the remaining 19 individuals,

they were either investigated on the ERIC report and not paid

because the investigator determined that no additional money

was owed or they weren't on the official investigation list

because there was no issue with them. They simply were in the

branch of which a violation occurred.

So even under this list of 56, there's no "there"

there, your Honor.

I'd like to address 216(b), if I might, because what

we have here is normally what happens in the 216(b) context is

that conditional certification motion is filed by the

plaintiffs right off the bat, or at least a couple of months

after the complaint is filed.

And here we've had two years of discovery and, as I

said, 55,000 pages of documents and a complete ERIC report.

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And so when a counsel waits that amount of time and

that amount of discovery has taken place, there is a heightened

standard to evaluate 216(b), not that much different than the

Rule 26 context, which makes sense. You've had all of this

discovery to determine whether there is a policy or practice

that's illegal, and here we have none.

So you have an intermediate level of scrutiny, and

that's under Boelk v. AT&T. And courts have held that in

off-the-clock cases, they failed to meet this heightened

standard because there haven't been any other practices other

than these historical vignettes at the supervisor level. And

as I would even state here, if you go back and look at

Exhibit H, not only are they not just at the supervisor level,

they're a level below that.

As I've stated, you'll see if you review Exhibit H,

these are just employees who may not have realized what is time

worked and what is not time worked. One example is a single

employee who was a new employee and looked at training

materials while he was home.

THE COURT: Where was that, which page?

MS. BOUCHARD: That was -- let me pull that up.

Give me a moment, your Honor.

THE COURT: No, I'm -- I just want to make sure I'm

reading all these things correctly --

MS. BOUCHARD: Right. 

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John, can you find that one?

THE COURT: -- which is why I want to go through this.

MS. BOUCHARD: Yeah, we'll find that one.

THE COURT: All right.

MS. BOUCHARD: But the courts in this intermediate

scrutiny look at four key issues. And they routinely deny

off-the-clock cases where you don't have a common policy or

practice.

Now, let's even go to the more lenient standard,

supposing that the plaintiff had filed the conditional

certification motion right off the bat and there wasn't hardly

any discovery.

They, again, routinely deny where the unlawful policy

stems from alleged acts of supervisors and employees at a very

low level. They also deny where it's undisputed that the

plaintiff was not performing the same types of job duties.

So here, not only was she a financial sales consultant

and she wants to be compared to tellers and teller supervisors

and other people, her own affiants are stating that she did

exempt work. So that's yet another reason why she's not

similarly situated to the class that she purports to represent.

THE COURT: What's the interplay between the two?

Have you seen or is there -- are there cases suggesting

certification under one standard and not under the other, or

are they pretty much lockstep?

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MS. BOUCHARD: Well, under the more lenient standard,

that's generally when discovery hasn't taken place --

THE COURT: Right.

MS. BOUCHARD: -- and when the plaintiff doesn't have

access to names and witnesses.

THE COURT: Right, and I've had a couple cases where

I've allowed a conditional certification under 216(b) in an

opt-in class early in the case where I've looked at the

allegations, I've looked at the number of employees and thought

that that was a prudent way to go.

MS. BOUCHARD: Mm-hmm.

THE COURT: They didn't have a Rule 23 class

certification request either. It was simply a straight FLSA

opt-in class request.

But where we have a dual request, are there -- do I

look at each one of them independently? Because they seem to

have different standards.

MS. BOUCHARD: Well, I would agree that if this -- if

the 216(b) motion had been filed at the outset, they would be

subject to a different standard.

THE COURT: Okay.

MS. BOUCHARD: It would -- it would be, as you've

stated, you know, let's see if there's any "there" there.

But here, where we've had two years of discovery, I'm

not sure what more we could produce. And even -- and this is

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very important. Even under the lenient standard, courts look

at interest. In Ross, 90 affidavits. There was interest

there.

And that's why in all of the wage and hour cases that

I litigate, what the plaintiffs do is they do pre-complaint

solicitation. They get -- garner interest. They go on

websites. They gather that interest because they know courts

are looking for it.

And in Hadley v. Journal Broad. Group -- it's an

Eastern District of Wisconsin case -- the Court denied

conditional certification saying that after a year, there's

been no one who opted into the case. There's no interest.

THE COURT: Well, what --

MS. BOUCHARD: So it's a very real issue.

THE COURT: And that confused me. And Mr. Doyle

reminded me that there had been no notice sent out.

I don't think I had this case at the very beginning,

if I'm --

MS. BOUCHARD: No, Judge Chang did, your Honor.

THE COURT: Okay. And I just needed to be reminded.

I could have gone back to the docket sheet, but I didn't have

time to see what happened.

