Judd v. Keypoint Government Solutions Incorporated
Court Docket Sheet

District of Arizona

3:2017-cv-08050 (azd)

COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-14004634 filed by Orson Judd. (submitted by Michael McKay)

Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 1 of 21 1 Michael C. McKay, SBN 023354 SCHNEIDER WALLACE 2 COTTRELL KONECKY WOTKYNS LLP 3 8501 North Scottsdale Road, Suite 270 Scottsdale, Arizona 85253 4 Telephone: (480) 428-0142 Facsimilie: (866) 505-8036 5 mmckay@schneiderwallace.com 6 Joshua Konecky, CA SBN 182897 (Pro Hac Vice application to follow) Leslie H. Joyner, CA SBN 262705 (Pro Hac Vice application to follow) 7 SCHNEIDER WALLACE COTTRELL KONECKY 8 WOTKYNS LLP 2000 Powell Street, Suite 1400 9 Emeryville, CA 94608 Telephone: (415) 421-7100 10 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 11 ljoyner@schneiderwallace.com 12 Attorneys for Plaintiff 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF ARIZONA 15 ORSON JUDD, an individual, on behalf of) 16 himself and on behalf of all others similarly) situated,) COLLECTIVE ACTION COMPLAINT 17) UNDER THE FAIR LABOR STANDARDS Plaintiff,) ACT (FLSA), 29 U.S.C. § 201, et seq. 18) vs.) 19) JURY TRIAL DEMANDED KEYPOINT GOVERNMENT SOLUTIONS,) 20 INC., a Delaware corporation,)) 21 Defendant.)) 22) 23 24 Plaintiff Orson Judd ("Plaintiff") by and through his undersigned attorneys, hereby brings this 25 Collective Action Complaint on behalf of himself and all others similarly situated, against Defendant 26 Keypoint Government Solutions, Inc. ("Defendant"), and alleges as follows: 27 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 2 of 21 1 I. NATURE OF THE CASE 2 1. This is a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. 3 ("FLSA"), arising out of Defendant’s ongoing and willful misclassification of its "Investigators" as 4 "independent contractors" instead of "employees." Under the FLSA, employees are entitled to 5 overtime premium wages for all hours worked beyond 40 in a workweek. Independent contractors 6 do not have this legal right. Thus, Defendant’s willful policy of misclassification has allowed it to 7 decrease its bottom line by wrongfully and illegally withholding the overtime wages that it owes to 8 its numerous Investigators across the country. 9 2. On September 29, 2011, the Internal Revenue Service (IRS) provided a seven-page 10 determination letter to Defendant’s CEO, Jeff Schlanger, explaining its conclusion that Defendant 11 had misclassified one of its Investigators as an independent contractor rather than an employee. A 12 copy of the letter is attached to this Complaint as Exhibit A. The IRS letter identified numerous 13 reasons why the Investigator should have been classified as an employee. The IRS letter also 14 references Defendant’s potential tax liability for not paying employment related taxes as a result of 15 misclassifying the Investigator as an independent contractor rather than employee. As it turns out, 16 Defendant employs thousands of Investigators across the United States who perform the same kind 17 of work as this Investigator, under the same corporate-wide constraints, policies and procedures of 18 Defendant that lead to the IRS determination. Defendant neither pays these Investigators overtime, 19 nor does it pay employment taxes to the government pertaining to their employment. 20 3. In or around 2014, Defendant reclassified all its Investigator in California as 21 employees. Defendant, however, continues to classify numerous Investigators in other states as 22 independent contractors, even though they do the same kind of work under the same or substantially 23 similar policies, procedures and constraints as the Investigators properly classified as employees. 24 Defendant willfully continues to classify numerous Investigators as independent contractorss—and 25 deny them their legal right to overtime wages—despite knowing that the classification is unlawful. 26 4. The Investigators perform background checks, an integral part of Defendant’s business 27 as a provider of background checks to the federal government. The Investigators also routinely 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 2 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 3 of 21 1 work more than 40 hours a week. They perform traditional investigative work (e.g. tracking down 2 witnesses, interviewing witnesses, finding and reviewing public records, etc.). They also spend 3 additional time writing reports on their investigations for Defendant to submit to the government. 4 The investigative work must generally be performed during regular business hours and is itself a full 5 time job. On top of the 40 or more hours per week spent on this work, the Investigators must spend 6 substantial additional time after hours to write-up their reports, and must do so under deadlines 7 imposed by Defendant. As a result, the Investigators, including Plaintiff, regularly work well over 8 40 hours per week, but do not receive any overtime pay. 9 5. Defendant owes its Investigators overtime pay for their overtime hours because 10 Defendant is the legal employer of the Investigators. The Investigators perform an integral part of 11 Defendant’s business and Defendant retains the right to exercise extensive control over the way the 12 Investigators perform their jobs. Among other things, Defendant retains the right to control the 13 Investigators’ pay rate, hours, deadlines, forms and scripts for interviews, quality control on reports 14 ultimately submitted to the government, and other details of the job. Moreover, Defendant does not 15 permit its Investigators to submit reports to the government until Defendant has completed an 16 extensive "Case Review Process." Defendant treats the Investigators as employees in every material 17 respect, except that it has misclassified an entire class of them as independent contractors. 18 6. Although Defendant has misclassified Plaintiff and numerous other similarly situated 19 Investigators as independent contractors, it simultaneously has classified another subset of 20 Investigators as employees. The Investigators classified as independent contractors are subject to 21 the same or similar rules, procedures, responsibilities and level of control as those classified by 22 Defendant as employees. Other than the number of hours worked or whether the worker is paid 23 overtime and other benefits, there is no material difference between them. They all are "employees" 24 under applicable law. Yet, Defendant has misclassified a whole category of them as "independent 25 contractors." Using this classification scheme, Defendant has failed to pay these Investigators the 26 full wages and employment benefits they are due. 27 7. Defendant’s unlawful classification of Plaintiff and other similarly situated 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 3 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 4 of 21 1 Investigators as independent contractors is part of an unlawful policy and practice to evade the 2 overtime obligations and other responsibilities that employers owe to their workers and the 3 government under the FLSA and applicable tax laws. Defendant has violated and continues to 4 violate the overtime requirements of the FLSA, 29 U.S.C. § 207(a), and the applicable Regulations 5 of the Department of Labor. 6 8. Defendant’s violations have been willful under 29 U.S.C. § 255(a). Defendant has 7 known that its classification of Investigators as independent contractors violates the FLSA since at 8 least September 29, 2011, when the IRS concluded that Defendant had misclassified a California-9 based Investigator as an independent contractor when in fact he was an employee. See Ex. A. That 10 Investigator, Michael Sgherzi, later filed a class action under California law in or around June of 11 2014, which included claims for violations of the FLSA. As a result of the California lawsuit, 12 Defendant reclassified its Investigators in California as employees, but did not reclassify 13 Investigators in other states. These facts and others demonstrate that Defendant has acted willfully in 14 misclassifying the Investigators as independent contractors rather than employees. Thus, Plaintiff is 15 entitled to recover damages under FLSA’s three-year statute of limitations, which is applicable to 16 willful violations. 17 9. This action follows an earlier filed action against Defendant, Richard Smith, et al. v. 18 KeyPoint Government Solutions, Case No. 1:15-cv-00865 (D. Colo.) ("Smith Action"). During the 19 pendency of the Smith Action, Defendant required all of its Investigators to execute new contracts, 20 which included an arbitration agreement and collective action waiver. However, because the Ninth 21 Circuit has held that collective action waivers such as the one contained in Defendant’s arbitration 22 agreement are unenforceable under the National Labor Relations Act (see Morris v. Ernst & Young, 23 LLP, 834 F.3d 975 (9th Cir. 2016) petition for cert. granted 2017 WL 125665 (Jan. 13, 2016)), 24 Plaintiff is entitled, under the law of this Circuit, to pursue his claims in this Court action. 25 10. Plaintiff Orson Judd brings this collective action under the FLSA, 29 U.S.C. § 216(b), 26 on behalf of himself and other similarly situated individuals who worked for Defendant as 27 Investigators in the United States, while being classified by Defendant as independent contractors at 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 4 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 5 of 21 1 any time beginning three years before the filing of this Complaint and/or the filing of consents to 2 become party plaintiffs (including the time period Plaintiff’s and others’ claims were tolled by the 3 filing of consents in an earlier filed action, Richard Smith, et al. v. KeyPoint Government Solutions, 4 Case No. 1:15-cv-00865 (D. Colo.)), plus additional time for other periods of equitable tolling. 5 11. Plaintiff challenges Defendant’s policies of: (1) classifying Plaintiff and other 6 similarly situated Investigators as independent contractors instead of employees; and (2) failing to 7 pay Plaintiff and other similarly situated Investigators overtime wages for hours worked in excess of 8 40 in a week. Plaintiff seeks compensation in the form of back wages, including overtime wages; an 9 additional equal amount as liquidated damages; and interest to the full extent permitted by the 10 FLSA. Plaintiff, on behalf of himself and all others similarly situated, also requests reasonable 11 attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b). 12 II. VENUE AND JURISDICTION 13 12. The FLSA authorizes private rights of action to recover damages for violations of the 14 FLSA’s wage and hour provisions. 29 U.S.C. § 216(b). 15 13. This Court has jurisdiction over Plaintiff’s FLSA claims under 28 U.S.C. § 1331 16 because Plaintiff’s claims arise under the FLSA. The Court also has jurisdiction under 28 U.S.C. § 17 1332(a)(1), because the amount in controversy in this action exceeds $75,000, exclusive of interests 18 and costs, and because the parties are residents of different states. 19 14. Venue is proper under 28 U.S.C. §1391, because Defendant employs members of the 20 proposed Collective and transacts business in this Judicial District, and a substantial part of the acts 21 and/or omissions giving rise to the claims occurred in this District. 22 III. PARTIES 23 15. Plaintiff, Orson Judd, is a resident of Taylor, Arizona. Mr. Judd worked for Defendant 24 as an Investigator in Arizona, between approximately June of 2008 and September of 2014. 25 Throughout that time period, Defendant consistently classified Mr. Judd as an independent 26 contractor and did not pay him any overtime or other benefits owed to employees. On August 20, 27 2015, Mr. Judd filed a consent to join in an earlier filed case, Richard Smith, et al. v. KeyPoint 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 5 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 6 of 21 1 Government Solutions, Case No. 1:15-cv-00865 (D. Colo.) (hereinafter, "Smith"). On December 16, 2 2016, the court determined that the clams of Richard Smith were time-barred under the applicable 3 statute of limitations and ordered dismissal of the case. The dismissal was without prejudice as to the 4 claims of all investigators other than Mr. Smith. Accordingly, the statute of limitation was tolled for 5 Mr. Judd throughout the pendency of the Smith Action, which concluded on January 20, 2017. 6 16. Plaintiff’s signed consent to join form is attached to this Complaint as Exhibit B. 7 17. The Collective Action members are current or former Investigators who have worked 8 for Defendant in the United States, while being classified by Defendant as independent contractors, 9 at any time beginning three years before the filing of this Complaint and/or the filing of consents to 10 become party plaintiffs (including the time period the claims of any Collective Action members 11 were tolled by the filing of consents in the Smith case) plus additional time for periods of equitable 12 tolling. 13 18. Defendant Keypoint Government Solutions, Inc. ("Keypoint") is and at all relevant 14 times has been engaged in the business of security-clearance background investigation and screening 15 services across the United States. 16 19. Defendant Keypoint is incorporated in Delaware, headquartered in Loveland, 17 Colorado, registered to do business in the State of Arizona, under registration number F15087750. 18 Defendant employs thousands of Investigators to perform work across the United States, including 19 in this Judicial District, and is a resident of this Judicial District. 20 20. Defendant Keypoint was formerly Kroll Government Services, Inc. ("Kroll"), also a 21 Colorado corporation. Kroll was Plaintiff’s employer until 2009. In 2009, Kroll was acquired by 22 Veritas Capital Fund Management, L.L.C., and became Defendant Keypoint. 23 21. Any reference to Defendant or Keypoint herein is intended to include both Keypoint 24 and Kroll to the extent that any conduct by Kroll, or the consequences of any conduct by Kroll, 25 extends into the period of time after Kroll changed to Keypoint. 26 IV. FACTUAL ALLEGATIONS 27 22. KeyPoint is in the business of performing background investigations for the federal 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 6 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 7 of 21 1 government. KeyPoint describes itself as "the leading provider of security-clearance background 2 investigations and screening services to the U.S. Government." Defendant classifies some 3 Investigators as employees. Employee Investigators receive overtime pay and benefits, such as 4 vacation, floating holidays, 401Ks, health insurance, mileage reimbursement, workers compensation 5 insurance, short and long-term disability benefits and life insurance benefits. Plaintiff and the other 6 similarly situated Investigators classified by Defendant as independent contractors, however, receive 7 none of these benefits and do not receive overtime pay. The reason KeyPoint classifies them as 8 independent contractors (rather than employees) is simply to allow KeyPoint to manage its workload 9 by flexing up or down its workforce (and not because their work is categorically different from that 10 of employees). 11 23. KeyPoint hires Investigators to perform the integral role of KeyPoint’s business, i.e., 12 the Investigators’ job is to complete the actual case investigations in the field where the case is 13 assigned. The Investigators, like Plaintiff and other similarly situated individuals, all perform the 14 same basic job: interviewing subjects, conducting public records searches, interviewing sources, and 15 writing investigation reports. They all sign a standardized "Independent Contractor Engagement 16 Agreement" (ICEA) with KeyPoint. 17 24. The independent contractor agreement is terminable at-will by Defendant, and does 18 not contain a notice requirement. Accordingly, the contractual agreement does not contemplate an 19 end date to the business relationship. Plaintiff and other similarly situated Investigators often work 20 for Defendant for several years. Ninety-five percent (95%) work for Defendant for more than one 21 year, including Plaintiff. 22 25. All the Investigators that KeyPoint hires as independent contractors work on 23 investigations KeyPoint performs for either the Office of Personnel Management ("OPM") or 24 Department of Homeland Security ("DHS"). Approximately 85% work on OPM, 15% work on 25 DHS, and 5% work on both. Of the 15% that work on the DHS contract, at least 80% work on 26 investigations pertaining to either Custom and Border Protection ("CBP") and/or Immigration and 27 Customs Enforcement ("ICE"). 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 7 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 8 of 21 1 26. The Investigators receive all case assignments directly from KeyPoint. KeyPoint 2 obtains a case investigation project from its client, and then divides the project into multiple sub-3 tasks that it then distributes to different Investigators. KeyPoint assigns work to the Investigators 4 based on KeyPoint’s own strategic and logistical needs, and the Investigators play no role in this 5 process. 6 27. The Investigators are completely dependent on the individual tasks KeyPoint makes 7 available for them to complete. Investigators are prohibited from subcontracting out or assigning 8 work to anyone else to perform. They do not have the independence to simply take on a project and 9 decide who is going to perform it and how. Rather, the Investigators must personally perform all 10 assigned tasks themselves. 11 28. The clients belong to KeyPoint, not the Investigators, and the Investigators do not 12 have access to or communicate with clients. In fact, Investigators have no role whatsoever in any of 13 the negotiations that KeyPoint has with its clients that impact either the work made available to 14 Investigators, the way in which the Investigators must perform their work, or the rates of pay 15 ultimately offered to the Investigators. 16 29. KeyPoint agrees with its clients to control the details of work performed by all the 17 Investigators and KeyPoint maintains numerous uniform policies to manage the work of the 18 Investigators. 19 30. For example, KeyPoint enforces the multiple, detailed policies, procedures and 20 techniques contained in the Investigator’s Handbook. The Investigator’s Handbook is nearly 550 21 single-spaced pages of detailed policies and procedures that Investigators must follow to complete 22 work for KeyPoint. It even includes specific lines of questioning and questions that need to be 23 adhered to in each interview conducted by an Investigator. The policies and procedures in the 24 Investigator’s Handbook are mandatory. 25 31. Furthermore, KeyPoint has assumed responsibility for overseeing Investigators who 26 are independent contractors to ensure that they are complying with the policies and procedures in the 27 Investigator’s Handbook. For example, KeyPoint enforces policies on the "proper process" for 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 8 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 9 of 21 1 contacting sources; how to use private information; how to keep handwritten notes, and the timing 2 and method of shipping investigation notes to KeyPoint. KeyPoint also imposes deadlines on the 3 Investigators based on deadlines KeyPoint has with its clients. KeyPoint is also responsible for 4 ensuring compliance with the quality and timing standards set by KeyPoint’s contracts with the 5 government. 6 32. KeyPoint’s policies are mandatory and Investigators are expected to comply. If an 7 Investigator fails to follow KeyPoint’s numerous, detailed policies and procedures, KeyPoint 8 reserves the right to take corrective action, up to and including termination. 9 33. KeyPoint requires that the Investigators attend extensive training provided by 10 KeyPoint before starting work. For work on the OPM project (approximately 80% of the 11 Investigators), KeyPoint requires a total of 10 weeks of training. The first seven weeks are unpaid 12 and include between six and eight hours of classroom work per day. After completing the classroom 13 training, Investigators must then complete 80 hours of On-The-Job ("OTJ") training. 14 34. KeyPoint also requires Investigators to complete annual training on security policies 15 and procedures. 16 35. KeyPoint's training provides Investigators with the necessary skills to perform their 17 job, including procedures for conducting interviews, handling notes, transmitting reports, and 18 conducting record searches. Investigators’ training even includes detailed written instructions for the 19 lines of questioning that should be pursued for each interview. KeyPoint provides such extensive 20 training as a measure of accountability to its customer. KeyPoint even monitors the Investigators' 21 performance to determine if additional training is necessary. 22 36. Keypoint imposes report completion deadlines on Plaintiff and other similarly situated 23 Investigators. The background checks usually must be completed within 2 weeks from the date they 24 are assigned. 25 37. Once Investigators accept an assignment, they are expected to meet a due-date 26 established by KeyPoint based on what KeyPoint negotiates with its clients. Investigators cannot 27 renegotiate deadlines with KeyPoint’s clients. 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 9 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 10 of 21 1 38. The Investigators must complete the necessary interviews, perform the necessary 2 document searches, and write the necessary reports in accordance with KeyPoint’s policies, 3 deadlines and quality control standards. The end product is a "Report of Investigation" that 4 KeyPoint submits to its client. For work provided to OPM, KeyPoint has a team of "Case Review 5 Analysts" that review each report before it is deemed fit for the client. For the DHS project, 6 KeyPoint has three levels of internal review before it goes to the client. If KeyPoint determines a 7 report does not meet all the standards and requirements, the Investigator must rewrite it. 8 39. Throughout the process, Keypoint provides the Investigators with guidance and 9 mentoring by assigning them "Contract Liaisons" and "Case Managers." The Case Managers and 10 Contract Liaisons are employees of KeyPoint who "take ownership of the case" and "manage the 11 case through to the end." KeyPoint also has a "Policy and Guidance" Department that provides 12 uniform guidance to Investigators in the field as to how to interpret and follow policy. 13 40. In addition to the multi-layer report review process, KeyPoint also subjects the 14 Investigators to random audits and internal inspections to ensure they comply with the "proper 15 process." KeyPoint will re-contact 10% of sources in order to determine if an Investigator followed 16 proper procedure. KeyPoint also monitors Investigators’ emails to ensure compliance with 17 KeyPoint’s security protocols and keeps track of complaints filed against the Investigators. 18 41. KeyPoint evaluates Investigators based on a set of 78 standards. When they fail to 19 comply with KeyPoint policies, KeyPoint sends Investigators a letter of violation. The Investigator 20 must reply, confirming agreement to next time follow the "proper process." If KeyPoint determines 21 that an Investigator did not follow "proper process," KeyPoint may require additional corrective 22 action, such as retraining. In some cases, KeyPoint’s corrective action may include termination. 23 42. The Investigators do not "invest" in their own businesses. Conversely, KeyPoint 24 invests over $12,000 into each Investigator to provide mandatory training and credentials. 25 Investigators also receive a laptop, software, and security equipment. They do not invest time or 26 resources into developing relationships with KeyPoint’s clients. They do not invest in additional 27 employees to perform work. In fact, KeyPoint requires the Investigators to personally perform all the 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 10 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 11 of 21 1 tasks themselves. 2 43. The only investment Investigators make into their "business," is for transportation, 3 paper, pens, a printer, and sometimes a fax machine. KeyPoint provides everything else 4 Investigators need to receive and complete their tasks. 5 44. At the same time, every Investigator’s opportunity for profit is constrained by the 6 work that KeyPoint decides to make available. KeyPoint also limits Investigators’ opportunities for 7 profit and loss by paying them all on a similar piece-rate structure. Under certain circumstances, 8 Investigators may ask for premium pay for specific work, but only 12-15% of assignments include 9 premium pay. KeyPoint affords its Contract Liaisons limited authority to grant premium pay. The 10 only ways that Investigators can control profits and losses is to accept more work from what 11 KeyPoint makes available, work more efficiently on their tasks, and/or drive a less expensive car. 12 45. Still, Investigators work for KeyPoint on a continuous basis. Ninety-five percent 13 (95%) of Investigators remain with KeyPoint for more than one year. Indeed, the standardized 14 agreement KeyPoint requires all Investigators to sign obligates them to repay KeyPoint for up to 15 $5,000 in training expenses if they leave KeyPoint within a year. KeyPoint also keeps Investigators 16 working regularly and continuously by enforcing a policy that Investigators must work at least once 17 every 30 days to stay credentialed. 18 46. KeyPoint has no degree requirements for its Investigators. KeyPoint’s only specific 19 requirement is that the Investigator complete the training KeyPoint provides. KeyPoint’s training is 20 designed to provide Investigators with the specialized skills required for the job. All Investigators 21 attend the same training to develop the skills necessary to work for KeyPoint. 22 47. As indicated above, the work Defendant requires and/or suffers and permits Plaintiff 23 and other similarly situated Investigators to perform can be divided into two broad categories: (1) 24 investigative tasks; and (2) report writing. Plaintiff and other similarly situated Investigators 25 generally must perform the investigative tasks during traditional business hours because public 26 records and interview subjects tend to be unavailable outside of these hours. Consequently, report 27 writing and related tasks often must be performed outside of traditional business hours. The 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 11 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 12 of 21 1 investigative work alone is substantial, and regularly demands at least 40 hours of work per week, 2 per Investigator. Combined with the report writing, Plaintiff and the other similarly situated 3 Investigators must regularly work well over 40 hours per week. Indeed, given the nature of 4 investigative work and timing restrictions on investigative tasks, Plaintiff and other similarly 5 situated Investigators regularly work substantial overtime hours to meet the deadlines set by 6 Defendant. Yet, Defendant does not pay Plaintiff or other similarly situated Investigators for all 7 these hours, and does not pay them at one and one-half times their regular rate for hours over 40 in a 8 week. 9 48. Defendant compensates Plaintiff and other similarly situated Investigators for work 10 performed on the Office of Personnel Management contract with a flat fee. For all other work, 11 Defendant compensates Plaintiff and other similarly situated Investigators pursuant to a standard 12 "Project Structure Fee," under which all payments are broken into "source units." For example, 13 subject interviews are considered 4 source units, and reference interviews are considered 1 source 14 unit, even if they take the same amount of time to complete. Defendant presents the compensation 15 terms to Plaintiff and other similarly situated Investigators on a "take-it-or-leave-it" basis. 16 49. Plaintiff and other similarly situated Investigators also incur substantial out-of-pocket 17 expenses in the form of mileage and office supplies, among other resources. Despite these 18 significant expenditures, Plaintiff and other similarly situated Investigators invest little in their 19 "businesses" besides gas money, office supplies, and a phone, which in reality are the Defendant’s 20 costs of doing business. As a general matter, Plaintiff and other similarly situated Investigators do 21 not have or work through a genuine "business" in any meaningful sense, but simply work as 22 employees of Defendant. 23 50. Plaintiff and other similarly situated Investigators perform their work according to 24 instructions set by Defendant and communicated to Plaintiff and other similarly situated 25 Investigators during the lengthy trainings and mentoring programs to ensure that work is performed 26 according to Defendant’s precise specifications. 27 51. As noted above, this action follows an earlier filed action against Defendant, Richard 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 12 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 13 of 21 1 Smith, et al. v. KeyPoint Government Solutions, Case No. 1:15-cv-00865 (D. Colo.) ("Smith 2 Action"). During the pendency of the Smith Action, Defendant required all of its Investigators to 3 execute new contracts, which included an arbitration agreement and collective action waiver. 4 However, because the Ninth Circuit has held that collective action waivers such as the one contained 5 in Defendant’s arbitration agreement are unenforceable under the National Labor Relations Act (see 6 Morris, 834 F.3d 975, Plaintiff is entitled, under the law of this Circuit, to pursue his claims in this 7 Court action. 8 V. COLLECTIVE ALLEGATIONS 9 52. Plaintiff brings this action as an "opt-in" collective action pursuant to 29 U.S.C. § 10 216(b), on behalf of himself and a proposed Collective of similarly situated employees defined as: 11 12 "All individuals who have worked for Defendant as Investigators in the United States, while being classified as independent contractors, at any time beginning three years before the 13 filing of this Complaint and/or the filing of consents to become party plaintiffs (including the time period the claims of any Collective Action members were tolled by the filing of 14 consents in Richard Smith, et al. v. KeyPoint Government Solutions, Case No. 1:15-cv-00865 (D. Colo.)), plus additional time for periods of equitable tolling." 15 53. Plaintiff, on behalf of himself, and on behalf of other similarly situated employees 16 defined above, seeks relief on a collective basis challenging Defendant’s policy of misclassifying 17 Investigators as independent contractors, and failing to pay them for all hours worked, including 18 overtime compensation. The number and identity of other similarly situated persons yet to opt-in as 19 party-plaintiffs may be determined from the records of Defendant, and potential opt-ins may be 20 easily and quickly notified of the pendency of this action. 21 54. This case is well suited for certification as a collective action because the independent 22 contractor misclassification issue will be answered with common proof for Plaintiff and the other 23 similarly situated individuals. 24 55. The test for determining whether KeyPoint has misclassified its Investigators as 25 independent contractors contains the following factors: 1) The degree of the alleged employer's right 26 to control the manner in which the work is to be performed; 2) the alleged employee's opportunity 27 for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 13 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 14 of 21 1 equipment or materials required for his task, or his employment of helpers; 4) whether the service 2 rendered requires a special skill; 5) the degree of permanence of the working relationship; 6) 3 whether the service rendered is an integral part of the alleged employer's business. Donovan v. 4 Sureway Cleaners, 656 F.2d 1368, 1370 (9th Cir. 1981). Plaintiff and the other investigators are 5 similarly situated with respect to these factors: 6 (a) Investigators Are Similarly Situated With Regard To KeyPoint’s Right to 7 Control The Details of The Work. Here, as shown above, KeyPoint has agreed with 8 its government clients to maintain and enforce multiple, detailed procedures and 9 standards pertaining to quality, performance and timing of all work performed by the 10 Investigators. These standards are highly similar, if not uniform, across the proposed 11 collective. KeyPoint also provides standardized training and common guidance to the 12 Investigators. It further maintains a common procedure for reviewing the reports the 13 Investigators prepare, randomly auditing the conduct of Investigators in the field to 14 ensure compliance with the "proper process," and issuing corrective action up to and 15 including termination if the Investigators repeatedly do not follow the rules. 16 (b) Investigators Are Similarly Situated With Regard To Their Opportunity For 17 Profit And Loss Based on Managerial Skill. KeyPoint’s Investigators are similarly 18 situated with respect to the opportunity for profit and loss for several reasons. First, 19 KeyPoint pays them pursuant to a common piece rate structure. Second, while 20 KeyPoint may provide an opportunity to seek premiums for individual tasks, this 21 opportunity is applicable to all Investigators and, in each case, the ultimate authority to 22 grant or deny the premium rests with KeyPoint. Indeed, KeyPoint approves premium 23 pay to only 12-15% of the assignments. Third, the Investigators receive their work 24 assignments directly from KeyPoint, not from the client, and have no authority to offer 25 services to, or negotiate directly with, the client to obtain a better pay rate or more 26 flexible procedures for performing the work. Fourth, while Investigators may be able 27 to decline their assignments, they have no control over what KeyPoint makes 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 14 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 15 of 21 1 available, which ultimately is what dictates their earning potential. Fifth, once 2 Investigators accept an assignment, they must perform the work according to the 3 deadlines and parameters that flow from the contracts KeyPoint has negotiated with its 4 clients. Finally, KeyPoint prohibits Investigators from delegating or subcontracting 5 work, even if that would allow them to earn more money. All these facts and 6 considerations are similar if not uniform across the collective. 7 (c) Investigators Are Similarly Situated With Regard To How Integral They Are To 8 The Business. This factor will be resolved in common for all Investigators because 9 they all perform the same essential job. KeyPoint admits that Investigators are integral 10 to KeyPoint’s business because they are responsible for carrying out the actual work 11 necessary for KeyPoint to fulfill its contracts with DHS and OPM. Furthermore, 12 KeyPoint admits that it only classifies Investigators as Independent Contractors to 13 maintain a more flexible workforce, and not because Investigators perform some 14 collateral function to KeyPoint's business. 15 (d) Investigators Are Similarly Situated With Regard To Their Investment In Their 16 Business. KeyPoint spends over $12,000 per Investigator to provide the required 17 training and credentials. KeyPoint also provides the computers and software. In 18 contrast, Investigators only invest resources in basic equipment such as office 19 supplies, potentially a printer, and basic travel. Investigators do not invest time or 20 resources in soliciting new business for KeyPoint or developing relationships with 21 KeyPoint’s clients. They are explicitly prohibited from investing any resources into 22 hiring other employees or subcontracting out work. 23 (e) Investigators Are Similarly Situated With Regard To The Contractual Terms 24 Controlling The Permanence If Their Working Relationship With KeyPoint. 25 KeyPoint engages with Investigators as Independent Contractors for an extended 26 period of time involving multiple assignments rather than periodically for discrete 27 assignments. At least 95% of Investigators work for KeyPoint for more than a year. 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 15 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 16 of 21 1 Furthermore, KeyPoint requires that Investigators reimburse KeyPoint for up to 2 $5,000 if the Investigator leaves KeyPoint before one year. 3 (f) Investigators Are Similarly Situated With Regard To The Degree Of Skill 4 Required For Their Work. KeyPoint maintains uniform, standardized job 5 qualifications for all its Investigators. Investigators do not need a specialized degree or 6 previous job. Moreover, to the extent that the required knowledge or skills vary for the 7 work provided by KeyPoint, KeyPoint also provides the required training to ensure 8 that its Investigators have the necessary skills. 9 56. Additionally, Plaintiff’s underlying overtime claims will be resolved in common for 10 all similarly situated individuals, as KeyPoint admits it does not pay the Investigators overtime and 11 thus liability will turn entirely on whether the Investigators are misclassified as Independent 12 Contractors. 13 FIRST CAUSE OF ACTION 14 VIOLATION OF THE FAIR LABOR STANDARDS ACT, 29 U.S.C. § 201, et seq. FAILURE TO PAY OVERTIME WAGES 15 57. Plaintiff and other similarly situated Investigators re-allege and incorporate all 16 previous paragraphs herein. 17 58. The FLSA requires that employers whose employees are engaged in commerce, 18 engaged in the production of goods for commerce, or employed in an enterprise engaged in 19 commerce or in the production of goods for commerce pay their employees overtime wages at one 20 and one-half their regular rate for hours worked in excess of 40 hours during a workweek. 29 U.S.C. 21 §§ 207. 22 59. Defendant is covered by the FLSA and has violated the FLSA by failing to pay 23 Plaintiff for all time worked, including overtime pay, because it has misclassified Plaintiff and other 24 similarly situated Investigators as independent contractors. 25 60. Plaintiff and other similarly situated Investigators are victims of a uniform and 26 company-wide compensation policy that systematically denies them their statutorily mandated 27 overtime premium pay. This uniform policy, in violation of the FLSA, has been applied to all 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 16 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 17 of 21 1 Investigators classified as independent contractors by Defendant throughout the United States. 2 61. Defendant’s conduct in misclassifying Plaintiff and other similarly situated 3 Investigators as independent contractors has been willful. Defendant has done it to avoid paying 4 premium overtime pay and the other benefits to which Plaintiff and other similarly situated 5 Investigators are entitled. Furthermore, and as set forth above, Defendant has been aware that its 6 conduct violates the FLSA since at least September of 2011. 7 62. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within 8 the meaning of 29 U.S.C. § 255(a), as Defendant has known that its classification of Investigators as 9 independent contractors violates the FLSA since at least September 29, 2011, when the Department 10 of Treasury concluded that Defendant had misclassified a California-based Investigator as an 11 independent contractor when in fact he was an employee. See Ex. A. That Investigator, Michael 12 Sgherzi, later filed a class action under California law in or around June of 2014, which included 13 claims for violations of the FLSA. As a result of the California lawsuit, Defendant reclassified its 14 Investigators in California as employees, but did not reclassify Investigators in other states. Plaintiff 15 and all similarly situated employees therefore are entitled to all damages owed for the limitations 16 period beginning three years preceding the filing of this Complaint and/or the filing of consents to 17 become party plaintiffs (including the time period the claims of any Collective Action members 18 were tolled by the filing of consents in Richard Smith, et al. v. KeyPoint Government Solutions, Case 19 No. 1:15-cv-00865 (D. Colo.)), plus additional time for periods of equitable tolling. 20 63. Plaintiff and other similarly situated employees are entitled to recover an award in the 21 amount of their unpaid overtime compensation. 22 64. Plaintiff and other similarly situated employees are entitled to recover an additional 23 award of liquidated damages in an amount equal to the amount of unpaid overtime pay, and/or 24 prejudgment interest at the applicable rate. 29 U.S.C. § 216(b). 25 65. Employers subject to the FLSA must "make, keep, and preserve" accurate records of 26 all hours worked and the wages, hours, and other conditions and practices of employment. 29 27 U.S.C. § 211(c). It is unlawful for any person to violate § 211(c). 29 U.S.C. § 215(a)(5). 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 17 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 18 of 21 1 66. 29 C.F.R. § 516.2 and 29 C.F.R. § 825.500 further require that every employer shall 2 maintain and preserve payroll or other records containing, without limitation, the total hours worked 3 by each employee each workday and total hours worked by each employee each workweek. 4 67. Defendant has failed to maintain all records required by the aforementioned statutes 5 and regulations, and failed to furnish Plaintiff and other similarly situated Investigators 6 comprehensive statements showing the hours they worked during the relevant time period. 7 68. Where an employer’s records are inaccurate or inadequate, employees need only 8 produce sufficient evidence to show the amount and extent of the work as a matter of just and 9 reasonable inference to prove they were improperly compensated. Anderson v. Mt. Clemens Pottery 10 Co., 328 U.S. 680, 687-88 (1946). If an employer is unable to rebut the reasonableness of this 11 inference, the court may award damages to the employee, even if the result "be only approximate." 12 Id. 13 69. Plaintiff and other similarly situated Investigators are entitled to their unpaid overtime 14 wages plus an additional equal amount in liquidated damages, costs, and reasonable attorneys’ fees. 15 29 U.S.C. § 216(b). 16 VI. PRAYER FOR RELIEF 17 WHEREFORE, Plaintiff, on behalf of himself and the proposed Collective they seek 18 to represent in this action, requests the following relief: 19 a) For an order certifying that this Complaint may be maintained as a collective action 20 pursuant to 29 U.S.C. § 216(b) and that prompt notice of this action be issued to 21 potential members of the Collective, apprising them of the pendency of this action, 22 and permitting them to assert their FLSA claims; 23 b) For an order equitably tolling the statute of limitations for the potential members of 24 the Collective; 25 c) For an order awarding Plaintiff and the Collective compensatory and statutory 26 damages (including liquidated damages), including lost wages, earnings, and all other 27 sums of money owed to Plaintiff and members of the Collective, together with interest 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 18 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 19 of 21 1 on these amounts; 2 d) For an order directing Defendant to identify, locate and restore to all current and 3 former Investigators classified as independent contractors the restitution and 4 compensation they are due for lost wages, earnings, and other sums of money, 5 together with interest on these amounts. 6 e) For a declaratory judgment that Defendant has willfully violated the FLSA and public 7 policy as alleged herein. 8 f) For pre-and post-judgment interest; 9 g) For an award of reasonable attorneys’ fees as provided by the FLSA; 10 h) For all costs of suit; and 11 i) For such other and further relief as this Court deems just and proper. 12 13 Respectfully submitted, 14 Dated: March 9, 2017 15 16 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 17 18 By:/s/Michael C. McKay 19 MICHAEL C. MCKAY Attorney for Plaintiff and the Proposed Collective 20 21 22 23 24 25 26 27 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 19 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 20 of 21 1 DEMAND FOR JURY TRIAL 2 Plaintiff Orson Judd by and through his attorney, hereby demand a jury trial on all claims and 3 issues for which Plaintiff and the Collective are entitled to a jury. 4 5 Respectfully submitted, 6 Dated: March 9, 2017 7 SCHNEIDER WALLACE 8 COTTRELL KONECKY WOTKYNS LLP 9 10 By:/s/Michael C. McKay MICHAEL C. MCKAY 11 Attorney for Plaintiff and the Proposed Collective 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLECTIVE ACTION COMPLAINT Judd v. Keypoint 20 Case 3:17-cv-08050-SPL Document 1 Filed 03/10/17 Page 21 of 21 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 9, 2017, I electronically filed the foregoing document with the 3 Clerk of the Court using the Court's CM/ECF system, which will send a notice of electronic filing to 4 all CM/ECF participants. 5 6 7/s/Michael C. McKay Michael C. McKay (SBN 023354) 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 Emeryville, California 94608 10 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 11 mmckay@schneiderwallace.com 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE Judd v. Keypoint 1

Exhibit A

Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 1 of 8 Exhibit A Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 2 of 8 Internal Revenue Service 40 Lakemont Road Newport, VT 05855-1555 Department of the Treasury SBSE, Compliance BIRSC, SS-8 Program Septerriber 29, 2011 Jeff Schlanger, CEO Keypoint Government Solutions Inc. 1750 Foxtrail Dr., Unit 120 Loveland, CO 80538-8807 454 Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and income Tax Withholding HURIKESKRINTSEKARANAEMINCKMASSANCESAPALLOMwanariat Person to Contact: Beverly Miller 1023114 Telephone Number: 802-751-4446 Fax Number: 802-751-44544455 Refer Reply to: Case # 86360 Dear Mr. Schlanger. The purpose of this letter is to respond to a request for a determination of employment status, for federal employment tax purposes, concerning the work relationship between Keypoint Government Solutions Inc., referred to as " the firm " in the rest of this tetter, and Michael J. Sgherzi referred to as " the worker " in the rest of this letter, it has come to our attention that the services were performed in 2005 through 2010. * * * s. stEHTOKAUmm a' *-DETERMINATION RESULT We hold the Worker to have been an employee of the firm. In the rest of this letter, we will explain the facts, law, and rationale that form the basis for this finding. DESCRIPTION OF WORK RELATIONSHIP The firrn is the investigative service business. The fimm engaged the worker as an investigator to perform services under the firm's business contracts. Prior to the firm being awarded business contracts by the firm's customers, the firm was required to submit bids with proposals to the firm's customers. Within the blds were the firm's practices and procedures pertaining to enforcement, supervision, arid monitoring of the contracted services, The firm engaged the worker through signed contracts based on the woriker s experience, holding of required credentials, and availability. The firm assignäd the worker jobs that were available to be performed according to the workers qualifications.... sss!-ss8S0 UA vodsaak peo 2XCELLARIS 85JAtas a SSH PRESS EXHIBIT Szl-2DB PENGAD 800-681-6993 Zwił: Fasan Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 3 of 8 * * * Ta NTFSAAREMRYKKES. R LAI-L '.... '. Y. N:.-------1. V " " WM mus.-. u...----and credentials. The worker was allowed to accept or dec {re job ulers. Tiré wus kor determined when and how to perform the services based on specified rules and " regulations required under the film's contracted customers requirements as well as the firm's practices and procedures. The worker contacted the firm's designated management regarding any problems or complaints for resolution and the firm required the worker to resolve them. The worker was required to complete and provide various job related reports as required by the firm's contracted customerS) The worker determined the hours he--performed the services and was required to meet job related deadlineg once he accepted jobs. Theyorker was not prohibited by the firm from hiring substitutes or • helpers as long as they were preapproved by the firm and firm's contracted customers. · The firm provided the worker with the necessary access to acquire jobs, forms, and necessary information in order to perform the contracted services. The worker provided a computer, Supplies, automobile, and telephone. The firm'S COAtrasted customer provided investigative credentials and forms. The worker incurred some expenses that were not reimbursed by the firm. The worker was (paid an hourly wage ar fee' by the firm. The firm's contracted customers paid the firm based on the firm's bids. The workers economic loss and financial risks were related to re-yWork of unsatisfactory services at no additional costas determined by the firm and finn's contracted Customers. st IT-n Tur ILI IL R. EE ar OPIS There were contradas signed between the firm and the Worker indicating the worker to be an independerit contractor engaged on a nort-Exclusive basis. There were signed * * contracts between the firm and firm's clients, The Werke waƏTequired to completeall training ATROCIedentiating Mandated by the fifilŠICONERALECOUstarietät: Ehe worker was required to keepintutsforeealliligensASSTequired forderte-perfosETEtiers & IVIGASI Tae worker was PequireditorSubmit. GompletediWork tirsely as required by the fir and linsContracted: customers. The firm was requliet të pravide-the-firm s Customers prior to the firm' s. staft working: Off-site. with policies and procedures: Tegarding the satequaçding of documents, Information-positions, and job titles FhéilirTwąs-Tequired to provide the: labor, facilities;-materials manageInent-prosessing-IIAvestigation-qualité assurance-Badany. suticontractor, äAd-consultant: Oversighterneeded to produce quality: nvestigat to-feminatstFREWork. Félationship at any time without imeuring any fiability. ATT LIGA FE Orato TAGSWrir. Pit? PITO KAHIT AF LAWN The question of whether an individual is an independent contractor or an employee is one that is determined through consideration of the facts of a particular case along with the application of law and regulations for worker classification issues, known as " common law. " Common law flows chiefly from court decisions and is a major part of the justice System of the United States. Under the common law, the treatment of a worker as an independent contractor or an employee originates from the legal definitions developed in the law and it depends on the payer's right to direct and control the worker in the performance of his or her duties. Section 3121 (d) {(2) of ie Code provides that the term GSSI-ssagO A * Hockey peng Heart POLASAS Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 4 of 8-im......----3 RII issission der. " employee " means any individual defined as an errepiuyue by using the vaual oammon law rules. Generally, the relationship of employer and employee exists when the person for whom the services are performed has the right to control and direct the individual who performs the services, not only as to what is to be done, but also how it is to be done. It is not necessary that the employer actually direct or control the individual, it is sufficient if he or she has the right to do so. In determining whether an individual is an employee or an independent contractor under the common law, all evidence of both control and lack of control or independence must be considered. We must examine the relationship of the worker and the business. We consider facis that show a right to direct or control how the worker performs the specific tasks for which he or she is hired, who controls the financial aspects of the worker's activities, and how the parties perceive their relationship, The degree of importance of each factor varies depending on the occupation and the context in which the services are performed. Section 31. 312i (d)-f (a) (3) of the regulations provides that if the relationship of an employer and employee exists, the designation or description of the parties as anything other than that of employer and employee Is Armaterial. Thus, if an employer employee relationship exists, any contractual designation of the employee as a partner, Co adventurer, agent, or independent contractor must be disregarded. Therefore, your statement that the worker was an independent contractor pursuant to an agreement is without ment. For federal employment tax purposes, it is the actual working relationship that is controlling and not the terms of the contract (oral or written) between the parties, A person who can realize a profit or suffer a loss as a result of his or her services is generally an independent coritractor, while the person who cannot is an employee. See Rev. Rui. 70-809, 1970-1 C. B. 199. " Profe or loss " implies the use of capital by a person in an independent business of his or her own. The risk that a worker wil not receive payment for his or her services, however, is Comrior to both independent contractors and employees and, thus, does not constitute a sufficient economic risk to support treatment as an independent contractor. If a worker losés payment from the firm's customer for poor work, the firm shares the risk of such loss. Control of the firm over the worker would be necessary in order to reduce the risk of financial loss to the fim. The opportunity for higher earnings or of gain or loss from a commission arrangement is not considered profit or loss. ANALYSIS We have applied the above law to the information submitted. As is the case in almost all worker classification cases, some tacts point to an employment relationship while other facts indicate independent contractor status. The determination of the workers status, then, rests on the weight given to the factors, keeping in mind that no one factor rules. The degree of importance of each factor varias depending on the occupation and the circumstances. SSSL-SS8SD " UDİLƏN 护学 aỊAjaş agUASSARE... Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 5 of 8----------تتیستمبضتستانتننتنت تست ، تهنشتسهتنتهنشیننسیسیقتستشنغنيته. مین: Evidence of control generally falls into three categories: behavioral control, financial control, and relationship of the parties, which are collectively referred to as the categories of evidence. In weighing the evidence, careful consideration has been given to the factors outlined below. Factors that illustrate whether there is a right to control how a Worker. performs a task include training and instructions. In this case, you retained the right to change the workers methods and to direct the worker to the extent necessary to protect your financial investment. You engaged the worker to perform services for your business Customers. You entered into contracts with your customers to provide qualified labor, facilities, materials, management, processing, Investigation, quality assurance, and any subcontractor and consultant oversight needed to produce quality investigative leads provided in the reports of investigations provided by your customers. You required the WOFker to sign a contract Indicating he would comply with your Customers criteria for Investigators, and keep in full force ali licenses required to perform the services. You required the worker to contact your designated management regarding probierns or Complaints and resolve them. You required the Worker to provide you with required reports on accepted assignments timely based on due dates established by you and your customers. You required the worker to perform any re-work without payment for reports not accepted by you or your customers. You required the worker to have any substitutes or helpers pre-approved as required by your customers. These facts evidence behavioral control by you over the services performed by the worker, Even though you allowed the worker Some flexibility in performing the services, once accepted by the Worker, you were responsible for the Oversight necessary in order to meet your customers dešired and results per your contract with your Customers. Factors triat illustrate whether there is a right to direct and control the financial aspects of the worker's activities include significant Investment, unreimbursed expenses, the methods of payment, and the opportunity for profit or loss. In this case, the worker did not invest significant capital in a business. The worker did not have control over profit and loss with regard to the services you contracted to perform for your customers. You provided the contracted jobs, access to forms required by your customers, and management. The worker provided a computer, supplies, transportation, and telephone. Your custormers provided credentials and fois. The Worker incuted sortie expenses for personal items needed in order to perform the services. You reimbursed the worker for some expenses. You paid the worker an hourly wage or a fee. Your custorniers pald you. The worker could incur a profit or loss when required to perform re-work ał no additional cost as required by you. Although this could be an important factor to consider in an independent contractor relationship, this factor alone would not make the worker to be an independent contractor. In your contracts with your Customers, you established the prices in your bid for the contracts. Your business also could suffer a loss with regard to untimely submissions and re-work requirements. In order to protect your financial investment it would be both necessary and integral to your business operations to control the performance of the services. These facts show that you retained control over the financial aspects of the worker's services. ses SGSI-SS8SO LA Fedhe Pe問蒙 POINS SNUBNARJASSA Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 6 of 8..-: liv KER LO PENSIS * 1y. * * ntis: ritirat. * * * *. *..:: Trri err i I Factors that illustrate how the parties perceive their relationsnıp include the intent of Ure parties as expressed in written contracts; the provision of, or lack of employee benefits; the right of the parties to terminate the relationship: the permanency of the relationship, and whether the services performed are part of the service recipients regular business activities. There were written contracts between you and the worker indicating the worker to be an independent contractor. For federal employment tax purposes, the autonomy of a work relationship determines a worker status. If the autonomy is employer/employee than any agreements written or verbal indicating otherwise are irrelevant. The worker did perform similar services for others while performing services for your business and you did not prohibit the worker from doing so unless there was a conflict of interest. Orice the worker accepted jobs you determined the worker was qualified to perform, the worker was required to perform the services as contracted and meet your established due dates based on your business needs and your contracts with your customers. The services the worker performed were both a necessary and integral part of your business operations and fulfillment or your contracts with your customers.--... +--LITT FLEU..--+ 1-del---+ All parties retained the right to terminate the work relationship at any time without incurring any liability. The ability to terminate a work relationship at any time without incurring a legal contractual liability for early temination is indicative of an employer/employee relationship. An Independent contractor, on the other hand, cannot be fired or quit without incuring a liability so long as the independent contractor produces a result that meets the contract specifications. CONCLUSION Based on the above analysis, we conclude that the firm had the right to exercise direction and control over the worker to the degree necessary to establish that the worker was a common law employee, and riot an independent contractor operating a trade or business. TAX RAMIFICATIONS En + 1-Compensation to an individual classified as an employee is subject to federal income tax withholding, Federal Insurance Contributions Act fax (FICA), and Federal Unemployment Tax Act (FUTA) fax as provided by Sections 3101, 3301, and 3401 of the Iniemal Róvenue Code, and it is possible you are ilable for the same. The employFFIent tax liabilities for income tax withholding and FICA also apply to resident and nor-resident aliens, except that non-resident aliens may have an exception depending on their immigrant status. FUTA may also apply to the income earned by aliens, even when the income is not subject to FICA tax. If your worker is a resident or non-resident alien, and you need additional information, you may wish to obtain Publication 515, Withtolding of Tax on Nonresident Aliens and Foreign Entitles. For the years prior to 2008 in question, it is possible that the statute of limitations has expired for the assessment of taxes in this matter. If so, it will not be necessary for you to amend your return(s). Internal Revenue Code (IRC) section 6501 (a) provides that' irar p r HBr---InFIww. veten......... rrettrotruntur SsSE-SSSSO LA' voda peDY PUOLAREJO aƏLAƏS anime EREN----Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 7 of 8-I--...-LEI LE.-JU--.::: T ALESSANDRIA Situdinii ". PA. Si * A.,, " * ' ', the statute of limitations for assessment generally expires three years from the due date of the retum, or three years after the date the return was actually filed, whichever is later. IRC section 6501 (b) (2) provides that for certain employment tax returns, the three years would begin April 15 of the following year for which the return was due. IRC section 6511 (a) provides that a claim for credit or refund of an overpayment shall be fled within three years from the date the return was filed, or two years from the date the tax was paid, whichever expires later. This determination is based on the application of law to the information presented to us and/or discovered by us during the course of our investigation; however, we are not in a position to personally judge the validity of the information submitted. This ruling pertains to all workers performing services under the same or similar circumstances. It is binding on the taxpayer to whom it is addressed; however, section 6110 {k} (3) of the Code provides it may not be used or cited as precedent.-... H Je U S Lawrsuy Luth-Aras-. '-' 1. Internal Revenue Code section 7436 concerns reclassifications of worker status that occur during AS examinations. As this determination is not related to an IRS audit, it does not constitute a notice of determination under the provisions of section 7436, nor is this an audit for purposes of entitling you to section 530 relief (further explained below) if you are not otherwise eligible for such relief. OPTIONS AND ASSISTANCE... The S8-8 Program does not calculate your balance due and send you a bill. You are responsible for satisfying the employment tax reporting, filing, and payment obligations that result from this determination, such as filing employment tax retums or adjusting previously filed employment tax returns. Your immediate handling of this correction and your prompt payment of the tax may reduce any related interest and penalties.... S. S. TOSHKEIHGELEITA: # sit. w. ', ' n ":, k} AXNEFERTEKORAPILEFLAT' Ica "... Section 530 of the 1978 Revenue Act established a safe haven from an employers liability for employment taxes arising from an employment relationship. This relief may be available to employers who have misclassified workers if they meet certain criteria. This is explained more fully in the enclosed fact sheet. It is important to note that this office does not have the authority to grant section 530 relief in relation to this determination. Section 530 relief is officially considered and possibly granted by an auditor at the commencement of the examination process shoufd IRS select your return(s) for audit. The SS-8 determination process is not related to an examination of your returns. There is also no procedure available to you by which you can request an audit for the purpose of addressing your eligibility for section 530 relief. You should contact a tax professional if you need assistance with this matter, If you deem that the firm meets the criteria for section 580 relief as outlined in the enclosure, you do not have to file/adjust your employment tax returns to reflect this determination. Also, you may choose to reclassify this class of worker to employee status in accordance with this determination for future periods without Jeopardizing your ability to claim section 530 relief for past periods. If you are not eligible for section 530 rellet, and the failure to pay the correct amount of employment tax was due to the misclassification of a worker's status, you must adjust GSSL-SSSSO LA' Piots peoy Aroa 304nsag anuas TIM Case 3: 17-cv-08050-SPL Document 1-1 Filed 03/10/17 Page 8 of 8 3r::: " Trail....}... ',..., Anticarakan SEAS. Y:: »...: your return(s) using speGITIG tax rates. I ne rates and other instructions on ne amendment process are outlined in Publication 4341, Information Guide for Employers Filing Fom 941 or Form 944. You may wish to obtain a copy of Publication 4341. The publication is available on the IRS internet site, or you may call to have a copy mailed to you (see the contact information at the bottom of this letter). If you need further assistance in filing/adjusting your employment tax returns due to the reclassification of your worker, please call the IRS help line at 1-800-829-4933. Call 1 866-455-7438 for assistance in preparing or correcting Forms W-2, W-3, 1099, 1096, or other information retums. For personal assistance, go to http://www.irs. gowapp/officeLocator/index. jsp to locate and visit the closest Taxpayer Assistance Center.----+ 1 +--H + +-+ · · · · · If you have any questions concerning this determination, please foel free to contact the person whose name and number are listed at the top of this letter. Please refer to your case number (86360) when contacting us about this case. Sincerely, Колише 2 дmao Patricia J. DeMaio Operations Manager Enclosures: Section 530 Fact Sheet Notice of IRS Compliance Expectations Notice 441 Sanitized Determination Letter for Public Disclosure cc: Michael J. Sgherzi To order forms and publications, please call 1-800-TAX-FORM or visit us online at WYWW. IIS.gov/formspubs. Letter 3711-A (CG) (Rev. 5-2011) Catakog Number abasco--------ŚSS1-S5890 LA' VodAEN PEc은 14議 80IAJag anuaAKAN....

