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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

KESIA PRICE, et al., 

 Plaintiffs, 

 -againstPORTER NOVELLI, INC. and OMNICOM 

GROUP INC., 

 Defendants. 

07 Civ. 5869 (PAC) 

ANSWER, AFFIRMATIVE 

DEFENSES AND 

COUNTERCLAIM 

JURY TRIAL DEMANDED

 Defendants Porter Novelli, Inc. (“Porter Novelli”), and Omnicom Group Inc. 

(“Omnicom”) (collectively “Defendants”) by and through their undersigned counsel, hereby 

answer the complaint of plaintiff Kesia Price, (“Plaintiff”) et al. (collectively, “Plaintiffs"), dated 

June 20, 2007 (the “Complaint”) as follows: 

1. Defendants admit that Plaintiff purports to allege certain violations on behalf of 

herself and others, deny that such allegations have merit, and otherwise deny the allegations 

contained in Paragraph 1 of the Complaint. 

2. Defendants deny the allegations of Paragraph 2 of the Complaint. 

3. Paragraph 3 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 3 

purports to contain any allegations of fact, Defendants deny those allegations. 

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2.1 Paragraph 2 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 2 

purports to contain any allegations of fact, Defendants deny those allegations. 

JURISDICTION AND VENUE

3. Defendants admit, on information and belief, the allegations of Paragraph 3 of the 

Complaint. 

4. Defendants admit the allegations of Paragraph 4 of the Complaint. 

5. Paragraph 5 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 5 

purports to contain any allegations of fact, Defendants admit that the Court is empowered to 

issue a declaratory judgment, but denies that entry of such a judgment would be appropriate in 

this case.

THE PARTIES

6. Defendants admit, on information and belief, the allegations of Paragraph 6 of the 

Complaint. 

7. Defendant Porter Novelli denies the allegation of Paragraph 7(a) that it is a New 

York corporation but admits that its principal place of business is 450 Lexington Avenue, New 

York, New York. Defendant Omnicom admits the allegations of Paragraph 7(b) of the 

Complaint. Defendant Porter Novelli admits the allegation of Paragraph 7(c) of the Complaint. 

 

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 Defendants note that there is an error in the numbering of the paragraphs of the 

Complaint following paragraph 3. For the convenience of the Court and the parties, Defendants 

will adopt the paragraph numbering used in the Complaint. 

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COLLECTIVE ACTION ALLEGATIONS

8. Defendants admit that Plaintiff purports to prosecute her claim as a collective 

action, deny that such a collective action is appropriate in this case, and otherwise deny the 

allegations of Paragraph 8 of the Complaint 

9. Defendants deny the allegations of Paragraph 9 of the Complaint. 

10. Paragraph 10 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

10 purports to contain any allegations of fact, Defendants deny those allegations. 

11. Paragraph 11 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

11 purports to contain any allegations of fact, Defendants deny those allegations. 

12. Paragraphs 12(a)-(g) of the Complaint contain statements and/or conclusions of 

law as opposed to allegations of fact and as such, no answer is required. To the extent that 

Paragraphs 12(a)-(g) purport to contain any allegations of fact, Defendants deny those 

allegations. 

13. Paragraph 13 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

13 purports to contain any allegations of fact, Defendants deny those allegations. 

CLASS ALLEGATIONS

14. Paragraph 14 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

14 purports to contain any allegations of fact, Defendants deny those allegations. 

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15. Defendants admit that Plaintiff purports to bring this lawsuit as a class action on 

behalf of herself and others, deny that class treatment is appropriate, and otherwise deny the 

allegations of Paragraph 15 of the Complaint 

16. Defendants deny the allegations of Paragraph 16 of the Complaint. 

17. Paragraph 17 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

17 purports to contain any allegations of fact, Defendants deny those allegations. 

18. Defendants deny the allegations of Paragraph 18 of the Complaint. 

19. Paragraph 19 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

19 purports to contain any allegations of fact, Defendants deny those allegations. 

20. Paragraph 20 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required. To the extent that Paragraph 

20 purports to contain any allegations of fact, Defendants deny those allegations. 

21. Paragraphs 21(a)-(e) of the Complaint contain statements and/or conclusions of 

law as opposed to allegations of fact and as such, no answer is required. To the extent that 

Paragraph 21(a)-(e) purport to contain any allegations of fact, Defendants deny those allegations. 

FACTUAL ALLEGATIONS

22. Defendant Porter Novelli admits the allegations of Paragraph 22 of the Complaint. 

Defendant Omnicom denies the allegations of Paragraph 22 of the Complaint. 

23. Defendant Porter Novelli admits that it employed Plaintiff during the period from 

April 2000 to September 2006, and denies the remaining allegations of Paragraph 23 of the 

Complaint. Defendant Omnicom denies the allegations of Paragraph 23 of the Complaint. 