But how would a person express interest and opt in if

no notice had gone out?

MS. BOUCHARD: Well, it happens all the time. I mean,

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in the cases I routinely litigate in the wage and hour context,

the plaintiff's counsel puts out solicitations before the

complaint is even filed.

THE COURT: All right. But if -- but let's say they

didn't.

MS. BOUCHARD: Okay. So --

THE COURT: After the complaint is filed, how would

there be a mechanism for -- you want to -- and I found this

compelling, and that's why I want to get to the bottom of it.

MS. BOUCHARD: Mm-hmm.

THE COURT: If no one has an interest in getting

involved in this case, then that -- under 216(b), were they

given the opportunity, you know, who is going to be in a class,

a Rule 23 class? And that's --

MS. BOUCHARD: Right.

THE COURT: -- so what -- let's say they didn't go out

and drum up plaintiffs --

MS. BOUCHARD: Mm-hmm.

THE COURT: -- before they filed their complaint.

They had a class rep who told them about what she perceived as

being a companywide policy, or at least a policy she observed

in her experience as being companywide. They don't have an

obligation to go out and get more people at that point I don't

think.

But what -- how would other people go out -- are

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they --

MS. BOUCHARD: How would they opt in?

THE COURT: Well, how would they opt in before a

notice is sent out giving them a mechanism to opt in?

MS. BOUCHARD: Well, as I said, it happens all the

time. It happened in Ross. It's happened in some other PNC

cases that we had that were certified and resolved, and those

were exemption cases, which are very different than

off-the-clock cases.

THE COURT: Was the Naperville case that Mr. Doyle

talked about where a class was certified, were those exempt

employees?

MS. BOUCHARD: No, that was an off-the-clock

allegation. 

THE COURT: Okay. 

MS. BOUCHARD: And six people opted in -- okay? -- and

it was branch-specific.

THE COURT: Single branch.

MS. BOUCHARD: Single branch.

THE COURT: Okay. 

MS. BOUCHARD: Jarmasek. But that's on the list of

people that should be included in this class.

THE COURT: Yeah, that's --

MS. BOUCHARD: Which makes no sense.

THE COURT: Right.

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MS. BOUCHARD: And so what you would need to do if you

were going to take a class is you'd have to go through and look

at each one and say, well, was everyone paid? Because what you

see in Exhibit H to Ms. Alvarez's declaration, there's many

instances where every single person was paid everything that

they wrote down.

In other cases, some were paid and some were not

because their requests were incredible. There were other cases

where some people simply would not submit what they believed

they were owed or thought better of it.

But let's just take interest. The 56 people that are

listed on 159 to 161, plaintiff counsel knows their names and

he knows -- he knows where they work. They're not in this

case. No one has reached out to them to see if they wanted to

opt in, or maybe they have -- we don't know that because that's

privileged -- and they simply have no interest here.

So --

THE COURT: Well, you're suggesting 37 of them

wouldn't have an interest because they were paid.

MS. BOUCHARD: Exactly.

THE COURT: So those -- under your representation,

they don't really have a beef.

MS. BOUCHARD: There's no injury.

THE COURT: They have no fight.

MS. BOUCHARD: Right. And that's sort of my -- my

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overreaching theme here is that most of the class has

absolutely no beef at all.

And even Ms. Gomez was paid 68 hours. And she filed

the lawsuit, understandably, after she left. And when I took

her deposition -- or I believe John took her deposition -- she

could not testify to how many additional hours she was owed.

Now, she has since changed that and say I believe

dozens.

But, again, even she was paid. It shows that the

policies, the lawful policies that PNC implemented, work. She

made a complaint about her supervisor, and it resulted in an

investigation of that entire branch. And her manager was fired

because of making her work off the clock, the same person that

has filed an affidavit in this case.

THE COURT: All right. Well, back to the other

question, though. There's no real way for people to opt in --

certainly they could go out and get affidavits if they wanted

to, but there's no federal rule that requires opt-ins to occur

before notice is sent out.

MS. BOUCHARD: No, but the case law is clear that

courts are looking for some -- some modicum of interest.

So even though you don't have to do that, you risk

having denial of 216(b) certification even under the lenient

standard. And I just know that the plaintiffs' counsel that I

deal with who do this on a day-in, day-out basis, they've got

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50 affidavits ready at the complaint stage to show that that

level of interest.

Now, let's go to -- they -- they said that the cases

that they relied on are Ross and Merrill Lynch. Well, even

though Ross may technically be good law, there are two Family

Video decisions, one in April and one in August, that based on

the Supreme Court's GVR, the vacating and remanding, denied

Rule 23 class certification based on that.

