The Fund Class Action - Answer

Case3:06-cv-07776-SC Document14 Filed03/16/07 Page1 of 14
1 RAYMOND L. WHEELER (BAR NO. 52886)

RWheeler@mofo.com
2 MORRISON & FOERSTER LLP
755 Page Mill Road
3 Palo Alto, California 94304-1018
Telephone: (650) 813-5600
4 Facsimile: (650) 494-0792
5 MAHOGANY PAULINO JENKINS (BAR NO. 235055)

MahoganyJenkins@mofo.com
425 Market Street
7 San Francisco, California 94105-2482
Telephone: (415) 268-7000
8 Facsimile: (415) 268-7522
9 WALTER V. SIEBERT (pro hac vice)

BSiebert@sah.com
10 SHERMAN & HOWARD L.L.C.
633 Seventeenth Street, Suite 3000
11 Denver, Colorado 80202-3622
Telephone: (303) 297-2900
12 Facsimile: (303) 298-0940
13 Attorneys for Defendant

FUND FOR PUBLIC INTEREST RESEARCH, INC.
14
15 UNITED STATES DISTRICT COURT
16 NORTHERN DISTRICT OF CALIFORNIA
17 SAN FRANCISCO DIVISION
18
19 RICHARD PRENTICE, CHRISTIAN MILLER, No. C-06-7776 SC

and TIFFNEY PETHERBRIDGE, on their own
20 behalf and on behalf of classes of those similarly CLASS ACTION
situated,
21 DEFENDANT FUND FOR PUBLIC
Plaintiffs, INTEREST RESEARCH, INC.’S
22 ANSWER TO COMPLAINT
v.
23
FUND FOR PUBLIC INTEREST RESEARCH,
24 INC.,
25 Defendant.
26
27
28
DEFENDANT FFPIR’S ANSWER TO COMPLAINT

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1 COMES NOW Defendant, Fund for Public Interest Research, Inc. (“FFPIR” or
2 “Defendant”), by and through its counsel, and respectfully answers Plaintiffs’ Class and
3 Collective Action Complaint and Jury Demand (“Complaint”):
4 PRELIMINARY STATEMENT
5 1. FFPIR admits that Plaintiffs, and all those who they purport to bring this action on
6 behalf of (hereinafter collectively referred to as “Plaintiffs”), are bringing an action for unpaid
7 overtime compensation and related penalties and damages. FFPIR, denies, however, that it has
8 engaged in any wrongdoing or violated any federal or state statute. FFPIR further denies all
9 remaining allegations in paragraph 1 of the Complaint.
10 2. FFPIR denies the allegations in paragraph 2 of the Complaint.
13 JURISDICTION AND PARTIES
14 5. FFPIR admits that this Court has jurisdiction over Plaintiffs’ asserted claims, but
15 denies that a class action is appropriate, the claims of any proposed class exceed $5,000,000 in
16 the aggregate or it has engaged in any wrongdoing or violated any federal or state statute. FFPIR
17 states affirmatively that any supplemental jurisdiction is discretionary with the Court.
18 6. FFPIR admits this Court has personal jurisdiction, but denies the remaining
19 allegations in paragraph 6 of the Complaint.
20 7. FFPIR admits that venue is proper, but denies the remaining allegations in
21 paragraph 7 of the Complaint.
22 8. FFPIR admits that intradistrict assignment to the San Francisco /Oakland division
23 is proper.
24 THE PARTIES
25 9. FFPIR admits that it employed Richard Prentice from September 2003 through
26 December 2003 as a canvasser and he did not receive overtime compensation. FFPIR denies he
27 was employed as a “roaming solicitor” and is without sufficient information or knowledge to
28
DEFENDANT FFPIR’S ANSWER TO COMPLAINT 1