Exhibit B

Exhibit B Case 3:17-cv-08050-SPL Document 1-2 Filed 03/10/17 Page 2 of 3 Joshua Konecky, SBN 182897 1 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 2 ljoyner@schneiderwallace.com SCHNEIDER WALLACE 3 COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 4 Emeryville, CA 94608 Telephone: (415) 421-7100 5 Facsimile: (415) 421-7105 6 Attorneys for Plaintiffs and the Proposed Collective 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 ORSON JUDD, individually and on) Case No.: 10 behalf of all others similarly situated,) Hon.) 11 Plaintiffs,) CONSENT TO JOIN COLLECTIVE) ACTION UNDER THE FAIR LABOR 12 vs.) STANDARDS ACT OF 1938 (FLSA), 29) U.S.C. § 216(b) 13 KEYPOINT GOVERNMENT) SOLUTIONS, INC., a Delaware) 14 corporation,)) 15 Defendant.)) 16) 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint

Civil Cover Sheet)(REW

Case 3:17-cv-08050-SPL Document 1-3 Filed 03/10/17 Page 1 of 3 JS 44 (Rev. 08/16) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS Orson Judd, an individual, on behalf of himself and on behalf of all others Keypoint Government Solutions, Inc., a Delaware corporation simularly situated (b) County of Residence of First Listed Plaintiff Navajo County, Arizona County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) (see attachment) II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant)' 1 U.S. Government' 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State' 1' 1 Incorporated or Principal Place' 4' 4 of Business In This State' 2 U.S. Government' 4 Diversity Citizen of Another State' 2' 2 Incorporated and Principal Place' 5' 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a' 3' 3 Foreign Nation' 6' 6 Foreign Country IV. NATURE OF SUIT (Place an "X" in One Box Only) Click here for: Nature of Suit Code Descriptions. CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES' 110 Insurance PERSONAL INJURY PERSONAL INJURY' 625 Drug Related Seizure' 422 Appeal 28 USC 158' 375 False Claims Act' 120 Marine' 310 Airplane' 365 Personal Injury-of Property 21 USC 881' 423 Withdrawal' 376 Qui Tam (31 USC' 130 Miller Act' 315 Airplane Product Product Liability' 690 Other 28 USC 157 3729(a))' 140 Negotiable Instrument Liability' 367 Health Care/' 400 State Reapportionment' 150 Recovery of Overpayment' 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS' 410 Antitrust & Enforcement of Judgment Slander Personal Injury' 820 Copyrights' 430 Banks and Banking' 151 Medicare Act' 330 Federal Employers’ Product Liability' 830 Patent' 450 Commerce' 152 Recovery of Defaulted Liability' 368 Asbestos Personal' 840 Trademark' 460 Deportation Student Loans' 340 Marine Injury Product' 470 Racketeer Influenced and (Excludes Veterans)' 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations' 153 Recovery of Overpayment Liability PERSONAL PROPERTY' 710 Fair Labor Standards' 861 HIA (1395ff)' 480 Consumer Credit of Veteran’s Benefits' 350 Motor Vehicle' 370 Other Fraud Act' 862 Black Lung (923)' 490 Cable/Sat TV' 160 Stockholders’ Suits' 355 Motor Vehicle' 371 Truth in Lending' 720 Labor/Management' 863 DIWC/DIWW (405(g))' 850 Securities/Commodities/' 190 Other Contract Product Liability' 380 Other Personal Relations' 864 SSID Title XVI Exchange' 195 Contract Product Liability' 360 Other Personal Property Damage' 740 Railway Labor Act' 865 RSI (405(g))' 890 Other Statutory Actions' 196 Franchise Injury' 385 Property Damage' 751 Family and Medical' 891 Agricultural Acts' 362 Personal Injury-Product Liability Leave Act' 893 Environmental Matters Medical Malpractice' 790 Other Labor Litigation' 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS' 791 Employee Retirement FEDERAL TAX SUITS Act' 210 Land Condemnation' 440 Other Civil Rights Habeas Corpus: Income Security Act' 870 Taxes (U.S. Plaintiff' 896 Arbitration' 220 Foreclosure' 441 Voting' 463 Alien Detainee or Defendant)' 899 Administrative Procedure' 230 Rent Lease & Ejectment' 442 Employment' 510 Motions to Vacate' 871 IRS—Third Party Act/Review or Appeal of' 240 Torts to Land' 443 Housing/Sentence 26 USC 7609 Agency Decision' 245 Tort Product Liability Accommodations' 530 General' 950 Constitutionality of' 290 All Other Real Property' 445 Amer. w/Disabilities-' 535 Death Penalty IMMIGRATION State Statutes Employment Other:' 462 Naturalization Application' 446 Amer. w/Disabilities-' 540 Mandamus & Other' 465 Other Immigration Other' 550 Civil Rights Actions' 448 Education' 555 Prison Condition' 560 Civil Detainee-Conditions of Confinement V. ORIGIN (Place an "X" in One Box Only)' 1 Original' 2 Removed from' 3 Remanded from' 4 Reinstated or' 5 Transferred from' 6 Multidistrict' 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation-Litigation-(specify) Transfer Direct File Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 29 U.S.C. Section 201, et seq. VI. CAUSE OF ACTION Brief description of cause: Denial of overtime wages resulting from misclassification of employees as independent contractors. VII. REQUESTED IN' CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND:' Yes' No VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD 03/09/2017/s/Michael C. McKay FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE Case 3:17-cv-08050-SPL Document 1-3 Filed 03/10/17 Page 2 of 3 Attorneys for Plaintiffs: Michael C. McKay, SBN 023354 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 Scottsdale, Arizona 85253 Telephone: (480) 428-0142 Joshua Konecky, CA SBN 182897 (Pro Hac Vice application to follow) Leslie H. Joyner, CA SBN 262705 (Pro Hac Vice application to follow) SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 JS 44 Reverse (Rev. 08/16) Case 3:17-cv-08050-SPL Document 1-3 Filed 03/10/17 Page 3 of 3 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

SUMMONS Submitted by Orson Judd. (submitted by Michael McKay)

Case 3:17-cv-08050-SPL Document 2 Filed 03/10/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________ Orson Judd, an individual, on behalf of himself and on) behalf of all others similarly situated,))) Plaintiff(s))) v. Civil Action No.) Keypoint Government Solutions, Inc., a Delaware) corporation,))) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Keypoint Government Solutions, Inc. c/o Corporation Service Company (CSC) 2710 Gateway Oaks Dr., Ste 150 N. Sacramento, CA 95883 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Schneider Wallace Cottrell Konecky Wotkyns LLP Michael C. McKay 8501 North Scottsdale Road, Suite 270 Scottsdale, Arizona 85253 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3:17-cv-08050-SPL Document 2 Filed 03/10/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date).' I personally served the summons on the individual at (place) on (date); or' I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or' I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or' I returned the summons unexecuted because; or' Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Print Save As... Reset

Filing fee paid, receipt number 0970-14004634. This case has been assigned to the Honorable Steven P Logan. All future pleadings or documents should bear the correct case number: CV 17-8050-PCT-SPL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.

Case 3:17-cv-08050-SPL Document 3 Filed 03/10/17 Page 1 of 1 AO 85 (Rev. 8/97) Notice, Consent, and Order of Reference-Exercise of Jurisdiction by a United States Magistrate Judge (For Use In Civil Cases With District Judge as Presider) UNITED STATES DISTRICT COURT _______________________________ District of __________________________________________________ NOTICE, CONSENT, AND ORDER OF REFERENCE-Plaintiff EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE v. Case Number: Defendant NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned. An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court. CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings. Signatures Party Represented Date _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ ORDER OF ASSIGNMENT IT IS HEREBY ORDERED that this case be assigned to ______________________________________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ________________________________________. ________________ _____________________________________________________________________________________ Date United States District Judge NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

Summons Issued as to Keypoint Government Solutions Incorporated. (REW). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document.

Case 3:17-cv-08050-SPL Document 5 Filed 03/13/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________ Orson Judd, an individual, on behalf of himself and on) behalf of all others similarly situated,))) Plaintiff(s))) v. Civil Action No. CV 17-8050-PCT-SPL) Keypoint Government Solutions, Inc., a Delaware) corporation,))) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Keypoint Government Solutions, Inc. c/o Corporation Service Company (CSC) 2710 Gateway Oaks Dr., Ste 150 N. Sacramento, CA 95883 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Schneider Wallace Cottrell Konecky Wotkyns LLP Michael C. McKay 8501 North Scottsdale Road, Suite 270 Scottsdale, Arizona 85253 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk ISSUED ON 9:01 am, Mar 13, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08050-SPL Document 5 Filed 03/13/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date).' I personally served the summons on the individual at (place) on (date); or' I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or' I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or' I returned the summons unexecuted because; or' Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Print Save As... Reset

PRELIMINARY ORDER that motions pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect can be cured by filing an amended pleading. The parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED that Plaintiff serve a copy of this Order upon Defendant and file a notice of service. See attached Order for complete details. Signed by Judge Steven P. Logan on 3/13/17.

Case 3:17-cv-08050-SPL Document 6 Filed 03/13/17 Page 1 of 4 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-08050-PCT-SPL Orson Judd, 9)) Plaintiff,) PRELIMINARY ORDER 10) vs. 11)) Keypoint Government Solutions, Inc.,) 12) 13 Defendant.)) 14) 15 This action having recently come before this Court, the parties are advised of the 16 following preliminary policies and procedures that will govern these proceedings. 17 Rules of Civil Procedure 18 Both counsel and pro se litigants must abide by the Local Rules of Civil Procedure 19 ("LRCiv" or "Local Rules"), Rules of Practice of the U.S. District Court for the District 20 of Arizona, and the Federal Rules of Civil Procedure.1 21 Communication with the Court 22 As a general matter, all communications with the Court should be made on the 23 record through the filing of a pleading, motion, application, brief, or similar filing 24 permitted by the Local and Federal Rules of Civil Procedure. Telephone calls regarding 25 routine administrative matters in civil cases should be directed to this Court’s Judicial 26 Assistant at (602) 322-7550. Telephone calls regarding criminal cases should be directed 27 1 28 The Local Rules are available at: http://www.azd.uscourts.gov/local-rules, and the Federal Rules are available at: http://www.uscourts.gov/uscourts/rules/civil-procedure.pdf Case 3:17-cv-08050-SPL Document 6 Filed 03/13/17 Page 2 of 4 1 to this Court’s Courtroom Deputy at (602) 322-7235. Direct communications with law 2 clerks is prohibited. No member of chambers staff will provide the parties with legal 3 advice concerning any matter. 4 Service and Answer Deadline 5 Rule 4 of the Federal Rules of Civil Procedure requires that service be completed 6 within 90 days of the date of the filing of a complaint, and that a plaintiff must timely file 7 proof of service with the Clerk of Court. Rule 12 of the Federal Rules of Civil Procedure 8 sets forth the time for filing an answer or other responsive filing. 9 As will be repeated throughout the duration of this case, the Court has a strict 10 policy not to extend the dispositive motion deadline beyond the two-year anniversary of 11 the commencement of a case. Therefore, plaintiffs are encouraged to expeditiously 12 complete service and to avoid unnecessary extensions of the answer deadline so that the 13 pretrial period may be preserved for discovery and motion practice. 14 Rule 12(b) Certification and Motions to Dismiss 15 Any motion pursuant to Rule 12(b) of the Federal Rules of Civil Procedure is 16 discouraged if any defect can be cured by filing an amended pleading. Therefore, the 17 Court requires: (1) that the parties must meet and confer prior to filing a motion to 18 dismiss to determine whether it can be avoided; (2) that a certificate of conferral must be 19 attached to any motion to dismiss indicating that the parties have conferred to determine 20 whether an amendment could cure a deficient pleading, and have been unable to agree 21 that the pleading is curable by a permissible amendment; and (3) that any motion to 22 dismiss which lacks such attached certification is subject to being stricken by the Court. 23 Motions to Amend and Notices of Amendment 24 Parties shall endeavor not to oppose motions to amend that are filed prior to any 25 Rule 16 Case Management Conference or the deadline set forth by any Rule 16 Case 26 Management Order. Any motion for leave to amend or notice of amendment must be 27 filed in accordance with Rule 15.1 of the Local Rules of Civil Procedure. Any motion or 28 notice that does not comply with the local rule is subject to being stricken. 2 Case 3:17-cv-08050-SPL Document 6 Filed 03/13/17 Page 3 of 4 1 Rule 16 Case Management Conference and Order 2 The Court will schedule a preliminary pretrial conference in accordance with Rule 3 16 of the Federal Rule of Civil Procedure after a defendant has filed an appearance or 4 pleading. As will be directed in the Court’s order setting the case management 5 conference, the parties will be required to engage in a Rule 26(f) meeting and submit a 6 joint report and proposed scheduling order. Nothing prevents the parties from convening 7 a Rule 26(f) meeting on their own initiative at an earlier date. Outstanding motions or 8 requests to continue the case management conference will not excuse the requirement to 9 hold a Rule 26(f) meeting or submit the parties’ Rule 26(f) report. 10 The Court will issue a Case Management Order following the date of the 11 scheduled conference. The Order will reflect the parties’ input and the Court’s considered 12 assessment of the time necessary to complete discovery and all pretrial submissions, and 13 will set forth additional policies and procedures that will apply in this case. 14 Discovery 15 As will be reiterated throughout the course of this case, this Court encourages 16 parties to make a reasonable effort to resolve discovery disputes without Court 17 intervention. This Court does not conduct telephone conferences to resolve any dispute 18 that might arise during a deposition or other discovery disputes among the parties. As will 19 be addressed in the Court’s Case Management Order, the parties will be required to file a 20 joint motion to resolve discovery disputes in instances necessitating the Court’s 21 assistance. 22 Protective Orders, Confidentiality Agreements, and Motions to Seal 23 As a general practice, this Court does not approve or adopt blanket, umbrella 24 protective orders or confidentiality agreements, even when stipulated to by the parties. In 25 the event discovery mandates disclosure of specific, harmful, confidential material, the 26 Court will entertain a request for a protective order at that time if it is tailored to protect 27 the particular interests at hand in accordance with Rule 26 of the Federal Rules of Civil 28 Procedure. Further, the fact that the parties have designated materials or information as 3 Case 3:17-cv-08050-SPL Document 6 Filed 03/13/17 Page 4 of 4 1 confidential pursuant to an agreement or stipulation does not mean that the Court will 2 order that the filings containing such information be placed under seal. Any party wishing 3 to shield such records and documents from public view must prove why the interest in 4 secrecy outweighs the presumption of public access to judicial records and documents. 5 Oral Arguments and Evidentiary Hearings 6 This Court does not have a preset schedule for setting oral arguments and 7 evidentiary hearings. This Court will schedule oral arguments and evidentiary hearings 8 when warranted and advise the parties accordingly. Any party desiring oral argument 9 should request it by noting it below the title of the related filing, see LRCiv 7.2(f), and 10 any party desiring an evidentiary hearing should request it in the body of its filing. 11 Separate motions or requests for oral argument or evidentiary hearings are subject to 12 being stricken or may be modified on the docket to a notice. 13 Copies 14 A paper copy of any document filed exceeding ten (10) pages in length must be 15 submitted to chambers. Documents which are too large for stapling must be submitted in 16 a three-ring binder. Electronic copies of proposed orders must be emailed in Microsoft 17 Word® format to Logan_Chambers@azd.uscourts.gov. 18 Noncompliance 19 The parties are specifically admonished that failure to prosecute, to comply with 20 court orders, or to comply with the local and federal rules may result in dismissal of all or 21 part of this case, imposition of sanctions, or summary disposition of matters pending 22 before the Court. See LRCiv 7.2; Fed. R. Civ. P. 41. The parties having been so advised, 23 IT IS ORDERED that Plaintiff shall serve a copy of this Order upon Defendant 24 and file notice of service. 25 Dated this 13th day of March, 2017. 26 Honorable Steven P. Logan 27 United States District Judge 28 4

SERVICE EXECUTED filed by Orson Judd: Rule 4 Waiver of Service of Summons. Waiver sent on April 6, 2017 to Margaret Parnell Hogan.

Case 3:17-cv-08050-SPL Document 7 Filed 04/11/17 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on April 11, 2017, I electronically filed the foregoing document with the Clerk of the Court using the Court's CM/ECF system, which will send a notice of electronic filing to all CM/ECF participants./s/Leslie H. Joyner Leslie H. Joyner SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 ljoyner@schneiderwallace.com

NOTICE re: Filing Consent to Join Collective Action by Orson Judd.

Case 3:17-cv-08050-SPL Document 8 Filed 04/14/17 Page 1 of 3 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 ORSON JUDD, an individual, on behalf of) Case No. 3:17-cv-08050-SPL himself and on behalf of all others similarly) 11 situated,) NOTICE BY PLAINTIFFS OF FILING) CONSENT TO JOIN COLLECTIVE 12 Plaintiff,) ACTION) 13 vs.)) 14 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,) 15) Defendant.) 16)) 17 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION 28 Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 8 Filed 04/14/17 Page 2 of 3 1 Plaintiff Orson Judd, on behalf of himself and all others similarly situated, hereby files the 2 following Consent to Join Collective Action in the above cited action, submitted herewith as Exhibit 3 1, pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). 4 5 CONSENT TO JOIN COLLECTIVE ACTION: 6 1. Fred Stickler 7 8 Dated: April 14, 2017 Respectfully Submitted, 9 By:/s/Joshua Konecky 10 Joshua Konecky 11 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 12 2000 Powell Street, Suite 1400 Emeryville, California 94608 13 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 14 jkonecky@schneiderwallace.com 15 Attorney for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 8 Filed 04/14/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 14, 2017, I electronically filed the above document with the 3 Clerk of the Court using the CM/ECF system, which will send a notification of electronic filing to 4 all CM/ECF participants interested in this matter. 5 6 7/s/Joshua Konecky Joshua Konecky (SBN 182897) 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 10 Emeryville, California 94608 Telephone: (415) 421-7100 11 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 12 Attorney for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL 2

Exhibit 1

Case 3: 17-cv-08050-SPL Document 8-1 Filed 04/14/17 Page 1 of 3 EXHIBIT 1 Case 3: 17-cv-08050-SPL Document 8-1 Filed 04/14/17 Page 2 of 3 N m T Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 Attorneys for Plaintiff Un OLU UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. 3: 17-cv-08050-SPL ORSON JUDD, an individual, on behalf of himself and on behalf of all others similarly situated, () CONSENT TO JOIN COLLECTIVE ACTION UNDER THE FAIR LABOR STANDARDS ACT, 29 U. S. C. & 216 (b) 12 Plaintiff, Vs. 14 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation, Defendant. 16 E " A & 5 & 1 & & & & CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint Case 3: 17-cv-08050-SPL Document 8-1 Filed 04/14/17 Page 3 of 3 الجسم (M بيا د I worked for KeyPoint Government Solutions, Inc. (" KeyPoint "), within the past three years, Specifically, I worked for KeyPoint from 2006 through 2016 and I filed an opt-in consent form in Richard Smith, et al. v. KeyPoint Government Solutions, Case No. 1: 15-cv-00865 (D. Colo.) on August 17, 2015, which was pending until final judgment was entered on January 2017. I want to join this lawsuit alleging that KeyPoint has violated the Fair Labor Standards Act by misclassifying me and other Investigators as independent contractors rather than employees. I understand that this lawsuit seeks unpaid wages and/or overtime that may be owed to me, and that by joining this lawsuit I will become a party plaintiff. By joining this lawsuit, I designate the Plaintiff named in the Complaint as my representative to the fullest extent possible under applicable laws, to make decisions on my behalf concerning the litigation, the manner and method of conducting and resolving the litigation, and all other matters pertaining to this lawsuit. 10 13 I understand that I have the right to choose other counsel and I choose to be represented in this 14 matter by the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP and other attorneys with 15 whom they associate. 16 17 18 Name 19 _ MEO Stoklar 133 Nyum au Ava _ Sjani Ulsts par {STIS 20 Address 22 City, State Zip City, State Zip 23 ༢ at ༡༨: ༤༢, ༡ ས་དབང་ གོ ས ་ Date: Signature:-26 27 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint

MOTION to Change Venue/Transfer Case to USDC Colorado or in the Alternative, Dismiss for Failure to State a Claim and for a Stay of Litigation by Keypoint Government Solutions Incorporated.

Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 1 of 17 1 Ryan G. Lockner; AZ Bar No. 031517 rlockner@littler.com 2 LITTLER MENDELSON, P.C. 3 Camelback Esplanade 2425 East Camelback Road, Suite 900 4 Phoenix, AZ 85016 5 Telephone: 602.474.3600 Facsimile: 602.957.1801 6 Attorneys for Defendant 7 KeyPoint Government Solutions, Inc. 8 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 12 13 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, 14 Plaintiff, DEFENDANT’S MOTION TO 15 TRANSFER VENUE, OR IN THE v. ALTERNATIVE, DISMISS FOR 16 FAILURE TO STATE A CLAIM 17 KeyPoint Government Solutions, Inc., a AND FOR A STAY OF Delaware corporation, LITIGATION 18 Defendant. 19 20 Defendant KeyPoint Government Solutions, Inc. ("KeyPoint" or "Defendant") moves, 21 pursuant to 28 U.S.C. § 1404(a), for an Order transferring this action to the United States 22 District Court, District of Colorado, or in the alternative pursuant to Rule 12(b)(6) of the 23 Federal Rules of Civil Procedure for an Order dismissing Plaintiff Orson Judd’s ("Judd" or 24 "Plaintiff") complaint with prejudice because it is untimely, and he fails to state a claim upon 25 which relief may be granted. KeyPoint further moves for an Order staying this action 26 pending resolution of this motion. This motion is supported by the following Memorandum 27 of Points and Authorities and the Court Record, which are incorporated herein by reference. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 2 of 17 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Transfer of this litigation to the United States District Court for the District of 4 Colorado would promote the interests of justice and provide a more convenient forum for the 5 parties and witnesses because: (1) Plaintiff’s choice of venue is not entitled to deference 6 because he brings his claim as a collective action, the claim is based on decisions made in 7 Colorado, and Plaintiff previously attempted to pursue the same claims to dismissal without 8 prejudice in the District of Colorado; (2) KeyPoint, is headquartered in Colorado, its 9 corporate witnesses primarily reside in Colorado, or states closer to Colorado than Arizona, 10 and paper copies of relevant documents are stored in Colorado; (3) non-party witnesses are 11 more likely to reside in Colorado, or states closer to Colorado, and therefore, are more likely 12 to appear voluntarily to participate if this case is pending in Colorado; and (4) the District of 13 Arizona’s docket is more congested than the District of Colorado’s docket. Judd attempted 14 to litigate this exact claim in the District of Colorado for more than a year before it was 15 dismissed. His choice to now pursue the same claim, while represented by the same counsel, 16 is nothing more than blatant forum-shopping. 17 If this matter is not transferred to Colorado, this Court should dismiss Judd’s claim 18 because it is untimely. In Smith v. KeyPoint Government Services, Inc., the case in which 19 Judd consented to join, the court decided KeyPoint did not willfully violate the Fair Labor 20 Standards Act ("FLSA"). Therefore, two-years, not three-years, is the appropriate limitations 21 period. Judd’s contractual relationship with KeyPoint ended in September 2014, more than 22 two years before he filed his complaint on March 10, 2017. Because Judd did not file his 23 claim within the applicable statute of limitations period, Judd’s claim should be dismissed 24 with prejudice. 25 II. STATEMENT OF FACTS 26 A. The Smith Litigation 27 On January 29, 2015, Richard Smith filed suit in the Northern District of California 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-2-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 3 of 17 1 alleging that he, and similarly situated Investigators, were misclassified as independent 2 contractors and owed overtime wages under the FLSA. Smith v. KeyPoint, Case No. 1:15-3 cv-00865-REB-KLM (D. Colo.) (Smith, ECF 1). On April 15, 2015, the parties stipulated to 4 transfer the litigation to the District of Colorado. (Id. at ECF 17). Four months later, on 5 August 26, 2015, Judd, an Arizona resident, filed his notice of consent to join the Smith 6 litigation, pending in the District of Colorado. (Id. at ECF 43). Judd responded to written 7 discovery and on March 24, 2016, Judd was deposed in Tucson, Arizona. On December 16, 8 2016, the court granted KeyPoint’s motion for summary judgment, holding KeyPoint did not 9 willfully violate the FLSA and thus, the applicable two-year statute of limitations barred 10 Smith’s claims. (Id. at ECF 95). Because no collective action had been certified, the court 11 dismissed without prejudice the claims of the individuals who had filed a notice of consent to 12 join. Id. 13 B. KeyPoint’s Corporate Headquarters Are In Loveland, Colorado. 14 KeyPoint is a Delaware corporation. Its corporate headquarters and principal place of 15 business are located in Loveland, Colorado. See Declaration of Jennifer Boaz, attached as 16 Exhibit A, at ¶ 3. KeyPoint’s corporate policies, including the Company’s policies and 17 practices regarding independent contractors, are created and originate at the corporate 18 headquarters in Loveland, Colorado. Id. ¶ 4. The Company’s corporate headquarters also 19 house KeyPoint’s records related to independent contractors, including compensation, 20 contract records, policies, and tax information. Records prior to January 1, 2017, are stored 21 in hardcopy format at the Company’s headquarters. Id. at ¶ 5. The individuals employed by 22 KeyPoint to maintain these records work in Loveland, Colorado. 23 KeyPoint has 1645 employees, 186 of whom are Colorado and 11 of whom are in 24 Arizona. Exhibit A, at ¶ 3. Of the 1350 currently engaged independent contractors, 54 reside 25 in Arizona and 42 reside in Colorado. Exhibit A, at ¶ 6. The greatest concentrations of 26 putative class members reside in Texas (122), Maryland (127), Virginia (169), and Florida 27 (111). Id. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-3-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 4 of 17 1 III. TRANSFER OF VENUE IS CONVENIENT FOR THE PARTIES AND IN THE INTERESTS OF JUSTICE 2 3 This Court should transfer this action to the District of Colorado because: (1) the 4 District of Colorado is "a district or division where [the action] might have been brought," 5 and (2) transfer to the District of Colorado would be for "the convenience of parties and 6 witnesses" and "in the interest of justice." See 28 U.S.C. § 1404(a). Congress enacted this 7 statute as a "federal housekeeping measure, allowing easy change of venue within a unified 8 federal system." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981). Further, Congress 9 designed "to prevent the waste of time, energy and money and to protect litigants, witnesses 10 and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 11 U.S. 612, 616 (1964) (superseded by statute on other grounds). The reasons behind 12 enactment of 28 U.S.C. § 1404(a) are best served by transferring this litigation to Colorado. 13 A. KeyPoint Resides In The District Of Colorado So It Is A Proper Venue. 14 The first requirement for venue transfer is met here because Judd could have filed this 15 action in the District of Colorado. Venue is proper in a judicial district in which any 16 defendant resides, and corporate defendant KeyPoint "resides" in any judicial district in 17 which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. 18 § 1391(c). Personal jurisdiction may be either general or specific. See Fields v. Sedgwick 19 Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). "[T]he paradigm forum for the 20 exercise of general jurisdiction over a corporation is'one in which the corporation is fairly 21 regarded as at home,’ such as the place of incorporation and principal place of business." 22 Best Odds Media Ltd. v. iBus Media Ltd., 655 Fed. Appx 582, 582 (9th Cir. 2016) (quoting 23 Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014)). KeyPoint is a Delaware corporation. 24 Its principal place of business is Loveland, Colorado. Therefore, KeyPoint "resides" in 25 Colorado and Delaware, and Judd could have filed this litigation in the District of Colorado. 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-4-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 5 of 17 1 B. The Convenience Of The Parties And Witnesses And The Interest Of Justice Will Be Served By A Transfer To Colorado 2 3 The District of Colorado is the more convenient forum, and transfer there will serve 4 the interests of justice because Plaintiff’s choice of forum is entitled to little weight and the 5 remaining factors are either neutral or weigh in favor of transfer. The relevant factors to 6 determine whether a transfer would be for the convenience of the parties and witnesses and 7 "in the interest of justice," include the following: 8 (1) plaintiff's choice of forum; (2) convenience of the parties; (3) convenience of the witnesses; (4) ease of access to the evidence; (5) familiarity of each 9 forum with the applicable law; (6) feasibility of consolidation with other claims; (7) any local interest in the controversy; and (8) the relative court 10 congestion and time of trial in each forum. 11 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The first factor is 12 entitled to little weight due to the collective nature of Plaintiff’s claim, the challenged 13 decision having been made in Colorado, and Plaintiff having already attempted to pursue this 14 claim to dismissal in Colorado. The sixth factor is neutral because no opportunity for 15 consolidation exists. The seventh factor may counsel in favor of transfer given that many of 16 the potential witnesses in this action reside in Colorado. However, the second, third, fourth, 17 fifth, and eighth factors weigh in favor of transfer because the witnesses, parties, and 18 documents are in, or closer to, Colorado than Arizona, and because the District of Colorado 19 is familiar with some of the unique national security issues which are likely to arise during 20 the pendency of this litigation. As such, this matter should be transferred to the District of 21 Colorado. 22 1. Judd’s Choice Of Forum Is Entitled To Little Weight Because He Seeks To Represent A Class And Arizona’s Connection Is Minimal 23 Although courts generally accord a certain amount of weight to the plaintiff’s choice 24 of forum, the Court is entitled to decide "how much weight to give [the plaintiff’s choice of 25 forum] relative to the other factors" when considering a motion to transfer venue. See Brown 26 v. Abercrombie & Fitch Co., No. 4:13-cv-05205-YGR, 2014 U.S. Dist. LEXIS 19414, at *9 27 (N.D. Cal. Feb. 14, 2014) (internal citation omitted). Little weight should be given to Judd’s 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-5-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 6 of 17 1 choice of Arizona as the proper forum for this action because: (1) Judd seeks to represent a 2 class of individuals; (2) the decisions about which Judd complains were not made in 3 Arizona; and (3) Arizona was Judd’s second choice of forum. See Perez v. Performance 4 Food Group, Inc., No. 15-cv-02390-HSG, 2017 U.S. Dist. LEXIS 2319, at *6 (C.D. Cal. Jan 5 6, 2017) ("‘[W]hen an individual … represents a class, the named plaintiff’s choice of forum 6 is given less weight.’") (quoting Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (internal 7 citations omitted)); Park v. Dole Fresh Vegetables, Inc., 946 F.Supp.2d 1088, 1094 (N.D. 8 Cal. 2013) (stating that the weight to be given a plaintiff’s choice of forum is lessened when 9 "the conduct giving rise to the claims occurred in a different forum.") (citing Lou, 834 F. 2d 10 at 739); see also Airbus Ds Optronics Gmbh v. Nivsys LLC, No. cv-14-22399-PHX-JAT, 11 2015 U.S. Dist. LEXIS 69074, at *10 (D. Ariz. May 28, 2015) (noting plaintiff’s choice of 12 forum is entitled to less deference "when the chosen forum is not plaintiff’s residence, the 13 conduct at issue occurred in a different forum, or plaintiff’s choice of forum was its second 14 choice." (citing Park, 964 F.Supp.2d at 1094)). 15 Judd seeks to represent "All individuals who have worked for Defendant as 16 Investigators in the United States, while being classified as independent contractors." (ECF 1 17 at ¶ 52) (emphasis added). Judd’s proposed class includes individuals from throughout the 18 United States. For this reason alone, Judd’s selection of his home state as the proper venue 19 for this action is entitled to little weight. Perez, 2017 U.S. Dist. LEXIS 2319, at *6. 20 Judd’s forum choice also is entitled to little weight because Judd’s claim is based on 21 decisions made in Colorado, not in Arizona. Judd challenges KeyPoint’s decision to classify 22 him, and other similarly situated individuals, as independent contractors and the 23 corresponding decision not to pay overtime. (ECF 1 at ¶ 2). KeyPoint is headquartered in 24 Loveland, Colorado, where the Company makes its corporate policy decisions, including 25 decisions regarding classification of individuals as contractors or employees. (Exhibit A, at 26 ¶ 4). Judd’s claimed entitlement to overtime compensation is, at least initially, contingent on 27 his being improperly classified as an independent contractor. See 29 U.S.C. § 207(a)(1) 28 (requiring payment of overtime to employees who work more than forty hours during a LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-6-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 7 of 17 1 workweek). The viability of Judd’s overtime claim turns on the legality of a decision made 2 in Colorado. Therefore, Judd’s choice to litigate that decision in a forum other than where 3 KeyPoint made the decision is entitled to little weight. See Park, 946 F.Supp.2d at 1094. 4 Additionally, Judd did not choose Arizona the first time he alleged KeyPoint 5 unlawfully denied him overtime wages. Instead of bringing such a claim in Arizona, Judd 6 sought to participate in the Smith litigation, an uncertified collective action then pending in 7 the District of Colorado. The Smith Court dismissed Judd’s claim without prejudice after it 8 granted KeyPoint’s motion for summary judgment as to named plaintiff Smith. Only then, 9 did Judd choose to pursue his claims in Arizona. Because Arizona is Judd’s second choice 10 of forum, it is not entitled the same level of deference as it would have been had it been 11 Judd’s first choice. See Park, 946 F.Supp.2d at 1094. 12 For these reasons, Judd’s election to pursue his claims in Arizona should be given 13 little, if any, deference. Certainly, Judd’s forum choice is not entitled to the level of 14 deference which would outweigh the convenience that would accompany transfer of this 15 action to the District of Colorado. See Partney Const., Inc. v. Ducks Unlimited, Inc., No. 16 CIV 08-574-SU, 2008 U.S. Dist. LEXIS 125164 (D. Or. Oct. 6, 2008) (transferring case 17 away from plaintiff’s home forum where the conduct giving rise to the suit occurred in the 18 transferee venue and the transferee venue was more convenient for witnesses). 19 2. The Convenience Of Parties Weighs In Favor Of Transfer 20 The convenience of the parties weighs heavily in favor of transfer. KeyPoint is 21 headquartered and has its principal place of business in Loveland, Colorado. Judd resides in 22 Arizona, but previously litigated the exact same claim in the District of Colorado. Judd has 23 demonstrated through his past actions that he is more than willing and capable of litigating in 24 Colorado, and that Colorado is not an inconvenient forum for Judd. Therefore, the second 25 factor weighs in favor of transferring this case to the District of Colorado. 26 3. Convenience Of The Witnesses Weighs In Favor Of Transfer 27 The factor that is entitled to the most weight – the convenience of the witnesses – 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-7-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 8 of 17 1 weighs in favor of transfer. See Russell v. Werner Enters., No. C 14-3839 PJH, 2014 U.S. 2 Dist. LEXIS 142081, at *6 (N.D. Cal. Oct. 6, 2014) (finding the convenience of witnesses to 3 be "the most important factor"). In Russell, the plaintiff, a resident of Mississippi, brought 4 several wage and hour claims on behalf of himself and a putative class of truck drivers in the 5 Northern District of California. Id. at *1. The defendant trucking company was 6 headquartered in Nebraska, and its key witnesses and relevant documents were all located in 7 Nebraska. Id. As a result, the district court held this "most important factor" weighed in 8 favor of transfer to Nebraska. Id. at *6; see also Lewis v. Southwest Airlines Co., No. 16-cv-9 00749-JCS, 2016 U.S. Dist. LEXIS 72222, at *20-21 (N.D. Cal. June 2, 2016) (transferring 10 Fair Credit Reporting Act class action to Northern District of Texas where defendant’s 11 corporate headquarters was located); Evancho v. Sanofi-Aventis U.S., Inc., 2007 U.S. Dist. 12 LEXIS 35500, at *11-12 (N.D. Cal. May 3, 2007) (discussing, with reference to cases from 13 outside the Northern District of California, transferring cases to the forum in which a 14 corporate defendant has its principal place of business). 15 This case presents nearly identical circumstances, which favor transfer to the District 16 of Colorado. KeyPoint’s corporate headquarters is in Loveland, Colorado. (Exhibit A at ¶ 17 3). The Company’s key witnesses and relevant documents are located at the Company’s 18 headquarters. Jennifer Boaz, National Director of Independent Contracts, resides in 19 Pittsboro, North Carolina, but travels to Loveland, Colorado on a regular basis. (Id. at ¶ 2). 20 Ms. Boaz will testify regarding the Company’s engagement with independent contractor 21 Investigators; the purpose for those contracts; the requirements imposed on KeyPoint by its 22 clients; how independent contractors receive work; and how the Company pays independent 23 contractors Investigators. (Exhibit A at ¶¶ 7-9). In addition to Ms. Boaz, various Contractor 24 Liaisons, including Julie Hammond, may testify. Ms. Hammond, who was the Contractor 25 Liaison for Judd, would testify regarding Judd’s contractual relationship with the Company, 26 including the investigations he agreed to perform and the compensation he received. (Exhibit 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-8-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 9 of 17 1 A at ¶ 10). Ms. Hammond resides in Colorado. (Id.). 1 2 Federal courts have recognized the significant burden on witnesses who have to travel 3 to testify at trial: 4 As for the willing [witnesses who are expected to appear at trial without a subpoena], the convenience-of-witnesses factor looms large. These individuals 5 must take time out of their work and private time to travel and from the place of trial, to live away from home and to wait around windowless corridors on 6 call to testify. Back home, they have children to get to school, elderly parents to care for, jobs to do and lives to lead – all of which must be managed 7 somehow or put on hold. Although lawyers tend to underestimate this burden, it is genuine, all the more so in a distant city. Even where a witness is an 8 employee of a party and will be paid, the disruption is still a hard fact. The expenses of housing and meals, even if borne by a party, are nonetheless 9 authentic outlays. 10 In re Funeral Consumers Antitrust Litigation, 2005 U.S. Dist. LEXIS 48243, at *14 (N.D. 11 Cal. Sept. 23, 2005); Ward v. Family Dollar Stores, Inc., No. CV-06-CO-01060-W, 2006 12 U.S. Dist. LEXIS 96846, *9 (N.D. Ala. Sept. 29, 2006) (transfer to the district where the 13 employer’s headquarters was located "would save a considerable amount of resources 14 regarding travel for key corporate witnesses, the transportation of documents and other 15 evidence, and the avoidance of disruption of work and home schedules of the witnesses"). 16 Moreover, as the Fifth Circuit has noted, "when the distance between an existing 17 venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the 18 factor of inconvenience to witnesses increases in direct relationship to the additional distance 19 to be traveled." In re Volkswagen AG, 371 F. 3d 201, 204-205 (5th Cir. 2004). Loveland, 20 Colorado is more than 700 miles away from the closest federal court in Arizona. Thus, the 21 third and most important factor strongly favors transfer. 22 4. Colorado Is More Convenient For The Putative Class Members 23 Transfer to the District of Colorado also will be more convenient for many of the 24 potential class members in this class action. Courts routinely grant motions to transfer venue 25 where the majority of putative class members reside and work outside of the district in which 26 27 1 Indeed, of the twenty-five current Contractor Liaisons, nine reside in Colorado. (Exhibit A 28 at ¶10). LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-9-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 10 of 17 1 the litigation was initiated. See Evancho, No. C-07-00098-SI, 2007 U.S. Dist. LEXIS 35500, 2 at *15 (transferring venue of a wage and hour case to the Eastern District of New Jersey, in 3 part, because "a greater proportion of the putative class members lives and works on the east 4 coast rather than on the west coast"); Williams v. Sears Roebuck & Co., No. C97-3794-FMS, 5 1998 U.S. Dist. LEXIS 1859, *4 (N.D. Cal. Jan. 29, 1998) (concluding that any 6 inconvenience experienced by the West Coast plaintiffs and their witnesses due to 7 transferring the nationwide class action to the Northern District of Illinois would be 8 overcome by the convenience of a closer forum for the East Coast plaintiffs and their 9 witnesses); Davis v. Social Serv. Coordinators, No. 1:10-cv-02372-LJO-SKO, 2013 U.S. 10 Dist. LEXIS 118414, *14 (E.D. Cal. Aug. 16, 2013) (finding the Western District of 11 Pennsylvania to be a more convenient forum where 57 of the 75 plaintiffs lived in Florida). 12 Here, the parties have already litigated claims similar to Judd’s in the District of 13 Colorado. Including Judd, seven individuals from six different states filed notice indicating 14 a desire to join the Smith litigation and participated in that litigation by responding to written 15 discovery and being deposed. All but two of the individuals who consented to join the Smith 16 litigation reside closer to Colorado than Arizona. As a result, this factor also favors transfer. 17 5. This Court Lacks The Subpoena Power To Compel Non-Party 18 Witnesses To Trial 19 The ability of the Court to compel testimony of witnesses is also an important 20 consideration for motions to transfer. U-Haul Int’l, Inc. v. Hire a Helper, LLC, 2008 US. 21 Dist. LEXIS 81497, at * 5 (D. Ariz. Sept. 22, 2008) (granting motion to transfer because "to 22 fix the place of trial at a point where litigants cannot compel personal attendance and may be 23 forced to try their cases on deposition, is to create a condition not satisfactory to court, jury, 24 or most litigants"). In this case, the District of Arizona lacks the authority to subpoena and 25 compel many of the key witnesses to trial. Thus, "the availability of the compulsory process 26 to compel attendance of non-party witnesses in the transferee district also weighs in favor of 27 transfer." Jones, 211 F. 3d at 499. 28 In Eclipse IP LLC v. Volkswagen Grp. of Am., Inc., 2013 WL 9935572, at *1 (C.D. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-10-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 11 of 17 1 Cal. May 10, 2013), a defendant corporation based in New Jersey was sued for patent 2 infringement in the Central District of California. The court granted the defendant’s motion 3 to transfer to Michigan, reasoning, in part, that: 4 the location of the witnesses further favors transfer because the Eastern District of Michigan would have subpoena power over the non-party witnesses that 5 have been identified, while this Court would not. Moreover, to the extent that non-party witnesses would still be outside of the court’s subpoena power, the 6 witnesses that have been identified are closer to Michigan than to California, which may increase the likelihood that they will appear voluntarily to testify at 7 trial." 8 Id. at *4. 9 KeyPoint has 1645 employees. Of those employees, 186 reside and work in 10 Colorado. (Exhibit A at ¶ 3). On the other hand, KeyPoint has 11 employees in Arizona. Id. 11 As such, the vast majority of potential non-party witnesses, including individuals necessary 12 to authenticate documents or individuals who may no longer be employed by KeyPoint, 13 reside, or likely reside, in Colorado. These individuals are more likely to attend court 14 proceedings in the District of Colorado than they are to travel several hundred miles to attend 15 such proceedings in the District of Arizona. Further, the District of Colorado’s subpoena 16 power would allow the Court to require the attendance of these non-party witnesses. Fed. R. 17 Civ. P. 45(c). The District of Arizona would not possess the same power. Id. Therefore, 18 "[t]he fact that the transferee venue is a venue with usable subpoena power here weighs in 19 favor of transfer, and not only slightly." In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. 20 Cir. 2009). 21 6. Sources Of Proof Are More Accessible From Colorado 22 The location of relevant records also favors transfer. In weighing transfer, courts 23 consider the physical location of records and documents and ease of access to evidence. See, 24 e.g., Sloan v. Pfizer, Inc., No. C 08-1849 SBA, 2008 U.S. Dist. LEXIS 78785, at *14 (N.D. 25 Cal. 2008) ("where the location of the evidence is supported by other factors in favor of 26 transfer, the ease of access to evidence can be an important factor in deciding whether to 27 grant a motion to transfer."); Federal Trade Commission v. Wright, Case No. 2:13-cv-2215-28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-11-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 12 of 17 1 HRH, 2014 U.S. Dist. LEXIS 49788, at *17 (D. Ariz. Apr. 8, 2014) (finding access to 2 evidence weighed in favor of transfer where all corporate documents, physical facilities, 3 servers, computers, and other office equipment were located in the transferee district). 4 Here, the majority of relevant documents are kept in hard copy form, and are located 5 in Colorado. 2 Potentially relevant documents include independent contractor agreements, 6 contracts between KeyPoint and its customers, reports related to projects offered, accepted, 7 and rejected by Judd or another potential class member, and accounts payable information. 8 These documents are located in Colorado. (Exhibit A at ¶ 5). Moreover, the individuals 9 with the knowledge and ability to testify regarding these documents reside in Colorado. 10 Maximizing the access to sources of proof and the persons who can testify regarding 11 them would be facilitated by transfer to Colorado. See Russell, 2014 U.S. Dist. LEXIS 12 142081, at *6 (transferring venue to district where relevant employment records and persons 13 familiar with them are located). Accordingly, this factor also weighs in favor of transfer. 14 7. The District Court of Colorado Has Already Dealt With The 15 Unique National Security Issues That Will Arise In This Action 16 KeyPoint provides specialized investigative and risk mitigation services to a variety 17 of U.S. federal government agencies and organizations in the civilian, defense and 18 intelligence sectors. One of KeyPoint’s customers is the United States Office of Personnel 19 Management’s ("OPM") National Background Investigations Bureau ("NBIB"). KeyPoint’s 20 contract with OPM NBIB requires KeyPoint investigators to conduct investigations of 21 potential government hires according to OPM NBIB’s protocols and instructions ("OPM 22 NBIB Documents"). Indeed, KeyPoint investigators must possess credentials relative to and 23 cleared by the federal agency that assigns the work. (Exhibit A at ¶ 11). Access to the OPM 24 NBIB Documents is restricted to those individuals who have been cleared for access on the 25 OPM NBIB program which, at a minimum, requires a favorably adjudicated background 26 investigation sufficient for access to Top Secret information and approval by OPM NBIB. 27 2 Some of the relevant documents which were created after January 1, 2017, are stored in the 28 cloud, but are archived in Colorado. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-12-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 13 of 17 1 (Exhibit A at ¶ 12). 2 During the course of the Smith v. KeyPoint case, the District of Colorado dealt with 3 the unique issues presented by Mr. Smith’s motion to compel OPM documents which are 4 restricted from disclosure by OPM NBIB and whose unauthorized disclosure is a felony 5 punishable by a maximum fine of $10,000, 10 years’ imprisonment, or both. See 18 U.S.C. 6 § 641; Smith v. KeyPoint (Smith, ECF 93). Resolution of these issues involved many unique 7 issues of law, consideration by the United States as to whether to file a statement of interest, 8 (Smith, ECF 87, 93) submission of Touhy requests to OPM NBIB for a redacted copy of the 9 OPM NBIB Documents, and ultimately the decision by the court to appoint a special master 10 to manage and resolve the unique discovery disputes presented by these OPM NBIB 11 Documents. (Smith, ECF 82). Given that the District of Colorado has already analyzed the 12 applicable but unique issues of law further weighs in favor of transfer to Colorado. 13 8. The District of Colorado’s Local Interest In This Controversy Is 14 Greater to the District of Arizona’s Local Interest 15 To the extent Judd argues Arizona has a greater local interest in this controversy than 16 Colorado, he would be misguided. Arizona’s interest is limited to Judd being an Arizona 17 resident. Colorado has an equal, if not greater, interest in the controversy because it is 18 KeyPoint’s "residence" and the location where the challenged decision was made. The 19 seventh factor then weighs in favor of transfer. See Lee v. Corrections Corp. of America, 20 525 F.Supp.2d 1238, 1245 (D. Haw. 2007) (transferring case involving a Hawaii inmate to 21 Mississippi because the complained of conduct was alleged to have occurred in Mississippi). 22 9. The More Congested Docket of the District of Arizona Weighs in 23 Favor of Transfer to the District of Colorado. 24 Comparison of the docket congestion weighs in favor of transferring this case to the 25 District of Colorado. In determining whether court congestion favors transfer, "‘[t]he real 26 issue is not whether a dismissal will reduce a court’s congestion but whether a trial may be 27 speedier in another court because of its less crowded docket.’" Ito v. Tokio Marine & Fire 28 Ins. Co., 166 F. App’x 932, 935 (9th Cir. 2006) (citing Gates Learjet Corp. v. Jensen, 743 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-13-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 14 of 17 1 F.2d 1325, 1337 (9th Cir. 1984)) (brackets in original). 2 Here, trial would be speedier in the District of Colorado. The median time in the 3 District of Arizona was 33.8 months for a civil case to go from filing to trial. For the District 4 of Colorado, the same median time was only 27.3 months. District of Arizona judges had 5 571 pending cases while District of Colorado judges had 440 pending cases. See Admin. 6 Office of the U. S. Courts, Federal Court Management Statistics (Dec. 31, 2016), 7 http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile1231.2016.pdf. 8 IV. JUDD’S CLAIMS ARE EXCLUDED BY THE STATUTE OF LIMITATIONS 9 Should the Court find this suit is appropriately venued in the District of Arizona, 10 KeyPoint respectfully requests that the Court dismiss Judd’s Complaint in its entirety for 11 failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To avoid 12 dismissal under Rule 12(b)(6), "the complaint must plead sufficient facts to state a claim to 13 relief that is plausible on its face." Steinke v. Safeguard World International LLC, No. CV-14 16-03491-PHX-DLR, 2017 U.S. Dist. LEXIS 55239, at *2 (D. Ariz. Apr. 11, 2017) (citing 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Because Judd’s claims are barred by 16 the applicable statute of limitations, he fails to meet this initial burden. 17 The FLSA provides a period of two years after a cause of action accrues in which to 18 file a complaint for unpaid overtime wages. 29 U.S.C. § 255(a). That period may be 19 extended to three years, but only if the alleged violation was "willful." Id. No fact discovery 20 is necessary to determine which limitations period is applicable to Judd’s claims because the 21 United States District Court for the District of Colorado resolved that question as a matter of 22 law in the Smith litigation. The District of Colorado found that KeyPoint’s business decision 23 to classify some investigators as independent contractors and others as employees was not 24 evidence of willfulness because: 25 [D]efendant’s representative explained the company maintains this bifurcated 26 classification to meet unpredictable customer demands, maintaining a baseline of investigators in the field as employees and engaging others as independent 27 contractors as needed when and where customer demand increases. Plaintiff cites no authority, and the court has found none, to support a conclusion that 28 the mere maintenance of such an eminently reasonable business practice LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-14-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 15 of 17 1 justifies a conclusion that defendant consciously or recklessly ignored a risk that a practice violated the FLSA, if in fact it did. 2 3 (Smith v. KeyPoint, Case No. 1:15-cv-00865-REB-KLM (D. Co.) (Smith, ECF 95)). 4 Because it has already been decided that KeyPoint did not act with reckless disregard of the 5 law in its treatment of contract investigators as independent contractors, a three-year statute 6 of limitations is inapplicable. See, e.g. McLaughlin v. Richland Shoe Co., 486 U.S. 128 7 (1988). 8 Judd failed to bring his claims against the Company within two years of the last day 9 on which his cause of action accrued. Judd’s contractual relationship with KeyPoint ended 10 in September 2014. (Exhibit A at ¶ 10). Judd filed the instant lawsuit on May 10, 2017, 11 more than two and a half years later. (ECF 1). Because none of Judd’s claims arose during 12 the applicable two-year limitations period, dismissal is warranted. 13 V. THIS LITIGATION SHOULD BE STAYED PENDING THE COURT’S RULING ON DEFENDANT’S MOTION TO TRANSFER 14 This Court should exercise its inherent power to stay this litigation because doing so 15 would promote judicial economy and conserve judicial resources. Soto v. Merck & Co., No. 16 CV-06-2330-PHX-SMM, 2006 Dist. LEXIS 82732, at *1 (D. Ariz. Nov. 9, 2006) (citing 17 Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936)). The relevant considerations include 18 "(1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving 19 party if the action is not stayed; and (3) the judicial resources that would be saved by 20 avoiding duplicative litigation[.]" United States v. Li, CV-12-00482-PHX-DGC, 2014 U.S. 21 Dist. LEXIS 28943, at *32 (D. Ariz. Mar. 6, 2014). Here, stay is warranted. 22 Judd will not be prejudiced by a stay. He has previously attempted to litigate the 23 same claim in the District of Colorado. He knows the relevant individuals, relevant 24 documents, and other information necessary to pursue his claim (should it be deemed 25 timely). Requiring that Judd wait for the Court to determine where Judd should pursue his 26 claim will not cause him prejudice. On the other hand, if this matter is not stayed, KeyPoint 27 anticipates Judd will seek to certify this matter as a collective action, which KeyPoint will 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-15-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 16 of 17 1 have to devote significant resources to oppose. Further, KeyPoint will be forced to make 2 other strategic decisions regarding this litigation not knowing whether the litigation will 3 continue in this Court or be transferred to Colorado. Finally, pressing the pause button while 4 the Court resolves whether the case will be transferred will allow the parties and courts to 5 avoid duplication of efforts and avoid potentially incorrect information being conveyed to 6 putative class members. 7 VI. CONCLUSION 8 This matter should be transferred to the District of Colorado where the first iteration 9 of this case was venued and where the Court is familiar with the unique facts and issues 10 presented. The District of Colorado: (1) is also more convenient for the parties, the 11 witnesses, and access to evidence, (2) has a less congested court, and (3) has a greater 12 interest in this controversy. Judd’s choice of venue is not entitled to significant weight 13 because he filed this case as a collective action, previously litigated his claims in the District 14 of Colorado, and bases his claim on a decision made in Colorado. 15 Alternatively, Judd’s claims should be dismissed with prejudice as untimely. Judd 16 waited more than two years after the end of his engagement with KeyPoint to file the instant 17 lawsuit. In doing so, Judd waited too long and his claim is barred by the applicable statute of 18 limitations. KeyPoint further requests that the Court stay this action pending decision and 19 award KeyPoint its costs and fees, and award further relief as the Court deems appropriate. 20 21 CERTIFICATE OF CONFERRAL 22 Pursuant to the Court’s Preliminary Order (ECF 6), the parties met and conferred 23 before Defendant filed the present motion to dismiss to determine whether it could have been 24 avoided. Specifically, the parties have conferred to determine whether an amendment could 25 cure Plaintiff’s deficient pleading, and have been unable to agree that the pleading is curable 26 by a permissible amendment. 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-16-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 9 Filed 04/17/17 Page 17 of 17 1 DATED this 17th day of April, 2017 2 3 4 s/Ryan G. Lockner 5 Ryan G. Lockner 6 LITTLER MENDELSON, P.C. Attorneys for Defendant 7 KeyPoint Government Solutions, Inc. 8 9 I hereby certify that I electronically 10 transmitted the attached document to the Clerk’s Office using the CM/ECF 11 System for filing and transmittal of a Notice of Electronic Filing to the 12 following CM/ECF registrants this 17th day of April, 2017: 13 Michael C. McKay 14 SCHNEIDER WALLACE COTTRELL KONECY WOTKYNS LLP 15 8501 North Scottsdale Road, Suite 270 Scottsdale, AZ 85253 16 mmckay@schneiderwallace.com 17 Joshua Konecky Leslie H. Joyner 18 SCHNEIDER WALLACE COTTRELL KONECY WOTKYNS LLP 19 2000 Powell Street, Suite 1400 Emeryville, CA 94608 20 jkonecky@schneiderwallace.com ljoyner@schneiderwallace.com 21 Attorneys for Plaintiff 22 23 s/Nancy R. Weber 24 Nancy R. Weber 25 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-17-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Exhibit A