Comcast is real. It's not just a damages issue. You

need to look at whether you can have a manageable trial or are

you going to be looking at whether damages are being looked at

on a case-by-case individualized basis.

And so plaintiff's counsel has suggested that they can

just certify a class based on liability only. But the cases

that they've cited are tip credit cases where there was a

common policy related to that tip credit, as well as issues

with a washing machine defect. That's clearly a common

liability issue that allowed for damages to be looked at in a

slightly different way because the liability had a common

thread, which doesn't happen here.

In the Merrill Lynch case, of which I'm familiar that

they cited to, the race discrimination case, there was a common

policy of disparate account assignments in that case. That was

the common thread.

Again, plaintiff conceded that in the 55,000 pages of

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documents, there is no such common thread that exists here.

THE COURT: Was there actually a stated policy, or was

there a practice that the Court viewed as a policy?

MS. BOUCHARD: Well, the Court viewed it as a policy

because it applied throughout the class. Here we don't have

that. We don't have anyone saying to Sally Sue work off the

clock. There is no stated policy. Sally Sue, based on

Exhibit H, was paid or, if she wasn't paid, it was because

there was a thorough investigation conducted, and the ER

investigator determined that that person shouldn't be paid.

THE COURT: Merrill Lynch actually had a policy to

assign --

MS. BOUCHARD: No, there was no written policy.

THE COURT: All right.

MS. BOUCHARD: But the policy was in writing. And

how --

THE COURT: Oh, I see.

MS. BOUCHARD: And the policy --

THE COURT: The policy prohibiting it was in writing.

MS. BOUCHARD: No, there was no policy prohibiting

disparate account assignments, but there was a policy of

teaming in the Merrill Lynch case --

THE COURT: All right.

MS. BOUCHARD: -- that statistically showed that there

was a disparate impact to African Americans.

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THE COURT: I see. Okay.

MS. BOUCHARD: Which is much different than what we

have here.

THE COURT: Okay. 

MS. BOUCHARD: Your Honor, for these reasons, we

believe that both Rule 23 class certification and 216(b)

conditional certification should be denied. It does not mean

that Ms. Gomez is without a remedy. In fact, she has and will

continue to proceed with her claim.

If Mr. Ward -- Ward's claim is lifted out of the stay

of bankruptcy, he can proceed with his -- his filing, which is

separate from this. And if Ms. Claveria seeks to put herself

on the caption rather to be an opt-in, she can also have a

claim.

So there's no prejudice here to the three people who

have exhibited some interest, albeit that Ms. Claveria and

Mr. Ward only did so after they were subject to investigations

for fraudulent practices.

THE COURT: All right. Let me just go through my

questions.

MS. BOUCHARD: Sure.

THE COURT: I had some written questions when I went

through the briefs that I may have -- many of them have been

answered.

All class discovery is completed at this point. Is

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that correct?

MS. BOUCHARD: That's correct.

THE COURT: Okay.

MS. BOUCHARD: And all individual discovery for

Ms. Gomez's claims as well.

THE COURT: Okay.

I think every question I had has been answered,

although, Mr. Doyle, I'll give you a chance to respond if you'd

like.

Thank you.

MS. BOUCHARD: Thank you, your Honor.

THE COURT: Thank you. 

MS. BOUCHARD: I appreciate the time.

THE COURT: Sure.

MR. DOYLE: A few random points, your Honor.

The first is I'm not aware of an order in the case

that closes individual discovery for Ms. Bell. I'm just not

aware of that order.

THE COURT: All right. But that's --

MR. DOYLE: I don't know that it matters, but I'm not

aware of it.

THE COURT: It doesn't matter, I think, to the issue I

have at hand.

MR. DOYLE: Okay.

THE COURT: I just want to make sure that there's

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nothing by way of class discovery or if this issue is ripe for

me to decide as we sit here now.

MR. DOYLE: Class -- class discovery is closed.

THE COURT: Fine. Okay.

MR. DOYLE: The closing date for class discovery was I

believe October 1st.

THE COURT: Okay.

MR. DOYLE: And then we filed the papers November 1st.

THE COURT: Right.

MR. DOYLE: Your Honor, there was a fair amount of

discussion about the 37 people from the table day --

THE COURT: Yes.

MR. DOYLE: -- at DePaul. And the bank says that

they've looked at their records and all of those people got

paid. The chronology, if that is true and there are records

that show that, that is a serious abuse of the fact the class

discovery has been closed. The chronology of this issue is

laid out at page 14 of our brief.

Here's what happened. Mr. Cobb sent a list of names

to his supervisors back in 2010. We cite the pages, and the

e-mails are in there, the e-mails with him listing people.

Mr. Cobb described how PNC Bank then buried the issue.