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1 form a belief as to the truth or falsity of the remaining allegations contained in paragraph 9 of the
2 Complaint, and therefore denies them.
3 10. FFPIR admits that it employed Tiffney Petherbridge from January 2004 through
4 August 2005 and she did not receive overtime compensation. FFPIR denies she was employed as
5 a roaming solicitor and is without sufficient information or knowledge to form a belief as to the
6 truth or falsity of the remaining allegations contained in paragraph 10 of the Complaint, and
7 therefore denies them.
8 11. FFPIR admits that it employed Christian Miller from July 2002 through April
9 2006 and he did not receive overtime compensation. FFPIR denies he was employed as a
10 roaming solicitor, and is without sufficient information or knowledge to form a belief as to the
11 truth or falsity of the remaining allegations contained in paragraph 11 of the Complaint, and
12 therefore denies them.
13 12. FFPIR is without sufficient information or knowledge to form a belief as to the
14 truth or falsity of the allegations contained in paragraph 12 of the Complaint, and therefore denies
15 them.
16 13. FFPIR admits that its corporate headquarters is located in Boston, Massachusetts,
17 but denies the remaining allegations of paragraph 13 of the Complaint.
18 SUMMARY OF CLAIMS
19 14. FFPIR admits that Plaintiffs are purporting to bring this action on behalf of
20 themselves and all persons who were, are, or will be employed by it nationwide as Canvassers or
21 Field Managers at any time within the three years prior to this action’s filing date through the date
22 of the final disposition of this action, who have not been compensated at a rate not less than the
23 federal statutory minimum wage rate. FFPIR denies that the persons on whose behalf Plaintiffs
24 claim to bring the action are an appropriate class, that these persons are similarly situated, or that
25 three years is the proper limitations period. FFPIR further denies that it has engaged in any
26 wrongdoing or violated any federal or state statute, or that a collective action is appropriate.
27 15. FFPIR admits that Plaintiffs are purporting to bring this action on behalf of all
28 persons who were, are, or will be employed by it in California as Canvassers or Field Managers at

NO. C-06-7776 SC
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1 any time within the four years prior to this action’s filing date through the date of the final
2 disposition of this action, who have not been compensated at a rate not less than the California
3 minimum wage rate. FFPIR denies, however, that it has engaged in any wrongdoing or violated
4 any federal or state statute, or that a class action is appropriate.
5 16. FFPIR admits that Plaintiff Christian Miller purports to bring this action on behalf
6 of all persons who were, are, or will be employed by it in New York as Canvassers or Field
7 Mangers at any time within the six years prior to this action’s filing date through the date of the
8 final disposition of this action. FFPIR denies, however, that it has engaged in any wrongdoing or
9 violated any federal or state statute, or that a class action is appropriate.
13 20. FFPIR denies the allegations in paragraph 20 of the Complaint, denies that it has
14 engaged in any wrongdoing or violated any federal or state statute, and denies that Plaintiffs are
15 entitled to any relief whatsoever.
16 COLLECTIVE AND CLASS ACTION ALLEGATIONS
17 21. FFPIR denies the allegations contained in paragraph 21 of the Complaint.
18 22. FFPIR admits that a 16(b) collective action may be maintained as an “opt-in”
19 action. FFRIP denies that a collective action is appropriate in this case and denies that Plaintiffs’
20 claims are similar to any other prospective Plaintiffs.
22 24. FFPIR admits Plaintiffs seek to bring the second, third, fourth, fifth, sixth, seventh,
23 and eighth claims for relief pursuant to Fed.R.Civ.P. 23. FFPIR denies that a Rule 23 class action
24 is appropriate, and FFPIR denies any wrongdoing or a violation of any federal or state statute.
26 26. FFPIR denies the allegations contained in paragraph 26 and subparagraphs a-i of
27 the Complaint.

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1 28. FFPIR admits that Plaintiffs’ counsel are competent and experienced in class
2 actions, the FLSA, and state labor and employment litigation. FFPIR denies the remaining
3 allegations contained in paragraph 28 of the Complaint.
8 33. FFPIR denies the allegations contained in paragraph 33 and subparagraphs 1-d of
9 the Complaint.
11 35. FFPIR admits that Plaintiffs’ counsel are competent and experienced in class
12 actions, the FLSA, and state labor and employment litigation. FFPIR denies the remaining
13 allegations contained in paragraph 35 of the Complaint.
16 38. FFPIR is without knowledge or information sufficient to form a belief as to the
18 them.
19 39. FFPIR is without knowledge or information sufficient to form a belief as to the
21 them.
22 FIRST CLAIM FOR RELIEF

(FLSA Claims, 29 U.S.C. § 210, et seq., Brought by All Plaintiffs
23 on Behalf of Themselves and all Nationwide FLSA Collective Plaintiffs)
24 40. FFPIR incorporates by reference its responses to Paragraphs through 1- 39 of the
25 Complaint as if fully set forth herein.
26 41. FFPIR admits that at all relevant times it has engaged in interstate “commerce”
27 and/or in the production of “goods” for “commerce,” within the meaning of the FLSA, 29 U.S.C.
28 § 203. FFPIR further admits that it has gross operating revenues in excess of $500,000. FFPIR is