Case 3: 17-cv-08050-SPL Document 9-1 Filed 04/17/17 Page 1 of 3 Ryan G. Lockner; AZ Bar No. 031517 rlockner@littler.com LITTLER MENDELSON, P. C. Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 Telephone: 602. 474. 3600 Facsimile: 602. 957. 1801 Attorneys for Defendant KEYPOINT GOVERNMENT SOLUTIONS, INC. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ORSON JUDD, an individual, on behalf of himself and on behalf of all others similarly situated Case No. 3: 17-cv-08050-SPL DECLARATION OF JENNIFER BOAZ IN SUPPORT OF DEFENDANT'S MOTION TO TRANSFER OR IN THE ALTERNATIVE DISMISS Plaintiff, KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation Defendant. I, Jennifer Boaz, declare as follows: 1. I am over the age of eighteen years and make this declaration based on my personal knowledge and recollection and if called to testify, could and would competently testify as follows: 2. I am National Director of Independent Contracts for KeyPoint Government Solutions, Inc. I currently work and reside in Pittsboro, North Carolina, but regularly travel to Loveland, Colorado for work. 3. KeyPoint Government Solutions, Inc. is a Delaware corporation with its headquarters and principal place of business located in Loveland, Colorado. KeyPoint has 1645 employees nationwide. Of those employees, 186 are employed in Colorado, while 11 DECLARATION OF JENNIFER BOAZ 28! TTLER MENDELSON, P. A PROFESSIONAL CORPORATICK Came' dack Esplanade 2425 €sst Camelcaca foad Suite 900 Phoenix, AZ 830: 6 502 474. 3609 EXHIBIT A Case 3: 17-cv-08050-SPL Document 9-1 Filed 04/17/17 Page 2 of 3 ܚܕ ܢܬ _ ܚ _ ܠܛ _ Q _ ܗ ܐܢ ܗ _ ܩ _. S 10 2345 n are employed in Arizona. 4. KeyPoint's corporate policies are established in Loveland, Colorado. 5. KeyPoint's records related to individuals who have been engaged as independent contractors, including independent contractor agreements; records regarding assignments offered, accepted, and refused by contractors, and records regarding compensation paid to contractors prior to January 1, 2017 are maintained at the Company's headquarters in Loveland, Colorado. 6. Of the 1350 currently engaged independent contractor investigators, 54reside in Arizona and 42 reside in Colorado. The largest concentrations of individuals engaged as contractors reside in Texas (122), Maryland (127), Virginia (169), and Florida (111). 7. KeyPoint contracts with investigators to provide specialized investigative and risk mitigation services to a variety of U. S. government agencies and organizations, in the civilian, defense, and intelligence sectors. These services include security clearance, background investigation, and site inspection services; financial and other fraud investigation services; and background information and primary source document gathering services. 8. Given the sensitive and confidential nature of investigations, KeyPoint's clients often set limitations on who may conduct investigations and how those investigations may be conducted. KeyPoint's clients also impose requirements regarding training, investigation completion, and reporting. KeyPoint's contracts with government agencies set the pricing structure for the rates independent contractor investigators are paid for their work. These rates differ between contracts. 10. Orson Judd worked as a contract investigator for KeyPoint from 2008 until September 2014. During this time, Mr. Judd, like all other independent contractor investigators primarily interfaced with a Contractor Liaison. Julie Hammond was the Contractor Liaison who worked with Mr. Judd. Ms. Hammond would be able to testify regarding Mr. Judd's assignments, compensation, and history as a contractor with KeyPoint. Ms. Hammond resides in Colorado as do eight of the other twenty-five Contractor Liaisons. DECLARATION OF JENNIFER BOAZ f & G a 25 27 28 İTTLER MENDELSON, P. G A PROFESSIONAR COR > ORATION Camelback Esplanade 2425 East Cameitask osad Sui; * 000 Phoenix, AZ 85016 802 izu. 3600 Case 3: 17-cv-08050-SPL Document 9-1 Filed 04/17/17 Page 3 of 3 None of the Contractor Liaisons reside or work in Arizona. g O o N ou A W N – 11. KeyPoint investigators must possess credentials relative to and cleared by the federal government agency that assigns the work. 12. Access to OPM NBIB Documents including the Investigator Handbook are restricted to those individuals who have been cleared for access on the OPM NBIB program which, at a minimum, requires a favorably adjudicated background investigation sufficient for access to Top Secret information and approval by OPM NBIB. I declare und under the laws of the United States of America that the foregoing is true and correct. Executed this _ 14 _ day of April, 2017, in Pittosboro, North Carolina. 10 Gempay 13 14 16 17 1. 20 21 24 25 26 27 28 DECLARATION OF JENNIFER BOAZ ITLER MENDELSON, P. A FAOI 1331CNAL CORPORATION Cam eit-3ck Esplanade 2425 Csal Cameltack Road Suite Phaona. AZ 15216 602 ir 1, 3500

Corporate Disclosure Statement by Keypoint Government Solutions Incorporated identifying Corporate Parent KGS Holding Corp, Corporate Parent KGS Holding LLC for Keypoint Government Solutions Incorporated.

Case 3:17-cv-08050-SPL Document 10 Filed 04/17/17 Page 1 of 3 1 Ryan G. Lockner; AZ Bar No. 031517 rlockner@littler.com 2 LITTLER MENDELSON, P.C. 3 Camelback Esplanade 2425 East Camelback Road, Suite 900 4 Phoenix, AZ 85016 5 Telephone: 602.474.3600 Facsimile: 602.957.1801 6 Attorneys for Defendant 7 KeyPoint Government Solutions, Inc. 8 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 12 13 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, 14 Plaintiff, DEFENDANT’S CORPORATE 15 DISCLOSURE STATEMENT v. 16 17 KeyPoint Government Solutions, Inc., a Delaware corporation, 18 Defendant. 19 20 This Corporate Disclosure Statement is filed on behalf of KeyPoint Government 21 Solutions, Inc. in compliance with the provisions of: 22  Rule 7.1, Federal Rules of Civil Procedure, a nongovernmental corporate party 23 to an action in a district court must file a statement that identifies any parent 24 corporation and any publicly held corporation that owns 10% or more of its 25 stock or states that there is no such corporation. 26  Rule 12.4(a)(1), Federal Rule of Criminal Procedure, any nongovernmental 27 corporate party to a proceeding in a district court must file a statement that 28 identifies any parent corporation and any publicly held corporation that owns LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 10 Filed 04/17/17 Page 2 of 3 1 10% or more of its stock or states that there is no such corporation. 2  Rule 12.4(a)(2), Federal Rule of Criminal Procedure, if an organizational 3 victim of alleged criminal activity is a corporation the government must file a 4 statement identifying the victim and the statement must also disclose the 5 information required by Rule 12.4(a)(1). 6 The filing party hereby declares as follows:  No such corporation. 7  Party is a parent, subsidiary or other affiliate of a publicly owned corporation as 8 listed below. (Attach additional pages if needed.) 9 Relationship 10  Publicly held corporation, not a party to the case, with a financial interest in the 11 outcome. List identity of corporation and the nature of financial interest. (Attach 12 additional pages if needed.) 13  Other (please explain) 14 KeyPoint Government Solutions, Inc. is wholly owned by KGS Holding Corp. which 15 is wholly owned by KGS Holding LLC; and no publicly held corporation owns more than 16 10% interest in KeyPoint Government Solutions, Inc. 17 A supplemental disclosure statement will be filed upon any change in the information 18 provided herein. 19 DATED this 17th day of April, 2017 20 21 22 s/Ryan G. Lockner Ryan G. Lockner 23 LITTLER MENDELSON, P.C. 24 Attorneys for Defendant KeyPoint Government Solutions, Inc. 25 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900-2-Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 10 Filed 04/17/17 Page 3 of 3 1 I hereby certify that I electronically transmitted the attached document to the 2 Clerk’s Office using the CM/ECF System 3 for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF 4 registrants this 17th day of April, 2017: 5 Michael C. McKay SCHNEIDER WALLACE COTTRELL 6 KONECY WOTKYNS LLP 7 8501 North Scottsdale Road, Suite 270 Scottsdale, AZ 85253 8 mmckay@schneiderwallace.com 9 Joshua Konecky Leslie H. Joyner 10 SCHNEIDER WALLACE COTTRELL 11 KONECY WOTKYNS LLP 2000 Powell Street, Suite 1400 12 Emeryville, CA 94608 jkonecky@schneiderwallace.com 13 ljoyner@schneiderwallace.com 14 Attorneys for Plaintiff 15 16 s/Nancy R. Weber 17 18 19 20 21 22 23 24 25 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900-3-Phoenix, AZ 85016 602.474.3600

MOTION to Certify Class Plaintiff's Motion for Conditional Certificate and to Facilitate Notice of Collective Action Pursuant to Section 216(b) of the Fair Labor Standards Act by Orson Judd.

Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 1 of 18 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiffs and the Proposed Collective 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 ORSON JUDD, individually and on) Case No.: CV-17-08050-PCT-SPL behalf of all others similarly situated,) 11) The Honorable Steven P. Logan Plaintiffs,) 12) PLAINTIFF’S MOTION FOR vs.) CONDITIONAL CERTIFICATION AND 13) TO FACILITATE NOTICE OF KEYPOINT GOVERNMENT) COLLECTIVE ACTION PURSUANT TO 14 SOLUTIONS, INC., a Delaware) SECTION 216(b) OF THE FAIR LABOR corporation,) STANDARDS ACT (FLSA), 29 U.S.C. § 15) 201, et seq. Defendant.) 16) ORAL ARGUMENT REQUESTED) 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 2 of 18 1 Pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA"), Plaintiff 2 Orson Judd respectfully moves this Court for conditional certification and to facilitate notice 3 to the following proposed collective: 4 All individuals who have worked for Defendant as Investigators in the United States, while being classified as independent contractors, at any time within the 5 three year statute of limitations period for FLSA claims under 29 U.S.C. § 255(a), plus additional time for periods of equitable tolling. 6 The underlying claim that Plaintiff seeks to bring is whether Defendant has misclassified 7 the Investigators as independent contractors, who are not entitled to overtime, rather than as 8 employees, who are. Plaintiff makes this motion for conditional certification under the "light 9 burden" that applies to such motions under the FLSA. "Given this light burden, motions to 10 conditionally certify a class for notification purposes are typically granted." Villarreal v. 11 Caremark LLC, 66 F. Supp. 3d 1184, 1189 (D.Az. 2014) (internal citations omitted). 12 I. INTRODUCTION 13 Over the past several years, the federal courts and the Department of Labor have 14 expressed increasing concern that companies are unlawfully labeling their workers as 15 "independent contractors" rather than "employees," in order to avoid paying employment 16 taxes and overtime, among other employment benefits. See, e.g., Exhibit U to the Declaration 17 of Joshua Konecky ("Konecky Decl."),1 Testimony of Secretary of Labor Thomas E. Perez 18 before the Committee on Education and the Workforce, March 26, 2014 (The 19 misclassification of employees as independent contractors "is nothing short of workplace 20 fraud, and it is a practice that has spread from construction to a variety of low-wage 21 industries[.]"). In turn, the Fair Labor Standards Act (FLSA) is a broad remedial statute that 22 puts the burden of proof on the presumptive employer to justify not classifying its workers as 23 "employees," when it comes time to paying them overtime and minimum wage. 24 This case is about one such nationwide employer—Defendant KeyPoint Government 25 Solutions, Inc. ("KeyPoint")—that continues to classify its core workforce as "independent 26 contractors," even though it has been put on notice on several occasions (including once by 27 28 1 All references to Exhibits refer to the Declaration of Joshua G. Konecky, unless otherwise noted. PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 1 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 3 of 18 1 the Internal Revenue Service) that these workers meet the legal test to qualify them as 2 "employees" entitled to overtime. KeyPoint is a private company that contracts with the 3 federal government to perform background checks on individuals applying for national 4 security positions. KeyPoint hires "Investigators" to perform the actual background 5 investigations that are integral to KeyPoint’s business. The named Plaintiff here, Mr. Orson 6 Judd, worked for KeyPoint in Arizona as one of these Investigators. 7 KeyPoint’s Investigators, including Mr. Judd, fit squarely within the legal definition of 8 "employee" under the well-established case law interpreting the FLSA. The Investigators 9 work for KeyPoint; they service KeyPoint’s clients; they perform work integral to KeyPoint’s 10 business; they have to follow KeyPoint’s rules on how to perform the details of the job; they 11 cannot delegate any aspect of their work assignments to others; and Keypoint actively 12 monitors their compliance with its many rules. Moreover, unlike genuine contractors or 13 consultants, who take on particular projects that may not be integral to their principal’s 14 business, KeyPoint’s Investigators here receive assignments from KeyPoint for an indefinite 15 period of time and continuously carry out KeyPoint’s core business of performing background 16 investigations. In fact, approximately 95% of the Investigators work for KeyPoint for at least 17 a year. Also contrary to the traditional contracting relationship, KeyPoint retains the 18 discretion to terminate any Investigator at any time if they do not comply with KeyPoint’s 19 mandatory rules and procedures. 20 KeyPoint’s Investigators do not profit like independent businesses either. Instead, the 21 Investigators earn a routine piece rate wage based on a standardized wage scale that KeyPoint 22 provides. Under this standard pay scale and structure, the largest if not only determinants of 23 how much money the Investigators can bring home while working for KeyPoint are which 24 assignments KeyPoint’s managers decide to make available to them. 25 Despite these hallmarks of an employee-employer relationship, KeyPoint refuses to pay 26 the Investigators overtime pay when they work more than 40 hours in a week. In fact, 27 KeyPoint openly admits that it does not follow the overtime requirements of the FLSA when 28 it comes to the Investigators covered by this case. Worse, KeyPoint openly asserts that the PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 2 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 4 of 18 1 reason it classifies the Investigators as independent contractors (rather than employees) is 2 simply to make it easier to periodically flex-up and flex-down its workforce, and not because 3 their work is different from that of employees under the factors of the FLSA test separating 4 employees from independent contractors. While this might be a rational strategy for a 5 company whose only objectives are to increase profits and decrease administrative 6 responsibilities to the workforce, it is not a lawful justification under the FLSA. 7 II. THE PREJUDICE OF DELAY 8 In a good faith effort to meet and confer regarding motion practice, Plaintiff’s counsel 9 asked Defense counsel on April 11, 2017, if Defendant would be willing to conserve judicial 10 resources and move the case forward to the merits, by stipulating to conditional certification. 11 See Konecky Decl. at ¶ 8 and Exh. A. Plaintiffs’ counsel also provided Defense counsel a 12 draft FLSA notice to consider. Id. In response, Defendant asked Plaintiff’s counsel to delay 13 the filing until after April 17, so that it might consider the matter. Id. at ¶ 9 & Exh. A. On 14 April 17, however, Defendant filed a motion to transfer venue of the case to the District of 15 Colorado. [ECF Doc. 9.] 16 Plaintiff, who lives and worked for KeyPoint in Arizona, will oppose the motion to 17 transfer, which underneath is attempt to forum shop and further delay the conditional 18 certification question. See e.g. Motion to Transfer [ECF 9] at 15. In the meantime, each day 19 of further delay prejudices the members of the putative FLSA collective from receiving notice 20 of the case and an opportunity to toll their statute of limitations by opting in to it.2 21 Accordingly, Plaintiff has filed this motion to avoid further delay. 22 III. BACKGROUND AND PROCEDURAL HISTORY 23 On September 29, 2011, the Internal Revenue Service (IRS) provided a seven-page 24 determination letter to KeyPoint’s CEO, Jeff Schlanger, explaining its conclusion that 25 Defendant had misclassified one of its Investigators as an independent contractor rather than 26 an employee. See Exh. Q. The IRS letter identified numerous reasons why the Investigator 27 2 Absent equitable tolling, the statute of limitations for an opt-in plaintiff in an FLSA case is 28 not tolled by the filing of the initial complaint, but rather on the date the individual joins the case as an opt in plaintiff. See 29 U.S.C. § 216(c). PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 3 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 5 of 18 1 should have been classified as an employee. Id. at pp 3-5. The IRS letter also referenced 2 Defendant’s potential tax liability for not paying employment related taxes as a result of 3 misclassifying the Investigator as an independent contractor. Id. at pp 5-6. 4 In or around June of 2014, Mr. Sgherzi filed a class action against KeyPoint in the 5 Superior Court of California, County of Los Angeles alleging independent contractor 6 misclassification under California law. Exh. S, Michael Sgherzi v. KeyPoint Government 7 Solutions, Inc., et al., First Amended Complaint (Los Angeles County Superior Court, Case 8 No. BC487486, May 5, 2014). While the case only covered KeyPoint’s Investigators in 9 California, it did include claims for violations of the FLSA. See id.; see also Exh. T, Sgherzi 10 v. KeyPoint, Class Action Settlement Agreement and Joint Stipulation at ¶ 5, (June 5, 2014). 11 Shortly thereafter, KeyPoint agreed to a class action settlement covering the 12 Investigators in California and eliminated independent contractor designation for 13 Investigators in California. Exhs. T and Y. KeyPoint, however, continued to classify its 14 Investigators in the other states as independent contractors, even though they do the same kind 15 of work under the same or substantially similar policies, procedures and constraints as the 16 Investigators properly classified as employees. 17 On January 29, 2015, a former KeyPoint Investigator in Ohio, Richard Smith, filed a 18 case against KeyPoint under the FLSA on behalf of a nationwide proposed collective of 19 similarly situated Investigators in the United States. See Richard Smith, et al. v. KeyPoint 20 Government Solutions, Case No. 1:15-cv-00865 (D. Colo.) ("Smith Action"), Complaint, 21 [ECF 1] (Jan. 29, 2015). Despite the IRS determination and earlier proceeding in California, 22 KeyPoint denied the existence of common policies evidencing its right to control the details 23 of the Investigators’ work. Konecky Decl. at ¶ 6. Mr. Smith therefore attempted to seek at 24 least some evidence of KeyPoint’s policies and procedures concerning control (control being 25 one of the primary factors of the FLSA employment test, as discussed below), before bringing 26 his motion for conditional certification in that case. Id. at ¶ 5. In response, KeyPoint took the 27 position that it could not disclose its actual policies and procedures pertaining to the work of 28 the Investigators until after it obtained permissions from its government client (Office of PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 4 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 6 of 18 1 Personnel Management). Id. at ¶ 4. Despite motions to compel, the bureaucratic process for 2 obtaining this permission was, to say the least, slow. Id. By the end of the Smith Action the 3 plaintiff obtained some, but not all, of these policies. Id. at ¶ 5. 4 In the meantime, before deciding the conditional certification question, the Court in the 5 Smith case held on summary judgment that the claims of the named plaintiff there (Mr. Smith) 6 fell outside the statute of limitations because Mr. Smith did not raise a triable issue of fact that 7 KeyPoint’s alleged violation of the FLSA was willful to invoke the three-year limitations 8 period 29 U.S.C. § 255(a). See Exh. X, Smith Action, Amended Final Judgment [ECF 100]. 9 In deciding the willfulness question, the Smith Court did not have the previous IRS 10 determination or California action before it (among other things)—both of which demonstrate 11 KeyPoint’s prior knowledge and intent. See Konecky Decl. at ¶ 6. As a result, the Smith Court 12 dismissed the named plaintiff’s individual claims with prejudice. Id. Significantly, the Smith 13 Court only dismissed the claims of any other Investigator without prejudice. Id. In other 14 words, the Smith Court explicitly made the dismissal without prejudice to the pursuit of the 15 collective action claims by one or more of KeyPoint’s other Investigators in another case. 16 Exh. X. 17 The Plaintiff here, Mr. Orson Judd, was one of the opt-in Plaintiffs whose claims were 18 dismissed without prejudice in the Smith Action. Mr. Judd lives in Arizona and worked for 19 KeyPoint in Arizona from approximately June of 2008 through approximately September of 20 2014. See Compl. [ECF 1] at ¶ 15. Mr. Judd filed his consent to join the Smith Action on 21 August 20, 2015. Therefore, the statute of limitations was tolled for Mr. Judd throughout the 22 pendency of the Smith Action, which concluded on January 20, 2017. Mr. Judd filed this case 23 and his opt-in consent form on March 10, 2017. [ECF 1, 1-2]. Accordingly, Mr. Judd’s claims 24 fall within both the FLSA’s two-year and three-year statute of limitations. 29 U.S.C. § 255(a). 25 Meanwhile, in 2015, during the pendency of the Smith Action, KeyPoint inserted an 26 arbitration clause with a class action waiver into its standardized Independent Contractor 27 Engagement Agreement" (ICEA). See Exh C (Deposition of Jennifer Boaz at 225:15-226:15); 28 Exh G (Revised ICEA for DHS Investigators, KEYPOINT0000001-0000026); Exh H PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 5 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 7 of 18 1 (Revised ICEA for OPM Investigators, KEYPOINT0000027-KEYPOINT0000052). The 2 contract permitted Investigators to exempt themselves from the arbitration clause only with 3 respect to the Smith Action if they wished to reserve their right to become part of the Smith 4 collective action. See Exh G (KEYPOINT0000011); Exh H (KEYPOINT0000037). Of the 5 1,302 Investigators who were provided the new contract, only 301 signed it without choosing 6 to reserve their right to become part of the Smith action. Exh I (Defendant’s Responses to 7 Plaintiff Richard Smith’s Second Set of Interrogatories to Defendant KeyPoint Government 8 Solutions, Inc., at No. 8-10). Accordingly, if the provision in the arbitration agreement 9 exempting the Smith Action is deemed to apply to this current action, then the 1001 10 Investigators who exempted themselves would not be subject to arbitration. Conversely, if 11 the exemption provision is deemed not to apply to this action and/or otherwise held to be an 12 insufficient opt-out under Morris v. Ernst & Young, LLP, 834 F.3d 975 (2016), petition for 13 cert. granted, 2017 WL 125665 (Jan. 13, 2017), then the whole arbitration agreement would 14 violate the National Labor Relations Act under Ninth Circuit law. In either case, Investigators 15 whose employment with Keypoint was terminated before the 2015 ICEA also would not be 16 subject to arbitration. 17 IV.STATEMENT OF COMMON FACTS3 18 KeyPoint is in the business of performing background investigations for the federal 19 government. Exh C (Deposition of Jennifer Boaz ("Boaz (PMK) Dep.") at 46:25-47:5. 20 KeyPoint hires Investigators to perform the integral role of KeyPoint’s business, i.e., the 21 Investigators’ job is to "complete the actual case investigations in the field." Boaz (PMK) 22 Dep. 47:12-17. The Investigators all perform the same basic job: interviewing subjects, 23 conducting public records searches, interviewing sources, and writing investigation reports. 24 Id. at 80:4-22; 153:18-24. They all sign a standardized "Independent Contractor Engagement 25 26 3 The documents and deposition testimony cited herein were obtained in the Smith Action. 27 All the testimony comes from KeyPoint’s own witnesses, including its "Person Most Knowledgeable" (PMK) witness. Plaintiff’s counsel of record in this case was counsel of 28 record in the Smith Action. PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 6 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 8 of 18 1 Agreement" (ICEA) with KeyPoint. Id. at 223:18-225:13; 58:23-59:18; 175:14-22. 2 The Investigators do not receive overtime or other employment benefits. Id. at 81:16-3 20, 82:18-21, 92:2-15. The reason KeyPoint classifies them as independent contractors (rather 4 than employees) is simply to allow KeyPoint to manage its workload by flexing up or down 5 its workforce (and not because their work is categorically different from that of employees). 6 Id. at 103:25-105:15. All the Investigators that KeyPoint hires as independent contractors 7 work on investigations KeyPoint performs for either the Office of Personnel Management 8 ("OPM") or Department of Homeland Security ("DHS"). Id. at 19:3-6. Approximately 85% 9 work on OPM, 15% work on DHS, and 5% work on both. Id. at 158:11-160:8. 10 The Investigators receive all case assignments directly from KeyPoint. Boaz (PMK) 11 Dep. 42:5-12. KeyPoint obtains a case investigation project from its client, and then divides 12 the project into sub-tasks and distributes them to different Investigators. Exh F (Deposition 13 of Russel McAbee, Senior Vice President and Program Director ("McAbee Dep.") at 72:3-14 14; 163:25-165:4; see generally id. at 67:21-72:14). KeyPoint assigns work to the 15 Investigators based on KeyPoint’s own logistical needs, and the Investigators play no role in 16 this process. Exh E (Deposition of Angela Deabler ("Deabler Dep.") at 48:6-53:2). 17 The Investigators are completely dependent on the individual tasks KeyPoint makes 18 available for them to complete. Boaz (PMK) Dep. 106:7-10; Deabler Dep. 121:14-15; 19 McAbee Dep. 74:8-76:18. Investigators are prohibited from subcontracting out or assigning 20 work to anyone else to perform. McAbee Dep. 166:13-169:13. They do not have the 21 independence to simply take on a project and decide who is going to perform it and how. 22 McAbee Dep. 164:23-165:4. Rather, the Investigators perform all assigned tasks themselves. 23 Boaz (PMK) Dep. 83:19-85:11; McAbee Dep. 163:25-165:4. 24 The clients belong to KeyPoint, not the Investigators, and the Investigators do not have 25 access to or communicate with clients. Boaz (PMK) Dep. 39:2-5; 40:5-21. In fact, 26 Investigators have no role whatsoever in any of the negotiations that KeyPoint has with its 27 clients that impact either the work made available to Investigators, the way in which the 28 Investigators must perform their work, or the rates of pay ultimately offered to the PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 7 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 9 of 18 1 Investigators. Deabler Dep. 119:4-6, 134:18-136:22; McAbee Dep. 170:7-25. 2 KeyPoint freely admits that it has agreed with its clients to control the details of the 3 work performed by all the Investigators: 4 Q. Okay. And there are an array of mandatory terms that you’ve agreed to with respect to the details and the manner and means by which your investigators, 5 including the independent contractor investigators, are performing their work, right? 6 A. Yes. Q. And that applies to all of the investigators, including all of the independent 7 contractor investigators, right? 8 A. Yes. 9 Deabler Dep. 134:18-136:22. KeyPoint maintains numerous uniform policies to manage the 10 work of the Investigators. Id. at 73:17-74:112. 11 KeyPoint requires that its Investigators comply with multiple policies, procedures and 12 techniques that are contained in a generally applicable "Investigator’s Handbook." Boaz 13 (PMK) Dep. 110:21-111:15; see also Exh J (Investigator’s Handbook, 14 OPM_Touhy_0000003-0000575). KeyPoint has explicitly agreed with its clients that every 15 Investigator conducting investigations pertaining to OPM, CBP and/or ICE (well over 90% 16 of the Investigators) must comply with all the policies, procedures and techniques set forth in 17 the Investigator’s Handbook. Boaz (PMK) Dep.111:5-15; Deabler Dep.135:9-136:9, McAbee 18 Dep.42:5-12; 86:6-13. The Investigator’s Handbook is nearly 550 single-spaced pages of 19 detailed policies and procedures that Investigators must follow to complete work for 20 KeyPoint. Id. It even includes "specific line[s] of questioning and questions... that need to 21 be adhered to" in each interview conducted by an Investigator. Boaz (PMK) Dep. 234:4-6. 22 The policies and procedures in the Investigator’s Handbook are mandatory. Id. at 211:3-23 212:9. Furthermore, KeyPoint has assumed responsibility for enforcing the policies and 24 procedures in the Investigator’s Handbook as to the Investigators. Deabler Dep. 108:17-109:2. 25 For example, KeyPoint enforces policies on the "proper process" for contacting sources; how 26 to use private information; how to keep handwritten notes, and the timing and method of 27 shipping investigation notes to KeyPoint. Boaz (PMK) Dep. 207:25-208:11; 62:19-64:25; 28 173:6-174:11; McAbee Dep. 84:22-25; see also Exh K (sample email, KEYPOINT0001937-PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 8 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 10 of 18 1 38). KeyPoint also imposes deadlines on the Investigators based on deadlines KeyPoint has 2 with its clients. Boaz (PMK) Dep. 56:11-20; see also Exh L (sample email, 3 KEYPOINT0001878-79). KeyPoint is also responsible for ensuring compliance with the 4 quality and timing standards set by KeyPoint’s contracts with the government. Boaz (PMK) 5 Dep. 108:12-111:15; McAbee Dep. 46:10-48:12. KeyPoint’s policies are mandatory and 6 Investigators are expected to comply. Boaz (PMK) Dep. 175:14-22; see also id. at 163:11-7 164:11. If an Investigator fails to follow KeyPoint’s detailed policies and procedures, 8 KeyPoint reserves the right to take corrective action, including termination. Boaz (PMK) Dep. 9 175:14-176:8; see also Deabler Dep. 116:14-117:17; McAbee Dep. 186:2-189:13. 10 KeyPoint requires that the Investigators attend extensive training provided by KeyPoint 11 before starting work. Boaz (PMK) Dep. 41:5-42:4; see also Exh M (Job Announcement, 12 KEYPOINT0000097-98).4 KeyPoint also requires Investigators to complete annual training 13 on security policies and procedures. Boaz (PMK) Dep. 35:13-36:22. KeyPoint’s training 14 provides Investigators with the necessary skills to perform their job, including procedures for 15 conducting interviews, handling notes, transmitting reports, and conducting record searches. 16 Boaz (PMK) Dep. 88:18-91:5. Investigators’ training even includes detailed written 17 instructions for the lines of questioning that should be pursued for each interview. Id. at 18 203:17-204:18; 234:4-6. KeyPoint’s PMK described this extensive training as "our 19 accountability to our customer." Id. at 42:5-42:12. KeyPoint even monitors the Investigators’ 20 performance to determine if additional training is necessary. Id. at 130:16-132:6. 21 Once Investigators accept an assignment, they are expected to meet a due-date 22 established by KeyPoint based on what KeyPoint negotiates with its clients. Id. at 56:11-57:5; 23 Deabler Dep. 31:20-32:18; McAbee Dep. 46:10-48:12. Investigators cannot renegotiate 24 deadlines with KeyPoint’s clients. Deabler Dep. 37:3-10. The Investigators must complete 25 26 4 For work on the OPM project (approximately 80% of the Investigators), KeyPoint requires 27 a total of 10 weeks of training. Boaz (PMK) Dep. 88:12-90:21. The first seven weeks are unpaid and include between six and eight hours of classroom work per day. Id. After 28 completing the classroom training, Investigators must then complete 80 hours of On-The-Job ("OTJ") training. Id. PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 9 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 11 of 18 1 the necessary interviews, perform the necessary document searches, and write the necessary 2 reports in accordance with KeyPoint’s policies, deadlines and quality control standards. Boaz 3 (PMK) Dep. 11:4-11, 108:12-111:15. The end product is a "Report of Investigation" that 4 KeyPoint submits to its client. For work provided to OPM, KeyPoint has a team of "Case 5 Review Analysts" that review each report before it is deemed fit for the client. Id. at 10:23-6 11:11. For the DHS project, KeyPoint has three levels of internal review before it goes to the 7 client. McAbee Dep. 117:13-121:24. If KeyPoint determines a report does not meet all the 8 standards and requirements, the Investigator must rewrite it. Boaz (PMK) Dep. 11:4-11. 9 Throughout the process, KeyPoint provides the Investigators with guidance and 10 mentoring by assigning them "Contract Liaisons" and "Case Managers." Id. at 7:5-9:24. The 11 Case Manager/Contract Liaisons "take ownership of the case" and "manage the case through 12 to the end." McAbee Dep. 80:21-81:7. KeyPoint also has a "Policy and Guidance" 13 Department that provides uniform guidance to Investigators in the field as to how to interpret 14 and follow policy. Deabler Dep. 7:25-9:11. 15 KeyPoint also subjects the Investigators to random audits and internal inspections to 16 ensure they comply with the "proper process." Deabler Dep. 106:2-12; 134:18-136:22. 17 KeyPoint will re-contact 10% of sources in order to determine if an Investigator followed 18 proper procedure. Boaz (PMK) Dep. 199:15-200:18; Exh N (Email re "ACTION 19 REQUIRED", KEYPOINT0001873-1874). KeyPoint also monitors Investigators’ emails to 20 ensure compliance with KeyPoint’s security protocols, Boaz (PMK) Dep. 68:7-69:24, and 21 keeps track of complaints filed against the Investigators. Deabler Dep. 110:14-20. 22 KeyPoint evaluates Investigators based on a set of 78 standards. Deabler Dep. 101:3-23 102:13. When they fail to comply with KeyPoint policies, KeyPoint sends Investigators a 24 letter of violation. Deabler Dep. 29:2-30:12. The Investigator must reply, confirming 25 agreement to next time follow the "proper process". Deabler Dep. 29:2-30:12 Exh N (Email 26 re "ACTION REQUIRED", KEYPOINT0001873-1874). If KeyPoint determines that an 27 Investigator did not follow "proper process," KeyPoint may require additional corrective 28 action, such as retraining. Deabler Dep. 28:10-13. In some cases, KeyPoint’s corrective action PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 10 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 12 of 18 1 may include termination. Id. at 116:14-117:17. 2 The Investigators do not "invest" in their own businesses. Conversely, KeyPoint invests 3 over $12,000 into each Investigator to provide mandatory training and credentials. Boaz 4 (PMK) Dep. 148:6-149:14. Investigators also receive a laptop, software, and security 5 equipment. Boaz (PMK) Dep. 166:8-167:23; see also Deabler Dep. 66:16-25. They do not 6 invest time or resources into developing relationships with KeyPoint’s clients. Deabler Dep. 7 64:10-65:7. They do not invest in additional employees to perform work (as each must 8 personally perform all the tasks themselves). Boaz (PMK) Dep. 83:19-85:11; McAbee Dep. 9 163:25-165:4; 166:13-169:13. The only investment Investigators make into their "business," 10 is for transportation, paper, pens, a printer, and sometimes a fax machine. Deabler Dep. 65:8-11 66:15. In the words of one KeyPoint’s Program Directors, "we provide everything else they 12 need to … receive and complete their tasks." McAbee Dep. 155:11-15. 13 Investigators do not have the opportunity to use managerial skill to control profit and 14 loss. Instead, every Investigator’s opportunity for profit is constrained by the work that 15 KeyPoint decides to make available. Boaz (PMK) Dep. 106:7-10; see also Deabler Dep. 16 125:16-126:24. KeyPoint also limits Investigators’ opportunities for profit and loss by paying 17 them all on a similar piece-rate structure. See Exh O ("DHS Project Fee Structure," 18 KEYPOINT0000761-62); Exh P ("OPM Project contractor Fee Structure," 19 KEYPOINT0001746). Under certain circumstances, Investigators may ask for premium pay 20 for specific work, but KeyPoint admits that only 12-15% of assignments include premium 21 pay. Boaz (PMK) Dep. 183:23-185:2; see also Deabler Dep. 124:2-24. KeyPoint affords its 22 Contract Liaisons limited authority to grant premium pay. Boaz (PMK) Dep. 188:12-15 23 (authority capped at 25%); Deabler Dep. 119:7-120:4. The only ways that Investigators can 24 control profits and losses is to accept more work from what KeyPoint makes available, work 25 faster on their tasks, and/or drive a less expensive car. Deabler Dep. 121:11-123:8; see also 26 McAbee Dep. 160:3-14 (Program Director not aware of any way in which Investigators can 27 control losses). Thus, managerial skill places no role in how much Investigators earn. 28 Still, Investigators work for KeyPoint on a continuous basis. Ninety-five percent (95%) PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 11 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 13 of 18 1 of Investigators remain with KeyPoint for more than one year. Boaz (PMK) Dep. 121:14-20; 2 122:10-123:2; see also McAbee Dep. 194:4-9. Indeed, the standardized agreement KeyPoint 3 requires all Investigators to sign obligates them to repay KeyPoint for up to $5,000 in training 4 expenses if they leave KeyPoint within a year. Exh Q (Independent Contractor Training 5 Repayment Agreement, KEYPOINT1526). KeyPoint also keeps Investigators working 6 regularly and continuously by enforcing a policy that Investigators must work at least once 7 every 30 days to stay credentialed. Id. 8 KeyPoint has no degree requirements for its Investigators. Exh M 9 (KEYPOINT0000098). KeyPoint’s only specific requirement is that the Investigator 10 complete the training KeyPoint provides. Deabler Dep. 89:6-20. KeyPoint’s training is 11 designed to provide Investigators with the skills required for the job. Boaz (PMK) Dep. 88:18-12 91:5. All Investigators attend the same training to develop the skills necessary to work for 13 KeyPoint. Boaz (PMK) Dep. 155:5-12. 14 V. ARGUMENT 15 A. A Lenient Standard Applies to Conditional Certification Under the FLSA 16 "The majority of courts, including those within the District of Arizona, have adopted the 17 two-tiered approach in deciding whether to grant FLSA collection action status." Villarreal 18 v. Caremark LLC, 2014 WL 4247730, at *3 (D. Ariz. Aug. 21, 2014) At the first step, the 19 question is whether to conditionally certify the proposed class to allow the named plaintiffs 20 to notify potential class members of their right to opt-into the lawsuit. See Genesis Healthcare 21 Corp. v. Symczyk, 133 S.Ct. 1523, 1530 (2013) ("The sole consequence of conditional 22 certification is the sending of court-approved written notice to employees...."). The standard 23 for determining similarity at the initial stage has been described as "not particularly stringent," 24 "fairly lenient," "flexible," "not heavy" and "less stringent than that for joinder under Rule 25 20(a) or for separate trials under 42(b)." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 26 1260-1261 (11th Cir. 2008) (citations omitted). "Given this light burden, motions to 27 conditionally certify a class for notification purposes are typically granted." Villarreal, 66 F. 28 Supp. 3d at 1189 (internal citations omitted). PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 12 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 14 of 18 1 B. The FLSA has the broadest definition of "employer" in any one Act. 2 The FLSA’s definition of "employ" is the broadest definition "ever included in any one 3 act." United States v. Rosenwasser, 323 U.S. 360, 363 n. 3 (1945). Indeed, the Ninth Circuit 4 has held that the term in "employer" must be afforded "an expansive interpretation to 5 effectuate the FLSA’s broad remedial purposes." Lambert v. Ackerly, 180 F.3d 997, 1011-12 6 (9th Cir. 1999).5 The FLSA applies to "employers," a class that the statute "defines broadly" 7 to include "any person acting directly or indirectly in the interest of an employer in relation 8 to an employee[.]" Solis v. Tally Young Cosmetics, LLC, 2011 WL 1240341, at *3 (E.D.N.Y. 9 Mar. 4, 2011) (quoting 29 U.S.C. § 203(d)). 10 To determine whether a person is an employee or an independent contractor under the 11 FLSA, the Ninth Circuit teaches us to consider the following non-exhaustive factors: 12 1) The degree of the alleged employer's right to control the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss 13 depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; 4) 14 whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; 6) whether the service rendered is an integral part of 15 the alleged employer's business. 16 Donovan v. Sureway Cleaners, 656 F.2d 1368, 1370 (9th Cir. 1981). Contractual language 17 that purports to describe an individual’s working relationship does not control, nor does the 18 parties’ intent. Collinge v. IntelliQuick Delivery, Inc., 2015 WL 1299369, at *2 (D. Ariz., 19 Mar. 23, 2015) (citing Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 755 (9th 20 Cir. 1979)). Whether an employer-employee relationship exists depends "upon the 21 circumstances of the whole activity," and ultimately, whether, as a matter of economic reality, 22 the individuals "are dependent upon the business to which they render service." Donovan, 23 24 25 The FLSA also "uses a much broader definition of'employee’ than is found at common 5 26 law." Callahan v. City of Chicago, 2015 WL 394021 (N.D. Ill. 2015) at *8; see also Usery 27 v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1976) ("The terms'independent contractor,’'employee,’ and'employer’ are not to be construed in their common law senses 28 when used in federal social welfare legislation. [] Rather, their meaning is to be determined in light of the purposes of the legislation in which they were used."). PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 13 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 15 of 18 1 656 F.2d at 1370.6 2 C. The Investigators are similarly situated with respect to the factors of the employment versus independent contractor test 3 "The court’s task at this stage of the litigation is not to consider the merits of whether 4 the economic realities test is satisfied, but rather to decide whether the factual and 5 employment settings of the opt-in plaintiffs and the named plaintiffs are similar." Collinge, 6 2015 WL 1292444, at *2. Such is the case here, as each of the above factors revolves around 7 KeyPoint’s uniform policies and will be answered in common for all Plaintiffs. 8 1. Investigators are similarly situated with regard to the degree of control 9 that KeyPoint retains the right to exercise 10 "Where an individual exercises control over the nature and structure of the employment 11 relationship, or economic control over the relationship, that individual is an employer within 12 the meaning of the [FLSA]." Guifu Li v. A Perfect Day Franchise, Inc., 281 F.R.D. 373, 397 13 (N.D. Cal. 2012) (quoting Lambert v. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999). Moreover, 14 employers may possess a "right to control" without constantly supervising and/or disciplining 15 their employees, such as by retaining a broad right of termination, as KeyPoint has done here. 16 See, e.g., Goldberg v. Whitaker House Co-op., 366 U.S. 28, 32–33 (1961) (finding 17 homeworkers "employees" where putative employer had power to hire and fire them). 18 Indeed, "[a]n employer does not need to look over his workers' shoulders every day in order 19 to exercise control." Ansoumana v. Gristede's Operating Corp., 255 F. Supp. 2d 184, 190–91 20 (S.D.N.Y. 2003); Herman v. RSR Sec. Servs., 172 F.3d 132, 140 (2d Cir.1999) (finding a right 21 to control where employer "on occasion, supervised and controlled employee work schedules 22 and the conditions of employment."). 23 As shown above, KeyPoint has agreed with its government clients to maintain and 24 enforce multiple, detailed procedures and standards pertaining to quality, performance and 25 timing of all work performed by the Investigators. These standards are highly similar, if not 26 The "economic dependence" at issue focuses on whether the plaintiffs rely on KeyPoint 6 27 during the time period they work for [KeyPoint], however long or short that period may be. In other words,'the dependence at issue is dependence on that job for that income to be 28 continued and not necessarily for complete sustenance.’" Halferty v. Pulse Drug Co., Inc., 821 F.2d 261, 267 (5th Cir. 1987)). PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 14 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 16 of 18 1 uniform, across the proposed collective. KeyPoint also provides standardized training and 2 common guidance to the Investigators. It further maintains a common procedure for 3 reviewing the reports the Investigators prepare, randomly auditing the conduct of 4 Investigators in the field to ensure compliance with the "proper process," and issuing 5 corrective action up to and including termination if the Investigators repeatedly do not follow 6 the rules. These rules and procedures are the same for all Investigators. 7 2. Investigators are similarly situated with regard to their opportunity for profit and loss based on managerial skill 8 "[T]oiling for money on a piecework basis is more like wages than an opportunity for 9 "profit." See Dole v. Snell, 875 F.2d 802, 809 (10th Cir. 1989), Brock v. Mr. W. Fireworks, 10 Inc., 814 F.2d 1042 1050–51 (5th Cir. 1987); Rutherford Food Corp. v. McComb, 331 U.S. 11 722, 730 (1947) (distinguishing piece rate compensation from entrepreneurial initiative, 12 judgment or foresight that is typical of an independent contractor). KeyPoint’s Investigators 13 are similarly situated with respect to the opportunity for profit and loss for several reasons. 14 First, KeyPoint pays them pursuant to a common piece rate structure. Second, while KeyPoint 15 may provide an opportunity to seek premiums for individual tasks, this opportunity is 16 applicable to all Investigators and, in each case, the ultimate authority to grant or deny the 17 premium rests with KeyPoint. Indeed, KeyPoint approves premium pay to only 12-15% of 18 the assignments. Third, the Investigators receive their work assignments directly from 19 KeyPoint, not from the client, and have no authority to offer services to, or negotiate directly 20 with, the client to obtain a better pay rate or more flexible procedures for performing the work. 21 Fourth, while Investigators may be able to decline their assignments, they have no control 22 over what KeyPoint makes available, which ultimately is what dictates their earning potential. 23 Fifth, once Investigators accept an assignment, they must perform the work according to the 24 deadlines and parameters that flow from the contracts KeyPoint has negotiated with its clients. 25 Finally, KeyPoint prohibits Investigators from delegating or subcontracting work, even if that 26 would allow them to earn more money. All these facts and considerations are similar if not 27 uniform across the collective. 28 PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 15 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 17 of 18 3. Investigators are similarly situated with regard to how integral they are to 1 KeyPoint’s business 2 This factor will be resolved in common for all Investigators because they all perform 3 the same essential job. KeyPoint admits that Investigators are integral to KeyPoint’s business 4 because they are responsible for carrying out the actual work necessary for KeyPoint to fulfill 5 its contracts with DHS and OPM. Furthermore, KeyPoint admits that it only classifies 6 Investigators as Independent Contractors to maintain a more flexible workforce, and not 7 because Investigators perform some collateral function to KeyPoint’s business. 8 4. Investigators are similarly situated with regard to their investments 9 KeyPoint spends over $12,000 per Investigator to provide the required training and 10 credentials. KeyPoint also provides the computers and software. In contrast, Investigators 11 only invest resources in basic equipment such as office supplies, potentially a printer, and 12 basic travel. Investigators do not invest time or resources in soliciting new business for 13 KeyPoint or developing relationships with KeyPoint’s clients. They are explicitly prohibited 14 from investing any resources into hiring other employees or subcontracting out work. The 15 fact that Investigators provide some of the tools necessary to complete their work does not 16 preclude a finding of employee status. Collinge, 2015 WL 1299369, at *5 ("[i]n making a 17 finding on this factor, it is appropriate to compare the worker’s individual investment to the 18 employer’s investment in the overall operation."). In any event, the extent of investment is 19 highly similar across the collective. 20 5. Investigators are similarly situated with regard to the ongoing nature of the work relationship 21 KeyPoint engages with Investigators as Independent Contractors for an extended period 22 of time involving multiple assignments rather than periodically for discrete assignments. At 23 least 95% of Investigators work for KeyPoint for more than a year. Furthermore, KeyPoint 24 requires that Investigators reimburse KeyPoint for up to $5,000 if the Investigator leaves 25 KeyPoint before one year. On the merits, these facts will support a finding that Investigators 26 are employees rather than independent contractors. Donovan, 656 F.2d at 1372. For present 27 purpose, it is sufficient that there is a high degree of similarity between the Investigators in 28 PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 16 Case 3:17-cv-08050-SPL Document 11 Filed 04/18/17 Page 18 of 18 1 terms of the ongoing nature of their relationship with KeyPoint. 2 6. Investigators are similarly situated with regard to the degree of skill KeyPoint requires 3 KeyPoint’s job descriptions show that it maintains the same job qualifications for all its 4 Investigators. Investigators do not need a specialized degree or a previous job. Moreover, to 5 the extent that the required knowledge or skills vary for the work provided by KeyPoint, it 6 also provides the required training to ensure that its Investigators have the necessary skills. 7 C. The underlying overtime claims are common across the collective 8 KeyPoint admits it does not pay the Investigators overtime and thus liability will turn 9 entirely on whether the Investigators are misclassified as Independent Contractors. While 10 there will be variation between the Investigators as to the number of overtime hours worked, 11 it is well established that individual questions with respect to damages will not defeat class 12 certification. Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1050 (2016); Leyva v. 13 Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013). 14 D. Proposed notice and further proceedings 15 Plaintiff has provided a proposed collective action notice. Exh. B. Plaintiff proposes 16 that this notice be sent to all individuals who worked for KeyPoint as Investigators while 17 being classified as independent contractors within the three-year limitations period of the 18 FLSA. 29 U.S.C. § 255(a). Plaintiff further proposes that individuals be given 90 days to opt-19 in. Carter v. Anderson Merchandisers, 2008 WL 2783193, at *6-7 (C.D. Cal. July 10, 2008); 20 Hart v. U.S. Bank NA 2013 WL 5965637, at *7 (D. Ariz., Nov. 8, 2013). 21 VI.CONCLUSION 22 For all the reasons discussed above, the Court should grant Plaintiff’s Motion to 23 Facilitate Notice Pursuant to Section 216(b) of the Fair Labor Standards Act. 24 25 Dated: April 18, 2017 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 26 27 By:/s/Joshua Konecky JOSHUA KONECKY 28 Attorney for Plaintiff Orson Judd and the Proposed Collective PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Judd v. Keypoint 17