Mr. Cobb gave his list of 37 names of the people from the table

days list in an affidavit that was filed with this Court and

served on the defendants on March 15th of 2013.

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We then had six months of discovery. The bank never

produced any discovery relating to those 37 people getting

paid.

In a 30(b)(6) deposition on July 10th, PNC Bank said

it had no knowledge of any investigation regarding overtime for

the 37 people on Mr. Cobb's list. We put that 37 -- the list

of 37 people in front of the 30(b)(6) witness and said, "Were

these ever investigated for overtime?" The answer was "No. I

don't know what this list is. I've not investigated any of

these people."

PNC Bank's official list confirms that the bank never

investigated or paid overtime regarding those 37 people.

So then what happens? We include them in the class.

We include them on the list of 50. Ms. Alvarez then files a

declaration with the Court that says, "Oh, after I saw the

plaintiff's opening brief, I looked up those 37 people. And

they got paid."

Your Honor, how am I supposed to respond to that? I

have no ability to respond to that given that it happens

entirely outside of discovery. We asked specifically for

PNC Bank to give us all of the documents that they were going

to be relying on in opposing class certification. They said

they did. They also told us their document discovery was

complete.

Your Honor, it is patently unfair at this point for

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them to show up with a witness who says, "I've now looked it

up. And I won't give you the" -- by the way, they've never

even given us the records even still -- "I've looked it up, and

trust me, they got paid."

THE COURT: Well, how would you remedy it?

MR. DOYLE: How would I remedy it?

THE COURT: Yeah.

MR. DOYLE: I would say that these 37 people have not

been paid.

THE COURT: Yeah, that may not comport with the truth,

though. How would you remedy the discovery issue? Because

I -- I don't -- I haven't yet in my brief career assumed things

to be true because rules weren't followed --

MR. DOYLE: I understand.

THE COURT: -- to get there. And I'd rather we get to

the bottom.

MR. DOYLE: And for merit -- on the merits at trial,

we may end up someplace different.

THE COURT: Well --

MR. DOYLE: The question is, where are we for the

preponderance of the evidence when it existed when class

discovery closed?

THE COURT: But this is a -- this -- this is one of

the key parts of your argument.

MR. DOYLE: Their argument.

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THE COURT: Well, also your argument that people

weren't paid, the 50 people as part of your argument and 37 of

them as part of their argument.

MR. DOYLE: Okay.

THE COURT: And you're saying it's unfair for them to

come up with this in a -- after discovery is closed and

basically put an affidavit out that says they, in fact, were

paid.

How would you -- were I to briefly reopen discovery to

allow this fact to get nailed down, what would you do?

MR. DOYLE: I would -- if all 37 of those people got

paid, the first thing they ought to do is they ought to give us

the documents that show the payments that went to those

37 people and when it happened because it hadn't happened as of

July 10th of 2013 because we asked the 30(b)(6) investigator.

We asked, "Have you investigated these people?" They said,

"No, I don't know what this list is."

THE COURT: All right. Well, that --

MR. DOYLE: So --

THE COURT: -- doesn't mean the records didn't exist.

MR. DOYLE: All right. Well, let's find out.

THE COURT: That means 30(b)(6) witness --

MR. DOYLE: Your Honor, I don't -- 

THE COURT: -- didn't know the answer.

MR. DOYLE: I am skeptical that the records exist

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given the circumstances of how it is that it has come up in

this case. So perhaps the first thing that the defendant ought

to do is give us the proof for each of those 37 people when

they were paid for the table days at DePaul. Then we can

figure out what should happen to those 37 people on this.

THE COURT: Well -- 

MR. DOYLE: Give us the records that Ms. Alvarez is

referring to for those 37 people.

THE COURT: All right. Because if they were working

there during their regular work hours at another branch, I

don't know what would be shown. Ms. Alvarez made an

assertion -- did you ever depose Alvarez, or no?

MR. DOYLE: Yes.

THE COURT: Okay. But -- and that's when you asked

her about this?

MR. DOYLE: Yes.

THE COURT: Okay. 

MR. DOYLE: She was the 30(b)(6) witness.

THE COURT: Okay. Very good.

She apparently has greater knowledge now than she did

at the time of your deposition because -- I assume in large

part because you put the information in your appendix, your

appendices, and she -- they did what lawyers do. They talked

to her and say how do we respond to this, and they came up with

the affidavit. It's just --

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MR. DOYLE: But, your Honor, they had the list when

Mr. Cobb sent it in 2010, and they had the list when we served

it on them on March 15th of 2013 --

THE COURT: I see.

MR. DOYLE: -- in an affidavit from Mr. Cobb. It's

attached to his affidavit. And it was filed as one of the

court papers in this case.