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24. Defendant Porter Novelli admits the allegations of Paragraph 24 of the Complaint. 

Defendant Omnicom denies the allegations of Paragraph 24 of the Complaint. 

25. Defendant Porter Novelli denies the allegations of Paragraph 25 of the Complaint. 

On information and belief, Defendant Omnicom denies the allegations of Paragraph 25 of the 

Complaint. 

26. Defendant Porter Novelli denies the allegations of Paragraph 26 of the Complaint. 

On information and belief, Defendant Omnicom denies the allegations of Paragraph 26 of the 

Complaint. 

27. Defendant Porter Novelli admits the allegations of the first sentence of Paragraph 

27 of the Complaint. Defendant Omnicom denies the allegations of the first sentence of 

Paragraph 27 of the Complaint. With respect to the second sentence of Paragraph 27, Defendant 

Porter Novelli denies the allegations. With respect to the third sentence of Paragraph 27, 

Defendant Porter Novelli denies knowledge or information sufficient to admit or deny the 

allegations. Defendant Omnicom denies the allegations contained in the second and third 

sentences of Paragraph 27. 

28. Defendants deny the allegations contained in the first sentence of Paragraph 28 of 

the Complaint. With respect to the second sentence of Paragraph 28, as the allegations contained 

therein are based on the knowledge of the Plaintiff, Defendants deny knowledge or information 

sufficient to admit or deny such allegations.

29. Defendants deny the allegations of Paragraph 29 of the Complaint. 

30. Defendants deny the allegations of Paragraph 30 of the Complaint. 

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FIRST CLAIM FOR RELIEF: FAIR LABOR STANDARDS ACT

31. Answering Paragraph 31 of the Complaint, Defendants reallege their responses 

and incorporate by reference their answers to Paragraphs 1 though 30 as if they were set forth 

again herein. 

32. Defendant Porter Novelli admits that it is engaged in interstate commerce but 

denies the remaining allegations of Paragraph 32 of the Complaint. Defendant Omnicom denies 

the allegations of Paragraph 32 of the Complaint. 

33. Defendant Porter Novelli admits, on information and belief, the allegations of 

Paragraph 33 of the Complaint insofar as they relate to the Plaintiff; denies knowledge or 

information sufficient to admit or deny the allegations with respect to other putative Collective 

Action Members, and denies that there is any basis for a collective action in this case. Defendant 

Omnicom denies the allegations of Paragraph 33 of the Complaint.

34. Defendants admit the allegations of Paragraph 34 of the Complaint. 

35. On information and belief, Defendants admit the allegations of Paragraph 35 of 

the Complaint. 

36. Defendants deny the allegations of Paragraph 36 of the Complaint. 

37. Defendants deny the allegations of Paragraph 37 of the Complaint. 

38. Defendants deny the allegations of Paragraph 38 of the Complaint. 

39. Defendants deny the allegations of Paragraph 39 of the Complaint. 

40. Defendants deny the allegations of Paragraph 40 of the Complaint. 

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SECOND CLAIM FOR RELIEF: NEW YORK LABOR LAW

41. Answering Paragraph 41 of the Complaint, Defendants reallege their responses 

and incorporate by reference their answers to Paragraphs 1 though 30 as if they were set forth 

again herein. 

42. Paragraph 42 of the Complaint contains statements and/or conclusions of law as 

opposed to allegations of fact and as such, no answer is required by Defendants. 

43. Defendants deny the allegations of Paragraph 43 of the Complaint. 

44. Defendants deny the allegations of Paragraph 44 of the Complaint. 

45. Defendants deny the allegations of Paragraph 45 of the Complaint. 

DENIAL OF PRAYER FOR RELIEF

46. Defendants expressly deny that Plaintiffs are entitled to any relief, including but 

not limited to the relief sought by Plaintiffs in their Complaint. Defendants generally deny any 

allegations of Plaintiffs’ Complaint not specifically admitted herein. 

AFFIRMATIVE DEFENSES

First Affirmative Defense

(Failure to State a Claim for Relief) 

 Plaintiffs’ Complaint is barred, in whole or in part, because it fails to state a claim upon 

which relief can be granted. 

Second Affirmative Defense

(Good Faith) 

 Plaintiffs’ alleged claims for relief are barred, in whole or in part, because Defendants 

have at all times acted in good faith in conformity with and in reliance upon the applicable 

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administrative regulations, orders, rulings, approvals, and interpretations and on the applicable 

administrative practices and enforcement policies. 

Third Affirmative Defense

(Justification and Privilege) 

 Defendants’ actions, respecting the subject matters alleged in the causes of action, and 

each of them, were undertaken in good faith, with the absence of malicious intent to injure 

Plaintiffs, and constitute lawful, proper, and justified means to further its sole purpose of 

engaging in and continuing its business. Therefore, Plaintiffs are barred, in whole or in part, 

from recovery on the alleged causes of action in their Complaint. 