Affidavit Declaration of Joshua G. Konecky in Support of Plaintiff's Motion for Conditional Certificate and to Facilitate Notice of Collective Action Pursuant to Section 216(b) of the Fair Labor Standards Act

Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 1 of 8 Joshua Konecky, SBN 182897 1 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 2 ljoyner@schneiderwallace.com SCHNEIDER WALLACE 3 COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 4 Emeryville, CA 94608 Telephone: (415) 421-7100 5 Facsimile: (415) 421-7105 6 Attorneys for Plaintiffs and the Proposed Collective 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 ORSON JUDD, individually and on) Case No.: CV-17-08050-PCT-SPL 10 behalf of all others similarly situated,) The Honorable Steven P. Logan) 11 Plaintiffs,) DECLARATION OF JOSHUA G.) KONECKY IN SUPPORT OF 12 vs.) PLAINTIFF’S MOTION FOR) CONDITIONAL CERTIFICATION AND 13 KEYPOINT GOVERNMENT) TO FACILITATE NOTICE OF SOLUTIONS, INC., a Delaware) COLLECTIVE ACTION PURSUANT TO 14 corporation,) SECTION 216(b) OF THE FAIR LABOR) STANDARDS ACT (FLSA), 29 U.S.C. § 15 Defendant.) 201, et seq.) 16) ORAL ARGUMENT REQUESTED 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint, Case No.: CV-17-08050-PCT-SPL Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 2 of 8 1 I, JOSHUA KONECKY, hereby declare as follows: 2 1. I am a partner at Schneider Wallace Cottrell Konecky Wotkyns LLP, the attorneys 3 of record for Plaintiff in the above-captioned case. I am submitting this declaration in support 4 of Plaintiff’s Motion for Conditional Certification and to Facilitate Notice of Collective Action 5 Pursuant to Section 216(b) of the FLSA. I am familiar with the file, the documents, and the 6 history related to this case. The following statements are based on my personal knowledge and 7 review of the files. If called on to do so, I could and would testify competently thereto. 8 2. Our firm has significant experience in the area of class and collective actions, 9 including major wage and hour cases brought on behalf of workers misclassified as 10 independent contractors. More details on the work, experience and accomplishments of our 11 firm can be found at www.schneiderwallace.com. 12 3. Our office has performed significant work in this litigation and in the earlier filed 13 action, Richard Smith, et al. v. KeyPoint Government Solutions, Inc., Case No. 1:15-cv-00865 14 (D. Colo.) ("Smith Action"), to identify, investigate and prosecute the potential collective 15 action claims. We have worked closely with the named Plaintiff, Orson Judd, to understand 16 his experiences working for Defendant and to evaluate his claims. We also have worked with 17 the other investigators who submitted declarations to the Court in the Smith Action. This work 18 has been important in enabling us to obtain a real-world understanding of the facts and 19 experiences at issue in this case. 20 4. The discovery process in the Smith Action was delayed for over a year because 21 KeyPoint took the position that it could not disclose the policies and procedures governing the 22 details of the Investigators’ work until it first obtained permission from its government client 23 (Office of Personnel Management). Indeed, despite Plaintiffs’ motion to compel in the Smith 24 case, the bureaucratic process for obtaining this permission turned out to be quite slow. 25 5. Given that KeyPoint denied the existence of common policies evidencing control, 26 however, it was our judgment at the time in the Smith case that we would need to obtain actual 27 evidence of these policies to demonstrate that the Investigators were similarly situated with 28 respect to the level of control that KeyPoint has the right to exercise over them – control being DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 1 Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 3 of 8 1 one of the primary factors of the FLSA employment test. Accordingly, we did not file the 2 motion for conditional certification in the Smith case until after we managed to obtain some, 3 but not all, of these policies in discovery. 4 6. In the meantime, before deciding the conditional certification motion, the Court in 5 the Smith case held that the claims of the named plaintiff there (Mr. Smith) fell outside the 6 statute of limitations. The basis of the ruling was that Mr. Smith was beyond the shorter two 7 year statute of limitations under the FLSA, and did not raise a triable issue of fact to show 8 KeyPoint’s violation was "willful" to invoke the longer three-year limitations period under the 9 FLSA, 29 U.S.C. § 255(a). In deciding this issue, the Court did not have before it the IRS 10 determination letter of September 29, 2011, to KeyPoint’s CEO, Jeff Schlanger, explaining the 11 IRS’s conclusion that KeyPoint had misclassified one of its Investigators as an independent 12 contractor rather than an employee, which is attached as Exhibit Q to this Declaration. Nor did 13 the Court have before it evidence of the previous misclassification case in California (Exhibits 14 S and T), or KeyPoint’s subsequent elimination of the independent contractor designation for 15 Investigators in California, but not in other States (Exhibit Y at 3:16-18). Indeed, neither side 16 in the Smith case significantly briefed the statute of limitations or willful question. Still, the 17 Court found that Mr. Smith’s claims were barred by the statute of limitations and dismissed 18 his action, without reaching the substantive arguments concerning the merits of the 19 classification scheme or conditional certification. Significantly, the Court made the dismissal 20 without prejudice to the pursuit of the collective action claims by one or more of KeyPoint’s 21 other Investigators in another case. 22 7. Mr. Judd was one of the Investigators who had opted into the Smith case. His claims 23 were pending in the Smith case from August 17, 2015, when he filed his consent to join form, 24 until January 20, 2017, when his claims were dismissed without prejudice. Mr. Judd filed the 25 instant collective action complaint in this Court on March 10, 2017. On April 7, 2017, 26 KeyPoint agreed to accept service of the Complaint. 27 8. On April 11, 2017, we reached out to defense counsel to meet and confer to 28 determine whether Defendant would stipulate to conditional certification and court facilitated DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 2 Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 4 of 8 1 notice. Given the lenient standard for conditional certification, and the evidence we now had 2 gathered of the common policies, procedures and practices, we believed that stipulating to 3 conditional certification and court-facilitated notice might reduce the costs, burdens and delays 4 of motion practice for all sides and the Court, as well as to ameliorate the running of the statute 5 of limitations for the potential members of the collective. 6 9. On April 13, 2017 defense counsel responded by asking to have a telephone call on 7 April 17, 2017, to discuss the question of stipulating to notice. The call was conducted as 8 scheduled on April 17. Defendant did not, however, indicate a willingness to stipulate to any 9 FLSA notice or conditional certification of any collective, although they did ask whether we 10 intended to seek the three-year statute of limitations period and whether we intended to include 11 Investigators that exempted themselves from the arbitration clause with respect to the earlier 12 Smith action. Instead, defense counsel stated for the first time that they were filing a motion 13 to transfer venue and/or to dismiss. Defendant then went on to file this motion approximately 14 45 minutes after the call. 15 10. Attached herewith as Exhibit A is a true and correct copy of the email 16 correspondence between Plaintiffs’ counsel and Defense Counsel regarding our proposal that 17 Defendant stipulate to conditional certification and a Court-facilitated FLSA notice. 18 11. Attached herewith as Exhibit B is Plaintiff’s proposed Notice of Collective Action, 19 which would be sent to prospective members of the collective to provide them with notice and 20 an opportunity to opt in to the case. We emailed this proposed notice to defense counsel on 21 April 11, 2017, but did not receive any comments or proposed edits to it. 22 12. Attached herewith as Exhibit C are true and correct copies of excerpts of the 23 Deposition of Jennifer Boaz, who appeared in the Smith Action as Defendant’s Person Most 24 Knowledgeable witness under Fed. R. Civ. P. 30(b)(6), taken February 17, 2016. 25 13. Attached herewith as Exhibit D is a true and correct copy of Plaintiffs’ Notice of 26 Deposition with Document Production Pursuant to Fed. R. Civ. Proc. Rule 30(b)(6) and Rule 27 34 in the Smith Action. 28 14. Attached herewith as Exhibit E are true and correct copies of excerpts of the DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 3 Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 5 of 8 1 Deposition of Angela Deabler, taken March 15, 2016 in the Smith Action. 2 15. Attached herewith as Exhibit F are true and correct copies of excerpts of the 3 Deposition of Russel McAbee, taken March 30, 2016 in the Smith Action. 4 16. Attached herewith as Exhibit G is a true and correct copy of KeyPoint’s Independent 5 Contractor Engagement Agreement sent to Investigators performing work on KeyPoint’s 6 contract with the Department of Homeland Security on June 9, 2015, produced by Defendant 7 in discovery in the Smith Action and Bates Stamped KEYPOINT0000001-8 KEYPOINT0000026. 9 17. Attached herewith as Exhibit H is a true and correct copy of KeyPoint’s Independent 10 Contractor Engagement Agreement sent to Investigators performing work on KeyPoint’s 11 contract with the Office of Personnel Management on June 9, 2015, produced by Defendant in 12 discovery in the Smith Action and Bates Stamped KEYPOINT0000027-KEYPOINT0000052. 13 18. Attached herewith as Exhibit I is a true and correct copy of Defendant’s Responses 14 to Plaintiff Richard Smith’s Second Set of Interrogatories to Defendant KeyPoint Government 15 Solutions, Inc., served August 6, 2015 in the Smith Action. 16 19. Attached herewith as Exhibit J is a true and correct copy of the redacted version of 17 the "Investigator’s Handbook" produced by Defendant in discovery in the Smith Action and 18 Bates stamped OPM_TOUHY_0000001 to OPM_TOUHY_0000575. 19 20. Attached herewith as Exhibit K is a true and correct copy of an email exchange 20 between Andrew Prior and Tim Willms, produced by Defendant in discovery in the Smith 21 Action and Bates Stamped KEYPOINT0001937 to KEYPOINT0001938. 22 21. Attached herewith as Exhibit L is a true and correct copy of an email exchange 23 between Andrew Prior and Jackie Schwartz produced by Defendant in discovery in the Smith 24 Action and Bates Stamped KEYPOINT0001878 to KEYPOINT0001879. 25 22. Attached herewith as Exhibit M is a true and correct copy of an untitled job posting 26 by KeyPoint for Investigators produced by Defendant in discovery in the Smith Action and 27 Bates Stamped as KEYPOINT0000097 to KEYPOINT0000098. 28 23. Attached herewith as Exhibit N is a true and correct copy of an email exchange DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 4 Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 6 of 8 1 between Andrew Prior and Pam Hinchcliffe produced by Defendant in discovery in the Smith 2 Action and Bates Stamped KEYPOINT0001873 to KEYPOINT0001874. 3 24. Attached herewith as Exhibit O is a true and correct copy of a document entitled 4 "DHS Project Fee Structure" B produced by Defendant in discovery in the Smith Action and 5 Bates Stamped as KEYPOINT0000761 to KEYPOINT0000762 6 25. Attached herewith as Exhibit P is a true and correct copy of a document entitled 7 "OPM Project Contractor Fee Structure" produced by Defendant in discovery in the Smith 8 Action and Bates Stamped as KEYPOINT0001746. 9 26. Attached herewith as Exhibit Q is a true and correct copy of the Internal Revenue 10 Service’s (IRS) seven-page determination letter to Defendant’s CEO, Jeff Schlanger, dated 11 September 29, 2011, explaining its conclusion that KeyPoint had misclassified one of its 12 Investigators as an independent contractor rather than an employee. 13 27. Attached herewith as Exhibit R is a true and correct copy of KeyPoint’s responses 14 to plaintiff Richard Smith’s Second Set of Interrogatories to Defendant in the Smith Action. 15 28. Attached herewith as Exhibit S is a true and correct copy of the First Amended 16 Complaint in the Michael Sgherzi v. KeyPoint Government Solutions, Inc., et al., (Los Angeles 17 County Superior Court, Case No. BC487486, May 5, 2014). 18 29. Attached herewith as Exhibit T is a true and correct copy of the Class Action 19 Settlement Agreement and Joint Stipulation filed in the Michael Sgherzi v. KeyPoint 20 Government Solutions, Inc., et al., Los Angeles County Superior Court, Case No. BC487486, 21 on June 5, 2014. 22 30. Attached herewith as Exhibit U is a true and correct copy of the testimony of 23 Secretary of Labor Thomas E. Perez before the Committee on Education and the Workforce, 24 U.S. House of Representatives, March 26, 2014. 25 31. Attached herewith as Exhibit V are true and correct copies of the declarations of the 26 opt-in plaintiffs in the Smith Action as follows: 27 28 DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 5 Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 7 of 8 1 # Declarant 2 1. Orson Judd 3 2. Carlos Conejo 4 3. James Heins 5 4. Kevin Hutson 6 5. Salome Barrientos 7 6. Andrew Prior 8 7. Steven Ruble 9 8. Fred Stickler 10 11 32. Attached hereto as Exhibit W are true and correct copies of the excerpts of the 12 deposition testimony of the opt-in plaintiffs taken in the Smith Action as follows: 13 14 # Deponent 15 1. Salome Barrientos 16 2. Carlos Conejo 17 3. James Heins 18 4. Kevin Hutson 19 5. Orson Judd 20 6. Andrew Prior 21 7. Steven Ruble 22 8. Fred Stickler 23 24 33. Attached herewith as Exhibit X is a true and correct copy of the Colorado District 25 Court’s Amended Final Judgment [ECF 100] in the Smith Action. 26 34. Attached herewith as Exhibit Y is a true and correct copy of the Declaration of 27 Catherine Grassman, filed in the Smith Action. 28 DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 6 Case 3:17-cv-08050-SPL Document 11-1 Filed 04/18/17 Page 8 of 8 1 I declare under penalty of perjury under the laws of the United States that the foregoing is 2 true and correct. Executed in Emeryville, CA on April 18, 2017. 3 4/s/Joshua G. Konecky 5 Joshua G. Konecky 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSHUA G. KONECKY ISO 216(b) MOTION Judd v. Keypoint 7

Exhibit A through B to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 1 of 9 EXHIBIT A Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 2 of 9 Leslie H. Joyner From: Hogan, Margaret Parnell <MPHogan@littler.com> Sent: Thursday, April 13, 2017 2:37 PM To: Leslie H. Joyner Cc: Gomez, Michelle L.; Kalk, Jacqueline E.; Josh G. Konecky; Judd v. KeyPoint; Cogbill, Karin M. Subject: RE: Judd v. KeyPoint Government Solutions Hi Leslie, Thanks for your email. We have some questions but I have been and am tied up through tomorrow morning and then out for the Easter holiday. Are you available on Monday at 3:00 Mountain/2:00 Pacific to talk? Please let us know. Margaret Margaret Parnell Hogan, Shareholder 303.362.2886 direct 303.648.1891 mobile 303.362.8776 fax mphogan@littler.com 1900 Sixteenth Street, Suite 800 Denver, CO 80202-5835 littler.com Employment & Labor Law Solutions Worldwide From: Leslie H. Joyner [mailto:ljoyner@schneiderwallace.com] Sent: Tuesday, April 11, 2017 5:28 PM To: Hogan, Margaret Parnell Cc: Gomez, Michelle L.; Kalk, Jacqueline E.; Josh G. Konecky; Judd v. KeyPoint Subject: Judd v. KeyPoint Government Solutions Margaret, I am writing to let you know that Plaintiff intends to file his motion for conditional certification shortly, but before doing so, I wanted to inquire as to whether KeyPoint would be willing to stipulate to an FLSA Notice. Stipulating to Notice now will prevent unnecessary delay and expense, and prevent prejudice to unnamed members of the proposed collective whose claims might otherwise diminish or expire without prompt notice of this action. As you are aware, Plaintiff’s complaint alleges a claim for unpaid overtime wages on behalf of himself and all other "similarly situated" individuals currently or formerly employed by KeyPoint and classified as independent contractors, over the pasts three years plus additional time for various periods of tolling. In FLSA cases, courts typically employ a two‐step analysis. At the initial stage, conditional certification and court‐facilitated notice to the collective are typically granted under the "lenient" standard based on substantial allegations of a common policy or plan. See Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1530 (2013); Villarreal v. Caremark LLC, 66 F.Supp.3d 1184, 1189 (D. Az. 2014) At the second stage of the analysis, which usually occurs after the close of discovery and when the case is ready for trial, the party opposing certification may move to decertify the class." Villarreal, 66 F. Supp. 3d at 1189‐1190. Given the lenient standard and judicial preference for notice at an early stage of the case, stipulating to the content and procedures for an early Notice under § 216(b), would save significant attorney time and expense that otherwise would be incurred on unnecessary motion practice. Moreover, absent equitable tolling, the statute of limitations for FLSA claims initially runs from the date the employee affirmatively files a consent to join the case, rather than the date of the initial complaint, 29 C.F.R. §790.21(b)(2)(ii). Thus, the claims of potential opt‐in plaintiffs who have not yet been 1 Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 3 of 9 informed of this action risk being diminished or extinguished through no fault of their own with every passing day. Given the delays associated with waiting for the pleadings to be resolved and bringing a full motion to facilitate notice, it is all the more appropriate for the parties to attempt to reach a stipulation for providing Notice to the potential opt‐ins at the earliest possible time. Attached for your review is a proposed notice. Please let us know by next Monday, April 17, 2017, if KeyPoint will stipulate to court facilitated notice to the members of the potential collective as per this proposed notice. If KeyPoint is willing to stipulate to conditional certification/court facilitated notice, but has proposed edits to the draft notice attached here, please feel free to circulate those as well. Best, Leslie Leslie H. Joyner Attorney at Law 2000 Powell Street, Suite 1400 Emeryville, California 94608 T: (415) 421-7100 F: (415) 421-7105 www.schneiderwallace.com--------------------------This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information. 2 Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 4 of 9 EXHIBIT B Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 5 of 9 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA OFFICIAL COURT AUTHORIZED NOTICE (This is not a solicitation from a lawyer) If you are or were a Background Investigator for KeyPoint Government Solutions, Inc. ("KeyPoint") classified as an Independent Contractor between [insert date] and the present, please read this notice.  A group of current and former Investigators have sued KeyPoint, claiming that KeyPoint has misclassified its Investigators as independent contractors, and has failed to pay them overtime, in violation of the Fair Labor Standards Act.  The Court has authorized the parties to send notice of this lawsuit under the Fair Labor Standards Act to individuals who personally have performed investigations pursuant to an independent contractor agreement with KeyPoint at any time between [insert date] and the present.  KeyPoint denies that the claims have merit. KeyPoint contends that it has correctly classified its Investigators as independent contractors, and that it has paid them properly.  The Court has not decided who is right or wrong. 1. Why Did I Get This Notice? On _______, 2017, the Federal District Court overseeing this case directed that notice of the lawsuit be sent to current and former Investigators of KeyPoint that might be covered by the case. This notice has been sent to you because KeyPoint’s records indicate that you are or were an investigator classified by KeyPoint as an independent contractor. This notice is intended to inform you of this lawsuit and of your right to join it as a plaintiff. FOR YOU TO BE INCLUDED IN THIS CASE AND IN ANY JUDGMENT, WHETHER FAVORABLE OR NOT, YOU MUST MAIL THE ENCLOSED "CONSENT TO JOIN" FORM IN ACCORDANCE WITH THE INSTRUCTIONS BELOW. 2. What Is The Lawsuit About? The Plaintiffs allege that KeyPoint has denied overtime wages to its Investigators by misclassifying them as "independent contractors" rather than "employees." Plaintiffs allege that the Investigators are entitled to overtime for working more than 40 hours in a week. KeyPoint denies that the claims have merit. KeyPoint contends that it has correctly classified its investigators as independent contractors, and that it has paid them properly. The lawsuit is entitled Judd v. KeyPoint Government Solutions, Inc., Case No. 17-cv-08050-PCT-SPL, and is filed in U.S. District Court for the District of Arizona. **NOTE** Return the enclosed Consent to Join form as soon as possible if you wish to preserve your rights and to be included in this case. Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 6 of 9 3. What Are My Choices? If you personally conducted investigations for KeyPoint in the United States as an independent contractor at any time from [insert date] to the present, you are eligible to join this action as a plaintiff. Joining this action does not necessarily mean that you will obtain money, only that the Court will determine whether your rights have been violated under the Fair Labor Standards Act. To take part in this lawsuit, you must sign and mail the "Consent to Join Collective Action" Form that is enclosed with this notice. You must sign the form and it must be postmarked no later than [insert date], to be considered timely. You should send the form to the following address: [ADD ADDRESS OF THIRD PARTY ADMINISTRATOR] All Consent Forms will be filed with the Court. 4. What Happens If I Join? If you join, the named Plaintiff in the case and the lawyers listed below will represent you and work with you to try to obtain relief on your behalf. The Court or a jury will determine whether your rights have been violated. You will be bound by the Court’s judgment, whether it is favorable or unfavorable to you. If there is a recovery, Plaintiffs’ attorneys will be compensated for their fees and costs either by receiving a portion of the recovery or by a separate payment by KeyPoint (or a combination of the two), in an amount approved or determined by the Court. If there is no recovery, you will not be required to pay Plaintiffs’ attorneys for any of their fees or costs. 5. What Happens If I Do Not Join? If you do not join, your rights under the FLSA will not be affected by any judgment issued or settlement approved, if any, by the Court in this case—whether it is favorable or unfavorable. You will not be entitled to share in any amounts recovered under the FLSA, if any, and you keep the right to bring your own claims. However, you should know that there is a limited time period in which you are permitted to file a claim. This is called the statute of limitations. All claims are subject to this limitations period. You must file your Consent to Join form or claim within the limitations period in order to preserve your rights. 6. How Do I Join? Enclosed is a "Consent to Join Collective Action" form. If you wish to join this lawsuit, it is extremely important that you read, sign, and return the Consent to Join form. The return envelope has been pre-addressed and pre-paid for your convenience. The signed Consent to Join form must be postmarked by [insert date 90 days from mailing] for it to be considered timely. Please mail the Consent to Join form to: [ADD NAME/ADDRESS OF 3rd PARTY ADMINISTRATOR] **NOTE** Return the enclosed Consent to Join form as soon as possible if you wish to preserve your rights and to be included in this case. Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 7 of 9 If your signed Consent Form is not postmarked by [insert date 90 days from mailing], you may not be eligible to participate in this lawsuit. Signing a Consent Form does not guarantee any recovery in this lawsuit. If you have any questions about filling out or sending in the Consent Form, you may contact the lawyers listed on page [number] of this notice. 7. No Retaliation Permitted. It is a violation of federal law for KeyPoint to discriminate in any manner, or to retaliate against you for taking part in this case. If you believe that you have been penalized, discriminated against, or disciplined in any way as a result of your receiving this notice, considering whether to join this lawsuit, or actually joining this lawsuit, you should contact an attorney. 8. How Can I Get More Information? Additional information can be obtained by contacting the plaintiffs’ lawyers listed below. The Court file in the case can also be examined in person at the Clerk’s Office of the United States District Court for the District of Arizona, 401 W. Washington St., Suite 130, SPC 1 Phoenix, AZ 85003-2118. Court documents may also be viewed electronically for a charge by visiting the Court’s Electronic Records database PACER at www.pacer.gov, and inputting the case information. The case name is Judd v. KeyPoint Government Solutions, Inc., Case No. 17-cv-08050-PCT-SPL, and the Court is the United States District Court, District of Arizona. Other than in-person requests to examine the file at the Clerk’s office, no inquiries concerning this case should be directed to the Court or to the Clerk of the Court. 9. Who are the attorneys representing the Plaintiffs? Plaintiffs are represented by the following attorneys: Joshua G. Konecky jkonecky@schneiderwallace.com Leslie H. Joyner ljoyner@schneiderwallace.com SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 You may also choose to retain alternative counsel of your choice. THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE FEDERAL DISTRICT COURT, THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT COURT JUDGE. PLEASE DO NOT CONTACT THE COURT. **NOTE** Return the enclosed Consent to Join form as soon as possible if you wish to preserve your rights and to be included in this case. Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 8 of 9 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 ORSON JUDD, an individual, on behalf of) Case No. 3:17-cv-08050-PCT-SPL himself and on behalf of all others similarly) 11 situated,) The Honorable Steven P. Logan) 12 Plaintiff,) CONSENT TO JOIN COLLECTIVE) ACTION UNDER THE FAIR LABOR 13 vs.) STANDARDS ACT, 29 U.S.C. § 216(b)) 14 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,) 15) Defendant.) 16)) 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint Case 3:17-cv-08050-SPL Document 11-2 Filed 04/18/17 Page 9 of 9 1 I worked for KeyPoint Government Solutions, Inc. ("KeyPoint"), within the past three years. 2 I want to join this lawsuit alleging that KeyPoint has violated the Fair Labor Standards Act by 3 misclassifying me and other Investigators as independent contractors rather than employees. I 4 understand that this lawsuit seeks unpaid wages and/or overtime that may be owed to me, and that by 5 joining this lawsuit I will become a party plaintiff. 6 By joining this lawsuit, I designate the Plaintiff named in the Complaint as my representative 7 to the fullest extent possible under applicable laws, to make decisions on my behalf concerning the 8 litigation, the manner and method of conducting and resolving the litigation, and all other matters 9 pertaining to this lawsuit. I understand that I have the right to choose other counsel and I choose to be 10 represented in this matter by the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP and 11 other attorneys with whom they associate. 12 13 14 Name 15 16 Date 17 18 Signature 19-------------------------------------------------------------------------------------------------------------------------20 21 Address 22 23 City, State Zip 24 25 Telephone 26 27 Email 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint 2