NO. C-06-7776 SC
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1 without sufficient knowledge or information to verify the truth or falsity of the remaining
2 allegations in paragraph 41 of the Complaint, and therefore denies them.
3 42. FFPIR is without sufficient knowledge or information to form a belief as to the
4 truth or falsity of the allegations in paragraph 42 of the Complaint, and therefore denies them.
5 43. FFPIR admits the allegations in paragraph 43 of the Complaint.
13 50. FFPIR admits that Plaintiffs, on behalf of themselves and a proposed class action,
14 seek legal and equitable relief, but FFPIR denies any wrongdoing and/or that Plaintiffs and/or the
15 proposed class, are entitled to any relief whatsoever.
16 51. FFPIR admits that Plaintiffs, on behalf of themselves and a proposed class action,
17 seek legal and equitable relief, but FFPIR denies any wrongdoing and/or that Plaintiffs and/or the
18 proposed class, are entitled to any relief whatsoever.
19 SECOND CLAIM FOR RELIEF

(California Labor Code §§ 510,1194)
20
21 52. FFPIR incorporates by reference its responses to Paragraphs 1 through 51 of the
23 53. FFPIR denies the allegations in paragraph 53 of the Complaint, and states
24 affirmatively that the laws of California speak for themselves.

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2 THIRD CLAIM FOR RELIEF

(California Labor Code § 1197 – Minimum Wage)
3
9 FOURTH CLAIM FOR RELIEF

(California Labor Code §§ 201, 202, 203 – Wages Due Upon Discharge and Penalties)
10
13 63. FFPIR denies the allegations in paragraph 63 of the Complaint and states
14 affirmatively that the referenced statutes speak for themselves.
18 FIFTH CLAIM FOR RELIEF

(California Labor Code § 226, 1174 – Record-Keeping and Providing Violations)
19
24 SIXTH CLAIM FOR RELIEF

(California Labor Code §§ 218.5, 225.7 & 512–California Meal and Rest Period Provisions)
25

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2 SEVENTH CLAIM FOR RELIEF

(California Business and Professions Code §§ 17200-17208)
3
11 EIGHTH CLAIM FOR RELIEF

(Conversion)
12
19 NINTH CLAIM FOR RELIEF

(New York Labor Law, § 650 et seq., § 190 et seq., and 12 N.Y.C.R.R. Part 142)
20
24 86. FFPIR admits that it is an “employer” within the meaning of New York Labor
25 Law § 651. FFPIR denies the remaining allegations in paragraph 86 of the Complaint.

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1 90. FFPIR admits that Plaintiffs seek recovery of attorneys’ fees and costs, but denies
2 Plaintiffs are entitled to any recovery of fees or costs.
3 91. FFPIR admits that Plaintiffs seek monetary relief, but denies Plaintiffs are entitled
4 to any monetary relief.
5 TENTH CLAIM FOR RELIEF

(New York “Spread of Hours” Compensation, New York Law,
6 § 650 et seq., § 190 et seq., and 12 N.Y.C.R.R. Part 142)
9 93. FFPIR is without sufficient information to verify the truth or falsity of the
10 allegations in paragraph 93, and, therefore denies them.
14 97. FFPIR admits that Plaintiffs seek recovery of attorneys’ fees and costs, but denies
15 Plaintiffs are entitled to any recovery of fees or costs.
16 98. FFPIR admits that Plaintiffs seek monetary relief, but denies that Plaintiffs are
17 entitled to any monetary relief. FFPIR denies the remaining allegations in paragraph 98 of the
18 Complaint.
19 99. FFPIR denies each and every allegation of the Complaint that is not specifically
20 admitted herein.
21 100. FFPIR denies that Plaintiffs are entitled to any relief whatsoever, and to the extent
22 a response is necessary to Plaintiffs’ Prayer for Relief, denies each and every subparagraph of the
23 Prayer for Relief.
24 Further answering, Defendant states the following as defenses. By listing these as
25 defenses, Defendant does not concede that any of these constitute affirmative defenses upon
26 which they would bear any burden of proof:
27
28

