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Sana Zara Bukhari, Megan Faye Cowell, Jane Killian, Individually and On Behalf of All Others Similarly Situated v. Deloitte & Touche Llp and Deloitte Llp

November 26, 2012

SANA ZARA BUKHARI, MEGAN FAYE COWELL, JANE KILLIAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
DELOITTE & TOUCHE LLP AND DELOITTE LLP DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Defendants Deloitte & Touche LLP and Deloitte LLP (collectively, "Deloitte") move to transfer venue to the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). Plaintiffs Sana Zara Bukhari, Megan Faye Cowell, and Jane Killian oppose that motion. For the reasons that follow, the motion to transfer venue is denied.

I.Background*fn1

A.The Complaint

In this putative class action, plaintiffs allege that their employer, Deloitte, a professional services firm, improperly failed to pay employees in three states overtime pay for work performed in excess of 40 hours a week. The case contains claims on behalf of three distinct classes. Bukhari seeks to represent a class of current and former Deloitte employees who held designated positions within the company's audit line of business and who worked in Massachusetts at any time after May 30, 2010. Cowell and Killian seek to represent employees who worked for Deloitte in the same positions in Minnesota and Ohio, after May 30, 2009, and May 30, 2010, respectively. Each plaintiff brings claims under her respective state's wage and hours laws.*fn2 The Complaint does not include any federal claims. Compl. ¶¶ 3--7.

The essence of the Complaint is that Deloitte misclassified plaintiffs and members of the putative classes as "exempt" employees under the respective states' laws.

Specifically, the Complaint covers Deloitte employees who served in the positions of Audit Assistant, Audit Senior Assistant, Audit In-Charge, and Audit Senior. Id. ¶ 54. These employees ("Non-Licensed Employees") were not required to hold a CPA license; by contrast, employees in senior posts-Audit Manager, Audit Senior Manager, and Audit Director ("Licensed Employees")-were. Id. Plaintiffs allege that the work of the Non-Licensed Employees is largely mechanical, requiring little to no personal discretion, and is performed under the direct supervision of the Licensed Employees. Id. ¶¶ 58--62. Non-Licensed Employees must attend national core audit training, and their work is subject to professional, statutory, and internal rules and standards that require them to be controlled and supervised by a licensed CPA on all audit work. Id. ¶¶ 57, 65, 79. According to Deloitte's own national policies, Non-Licensed Employees cannot:

(i) commit Deloitte to an audit engagement; (ii) approve preliminary engagement activities, including the exercise of judgment to assess the potential risk of a potential audit engagement; (iii) approve and sign engagement letters; (iv) work without control and supervision of the licensed CPA; (v) approve or depart from the audit plan/program; (vi) approve and sign any document containing a substantive opinion, conclusion or determination, including audit opinions, audit reports, internal control opinions on public companies (SOX 404 reviews), or certify financial statements; or (vii) advise client management on matters of significance.

Id. ¶ 79.

As a result of the clerical and mechanical nature of their duties, plaintiffs allege that Non-Licensed Employees are properly classified as non-exempt employees under Massachusetts, Minnesota, and Ohio law. Id. ¶¶ 81, 86, 91. However, plaintiffs allege, Deloitte classified them as exempt, and paid them on a salaried basis, with no overtime compensation. Id. ¶¶ 96, 98, 103, 105, 110, 112. Plaintiffs allege that they, and members of the putative classes, often worked more than 40 hours per week, see id. ¶¶ 98, 105, 112, and therefore should have been paid overtime compensation, id. ¶¶ 97, 104, 111.

The Complaint, filed May 30, 2012, pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2)A), id. ¶ 6,seeks to recover unpaid wages, pre-judgment and post-judgment interest, and an order enjoining Deloitte from further violations of law. Id. at 29.

B.The Motion to Transfer

Deloitte moves to transfer venue to the Eastern District of Pennsylvania, pursuant to 28 U.S.C. ยง 1404(a). Deloitte argues that the current action is closely related to a lawsuit currently pending against it there, Berndt v. Deloitte & Touche, No. 12-cv-02157 (E.D. Pa. filed Feb. 20, 2012). Because Berndt was filed before this case, Deloitte argues that transfer of this case to the ...


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