THE COURT: Go ahead. What's your response?

MS. BOUCHARD: Yes. The list of 37 was never supplied

to the employee relations department. And the e-mails that

they contend support that don't support that.

If you look at 526 through 530, they provide some

names, but it's about training. It's not about this list of 37

at all. And Ms. Alvarez states in her declaration that she

never received it. These people were paid, your Honor, in the

normal course of their duties as you've described.

THE COURT: Well, that's why I'm wondering how much --

what records there would be -- I mean, if they were paid in the

normal course -- and, Mr. Doyle, if you made a request to

get -- show me the records to show they got paid, they're going

to give you payroll records that show they got -- presumably

they got paid in the ordinary course of their 40 hours a week

or, you know, maybe some overtime.

I don't know how that will get you to the point of

where they -- it would seem more -- the more germane issue may

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be -- and I don't know if these records exist -- showing time

records to show that the DePaul day was, you know, from 10:00

in the morning till 4:00 in the afternoon and they have a --

you know, they have a time record showing they were working at

the bank that day and, you know, they worked from 10:00 to 4:00

somewhere other than their Belmont and Cragin branch.

MS. BOUCHARD: But, your Honor, there's no reason to

reopen discovery. Mr. Cobb's affidavit, which is the support

for the list of 37, doesn't say that these people worked off

the clock. He said, "I don't know."

MR. DOYLE: Your Honor, if I may.

THE COURT: Go ahead.

MR. DOYLE: What Mr. Cobb said in that declaration was

he said, "I alerted the people in employee relations that

people might not have gotten paid." That is entirely

consistent with the -- with the e-mail that he sent that's

dated September 30th, 2010. It appears in our appendix at

APX526.

Line number 1 of the body of it says, "Here are some

dates for after-hours training that people may not have clocked

time for." And it gives the day and the people.

The response that Mr. Cobb got from employee relations

was "Leave that alone. We're not going to investigate that

farther." They never took Mr. Cobb's deposition. They never

produced any of these records relating to these dates. They

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never produced any records relating to the 37 people. And now

they say, "Trust me; we paid them."

MS. BOUCHARD: These e-mails, your Honor, don't relate

to table days; they relate to training. And they don't list

37 people.

MR. DOYLE: Your Honor --

THE COURT: It does say "training."

MR. DOYLE: And it says "may not have clocked time

for."

THE COURT: Right. But that's -- 

MR. DOYLE: And it says -- 

THE COURT: -- not the DePaul situation, is it?

MR. DOYLE: The notes that follow -- 

THE COURT: Okay. 

MR. DOYLE: -- on 531 over to 532, I believe, are

someone from employee relations writing down conversation notes

with Mr. Cobb. We saw these first in -- in discovery.

Your Honor, they have -- they knew long before class

discovery closed who these 37 people were. They never produced

a stitch of documents showing payments to them. We asked them,

"Produce everything you're going to rely on." In their

opposition brief, for the very first time, we get a "trust me."

Surely it wouldn't be hard for them to tell us if the

people were paid for the table days at DePaul and produce the

records now, if nothing else, the exact records that

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Ms. Alvarez says she is relying on.

THE COURT: Well, what's --

MR. DOYLE: In fairness.

THE COURT: -- what's the -- what would be the

disadvantage to the bank of doing that?

MS. BOUCHARD: Of doing what, showing the time

records?

THE COURT: Well, whether it's time records, payroll

records, or interviews Ms. Alvarez did, whatever she did to

satisfy herself that the assertion she made that all 37 people

were paid that she put in through her affidavit at page -- I

think you referred me to the --

MS. BOUCHARD: Right, 22 of her affidavit.

THE COURT: Yeah, let me reread 22.

MS. BOUCHARD: Your Honor, we can certainly provide

you supporting documentation in order for you to make your

decision. And we will do so if that is what you would require.

But, again, that would just show -- again, there's no

person in that list of 37 that's saying that they worked off

the clock. Mr. Cobb is speculating because his husband

volunteered that -- and in every document that they attached to

their appendix, there's no statement that these people worked

off the clock.

THE COURT: Well, how do you -- here's my dilemma. I

have paragraph 22 of your -- your investigator's affidavit

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saying that "Payroll records reveal that consistent with PNC's

HOW and overtime policies, all 37 employees listed at

Appendix 15" --

MS. BOUCHARD: Right.

THE COURT: -- "and also at Appendix 159-60 recorded

their own time and were paid for all hours worked at table

days."

MS. BOUCHARD: We would be glad to provide you those

records if it helps with your decision, your Honor. That's not

an issue for us.