NO. C-06-7776 SC
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1 SEPARATE DEFENSES
2 FIRST SEPARATE DEFENSE
3 Plaintiffs are not entitled to overtime compensation to the extent that for any applicable
4 work week they have been compensated at a rate not less than one and one-half times his or her
5 regular rate of pay, which met or exceeded the applicable minimum wage, for all hours worked in
6 excess of forty (40) hours per week in accordance with the Fair Labor Standards Act (“FLSA”),
7 and/or the New York Wage Payment Act, and/or the New York Minimum Wage Act, and/or eight
8 (8) hours per day or forty (40) hours per week pursuant to the California Labor Code.
9 SECOND SEPARATE DEFENSE
10 Plaintiffs and all those they purport to include in any collective or class action are exempt
11 (or under applicable corrective measures are entitled to be exempt) from requirements of the
12 FLSA and/or the California Labor Code and/or the New York Wage Payment Act and/or the New
13 York Minimum Wage Act.
14 THIRD SEPARATE DEFENSE
15 Plaintiffs’ claims are barred, in whole or in part, by the applicable federal and/or state
16 statutes of limitations.
17 FOURTH SEPARATE DEFENSE
18 Plaintiffs have impermissibly joined and combined parties.
19 FIFTH SEPARATE DEFENSE
20 The claims of any Plaintiffs are barred to the extent they are claims which have been the
21 subject of any prior litigation against Defendant brought by the United States Department of
22 Labor or a state labor agency/department.
23 SIXTH SEPARATE DEFENSE
24 To the extent any Plaintiff employed by Defendant as a canvasser and/or field manager
25 was not exempt from overtime compensation requirements of the FLSA and/or the California
26 Labor Code and/or the New York Wage Payment Act and/or New York Minimum Wage Act,
27 which Defendant denies, such individuals were properly compensated in accordance with a
28

NO. C-06-7776 SC
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1 reasonable agreement between such individual and Defendant and applicable law and regulations,
2 including but not limited to, 29 C.F.R. § 785.23.
3 SEVENTH SEPARATE DEFENSE
4 Based on information and belief, Defendant states that at all times relevant hereto, it acted
5 in good faith and with absence of malice with regard to Plaintiffs and had reasonable grounds for
6 believing its actions as to Plaintiffs were not in violation of the FLSA and/or the California Labor
7 Code, California Business & Professions Code, New York Minimum Wage Act and/or the New
8 York Wage Payment Act.
9 EIGHTH SEPARATE DEFENSE
10 Plaintiffs are estopped and/or barred from bringing any claims herein by virtue of their
11 own conduct if, and, or to the extent they signed a settlement agreement and/or accepted
12 payments in release and/or as an accord and satisfaction of any and all claims.
13 NINTH SEPARATE DEFENSE
14 Plaintiffs’ recovery is barred in whole or in part to the extent the doctrines of waiver,
15 laches, estoppel, and/or unclean hands apply.
16 TENTH SEPARATE DEFENSE
17 To the extent Plaintiffs are entitled to recover on the claims alleged, which Defendant
18 denies, Defendant is entitled to offset against any such recovery any and all amounts owed
19 Defendant by such person, any overpayments to such person, any premium pay paid to such
20 person, and any damages or harm caused to Defendant by the actions or inaction of any such
21 person.
22 ELEVENTH SEPARATE DEFENSE
23 The claims asserted herein are barred to the extent such claims were the subject of any
24 prior governmental investigation, part of or covered by any other judicial action, or part of any
25 other judicial action that was settled, resolved or dismissed, or to the extent such claims have
26 been settled, waived and/or released.
27
28