Exhibit C through G to Declaration of Joshua G. Konecky

EXHIBIT C Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 2 of 198 Page 1 1 J. BOAZ 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF COLORADO 3 _____________________________________________________ 4 RICHARD SMITH, individually and on behalf of all others similarly situated, 5 Plaintiffs, 6 v. 7 KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware 8 corporation, 9 Defendant. 10 COURT USE ONLY _____________________ 11 Case No. 15-CV-00865-REB-KLM 12 DEPOSITION OF JENNIFER BOAZ 13 Denver, Colorado 14 Wednesday, February 17, 2016 15 16 17 18 19 20 21 22 23 Reported by: 24 DAWN K. LARSON, MBA, RDR, CRR, CRC 25 JOB NO. 103363 TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 3 of 198 Page 5 1 J. BOAZ 2 P R O C E E D I N G S 3 (On the record at 9:16 a.m.) 4 JENNIFER BOAZ, 5 having been first duly sworn, was examined and 6 testified as follows: 7 EXAMINATION 8 BY MR. KONECKY: 9 Q. Good morning. 10 A. Good morning. 11 Q. My name is Josh Konecky. I'll be taking 12 your deposition. 13 A. Okay. 14 Q. Could you state and spell your name for 15 the record. 16 A. My name is Jennifer, J-e-n-n-i-f-e-r, 17 middle name Lee, L-e-e, last name is Boaz, B-o-a-z. 18 Q. And are you currently employed by 19 KeyPoint? 20 A. I am. 21 Q. What is your position? 22 A. I'm the National Director of Independent 23 Contracts. 24 Q. How long have you been in that position? 25 A. I've been in that position since TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 4 of 198 Page 7 1 J. BOAZ 2 Q. What do you do now? You could go on 3 forever, but could you just summarize, if you can, 4 what you do now in your current role? 5 A. As the national director, I have the 6 primary responsibility to the OPM contract, which is 7 Office of Personnel Management, and I have direct 8 relations provision of the contract liaison team that 9 assists and supports the independent contractors on 10 the OPM contract for KeyPoint. 11 Q. How many contract liaisons are there on 12 the contract liaison team for the OPM contract? 13 A. There are currently 19. 14 Q. Are they dispersed across the country? 15 A. Correct. 16 Q. Are there other contract liaisons at 17 KeyPoint other than the ones on the OPM team? 18 A. There are contract liaison case managers 19 on the DHS and other VI projects. 20 Q. Did you say contract case managers--21 A. They're called Case Manager/Contract 22 Liaison, so CM/CL. 23 Q. How many on--you said the DHS project? 24 A. Project, uh-huh. 25 Q. How many--TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 5 of 198 Page 8 1 J. BOAZ 2 A. I would have to refer to the 3 organizational chart for the exact number of that. 4 Q. So one of the things, when I eventually 5 get to it--which will hopefully be soon in terms of 6 just sort of how a deposition works--you may already 7 be familiar with it--is nobody wants you to guess or 8 speculate, which is probably why you didn't guess 9 there. 10 A. Correct. 11 Q. But if you, based on your personal 12 experience or observations, can give me a best 13 estimate or a range, that would be okay if you can do 14 it. 15 A. Umm-hmm. 16 Q. And so what I'm wondering is, even if 17 you don't have an exact number, do you have an 18 estimate or range of a number of case manager 19 liaisons? 20 A. There would be a minimum of eight. 21 Q. And a maximum? 22 A. That would be a complete guess. 23 Q. Okay. Also dispersed across the country 24 or in a particular location? 25 A. They are also regionally located. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 6 of 198 Page 9 1 J. BOAZ 2 Q. Any other--well, strike that. 3 What are the--for the OPM contract, 4 what do the contract liaisons do? 5 A. Their primary responsibility is to 6 support the independent contractor in the field and be 7 the liaison between the independent contractor and 8 KeyPoint's headquarters. So if an independent 9 contractor is looking for further engagement in 10 workloads, they can help mitigate that and get those 11 assignments to them. If they are having difficulties 12 inputting fees or have a case-related question, they 13 would offer assistance in that process. 14 Q. What about the contract case manager 15 liaisons for the DHS? What do they do? 16 A. So the Case Manager/Contract Liaison 17 under the DHS project would be not only that support 18 service but also they are actually reviewing cases 19 once the independent contractor reports the tasking 20 back, and they review that and determine whether it 21 meets the quality specifications of the contract. If 22 it doesn't, they send it back to the field for 23 additional work for discrepancies and interface with 24 the mitigation. 25 Q. In addition to that function that you TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 7 of 198 Page 10 1 J. BOAZ 2 just described, do the case managers on the DHS side 3 generally do what the case liaisons do for the OPM 4 contract? 5 MS. HOGAN: Object to form. 6 You can answer. 7 A. So they do have similar, right, support 8 services to the independent contracts with the 9 additional duty of reviewing the cases. On the OPM 10 contract, we have a separate review team that does 11 that tasking. 12 Q. (By Mr. Konecky) What's the name of the 13 separate review team, if any, on the OPM contract? 14 A. They are called case review analysts or 15 CRA. 16 Q. How many case review analysts are there 17 approximately? 18 A. I believe that the current CRA pool of 19 employees is 12. 20 Q. I think you've alluded to it, but can 21 you describe what the case review analysts do on the 22 OPM contract or for the OPM contract? 23 A. So we have OPM contractual compliance to 24 have the product reviewed by an internal review team, 25 which is indicated both in the investigator handbook TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 8 of 198 Page 11 1 J. BOAZ 2 that is issued by Office of Personnel Management as 3 well as our contract with our customer, or OPM, and 4 that review team looks at the report of investigation 5 that is transmitted by the investigator and determines 6 if it meets quality specifications and guidelines 7 outlined in the investigator handbook for case 8 coverage requirements. And, again, if they do not 9 feel that that meets that specification, then it is 10 sent back to the field for further work and then 11 reviews it upon its resubmission. 12 Q. And the case view analysts, they're 13 employees of KeyPoint? 14 A. That is correct. 15 Q. The case manager liaisons on the DHS, 16 are they also employees of KeyPoint? 17 A. That is correct. 18 Q. And is there a function in terms of 19 reviewing casework similar to what the case review 20 analysts do for the OPM contracts? 21 MS. HOGAN: Object to the form. 22 You can answer. 23 A. The process would be the same. The 24 contractual obligation for report of transmission and 25 the quality spectrum would be different and reliant TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 9 of 198 Page 19 1 J. BOAZ 2 detail with them, but just in terms of your structure, 3 whether it applies to a contractor investigator or 4 employee investigator, it's going to be either these 5 DHS projects or the OPM project? 6 A. That is correct. 7 Q. For investigator contractor to work on 8 any of those projects or contracts, that person would 9 need to meet whatever qualifications or specifications 10 are in the contract that KeyPoint has with its 11 customer? 12 A. That would be correct. 13 Q. And KeyPoint, I assume, is responsible 14 for ensuring that type of compliance? 15 A. That is correct. We have to provide to 16 our customer verification that those qualifications 17 have been met, and the customer is actually the one 18 that provides authorization to that contract. 19 KeyPoint does not. 20 Q. What do you mean "provides 21 authorization"? 22 A. We provide the qualifications and the 23 measures in which are outlined in our contract 24 specifications to our customer. Our customer reviews 25 that, and they make the determination of whether or TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 10 of 198 Page 28 1 J. BOAZ 2 remember it later, I will tell you or ask them. 3 So why don't I show you--4 (Discussion off the record.) 5 (Exhibit A was marked.) 6 Q. (By Mr. Konecky) Have you seen what's 7 marked as Exhibit A before? 8 A. Yes. This is the notice I reviewed 9 during preparation. 10 Q. Moving to the fourth page, on Pages 4 11 and 5, there's a list of 11 subjects. Have you 12 reviewed those before? 13 A. I have. 14 Q. And do you understand that you're here 15 to testify on behalf of KeyPoint as to those subjects? 16 A. I am. 17 Q. And at least--18 MR. KONECKY: What's the date that you 19 want to go back to? 20 MS. HOGAN: March 1, 2012. 21 Q. (By Mr. Konecky) At least back to 22 March 1, 2012, are you able and prepared to testify on 23 behalf of KeyPoint as to these subjects? 24 A. I am. 25 Q. Is there anybody that you're aware of--TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 11 of 198 Page 35 1 J. BOAZ 2 customers have their own security training that is 3 pushed to them via e-mail and Internet testing, and 4 the results of those refresher training course quizzes 5 go to the customer directly. As well, we have 6 monthly, quarterly updates as to any changes in 7 security protocols that are provided via e-mail or 8 newsletter or monthly telecoms that are available to 9 the independent contractor if they choose to dial in. 10 Q. You said the security refresher 11 training, is that a--KeyPoint provides that 12 training? 13 A. We have both a KeyPoint annual refresher 14 training that is usually rolled out in the month of 15 January, and then we have a customer refresher 16 training, and the questions on that are specifically 17 driven by the customer and sent by the customer to the 18 persons engaging on that contract. 19 Q. Let me start with the first one, the 20 KeyPoint refresher--security refresher training, is 21 that a training that KeyPoint employees provide? 22 MS. HOGAN: Object to the form. 23 You can answer. 24 A. It is a computerized test that the link 25 is sent to all contract investigators. They log on on TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 12 of 198 Page 36 1 J. BOAZ 2 their computer and take the test during a time frame 3 of normally three weeks the test is open, the 4 refresher training. So there are 12 slides, and then 5 a 10-question quiz at the end that they would 6 participate in. 7 Q. (By Mr. Konecky) Who sends the slides 8 and the quizzes and the training? 9 A. It is computerized, and it is generated 10 by our security division. 11 Q. When you say "our" you mean KeyPoint? 12 A. KeyPoint in this particular case, that 13 is correct. 14 Q. And did KeyPoint create the slides and 15 the quizzes and materials for this training? 16 A. That is correct. 17 Q. This is required training? 18 A. This is required due to--yes--to any 19 person that is engaged with KeyPoint, yes. 20 Q. So any contractor investigator and any 21 employee investigator of KeyPoint? 22 A. That is correct. 23 Q. Okay. And then there was the 24 customer-generated training, security training. 25 A. Correct. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 13 of 198 Page 39 1 J. BOAZ 2 Q. Am I correct that the contractors don't 3 have direct communications with KeyPoint's clients or 4 customers? 5 A. That is absolutely correct. 6 Q. And is that true with respect to any 7 training? 8 MS. HOGAN: Object to the form. 9 You can answer. 10 A. To the customer? Are you referring to 11 the customer training? 12 Q. (By Mr. Konecky) In other words, with 13 respect to any issue involving training, will KeyPoint 14 be involved in--strike that. 15 Am I correct that the contractor 16 investigators do not communicate directly with 17 KeyPoint's customers or clients with respect to any 18 training, whether or not it's KeyPoint-developed 19 training or training that's developed from the 20 customer? 21 A. So just to be clear on what you're 22 asking me, the independent contractor does not reach 23 out to the customer, contractual customer, regarding 24 any training, or a particular training or--25 Q. Is there any training that an TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 14 of 198 Page 40 1 J. BOAZ 2 independent contractor does while working for KeyPoint 3 that that contractor gets directly from a KeyPoint 4 customer? 5 A. The independent contractor does not have 6 access, direct access, to any system to our customers. 7 Our customer sends it to us. We disseminate it to 8 those it applies to. So our customer, in this 9 particular instance, OPM, let's say, they do not 10 maintain a database outside of credentialing or SIDs 11 that they provide to us for our investigators. If we 12 terminate or engagement with an investigator, we 13 notify OPM. OPM is not maintaining any database of 14 sorts to who should get the security training and who 15 should not. They push that information to us. We 16 push it to those that it is relevant to. So we may 17 have an independent contractor that works multiple 18 contracts--they work OPM. They work DHS. They work 19 GO--or we may have one that only works DHS and does 20 not work OPM. So we facilitate getting that 21 information to those that it pertains to. 22 Q. What's a SID? 23 A. A SID is your identifier within either 24 the case management system or PIP, and you have to 25 type that information in, and that's identifying the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 15 of 198 Page 41 1 J. BOAZ 2 investigator to that customer so when they transmit 3 report of investigation, it is tied to that particular 4 person solely. 5 Q. Is my understanding correctly that 6 KeyPoint is responsible for tracking and managing the 7 training for the contractors? 8 A. That is correct. That is our 9 contractual compliance to our customer that we 10 maintain, and we ensure all those that are accessing 11 that customer are supposed to be there and are 12 qualified to be there. 13 Q. And that applies--KeyPoint's 14 responsibility in that respect applies to all the 15 contractors nationwide? 16 MS. HOGAN: Object to the form. 17 You can go ahead and answer. 18 A. That is correct. It is our 19 accountability to our customer, correct. 20 Q. (By Mr. Konecky) Just to tie this part 21 up on the training, am I correct that for any training 22 or all training that KeyPoint contractors do, that it 23 is KeyPoint that is facilitating, providing the 24 training, even if the training is initially written by 25 a customer? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 16 of 198 Page 42 1 J. BOAZ 2 A. We are facilitating the customer-driven 3 training requirements to the independent contractor. 4 That is a true statement. 5 Q. What about case assignments? Do all of 6 the contractors receive their case assignments 7 directly from KeyPoint or from the customers of 8 KeyPoint? 9 MS. HOGAN: Object to form. 10 You can answer. 11 A. They are--they receive those 12 assignments from KeyPoint. 13 Q. (By Mr. Konecky) What about comments on 14 a report or request that a contractor reopen or redo 15 some aspect of a report? Does the contractor have 16 those communications with KeyPoint or with the 17 customer of KeyPoint? 18 A. Both. So there are two methods of 19 refile of work: One is an internal review, and so on 20 particularly the OPM contract. In the investigator 21 handbook in Chapter 2, it clearly defines that there 22 is both an internal audit as well as external, 23 external being our customer. 24 Q. Internal being KeyPoint? 25 A. KeyPoint, correct. And we are TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 17 of 198 Page 46 1 J. BOAZ 2 just a regional or something else? 3 A. Fairfax is just a regional location, and 4 Slippery Rock--that is where the majority of our IT 5 division sits, our case review analysts and managers 6 reside there as well as Melissa Potemra who is the 7 director of support services and review. 8 Q. What is support services? 9 A. That would be departments such as ISB 10 and document control. 11 Q. You have to forgive me if I don't keep 12 these acronyms straight. ISB, what is that? 13 A. Investigative support branch. 14 Q. What do they do? 15 A. They handle all of the law records or 16 record searches for employment or financial or the 17 different types of case coverage. They are completed 18 by computer or fax. 19 Q. What is document control? 20 A. Document control houses all of the 21 returned case materials for the OPM contract. 22 Q. How would you describe KeyPoint's 23 business? What is it? 24 MS. HOGAN: Object to form. 25 A. We are a leading background TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 18 of 198 Page 47 1 J. BOAZ 2 investigation services company for profit that engages 3 with multiple government contracts in assistance with 4 completing background investigations for national 5 security positions. 6 MR. KONECKY: Can I have that answer 7 read back. 8 (The requested portion was read.) 9 Q. (By Mr. Konecky) And what do the 10 contractor investigators do for KeyPoint or do with 11 respect to that business? 12 A. They complete the actual case 13 investigations in the field where either the tasking 14 or the case is assigned. 15 Q. Do all the contractors of KeyPoint have 16 the same role in that regard? 17 A. Yes. 18 Q. Is there a team or group at KeyPoint 19 called the investigator help team? 20 A. There is. 21 Q. What is that? 22 A. That is a call-in service that is 23 provided to assist the investigator with case coverage 24 questions or clarification to assist them in doing 25 their fieldwork. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 19 of 198 Page 56 1 J. BOAZ 2 Q. And who generates the taskings? 3 A. The taskings are done by the regional 4 support group. They create the taskings based on the 5 customer's need of the case assignment, and then they 6 send them to the independent contractors that meet the 7 criteria. So if there's work in Denver, they would 8 send it to the available Denver independent 9 contractors, and those independent contractors choose 10 to either accept the engagement or not. 11 Q. Once a contractor accepts an engagement, 12 are there parameters in terms of when he or she needs 13 to complete the assignment by? 14 A. Yes. Due dates are assigned, and they 15 can range anywhere from seven days to three weeks 16 based upon the case type or tasking. 17 Q. And who determines the due dates? 18 A. KeyPoint determines the internal due 19 dates based upon the due dates that are required back 20 to the customer. 21 Q. And that due date that is determined, is 22 that the due date for the contractor to submit a 23 report or something else? 24 A. That is correct. It is when their 25 report or investigation is due back. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 20 of 198 Page 57 1 J. BOAZ 2 Q. Due back to KeyPoint? 3 A. Correct, to be reviewed. 4 Q. By KeyPoint? 5 A. Correct. 6 Q. And I take it once somebody accepts an 7 assignment, KeyPoint doesn't want them to go on 8 vacation or leave after that point until--if it's 9 going to interfere with completing the assignment 10 according to the schedule? 11 MS. HOGAN: Object to form. 12 You can answer. 13 A. If that were to occur or a case expands, 14 and it's outside of the availability of the 15 investigator, then the investigator can reach back out 16 to the contract liaison or the CM/CL and have that 17 discussion, and we are willing to pull that work back 18 and assign it to someone else who can complete the 19 task by the due dates. 20 Q. (By Mr. Konecky) Who makes that 21 decision? 22 A. The independent contractor when they 23 reach out and say they cannot complete the task. 24 Q. So can any independent contractor at any 25 time decide they don't want to complete the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 21 of 198 Page 58 1 J. BOAZ 2 assignment? 3 A. Yes. 4 Q. And will there be any discussion or 5 consequences in a situation like that? 6 MS. HOGAN: Object to form. 7 You can go ahead and answer. 8 A. Certainly there's a discussion as to why 9 they accepted work and they cannot now fulfill it, but 10 we also understand that--why it happens, and there 11 may be a situation outside of their control that 12 wasn't present when they accepted that tasking. So we 13 certainly have that conversation and address it as 14 need be. 15 Q. (By Mr. Konecky) When you address it, 16 who is addressing it? 17 A. The contract liaison by "addressing," I 18 mean pull the work back from them by their request. 19 Q. And is there any point--well, let me 20 ask this: Does KeyPoint retain the right to stop 21 giving work if a contractor is not completing 22 assignments on time? 23 A. An independent contractor signs an 24 engagement contract called the ICEA, I-C-E-A, with 25 KeyPoint stating that they will provide us a timely TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 22 of 198 Page 59 1 J. BOAZ 2 and quality product. And so certainly we, by having 3 that contract with that independent contractor, have 4 the right to, if we find that they cannot provide us a 5 timely or quality product and it is not in our best 6 interest or the best interest of our customer, then, 7 yes, we can terminate that engagement with them. 8 Q. So am I correct that KeyPoint does 9 retain the right to terminate any engagement it has 10 with the contractor in situations where the contractor 11 may be taking assignments and not completing them in a 12 timely fashion? 13 A. If it is a continual problem, yes, that 14 is an option that we have with the company. 15 Q. And somebody at the company or some 16 group of people at the company has that 17 decision-making authority; right? 18 A. That would be me. Yes. 19 Q. So a case liaison, contract liaison 20 wouldn't have the authority to terminate a contract or 21 to stop assigning work? 22 A. All contract liaisons reach out to 23 myself in times of terminating a contract with an 24 investigator. And we have the discussion as what the 25 parameters are and what are surrounding--what course TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 23 of 198 Page 62 1 J. BOAZ 2 A. Umm-hmm. 3 Q. And we talked about the KeyPoint 4 security refresher training as well as the customer--5 the training that originates from the customer that 6 KeyPoint pushes on to the contractors? 7 A. Correct. 8 Q. Then I think I also mentioned there is 9 monthly or quarterly updates. How do those work? 10 A. So if it were applicable--it's not 11 every month, it's not every quarter--but if changes 12 came out during those time frames, then those are sent 13 via e-mail to the independent contractors for them to 14 update their personal knowledge to those changes. 15 Q. Changes to what? 16 A. Security practices or policies regarding 17 log-in to security or updates that may be coming 18 security-related. 19 Q. Is KeyPoint the one that is 20 communicating those changes to the contractors? 21 A. That is correct. 22 Q. That could happen via e-mail? 23 A. That is correct. 24 Q. Or a teleconference? 25 A. It would be happening in both TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 24 of 198 Page 63 1 J. BOAZ 2 categories. 3 Q. As well as the newsletters? 4 A. Correct. 5 Q. These KeyPoint newsletters? 6 A. That is correct. 7 Q. How often do KeyPoint newsletters get 8 circulated? 9 A. Monthly. 10 Q. What's that KeyPoint newsletter called? 11 Is there a name for it? 12 A. Key Points. 13 Q. Key Points. Good name. 14 And what matters do the Key Points, the 15 monthly newsletter, address? 16 A. They would address customer changes, 17 case coverage changes, security changes, anything 18 related to the contract and the compliance of that 19 contract. 20 Q. Any policies or procedures that 21 contractors need to know about in order for KeyPoint 22 to be in compliance with the contract? 23 A. That is correct. 24 Q. Anything else that KeyPoint does to 25 monitor or secure compliance with security standards TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 25 of 198 Page 64 1 J. BOAZ 2 or protocols? 3 MS. HOGAN: Object to form; vague. 4 Go ahead and answer. 5 Q. (By Mr. Konecky) With respect to the 6 work of the contractors. 7 A. On which contract are you referring? 8 Q. Whichever one you want to start with. 9 A. Okay. On OPM there is requirement for 10 independent contracts when working casework for 11 KeyPoint to check that information out when they go 12 into the field. That would include their credentials 13 that are issued by OPM, their PIV card that is issued 14 by OPM and any case-related materials that would have 15 PII on it, and that is required to be checked out 16 prior to leaving their secured area and then checked 17 back in by midnight. 18 Q. And KeyPoint is responsible for ensuring 19 that occurs? 20 A. That is correct, and if it is not 21 checked in by midnight, there is an alarm that is 22 sent, and we have a specified amount of time that it 23 has to be mitigated, and we have to determine whether, 24 indeed, it is in the possession of the investigator or 25 if we have to report it as missing. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 26 of 198 Page 68 1 J. BOAZ 2 access to those e-mails outside the receipt of e-mails 3 that were sent. 4 Q. And did you monitor those e-mails, at 5 least the ones you were receiving, in any way? 6 A. That is correct. 7 Q. And how did--so let me, then, ask this 8 question and go sort of by time frame: The 9 post-breach era--what did you say? March 2015? 10 A. Correct. 11 Q. Who is monitoring--who specifically, 12 whether by department or individual or individuals, is 13 monitoring the contractors' e-mails? 14 A. The contractor KeyPoint address is being 15 monitored by our IT department, and it is not just--16 it's the exchanges. It is just to verify that they 17 are adhering to the security policies that they have 18 agreed to and are not providing any information that 19 should not be provided. 20 Q. And that applies to all the contractors, 21 whether OPM or DHS? 22 A. That is correct. 23 Q. And before March 2015, how was KeyPoint 24 monitoring e-mails that were being sent or received by 25 the contractors? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 27 of 198 Page 69 1 J. BOAZ 2 MS. HOGAN: Objection; asked and 3 answered. You can answer. 4 A. Independent contractors, by definition 5 on the OPM contract and identified in the 6 investigative handbook, were not authorized to send 7 e-mails outside of to KeyPoint. So they were not 8 authorized to contract a subject, a source, a record 9 provider, what have you, via e-mail. Their 10 correspondence was only with KeyPoint pertaining to 11 the contract, and so any incoming e-mail obviously 12 would have been able to be monitored and reviewed, and 13 we accepted that their integrity and professionalism 14 in the agreement, that they understood that. When it 15 was identified that that did not occur, then that was 16 a security violation, and that was something that we 17 would have to deal with at that time frame. 18 Q. (By Mr. Konecky) So would KeyPoint 19 instruct and train its contractors that they could not 20 e-mail sources or clients or anyone other than 21 KeyPoint itself directly? 22 A. Yes. They did receive that instruction 23 from the customer on the contract that they would 24 work. 25 Q. Am I correct that they received that TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 28 of 198 Page 80 1 J. BOAZ 2 suitability? 3 A. Correct. 4 Q. And whether OPM or DHS, the background 5 investigation work that the independent contractors do 6 include face-to-face interviews? 7 A. That would be correct. 8 Q. And it would include performing record 9 searches at public facilities? 10 A. That is possible work, yes. 11 Q. And it includes writing a report? 12 A. That is correct. 13 Q. Is that a fair description of the work 14 of an independent contractor investigator for 15 KeyPoint? 16 A. Yes. 17 Q. Regardless of where in the country they 18 are working? 19 A. Yes. 20 Q. And regardless which client they're 21 working for? 22 A. Yes. 23 Q. Just sort of midway down the page, there 24 are five bullet points. Do you see where I am? I'm 25 on the first page of Exhibit B. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 29 of 198 Page 81 1 J. BOAZ 2 A. Umm-hmm. 3 Q. The second one says "are able to accept 4 or reject assignments." 5 You spoke about that a little bit 6 before. My question related to that is, do any of the 7 contractors get full-time work loads, meaning 40 or 8 more hours a week of work? 9 MS. HOGAN: Object to form. 10 You can answer. 11 A. Considering we don't monitor the amount 12 of hours they work or how quickly they are doing 13 casework, I would have no visibility to the amount of 14 hours that it's taking for them to complete the case 15 units assigned that they have accepted to complete. 16 Q. (By Mr. Konecky) Does KeyPoint have any 17 process or mechanism for determining or estimating the 18 amount of time projects take? 19 A. They do not for the independent 20 contractor. 21 Q. In terms of assigning projects to the 22 independent contractors, is there any way that you're 23 aware of in which the--either the automatic system 24 or workload coordinators or analysts or liaisons use 25 or employ in order to kind of assess whether--how TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 30 of 198 Page 82 1 J. BOAZ 2 much time the projects are going to be taking the 3 contractors? 4 MS. HOGAN: Object to form--5 Q. (By Mr. Konecky)--making the 6 assignments? 7 MS. HOGAN: Sorry, object to form; 8 mischaracterizes earlier testimony. 9 You can answer. 10 A. No. We have no visibility whatsoever: 11 No accountability, no means of monitoring or 12 observing. There is no requirement from the 13 independent contractor to provide that information to 14 us. They do not provide that information to us, and, 15 therefore, I have no reasonable knowledge whatsoever 16 as to how long it would take an independent contractor 17 to do a task assignment. 18 Q. (By Mr. Konecky) So I take it KeyPoint 19 does not maintain records of hours worked by any of 20 the contractors? 21 A. We do not. 22 Q. And has KeyPoint ever, to your 23 knowledge, conducted any kind of audit or 24 investigation or survey into the amount of hours that 25 contractors work, either individually or as a group or TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 31 of 198 Page 83 1 J. BOAZ 2 otherwise? 3 MS. HOGAN: I'm going to object and to 4 the extent--just because you used the word "survey" 5 or "audit," to the extent any such thing exists and 6 was instigated or involved the direction of counsel, 7 I'm going to instruct you not to answer. I have no 8 idea if it does, but I'm giving you that limiting 9 instruction. 10 You can go ahead and answer. 11 A. No. Again, we have no method, 12 methodology. We have not participated in any method 13 to gain that information from the independent 14 contractor. The independent contractor is a private 15 entity. They are a 1099, and how they run their 16 private entity or business is on their own accord and 17 within their own parameters of scope and, quite 18 frankly, not our business. 19 Q. (By Mr. Konecky) That remind me of 20 another question: In terms of a contractor's private 21 business, does KeyPoint have information as to how 22 many or what percentage of its contractors have other 23 individuals working with them on the contract with 24 KeyPoint? 25 MS. HOGAN: Objection; it's outside the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 32 of 198 Page 84 1 J. BOAZ 2 scope of the 30(b)(6) notice. 3 You can go ahead and answer, if you know 4 personally. 5 A. This is not something we monitor nor 6 have any visibility to. 7 Q. (By Mr. Konecky) Well, to the extent 8 that a contractor is going to have help from another 9 individual, either contractor's employee or somebody 10 else the contractor contracts with, does KeyPoint 11 require that second individual or third individual to 12 be approved in some fashion? 13 A. That person would be considered a sub-K, 14 a contractor to that individual independent 15 contractor, and we have zero at this point in time. 16 And it is my recollection and knowledge for the scope 17 of this investigation that that be the case for that 18 entire time. 19 Q. So to make sure I'm understanding--and 20 I may not be understanding--but, let's say, going 21 back to March 4, 2012, am I correct to understand that 22 none of the contractor investigators of KeyPoint have 23 had any subcontractors, sub-Ks or employees working 24 with them on the KeyPoint work? 25 MS. HOGAN: Again, object; that is TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 33 of 198 Page 85 1 J. BOAZ 2 outside the scope of the 30(b)(6) notice. 3 You can go ahead and answer, if you have 4 that knowledge yourself. 5 A. It is my personal knowledge that we have 6 no independent contractors that have selected to have 7 subcontractors on the OPM contract and engage with 8 KeyPoint directly. 9 Q. (By Mr. Konecky) They are all 10 personally doing all the work? 11 A. That is my knowledge. 12 MS. HOGAN: Let me please get my 13 objection on the record. 14 Same objection; that question is outside 15 the scope of the 30(b)(6), and the answer that has 16 been given is reflective, not of KeyPoint, but of the 17 witness's personal knowledge. 18 Q. (By Mr. Konecky) What about on the DHS 19 side? Are there any independent contractors that work 20 for--that have worked for KeyPoint since March of 21 2012 on one or more of the DHS contracts who have had 22 other individuals working with them, whether as a 23 sub-K or another employee? 24 MS. HOGAN: Same objection. That is 25 outside the scope of the 30(b)(6) notice. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 34 of 198 Page 88 1 J. BOAZ 2 independent contracts. 3 MS. HOGAN: Josh, we're coming up on 4 noon. We'd like to take a lunch break in the next 15 5 minutes or so. 6 MR. KONECKY: Yeah. Can I ask a couple 7 more questions on this? 8 MS. HOGAN: Sure. 9 As long as you're okay with it. I don't 10 want to make anyone faint. 11 Q. (By Mr. Konecky) Okay. So on mandatory 12 training, has this been the case since March of 2012, 13 if not earlier, that all investigators working on OPM 14 projects must complete--well, must complete the 10 15 weeks of training discussed here? 16 MS. HOGAN: Object to form. 17 You can answer. 18 A. Any independent contractor that wishes 19 to engage on the OPM contract must be credentialed on 20 that contract, and that credentialing comes after the 21 attendance and passing with an 80 percent score on the 22 final exam, and at that time OPM credentials the 23 investigator. 24 Q. (By Mr. Konecky) That's 10 weeks of 25 training? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 35 of 198 Page 89 1 J. BOAZ 2 A. That is correct. 3 Q. And the first seven weeks are unpaid? 4 A. During Weeks 1 through 7 is classroom 5 training, observation, what have you. During Weeks 8 6 through 10, they are actually working cases, and they 7 are being compensated with the fee structure 8 associated with the items in which they are working. 9 Q. So in the first seven weeks during the 10 classroom training, contractors are not being paid 11 anything; is that correct? 12 A. That is correct. 13 Q. And does KeyPoint participate in the 14 classroom training? 15 A. KeyPoint provides the instruction 16 information that is provided by the customer. 17 Q. And how does KeyPoint provide that to 18 the contractors? 19 A. Both online and in classroom setting. 20 Q. So in the classroom setting, are there 21 KeyPoint employees acting as instructors or teachers? 22 A. They are certified trainers from OPM, 23 correct. 24 Q. How many hours is the classroom training 25 on a daily or weekly basis? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 36 of 198 Page 90 1 J. BOAZ 2 A. Approximately, the training is six to 3 eight hours a day, depending on the exercises of the 4 day and the information being disseminated that day. 5 Q. And that schedule for the first seven--6 well, ten weeks--is either there is little 7 flexibility or is partially flexible because it 8 depends upon schedule for the classes or the schedule 9 for the person who is training the contractor; right? 10 A. And during the time frame in which they 11 are doing OJT, on-the-job training, it is also that 12 the independent contractor in the training, 13 participating in that training, it is also their 14 schedule. So they have a set amount of time that has 15 to be completed over--at this particular point in 16 time in 2012, which is where this came from, they had 17 80 hours of OJT to complete over the course of three 18 weeks. So it's not just the trainers' schedule. It's 19 the trainee, the independent contractor that is being 20 trained, as well as the subject and sources of 21 available. 22 Q. As well as when classes are scheduled? 23 A. Well, the classroom portion, those are 24 set during those hours. The OJT is when there is more 25 flexibility in the scheduling of hours and when that TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 37 of 198 Page 91 1 J. BOAZ 2 would accompany. 3 Q. But even that portion has limited 4 flexibility, partial flexibility; right? 5 A. There are partial I would agree to. 6 Q. On page Bates-Stamped 131, which is the 7 fourth page of the exhibit, under the independent 8 contractor's designation where it says contractors not 9 benefit-eligible, what does that mean? 10 A. We pay them a flat fee for the work in 11 which they provide and report. 12 Q. And they don't get any overtime or any 13 other kind of employment benefits on top of that; 14 correct? 15 A. They are not an employee. 16 Q. So they don't get paid overtime? 17 A. They are not an employee, therefore, 18 they are not eligible for overtime. 19 Q. And you don't pay them overtime? 20 MS. HOGAN: Object to form. 21 You can answer. 22 A. Overtime is an employee benefit. They 23 are an independent contractor. They agree to the fee 24 schedule when they engage in the contract with 25 KeyPoint, and they are paid per item of completion. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 38 of 198 Page 92 1 J. BOAZ 2 Q. (By Mr. Konecky) Okay. I understand 3 that. Am I correct that in addition to that, KeyPoint 4 does not pay any of its independent contractor 5 investigators overtime? 6 MS. HOGAN: Object to form; asked and 7 answered. 8 You can answer again. 9 A. KeyPoint does not pay overtime to 10 independent contractors. 11 Q. (By Mr. Konecky) That's true for any of 12 the investigators for KeyPoint who are designated as 13 independent contractors; right? 14 A. No independent contractors that engage 15 with KeyPoint are paid overtime. 16 Q. A couple lines down, it says that 17 contractor must provide evidence of insurance and 18 marketing materials. What kind of insurance does the 19 contractor need to provide evidence of? 20 A. Auto insurance, as indicated here. 21 Q. Any other kind of insurance? 22 A. No. 23 Q. Any particular kind of auto insurance? 24 MS. HOGAN: Object to the form of the 25 question. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 39 of 198 Page 103 1 J. BOAZ 2 MS. HOGAN: I apologize. Object to 3 form; vague. 4 You can go ahead and answer. 5 A. KeyPoint engages with independent 6 contractors to do fieldwork, yes. 7 Q. (By Mr. Konecky) And KeyPoint made that 8 choice to do that; right? 9 A. Correct. 10 Q. Okay. And the reasons--I 11 understand--but tell me if I'm wrong--that the 12 reasons KeyPoint has made that choice are that the 13 contractors under this model, in your view, are 14 choosing their amounts of work--are able to choose 15 the amount of work they're going to receive and the 16 case types that they can receive and when, so long as 17 they're meeting appropriate deadlines, they're going 18 to do the work; is that right? 19 MS. HOGAN: Object to form; compound. 20 You can answer. 21 A. That is not right. 22 Q. (By Mr. Konecky) Okay. How did I get 23 that wrong? 24 A. KeyPoint chooses to engage with 25 independent contractors based upon customer need, so TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 40 of 198 Page 104 1 J. BOAZ 2 we have a baseline of investigators in the field as 3 employees. We cannot predict our customers' needs, 4 and we don't have a crystal ball, so we engage with 5 independent contractors that enable us to flex when 6 our workload increases or decreases and allows us to 7 have the opportunities to engage with independent 8 contractors that can, in essence, assist us in meeting 9 the customer needs. 10 Q. And does that basic, you know, reasoning 11 or motivation for having independent contractors as 12 opposed to employees apply differently in different 13 geographic regions or areas of work, or is that 14 generally consistent, a consistent reason across your 15 operations? 16 A. It is consistent across the operation at 17 a high level. There are purposes to have independent 18 contractors in regions that, say, we don't normally 19 have workload but then we do, and so it's not a 20 steady. It's not something that we can rely upon or 21 we have multiple contracts with multiple opportunities 22 that any independent contractor can choose to engage 23 on and spread their skill and knowledge base. So it 24 is, by principle, to divest interest of our customer 25 and meeting the needs and the flex of their need TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 41 of 198 Page 105 1 J. BOAZ 2 throughout the contract. 3 Q. Are there any reasons other than being 4 able to flex or decrease workload according to 5 customer need that KeyPoint engages investigators as 6 independent contractors? 7 MS. HOGAN: I'll object to form; that 8 goes outside the scope of the 30(b)(6) notice. 9 But you can answer. 10 A. No, that's the primary reason why we 11 engage with independent contractors. 12 Q. (By Mr. Konecky) Is there any other 13 reason? Any secondary reason? 14 A. No. That's the primary and sole reason 15 why we engage with independent contractors. 16 Q. In the areas where you have independent 17 contractors, am I correct to understand that the 18 customer need may increase or decrease at any given 19 time? 20 A. That is correct. 21 Q. And when it increases, do you have more 22 work to provide to the contractors? 23 A. Yes. 24 Q. And when it decreases, do you have less 25 work to provide to the contractors? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 42 of 198 Page 106 1 J. BOAZ 2 A. In their local area, yes, but we do 3 provide opportunities, and independent contractors do 4 have the option to engage outside their normal 5 geographic location and they can participate in TDY 6 opportunities or itineraries. 7 Q. And do the contractors' options and 8 opportunities depend, at least in part, upon the work 9 that KeyPoint has available at any given time? 10 A. Yes. 11 MS. HOGAN: Object to form. Sorry. 12 Go ahead and answer. 13 A. Yes. 14 MR. KONECKY: I'll mark this as 15 Exhibit C. 16 (Exhibit C was marked.) 17 Q. (By Mr. Konecky) Okay. Have you 18 seen--well, let me just say Exhibit C-is Bates Stamp 19 KeyPoint 0001113-0001251. 20 We're looking at the same document? 21 A. We are. 22 Q. Okay. Have you seen this document 23 before? 24 A. This is the most current contract with 25 OPM. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 43 of 198 Page 108 1 J. BOAZ 2 to that, does this apply to the work that KeyPoint--3 both KeyPoint's contractors and employee investigators 4 do? 5 MS. HOGAN: Object to form. 6 I'll allow you to answer that question, 7 but it skates the line of the scope of the notice. 8 A. This is our current contract with OPM 9 and KeyPoint, so any persons working on the OPM 10 contract would be held to the contractual compliance 11 of this contract. 12 Q. (By Mr. Konecky) And you have both 13 contractors and employees working on the contract with 14 OPM? 15 MS. HOGAN: Same objection. 16 A. That would be correct. 17 Q. (By Mr. Konecky) Okay. And is it 18 KeyPoint's expectations that contractors will be 19 complying with any of the instructions or procedures 20 or criteria in this contract? 21 A. I'm sorry; can you restate that? 22 Q. Well, this contract that you have with 23 OPM lists--or goes through details regarding 24 objectives, the work that's going to be performed and 25 the quality standards for the work, protocols and TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 44 of 198 Page 109 1 J. BOAZ 2 procedures for the work; right? 3 A. That is correct. 4 Q. And you expect the contractors to comply 5 with those details you've agreed with OPM as to how 6 the work is going to be performed; right? 7 MS. HOGAN: Object to form. 8 You can answer. 9 A. That is correct. 10 Q. (By Mr. Konecky) All right. On Page 11 11 of 133--12 MS. HOGAN: I'm sorry; did you say 13 Page 11 of 133 or--14 MR. KONECKY: Page 11 of 133, which is 15 Bates-stamped 1129. 16 MS. HOGAN: Thank you. 17 Q. (By Mr. Konecky) Under "scope of work," 18 fifth line down, it says, "All investigative 19 products/services provided must be in accordance with 20 the processing instructions and the current 21 investigator's handbook, the OPM-FIS security manual, 22 and other pertinent instructions supplied or approved 23 by OPM." 24 Do you see where I am? 25 A. I do. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 45 of 198 Page 110 1 J. BOAZ 2 Q. That applies to the work that the 3 contractors are doing? 4 A. That is correct. 5 Q. And KeyPoint monitors the work to 6 ensure that the--to best ensure that the contractors 7 are performing in accordance with these processing 8 instructions and other pertinent instructions? 9 MS. HOGAN: Object to form; vague. 10 You can answer. 11 A. KeyPoint does monitor that, yes. 12 Q. (By Mr. Konecky) And KeyPoint also 13 trains its contractors on these instruction and how to 14 follow them; correct? 15 A. KeyPoint trains using the provided 16 training materials to the investigative staff and 17 contract investigators, yes. 18 Q. And those materials include instructions 19 as to how to perform the work? 20 A. Yes. On the OPM contract, yes. 21 Q. And it's fair to say those are detailed 22 instructions? 23 MS. HOGAN: Object to form. 24 You can go ahead and answer. 25 A. Yes, they're found in the investigative TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 46 of 198 Page 111 1 J. BOAZ 2 handbook. 3 MS. HOGAN: Object to form. 4 A. Yes. 5 Q. (By Mr. Konecky) And the investigative 6 handbook is like 550 single-spaced pages--right?--7 of detail instructions that you train the contractors 8 on; right? 9 A. That is correct. 10 Q. And that you monitor the contractors to 11 ensure that they comply with them; correct? 12 MS. HOGAN: Object to form; asked and 13 answered. 14 You can answer. 15 A. Yes. 16 Q. (By Mr. Konecky) So down on the bottom 17 of Page 11, Reports of Investigation, subsection (d), 18 it says, "Investigators shall compose reports of 19 investigation resulting from their contracts of 20 sources and per the guidelines of the investigator's 21 handbook and encrypted computer in the OPM-FIS design 22 reporting format for transmission into fieldwork 23 system (FWS)." 24 Did I read that correctly? 25 MS. HOGAN: Objection; document speaks TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 47 of 198 Page 121 1 J. BOAZ 2 Q. And so that was about 20 people 3 disengaged with KeyPoint in 2015? 4 MS. HOGAN: Object to form. 5 You can answer. 6 A. That would be from the scope, and that 7 is, to date, my knowledge of the approximate number, 8 correct. 9 Q. (By Mr. Konecky) And these numbers that 10 you've just been discussing with me apply just to the 11 contractors on OPM, or is it all the contractors? 12 A. Only to the OPM contract that we're 13 discussing. 14 Q. So based on your review of the sort of 15 training roles and your involvement in approving 16 disengagements of contracts, at least on the OPM side, 17 in recent times, 2015, you would estimate that 18 95 percent or more of the contractors are with 19 KeyPoint on the OPM contract for more than a year? 20 A. That is correct. 21 Q. What about DHS? Do you know if the 22 numbers are similar there? 23 MS. HOGAN: Object to form; that exceeds 24 the scope of the Rule 30(b)(6) notice. Witness can 25 attempt to testify, but she does not work on the DHS TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 48 of 198 Page 122 1 J. BOAZ 2 contract. 3 Go ahead and answer, if you can. 4 A. I would say it probably would be less 5 just by the number of differences of the independent 6 contractors working on the OPM contract versus DHS. 7 Q. (By Mr. Konecky) What would be less? 8 A. The number of individuals choosing not 9 to continue with DHS projects. 10 Q. So the retention rate would be higher? 11 In other words, the percentage of contractors who are 12 continuing to work for KeyPoint on the DHS projects 13 for a year or more would be--potentially be higher 14 than 95 percent? 15 MS. HOGAN: Object to form; exceeds the 16 scope of the Rule 30(b)(6) notice, exceeds the scope 17 of the witness's personal knowledge, and calls for 18 speculation. 19 You can answer. 20 A. I would say that, based on the numbers 21 of independent contractors engaged on the DHS 22 projects, that, yes, that percentage would be higher 23 than on the OPM. 24 Q. (By Mr. Konecky) So higher than 25 95 percent? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 49 of 198 Page 123 1 J. BOAZ 2 A. Correct. 3 Q. Still on Page 13 of 133, C.4, 4.1 4 references these preprinted forms including printed 5 materials necessary for case processing. 6 Do you know what those are? 7 A. Preprinted forms would be--within the 8 PIPs system, it is a database with case-related 9 information, and if an independent contractor were to 10 print from that, that would be a preprinted, prefilled 11 form that would assist the investigator in the 12 fieldwork that they would be completing. 13 Q. So what kind of forms are preprinted and 14 used by the investigators in their fieldwork? 15 A. It would be case-specific data related 16 to the case in which they have engaged upon, and it 17 would include directions, names, addresses, whatnot, 18 related to the case task or unit assigned to them in 19 which they would be completing in the field. 20 Q. And who develops the forms? 21 A. In this particular instance, OPM 22 developed this. It is their software. It is their 23 system. 24 MS. HOGAN: Josh, when you get a chance 25 to get a break, we need to take a break. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 50 of 198 Page 130 1 J. BOAZ 2 You can answer. 3 A. Then, you know, ultimately if they are 4 choosing not to the meet the contract requirements to 5 our customer and they are not meeting their own 6 personal contract with KeyPoint, then, yes, KeyPoint 7 at that point could make the decision to disengage 8 with them. 9 Q. (By Mr. Konecky) What other type--we 10 have sort of like the conversations that liaisons may 11 have with the contractors. We have the possibility 12 of--well, let me just go on. I don't want to 13 testify. So I'm trying to get a list of using the 14 words here in the document, "corrective measures," 15 that KeyPoint might use to improve performance. 16 One, as I understand it, is liaisons can 17 speak with the contractors regarding the problems that 18 are at issue in their performance; right? 19 A. Yes. 20 Q. And that can include or lead to some 21 kind of additional training? 22 A. Yes. 23 Q. Through discussions with you--well, in 24 connection with discussions with you, contract 25 liaisons might also make different assignments or TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 51 of 198 Page 131 1 J. BOAZ 2 offer different types of work to the contractors that 3 might better suit their abilities; right? 4 A. That is correct. 5 Q. The contractor may, him or herself, 6 after conversations with the liaison take it upon him 7 or herself to self-study more with the investigator's 8 handbook or other materials to improve; right? 9 A. That is correct. 10 Q. Any other corrective measures that 11 KeyPoint has used to improve performance by the 12 contractors? 13 A. And this would fall somewhat to 14 training, so there are check rides as part of a 15 training, and that is where the investigator could 16 shadow another investigator, independent contractor 17 to--just not understanding and, you know, that's 18 another method for them to learn from. And as long as 19 they are--that's an opportunity for them to have a 20 mentor in the field and understands the dynamics and 21 has worked the contract and is working the contract. 22 And so not just reading something or people learn 23 different ways. And so that's another opportunity for 24 them as well. 25 Q. Who does--who is the shadower? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 52 of 198 Page 132 1 J. BOAZ 2 A. We reach out to independent contractors 3 and ask them for volunteers if they'd like to 4 participate in that, and those are certified field 5 trainers, and those are independent contractors that 6 select to be part of that group. 7 Q. And do they get paid some kind of 8 premium or additional amount for doing that? 9 A. They are paid a flat fee of $280. 10 Q. Per day? Per trip? Per project? 11 A. A check ride. A check ride is just for 12 a day. There's no hours. There is no--it is just 13 the time that they're spending with them. 14 Q. That's a standard rate? 15 A. That's a standard rate. 16 Q. KeyPoint set that; right? 17 A. That is correct. 18 Q. Any other corrective measures that 19 KeyPoint uses? 20 A. No. 21 Q. On the next page, Page 18 of 133, 22 subsection (c), still part of C.7, there's a reference 23 to "mentoring program" along with "ride-along 24 program." Is that similar to what you've already been 25 referencing, or is there anything additional with TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 53 of 198 Page 148 1 J. BOAZ 2 contract are we talking about, because the value of 3 which the training and extensiveness of the training 4 would depend upon the contract upon which the 5 independent contractor was engaging on. 6 Q. (By Mr. Konecky) I understand that. I 7 mean, I'm looking at all seven contracts and just sort 8 of a low end and high end, if you have any estimate 9 based on your experience in terms of how much KeyPoint 10 is is investing in the contractor training and support 11 materials during the first year of a contractor's 12 tenure? 13 MS. HOGAN: Same objection; it exceeds 14 the scope. 15 You can answer, to your personal 16 knowledge. 17 A. It would determine if the independent 18 contractor comes to us with the required favorably 19 adjudicated SSBI clearance. If they do not, the costs 20 associated with getting that for them so that they are 21 eligible to attend training--it is part of the 22 criteria to be in training. If they come to us with 23 that favorably adjudicated clearance already in place, 24 the cost would be anywhere from $300 versus $21,000. 25 Q. (By Mr. Konecky) Okay. Do you know if TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 54 of 198 Page 149 1 J. BOAZ 2 there is sort of a median or place where most people 3 kind of align in terms of the amount that KeyPoint is 4 spending on their training and support materials in 5 the first year? 6 MS. HOGAN: Same objection. 7 A. That would be pure speculation, but if 8 you took the average median in between, I would say 9 probably about $12,000 to $13,000. 10 Q. (By Mr. Konecky) But in terms of--11 that's the average, but in terms of a median or bell 12 curve or anything like that, you don't know? 13 A. Most would be at the higher end. 14 Q. Most would be at the higher end. 15 (Exhibit I was marked.) 16 Q. (By Mr. Konecky) Have you seen 17 Exhibit I before? 18 A. I have. 19 Q. What is it? 20 A. This is the 2015 new investigator 21 training agenda for the OPM contract. 22 Q. It says three-week resident. What does 23 that mean? 24 A. That is where the independent contractor 25 goes on-site to attend training in person. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 55 of 198 Page 153 1 J. BOAZ 2 would have a consistent training. 3 Q. And is there overlap between the 4 training in terms of what people on DHS contracts get 5 trained on compared to what people on the OPM 6 contracts get trained on? 7 A. There are similarities due to the fact 8 that the CBP and ICE contracts do use and refer to the 9 OPM investigative handbook. 10 Q. Any other similarities other than those 11 concerning the training of the OPM handbook? 12 MS. HOGAN: I'm going to object to form, 13 just place a general objection. This is not a memory 14 game. There may be many similarities. 15 Feel free to answer to the extent you 16 know, but if you need a document, you can certainly 17 ask for it. 18 A. All independent contractors, regardless 19 of the contract in which they are working, have 20 similar job skills, as in each are interviewing 21 someone in a face-to-face setting. Each could 22 possibly be gaining records in the field. Each 23 require reporting of that information that is gained 24 in the field. So that would be the similarities 25 across. How they go about doing that, the questions TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 56 of 198 Page 155 1 J. BOAZ 2 necessarily mean that that's going to occur for the 3 independent contractor to do based upon work 4 availability. 5 Q. But in terms of the training, do all 6 contractors get--does the training for all 7 contractors touch upon the issue of searching for and 8 gathering public records? 9 A. Basic level, yes. 10 Q. And techniques for doing that? 11 A. Proper procedure of how to go about 12 doing that and identifying oneself, yes. 13 Q. And does all the training that KeyPoint 14 provides also touch upon techniques and procedures for 15 writing reports? 16 A. Again, not all contracts would provide 17 training. There are contracts such as NOPD and the GO 18 Group, FRB, where they are coming to us already 19 credentialed on these or credentialed on other federal 20 programs, and, therefore, we are not providing the 21 training. They already have the skills when they come 22 to us. 23 Q. My question is slightly different. 24 With the training that KeyPoint is 25 providing, am I correct that one of the similarities TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 57 of 198 Page 158 1 J. BOAZ 2 contracts would have fallen to the OPM contract and 3 15 percent to the DHS projects. 4 Q. (By Mr. Konecky) And within DHS, do you 5 know how approximately it's distributed across the six 6 entities? 7 A. I would have absolutely not even an 8 educated guess on that. I would say that ICE, from my 9 recollection, is a fairly newer contract, so, you 10 know, the--the answer is no. 11 I would say that of that 15 percent, 12 though, independent contractors can engage in multiple 13 contracts, so of that number there could have been 14 individuals in that 2,000 number that actually engaged 15 on the OPM contract as well as on DHS contracts. So, 16 in essence, you know, that number--not double 17 dipping, per se, on the two different sides. 18 Q. And I understand these are estimates and 19 approximations, but am I understanding correctly that 20 that would mean maybe approximately 85 percent of the 21 contractors are on the OPM contract, 15 percent 22 approximately are one or more of the DHS projects, and 23 then of that 15 percent, there may be an additional 24 number within that that are also working on the OPM 25 contracts? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 58 of 198 Page 159 1 J. BOAZ 2 MS. HOGAN: I'm going to object again; 3 this exceeds the scope of the notice for the witness 4 as a 30(b)(6) witness of KeyPoint. 5 You can answer in your personal 6 capacity. 7 A. I would say that when we gave that 8 number that it was a total per individual independent 9 contractor regardless of how many contracts that they 10 engaged upon. So that number would be true to the 11 total collectively. 12 Q. (By Mr. Konecky) That number, the 13 2,083? 14 A. Correct. 15 Q. But in terms of the breakdown, when you 16 said approximately 85 percent are on the OPM contract, 17 did that include the people who are also on the DHS 18 contract, or were there some percentage of the 19 15 percent approximately that were on the DHS projects 20 that also did the OPM? 21 MS. HOGAN: Same objection about scope; 22 and that it mischaracterizes earlier testimony. 23 You can answer to your personal 24 capacity. 25 A. I would say 85 percent of those were OPM TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 59 of 198 Page 160 1 J. BOAZ 2 investigators, and that 15 percent that were on DHS 3 would have been split amongst multiple contracts on 4 the DHS side. And of that, there could have been 5 credentialed investigators on the OPM contract, and if 6 I had to do a personal guess, I would say probably out 7 of the 15 percent, 5 percent of those were also 8 credentialed on the OPM contract. 9 Q. (By Mr. Konecky) In addition to the 10 85 percent that were already there on the OPM side? 11 A. That is correct. 12 MS. HOGAN: Josh, we've been going about 13 an hour, is now a good time for a break? 14 MR. KONECKY: Sure. 15 (Brief recess.) 16 (Exhibit J was marked.) 17 MR. KONECKY: So Exhibit J is 18 Bates-stamped KeyPoint 1652-1666. 19 Q. (By Mr. Konecky) Have you seen this 20 document before? 21 A. I have. 22 Q. What is it? 23 A. That is the KeyPoint Investigator Tool 24 Materials Tracking User Guide. 25 Q. And does this appear to be a true and TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 60 of 198 Page 163 1 J. BOAZ 2 accountability for all secured GFE and case materials 3 at all times, and this is a process and explanation 4 and guidance for the independent contractor to--when 5 accessing the portal on how to go about checking out 6 their materials when they choose to work in the field 7 for KeyPoint. And to add to your list, just so I'm 8 thorough, TPS and green back were collectively one. 9 We just updated it with the new. The other would be a 10 workload request tool. 11 Q. So do all contractors working for 12 KeyPoint on the OPM contract need to follow the 13 policies regarding tracking of case materials that are 14 reflected here in Exhibit J? 15 A. Yes. 16 Q. And this is--I'm looking at Page 3, 17 which is Bates-stamped 1655, under "Daily Tracking 18 Requirements." It says, "OPM and KeyPoint policy both 19 require investigators to reconcile their case 20 materials for every day the fieldwork is conducted." 21 Do you see where I am? 22 A. I'm sorry; you're at 1665; is that 23 correct? 24 Q. Yes. Under "Daily Tracking 25 Requirements"? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 61 of 198 Page 164 1 J. BOAZ 2 A. Okay. 3 Q. That first sentence. 4 So this is both, not just OPM policy, 5 but also KeyPoint policy; correct? 6 A. That is correct. 7 Q. And am I correct that, in fact, KeyPoint 8 requires the contractors to reconcile their case 9 materials every day the fieldwork is conducted? 10 A. On days where fieldwork is conducted, 11 yes. 12 Q. Well, I guess reconcile them 13 consistently with the protocols and the instructions 14 contained in this user guide; right? 15 A. That's correct. If they check out 16 materials and they leave their secured environment and 17 they go into the field, they are required to check 18 those materials back in by midnight. If they are not 19 going to meet that midnight deadline, then they have 20 to notify KeyPoint so we can notify security that they 21 are still maintained and then we are assured that the 22 PII is in safe possession. 23 Q. So what are examples of the PII or case 24 materials that are--need to be checked out, checked 25 back in, reconciled? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 62 of 198 Page 166 1 J. BOAZ 2 A. March 2015. 3 Q. But what. 4 A. After the breach. 5 Q. What did they do after the breach? 6 A. They issued laptop computers to their 7 contract investigators. 8 Q. So every contractor for KeyPoint is 9 provided a laptop with particular software on it? 10 A. After March of 2015, that is--after 11 March of '15, that is an accurate statement. 12 Q. Before March of 2015, all KeyPoint 13 contractors working on OPM accounts received a laptop 14 with specific software on it? 15 A. OPM independent contractors have always 16 received a government-furnished laptop to engage on 17 the contract. 18 Q. Contractors either on the DHS or OPM 19 side ever been provided with any other kind of 20 materials? 21 A. They're provided credentials appropriate 22 to the contracts that they are credentialed on, Office 23 of Personnel Management provides PIV cards for the OPM 24 contract that is required to use--to access their 25 software programs. All independent contractors are TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 63 of 198 Page 167 1 J. BOAZ 2 issued an RSA token as part of the log-in process for 3 security, and that's it. 4 Q. You're going to have to excuse my 5 ignorance; when you say "credentials," what exactly is 6 that? 7 A. That's a badge. 8 Q. And PIV card. What's PIV stand for? 9 A. Personal identification verification, so 10 an ID card, and it has the OPM logo on it with a 11 picture and it has a chip that provides access to gain 12 into the computer. 13 Q. Into the laptop or into a different 14 computer? 15 A. Into the government-issued computer. 16 Q. And an RSA token? 17 A. It's a little token with random numbers 18 that change every one minute, and you must type those 19 numbers in with another consequence of numbers and 20 then your password and your user name. Each RSA token 21 is identified to a particular person, and so the 22 internal security systems know that it is that 23 individual signing on using that RSA token. 24 Q. I take it KeyPoint is responsible for 25 ensuring that all its contractors perform their work TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 64 of 198 Page 169 1 J. BOAZ 2 verification or confirmation to? 3 A. Within the portal system, which is a 4 system where they go in to input the fees and workload 5 request tools, they do these--the daily manifesting. 6 There is a location within that system, and it is PII 7 storage, and they at that point annotate what that 8 storage is, and they have to confirm that each year on 9 an annual basis because our parameters are that the 10 GFE be double-locked. 11 So if they go to a TDY location and they 12 do not want to change it in the portal, then they just 13 notify security at the current location that that 14 equipment would be found at and what the parameters of 15 security are. 16 MR. KONECKY: Can I have that read back? 17 (The requested portion was read.) 18 Q. (By Mr. Konecky) So let me try to break 19 that down a little bit. 20 So for the home office location, the 21 contractor needs to verify that once a year? 22 A. That is correct. 23 Q. And I assume that, if they move that 24 home location, they have to verify it upon moving to a 25 new location? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 65 of 198 Page 170 1 J. BOAZ 2 A. That is correct. 3 Q. And then if they're going to verify a 4 secure TDY, temporary location, who is the security 5 that they do that with? 6 A. That would be KeyPoint. So they notify 7 either Maureen O'Connor or Lisa Riley--and just via 8 e-mail--and say, "I'm going on TDY location." TDY 9 locations can last from two weeks to six months. It's 10 the choice of the independent contractor. And so it 11 is just for us to be able to notify our customer if 12 there is a loss and what the parameters of the loss 13 were and the location of the loss. 14 Q. And the TDY location is the location--15 it's just a--in lay terms, it's a temporary office 16 location where they're keeping the laptop? 17 A. And their case papers, yes. 18 Q. Okay. And whether it's a permanent home 19 office or a temporary day location, the contractors 20 need to keep KeyPoint apprised of location out of 21 which they are working, specific location out of which 22 they're working? 23 A. Yes, because we have to be accountable 24 for that to our customer as well. 25 Q. On Page 6, what are these releases that TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 66 of 198 Page 173 1 J. BOAZ 2 providers, they are taking notes of the information 3 they are gathering and using those notes to write 4 their reports of investigation. So that would be the 5 documentation from those interviews. 6 Q. And there's specific protocols and 7 procedures for when and how those notes are to be 8 maintained and shipped? 9 A. Per the OPM contract with KeyPoint, all 10 notes and field items have 30 days to return back to 11 document control from the time of transmission. 12 Q. When you say "document control," you 13 mean KeyPoint's document control? 14 A. That is correct. 15 Q. On the next page, it says, "If a case 16 becomes late, it's a violation of KeyPoint policy 17 and/or OPM contract." 18 Is that a true statement? 19 A. That is correct. At that point we are 20 out of contractual compliance. 21 Q. Is it fair to say that compliance with 22 your contract with OPM is--strike that. 23 Is it fair to say that KeyPoint's policy 24 is to stay in compliance with its contracts with OPM? 25 A. That is a fair assessment. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 67 of 198 Page 174 1 J. BOAZ 2 Q. And it's KeyPoint's policy that any 3 contractors working for KeyPoint on OPM work need to 4 do so in compliance with the protocols, procedures, 5 and criteria of the OPM contract? 6 THE DEPONENT: Can you read that back to 7 me? 8 (The requested portion was read.) 9 A. Yes. That is both in their ICEA 10 agreement with KeyPoint and our agreement with our 11 customer. 12 Q. (By Mr. Konecky) That would be true for 13 any contract that KeyPoint has with a government 14 client, that is, that KeyPoint's policy, among other 15 things, is for the contractors doing work covered by a 16 particular contract between KeyPoint and one of 17 KeyPoint's clients, do that work in a manner that is 18 consistent with the criteria and protocols in 19 KeyPoint's contract with the client? 20 MS. HOGAN: Object to form; compound. 21 Please answer if you can. 22 A. It is in KeyPoint's best interest to 23 maintain a positive relationship and a continued 24 contract engagement with our customers to remain in 25 compliance at all times. It is the customers' choice TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 68 of 198 Page 175 1 J. BOAZ 2 and option, and they are ultimately the credentialing 3 body to our independent contractors, and if our 4 independent contractors do not complete their 5 contractual compliance with both KeyPoint and in 6 relation to the customer, they can remove them from 7 that contract and, thus, they cannot engage with us as 8 a company nor on that contract. 9 Q. (By Mr. Konecky) As KeyPoint's--as in 10 this example here on Page 3, it is KeyPoint's policy 11 to have its contractors perform their work in the way 12 that is set forth in the contracts that KeyPoint has 13 with it various clients? 14 A. KeyPoint has engaged with an independent 15 contractor in a contract mutually exclusive from our 16 customers, and in that ICEA agreement what the 17 independent contract states is that they will adhere 18 to our KeyPoint policies. If the independent 19 contractor chooses not to adhere to those policies and 20 procedures, thus, being the KeyPoint policies and 21 procedures, that independent contractor is out of 22 compliance with KeyPoint. 23 There is also a second relationship, and 24 that being that we are held, as a company, to 25 contractual compliance to our independent customers TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 69 of 198 Page 183 1 J. BOAZ 2 reimbursement of expense, then that would be a 3 differentiation. Beyond that, these are set. 4 Q. Now, is there a fee structure for the 5 OPM work? 6 A. Yes, there is. 7 Q. And is it also based on source units in 8 the way this is? 9 A. It is not. 10 Q. So how does the fee structure work for 11 the OPM? 12 A. On the OPM, a subject interview, 13 regardless of case type, is $200, and a source unit is 14 3.5 units. A source interview is valued at one source 15 unit and $50. All records are valued at a half a 16 source unit, and they are paid $25 with the exception 17 of law records found at police departments or 18 sheriffs. Those are $20 in payment. 19 Q. Okay. And that fee schedule applies to 20 everyone, all contractors doing work on an OPM 21 contract? 22 A. That is correct. 23 Q. And to what extent are those source 24 units or fees associated with each source unit that 25 you just went through adjusted for a contractor? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 70 of 198 Page 184 1 J. BOAZ 2 A. The flat fee is always paid. An 3 independent contractor, if they feel there is 4 additional level of war effort on the case item or 5 type or case overall or they traveled outside of their 6 normal work radius, if there is a last item on the 7 case and our customer needs it, it is a priority case, 8 then at that point in time the contractor can 9 negotiate an additional premium on top of that flat 10 fee. 11 Q. And so my question is, if you know, how 12 often that occurs? 13 A. It happens every day. 14 Q. Okay. So as a percentage of fees paid, 15 what percentage of the time is the fee that's paid to 16 a contractor different from what is on the fee 17 schedule that you just went through? 18 A. Individual contractors negotiating on 19 behalf of themselves and their workload solely would 20 probably be anywhere from 12 to 15 percent each month. 21 Q. 12 to 15 percent of their--of each fee 22 as a premium that gets put onto it? 23 A. Total fees for the month by all 24 independent contractors, 12 to 15 percent would have 25 additional premiums added to them collectively as a TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 71 of 198 Page 185 1 J. BOAZ 2 whole. 3 Q. Okay. Is there a sort of records that 4 could be viewed to show that with particularity? 5 MS. HOGAN: Object to form. 6 You can answer. 7 A. Independent contractors e-mail their 8 contract liaison, or myself, if they would like to 9 discuss that negotiation process so they can e-mail 10 and say, you know, "I'd like to take some extra work 11 or I'll take a bucket of work in this location more 12 than I normally do," or the contract liaison would 13 reach out to the independent contractor and say, "I 14 have some last-minute items, are you interested, and 15 we know it's an inconvenience working it in the work 16 you already have." And at that point in time the two 17 can negotiate that premium of mutual agreement. 18 We also have nationwide incentives 19 where, as a company, we have needs of our customer on 20 certain case types, certain times of the year, and at 21 that point in time we provide an additional premium on 22 all items of that particular case type or location to 23 incentivize the independent contractor to engage at a 24 higher level than they normally would to meet the 25 needs and expectations of our customers to get case TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 72 of 198 Page 188 1 J. BOAZ 2 instruct the witness not to answer. That is outside 3 the scope and is contrary to the judgment of 4 October 15, 2015, the order regarding employee 5 information. 6 Q. (By Mr. Konecky) Is there any kind of 7 authority level that the liaisons have in terms of how 8 much upward adjustment they can do? 9 A. On the OPM contract? Is that what 10 you're referring to? 11 Q. On the OPM contracts, yes. 12 A. On the OPM contract, the contract 13 liaison can approve up to 25 percent on their own 14 authority. Anything over 25 percent has to be driven 15 forward to myself. 16 Q. So back to Exhibit M on the bottom, 17 source unit component, can you describe what this is 18 and what it means? 19 A. This is an example to an independent 20 contractor on a scenario of what the different things 21 involved in doing a case in the field would involve, 22 and that is certain things to demonstrate to them, as 23 an independent contractor and independent business 24 vendor, how they would and can mentally cross the 25 unit, source unit structures to the tasks in which TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 73 of 198 Page 199 1 J. BOAZ 2 Prior. 3 Q. (By Mr. Konecky) Have you seen this 4 e-mail chain before? 5 A. I have not. 6 Q. Do you know who Pam Hinchcliffe is? 7 A. She would be part of our IACC team. 8 Q. What is IACC? 9 A. They are our integrity assurance and 10 contractual compliance group. 11 Q. And also cc'd is Jackie Schwartz. 12 Do you know who that is? 13 A. That would have been and is Andrew 14 Prior's contract liaison. 15 Q. On the e-mail dated April 16, 2015, at 16 10:06, Ms. Hinchcliffe wrote: "Dear Investigator 17 Prior, as part of KeyPoint's integrity assurance 18 responsibilities, we routinely recontact sources 19 interviewed by our investigators asking for their 20 feedback to ensure all policies and procedures are 21 being followed." 22 Do you know if that's a true statement? 23 A. That is a true statement and is part of 24 our customer compliance. 25 Q. And when it says "routinely," how often TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 74 of 198 Page 200 1 J. BOAZ 2 is routinely? 3 A. It is a random selection of our 4 investigators as well as a random selection within 5 their case transmittals. 6 Q. Can you quantify the frequency? Either 7 the percentage--strike that. 8 Other than it being random, how often 9 does it happen? 10 MS. HOGAN: Object to form. 11 MR. KONECKY: Either by the investigator 12 or by the project or by some other measure. 13 MS. HOGAN: Object to form. 14 You can try and answer. 15 A. It is is 10 percent of case 16 transmittals. 17 Q. (By Mr. Konecky) Across the board? 18 A. Across the board. 19 Q. Who does the recontacting? 20 A. Our IACC specialist. 21 Q. And how do they recontact the sources? 22 A. When an investigator submits their ROI, 23 it has the interviewed name and contact information, 24 and so they would call that person by telephone and 25 ask them a series of questions. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 75 of 198 Page 203 1 J. BOAZ 2 type--strike that. 3 Eight to ten which are provided, 4 depending upon the type of interview or the type of 5 case? 6 A. That would be correct. 7 Q. And each of these documents contain 8 sample questions that might be asked? 9 A. They contain information found in the 10 OPM Investigator's Handbook to ensure case quality. 11 Q. Does that information include how to ask 12 questions or suggest ways to ask questions? 13 A. I cannot respond to that. 14 Q. Because it's a security issue? 15 A. Because that is part of the redacted 16 information. 17 Q. I'm not asking for what any question 18 says or what any specific guidance is or is not. I'm 19 just asking is--do the KING documents that KeyPoint 20 provides to its investigators contain suggested 21 phrasing of questions to obtain information? 22 A. It is a black and white document. There 23 are no suggestions. 24 Q. Does it contain questions? 25 A. It contains questions related to the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 76 of 198 Page 204 1 J. BOAZ 2 requirements to meet a quality report of investigation 3 transmission. 4 Q. Questions that a contractor would ask in 5 order to meet those standards? 6 A. If the investigator did not know those 7 questions from memory, then that KING would assist 8 them in meeting a quality product for the OPM 9 customer. 10 Q. In terms of the kinds of questions that 11 the KeyPoint investigator should ask. 12 A. The OPM Investigator's Handbook is very 13 specific in the line of questioning, the exact 14 questions that are to be asked on certain cases, case 15 types, and extension of follow-up based upon response. 16 And no way does the KING guide suggest. It is a very 17 black and white bulleted form for them to use, if they 18 so choose to do so. 19 Q. There are specific--whether it's on 20 the KING form or somewhere else, there are specific 21 questions and follow-up questions that contractors 22 need to make? 23 MS. HOGAN: I'm going to object to form 24 as asked and answered. You can answer subject to the 25 restriction that I place upon you. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 77 of 198 Page 207 1 J. BOAZ 2 that she uses that in her correspondences or if this 3 is directed overly larger scope. 4 Q. (By Mr. Konecky) What about the bold at 5 the bottom of page, where it says "Action required. 6 The E-mail response within five calendar days is 7 necessary to acknowledge the following" and then it 8 goes on to say on the next page, your understanding of 9 the proper process and requirements for providing the 10 correct information plus agreements begin immediately 11 reporting this information properly in your notes 12 NROI." 13 MS. HOGAN: Objection as to the scope. 14 Q. (By Mr. Konecky) Is that something that 15 gets--part of a standard e-mail that gets sent out 16 in these situations? 17 MS. HOGAN: I'm going to object. It is 18 beyond the scope of the 30(b)(6) notice. 19 You can answer, in your personal 20 knowledge. 21 A. I would not have personal knowledge. I 22 don't know whether she is cutting and pasting. It's 23 templated or she's typing it in by hand each time 24 because she likes to type. 25 Q. (By Mr. Konecky) Would you agree that TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 78 of 198 Page 208 1 J. BOAZ 2 there a proper process that needs to be followed by 3 the contractors when contacting sources and 4 interviewing sources? 5 A. There is a proper process that is 6 identified in the OPM handbook. 7 Q. And that's generally applicable process 8 and applies to all contractors; right? 9 MS. HOGAN: Object to form. 10 You can answer? 11 A. That would be correct. 12 MR. KONECKY: All right. We can take a 13 break. 14 MS. HOGAN: Thank you. 15 (Brief recess.) 16 (Exhibit R was marked.) 17 MR. KONECKY: Exhibit R is another 18 e-mail from Pam Hinchcliffe to Andrew Prior. 19 Q. (By Mr. Konecky) Have you seen this 20 before? 