THE COURT: Okay. And the -- she is obviously

responding to the assertion at those pages by the plaintiffs --

MS. BOUCHARD: Right.

THE COURT: -- that they weren't paid and that --

MS. BOUCHARD: Well, and they don't make that

assertion. They make that assertion in their brief. But the

underlying affidavit on which they rely says, "I don't know."

THE COURT: Oh, I understand that.

MS. BOUCHARD: Yes.

THE COURT: But their brief and Mr. Doyle's argument

was the reason I can't consider this to be a robust

investigative scheme --

MS. BOUCHARD: Mm-hmm.

THE COURT: -- where the bank -- when they have rogue

branch managers deal with this, you deal with rogue branch

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managers by investigating, firing them, disciplining them, and

you pay people who have not gotten paid for overtime, and

"Here's my proof. Here's these 50." 

You come back and say no. The majority of them, or

certainly more than half of them were paid.

I can't -- short of a hearing, I couldn't resolve

that. But if there is discovery that either would inform --

and Mr. Doyle says it's unfair for your affiant to come in with

this at the last minute or during briefing because discovery is

closed.

I'm happy to allow brief reopening of discovery to

nail this issue down. Either they got paid or they didn't.

MS. BOUCHARD: Right.

THE COURT: Either they got paid for working at DePaul

or they didn't. And that would seem in the interest of all

parties to know the answer.

I don't want to make a ruling when there's an -- a

ruling based on conflicting -- I don't know. I don't want to

say stories, but conflicting views of this by both sides when

it may be ascertainable.

MS. BOUCHARD: And we'll certainly provide those

records.

There was no investigation at -- the DePaul branch is

not on the ERIC report because there was no investigation

because, as you see, there is no evidence that he provided a

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list of 37.

So it is Ms. Alvarez's word against Mr. Cobb's.

Mr. Cobb is now stating in his affidavit he provided this list

of 37, but the supporting documentation does not support that.

So what you're going to see from us are payroll

records that show that people worked. There were no subsequent

payments. There are no investigation records to support that.

THE COURT: Do you expect there to be anything showing

people -- you know, a memo or anything saying, "Rather than

come in to work today, go over to DePaul"?

MS. BOUCHARD: No, because these people came from all

different branches. And the issue --

THE COURT: Isn't there something to indicate -- and

maybe it doesn't exist anymore. But if they came from all

different branches, I assume somebody made a direction saying,

"I need two from this branch, three from this branch, four from

this branch because I have to staff 20 tables at DePaul."

Anything like that?

MS. BOUCHARD: It's not there.

THE COURT: Okay.

MS. BOUCHARD: And we went through -- I mean, we

produced 55,000 e-mails.

THE COURT: Okay. 

MS. BOUCHARD: And, again, we will certainly produce

those payroll records for you.

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But what that will show is --

THE COURT: Well, it's not for me; it's for Mr. Doyle.

MS. BOUCHARD: Okay. 

THE COURT: And then -- 

MS. BOUCHARD: It doesn't go to class certification.

I mean, it doesn't go to whether there's a common thread.

THE COURT: Well, it goes a little to the issue of

whether the -- their claim is your investigations were

inadequate and that that --

MS. BOUCHARD: But that's -- that's not a -- that's

not a class certification issue either, your Honor.

THE COURT: No, I saw the cases you brought for that.

MS. BOUCHARD: Right.

THE COURT: But it's a contested factual issue.

They're relying upon it, and I'd much rather have this nailed

down --

MS. BOUCHARD: Sure.

THE COURT: -- than not.

I'm not sure the records they have, Mr. Doyle, though,

to produce is going to nail this down to give an answer on --

you know, you've got Alvarez saying, "They got paid. I reached

that conclusion" -- for whatever reason. She must have looked

at something.

MR. DOYLE: Yep.

THE COURT: And she may have drawn conclusions from

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records that she's entitled to as an affiant that may be

logical conclusions but may not -- that you may challenge and

say, well, that was an unwarranted conclusion for her to draw.

But I'd rather -- I hate to reopen discovery that's

been long closed, but I -- this appears important to the

plaintiffs' version of why there ought to be a class certified.

It's -- as far as the defendants are concerned, it's

irrelevant, but it's -- it's -- nonetheless, I'd rather let

everyone have their -- have their say on this.

MR. DOYLE: There's --

MS. BOUCHARD: Your Honor, that's fine. If you'd just

give us a time frame on which you'd like us to exchange those

records, we'd be glad to do so.

THE COURT: All right. Mr. Doyle, any problem with

that?

MR. DOYLE: No problem.