Fourth Affirmative Defense

(Liability under New York “Spread of Hours” Rule) 

 Defendants cannot be liable to Plaintiffs for any “spread of hours” violation under the 

New York Labor Law and its regulations since Defendants have paid Plaintiffs an amount that 

actually exceeds the minimum amount due under 12 N.Y.C.R.R. §142-2.4. Therefore, Plaintiffs 

are barred, in whole or in part, from recovery on the Second cause of action in their Complaint. 

Fifth Affirmative Defense

(Laches) 

 Plaintiffs’ alleged claims for relief are barred, in whole or in part, by the doctrine of 

laches. 

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Sixth Affirmative Defense

(Estoppel; Waiver) 

 Plaintiffs’ alleged claims for relief are barred, in whole or in part, by the doctrines of 

estoppel and waiver. 

Seventh Affirmative Defense

(Statute of Limitations) 

 Plaintiffs’ alleged claims for relief are barred, in whole or in part, by the applicable 

statute of limitations under the Fair Labor Standards Act and the New York Labor Law with 

respect to time periods prior to the filing of the Complaint in this action.

Eighth Affirmative Defense

(No Basis for Class or Collective Action)

 Plaintiffs’ alleged claims for relief are barred, in whole or in part, because Plaintiffs are 

unable to establish the factors required to maintain a class action pursuant to Fed. R. Civ. P. 23 

or a collective action pursuant to 29 U.S.C. §216(b). 

Ninth Affirmative Defense

(No Employment Relationship)

 Defendant Omnicom cannot be liable to Plaintiffs for any claim asserted in the Complaint 

because Defendant Omnicom has no employees and thus does not employ and has not employed 

Plaintiff or any member of the alleged class. 

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Tenth Affirmative Defense

(No Liquidated Damages) 

 Pursuant to the New York law governing class action recoveries, Plaintiffs are barred 

from recovering liquidated damages in this case. 

Eleventh Affirmative Defense

(Reservation of Rights) 

 Defendants reserve their right to assert additional defenses which may become apparent 

during discovery in this action. 

PRAYER FOR RELIEF

 WHEREFORE, Defendants pray for judgment in their favor and against the Plaintiffs 

providing that: 

a. The Complaint be dismissed in its entirety with prejudice and that

 Plaintiffs take nothing by their Complaint. 

b. Defendants have not violated any provisions of the Fair Labor Standards 

 Act. 

c. Defendants have not violated any provisions of the New York Labor 

 Law. 

d. Defendants be awarded their reasonable attorney fees and the costs of 

 this action pursuant to 35 U.S.C. § 285. 

e. Defendants be awarded such further and other relief as the Court may 

 deem just and proper.

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COUNTERCLAIM

 Counterclaimant PORTER NOVELLI, INC. (“Porter Novelli”) by its attorneys, 

LATHAM & WATKINS LLP, for its Counterclaim against Counterclaim defendant KESIA 

PRICE (“Price”) states as follows: 

PARTIES AND JURISDICTION

1. Counterclaimant Porter Novelli is a Delaware corporation, with its principal place 

of business at 450 Lexington Avenue, New York, New York. 

2. On information and belief, counterclaim defendant Kesia Price is a citizen of the 

State of New York residing in Queens, New York. 

3. This Court has jurisdiction to consider this Counterclaim pursuant to 28 U.S.C. 

§1367. 

GENERAL ALLEGATIONS

4. Porter Novelli provides a corporate American Express credit card (“AMEX card”) 

to certain employees to facilitate legitimate business related travel and expenses. Any employee 

who accepts one of the Porter Novelli corporate AMEX cards is subject to a corporate credit card 

policy (the “Policy”) issued by Porter Novelli. 

5. The Policy states, among other things, that corporate cards are not to be used for 

personal purchases under any circumstances. The Policy also states that when the cardholder’s 

employment with Porter Novelli ends, it is the cardholder’s responsibility to turn in his/her 

corporate card to Porter Novelli’s Human Resources department and to fully satisfy his/her 

account balance prior to receiving his/her final paycheck, or if that is not possible, by no later 

than ten (10) business days following the termination of employment. 

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6. Porter Novelli is ultimately liable to American Express for the charges on each 

AMEX Card. If the cardholder fails to pay the balance on his or her AMEX Card, Porter Novelli 

may be required to pay American Express on their behalf. However, according to the terms of 

the Policy, the employee always remains responsible to pay for the employee’s charges. 

7. On information and belief, Price received an AMEX card. On or about or about 

September 27, 2004, Price signed an acknowledgement that she had received the Policy. On or 

about September 1, 2006, Price’s employment with Porter Novelli terminated. 