21 A. I have not. 22 Q. (By Mr. Konecky) There is a reference 23 in the e-mail to properly recording in your notes and 24 ROI the accurate information. Now, are there 25 particular processes that KeyPoint contractors need to TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 79 of 198 Page 211 1 J. BOAZ 2 A. That would be correct. 3 Q. I'm looking at page OPM Touhy 15, which 4 is 112--I'm sorry. I'm looking at OPM Touhy 12, 5 which is the preface. It says, "This handbook 6 provides directions, guidance, and standards for 7 investigators regarding the conduct of investigations 8 for the Office of Personnel Management. The guidance 9 and standards contained in this handbook are directive 10 in nature. All persons working with the OPM 11 investigations program performing investigative work 12 under the control of OPM must use this handbook and 13 adhere to its policies, procedures, and guidance." 14 Is that a true statement? 15 MS. HOGAN: Object to form; document 16 speaks for itself. 17 You can answer. 18 A. Yes. 19 Q. (By Mr. Konecky) And that direction, 20 guidance, standards apply to the KeyPoint contractors 21 working on key points, any matters relating to 22 KeyPoint's contract with OPM; right? 23 A. Again, yes, that is stated. 24 Q. The policies and procedures that they 25 need to follow, that is, the KeyPoint contractors need TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 80 of 198 Page 212 1 J. BOAZ 2 to follow, are mandatory; right? 3 A. To remain credentialed on the OPM 4 contract, yes. 5 Q. And 85 to 90 percent of KeyPoint's work 6 for the contractors is on the OPM contract? 7 MS. HOGAN: Object to form. 8 You can answer. 9 A. 85 is more accurate, but, yes. 10 Q. (By Mr. Konecky) There are a lot of 11 redactions in this exhibit. Can you describe for me, 12 if you can, the nature of the redactions? 13 MS. HOGAN: Object to form; instructing 14 the witness not to answer. 15 This has been extensively discussed. 16 KeyPoint, none of its personnel, nor its counsel have 17 permission or authorization from OPM or its counsel, 18 the Department of Justice, to discuss what has and has 19 not been redacted. KeyPoint's counsel has submitted a 20 third Touhy request to OPM seeking the information 21 that has been sought as to the nature of the 22 redaction. The witness is not allowed to answer that 23 question. If she does so, she is potentially exposing 24 herself, KeyPoint, and counsel to criminal prosecution 25 under 5 CFR Section 295 and 18 UCS Section 641. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 81 of 198 Page 223 1 J. BOAZ 2 government clients to renegotiate and change 3 provisions of the contract? 4 MS. HOGAN: Object to form; that exceeds 5 the scope of the 30(b)(6) notice. 6 You can answer to the extent you have 7 personal knowledge of any modifications. 8 A. I have no specific personal knowledge to 9 that intent. 10 Q. (By Mr. Konecky) Which department is 11 responsible for negotiating contracts with the 12 clients? 13 A. Contractual Compliance. That would be 14 Sue Ordakowski. 15 (Exhibit V was marked.) 16 Q. (By Mr. Konecky) Have you seen this 17 document? 18 A. I have. This is our current ICEA 19 agreement. 20 Q. Could you spell that out? 21 A. Independent Contractor Engagement 22 Agreement, ICEA. 23 Q. And currently--this is the current 24 version of that agreement? 25 A. I believe that to be true, yes. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 82 of 198 Page 224 1 J. BOAZ 2 Q. And it's the same standard agreement 3 that all the contractors are required to sign? 4 A. This is the independent contract 5 engagement agreement based upon which contract they 6 choose to engage on would have additional addendums 7 that they would sign. 8 Q. Okay. But what we're seeing here as 9 Exhibit V is the base independent contractor 10 engagement agreement? 11 A. That is correct. 12 Q. And it's the same agreement for all 13 contractors? 14 A. That is correct. 15 Q. KeyPoint requires all its contractors to 16 sign this in order to work for them? 17 A. That is correct. 18 Q. Yes? 19 A. Yes. 20 Q. And since March of 2012, has the 21 independent contractor engagement agreement changed in 22 any material respect, that you're aware of? 23 A. Okay. So I'm incorrect and I would like 24 to address this. This is an old contract. This is 25 not our most current contract. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 83 of 198 Page 225 1 J. BOAZ 2 Q. Okay. Your most current one has an 3 arbitration clause in it? 4 A. That is correct. 5 Q. Anything else that is different about 6 your most current one? 7 MS. HOGAN: Object to the form. 8 You can answer to the extent you can 9 without looking at the documents. 10 A. I would say that fundamentally they are 11 the same contract with the exclusion of conversation 12 about arbitration as well as the opt-in clause. 13 Q. (By Mr. Konecky) And "this arbitration" 14 is the--I'll show it to you. 15 Well, "the arbitration" is the 16 arbitration clause or set of privileges that were 17 inserted in 2015; correct? 18 MS. HOGAN: Object to form. 19 You can answer, if you know. 20 A. We did roll out a new contract agreement 21 to all contract investigators in the year 2005. 22 Q. (By Mr. Konecky) And in 2005. 23 A. I'm sorry, 2015. Sorry. 24 Q. Okay. And the change was to add an 25 arbitration clause; right? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 84 of 198 Page 234 1 J. BOAZ 2 A. I think the term "techniques" is vague, 3 but, yet, I will refrain from answering that. But 4 there are a specific line of questioning and questions 5 that are presented in the OPM handbook that need to be 6 adhered to. 7 Q. (By Mr. Konecky) That are not generally 8 known to the public? 9 A. Yes. 10 Q. We briefly touched on the case review 11 process earlier. How often are--do you know how 12 often reports submitted by contractors are reopened or 13 need to be redone as a result of the case review 14 process? 15 A. I would have to pull a report 16 specifically to the SID and at that point measure the 17 amount of transmissions that that particular SID had 18 completed over the course of time of evaluation versus 19 what was refiled to determine a percentage of refile 20 rate. 21 Q. You guys don't keep data on that? 22 A. We do not keep quality scores on 23 independent contractors. 24 Q. But do you have--you do maintain 25 records that you could go to and calculate that TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 85 of 198 EXHIBIT D EXHIBIT E Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 97 of 198 Page 1 1 ANGELA DEABLER 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 3 4 Case No. 15-cv-00865-REB ______________________________________________________ 5 DEPOSITION OF: ANGELA DEABLER-March 15, 2016 6 ______________________________________________________ 7 RICHARD SMITH, individually and on behalf of all others similarly situated, 8 Plaintiffs, 9 v. 10 KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware 11 corporation, 12 Defendant. ______________________________________________________ 13 PURSUANT TO NOTICE, the deposition of 14 ANGELA DEABLER was taken on behalf of the Plaintiffs at 1900 Sixteenth Street, Suite 800, Denver, Colorado 15 80202, on March 15, 2016, at 9:51 a.m., before Tina M. Stuhr, Registered Professional Reporter and Notary 16 Public within Colorado. 17 18 19 20 21 22 23 Job No. 104853 24 25 TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 98 of 198 Page 7 1 ANGELA DEABLER 2 in Wyoming. 3 Q. I'm sorry, what? 4 A. He lives in Wyoming. 5 Q. Okay. 6 A. But--so it's connected to Loveland 7 though. 8 Q. And what kind of policy and guidance is 9 he and his department responsible for coming up with? 10 A. So it's in support of the OPM contract. 11 They're responsible for communicating handbook 12 changes. 13 Q. Anything else? 14 A. Just mostly like clarifications, and he 15 has a team who provides expert guidance on the 16 handbook and the changes and all of the policies that 17 come up from our customer. 18 Q. Expert guidance to who? 19 A. To the field, review, all of the support 20 staff. So he's responsible for providing that to the 21 whole OPM contract personnel. 22 Q. So--and does that trickle down to the 23 investigators? 24 A. Yes. 25 Q. In other words, the policy and guidance TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 99 of 198 Page 28 1 ANGELA DEABLER 2 A. Most of them are PowerPoints that are a 3 part of the training process as it stands today. 4 Q. The KeyPoint training process--5 A. Um-hum. 6 Q.--for the investigators? 7 A. Yes. 8 Q. And including the contract investigators? 9 A. Yes. 10 Q. So as part of corrective action for 11 contract investigators, KeyPoint may from time to time 12 require them to do some kind of retraining? 13 A. Correct. 14 Q. Any other kind of corrective action that 15 you've observed being taken with respect to 16 contractors? 17 MS. HOGAN: Object to form. 18 Q. (BY MR. KONECKY) The contract 19 investigators. 20 MS. HOGAN: I'm going to object to form. 21 That mischaracterizes her earlier testimony. She 22 didn't say she observed it, but you can answer. 23 A. It depends on the situation. They may 24 receive security infractions or violations depending 25 on what has happened. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 100 of 198 Page 29 1 ANGELA DEABLER 2 Q. (BY MR. KONECKY) When a contractor 3 investigator has a security infraction or violation, 4 what's the corrective action that KeyPoint may or--5 that you've observed KeyPoint has taken? 6 A. It's primarily a letter of the violation 7 and it's placed into their security file. 8 Q. And does this letter have any direction 9 or instruction in terms of what the investigator is 10 expected to do in the future going forward? 11 A. Yes, potentially. 12 Q. What kind of instruction? 13 A. It depends on the situation. I mean, 14 each situation is different. 15 Q. But KeyPoint will, in letters of 16 violation to the contract investigators, give them 17 direction and instruction in terms of how to do their 18 job going forward? 19 MS. HOGAN: Object to form. You can 20 answer if you know. 21 A. If it violates any of our contractual 22 handbooks, yes, we will provide them that correction. 23 Q. (BY MR. KONECKY) But just to hone in on 24 this, the correction will include, among other things, 25 directions and instructions for how to do their job so TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 101 of 198 Page 30 1 ANGELA DEABLER 2 that they are in compliance with whatever policies or 3 procedures that they may have fallen out of compliance 4 with? 5 A. Correct. 6 MS. HOGAN: Objection. That's been asked 7 and answered. 8 You need to let me get my objection on 9 the record, please. 10 Q. (BY MR. KONECKY) And these letters are 11 generated by KeyPoint personnel? 12 A. Yes. 13 Q. Any other types of corrective action that 14 you're aware of that KeyPoint has or may take against 15 a contract investigator? 16 A. There's all types that may happen 17 depending on the situation, but primarily it would 18 result in a security violation or retraining. 19 Q. What are some of the other kinds that may 20 happen? I mean, it's not a memory game, so I 21 understand that you might not remember all the 22 different types of corrective action that has occurred 23 or that you're aware of, but sitting here today what 24 other types of corrective action has KeyPoint taken 25 against contract investigators? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 102 of 198 Page 31 1 ANGELA DEABLER 2 MS. HOGAN: Same objection. This is not 3 a 30(b)(6). You can answer with what you know. 4 A. As the corrective actions and not the 5 cause of the corrective actions is--termination may 6 be included. So that would be termination of their 7 contract with KeyPoint. 8 Q. (BY MR. KONECKY) And that has occurred 9 for contractors when they don't follow KeyPoint 10 guidance or instruction regarding policies? 11 A. Yes. 12 Q. So what did you do as a program analyst? 13 A. I looked at stats, ran numbers, provided 14 assignment guidance. 15 Q. What kind of stats or numbers? 16 A. Mostly around workload, you know, whether 17 we're completing the work as it's coming in, our 18 contractual compliance numbers, are we meeting our 19 timeliness and quality on our cases. 20 Q. So in terms of contractual compliance, 21 does KeyPoint have certain obligations to its client 22 as to the timing of the investigations it conducts? 23 A. Yes. 24 Q. And what's the nature of those 25 obligations? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 103 of 198 Page 32 1 ANGELA DEABLER 2 A. We have--each case has its own 3 deadline. 4 Q. And KeyPoint is responsible for meeting 5 that deadline? 6 A. Yes. 7 Q. And does KeyPoint set the deadline or 8 does the client set the deadline? 9 A. The client sets the deadline. 10 Q. Can KeyPoint ever change it? 11 A. No. 12 Q. Can a contract investigator of KeyPoint 13 ever change a deadline that has been set? 14 A. Not from the customer, no. 15 Q. So is KeyPoint responsible for making 16 sure that its investigators, including its contract 17 investigators, meet the deadlines that are set? 18 A. Yes. 19 Q. And am I correct that the contract 20 investigators don't have any discretion or authority 21 to change those deadlines? 22 A. Not the customer's. 23 Q. When you say "Not the customer's," you 24 mean the deadline--tell me what you mean by "Not the 25 customer's." TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 104 of 198 Page 37 1 ANGELA DEABLER 2 A. Correct. 3 Q. And am I correct the contract 4 investigator can't just decide on his or her own to 5 have a different timeline? 6 A. They cannot. They cannot create a 7 different timeline, no. 8 Q. They can't go to OPM or one of KeyPoint's 9 clients to negotiate a different timeline? 10 A. No. 11 Q. So when you were a program analyst, the 12 stats and numbers were tracking completion rates or 13 on-time completion rates or something else? 14 A. All of the above. 15 Q. All of the above. And is there a 16 benchmark that you have under the contract with OPM in 17 terms of your completion rates? 18 MS. HOGAN: Again, objection. I'd like 19 you to clarify if you're asking then when she was a 20 program analyst or now? 21 Q. (BY MR. KONECKY) Now. 22 A. Yes, there are. 23 Q. Has there always been some timing 24 requirements in terms of KeyPoint's completion rates 25 since you've been at KeyPoint? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 105 of 198 Page 48 1 ANGELA DEABLER 2 from our workload team to the investigators on which 3 cases to target--4 Q. So--5 A.--to meet our timelines. 6 Q.--there was a strategy in terms of how 7 to allocate assigned work? 8 A. Yes. 9 Q. Big picture, what is the nature of that 10 strategy? 11 A. Because a case can touch multiple 12 geographic regions and the geographic regions--so we 13 don't send an investigator to all of the geographic 14 regions. We actually, you know, send the investigator 15 only to the work in their area. Some areas all of a 16 sudden get really heavily bogged down with work and 17 then some dry up, so we actually have to move the 18 resources to where the work is and make sure that we 19 have the right strategy so that we have the people 20 working where we need them and still meet our 21 timeliness. 22 Q. Is that a complicated process? 23 A. Yes. 24 Q. So in terms of getting people where they 25 need to be, can you describe what that means? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 106 of 198 Page 49 1 ANGELA DEABLER 2 MS. HOGAN: I'm going to object to form. 3 You can go ahead and answer if you can. 4 A. It just depends on the situation. You 5 know, if we don't have work in one location but we 6 have work in another location, we will either offer up 7 or send investigators to that work. 8 Q. (BY MR. KONECKY) In terms of relocating 9 them or just sending them on a day trip or something 10 else? 11 A. It depends on the situation, depends on 12 how far away the work is. It could be a day trip. It 13 could be a four-week trip. It could be an offering up 14 of relocation. 15 Q. And in terms of going through the 16 strategy and the mechanics and the logistics of case 17 assignments, how many people from KeyPoint are 18 involved in that process? 19 A. We currently have--I believe it's 18 20 logistics analysts, two leaders of that team. 21 Q. Currently? 22 A. Currently, and then all of our field 23 management and liaisons have input. 24 Q. And this is an ongoing, complex, 25 strategic process? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 107 of 198 Page 50 1 ANGELA DEABLER 2 A. Every day. 3 Q. And ultimately the end result is 4 determinations about how work is going to be allocated 5 and assigned to the investigators? 6 MS. HOGAN: Object to form. Again, I'm 7 going to ask you, Josh, to clarify what investigators 8 are you talking about? 9 MR. KONECKY: It could be both employee 10 and contract investigators. 11 MS. HOGAN: And this deposition is 12 limited to contract investigators. I'm trying to give 13 you as much leeway as possible--14 MR. KONECKY: All right. Well--15 MS. HOGAN: I'm trying to give you as 16 much leeway as possible, but Judge Mix did say you're 17 not entitled to discovery--specific employee 18 discovery. 19 MR. KONECKY: All right. Well, I'm just 20 responding to your request for clarification. 21 Q. (BY MR. KONECKY) Okay. So your--22 KeyPoint's strategy on case assignments includes how 23 work is going to be provided to contract 24 investigators? 25 A. Correct. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 108 of 198 Page 51 1 ANGELA DEABLER 2 Q. And that, even just dealing with the 3 contract investigators, is still an ongoing complex 4 process? 5 A. Correct. 6 Q. And it involves multiple analysts, field 7 management, and liaisons from KeyPoint on a daily 8 basis? 9 A. Correct. 10 Q. Okay. And in terms of determining the 11 strategic approach to case assignments with respect to 12 the contractors, do the contract investigators play a 13 role in that process? 14 A. Yes. 15 Q. In what sense? 16 A. So their assignment system, they actually 17 get to go in and select their work and pull down 18 whatever work they want to do. 19 Q. Okay. Other than going in, seeing the 20 list of work that's available and then pulling down 21 something that they may want and be able to work on, 22 is there anything else that a contract investigator 23 does in terms of case assignment, protocols and 24 strategy at KeyPoint? 25 A. They may offer up to go travel if they TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 109 of 198 Page 52 1 ANGELA DEABLER 2 want to travel and do work elsewhere. 3 Q. So they would volunteer themselves as 4 somebody who can travel? 5 A. Correct. 6 Q. Okay. Anything else that the contract 7 investigator does in terms of the case assignment 8 process? 9 A. No. 10 Q. And am I correct that the--so the two 11 things the contract investigator does in terms of case 12 assignment is to select from available assignments, 13 number one, right? 14 A. Yes. 15 Q. And number two, indicate whether or not 16 he or she is willing to travel? 17 A. They also indicate their availability, so 18 whether they're willing to take work or not, so 19 there's a system where they can set how much work they 20 want to receive. 21 Q. Okay. But in terms of the 22 strategies/business models that KeyPoint has for how 23 its resources are going to be allocated and what cases 24 are going to be made available, am I correct that the 25 contractor investigators do not play a role in that? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 110 of 198 Page 53 1 ANGELA DEABLER 2 A. Correct. 3 Q. I can't read my own handwriting, but I 4 think another role you've played at KeyPoint is chief 5 operating officer of something and inspection, what 6 was that? 7 A. Clearance and inspection. 8 Q. Clearance and inspection. So what did 9 you do in that role? 10 A. I oversaw the daily operations of the OPM 11 program. 12 MR. KONECKY: I'm sorry, could you read 13 that back? 14 (The last answer was read back as 15 follows: "I oversaw the daily operations of the OPM 16 program.") 17 Q. (BY MR. KONECKY) How is that different 18 from what you do now? 19 A. Not much. 20 Q. You have more authority now? 21 A. Yes. 22 Q. Do you report to Eric Hess? 23 A. Yes. 24 Q. Anybody else? 25 A. No. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 111 of 198 Page 64 1 ANGELA DEABLER 2 obligations with the client in any respect? 3 A. No. 4 MS. HOGAN: Objection. Are you asking 5 about the contract investigators or the employee 6 investigators? You're changing it. 7 MR. KONECKY: Either. 8 MS. HOGAN: She's not answering about 9 employee investigators, Josh. 10 Q. (BY MR. KONECKY) All right. Let's start 11 again. Are the contract investigators ever part of 12 the negotiations that you have with respect to the 13 contractual obligations to KeyPoint's client? 14 A. No. 15 Q. Okay. Are the contract investigators 16 ever part of the process in terms of identifying areas 17 of feasibility with respect to meeting the contractual 18 obligations that KeyPoint has? 19 A. No. 20 Q. Are the contract investigators ever part 21 of the process of examining the contractual terms that 22 KeyPoint has as it applies to the day-by-day 23 operations? 24 A. No. 25 Q. Do the contract investigators make any TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 112 of 198 Page 65 1 ANGELA DEABLER 2 investment of either time or resources into the 3 process of developing KeyPoint's contractual relations 4 with its clients? 5 MS. HOGAN: Object to form. Vague. You 6 can go ahead and answer. 7 A. No. 8 Q. (BY MR. KONECKY) Is there any particular 9 type of investment that the contract investigators 10 make into either KeyPoint or the business that 11 KeyPoint undertakes? 12 MS. HOGAN: Object to form. You can 13 answer. 14 A. I don't understand what you mean by 15 "investment." 16 Q. (BY MR. KONECKY) Do contract 17 investigators invest money or resources into 18 equipment? 19 A. Yes. 20 Q. Which equipment? 21 A. Most would prefer to have a printer. 22 They would need paper, ink, a vehicle. 23 Q. Anything else? 24 A. They need notebooks to take notes, pens. 25 I mean, there's office supplies they need. They need TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 113 of 198 Page 66 1 ANGELA DEABLER 2 transportation to perform their duties. 3 Q. Like a vehicle? 4 A. Yes. They need money to pay for tolls 5 and parking. 6 Q. So transportation costs--7 A. Um-hum. 8 Q.--right, is one area? 9 A. Um-hum. 10 Q. You've got to say yes. 11 A. Yes. Sorry. 12 Q. And then costs for printer, paper, ink, 13 pens? 14 A. Yes. Yes, whatever they would need for a 15 home office to support their daily investigations. 16 Q. All right. Who provides--do they use 17 computers? 18 A. Yes. 19 Q. Who provides those? 20 A. KeyPoint does. 21 Q. And is there a particular software that 22 gets used on the computers? 23 A. Yes. 24 Q. And who provides that? 25 A. KeyPoint does. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 114 of 198 Page 73 1 ANGELA DEABLER 2 Q. What is--if you know, what is she 3 reviewing to make sure that the--KeyPoint is meeting 4 the requirements? 5 A. She actually reviews the contractual 6 language itself and then our policies and practices. 7 Q. KeyPoint's policies and practices? 8 A. Correct. 9 Q. To make sure they're consistent with the 10 contract language? 11 A. Yes. 12 Q. And do these--are these policies and 13 practices--policies and practices that apply to the 14 contract investigators? 15 A. Some may. 16 Q. Which ones? 17 A. You'd have to be more specific. We have 18 a lot of policies and practices, a lot of compliance. 19 Q. That apply to the contractors? 20 A. Yes. 21 Q. And am I correct that the policies and 22 practices and compliance that applies to the 23 investigator contractors is generally uniform across 24 KeyPoint? 25 MS. HOGAN: Object to form. You can TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 115 of 198 Page 74 1 ANGELA DEABLER 2 answer. 3 A. As it applies to the contract, yes. 4 Q. (BY MR. KONECKY) And as it applies to 5 the contractors, the investigators? 6 A. If it's a requirement in the contract, in 7 the handbook, yes, it would apply across KeyPoint. 8 Q. Uniformly? 9 A. Correct. 10 Q. And there are numerous such policies and 11 practices, right? 12 A. Correct. 13 Q. Does KeyPoint have any competitors? 14 A. Yes. 15 Q. Who are they? 16 A. CACI. 17 Q. What's that stand for? 18 A. I don't know. 19 Q. Who else? 20 A. I just know they don't want to be called 21 khaki (phonetical). That is our primary competitor on 22 the OPM space. We have other competitors in other 23 contracts. CSC. I don't know what that stands for. 24 Omni, MSM, ISN. 25 MS. HOGAN: A lot of acronyms. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 116 of 198 Page 83 1 ANGELA DEABLER 2 A. I can't speak that this is still in the 3 contract, but do you want me to speak to what is in 4 the solicitation and what I understand it to be? 5 Q. Yeah, why don't we start with that. 6 A. So the training itself is provided by 7 KeyPoint, but according to this, it needed to be 8 approved by Federal Investigative Services. 9 Q. Okay. So one of the requirements--or 10 minimum requirements for an investigator at KeyPoint 11 is they go through approved training that KeyPoint 12 provides? 13 A. For the investigator to work on the OPM 14 contract, they needed to go through OPM-approved 15 training that KeyPoint provides. 16 Q. Okay. And then in addition to that they 17 either needed four years of general experience or a 18 four-year course of study leading to a bachelor's 19 degree? 20 A. Correct. 21 Q. Any other requirements? 22 A. No. 23 Q. All right. And then the four years of 24 general experience, what is that? 25 A. It's not--this is as far as the TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 117 of 198 Page 89 1 ANGELA DEABLER 2 is this training that is along the lines of the 3 approved training that KeyPoint provides to 4 contractors? 5 A. Correct. 6 Q. Okay. Other than changes to the training 7 that KeyPoint provides to contractors, have there been 8 any changes to the minimum qualifications that 9 investigators of KeyPoint need to have that you're 10 aware of since March of 2012? 11 A. No. 12 Q. And to be clear, I'm talking about 13 investigators who are classified as independent 14 contractors. 15 A. Correct. No. 16 Q. And am I correct that there never have 17 been any degree requirements or particular educational 18 requirements for any investigators of KeyPoint who are 19 independent contractors that you are aware of? 20 A. Correct. 21 Q. And am I correct that other than the 22 training that KeyPoint provides, there hasn't been any 23 particular coursework or training that is required of 24 the investigators working for KeyPoint as independent 25 contractors? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 118 of 198 Page 101 1 ANGELA DEABLER 2 understand and assess and it's the same. 3 Q. Whether it's--regardless of who the 4 investigator is, the fields of assessment for that 5 investigator at KeyPoint are the same? 6 A. Correct. 7 Q. And what are those fields of assessment? 8 A. It's their daily activities in the field, 9 how they perform interviews, how they--everything 10 from how they dress, how they store their PII, are 11 they securing the government furnished equipment 12 appropriately. 13 Q. What else are the investigators assessed 14 on? 15 A. Do they return their PII appropriately, 16 do they daily--there's a daily tracking system. Do 17 they track their PII daily as they're supposed to, and 18 then do they meet the minimum standards of an 19 investigator. There's a minimum number of standards 20 that they have to meet of knowledge to be an 21 investigator. 22 Q. How many standards are there that they--23 that the investigators get assessed on? 24 A. Seventy-eight. 25 Q. Seventy-eight. What else do the TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 119 of 198 Page 102 1 ANGELA DEABLER 2 investigators get assessed on? 3 A. That's in general. And those are all 4 contractual requirements. 5 Q. Between KeyPoint and OPM? 6 A. Correct. 7 Q. Which then KeyPoint is responsible for 8 effectuating in the field? 9 A. Yes. 10 Q. With respect to all investigators? 11 A. Yes. 12 Q. Including contract investigators? 13 A. Yes. 14 Q. When you say return PII appropriately, 15 what does "appropriately" mean? 16 A. There's a time limit that they have to 17 return their case notes, so the notes that they create 18 while doing the investigation, there's a timeline that 19 they have to return those and they have to follow that 20 timeline. 21 Q. Are there particular procedures for how 22 it's returned? 23 A. Yes. 24 Q. And sealed? 25 A. Yes. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 120 of 198 Page 106 1 ANGELA DEABLER 2 Q. And so all KeyPoint investigators, 3 including those classified as independent contractors, 4 are subject to random audits? 5 A. Yes. 6 Q. And they're subject to internal 7 inspections of their work and the way they go about it 8 by KeyPoint staff? 9 A. Yes. 10 Q. And also subject to inspection by 11 KeyPoint's clients? 12 A. Yes. 13 Q. On the next page, Page 18 of 133, 14 Subsection (c), there's a reference to a mentoring 15 program. Does KeyPoint have a mentoring program? 16 A. No. 17 Q. Also on Page 18 it says "Oversight of 18 Investigators and Investigative Technicians." What 19 are investigative technicians? 20 A. They typically complete record checks. 21 Q. Are they employees or independent 22 contractors or both? 23 A. They're employees. 24 Q. And the investigators are--can be 25 either employees or independent contractors? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 121 of 198 Page 108 1 ANGELA DEABLER 2 A. I don't understand what you mean by "the 3 details of the work." 4 Q. (BY MR. KONECKY) Well, details such as 5 timelines, the way in which notes are taken, the way 6 in which reports are drafted, the way in which 7 interviews are conducted, is--does KeyPoint maintain 8 oversight over the independent contractor 9 investigators in terms of how they are performing 10 those core tasks? 11 MS. HOGAN: Object to form. You can 12 answer. 13 A. KeyPoint remain--KeyPoint has oversight 14 as they apply to the requirements in the contract in 15 the investigator's handbook. So it is on KeyPoint to 16 ensure that they are complying with that, yes. 17 Q. (BY MR. KONECKY) So any requirement that 18 is in the investigator's handbook, KeyPoint has 19 responsibility in terms of overseeing the 20 investigators who are independent contractors to 21 ensure that they are complying with the details of 22 those requirements? 23 A. Yes. 24 Q. And that's true for all of the 25 investigators who are independent contractors? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 122 of 198 Page 109 1 ANGELA DEABLER 2 A. Yes. 3 MS. HOGAN: Object to--sorry. You've 4 already answered, but object to form. To the extent 5 you know. 6 Q. (BY MR. KONECKY) What are the different 7 mechanisms and strategies that KeyPoint has to ensure 8 that it remains in compliance with its contractual 9 obligations with its client? 10 MS. HOGAN: Object to form. You can 11 answer to the extent you know. 12 A. We have our internal integrity assurance 13 and contract compliance teams' reports that we 14 monitor. 15 Q. (BY MR. KONECKY) What do you mean 16 reports that you monitor? 17 A. So a number of our--we have systems 18 that are set up to support some of the compliance, and 19 these reports report out, you know, whether an 20 investigator is being compliant or not. 21 Q. Does that apply to investigators who are 22 independent contractors? 23 A. Yes. 24 Q. What kind of reports? 25 A. So we would be able to pull a report that TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 123 of 198 Page 110 1 ANGELA DEABLER 2 tells us if an independent contractor is late on 3 sending in their notes, if they--if the independent 4 contractor has lacked in--or falling lax in checking 5 in and out their daily PII. 6 Q. What else do you track for the 7 independent contractors? 8 A. We rely on the independent contractors to 9 report to us if they have lost anything, and so if 10 they lost PII or credentials or a laptop, and that's 11 tracked. 12 Q. Anything else that you track? 13 A. No. 14 Q. Do you track complaints with respect to 15 their investigations? 16 A. We do. Yes, we do track complaints. 17 Q. Do you track quality of their 18 investigations at all? 19 A. We do and--yes, we do to understand, 20 you know, whether their quality is going up and down. 21 Q. So in what way do you track the quality 22 of the work of the independent contractor 23 investigators? 24 A. We just understand whether the work has 25 been returned back to them for additional rework. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 124 of 198 Page 116 1 ANGELA DEABLER 2 earlier that you said somebody might receive a 3 security infraction or a violation? 4 A. Um-hum. 5 Q. Are those the same thing or was there--6 A. Basically, yes. 7 Q. Is there any distinction between those 8 two? 9 A. No. 10 Q. So you're just talking about a notice 11 that folks receive along the lines that you just 12 described? 13 A. Correct. 14 Q. Any other corrective action measures? 15 A. Termination. 16 Q. And when does that occur? 17 A. When the offense calls for it. When it's 18 significant enough or there's been enough incidences 19 that it's in the best interest to not have that person 20 work the work anymore. 21 Q. And who makes that determination? 22 A. It depends on the situation and who's 23 been involved in it. It could come from OPM. They 24 could remove their clearance. It could come from 25 integrity assurance in conjunction with the liaison. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 125 of 198 Page 117 1 ANGELA DEABLER 2 Q. KeyPoint integrity assurance? 3 A. Correct. Or security in conjunction with 4 the liaison. 5 Q. So if an investigator who is an 6 independent contractor violates policy enough times 7 where it becomes a concern, then KeyPoint may 8 terminate that--the work relationship with that 9 contractor? 10 A. Correct. 11 Q. And has that actually occurred? 12 A. Yes. 13 Q. And depending on the violation even--if 14 the violation is serious enough, even one instance of 15 not complying with the policy or procedure can lead to 16 the termination of an investigator? 17 A. Yes. 18 Q. Are you familiar with the compensation or 19 fee structure for paying investigators who are 20 independent contractors? 21 A. Yes. 22 Q. And what is that? 23 A. The contractor fee schedule? 24 Q. Yeah. There is a fee schedule? 25 A. Yes. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 126 of 198 Page 119 1 ANGELA DEABLER 2 Q. 2012? 3 A. (Deponent nodded head up and down.) 4 Q. Was there any negotiation with--with 5 the investigators when setting the fee schedule? 6 A. Not setting the base fee schedule, no. 7 Q. So from time to time an investigator can 8 get paid more than what the base fee schedule says? 9 A. Yes. The contract investigators can. 10 Q. Okay. And are there parameters in terms 11 of what the premiums are that a contractor can 12 receive? 13 A. It's a case-by-case basis, investigator 14 by investigator. 15 Q. Are there different levels of authority 16 that people have? 17 A. Yes. 18 Q. Okay. So what are the levels of 19 authority for adjusting pay for a contractor? 20 MS. HOGAN: I just want to clarify again. 21 This is on the OPM contract you're asking? 22 MR. KONECKY: Correct. 23 MS. HOGAN: Thank you. 24 A. So liaisons typically can approve, I 25 believe it's--I'm not sure, but it's the lower level TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 127 of 198 Page 120 1 ANGELA DEABLER 2 incentives to the contractors or premiums, usually 3 around 25 percent or below. Anything above that would 4 require a second level approval. 5 Q. (BY MR. KONECKY) Are there any 6 guidelines that are provided in terms of what warrants 7 an incentive up to 25 percent? 8 A. It's a case-by-case basis. It depends on 9 the contractor and where they're going, what they're 10 doing, and why we're requesting it to be done. 11 Q. Does KeyPoint keep metrics on this? 12 A. We keep--we understand what we've paid 13 a premium on. 14 Q. What do you mean by that? 15 A. That we track what we've paid a base fee 16 and what we've paid in addition to that base fee. 17 Q. But in a--you track it in a way where 18 you can see those figures--figures or tendencies in 19 the aggregate? 20 A. I don't understand what you mean. 21 Q. Do you keep metrics or can you run a 22 report showing how many instances in which you paid on 23 at the base level versus above the base level? 24 A. Yes. 25 Q. And how many instances you paid above or TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 128 of 198 Page 121 1 ANGELA DEABLER 2 below 25 percent of the base level? 3 A. Yes. We can review that information, 4 yes. 5 Q. Can the investigators who are independent 6 contractors control their profit and loss? 7 MS. HOGAN: Object to form. Calls for 8 speculation. You can answer. 9 A. Yes. 10 Q. (BY MR. KONECKY) How? 11 A. They can negotiate their rates above the 12 base. They can determine their own efficiency. They 13 can select their own work. 14 Q. From what's made available? 15 A. Yes. And they can determine, you know--16 if a contractor wants to drive a Mercedes every day, 17 that's a little bit different than someone who is 18 driving a Ford Focus. So they can control their 19 expenses. 20 Q. In terms of what car they drive? 21 A. Yes. 22 Q. Any other significant expenses that they 23 can control in a significant way other than the make 24 and model of their car? 25 MS. HOGAN: Object to form. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 129 of 198 Page 122 1 ANGELA DEABLER 2 Argumentative. You can go ahead and answer. 3 A. They can control their efficiency and how 4 they're working their work. 5 Q. (BY MR. KONECKY) Okay. Let me go back 6 to controlling their expenses. So you gave the 7 example of somebody could drive a Mercedes versus a 8 Ford. 9 A. Yeah. 10 Q. Any other particular expenses where there 11 is a significant or material difference in costs that 12 an investigator for KeyPoint might incur? 13 MS. HOGAN: Object to form. Calls for 14 speculation. You can answer. 15 A. The investigators can determine whether 16 they want to break their cases electronically versus 17 print everything. Paper and ink is not cheap, and 18 this goes to the efficiency. The contractors are 19 responsible to pay for all of their tolls and parking. 20 If they want to go downtown and complete one interview 21 and pay $25 for a parking spot, they may, or they can 22 go downtown and pay $25 for a parking spot and get ten 23 interviews done. 24 Q. (BY MR. KONECKY) Okay. Any other ways 25 in which they can control their profit and loss? TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 130 of 198 Page 123 1 ANGELA DEABLER 2 A. They can select their work. They can 3 make sure that the work is zoned efficiently for them. 4 Q. Anything else? 5 A. They can volunteer to travel if they 6 choose to and they control their costs when they 7 travel, and they also control the amount of work that 8 they're doing. 9 Q. On the travel, does KeyPoint have a 10 process in place to pay a premium to cover travel? 11 A. So, again, it depends on the work, where 12 they're going, but we do have a process for the 13 negotiation and the approval of the travel. 14 Q. So what's the process? 15 A. So the contractor volunteers to travel, 16 volunteers for a minimum of work to get done, and then 17 we have the approval of it and they go. They have to 18 book their own airfare, hotel. 19 Q. But the approval is essentially a premium 20 to cover travel costs? 21 MS. HOGAN: Object to form. You can 22 answer. 23 A. Yes. 24 Q. (BY MR. KONECKY) Okay. Anything else? 25 A. Not that I can think of at this time. TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 131 of 198 Page 124 1 ANGELA DEABLER 2 Q. So I have for ways in which the 3 investigator contractors can control their profit and 4 loss is they can, one, negotiate rates above the base 5 fee schedule, right? 6 A. Yes. 7 Q. And that happens maybe 10 or 15 percent 8 of the time? 9 MS. HOGAN: Object to form. 10 Mischaracterizes her earlier testimony. You can 11 answer. 12 A. It happens often. 13 Q. (BY MR. KONECKY) Well, do you--I think 14 Ms. Boaz testified previously that that happens about 15 10 or 15 percent of the time. Is that about right? 16 A. I don't know what Ms. Boaz testified to 17 and I don't know the exact percent, but I think it 18 happens I would say at least that often. 19 Q. Do you have any reason to think that it 20 happens more than 15 percent of the time? 21 A. I do not at this time. 22 Q. Either way, you'd agree that it happens a 23 minority of the time? 24 A. Yes. 25 MS. HOGAN: Object to form. You can TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 132 of 198 Page 125 1 ANGELA DEABLER 2 answer. 3 Q. (BY MR. KONECKY) And within that 4 minority of times where somebody requests and then 5 gets approval from KeyPoint for something above the 6 base rate, do you know how often it's actually more 7 than 25 percent above the base rate? 8 A. I do not. 9 Q. I would assume that would be an even 10 smaller percentage; is that right? 11 A. I would assume so. 12 Q. Less than 5 percent? 13 MS. HOGAN: Object to form. You can 14 answer. 15 A. I don't know the percentage. 16 Q. (BY MR. KONECKY) All right. Then they 17 can select work from what's made available by 18 KeyPoint, right? 19 A. Um-hum. 20 Q. Yes? 21 A. Yes. 22 Q. That would include volunteering to select 23 work that would require travel, right? 24 A. Correct. 25 Q. And within that they can--if KeyPoint TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 133 of 198 Page 126 1 ANGELA DEABLER 2 approves it, depending on the circumstances, obtain 3 some kind of premium that would cover their travel 4 costs? 5 A. Correct. 6 Q. And then they could be more or less 7 efficient in terms of the way they work? 8 A. Correct. 9 Q. Like any worker? 10 MS. HOGAN: Object to form. 11 Argumentative. You can answer. 12 Q. (BY MR. KONECKY) Right? 13 A. Correct. And they can control the volume 14 of work that they do. 15 Q. In terms of how many assignments they 16 select from what's made available? 17 A. Correct. 18 Q. And that's--having gone through that 19 now, is there any other way that you're aware of in 20 which the investigators who are contractors can 21 control their profit and loss? 22 MS. HOGAN: Object to form. Calls for 23 speculation. You can answer. 24 A. Not to my knowledge at this time. 25 Q. (BY MR. KONECKY) And your testimony and TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 134 of 198 Page 134 1 ANGELA DEABLER 2 A. They may choose to do those. 3 Q. The only requirement for them is that 4 they follow OPM's contract requirements; is that 5 correct? 6 A. Correct. 7 MS. HOGAN: Those are all the questions I 8 have. Thank you. 9 MR. KONECKY: A couple more. 10 EXAMINATION 11 BY MR. KONECKY: 12 Q. So to your knowledge has anybody forced 13 either you or anybody else from KeyPoint to have a 14 business relationship with OPM? 15 MS. HOGAN: Object to form. Relevance. 16 You can go ahead and answer. 17 A. No. 18 Q. (BY MR. KONECKY) So KeyPoint has decided 19 as a company to have a contract with OPM, right? 20 A. Correct. 21 Q. And KeyPoint was free to do that, right? 22 A. Yes. 23 Q. And presumably KeyPoint is doing that to 24 make a profit, right? 25 MS. HOGAN: Object to form. Again, she's TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 135 of 198 Page 135 1 ANGELA DEABLER 2 not the 30(b)(6) deponent. You can answer to the 3 extent you have personal knowledge. 4 A. Yes. 5 Q. (BY MR. KONECKY) And you do make a 6 profit from that contract, right? 7 MS. HOGAN: Same objection. 8 A. Yes. 9 Q. (BY MR. KONECKY) And as part of engaging 10 in that contract and making a profit from that 11 contract, what you have stated as a company is that 12 you have agreed to abide by certain terms in that 13 contract, right? 14 MS. HOGAN: Object to form. She's not a 15 30(b)(6) deponent. You can answer to the extent you 16 have personal knowledge. 17 A. Yes. 18 Q. (BY MR. KONECKY) And those terms, even 19 though they are not necessarily the exact same 20 language as what's in here, Exhibit 1, the service 21 solicitation, are, in effect, covering the same 22 subjects that are in here, correct? 23 A. Yes. 24 Q. Okay. And there are an array of 25 mandatory terms that you've agreed to with respect to TSG Reporting-Worldwide (877) 702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 136 of 198 Page 136 1 ANGELA DEABLER 2 the details and the manner and means by which your 3 investigators, including the independent contractor 4 investigators, are performing their work, right? 5 A. Yes. 6 Q. And that applies to all of the 7 investigators, including all of the independent 8 contractor investigators, right? 9 A. Yes. 10 Q. And you as a company have made your own 11 decision freely to agree with your client that you 12 would take oversight and monitoring responsibility 13 over your--over all of your investigators, including 14 the independent contractors, to ensure that they 15 comply with those detailed policies and procedures, 16 right? 17 MS. HOGAN: Same objection. Ms. Deabler 18 is not testifying as a 30(b)(6). You can keep on 19 asking these 30(b)(6) questions if you want, Josh, 20 but, again, her testimony is limited to her personal 21 knowledge. Go ahead and answer. 22 A. Yes. 23 MR. KONECKY: Okay. That's it. 24 MS. HOGAN: One last question for you, 25 and then he might have another one. TSG Reporting-Worldwide (877) 702-9580 EXHIBIT F Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 138 of 198 Page 1 1 R. McABEE 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT COURT OF COLORADO _____________________________________________________ 4 RICHARD SMITH, individually and on 5 behalf of all others similarly situated, 6 Plaintiffs, COURT USE ONLY 7 v. Case No. 15-CV-00865-REB-KLM 8 KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, 9 Defendant. 10 _____________________ 11 12 DEPOSITION OF RUSSELL McABEE 13 Denver, Colorado 14 Wednesday, March 30, 2016 15 16 17 18 19 20 21 22 23 Reported by: 24 DAWN K. LARSON, MBA, RDR, CRR, CRC 25 JOB NO. 105357 TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 139 of 198 Page 42 1 R. McABEE 2 need to follow provisions of the Investigator's 3 Handbook? 4 A. No. 5 Q. Okay. So as I understand it, then, the 6 Investigator's Handbook applies--or at least 7 portions of it apply to work being performed by 8 KeyPoint's investigators on KeyPoint's contract with 9 CBP and KeyPoint's contract with ICE, but not on 10 KeyPoint's other contracts on the DHS space; is that 11 correct? 12 A. That is correct. 13 Q. Okay. Of KeyPoint's work in the DHS 14 space, what percentage of that work currently is on 15 the CBP and/or ICE contract? 16 MS. KALK: You may answer this. 17 Are you just talking about the DHS side 18 now? 19 MR. KONECKY: I'm talking about the DHS. 20 Q. (By Mr. Konecky) So if we look at all 21 the DHS work, how much of that work is going to be 22 either on the CBP contract or the ICE contract? 23 MS. KALK: Currently? You mean 24 currently? 25 MR. KONECKY: Currently. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 140 of 198 Page 43 1 R. McABEE 2 MS. KALK: Okay. 3 A. Currently I would say approximately 4 80 percent of the work under the DHS umbrella is 5 represented by the CBP and ICE contracts. 6 Q. (By Mr. Konecky) Okay. What about over 7 the past, let's say, since 2000--well, since you've 8 been there in August--August 2009--August 2009, 9 has that number also been about 80 percent, or has it 10 been different over that time period? 2009 to 11 present. 12 A. It has been different. 13 Q. Okay. How has it changed over the past 14 several years from August 2009 to present in terms of 15 the percentage of work under the DHS umbrella that is 16 going to either CBP or ICE contracts? 17 MS. KALK: Object to the relevance for 18 anything prior to our statute of limitations time 19 period. 20 But you can answer. 21 A. During that time period we did not have 22 a contract with ICE--part of that time period, 23 pardon me. And also during that same time period, 24 there was an eight-month period in which we did not 25 receive any work from CBP. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 141 of 198 Page 46 1 R. McABEE 2 A. I do. They failed to meet timeliness 3 and quality standards. 4 MS. KALK: Josh, we've been going for 5 about an hour and 15 minutes. Can we take a short 6 break? 7 MR. KONECKY: Yeah, let me just take a 8 couple quick wrap-up questions. 9 MS. KALK: Okay. 10 Q. As part of KeyPoint's contract with ICE, 11 do you agree to maintain certain timeliness and 12 quality standards? 13 A. Yes. 14 Q. And do you need to maintain those 15 timeliness and quality standards in order to keep your 16 contract with ICE secure? 17 MS. KALK: Object to the extent that 18 calls for a legal analysis of what the contract says. 19 You can answer, if you know. 20 A. I would say, yes, those are important 21 factors. 22 Q. (By Mr. Konecky) Does that trickle down 23 to your investigators in that, in order to maintain 24 your work from ICE, you need to ensure that your 25 investigators are performing work such that you can TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 142 of 198 Page 47 1 R. McABEE 2 meet, as a company, the various timeliness and quality 3 standards that you have agreed to provide to your 4 client? 5 MS. KALK: I'm going to object to the 6 extent it mischaracterizes testimony, it extends the 7 scope beyond contract investigators, and, again, calls 8 for a legal conclusion as to what the contract 9 requires. 10 Q. (By Mr. Konecky) As applicable to the 11 contract investigators. 12 MS. KALK: Putting that one aside, I 13 stand by the legal conclusion, and I think it 14 misstates your prior testimony. 15 You can answer, if you're able. 16 A. Yes. 17 Q. (By Mr. Konecky) And is that true for 18 your work for the other agency clients under the DHS 19 umbrella, that is, that in order to maintain work for 20 those clients--whether it be CBP, FRB, ICE--that 21 you need to, as a company, make sure that your 22 investigators who are classified as independent 23 contractors are performing their work so that, again, 24 as a company, KeyPoint can deliver its work to its 25 clients in accordance with the timeliness and quality TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 143 of 198 Page 48 1 R. McABEE 2 standards that KeyPoint has agreed to? 3 MS. KALK: Again, I'm going to object to 4 the extent now you're asking about multiple contracts; 5 it's compound. It calls for a legal conclusion as to 6 what the contract requires. 7 You can answer, if you understand or are 8 able. 9 A. Each contract has different standards 10 and timelines, and I would say the same is true for 11 each and every task that is performed. So in a 12 broader sense, the answer, again, would be yes. 13 MS. KALK: We're going to take that 14 break now. We're kind of moving into new topics. 15 MR. KONECKY: Well, we're--16 MS. KALK: We're going to take a break 17 now. 18 MR. KONECKY: Let me ask one more 19 question. 20 MS. KALK: No, we're taking a break now. 21 I've asked three times. We've been going for an hour 22 and five minutes. We're taking a break. You can pick 23 up right here when we come back in five minutes. 24 Off the record. 25 MR. KONECKY: All right. Well, the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 144 of 198 Page 72 1 R. McABEE 2 create the tasks and then they offer. 3 Q. Okay. So it's employees of KeyPoint in 4 the operations support branch who are scoping the 5 work, creating the individual task for each 6 investigation and then looking at the task overall to 7 determine how to group them or divide them in terms of 8 the way they're being presented or offered to the 9 investigators; am I correct? 10 A. In terms of contract investigators, yes. 11 Q. Okay. That's generally true for how 12 work gets to any of the contract investigators in the 13 DHS space; right? 14 A. In general, yes. 15 Q. Okay. And then these same folks who 16 were doing the task creation and scoping are also the 17 ones that are offering the work to the investigators? 18 MS. KALK: Again, you're talking about 19 contract investigators? 20 MR. KONECKY: Yes. 21 MS. KALK: Okay. 22 A. Yes. 23 Q. (By Mr. Konecky) Okay. And how is the 24 work offered? Is it offered in writing or on a 25 dashboard or by phone call or something else? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 145 of 198 Page 74 1 R. McABEE 2 Q. It's an automated process? 3 A. Yes, but it's not--that process is not 4 put into--it's not activated until that 5 scoper/assigner has determined exactly what is going 6 to be offered so all of the information can be 7 communicated at once. 8 Q. So does the person who's doing the 9 scoping and task creation and deciding that it's time 10 to offer or what to offer, select the investigator who 11 the work is being offered to? 12 A. They are--13 Q. Okay. 14 A.--based simply on geography. 15 Q. So they input the name of the 16 investigator that the work is being offered to and 17 then the system generates the e-mail, or something 18 else? 19 A. No. When they identify a task or group 20 of tasks in a specific area, the system will identify 21 a list of investigators within a specific range of 22 that area and if an investigator has identified 23 themselves as unavailable for any reason, then they 24 would not show up as a viable person to offer it to. 25 So it basically gives them an idea of who is available TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 146 of 198 Page 75 1 R. McABEE 2 in the area, and it also identifies the workload that 3 they are currently carrying in relation to the 4 workload that they identified they could handle before 5 making the decision to offer a task to any specific 6 person. 7 Q. And--but the individual--the 8 KeyPoint employee is looking at this information, and 9 then deciding who to offer the task to? 10 A. Correct. 11 Q. Does the KeyPoint employee who is making 12 that decision in terms of who to offer the task to 13 offer it to one person at a time, or can he or she 14 offer it to multiple people at the same time? 15 A. It is offered to one at a time. 16 Q. And am I correct--tell me if I'm not. 17 Am I correct that the KeyPoint employee from the 18 operations support branch is making the determination 19 based on the information presented to him or her 20 through the case management system as to who to offer 21 the task or tasks to? 22 A. That is correct. 23 Q. Then the investigator--does the 24 investigator have a certain amount of time to decide 25 whether or not to take or not take the task? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 147 of 198 Page 76 1 R. McABEE 2 MS. KALK: Again, we're talking about 3 contract investigators here. 4 So with that clarification, go ahead. 5 THE DEPONENT: Right. 6 A. Our general rule is, if it has not been 7 accepted within 48 hours--pardon me, accepted or 8 declined within 48 hours, then we will offer it to 9 another investigator at that time--contract 10 investigator, pardon me. 11 Q. (By Mr. Konecky) And is the practice 12 that when you offer--in that situation, when you're 13 offering the task or tasks to another investigator, 14 that the offer is no longer available to the first 15 investigator, or now multiple investigators are able 16 to select the task? 17 A. At that point the offer would no longer 18 be available to the original investigator. 19 Q. Okay. Are there ever situations where a 20 task that is offered to an investigator classified as 21 an independent contractor was previously provided to 22 or allocated to an investigator who is an employee? 23 MS. KALK: Object to the extent that is 24 beyond the scope of discovery. I direct the witness 25 not to answer. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 148 of 198 Page 80 1 R. McABEE 2 when it will--how long somebody can wait before 3 KeyPoint will present it to another investigator? 4 MS. KALK: I'm sorry; I lost the train 5 on that. 6 Could you read it back for me, please. 7 (The requested portion was read.) 8 MS. KALK: I'll object to the extent 9 you're using "investigator" generically. 10 You can answer as to contract 11 investigators. 12 THE DEPONENT: Okay. 13 A. If we are approaching the 48-hour 14 deadline, there is definitely the possibility of an 15 administrative assistant taking a more proactive 16 approach to identifying another contract investigator 17 that may be willing to accept the work if the previous 18 offer is not accepted or officially declined once that 19 48-hour period ends by the initial investigator was 20 offered--contract investigator, pardon me. 21 Q. (By Mr. Konecky) Are you familiar with 22 the phrase "case manager/contract liaison"? 23 A. I am. 24 Q. What is that? What does that refer to? 25 A. That refers to a group of my employees. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 149 of 198 Page 81 1 R. McABEE 2 Q. And what do they do? 3 A. They take ownership of the case once 4 we--that's the very next step, actually. Once the 5 tasks are offered, the ownership of the case more or 6 less moves to the case manager/contractor liaison in 7 order for them to manage the case through to the end. 8 Q. Okay. You may have just answered the 9 following question, which is, in terms of making phone 10 calls to see if contract-specific investigators can 11 take tasks, is that something that the case 12 manager/contract liaisons ever do, or is that 13 something that just the employees of the operations 14 support branch do or something else? 15 MS. KALK: Again, I'll object to the 16 scope. 17 You can answer as to contract 18 investigators. 19 A. The duty of offering the tasks as well 20 as making the phone calls, that is within the 21 operations support branch. 22 Q. (By Mr. Konecky) So the case 23 manager/contractor liaisons do not perform that 24 function? 25 A. As a rule, no. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 150 of 198 Page 84 1 R. McABEE 2 narrative section where they can--in free form, they 3 can provide the details regarding what the 4 discussion--what discussion took place, what 5 information was obtained regarding the subject. 6 Q. So is this information that's entered in 7 part of the Report of Investigation, or is that a 8 separate document? 9 A. It later becomes part of the Report of 10 Investigation. 11 Q. Okay. So the investigator, contract 12 investigator, is entering information into the case 13 management system as he or she goes? 14 A. No. No. What happens is when a task is 15 being completed in the field, you're not really 16 supposed to be sitting here with a laptop typing 17 everything in as you go. The requirement is that you 18 take notes--just as the two of you are--and those 19 become documents related to the investigation. 20 Q. So there's handwritten notes? 21 A. Yes. 22 Q. And those handwritten notes, there's 23 protocols in the Investigator's Handbook as to how to 24 keep those handwritten notes? 25 A. There are. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 151 of 198 Page 86 1 R. McABEE 2 THE DEPONENT: Here we go. 3 MS. KALK: It's not redacted, so have at 4 it. 5 THE DEPONENT: Okay. 6 A. So in response to your question, yes, 7 but, again, only for the CBP and ICE contracts. 8 Q. (By Mr. Konecky) Those are the ones 9 that use the Investigator's Handbook? 10 A. Correct. 11 Q. And currently is about 80 percent of the 12 work on the DHS side of KeyPoint? 13 A. Correct. 14 Q. Okay. So what, if anything, is the 15 KeyPoint case manager/contract liaison doing with 16 respect to the investigations, as the investigator who 17 is classified as an independent contractor, is 18 performing the work and inputting the work into the 19 case management system? 20 A. I'm sorry; that was a really long 21 question. 22 MS. KALK: Could you read it back, 23 please. 24 (The requested portion was read.) 25 MS. KALK: I'll object to form. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 152 of 198 Page 117 1 R. McABEE 2 contract--independent contractors do; right? 3 A. For which contracts? 4 Q. I'm just talking about the DHS program. 5 A. Again, the answer is no. What we've 6 been talking about for a while here is specific to CBP 7 and ICE. 8 Q. With respect to the Investigator's 9 Handbook? 10 A. The titles that we have been using as 11 far as district manager and regional manager are 12 specific to the CBP contract and ICE contracts only. 13 Q. Okay. Let me go back. 14 With respect to the CBP and ICE 15 contracts--first of all, that is currently 16 80 percent of the work on the DHS side; right? 17 A. That is still correct. 18 Q. Second, with respect to any work being 19 done on those contracts, am I correct that case 20 manager/contract liaison reviews each individual task 21 to ensure that it is being done and information has 22 been entered in conformity with policies and 23 procedures in the contracts that KeyPoint has with the 24 clients as well as in the Investigator's Handbook? 25 A. Correct. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 153 of 198 Page 118 1 R. McABEE 2 Q. Okay. That task-by-task review happens 3 for every case performed by the KeyPoint investigator 4 who is an independent contractor on either KeyPoint's 5 contract with ICE or KeyPoint's contract with CBP; 6 right? 7 A. That is correct. 8 Q. Okay. And then for every investigation 9 that an independent contractor investigator of 10 KeyPoint performs on one of those two contracts, am I 11 also correct that there's another layer of review that 12 occurs also by the case manager/contract liaison of 13 KeyPoint which happens after all of the tasks have 14 been compiled together into one document? 15 A. That is correct. 16 Q. And am I also correct that for every 17 investigation being performed by an investigator who 18 is an independent contractor of KeyPoint that there is 19 still another layer of review after that performed by 20 a district manager and/or regional manager of KeyPoint 21 of the Report of Investigation before it goes on to 22 the client? 23 A. For CBP and ICE, that is correct. 24 Q. And at any stage of the process if 25 either the case manager/contract liaison or the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 154 of 198 Page 119 1 R. McABEE 2 district manager or the regional manager identify a 3 discrepancy between what the investigator, who is an 4 independent contractor, did and what the protocols, 5 procedures, and policies that are set forth in 6 KeyPoint's contracts and the Investigator's Handbook 7 say, then it can be sent back to the investigator, who 8 is an independent contractor of KeyPoint, to correct 9 the issue and/or perform additional work; is that 10 correct? 11 MS. KALK: I'm sorry; can you read that 12 one back. 13 (The requested portion was read.) 14 MS. KALK: I'm going to object to the 15 extent that calls for a legal conclusion as to the 16 contractual requirement. And it's compound because 17 you asked him again about multiple contracts. 18 You can answer if you're able. 19 A. Again, limiting the answer being--the 20 answer is yes for CBP and ICE. 21 Q. (By Mr. Konecky) Got it. Okay. 22 Now, with respect to KeyPoint's other 23 clients on the DHS--under the DHS umbrella for which 24 investigator or independent contractors of KeyPoint 25 may work, what is the difference or differences in TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 155 of 198 Page 120 1 R. McABEE 2 that process? 3 A. The process is the same. Where it 4 varies is the titles of the individuals that are 5 involved. 6 Q. And how do the titles vary? 7 A. On the commercial contracts, you have a 8 program manager and an assistant program manager. 9 Q. What are the commercial contracts? 10 A. Those I'm referring to FRB, GEO, and 11 NOPD. 12 Q. Why are they called "commercial 13 contracts"? 14 A. Because they are not Government 15 agencies. 16 Q. Got it. 17 And the titles of the individuals 18 overseeing that work are the program managers and the 19 assistant program managers, instead of case 20 manager/contract liaisons? 21 A. No. The commercial contracts also have 22 case manager/contract liaison. 23 Q. Okay. So those commercial contracts 24 have case manager/contract liaisons doing the task and 25 report reviews in the same way that those individuals TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 156 of 198 Page 121 1 R. McABEE 2 do the reviews for the ICE and CBP contract work; 3 right? 4 A. The process itself is the same, but, of 5 course, the requirements that must be met vary per the 6 contract. 7 Q. Right. But it's the case 8 manager/contract liaison who are doing those 9 individual task reviews as well as the Report of 10 Investigation review that happens after the individual 11 task reviews? 12 A. Correct. 13 Q. And then am I understanding that instead 14 of having a district manager or regional manager do 15 the review after that, that you have a program manager 16 or assistant program manager do that review? 17 A. That's correct. 18 Q. Okay. Any other differences between how 19 the work under the commercial contracts at KeyPoint 20 has with FRB, GEO, New Orleans Police Department work 21 as opposed to the work under the KeyPoint contract 22 with CBP and ICE? 23 A. There are no further differences between 24 the processes. 25 MS. KALK: Do you have a lot left? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 157 of 198 Page 155 1 R. McABEE 2 Q. Do you know what resources, if any, the 3 investigators of KeyPoint independent contractors 4 invest into either KeyPoint's business or any other 5 business? 6 MS. KALK: Can I ask you to read that 7 back? 8 (The requested portion was read.) 9 MS. KALK: Object to foundation. 10 You can answer, if you're able. 11 A. Other than their specific skill set, we 12 provide--pardon me. Other than their specific skill 13 set and an Internet connection, we provide everything 14 else they need to complete--to receive and complete 15 their tasks. 16 Q. (By Mr. Konecky) Do you know if there 17 are any ways in which the investigators of KeyPoint 18 who are classified as independent contractors can 19 increase their profits or losses financially when 20 working for KeyPoint? 21 MS. KALK: I'm going to object to the 22 extent you're asking him to give you a legal 23 conclusion, and it's beyond the scope of what he would 24 personally know as to each contract investigator. 25 If you're able to, you can try to TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 158 of 198 Page 160 1 R. McABEE 2 as an independent contractor. 3 Q. (By Mr. Konecky) In terms of your work 4 as either a deputy program director, program director, 5 or senior vice president and program director at 6 KeyPoint since 2009 to present, have you ever become 7 aware of any particular way in which an investigator 8 who's an independent contractor has been able to 9 control their losses, financial or otherwise? 10 MS. KALK: Same objection. I'll add 11 "hearsay" to the list. 12 You can answer. 13 A. No, I have not been made aware of 14 anything specific. 15 Q. (By Mr. Konecky) You have approximately 16 420 contract investigators working on the DHS side 17 currently? 18 A. That's correct. 19 Q. Of those 420, do you know approximately 20 how many have been with KeyPoint for a year or longer? 21 A. I do not. 22 Q. Do you know how long--is there an 23 expectation for how long independent contractors of 24 KeyPoint are going to maintain their work relationship 25 with KeyPoint? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 159 of 198 Page 163 1 R. McABEE 2 to foundation. 3 You can answer. 4 A. Right. As far as the DHS contracts are 5 concerned, in general, no, that does not happen. 6 However, there are always exceptions. 7 Q. (By Mr. Konecky) As a general matter on 8 any given investigation, it's going to be--strike 9 that. 10 As a general matter, am I correct that 11 for any investigation that KeyPoint is doing for one 12 of its clients, KeyPoint is going to utilize its own 13 investigators to perform that investigation? 14 MS. KALK: Again, you can answer as to 15 contract investigators. 16 A. Yes, as a general rule. But to further 17 clarify, when we're talking about an independent 18 contractor, although they may be supporting KeyPoint, 19 they can also support any other company that has that 20 contract. 21 Q. (By Mr. Konecky) Okay. My question, 22 though, is focused on KeyPoint--the work that 23 KeyPoint provides. 24 A. Okay. 25 Q. And as I'm understanding it, KeyPoint TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 160 of 198 Page 164 1 R. McABEE 2 gets an investigation from one of KeyPoint's clients; 3 right? 4 A. Yes. 5 Q. And then KeyPoint divides that 6 investigation into various tasks; right? 7 A. Correct. 8 Q. And then KeyPoint provides its 9 independent contractor investigations across the 10 country--investigators across the country the 11 opportunity to work on those tasks? 12 A. Correct. The opportunity is offered. 13 Q. Right. And as a general rule, an 14 investigator who is an independent contractor of 15 KeyPoint is not working on an entire investigation but 16 is working on discrete tasks within a broader 17 investigation? 18 A. That's correct. 19 Q. And also as a general rule, the broader 20 investigation is being handled by KeyPoint and 21 investigators of KeyPoint in the field? 22 A. Correct. 23 Q. Okay. And as a general matter, it's not 24 the practice for KeyPoint to just say to an 25 independent contract investigator, "Here is an TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 161 of 198 Page 165 1 R. McABEE 2 investigation. You decide who else is going to work 3 on it." That's not the way it works; right? 4 A. That is not the way it works at all. 5 Q. Okay. How many different 6 investigators--what's the range of the number of 7 different investigators that will be working on a 8 given investigation? 9 A. As previously stated, it's rare. There 10 could be one investigator. There could be upwards of 11 15 or 20. 12 Q. The one is rare? 13 A. It's very rare. 14 Q. Okay. Is the 15 or 20 rare as well? 15 A. Not nearly as rare as just one 16 investigator. 17 Q. All right. So typically there's going 18 to be somewhere between--what's a typical range? Is 19 there a--if you had a bell curve or something. 20 A. Eight to twelve. 21 Q. So typically, if I'm understanding this 22 correctly, for a given investigation that KeyPoint is 23 handling for one of its clients, at least on the DHS 24 side, it's going to divide that investigation up so 25 that typically somewhere between eight and twelve TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 162 of 198 Page 166 1 R. McABEE 2 investigators who are independent contractors are 3 going to be working on that investigation? 4 A. Again, we divide it up based on where 5 the tasks are located. So it is not as if we are 6 making a conscious decision how it is going to be 7 divided up. It is divided up based on the facts of 8 the case and where the tasks are located. 9 Q. And typically it is being divided up 10 between--the typical number of investigators that 11 it's being divided up between is eight to twelve? 12 A. I would say that's about average, yes. 13 Q. Okay. Do you ever ask investigators to 14 subcontract out tasks to other investigators in 15 different areas of the country? 16 MS. KALK: I'm going to object on scope. 17 You can answer as to contract 18 investigators. 19 A. That is not authorized through our 20 contracts. 21 Q. (By Mr. Konecky) Do you know if any of 22 your independent contractor investigators have their 23 own employees or subcontractors that they hire to 24 assist them on their work with KeyPoint? 25 A. Only the person that holds the TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 163 of 198 Page 167 1 R. McABEE 2 credential is authorized to conduct the work. 3 Q. So does that mean that independent 4 contractor investigators of KeyPoint are not permitted 5 to subcontract out or sign out work to other 6 individuals? 7 MS. KALK: I'm going to object to the 8 extent I think you're improperly limiting your 9 question based on the terms of the contract. You're 10 asking for a legal interpretation. 11 If you're able to answer that, go ahead. 12 A. Again, the relationship or the contract 13 is directly between the independent contractor and 14 KeyPoint on behalf of whatever agency they are 15 supporting, and, therefore, the agency that issues 16 that credential, that is the only person that is 17 authorized. So they are not able to subcontract 18 anything out below them. 19 Q. (By Mr. Konecky) The independent 20 contractor of KeyPoint is not able or permitted to 21 subcontract out any work? 22 A. Right. They cannot delegate their own 23 authority that has been given to them through the 24 issuance of that credential. And, therefore, they 25 cannot subcontract any of the work out or assign it to TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 164 of 198 Page 168 1 R. McABEE 2 a subordinate if they have their own company. 3 Q. Do you know how many independent 4 contractors of KeyPoint have a business? 5 A. I don't. 6 Q. Do you know if any have a business? 7 A. I can't say that any of them for sure. 8 No, I'm not--that information isn't available to me. 9 Q. Are you aware of any independent 10 contractor of KeyPoint who has his or her own 11 business? 12 A. Well, by definition of being an 13 independent contractor, aren't they a sole proprietor? 14 I don't know. 15 Q. Are you aware of any independent 16 contractor of KeyPoint who operates or--operates as 17 or owns a business that involves more than just him or 18 her? 19 MS. KALK: Object to the lack of 20 foundation. 21 You can answer. 22 A. I have no direct knowledge of that. 23 Q. (By Mr. Konecky) Do you have any 24 knowledge of that ever occurring? 25 A. Of it ever occurring? I know a few TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 165 of 198 Page 169 1 R. McABEE 2 years ago we had an independent contract investigator 3 that did own his own company, but, again, the work 4 that we offer to him was not able to be subcontracted 5 and/or assigned to anyone else because he held the 6 credential. He was the only person authorized to 7 conduct the work. 8 Q. Other than that one person, are you 9 aware of any other independent contractor at KeyPoint 10 who has had their own business that involved more than 11 just them individually? 12 A. No, I can't think of any others at this 13 time. 14 Q. Who do you report to? 15 A. The president and the CEO of the 16 company--of KeyPoint, pardon me. 17 Q. Eric Hess? 18 A. Yes. 19 Q. And who are your direct reports? 20 A. Matthew--common spelling--Vlcej, 21 V-l-c-e-j; Christin, spelled C-h-r-i-s-t-i-n, Gaylord, 22 common spelling; and Susan Gleason, G-l-e-a-s-o-n. 23 Q. And what are their job titles? 24 A. Matthew is my director of operations, 25 Christin is my operations support branch manager, and TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 166 of 198 Page 170 1 R. McABEE 2 Susan Gleason is my program analyst. 3 Q. Are you at all involved in the 4 negotiations between one or more or any of its clients 5 with respect to the contracts? Let me ask it 6 differently. 7 Are you involved in any of the contract 8 negotiations between KeyPoint and any of its clients? 9 A. Could you define what you mean by 10 "contract negotiations." 11 Q. Well, the process of coming up with the 12 contracts such as the ones that--contracts that you 13 have with ICE or Customs and Border Protection or any 14 of the other clients. 15 A. The only contracts that we have right 16 now for which I was directly involved in writing the 17 proposals and winning the contract is the current 18 version of the CBP contract and the ICE contract. 19 Q. Were any investigators involved in those 20 negotiations? 21 MS. KALK: I object to the extent you're 22 asking about scope to employees. 23 You can answer as to contract 24 investigators. 25 A. No. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 167 of 198 Page 186 1 R. McABEE 2 A. If it's something that becomes a 3 pattern, then yes, the decision has--in the past the 4 decision has been made to know longer offer 5 assignments to that investigator. 6 Q. What kind of situations are you aware of 7 that have resulted in decisions not to offer work to 8 investigators? 9 A. If an investigator does not complete the 10 annual training that is required--previously 11 mentioned annual training that is required by certain 12 contracts, then at that point we have no choice but to 13 remove them from active status in our system so they 14 do not receive any work until they have met that 15 requirement. 16 Q. What other situations? 17 A. If the investigator has a complaint 18 filed against them for any number of reasons by a 19 reference that they have interviewed or come in 20 contact with or a subject of an investigation, we are 21 sometimes directed by the client to not offer work to 22 that independent contractor while the situation is 23 being investigated. 24 Q. And, therefore, you wouldn't offer work 25 to that independent contractor? TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 168 of 198 Page 187 1 R. McABEE 2 A. We're no longer authorized to because 3 the client has instructed us to remove them from 4 active status. 5 Q. And you follow whatever instructions 6 your client gives you? 7 A. We must. 8 Q. And you do? 9 A. Yes. 10 Q. Whether it's on this issue of assigning 11 work or any other issue in terms of protocol or 12 procedure? 13 MS. KALK: I object to the extent that 14 is vague to what protocol and procedure you're 15 referring to. 16 You can answer, if you're able. 17 A. If we're speaking about the contractor 18 requirements as well as any other supplemental 19 guidance, then, yes, we must follow that. 20 Q. (By Mr. Konecky) What other situations 21 have occurred where you have not provided work to an 22 investigator? 23 A. If an investigator has lost their 24 credential--misplaced or lost, whichever--we 25 are--we immediately have to remove them from active TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 169 of 198 Page 188 1 R. McABEE 2 status and open an investigation. If they don't have 3 the credential, they cannot receive work. So that's 4 another example. 5 Yet another example would include them 6 misplacing, mishandling, or losing sensitive 7 information, which is a security violation, and at 8 that point we would immediately have to remove them 9 from active status and no longer offer work 10 assignments while an investigation was being 11 conducted. 12 Q. What about going back to sort of if 13 there's a pattern of not accepting reworks? 14 A. If a pattern develops with an 15 independent contractor and they are not accepting 16 reworks that very clearly they should have been able 17 to meet the requirement the first time around, then 18 they are deemed to no longer be meeting the 19 requirement that is set forth by the customer and/or 20 the supplemental guidance, and, therefore, they are 21 not longer meeting the requirements of the contract. 22 Q. And in that situation, KeyPoint would 23 not assign further work or would reduce work to that 24 independent contractor? 25 A. At that point there wouldn't be a TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 170 of 198 Page 189 1 R. McABEE 2 reduction of work. We would stop offering 3 assignments. 4 Q. Who would make that decision at 5 KeyPoint? 6 A. For which situation? 7 Q. For the situation where there is--it's 8 not a single instance but repeated instances of an 9 investigator who is an independent contractor of not 10 accepting reworks? 11 A. The details regarding the situation 12 would be presented to Matthew Vlcej and myself for 13 determination. 14 Q. What about if there's a pattern or more 15 than one instance where an investigator is not 16 accepting other assignments beyond the sort of rework? 17 Are there ever situations where you as a 18 company would decide not to either renew their 19 contract or to stop providing them work? 20 A. Well, we have--on our CBP and ICE 21 contracts, we have very detailed requirements we must 22 meet regarding inactivity regarding investigators. So 23 if an investigator is refusing to accept work for a 24 specific amount of time, we are required to remove 25 them from the contract and stop offering work. TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 171 of 198 Page 194 1 R. McABEE 2 provided for the investigators themselves, that would 3 clearly say that yes most of them stay active. 4 Q. And most would continue to have ongoing 5 work relation with KeyPoint? 6 MS. KALK: Objection; asked and 7 answered. 8 You can answer again. 9 A. That is correct. 10 MR. KONECKY: All right. There's been 11 some instructions not to answer, there is ongoing 12 discovery disputes. Obviously I'll reserve whatever 13 rights we may be able to assert on that to ask further 14 questions if those get resolved in our favor. 15 I don't have any further questions at 16 this time. 17 MS. KALK: Okay. We'll reserve 18 signature. Thank you. 19 (Whereupon the proceedings were 20 concluded at approximately 4:34 p.m.) 21 22 23 24 25 TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 11-3 Filed 04/18/17 Page 172 of 198 EXHIBIT G KEYPOINT0000001 KEYPOINT0000002 KEYPOINT0000003 CONFIDENTIAL KEYPOINT0000004 CONFIDENTIAL KEYPOINT0000005 CONFIDENTIAL KEYPOINT0000006 CONFIDENTIAL KEYPOINT0000007 CONFIDENTIAL KEYPOINT0000008 CONFIDENTIAL KEYPOINT0000009 CONFIDENTIAL KEYPOINT0000010 CONFIDENTIAL KEYPOINT0000011 KEYPOINT0000012 KEYPOINT0000013 KEYPOINT0000014 KEYPOINT0000015 KEYPOINT0000016 KEYPOINT0000017 KEYPOINT0000018 KEYPOINT0000019 KEYPOINT0000020 KEYPOINT0000021 KEYPOINT0000022 KEYPOINT0000023 KEYPOINT0000024 KEYPOINT0000025 KEYPOINT0000026