THE COURT: Okay. All right. I'm not sure after you

give them the records we're going to be any further along. If

the records are not something saying -- as explicit as "You

37 people should go to DePaul and work today and" --

MS. BOUCHARD: No, they're just going to be time

records that show, you know, someone worked 40 hours in a given

week; someone worked 42. You know, that's all they're going to

show.

THE COURT: How will that help you, Mr. Doyle? Or

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will it?

MR. DOYLE: Your Honor, there may be records in each

of their branches too that say where they were that day. But

separate from that.

THE COURT: Well --

MR. DOYLE: Their claim is all these people got paid.

I want to see -- and that they put in a witness for the first

time six months after they first saw this list of 37 people.

They put in a witness who says, "They all got paid. I've

looked at the records, and I know it's true." 

First of all, I'd like to see whatever it is that

convinced Ms. Alvarez that those people got paid.

Second of all, I don't know precisely what the

documents are going to say until I see them.

THE COURT: All right. Well, why don't you produce

what it is Ms. Alvarez looked at --

MS. BOUCHARD: Mm-hmm.

THE COURT: -- to form the basis for her sworn

statement at paragraph 22 that these people were paid.

I may -- and I'll have you probably on a short phone

conference. I'm not even going to have you come in. But I may

have a short phone conference after those records are produced

to decide whether or not I'll allow Ms. Alvarez to be deposed

for about half an hour.

MR. DOYLE: Okay.

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THE COURT: Maybe an hour, maybe half an hour.

MR. DOYLE: I can take quick depositions, your Honor.

THE COURT: I'm sure you can. And it's going to be

limited to paragraph 22: "How did you reach this conclusion?"

And it may be that she reached the conclusion through

logic. I'm not -- it may be she reached the conclusion through

the records she looked at. It may be her knowledge as a

longtime investigator with PNC. I don't know how long she's

been there, but it may be based on her position at PNC and her

experience that she was able to reach this conclusion.

But I think in fairness, we ought to see why she

reached this conclusion because it's important enough, I think,

to the issues I have to resolve to make this a prudent way to

go. Then we're done.

MS. BOUCHARD: That's great.

THE COURT: Then we are -- we have exhausted --

MR. DOYLE: I -- I have a homework assignment that I

want to do for myself, your Honor.

THE COURT: All right.

MR. DOYLE: One of the things Ms. Bouchard talked

about was the Naperville branch.

THE COURT: Right.

MR. DOYLE: And there was a previous lawsuit that was

the Jarmasek lawsuit.

THE COURT: Right.

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MR. DOYLE: I remember when we were putting together

these motion papers trying to be sure that we left the branch

from the Jarmasek lawsuit out of the class definition.

THE COURT: Out of the class definition. All right.

MR. DOYLE: I want to check it.

THE COURT: All right. 

MR. DOYLE: I want to check it, and I want to see what

the Jarmasek case was about again. And I want to check and see

who the six people were who opted in, and I want to make sure I

haven't said something that is incorrect about the Naperville

branch.

I don't believe I have. I don't believe it's the same

branch. My recollection is that it's Bolingbrook where the

Jarmasek case was, but, you know, this is the suburbs.

Bolingbrook looks an awful lot like Naperville. And one person

might call it one thing, and 75th Street may run through them

both.

THE COURT: Right. No, that's fine. And --

MR. DOYLE: So I want to be sure I've got that right,

your Honor. And if I have it wrong, then I will make sure I

file something that makes sure that it's correct.

THE COURT: Okay.

MR. DOYLE: Your Honor, there's a number of other

points that I don't think need responses, but I will focus on

just a couple.

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Ms. Bouchard said that our argument was that there was

no top-down policy. That's not what I was talking about

top-down on. I was talking about proving a companywide

unofficial policy or practice with top-down proof or with

bottom-up proof. That was the top-down and bottom-up

reference.

There isn't some written policy that says this. We

all agree with that, that says, "Don't pay overtime." We all

agree with that. However, the proof is overwhelming that it

happened all over.

Your Honor, one more thing. Ms. Bouchard talked about

people who had no injury who might be included in the class.

That's not the law in this circuit. The law in this circuit

is, does the class include people who could not have injury?

And this class is not defined in any way that suggests that.

There's 600 people in this class is our best sense of it. It

plainly meets numerosity.

Your Honor, they talked about the managerial duties

for Ms. Gomez Bell. In our reply brief at page 7, we dealt

with that in some detail. Most importantly, in their

opposition papers, PNC Bank said Ms. Gomez Bell was

overtime-eligible. With that admission, they have no ability

at trial to now claim she is not overtime-eligible.

There are a number of cases that deal with

off-the-clock overtime in a 216(b). We cite those in our reply

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brief at page 12.