NO. C-06-7776 SC
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1 TWELFTH SEPARATE DEFENSE
2 Defendant is entitled, pursuant to Rule 20(b), to a separate trial on each individual claim
3 asserted by any Plaintiff.
4 THIRTEENTH SEPARATE DEFENSE
5 Plaintiffs’ claims are barred by Section 10 of the Portal to Portal Act, 29 U.S.C. § 259, to
6 the extent Defendant acted in good faith in conformity with and in reliance on written
7 administrative regulations, orders, rulings, approvals and/or interpretation of the Administrator of
8 the Wage and Hour Division of the Department of Labor, and/or any administrative practice or
9 enforcement of the Administrator.
10 FOURTEENTH SEPARATE DEFENSE
11 Plaintiffs are not employees under the New York Wage Payment Act and/or New York
12 Minimum Wage Act.
13 FIFTEENTH SEPARATE DEFENSE
14 To the extent Plaintiffs are entitled to any recovery, which Defendant denies, Plaintiffs are
15 barred and precluded from securing any double recovery, including with respect to overtime
16 compensation, liquidated damages, punitive damages, or other recovery.
17 SIXTEENTH SEPARATE DEFENSE
18 Plaintiffs are precluded from proceeding and not entitled to any recovery to the extent
19 they have waived their right to recover or are estopped by their own actions from doing so.
20 SEVENTEENTH SEPARATE DEFENSE
21 The claims for attorney’s fees, court costs, restitution, injunctive and other equitable
22 remedies and relief, including, but not limited to, liquidated and exemplary damages and back
23 pay, restitution and injunctive relief are not triable to a jury.
24 EIGHTEENTH SEPARATE DEFENSE
25 Any award of penalties, liquidated damages or exemplary damages, to Plaintiffs, would
26 violate the constitutional safeguards provided under the Constitution of the United Sates and of
27 the various states, including the Constitutions of the States of California and New York.
28

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1 NINETEENTH SEPARATE DEFENSE
2 Plaintiffs have failed and neglected to mitigate their respective alleged damages, injuries,
3 and/or losses, and, therefore, any recovery against Defendant should be barred or reduced
4 accordingly.
5 TWENTIETH SEPARATE DEFENSE
6 Defendant has not knowingly and/or intentionally failed to comply with any federal or
7 state statute.
8 TWENTY-FIRST SEPARATE DEFENSE
9 Some or all of Plaintiffs may be exempt under California law and/or applicable Wage
10 Orders as they may receive half their compensation in commissions and their regular rate of pay
11 exceeds 1.5 times the minimum wage.
12 TWENTY-SECOND SEPARATE DEFENSE
13 Plaintiffs are outside salesmen under New York Minimum Wage Act.
14 TWENTY-THIRD SEPARATE DEFENSE
15 Plaintiffs are exempt as outside salespersons under California Labor Code and the Fair
16 Labor Standards Act.
17 TWENTY-FOURTH SEPARATE DEFENSE
18 Defendant reserves the right to amend its answer and to add additional Affirmative and/or
19 Separate Defenses as Plaintiffs’ claims are more fully discovered in the course of this litigation.
20 TWENTY-FIFTH SEPARATE DEFENSE
21 Plaintiffs’ Complaint fails to state a claim upon which relief may be granted.
22 TWENTY-SIXTH SEPARATE DEFENSE
23 Some or all of Plaintiffs are not similarly situated to each other or any other current or
24 former employee of Defendant.
25 TWENTY-SEVENTH SEPARATE DEFENSE
26 This matter should not be certified as a collective action pursuant to 29 U.S.C. § 216.
27 TWENTY-EIGHTH SEPARATE DEFENSE
28 This matter should not be certified as a class action under Fed.R.Civ.P. 23.

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1 TWENTY-NINTH SEPARATE DEFENSE
2 Some or all of Plaintiffs are exempt under 29 U.S.C. § 207(i).
3 THIRTIETH SEPARATE DEFENSE
4 Some of Plaintiffs’ claims are preempted.
5 THIRTY-FIRST SEPARATE DEFENSE
6 Some of Plaintiffs may be exempt under applicable administrative and/or executive
7 exemptions.
8 WHEREFORE, after fully answering Plaintiffs' Complaint, Defendant prays as follows:
9 A. That Plaintiffs take nothing by this action;
10 B. That judgment be entered in Defendant’s favor;
11 C. That Defendant recover all costs of Court and reasonable attorneys’ fees as
12 authorized by statute and/or common law; and
13 D. That Defendant be awarded such other and further relief, both at law and in equity,
14 to which it may show itself to be justly entitled.
15 Dated: March 16, 2007

16 RAYMOND L. WHEELER
MAHOGANY PAULINO JENKINS
18 WALTER V. SIEBERT
SHERMAN & HOWARD L.L.C.
19
20
By: /s/Walter V. Siebert
21 Walter V. Siebert (pro hac vice)
22 Attorneys for Defendant
FUND FOR PUBLIC INTEREST
23 RESEARCH, INC.
24
ECF CERTIFICATION
25
Pursuant to General Order No. 45, § X.B., the filing attorney attests that she has obtained
26 concurrence regarding the filing of this document from the signatory to the document.
27 By: /s/Mahogany Paulino Jenkins
Mahogany Paulino Jenkins
28