Exhibit H through I to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 11-4 Filed 04/18/17 Page 1 of 40 EXHIBIT H KEYPOINT0000027 KEYPOINT0000028 KEYPOINT0000029 CONFIDENTIAL KEYPOINT0000030 CONFIDENTIAL KEYPOINT0000031 CONFIDENTIAL KEYPOINT0000032 CONFIDENTIAL KEYPOINT0000033 CONFIDENTIAL KEYPOINT0000034 CONFIDENTIAL KEYPOINT0000035 CONFIDENTIAL KEYPOINT0000036 CONFIDENTIAL KEYPOINT0000037 KEYPOINT0000038 KEYPOINT0000039 KEYPOINT0000040 KEYPOINT0000041 KEYPOINT0000042 KEYPOINT0000043 KEYPOINT0000044 KEYPOINT0000045 KEYPOINT0000046 KEYPOINT0000047 KEYPOINT0000048 KEYPOINT0000049 KEYPOINT0000050 KEYPOINT0000051 KEYPOINT0000052 Case 3:17-cv-08050-SPL Document 11-4 Filed 04/18/17 Page 28 of 40 EXHIBIT I

MOTION to Stay Defendant's Expedited Motion to Stay Pending Resolution of Defendant's Motion to Transfer Or in the Alternative Motion to Extending Briefing Schedule (First Request) by Keypoint Government Solutions Incorporated.

Case 3:17-cv-08050-SPL Document 12 Filed 04/25/17 Page 1 of 5 1 Ryan G. Lockner; AZ Bar No. 031517 rlockner@littler.com 2 LITTLER MENDELSON, P.C. 3 Camelback Esplanade 2425 East Camelback Road, Suite 900 4 Phoenix, AZ 85016 5 Telephone: 602.474.3600 6 Margaret Parnell Hogan; pro hac vice mphogan@littler.com 7 LITTLER MENDELSON, P.C. 8 1900 Sixteenth Street, Suite 800 Denver, CO 80202-5835 9 Telephone: 303.629.6200 10 Attorneys for Defendant 11 KeyPoint Government Solutions, Inc. 12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 13 14 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, 15 Plaintiff, DEFENDANT’S EXPEDITED 16 MOTION TO STAY PENDING v. RESOLUTION OF DEFENDANT’S 17 MOTION TO TRANSFER OR IN 18 KeyPoint Government Solutions, Inc., a THE ALTERNATIVE MOTION Delaware corporation, TO EXTEND BRIEFING 19 SCHEDULE (First Request) Defendant. 20 21 22 Defendant KeyPoint Government Solutions, Inc. ("KeyPoint" or "Defendant") hereby 23 moves for an Order staying all deadlines in this case pending resolution of Defendant’s 24 motion to transfer. (Doc. 9). In the alternative, KeyPoint moves for an Order extending the 25 briefing schedule as described herein. This motion is supported by the following 26 Memorandum of Points and Authorities and the Court Record, which are incorporated herein 27 by reference. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 12 Filed 04/25/17 Page 2 of 5 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION/PROCEDURAL POSTURE 3 On March 10, 2017 Judd filed a Collective Action Complaint on behalf of himself and 4 a group of similarly situated individuals alleging, inter alia, that KeyPoint violated the Fair 5 Labor Standards Act ("FLSA") by misclassifying him as an independent contractor and 6 failing to pay overtime wages. (Doc. 1). KeyPoint, after meeting and conferring with Judd, 7 filed a motion to transfer venue to the United States District Court, District of Colorado on 8 April 17, 2017. (Doc. 9). KeyPoint requested in the alternative that the Court dismiss Judd’s 9 action for failure to state a claim, and that a stay of litigation be issued pending resolution of 10 the Company’s motion. Id. Judd’s response to the motion is due May 1, 2017, and KeyPoint 11 must reply by May 8, 2017. On April 18, 2017 Judd filed a motion for conditional 12 certification and to facilitate notice of collective action. (Doc. 11). KeyPoint’s response to 13 the motion is due May 2, 2017, while Judd’s reply must be filed by May 9, 2017. 14 The Court has not yet set a Scheduling Conference, and no case deadlines beyond the 15 parties’ briefing of the aforementioned motions and obligations under Rule 26(f) of the 16 Federal Rules of Civil Procedure are pending. 17 II. ARGUMENT 18 A. The Court Has Inherent Authority To Stay This Litigation To Effectively and Fairly Manage This Litigation. 19 A district court possesses the inherent power to stay proceedings to control its docket 20 and promote efficient use of judicial resources. Clinton v. Jones, 520 U.S. 681, 707 (1997). 21 When a particular issue may be dispositive, the Court may stay discovery concerning other 22 issues until the critical issue is resolved, and "will not be overturned unless there is a clear 23 abuse of discretion." Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (citing Ellis 24 v. Brotherhood of Ry., Airline & S.S. Clerks, 685 F.2d 1065, 1071 (9th Cir. 1982) rev’d in 25 part and aff’d in part, 466 U.S. 435 (1984)). Therefore, a district court has broad discretion 26 to stay discovery in a case while a dispositive motion is pending. Wood v. McEwen, 644 27 F.2d 797, 801 (9th Cir. 1981) (citing Fed. R. Civ. P. 26(c); B. R. S. Land Investors v. United 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-2-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 12 Filed 04/25/17 Page 3 of 5 1 States, 596 F.2d 353 (9th Cir. 1978)). 2 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, a district court may 3 stay discovery upon a showing of good cause. The Court may also control the timing and 4 sequence of discovery pursuant to Rule 26(d). Based on these provisions, a stay of discovery 5 is appropriate pending resolution of a potentially dispositive motion where the motion 6 appears to have substantial grounds or does not appear to be without foundation in law. 7 Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (one factor for consideration of a stay is 8 whether the plaintiff can state a claim for relief). 9 Here, KeyPoint’s motion could result in dismissal of Judd’s complaint for failure to 10 state a claim. (Doc. 9). Specifically, KeyPoint asserts in its motion that Judd failed to timely 11 file this action, and his claim is barred by the applicable two year statute of limitations. 12 Consequently, if KeyPoint’s motion is granted, any written discovery or depositions directed 13 to the merits of Judd’s claim will result in an unnecessary expenditure of resources and a 14 significant economic burden on both parties. 15 B. KeyPoint Offered To Toll the FLSA Statute Of Limitations, Therefore Potential Class Members Will Not Suffer Any Prejudice. 16 Good cause to grant this stay exists because it will save judicial and party resources, 17 and no party, including potential opt-ins, will be prejudiced or harmed by its implementation. 18 Judd’s primary reason for filing his motion for conditional certification on April 18, 2017 19 was to provide putative FLSA collective members "an opportunity to toll their statute of 20 limitations by opting in to [this action]." (Doc. 11 at 4). KeyPoint agrees with Judd that 21 absent equitable tolling, the statute of limitations for opt-in plaintiffs continues to run until 22 an individual joins a case as an opt-in plaintiff. See 29 U.S.C. § 216(c). However, the 23 parties have stipulated to toll the statute of limitations from April 17, 2017 until the Court 24 issues a ruling on KeyPoint’s motion to transfer. See Tolling Agreement, attached as 25 Exhibit 1. Accordingly, neither Judd nor those potentially similarly situated will be harmed 26 by a stay. 27 Refusal to grant a stay will lead to unnecessary work by the Court and the parties. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-3-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 12 Filed 04/25/17 Page 4 of 5 1 Ultimately, the Court could determine to keep this case on its docket and grant KeyPoint’s 2 motion to dismiss. Such a ruling would render the parties’ efforts briefing Judd’s motion for 3 conditional certification moot. The parties’ briefing of Judd’s motion for conditional 4 certification would be similarly moot if the Court determines that venue in Colorado is more 5 appropriate for this case because the briefings would rely primarily on Ninth Circuit 6 authority which is not binding in the Tenth Circuit. Finally, judicial resources will be saved 7 if a stay is implemented because the Court can avoid the effort of administering a Scheduling 8 Conference, addressing potential discovery disputes, and ruling on multiple motions if this 9 case is transferred or dismissed. 10 C. In The Alternative, KeyPoint Requests That The Court Set Forth A Modified Briefing Schedule For Responding To Judd’s Motion For 11 Conditional Certification. 12 Regardless of whether the Court issues a stay in this matter, KeyPoint requests as 13 alternative relief that the Court enter an Order extending the briefing deadlines pertaining to 14 Judd’s motion for conditional certification. Specifically, KeyPoint requests that its deadline 15 to respond to Judd’s motion for conditional certification be moved to ten (10) days after the 16 Court issues a ruling on the motion to transfer/dismiss, assuming transfer or dismissal is 17 denied. If transfer is granted and dismissal denied or not ruled upon, Judd shall have seven 18 (7) days to adjust his motion for conditional certification. Assuming revisions to the brief do 19 not significantly alter the facts alleged in this case, KeyPoint will have fourteen (14) days to 20 respond to Judd’s revised motion. Judd does not oppose these extended deadlines, and 21 stipulated to their application pursuant to the parties’ tolling agreement. Ex. 1 at ¶¶ 3-4. 22 III. CONCLUSION 23 A stay of discovery and briefing on Judd’s motion for conditional certification 24 pending resolution of KeyPoint’s motion to transfer/dismiss is warranted because it will save 25 judicial and party resources without prejudicing any current or potential parties. 26 Accordingly, KeyPoint respectfully requests that the Court grant this motion and enter the 27 proposed order lodged herewith. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-4-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 12 Filed 04/25/17 Page 5 of 5 1 DATED this 25th day of April, 2017 2 3 4 s/Ryan G. Lockner 5 Margaret Parnell Hogan 6 Ryan G. Lockner LITTLER MENDELSON, P.C. 7 Attorneys for Defendant KeyPoint Government Solutions, Inc. 8 9 10 I hereby certify that I electronically transmitted the attached document to the 11 Clerk’s Office using the CM/ECF System for filing and transmittal of a 12 Notice of Electronic Filing to the following CM/ECF registrants this 25th 13 day of April, 2017: 14 Michael C. McKay SCHNEIDER WALLACE COTTRELL 15 KONECY WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 16 Scottsdale, AZ 85253 mmckay@schneiderwallace.com 17 Joshua Konecky 18 Leslie H. Joyner SCHNEIDER WALLACE COTTRELL 19 KONECY WOTKYNS LLP 2000 Powell Street, Suite 1400 20 Emeryville, CA 94608 jkonecky@schneiderwallace.com 21 ljoyner@schneiderwallace.com 22 Attorneys for Plaintiff 23 24 s/Carolyn Smith 25 Firmwide:147167610.2 063273.1053 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-5-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Exhibit Exhibit 1

Case 3: 17-cv-08050-SPL Document 12-1 Filed 04/25/17 Page 1 of 4 EXHIBIT 1 Case 3: 17-cv-08050-SPL Document 12-1 Filed 04/25/17 Page 2 of 4 TOLLING AGREEMENT This Agreement is made by and between Keypoint Government Solutions, Inc. (" Keypoint "), its officers, agents, parent corporations, subsidiaries, and/or representatives, and Orson Judd (" Plaintiff '). WHEREAS, on March 10, 2017, Plaintiff filed a collective action complaint under the Fair Labor Standards Act, 29 U. S. C. E 201 et seq. (" FLSA "), in the District of Arizona. Case No. CV-17-08050 (the " Action' "). The Action is filed on behalf of Plaintiff and all other individuals who have provided investigative services to Keypoint while classified as an independent contractor from the period of March 10, 2014 to present, plus additional time for periods of equitable tolling, as set forth in Paragraph 52 of the Complaint. (Doc 1 at 1 52.) For purposes of this Tolling Agreement, this constitutes the " putative class " or " putative class members ". Keypoint agrees to this definition of the putative class solely for purposes of this Tolling Agreement. WHEREAS, on April 11, 2017, Plaintiffs' counsel informed Defendant's counsel that Plaintiff intended to bring a motion for conditional certification and to facilitate notice pursuant to $ 216 (6), and asked Defendant if it would be willing to stipulate to court facilitated notice to save time and resources, and to help prevent the running of the statute of limitations. WHEREAS, on April 17, 2017, Keypoint filed Defendant's Motion to Transfer Venue or in the alternative, Dismiss for Failure to State A Claim and For a Stay of Litigation (" Motion to Transfer ") (Doc. 9). WHEREAS, on April 18, 2017, Plaintiff filed the Motion for Conditional Certification and to Facilitate Notice under $ 216 (6) of the Fair Labor Standards Act. (" Motion for Conditional Certification ") (Doc. 11). WHEREAS, pursuant to subsequent meet and confer, Counsel have agreed to a stay of litigation and tolling until the Motion to Transfer can be fully briefed and ruled upon; NOW THEREFORE, for good and sufficient consideration, the receipt of which is hereby acknowledged, Plaintiff and Keypoint hereby agree as follows: 1. Tolling Provision. On and after the effective Date (as defined below in Section 2, no statute of limitations on any claim under the FLSA shall run against any putative class member and the same shall be tolled from the Effective Date during the period that this Agreement is in effect. Neither party shall put forward or rely upon the period of time while this Agreement is or was in effect as a bar or laches or for any other purpose to defeat the claims made in the Action. This paragraph does not apply to claims made to enforce this Agreement. Nothing contained in this Case 3: 17-cv-08050-SPL Document 12-1 Filed 04/25/17 Page 3 of 4 Agreement shall be deemed as an admission by any party with respect to any allegations, defenses, or claims or as to the appropriate size or breadth of any proposed putative class. 2. Duration. The tolling provision of this Agreement is effective as of April 17, 2017 (the " Effective Date "), and shall terminate upon notice of the Court's ruling on Keypoint's pending Motion to Transfer. 3. If transfer and dismissal is denied, KeyPoint will respond to the motion for conditional certification within 10 days of the order. 4. If transfer is granted and dismissal denied or not ruled upon, then Plaintiff will have 7 days to adjust his moving papers for conditional certification. So long as the facts forming the basis of the motion do not change in a significant way, Keypoint will respond within 14 days of that time to the motion for conditional certification. 5. While the motion to transfer is pending, the parties will meet and confer on the possibility of stipulating to court facilitated notice. On this issue, KeyPoint will provide the following information to Plaintiffs: a. Number of putative class members that KeyPoint does not maintain are subject to arbitration agreements from March 23, 2014 to present. b. Number of putative class members that KeyPoint does not maintain are subject to arbitration agreements from July 23, 2014 to present c. Number of potential putative class members from June 2015 to present who have signed KeyPoint's Independent Contractor Engagement Agreement with the arbitration clause containing the class action waiver. d. Number of potential putative class members from June 2015 to present who have signed KeyPoint's Independent Contractor Engagement Agreement with the arbitration clause containing the class action waiver, and who also exempted themselves from the arbitration clause presented for the Smith v. KeyPoint action. 6. Use of Agreement. Subject to any other request or directive of the Court, during the term of this Agreement, the parties agree that Keypoint will not need to respond to the pending Motion for Conditional Certification and that the only litigation activity in which the parties will engage is briefing on the pending Motion to Transfer. 7. Modification. This Agreement can be modified only in a writing signed by the parties. This Agreement shall constitute the entire understanding between the parties concerning the subject matter of this Agreement and supersedes Case 3: 17-cv-08050-SPL Document 12-1 Filed 04/25/17 Page 4 of 4 and replaces all prior negotiations, proposed agreements, and agreements, written or oral, relating to this subject. 8. Successors. This Agreement shall bind and benefit each of the parties and their respective predecessors, successors, and assigns. 9. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Arizona. 10. Execution of Counterparts. Separate counterparts of this Agreement may be executed by the parties with the same force and effect as if all such parties had executed a single copy of this Agreement. 11. Authority to Bind. Each Counsel executing this Agreement represents and warrants that he or she has been authorized to enter into this Agreement on behalf of the party on whose behalf it is signed and that such signatory has full and complete authority to do so. 12. Notices. Any notice, request, instructions or other document to be provided hereunder by either party to the other shall be in writing and delivered personally or mailed by certified mail, postage prepaid, return receipt requested (such personally delivered or mailed notice to be effective on the date actually received) or by electronic means to counsel for the opposing party. Dated: April 24 2017 Plaintiff and the putative eless By: Joshua Konecky, Esq. Counsel for Plaintiff Dated: April 26, 2011 By: Keypoint Government Solutions, Inc. rok Jacqueline/E. Kalk, Esq. Counsel for Keypoint Government Solutions, Inc.

