ard N. VanCleave, OSB No. 80392 Brenda K. Baumgart, OSB No. 99216 Telephone: (503) 228-0500 Attorneys for Defendants Dell Inc., and Dell Marketing USA, L.P. and Jeffrey C. Londa, Pro Hac Vice Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 500 Dallas Street, Suite 3000 Houston, TX 77002-4709 Phone: 713-655-5750 Facsimile: 713-655-0020 E-mail: Jeff.Londa@ogletreedeakins.com Of Counsel for Defendants Michael W. Fox, Pro Hac Vice Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 301 Congress Avenue, Suite 1250 Austin, TX 78701 Phone: 512-344-4700 Facsimile: 512-344-4701 E-mail: Mike.Fox@ogletreedeakins.com Of Counsel for Defendants Case 6:07-cv-06028-TC Document 224 Filed 02/29/2008 Page 56 of 57 00119869.DOC / CERTIFICATE OF SERVICE I hereby certify that on the 29th day of February, 2008, I served the foregoing DEFENDANTS DELL INC. AND DELL MARKETING USA, L.P.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CERTIFICATION UNDER 29 U.S.C. § 216(b) AND FEDERAL RULE OF CIVIL PROCEDURE 23 on the following parties at the following addresses: Derek C. Johnson Douglas G. Schaller Johnson, Clifton, Larson & Schaller, P.C. 975 Oak Street Citizen’s Building, Suite 1050 Eugene, Oregon 97401 George A. Hanson Matthew L. Dameron Stueve Siegel Hanson Woody LLP 330 West 47th Street, Suite 250 Kansas City, MO 64112 ATTORNEYS FOR PLAINTIFFS Craig J. Capon Christine Nesbit Harrang Long Gary Rudnick P.C. 360 East 10th Ave., Suite 300 Eugene, OR 97401-3248 Samuel T. McAdam Alfred L. Sanderson, Jr. Joel Van Parys Seyfarth Shaw LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814-4428 ATTORNEYS FOR DEFENDANT SPHERION CORPORATION By causing the same to be: x e-mailed o mailed o hand delivered o faxed to them a true and correct copy thereof.

The Court Should Therefore Grant §216(b) Collective Certification For Plaintiffs’ FLSA Claim Plaintiffs have made not just a “minimal showing” – they have offered a compelling showing that uniformly, Level-One Managers don’t exercise discretion and independent judgment; and have no authority in selecting, directing, hiring, promoting, or dismissing the “techs” whom they purportedly “supervise”: • When a tech throws a computer at his Level-One “boss,” the tech is sent home for a day with full pay, and no other consequences. • Level Ones cannot fire: (i) techs who sleep on the job; (ii) techs who skip work to play the drums; (iii) techs who falsify records; Case 3:07-cv-00967-JCH Document 120 Filed 03/02/09 Page 24 of 36 18 (iv) techs who crash company trucks and flee the scene of the accident; and (v) techs who set a customer’s house on fire. United by powerlessness, bonded by impotence, micromanaged to the max, the Level-Ones easily satisfy §216(b)’s relaxed test for being “similarly situated.” Plaintiffs’ motion for collective certification should be granted. * * * * Plaintiffs also fulfill all the preconditions for certifying a Rule 23(b)(3) class on the Second Amended Complaint’s CMWA overtime count.

135. By reason of the above, Plaintiffs and members of Nationwide Class “B,”A” demand additional compensation for all hours worked overtime within three years of the filing of the original complaint in this matter until the date of entry of judgment at 1 ½ times their regular rate of pay, plus an equal amount for liquidated damages pursuant to 29 U.S.C. 216, plus interest thereon, plus reasonable attorney’s fees and costs. PRAYER FOR RELIEF WHEREFORE, Plaintiffs and Plaintiff Class pray for judgment as follows: 1.

The D.C. Circuit has recently and flatly stated that any difference between Rule 23 and § 216(b) is a “mere procedural difference . . . .” Lindsay, 448 F.3d at 424 - 425 (reversing denial of Rule 23 certification of New York Labor Law (“NYLL”) claims in a FLSA/NYLL case and rejecting argument that Rule 23 and § 216(b) are in conflict). Tellingly, Defendants do not cite to any authority holding that adjudicating federal and state overtime claims together violates the REA.