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The Fund Class Action - Answer

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Case3:06-cv-07776-SC Document14 Filed03/16/07 Page1 of 14

1 RAYMOND L. WHEELER (BAR NO. 52886)

5 MAHOGANY PAULINO JENKINS (BAR NO. 235055)

9 WALTER V. SIEBERT (pro hac vice)

13 Attorneys for Defendant

15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA

17 SAN FRANCISCO DIVISION

19 RICHARD PRENTICE, CHRISTIAN MILLER, No. C-06-7776 SC

DEFENDANT FFPIR’S ANSWER TO COMPLAINT

3 Collective Action Complaint and Jury Demand (“Complaint”):

9 remaining allegations in paragraph 1 of the Complaint.

10 2. FFPIR denies the allegations in paragraph 2 of the Complaint.

11 3. FFPIR denies the allegations in paragraph 3 of the Complaint.

12 4. FFPIR denies the allegations in paragraph 4 of the Complaint.

13 JURISDICTION AND PARTIES

19 allegations in paragraph 6 of the Complaint.

21 paragraph 7 of the Complaint.

27 was employed as a “roaming solicitor” and is without sufficient information or knowledge to

DEFENDANT FFPIR’S ANSWER TO COMPLAINT 1

2 Complaint, and therefore denies them.

7 therefore denies them.

12 therefore denies them.

13 12. FFPIR is without sufficient information or knowledge to form a belief as to the

17 but denies the remaining allegations of paragraph 13 of the Complaint.

DEFENDANT FFPIR’S ANSWER TO COMPLAINT 2

4 any federal or state statute, or that a class action is appropriate.

9 violated any federal or state statute, or that a class action is appropriate.

10 17. FFPIR denies the allegations in paragraph 17 of the Complaint.

11 18. FFPIR denies the allegations in paragraph 18 of the Complaint.

12 19. FFPIR denies the allegations in paragraph 19 of the Complaint.

15 entitled to any relief whatsoever.

16 COLLECTIVE AND CLASS ACTION ALLEGATIONS

17 21. FFPIR denies the allegations contained in paragraph 21 of the Complaint.

20 claims are similar to any other prospective Plaintiffs.

21 23. FFPIR denies the allegations contained in paragraph 23 of the Complaint.

25 25. FFPIR denies the allegations contained in paragraph 25 of the Complaint.

28 27. FFPIR denies the allegations contained in paragraph 27 of the Complaint.

DEFENDANT FFPIR’S ANSWER TO COMPLAINT 3

3 allegations contained in paragraph 28 of the Complaint.

4 29. FFPIR denies the allegations contained in paragraph 29 of the Complaint.

5 30. FFPIR denies the allegations contained in paragraph 30 of the Complaint.

6 31. FFPIR denies the allegations contained in paragraph 31 of the Complaint.

7 32. FFPIR denies the allegations contained in paragraph 32 of the Complaint.

10 34. FFPIR denies the allegations contained in paragraph 34 of the Complaint.

13 allegations contained in paragraph 35 of the Complaint.

14 36. FFPIR denies the allegations contained in paragraph 36 of the Complaint.

15 37. FFPIR denies the allegations contained in paragraph 37 of the Complaint.

16 38. FFPIR is without knowledge or information sufficient to form a belief as to the

19 39. FFPIR is without knowledge or information sufficient to form a belief as to the

22 FIRST CLAIM FOR RELIEF

25 Complaint as if fully set forth herein.

DEFENDANT FFPIR’S ANSWER TO COMPLAINT 4

2 allegations in paragraph 41 of the Complaint, and therefore denies them.

3 42. FFPIR is without sufficient knowledge or information to form a belief as to the

5 43. FFPIR admits the allegations in paragraph 43 of the Complaint.

6 44. FFPIR denies the allegations in paragraph 44 of the Complaint.

7 45. FFPIR is without sufficient knowledge or information to form a belief as to the

9 46. FFPIR denies the allegations in paragraph 46 of the Complaint.

10 47. FFPIR denies the allegations in paragraph 47 of the Complaint.

11 48. FFPIR denies the allegations in paragraph 48 of the Complaint.

12 49. FFPIR denies the allegations in paragraph 49 of the Complaint.

15 proposed class, are entitled to any relief whatsoever.