8. On or about the date of Price’s termination, Price had an outstanding balance on 

her AMEX card of $1,327.77—50 days past due. During her exit interview, Price was informed 

that she would have ten days to pay the outstanding balance in accordance with the Policy. 

9. On or about December 12, 2006, Kelly Menne (“Menne”), Director of Finance at 

Porter Novelli, received a call from American Express informing her that Price had not paid the 

outstanding balance, which had risen to $1,493.84. Thereafter, Millie Houston (“Houston”), 

Corporate HR Administrator for Porter Novelli, contacted Price and asked her to pay the 

outstanding balance. A few days later, Price told Houston that she had contacted American 

Express and arranged to make payments directly with them. 

10. On or about December 22, 2006, Menne received another call from American 

Express indicating that Price had never contacted them regarding the outstanding balance. Porter 

Novelli was then required to make a payment to American Express for $1,493.84 to cover 

Price’s charges. 

11. That same day, Menne sent a letter to Price, reminding her of the Policy and 

explaining that Porter Novelli had made a payment to American Express on her behalf. Menne 

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also stated, among other things, that Porter Novelli must be reimbursed in full for the unpaid 

balance of $1,493.84 by December 29, 2006. 

12. Price made no payment to Porter Novelli on December 29, 2006. To date, Price 

has not reimbursed Porter Novelli for any portion of the unpaid balance of $1,493.84. 

FIRST COUNTERCLAIM

Breach of Contract 

13. Porter Novelli repeats and re-alleges paragraphs 1-12 of the Counterclaim as if 

fully set forth herein. 

14. Price signed and acknowledged receipt of the Policy whereby Price was given an 

AMEX card by Porter Novelli to use for business expenses in exchange for her promise to fully 

satisfy her account balance. 

15. Price had an outstanding balance on her AMEX card of $1,493.84, which she 

refused to pay. 

16. Porter Novelli was required to make a payment to American Express in the 

amount of $1,493.84 on Price’s behalf. 

17. In violation of the Policy and her agreement with Porter Novelli, Price has not 

reimbursed Porter Novelli for any portion of the unpaid balance on her AMEX card. 

18. Price’s failure to reimburse Porter Novelli constitutes a breach of contract for 

which Price if liable to Porter Novelli. 

SECOND COUNTERCLAIM

Unjust Enrichment 

19. Porter Novelli repeats and re-alleges paragraphs 1-12 of the Counterclaim as if 

fully set forth herein. 

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20. At the time her employment terminated, Price had an outstanding balance on her 

AMEX card of $1,493.84. 

21. Price never paid the outstanding balance on her AMEX card. 

22. In accordance with the Policy, Porter Novelli was required to make a payment to 

American Express in the amount of $1,493.84 on Price’s behalf. 

23. Price has not reimbursed Porter Novelli for the any portion of the unpaid balance 

on her AMEX card. 

24. Price’s actions resulted in her being unjustly enriched by the amount that Porter 

Novelli was required to pay to satisfy her unpaid balance. 

 THIRD COUNTERCLAIM

Conversion 

25. Porter Novelli repeats and re-alleges paragraphs 1-12 of the Counterclaim as if 

fully set forth herein. 

26. At the time her employment terminated, Price had an outstanding balance on her 

AMEX card of $1,493.84. 

27. Price never paid the outstanding balance. 

28. In accordance with the Policy, Porter Novelli was required to make a payment to 

American Express in the amount of $1,493.84 on Price’s behalf. 

29. Price has not reimbursed Porter Novelli for the any portion of the unpaid balance 

of $1,493.84. 

30. Price’s failure to pay the outstanding balance or to reimburse Porter Novelli for 

the amount that Porter Novelli paid on her behalf constitutes a conversation in the amount of 

$1,493.84, which is the specific amount of money that Porter Novelli was required to pay. 

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PRAYER FOR RELIEF ON COUNTERCLAIM

WHEREFORE, Counterclaimant Porter Novelli prays that this Court enter a judgment in 

its favor against Counterclaim defendant Price as follows: 

 a. Damages in the amount of $1,493.84; 

 b. An award of Porter Novelli’s reasonable attorney’s fees and 

 costs in litigating this Counterclaim; and 

 c. Such other and further relief as this Court deems just and equitable. 

JURY DEMAND

Pursuant to Fed. R. Civ. P. 38, Counterclaimant Porter Novelli respectfully demands a 

trial by jury of any and all issues triable of right by jury in its Counterclaims.

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Dated: August 15, 2007 

New York, New York 

 LATHAM & WATKINS LLP 

By: /s/ John D. Shyer

John D. Shyer (JS-2706) 

885 Third Avenue, Suite 1000 

New York, NY 10022 

Tel: (212) 906-1200 

Fax: (212) 751-4864 

Attorneys for Defendants Porter Novelli, Inc. 

and Omnicom Group Inc. 

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