See, e.g., Winfield, 2012 U.S. Dist. LEXIS 16449, at *25 n.6 (“courts in this Circuit regularly conclude that [defendant‟s] declarations do not undermine the plaintiffs‟ showing in the first stage of the conditional certification process.”); In re Penthouse Executive Club Comp. Litig., 2010 U.S. Dist. LEXIS 114743, at *12 (defendants‟ submission of competing affidavits “amounts to a premature request to make credibility determinations and factual findings, something that is inappropriate at the notice stage.”); Aros, 269 F.R.D. at 179 (refusing to consider defendant‟s declarations); Alli v. Boston Market, 2011 U.S. Dist. LEXIS 101530, at *15-16 (D. Conn. Sept. 8, 2011) (same); see also Creely v. HCR Manorcare, 789 F. Supp. 2d 819, 840 (N.D. Ohio 2011) (dismissing 35 “happy camper” declarations submitted by defendant as “of little use” on a Section 216(b) motion); see also Damassia, 2006 U.S. Dist. LEXIS 73090, at *21-22. The proper time for consideration of such rebuttal evidence would be at the second stage.

; Murray v. Playmaker Servs., LLC, 548 F.Supp.2d 1378, 1381 (S.D.Fla.2008) (Ryskamp, J.) (providing that the FLSA “directs district courts to award reasonable attorney‟s fees and costs to a plaintiff, in addition to any judgment received”). Here, it is quite clear from the Award of the Arbitrator that the Arbitrator knew of the substantive legal requirements of 29 U.S.C. § 216(b). The Arbitrator cited directly to portions of 216(b) when she awarded Plaintiff back pay and liquidated damages.

29 U.S.C. §§ 206, 207. An employer who violates these provisions is liable to the affected employees for their unpaid wages and overtime compensation, as well as for an equal amount as liquidated damages. Id. § 216(b). The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

There are good reasons why the first stage burden is low. As Judge Glasser cogently explained: Because the statute of limitations for FLSA claims continues to run for each individual plaintiff until he or she opts in, see 29 U.S.C. § 216(b), early certification and notice are favored in order to protect plaintiffs’ rights. Thus, only a minimal evidentiary burden is imposed in order to satisfy the ‘similarly situated’ requirement . . . .

See e.g., Hoffman-La Roche, 493 U.S. at 170; Hertz 624 F.3d at 555; Hinterberger, 2009 U.S. Dist. LEXIS 97944, at *32; Hens, 2006 U.S. Dist. LEXIS 69021, at *16; Alonso, 648 F. Supp. 2d 484, 489-90; Raniere, 2011 U.S. Dist. LEXIS 13539, at *86-90; In re Deloitte & Touche Overtime Litig., 2011 U.S. Dist. LEXIS 144977, at *4-5 (S.D.N.Y. Dec. 16, 2011); Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266 (E.D.N.Y. 2005); Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 241 (N.D.N.Y. 2002). CONCLUSION For all the foregoing reasons, Plaintiffs respectfully submit that the Court should grant this Motion, pursuant to 29 U.S.C. § 216(b), so that additional ASMs can be promptly notified of their right to participate in this lawsuit. Dated: June 28, 2013 Rye Brook, New York By: ______________________________ Seth R. Lesser Fran L. Rudich Michael J. Palitz Rachel E. Berlin KLAFTER OLSEN & LESSER LLP Two International Drive, Suite 350 Rye Brook, New York 10573 Telephone: (914) 934-9200 Gregg I. Schavitz* Susan H. Stern* Keith M. Stern* Paolo C. Meireles* SHAVITZ LAW GROUP, P.A. 1515 South Federal Highway, Suite 404 Boca Raton, Florida 33432 Telephone: (561) 447-8888     MSA_LTR_121018 «Barcode» Control #: MSA-«ClaimID» «MailRec» «First1» «Last1» «co» «Addr1» «Addr2» «City», «ST» «Zip» «Country»   «MailDate»  Re: CSA unpaid overtime litigation with Morgan Stanley Dear «First1» «Last1»: The undersigned law firms represent Client Service Associates of Morgan Stanley in a lawsuit which was filed on June 29, 2011, a nd is pending i

At this “conditional certification” stage, courts do not weigh the merits of the underlying claims in determining whether potential opt-in plaintiffs may be “similarly situated.” See Kreher v. City of Atlanta, 2006 WL 739572, at *4 (N.D. Ga. Mar. 20, 2006) (citing Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (“The focus of [the conditional certification] inquiry is not whether there has been an actual violation of law, but rather on whether the proposed plaintiffs are “similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated). In Kreher, the court concluded that too high a burden would be placed on the plaintiffs at the preliminary notice stage if they were required to submit evidence of a highly particularized nature.