I have nothing further, your Honor, other than to say

what do we do in this case? What do we do? Do we wrestle with

whether the evidence suggests a common overall question? Do we

wrestle with is this an unofficial policy or practice?

Or do we look at the pile of evidence that says it

happened over and over again, and we think there are people who

did not get paid? And if we proceed with a narrow class on

specific issues with damages left for posttrial proceedings, is

that a better proceeding?

Your Honor, I think the answer in our briefs is that a

class certification is a better approach here.

Thank you very much.

THE COURT: All right. Thank you.

Okay. How much time do you need to produce the

documents? Whether -- I don't really know what they were, and

I don't want to characterize them. But the documents that

Ms. Alvarez relied upon to make the assertion in paragraph 22,

how much time do you need to produce those?

MS. BOUCHARD: I don't think we need more than 14 days

at the most. I mean --

THE COURT: All right.

MS. BOUCHARD: -- just in case they're in archives or

something like that.

THE COURT: Okay. Produce them in 14 days.

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I'm going to have you back for a status in 21 days.

And at that time, Mr. Doyle, I'll need you to tell me whether

or not -- and I'm not suggesting you should, but whether you

want to take Ms. Alvarez's deposition on that particular fact.

MR. DOYLE: All right.

THE COURT: You may decide you don't need to. But I

would like some closure on this.

And then if there is a -- and then if that is closed

out, I'll allow each side two pages -- no footnotes -- two

pages to jointly file to tell me your belief as to what this

evidence has shown as it impacts what you've already

represented in your briefs and your affidavits. I think that

should be enough paper.

So but we'll -- I'll have you back for a quick -- and

you both came in from out of town. Is that correct?

MS. BOUCHARD: That's right.

THE COURT: Yeah, we can do this over the phone.

MS. BOUCHARD: Okay.

THE COURT: But I just want to know at that point

whether you're going to be seeking, Mr. Doyle, a dep of

Ms. Alvarez. If you do, it will be very time-limited. And

then I'm going to ask for a very, very quick turnaround to get

the paper in so we can be done with the briefing and I can jump

into this.

MR. DOYLE: Thank you.

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THE COURT: All right. So we'll give you a date in

21 days. That should give you all enough time to get the

records, digest them, and see if you really need to take a

deposition.

MS. BOUCHARD: Thank you, your Honor.

THE COURT: Okay.

THE CLERK: Either April 2nd or 3rd.

MR. DOYLE: Either is fine.

MS. BOUCHARD: Either is fine with us.

THE CLERK: Okay. April 2nd.

MS. BOUCHARD: Sure.

THE COURT: All right. And on the plaintiff's side, I

know you're local, but you can call in too if you want. It's

not -- it's your call, but certainly out-of-town counsel can

call in.

MR. DOYLE: On the 9:00 call?

THE COURT: Yeah.

MR. DOYLE: Thank you.

THE COURT: And we'll do it very briefly. And then

we'll -- if I order a dep, we'll have that scheduled.

Ms. Alvarez is still employed by the bank, I take it.

MS. BOUCHARD: Yes.

THE COURT: And we would try and schedule that,

even -- it's up to you. You can even do a phone dep. She's

local, I take it.

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MS. BOUCHARD: She is.

THE COURT: Okay. Well, however, you want to proceed.

I want to minimize what has already been an enormous expense

for both sides, and I -- I'm doing this with some hesitation,

but it's -- I think it came up enough in the arguments today

that we ought to at least resolve it.

MR. DOYLE: Thank you.

THE COURT: And it seems resolvable, which is why I --

MS. BOUCHARD: It's not going to be difficult, your

Honor.

THE COURT: Yeah, okay. Good.

All right. That will be where we stand. The briefs

were excellent by both sides. Too many footnotes. It would

have been -- but the pages would have been twice as long if you

didn't put them all in single-spaced footnotes. But so I get

it. I know that's why you did it. But they were all very well

written. They were very helpful. And the arguments today were

very good by both sides.

MR. DOYLE: Thank you.

MS. BOUCHARD: Thank you.

THE COURT: This was a -- I'm glad you suggested we do

this. It's very helpful. I got a lot more out of it hearing

what you had to say.

MR. DOYLE: Thank you.

THE COURT: All right. We'll have a brief status on

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April 2nd, and we'll go from there.

MS. BOUCHARD: Thank you.

THE COURT: Thank you all.

MR. DOYLE: Thank you.

(Concluded at 12:08 p.m.)

C E R T I F I C A T E 

I certify that the foregoing is a correct transcript of the 

record of proceedings in the above-entitled matter. 

/s/ LAURA R. RENKE___________________ April 23, 2014

LAURA R. RENKE, CSR, RDR, CRR 

Official Court Reporter 

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