Text of Proposed Order Proposed Order

Case 3:17-cv-08050-SPL Document 12-2 Filed 04/25/17 Page 1 of 1 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL 10 similarly situated individuals, 11 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO 12 v. STAY PENDING RESOLUTION OF DEFENDANT’S MOTION TO 13 KeyPoint Government Solutions, Inc., a TRANSFER 14 Delaware corporation, 15 Defendant. 16 The Court having received and reviewed KeyPoint’s Motion to Stay Pending 17 Resolution of Defendant’s Motion to Transfer, and good cause appearing; 18 IT IS HEREBY ORDERED that the Motion is GRANTED. All deadlines currently 19 pending in this case, including discovery and briefing of Plaintiff’s Motion for Conditional 20 Certification, are hereby stayed pending the Court’s ruling on Defendant’s Motion to 21 Transfer. 22 23 24 25 26 27 28

RESPONSE to Motion re: {{12}} MOTION to Stay Defendant's Expedited Motion to Stay Pending Resolution of Defendant's Motion to Transfer Or in the Alternative Motion to Extending Briefing Schedule (First Request) Plaintiff Orson Judd's Notice of Non Opposition filed by Orson Judd.

Case 3:17-cv-08050-SPL Document 13 Filed 04/26/17 Page 1 of 3 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiffs and the Proposed 7 Collective 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 10 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, 11 Plaintiff, PLAINTIFF ORSON JUDD’S 12 NOTICE OF NON-OPPOSITION v. TO DEFENDANT’S MOTION TO 13 STAY PENDING RESOLUTION 14 KeyPoint Government Solutions, Inc., a OF DEFENDANT’S MOTION TO Delaware corporation, TRANSFER OR IN THE 15 ALTERNATIVE MOTION TO Defendant. EXTEND BRIEFING SCHEDULE 16 17 18 19 20 21 Plaintiff Orson Judd hereby gives notice that, as per the terms of the tolling agreement 22 attached as Exhibit 1 to Defendant’s Motion to Stay (ECF 12-1), Plaintiff does not oppose 23 Defendant’s motion to stay the deadlines in this case pending resolution of Defendant’s motion 24 to transfer and/or dismiss. Plaintiff also does not oppose Defendant’s alternative request for 25 an order extending the deadline for it to respond to Plaintiff’s motion for conditional 26 certification. 27 28 Case 3:17-cv-08050-SPL Document 13 Filed 04/26/17 Page 2 of 3 1 RESPECFULLY SUBMITTED this 26th day of April 2017. 2 3 By:/s/Joshua Konecky JOSHUA KONECKY 4 SCHNEIDER WALLACE 5 COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 6 Emeryville, California 94608 Telephone: (415) 421-7100 7 Facsimile: (415) 421-7105 8 jkonecky@schneiderwallace.com Attorney for Plaintiff and the Proposed Collective 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-2-Case 3:17-cv-08050-SPL Document 13 Filed 04/26/17 Page 3 of 3 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that on April 26, 2017, I electronically filed the above document with 4 the Clerk of the Court using the CM/ECF system, which will send a notification of 5 electronic filing to all CM/ECF participants interested in this matter. 6 7 By:/s/Joshua Konecky 8 Joshua Konecky 9 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 10 2000 Powell Street, Suite 1400 11 Emeryville, California 94608 Telephone: (415) 421-7100 12 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 13 14 Attorney for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER That Defendant KeyPoint Government Solutions, Inc.'s Expedited Motion toStay {{12}} is granted, including briefing on the Motion for Conditional Certification {{11}}. Plaintiff shall file a response to the Motion to Transfer {{9}} no later than May 1, 2017. Defendant may file a reply no later than May 8, 2017. Signed by Judge Steven P. Logan on 4/27/17.

Case 3:17-cv-08050-SPL Document 14 Filed 04/28/17 Page 1 of 2 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-08050-PHX-SPL Orson Judd, 9)) Plaintiff,) ORDER 10) vs. 11)) KeyPoint Government Solutions, Inc.,) 12) 13 Defendant.)) 14) 15 Before the Court is Defendant KeyPoint Government Solutions, Inc.’s Expedited 16 Motion to Stay. (Doc. 12.) Defendant seeks a stay of litigation deadlines pending 17 resolution of Defendant’s motion to transfer venue, as the outcome is potentially 18 dispositive, at least as to this Court’s jurisdiction. Plaintiff Orson Judd does not oppose 19 the motion. (Doc. 13.) Finding good cause, the Court will grant the motion. 20 IT IS ORDERED: 21 1. That Defendant KeyPoint Government Solutions, Inc.’s Expedited Motion to 22 Stay (Doc. 12) is granted, including briefing on the Motion for Conditional 23 Certification (Doc. 11); 24 2. That Plaintiff shall file a response to the Motion to Transfer (Doc. 9) no later 25 than May 1, 2017; and 26///27///28///Case 3:17-cv-08050-SPL Document 14 Filed 04/28/17 Page 2 of 2 1 3. That Defendant may file a reply no later than May 8, 2017. 2 Dated this 27th day of April, 2017. 3 4 Honorable Steven P. Logan United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

NOTICE re: Filing Consent to Join Collective Action by Orson Judd.

Case 3:17-cv-08050-SPL Document 15 Filed 05/01/17 Page 1 of 3 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 ORSON JUDD, an individual, on behalf of) Case No. 3:17-cv-08050-SPL himself and on behalf of all others similarly) 12 situated,) NOTICE BY PLAINTIFF OF FILING) CONSENT TO JOIN COLLECTIVE 13 Plaintiff,) ACTION) 14 vs.)) 15 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,) 16) Defendant.) 17)) 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFF OF FILING CONSENT TO JOIN COLLECTIVE ACTION 28 Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 15 Filed 05/01/17 Page 2 of 3 1 Plaintiff Orson Judd, on behalf of himself and all others similarly situated, hereby files the 2 following Consent to Join Collective Action in the above cited action, submitted herewith as Exhibit 1, 3 pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). 4 5 CONSENT TO JOIN COLLECTIVE ACTION: 6 2. Kevin B. Hutson 7 8 Dated: May 1, 2017 Respectfully Submitted, 9 By:/s/Joshua Konecky 10 Joshua Konecky 11 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 12 2000 Powell Street, Suite 1400 Emeryville, California 94608 13 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 14 jkonecky@schneiderwallace.com 15 Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 1 NOTICE BY PLAINTIFF OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 15 Filed 05/01/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 1, 2017, I electronically filed the above document with the Clerk of 3 the Court using the CM/ECF system, which will send a notification of electronic filing to all 4 CM/ECF participants interested in this matter. 5 6 7/s/Joshua Konecky Joshua Konecky (SBN 182897) 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 10 Emeryville, California 94608 Telephone: (415) 421-7100 11 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 12 Attorneys for Plaintiff 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFF OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL

Exhibit 1

Case 3: 17-cv-08050-SPL Document 15-1 Filed 05/01/17 Page 1 of 3 Exhibit 1 Case 3: 17-cv-08050-SPL Document 15-1 Filed 05/01/17 Page 2 of 3 1-------- Q 00 No. Un e Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ORSON JUDD, an individual, on behalf of) Case No. 3: 17-cv-08050-SPL himself and on behalf of all others similarly situated, CONSENT TO JOIN COLLECTIVE ACTION UNDER THE FAIR LABOR Plaintiff, STANDARDS ACT, 29 U. S. C. E 216 (6) 12 VS. KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation, a Defendant. 16 18 19 20 21 22 23 24 25 26.......... 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint Case 3: 17-cv-08050-SPL Document 15-1 Filed 05/01/17 Page 3 of 3 w N I worked for KeyPoint Government Solutions, Inc. (" KeyPoint "), within the past three years. Specifically, I worked for KeyPoint from 2007 through 2014 and I filed an opt-in consent form in Richard Smith, et al. v. KeyPoint Government Solutions, Case No. 1: 15-cv-00865 (D. Colo.) on June 16, 2015, which was pending until final judgment was entered on January 20, 2017. I want to join this lawsuit alleging that KeyPoint has violated the Fair Labor Standards Act by misclassifying me and other Investigators as independent contractors rather than employees. I understand that this lawsuit seeks unpaid wages and/or overtime that may be owed to me, and that by joining this lawsuit I will become a party plaintiff. By joining this lawsuit, I designate the Plaintiff named in the Complaint as my representative to the fullest extent possible under applicable laws, to make decisions on my behalf concerning the litigation, the manner and method of conducting and resolving the litigation, and all other matters pertaining to this lawsuit. I understand that I have the right to choose other counsel and I choose to be represented in this matter by the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP and other attorneys with whom they associate. له له ميلا Name Address City, State Zip Date: yfref19 Signature: CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint

RESPONSE in Opposition re: {{9}} MOTION to Change Venue/Transfer Case to USDC Colorado or in the Alternative, Dismiss for Failure to State a Claim and for a Stay of Litigation filed by Orson Judd.

Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 1 of 18 1 Michael C. McKay, SBN 023354 SCHNEIDER WALLACE 2 COTTRELL KONECKY WOTKYNS LLP 3 8501 North Scottsdale Road, Suite 270 Scottsdale, Arizona 85253 4 Telephone: (480) 428-0142 Facsimile: (866) 505-8036 5 mmckay@schneiderwallace.com 6 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 7 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 Emeryville, CA 94608 10 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 11 Attorneys for Plaintiffs and the Proposed Collective 12 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF ARIZONA 15 ORSON JUDD, individually and on) Case No.: CV-17-08050-PCT-SPL behalf of all others similarly situated,) 16) The Honorable Steven P. Logan Plaintiffs,) 17) PLAINTIFF’S OPPOSITION TO vs.) DEFENDANT’S MOTION TO 18) TRANSFER VENUE OR IN THE KEYPOINT GOVERNMENT) ALTERNATIVE, DISMISS FOR 19 SOLUTIONS, INC., a Delaware) FAILURE TO STATE A CLAIM AND corporation,) FOR A STAY OF LITIGATION 20) Defendant.) 21) Oral Argument Requested) 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 2 of 18 1 I. INTRODUCTION 2 Plaintiff Orson Judd is an Arizona resident who worked as a background investigator 3 for Defendant KeyPoint Government Solutions, Inc. ("KeyPoint") in Arizona. Mr. Judd is 4 one of many "Investigators" that KeyPoint hires across the country to perform background 5 investigations for its federal government clients. On March 10, 2017, Mr. Judd filed this 6 action for unpaid overtime wages resulting from KeyPoint’s misclassification of him and 7 other similarly situated "Investigators" as "independent contractors," rather than 8 "employees." The Complaint’s only cause of action is under the Fair Labor Standards Act 9 (FLSA), a federal statute. There are no state law claims. 10 KeyPoint is no stranger to the misclassification of its Investigators. In 2011, the Internal 11 Revenue Service (IRS) determined that KeyPoint had misclassified another Investigator as an 12 independent contractor. Then, in 2014, KeyPoint removed the independent contractor 13 designation for its Investigators in California. Still, KeyPoint continued to classify Mr. Judd 14 as an independent contractor in Arizona, and continued to maintain the independent contractor 15 designation for Investigators in the remaining 49 states and District of Columbia, in which 16 KeyPoint does business. Accordingly, Plaintiff alleges that KeyPoint’s continuing 17 misclassification of Investigators is not just a violation of the broad, remedial protections of 18 the FLSA, but also a knowing and willful one. 19 KeyPoint’s response to Mr. Judd’s FLSA complaint is to both move for an order 20 transferring this case to the District of Colorado as well as to argue on the merits that his 21 claims are beyond the statute of limitations. Neither of KeyPoint’s motions have merit. 22 On the motion to transfer, KeyPoint falls well short of the "strong showing of 23 inconvenience" the Ninth Circuit requires. Not only did Plaintiff work for KeyPoint in 24 Arizona, but KeyPoint admits that it has more Investigators classified as independent 25 contractors in Arizona than it does in Colorado. Indeed, KeyPoint admits that 97% of its 26 currently engaged independent contractor Investigators do not reside in Colorado at all. 27 Moreover, KeyPoint fails to identify a single non-party witness who would be found in 28 Colorado, rather than Arizona. Additionally, the person that KeyPoint identifies as its primary PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 1 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 3 of 18 1 witness on the underlying classification dispute lives in North Carolina. With respect to 2 documentary evidence, KeyPoint does not identify any documents that cannot be 3 electronically produced and has even argued in previous litigation that the relevant documents 4 must be obtained in coordination with its government clients in Washington, D.C., not 5 Colorado. There is nothing more convenient about Colorado than Arizona. 6 KeyPoint’s rationale for transferring the case to Colorado is that, in August 2015, Mr. 7 Judd filed a consent to join a similarly pleaded collective action that was pending there at the 8 time. See Richard Smith v. KeyPoint Government Solutions, Case No. 15-cv-00429 (D.Col.). 9 This argument is ironic at best. In 2016, KeyPoint successfully achieved summary judgment 10 against the only named-plaintiff in that case, Richard Smith, based on a different statute of 11 limitations argument pertaining to his individual claims.1 In its successful briefing on that 12 motion, KeyPoint urged the District Court in Colorado to dismiss the other eight (8) 13 individuals who had then opted into Mr. Smith’s case, including Mr. Judd. According to 14 KeyPoint, Mr. Judd had to be dismissed in Colorado because he was not a party to that case. 15 Remarkably, even when Mr. Smith pointed out that dismissing the opt-ins would result 16 in the need for one or more of them to re-file their own FLSA claims in other jurisdictions 17 KeyPoint replied by insisting that the District Court in Colorado nevertheless dismiss them. 18 KeyPoint’s advocacy in Colorado prevailed, and the Court dismissed Mr. Judd’s consent to 19 join, but without prejudice. Now, KeyPoint is attempting to send Mr. Judd back to the very 20 same Court in Colorado it previously (and successfully) argued should not hear his claims. 21 KeyPoint further neglects to mention that, in the Smith action, it had argued that venue 22 would be equally appropriate in the judicial district where the plaintiff actually performed his 23 work for KeyPoint, as it would be in the District of Colorado. See KeyPoint’s Motion to 24 Transfer in Smith at 6, attached as Exh. G to the Declaration of Joshua G. Konecky ("Konecky 25 Decl.").2 In the Smith action, the District where the plaintiff worked was Ohio, which 26 1 27 In the Smith case, no rulings were made on either conditional certification or on the merits of the plaintiff’s claim that KeyPoint’s Investigators are employees under the FLSA. 28 2 All references to Exhibits refer to the Declaration of Joshua G. Konecky, unless otherwise noted. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 2 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 4 of 18 1 presumably KeyPoint likes better than Arizona. Nonetheless, for the same reasons KeyPoint 2 argued Ohio was appropriate in the Smith action, Arizona is an appropriate venue here 3 KeyPoint’s purpose in seeking a transfer to Colorado appears to be nothing other than 4 forum shopping. Specifically, it appears that KeyPoint is seeking to transfer the case back to 5 Colorado because it wants to evade Ninth Circuit precedent that would invalidate the forced 6 arbitration provision it presented to its Investigators in mid-2015 as a condition of continued 7 employment. This mandatory arbitration provision includes a class action waiver. While 8 KeyPoint does not argue that this arbitration provision applies to Mr. Judd, it has indicated 9 that it will attempt to apply it to many of the other Investigators who could opt in to the 10 potential collective action. See Exh. B. Yet, under Ninth Circuit law, KeyPoint’s mandatory 11 arbitration provision and class action waiver violate the National Labor Relations Act 12 (NLRA) and remain unenforceable. See Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th 13 Cir. 2016), petition for cert. granted 137 S.Ct. 809 (Jan. 13, 2016). The Tenth Circuit, 14 however, has not ruled on whether class action waivers in mandatory arbitration agreements 15 are enforceable. Counsel’s own meet and confer in connection with this motion to transfer 16 venue suggest that KeyPoint’s ultimate goal for transfer is to reduce the number of individuals 17 in the collective action to only those who did not sign the mandatory arbitration agreement 18 with the class action waiver. Exh. B. Presumably, KeyPoint calculates that it has a better 19 chance of prevailing on this argument outside the Ninth Circuit. 20 Such forum shopping is itself enough to deny the motion. Even assuming KeyPoint is 21 not forum shopping, however, it simply does not come close to making the strong showing of 22 inconvenience that would be required for transfer here. 23 KeyPoint’s motion to dismiss based on statute of limitations is equally misguided. 24 KeyPoint does not dispute that Mr. Judd worked with KeyPoint until September 2014, that 25 his consent to join was pending in the Smith case from August 20, 2015 to January 20, 2017, 26 and that he filed the current action on March 10, 2017. It is well established that the statute 27 of limitations on Mr. Judd’s FLSA claims were tolled during the seventeen (17) months his 28 consent to join was pending in the Smith case. Thus, Mr. Judd’s claims easily fall within the PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 3 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 5 of 18 1 two-year limitations period under 29 U.S.C. § 255(a).3 2 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 3 On September 29, 2011, the Internal Revenue Service (IRS) provided a seven-page 4 determination letter to KeyPoint’s CEO, Jeff Schlanger, explaining its conclusion that 5 Defendant had misclassified one of its Investigators as an independent contractor rather than 6 an employee. See Exh. A. The IRS letter identified numerous reasons why the Investigator 7 should have been classified as an employee. Id. at pp 3-5. The IRS letter also referenced 8 Defendant’s potential tax liability for not paying employment-related taxes as a result of 9 misclassifying the Investigator as an independent contractor. Id. at pp 5-6. 10 In 2014, KeyPoint agreed to a class action settlement covering its Investigators in 11 California and eliminated independent contractor designation for them. Exh. C (Settlement); 12 see also Exh. N (Smith, Declaration of Catherine Grassman in Support of Defendant’s Motion 13 to Transfer Venue in Smith v. KeyPoint). KeyPoint, however, continued to classify its 14 Investigators in the other states as independent contractors. 15 On January 29, 2015, one of KeyPoint’s Investigators in Ohio filed an FLSA case 16 challenging the same independent contractor designation for the Investigators. Exh D (Smith, 17 Complaint). KeyPoint responding by arguing that the case should be transferred to either 18 Ohio (where Mr. Smith had worked for KeyPoint) or Colorado. Before the motion was 19 decided, Mr. Smith and KeyPoint agreed to transfer the case to the District of Colorado. 20 (Smith, Stipulation to Transfer [ECF 16]). 21 On August 20, 2015, Mr. Judd filed a consent to join form in Mr. Smith’s case. Mr. 22 Judd lives in Arizona and worked for KeyPoint in Arizona from approximately June of 2008 23 3 Moreover, KeyPoint is simply wrong to portray the District of Colorado as having 24 resolved the statute of limitations question as a matter of law for anyone other than the 25 individually-named plaintiff in that case. To the contrary, the District Court in Colorado granted summary judgment as against Mr. Smith only, and did so on the basis that he did 26 not raise a triable issue of fact as to KeyPoint’s willfulness under 29 U.S.C. § 255(a). 27 Curiously, during that motion in the Smith action, KeyPoint did not disclose that the IRS had previously given it reason to know that it was in violation of the law, and the Court in 28 Colorado did not have the benefit of that decision or other evidence concerning KeyPoint’s willfulness, which Mr. Judd will be able to present in this case. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 4 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 6 of 18 1 through approximately September of 2014. See Compl. [ECF 1] at ¶ 15. The District Court 2 in Colorado, however, never reached the merits of Mr. Judd’s claims, nor did it decide Mr. 3 Smith’s motion for conditional certification that had been filed there. 4 Instead, the District Court in Colorado held on KeyPoint’s motion for summary 5 judgment that the claims of Mr. Smith fell outside the statute of limitations because Mr. Smith 6 did not raise a triable issue of fact that KeyPoint’s alleged violation of the FLSA was willful 7 to invoke the three-year limitations period 29 U.S.C. § 255(a). See Smith, Amended Final 8 Judgment [ECF 100]. In deciding the willfulness question, the Smith Court did not have the 9 previous IRS determination or California action before it (among other things)—both of 10 which would have at the least raised a triable issue as to KeyPoint’s prior knowledge and 11 intent. See Konecky Decl. at ¶ 3. As a result, the Court in the Smith action dismissed the 12 named plaintiff’s individual claims with prejudice. Id. 13 During the briefing on the motion, Mr. Smith cautioned that even if the Court granted 14 summary judgment against Mr. Smith, dismissing the other plaintiffs would simply force 15 them to re-file the case in district courts throughout the country. Smith, Opposition to Motion 16 for Summary Judgment [ECF 87] at pp. 2-3, 19-20 fn. 6. Nonetheless, KeyPoint urged the 17 District Court in Colorado to dismiss the consent forms of Mr. Judd and the other Investigators 18 who had sought to opt in. The Colorado District Court agreed. Significantly, however, the 19 Smith Court dismissed Mr. Judd’s consent to join without prejudice. See Smith, Amended 20 Final Judgment [ECF 100]. 21 On March 10, 2017, Mr. Judd filed the instant case, which states a single cause of action 22 under the FLSA. [ECF 1, 1-2]. 23 III. DEFENDANT HAS FAILED TO MEET ITS BURDEN SHOW THAT THE SECTION 1404 FACTORS WEIGH STRONGLY IN FAVOR OF TRANSFER 24 A. Defendant shoulders the burden of showing that transfer to the District of 25 Colorado is appropriate 26 A motion to transfer calls on district courts "to weigh in the balance a number of case 27 specific factors." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); see also Jones v. 28 GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). Among other factors, courts may PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 5 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 7 of 18 1 consider: 2 (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of 3 forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the 4 costs of litigation in the two forums, (7) the availability of compulsory process 5 to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof. 6 Jones, 211 F.3d at 498-99. 7 The party that seeks a transfer of venue under 28 U.S.C. § 1404(a) bears the burden of 8 showing that the transfer is appropriate. Commodity Futures Trading Commission v. Savage, 9 611 F.2d 270, 279 (9th Cir.1979). This burden has been described as a "heavy" one. Decker 10 Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (The movant "must 11 make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of 12 forum."); Securities Investor Prot. Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985) (A 13 motion to transfer will not be granted unless convenience and justice considerations strongly 14 favor venue elsewhere.); OptoLum, Inc. v. Cree, Inc. 2017 WL 1057924, at *2 (D. Ariz., Mar. 15 21, 2017) ("denying motion to transfer on the grounds that the defendant failed to make a 16 "strong showing of inconvenience to warrant upsetting [the plaintiff’s] choice of forum."); 17 Section 1404(a) provides for transfer to a more convenient forum, "not to a forum likely 18 to prove equally convenient or inconvenient." Van Dusen v. Barrack, 376 U.S. 612, 646 19 (1964). Transfer should be denied if the factors are evenly balanced or even weigh only 20 slightly in favor of transfer. Best Western Intern., Inc. v. Govan, 2006 WL 2523460, at *5 (D. 21 Ariz., Aug. 29, 2006) (citing Securities, 764 F.2d at 1317). "It is not enough for defendant 22 merely to show that he prefers another forum and nor will transfer be allowed if the result is 23 merely to shift the inconvenience from one party to another." Kina v. United Air Lines, Inc., 24 2008 WL 5071045 (N.D. Cal. Dec. 1, 2008). Here, KeyPoint has failed to meet its heavy 25 burden to show how the interests of justice and the convenience of the parties and the 26 witnesses would be favored by transferring this case. 27 B. Plaintiff’s choice of forum is entitled to deference 28 A plaintiff’s choice of forum generally receives substantial deference in a motion to PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 6 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 8 of 18 1 transfer venue. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th 2 Cir.1986); Warfield v. Gardner, 346 F.Supp.2d 1033, 1044 (D.Ariz.2004). In Piper Aircraft 3 Co. v. Reyno, 454 U.S. 235, 255 (1981), the United States Supreme Court noted that "there is 4 ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be 5 overcome only when the private and public interest factors clearly point towards trial in the 6 alternative forum." Here, the named Plaintiff, Mr. Orson Judd, lives in Arizona, worked for 7 KeyPoint in Arizona, his claims arose in Arizona, and accordingly he chose to file this case 8 in Arizona. Plaintiffs’ counsel also has an office in Arizona, as does KeyPoint’s counsel. 9 KeyPoint argues that Mr. Judd’s choice of forum carries little weight because "he seeks 10 to represent a class." Motion at p. 6. KeyPoint is incorrect for at least two reasons. First, a 11 plaintiff’s choice of forum in a FLSA case is entitled to more deference than the choice of 12 forum in Rule 23 class action cases, owing to the difference between opt-in collective actions 13 under the FLSA and opt-out class actions under Rule 23. Salinas v. O'Reilly Automotive, Inc., 14 358 F.Supp.2d 569, 571 (N.D. Tex. 2005); Koslofsky v. Santaturs, Inc., 2011 WL 10894856, 15 at *2 (S.D.N.Y. Aug. 18, 2011). Second, even in a class action, the plaintiffs’ choice of forum 16 carries significant weight where, as here, "there is no evidence that plaintiffs engaged in forum 17 shopping and both plaintiffs and defendant have significant contacts with the [forum], Roling 18 v. E*Trade Sec., LLC, 756 F. Supp. 2d 1179, 1186 (N.D. Cal. 2010); cf. Leyvas v. Bezy, 2008 19 WL 2026276, at *5 (D.Ariz. May 9, 2008) ("when the plaintiff's chosen forum is not his 20 residence, or when the plaintiff’s forum lacks a significant connection to the events that gave 21 rise to the Complaint, the deference given to Plaintiff's choice of forum is slight, if any.") In 22 judging the weight to afford the plaintiff’s choice of forum in a class action, "consideration 23 must be given to the extent of both [plaintiff’s] and the [defendant’s] contacts with the forum, 24 including those relating to [plaintiff’s] cause of action...." Lou v. Belzberg, 834 F.2d 730, 739 25 (9th Cir.1987) (internal citations omitted). 26 When some parties have ties to the district, "it suggests that plaintiff is not forum 27 shopping." In re Ferrero Litig., 768 F.Supp.2d 1074, 1078 (S.D Cal.2011). Here, the 28 operative facts pertaining to Plaintiff’s work occurred within this forum. Moreover, both PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 7 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 9 of 18 1 Plaintiff and Defendant have significant contacts with this District. Indeed, KeyPoint has 2 chosen and is registered to do business in this District. See Exh. E, Arizona Corporate filing 3 2017. Additionally, KeyPoint concedes that more of its currently engaged contract 4 Investigators (i.e., the members of the proposed collective) work and reside in Arizona than 5 in Colorado. See Motion at 3:24-25 (noting that 54 putative collective action members reside 6 in Arizona and 42 reside in Colorado). Given the multiple connections to this District, 7 "plaintiff’s choice of forum carries significant weight" even considering the collective action 8 claims. Roling, 756 F. Supp. 2d at 1186. 9 KeyPoint contends that the Court should afford less deference to Plaintiff’s choice of 10 forum merely because he filed a consent to join in the earlier Smith action. KeyPoint’s 11 contention is ironic considering in the Smith case, it specifically requested that the District 12 Court in Colorado dismiss Mr. Judd on the basis that he was not a party to that litigation. See 13 Exh K, Smith, Defendant’s Motion for Summary Judgment [ECF 77] at pp. 19-20; Exh M, 14 Reply [ECF 89] at pp. 9-10. Even though KeyPoint knew that dismissing Mr. Judd could 15 result in a subsequent action being filed in a different jurisdiction, it continued to urge the 16 District Court in Colorado to dismiss his opt in consent. See Exh L, Smith, Plaintiff’s 17 Opposition. Having achieved what it asked for in Colorado, KeyPoint should not now be 18 permitted to force Mr. Judd to start anew there, particular when Mr. Judd lives and worked 19 for KeyPoint here, in Arizona. In terms of initiating his own action, this is Mr. Judd’s first 20 and only choice of forum. 21 KeyPoint relies on Park v. Dole Fresh Vegetables, Inc., 964 F.Supp.2d 1088 22 (N.D.Cal.2013). The Park case, however, is imminently distinguishable from the facts here. 23 In Park, the plaintiff initially filed his case in the district where he lived and where his claims 24 arose, only to voluntarily dismiss it and re-file in a different district five days later. Park, 964 25 F.Supp.2d at 1091-1092. By contrast, Mr. Judd here is not trying to transfer venue away from 26 where he lives or worked for KeyPoint, but rather filed his case properly in this District from 27 the beginning. Moreover, unlike in Park, Mr. Judd did not voluntarily dismiss a previous 28 case to shop for a better venue. Rather, his consent to join the previous case was dismissed, PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 8 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 10 of 18 1 without prejudice, at KeyPoint’s request. In light of the foregoing, KeyPoint has no basis to 2 contest Plaintiff’s choice of forum.4 3 C. Both Mr. Judd and KeyPoint have substantial contacts with Arizona 4 Plaintiff Orson Judd’s individual claim for overtime claim arose exclusively out the 5 work he performed for KeyPoint in the District of Arizona. During the entire time Mr. Judd 6 worked for KeyPoint, he both resided and worked as an independent contractor in Arizona. 7 See Compl. [ECF 1] at ¶ 15; see also Exh. F., Deposition of Orson Judd ("Judd Dep.") at 8 29:20-25. In that role Plaintiff Judd performed public record searches, conducted interviews, 9 and compiled reports. See Compl. [ECF 1] at ¶ 23; see also Exh. F., Judd Dep. at 22:1-25:2, 10 40:2-16. As an independent contractor residing in St. David, Arizona, Plaintiff Judd was 11 offered projects geographically located to his residence. Exh. F., Judd Dep. at 68:10-23, 51:4-12 10 (stating that for the most part, Judd worked in Sierra Vista, AZ and Fort Huachuca, AZ). 13 For example, Judd’s projects included travelling to local police stations to obtain records on 14 an applicant. Exh. F., Judd Dep. at 40:2-16. Projects also included interviewing individuals in 15 the geographic area of Plaintiff’s residence who knew the applicant, and compiling a report 16 of the interviews. Exh. F., Judd Dep. at 22:1-25:2, 40:2-25. Such contacts, particularly those 17 contacts giving rise to this litigation, weigh strongly in favor of an Arizona forum. Talley v. 18 Pembrooke Occupational Health, Inc., 2009 WL 899701, at *1 (D. Ariz., Mar. 27, 2009). 19 In the Smith case, KeyPoint took the position that these precise facts warranted transfer 20 to the Plaintiff’s home forum. See Smith, Exh. G Defendant’s motion to transfer [ECF 15] at 21 p. 2. There, KeyPoint sought transfer to the Southern District of Ohio, Western Division, 22 where the plaintiff (Mr. Smith) had resided and worked for KeyPoint as an independent 23 contractor. In its motion in the Smith case, KeyPoint argued: 24 During the applicable time period of March 5, 2012 until May, 2012, Plaintiff 25 4 KeyPoint also cites Airbus DS Optronics GmbH v. Nivisys LLC, 2015 WL 3439143 (D. Az 26 May 28, 2015) for its citation to Park. Notably, in Airbus, the court found that the plaintiff’s 27 choice of forum factor weighed against transfer. Id. at *6. In fact, the Airbus court denied the motion to transfer even though the plaintiff in that case did not reside in the forum 28 District (Arizona) and some of the conduct at issue occurred outside Arizona as well. Id. at *4, *6. Here of course, the Plaintiff resides in Arizona, and his work occurred in Arizona. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 9 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 11 of 18 both resided and worked as an independent contractor in Fairborn, Ohio. 1 [Citation]. In that role, Plaintiff performed public record searches, conducted 2 interviews, and compiled reports. [Citation]. As an independent contractor residing in Fairborn, Ohio, Plaintiff would have been offered projects 3 geographically located to his residence. [Citation]. For example, a project might have included travelling to a local court house or department of motor vehicle 4 office to obtain records on an applicant. [Citation]. Another project might have 5 included interviewing individuals in the geographical area of Plaintiff’s residence who knew the applicant, and compiling a report of the interview. [Citation]. 6 Given the nature of the work performed, Plaintiff’s claim that he was misclassified and worked overtime under the FLSA, arises nearly exclusively in 7 Ohio. 8 Id. at p. 6. The only material difference between Mr. Smith in the prior action, and Mr. Judd 9 here, is that Mr. Smith worked for KeyPoint in Ohio and Mr. Judd worked for KeyPoint in 10 Arizona. However, the very same factors that KeyPoint itself cited as supporting transfer of 11 Mr. Smith case to Ohio, are equally applicable to retaining Mr. Judd’s case here in Arizona. 12 On similar facts, courts in this District have held "the parties’ relative contacts with the 13 forum, particularly those contacts giving rise to this litigation, weigh strongly in favor of an 14 Arizona forum." Talley, 2009 WL 899701, at *1; see Airbus, 2015 WL 3439143, at *4; 15 Halbur ex rel. MRS 1 Corp. v. Kudla, 2013 WL 85265, at *5 (D. Ariz., Jan. 8, 2013). 16 To the extent that KeyPoint claims to be inconvenienced by having to defend claims in 17 Arizona, it has not presented any facts, beyond the mere fact of its own residence. Indeed, 18 while Mr. Judd resided and worked for KeyPoint exclusively in Arizona, "KeyPoint’s 19 workforce, thousands strong, spans the U.S. and its territories, Puerto Rico and Guam." See 20 Exh H, KeyPoint website at http://www.keypoint.us.com/key-capabilities/(accessed April 21 26, 2017). 22 Keypoint asserts that Colorado is more a more convenient forum for the members of the 23 collective yet acknowledges that 97% of its currently engaged independent contractors do 24 not reside in Colorado and that more of its currently engaged independent contractors 25 actually reside in Arizona, than in Colorado. See Declaration of Jennifer Boaz ("Boaz 26 Decl.") [ECF 9-1] at ¶ 6. Additionally, in the Smith case, KeyPoint argued that the Southern 27 District of Ohio, where Mr. Smith lived and worked, was equally as convenient as Colorado 28 because "the putative class members who might opt-in, and thus be called as witnesses are PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 10 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 12 of 18 1 predominantly concentrated in various regions, including the Mid-West, Southwest, the Deep 2 South, and Eastern United States, in states such as Texas, Maryland, Virginia, and Florida." 3 Exh G, Smith, Motion for Transfer [ECF 15] at p. 10. Travel from these locations to Colorado 4 is no more convenient than traveling from them to Arizona. 5 D. The "convenience of the witnesses" factor favors Plaintiff 6 1. KeyPoint has failed to show that Arizona is an inconvenient forum for its primary witness, who lives in North Carolina 7 KeyPoint claims that its key witnesses are located at the company headquarters in 8 Colorado. Yet, it concedes that its primary witness, Jennifer Boaz, National Director of 9 Independent Contracts, resides and works in North Carolina. Motion at p. 8; Boaz Decl at ¶ 10 2. Apart from Ms. Boaz, KeyPoint contends some of its Contract Liaisons "may testify," but 11 mentions in footnote that almost two-thirds (64%) of its Contract Liaisons do not reside 12 in Colorado. KeyPoint’s tenuous position that Colorado is more convenient forum for its 13 employee-witnesses, the majority of whom reside outside Colorado, is insufficient to support 14 transfer of this case for at least three reasons. 15 First, "[c]ourts give less consideration to the convenience of party witnesses or witnesses 16 employed by a party because these witnesses can be compelled by the parties to testify 17 regardless of where the litigation will occur." Hendricks v. StarKist Co., 2014 WL 1245880, 18 at *3 (N.D. Cal., Mar. 25, 2014) (citing Allstar Mktg. Grp., LLC v. Your Store Online, LLC, 19 666 F.Supp.2d 1109, 1132 (C.D.Cal.2009)); see also Continental Airlines, Inc. v. American 20 Airlines, Inc., 805 F.Supp. 1392, 1397 (S.D.Tex.1992); Worldwide Financial LLP v. Kopko, 21 2004 WL 771219, *3 (S.D.Ind. Mar. 18, 2004) ("The courts ordinarily assume that the parties 22 will be sufficiently motivated to have their own partners or employees or other allies appear 23 for trial wherever it might take place."). 24 Second, where a proposed transfer is for the convenience of witnesses, a defendant must 25 identify the witnesses it wishes to call, the anticipated areas of their testimony, its relevance, 26 and identify the reasons why the present forum would present a hardship to them. See Bohara 27 v. Backus Hosp. Med. Benefit Plan, 390 F. Supp. 2d 957, 963 (C.D. Cal. 2005); see also 28 Haswell v. National R.R. Passenger Corp. 2006 WL 839067, at *2 (D. Ariz., Mar. 28, 2006); PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 11 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 13 of 18 1 Segil v. Gloria Marshall Management Co., Inc., 568 F.Supp. 915, 919 (D.Utah 1983) (citing 2 Car–Freshner Corp. v. Auto Aid Mfg. Corp., 438 F.Supp. 82 (N.D.N.Y.1977) and American 3 Standard, Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980)). Here, KeyPoint has failed 4 to identify any reason as to why the present forum would present a hardship to Ms. Boaz (who 5 lives in North Carolina) or the vast majority of its Contract Liaisons, who similarly do not 6 live in Colorado. 7 Third, to the extent KeyPoint may put forward any employee witnesses who actually 8 reside in Colorado, to testify pursuant to Federal Rule of Civil Procedure 30(b)(6), Plaintiff 9 could take those depositions in Colorado. Fed. Rule Civ. Proc. 45(c)(1).5 This creates less of 10 a burden on KeyPoint to litigate in the District of Arizona because KeyPoint’s witnesses, to 11 the extent they are in Colorado, would only have to travel for trial. Lax v. Toyota Motor 12 Corporation, 65 F.Supp.3d 772, 779 (N.D. Cal. 2014). 13 The main inconvenience to KeyPoint, then, is the travel time and expense KeyPoint 14 would incur as a result of its employees having to travel from various locations throughout 15 the United States to Arizona, rather than Colorado, for trial. KeyPoint has failed to establish 16 that such inconvenience is consequential in this case, or that it is even more inconvenient for 17 these witnesses to travel to Arizona than to Colorado. See Rafton v. Rydex Series Fund, 2010 18 WL 2629579, *4 (N.D. Cal June 29, 2010). 19 Additionally, KeyPoint boasts that it is a large corporation with a "workforce, thousands 20 strong[that] spans the U.S. and its territories, Puerto Rico and Guam." (See Exh. H). Given 21 its resources and presence throughout the country, KeyPoint is in a much better position to 22 absorb any such costs compared to Plaintiff, an individual, aggrieved employee who, as a 23 result of the misclassification, was denied his right to overtime wages. See DeFazio v. 24 Hollister Employee Share Ownership Trust, 406 F.Supp.2d 1085, 1090 (E.D. Cal. 2005) 25 26 5 In 2013, Rule 45 of the Federal Rules of Civil Procedure was amended to permit courts to 27 issue nationwide deposition subpoenas, so long as the deposition takes place within 100 miles of the witnesses’ residence. But Rule 45 still does not empower courts to issue 28 nationwide trial subpoenas, because trials (unlike depositions) cannot be moved to within 100 miles of the witnesses’ residence. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 12 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 14 of 18 1 (citing Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000)). 2 For all these reasons, KeyPoint has failed to carry its burden to show the convenience 3 of the witnesses factor favors transfer. 4 2. KeyPoint has failed to meet its burden to show that Colorado is a more convenient forum for non-party witnesses 5 "The convenience of non-party witnesses is a more important factor than the 6 convenience of party witnesses." (Catch Curve, Inc. v. Venali, Inc., 2006 WL 4568799, at *3 7 (C.D. Cal., Feb. 27, 2006) (citing Saleh v. Titan Corp., 361 F.Supp.2d 1152, 1160 8 (S.D.Cal.2005)). Yet, KeyPoint presents zero evidence to support its summary conclusion 9 that the convenience of the non-party witnesses favors transfer. Not only does KeyPoint fail 10 to articulate any specific reasons why the District of Colorado would be a more convenient 11 forum for non-party witnesses, it also fails to identify who the non-party witnesses are and 12 what their testimony will cover. Rather, KeyPoint merely contends that because a mere 11% 13 (186 out of 1645) of its current employees are located in Colorado, more former employees 14 "reside, or likely reside" (emphasis added) in Colorado. KeyPoint’s "speculation that it will 15 need compulsory process over unspecified witnesses is insufficient to satisfy its burden." 16 Talley v. Pembrooke Occupational Health, Inc., 2009 WL 899701, at *2 (D. Ariz., Mar. 27, 17 2009) (citing Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F.Supp.2d 1183, 1193 18 (S.D.Cal.2007)). 19 The most likely non-party witnesses to Plaintiff Judd’s individual overtime claims are 20 the subjects of his investigations, their neighbors, the sources he interviewed including the 21 subjects’ roommates and friends and the local police all of whom reside in the District of 22 Arizona where Judd exclusively performed his work for Keypoint. See Exh. F., Judd Dep. at 23 22:1-25:2. Unlike the District Court in Colorado, this Court has the ability to subpoena 24 these Arizona-based non-party witnesses for both deposition and trial. This "availability of 25 compulsory process to compel attendance of unwilling non-party witnesses" favors keeping 26 this case in the District of Arizona, where Mr. Judd worked. Jones, 211 F. 3d at, 498–99; 27 see also In re: Volkswagon of America, Inc., 545 F. 3d 304, 316 (5th Cir. 2008). Indeed, 28 according to KeyPoint’s own briefing in the previous Smith action, the presence of non-PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 13 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 15 of 18 1 party witnesses such as these is precisely why venue is appropriate in a District where the 2 plaintiff worked, even when there are collective action claims. See Exh. G, Smith, Motion to 3 Transfer at p. 6. 4 E. Colorado does not provide greater ease of access to proof 5 To demonstrate that transfer is appropriate based on the location of records and 6 documents, the movant must show with particularity the location, difficulty of transportation, 7 and the importance of such records. Bohara v. Backus Hosp. Med. Benefit Plan, 390 F.Supp. 8 2d 957, 963 (C.D. Cal. 2005) (citing Segil v. Gloria Marshall Management Co., Inc., 568 9 F.Supp. 915, 919 (D.Utah 1983)). Here, KeyPoint has failed to make such a showing, instead 10 supporting its motion with mere conclusory allegations that independent contractor 11 agreements, payroll and job records are located at Defendants’ headquarters in Colorado. 12 The fact that various documents may be stored in Colorado is insignificant, as modern 13 technology has reduced the hardship associated with reviewing documents at remote 14 locations. See Talley, 2009 WL 899701, at *2. In this type of case where electronic discovery 15 is the norm (both for electronic information and digitized paper documents), transporting 16 documents does not generally create a burden. Hawkes v. Hewlett-Packard Co., No. CV-10-17 05957-EJD, 2012 WL 506569, at *5 (N.D. Cal. Feb. 15, 2012). Further, "without any specific 18 claim regarding the inconvenience of transporting documents, this factor does not support 19 transfer." Talley, 2009 WL 899701, at *2. 20 Furthermore, KeyPoint’s contention that documents are located in Colorado is belied by 21 the contrary position it took in the Smith action. In the Smith action, KeyPoint argued that 22 policy and procedure documents governing the details of how the Investigators had to perform 23 their jobs had to be obtained with permission from KeyPoint’s government client in 24 Washington D.C. See Smith action, KeyPoint’s Brief In Opposition To Plaintiff’s Motion To 25 Compel [ECF 52]. KeyPoint’s position that persons with the knowledge to testify regarding 26 its documents are located in Colorado is equally suspect. Indeed, KeyPoint admits that 89% 27 of its employees do not reside in Colorado and that its key witness, the National Director of 28 Independent Contracts, resides in North Carolina. See Boaz Decl. at ¶¶ 2-3. Accordingly, the PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 14 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 16 of 18 1 ease of access to proof factor is neutral. 2 F. KeyPoint mistakenly argues that the District of Colorado is more familiar with the governing law 3 This factor is also neutral. The complaint states only one cause of action, and this claim 4 is brought under federal law. There are no state law claims. 5 KeyPoint does not and cannot argue that the District of Colorado has considered or 6 decided any issues that might bear upon the issue of certification or whether the Investigators 7 are misclassified on the merits in this case. Instead, KeyPoint argues that the District Court 8 in Colorado has analyzed issues of law related to the confidentiality of certain KeyPoint 9 emails and other documents. Contrary to KeyPoint’s assertion, however, the Court in 10 Colorado simply referred this discovery matters to a special master. Smith action, [ECF 82] 11 Order Granting Summary Judgment at p. 8, Fn. 8; see Smith action, [ECF 82] Order 12 Appointing Master for Discovery. Although the special master reviewed the case file and 13 held telephonic conferences with counsel, he did not provide any opinions or issue any 14 rulings, and did not have a chance to do so before KeyPoint achieved summary judgment 15 against Mr. Smith. Exh. I, Smith action, itemized bill from special master. Accordingly, 16 KeyPoint’s argument that the District of Colorado is more familiar with the governing law in 17 this case is a red herring and this factor does not favor transfer. 18 G. The state of Arizona has an interest in assuring that companies that do business 19 in Arizona follow the law 20 While KeyPoint has chosen to designate Colorado as its headquarters, it is registered to 21 do business in Arizona and has more currently engaged independent contractor investigators, 22 (i.e., the potential members of the collective) in Arizona. See Exh. E, Arizona Corporate filing 23 2017; see also Boaz Decl. at ¶ 6. Additionally, Mr. Judd lived and work for Keypoint in 24 Arizona and his claims against KeyPoint arose in this District. 25 The case KeyPoint cites in support of its position, Lee v. Corrections Corp. of America, 26 525 F.Supp.2d 1238 (D. Hawaii 2007), demonstrates that this factor supports denial of 27 KeyPoint’s motion. In Lee, the District of Hawaii held that venue was more appropriate where 28 the events occurred to the plaintiff, rather than where the decisions leading to those events PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 15 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 17 of 18 1 might have occurred. Id. at 1241-1242, 125, n.6. Similarly, while Colorado may have some 2 interest in the controversy due to KeyPoint’s headquarters being there, Arizona has a greater 3 interest in protecting its citizens who work for KeyPoint here. 4 H. Defendant has failed to show that the District of Colorado is more efficient 5 KeyPoint contends that the six (6) month difference in the median time from filing to 6 trial favors transfer to Colorado. However, the administrative concern of docket congestion 7 is given only minimal weight in this District. Lopatin v. LTF Club Operations Company 8 Incorporated, 2016 WL 407319, at *3 (D. Ariz., Feb. 3, 2016). 9 IV. THE COURT SHOULD DENY KEYPOINT’S MOTION TO DISMISS BECAUSE PLAINTIFF’S CLAIMS ARE WITHIN THE TWO-YEAR 10 STATUTE OF LIMITATIONS 11 Plaintiff Judd worked for KeyPoint from June of 2008 through September of 2014. 12 Eleven (11) months later, on August 20, 2015, Judd filed a consent-to-join form in the Smith 13 action. Exh. J, Smith action, Judd Consent-to-Join [ECF 43]. At KeyPoint’s urging, the 14 District of Colorado dismissed Mr. Judd’s opt-in consent seventeen (17) months later (on 15 January 20, 2017), but without prejudice to him filing his own action.6 16 The filing of a consent-to-join form in a proposed collective action instituted under the 17 FLSA stops the running of the statute of limitations for that person. 29 U.S.C. § 256(b); Lewis 18 v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1129 (N.D. Cal. 2009) ("The FLSA statute of 19 limitations runs until a valid consent is filed"); Partlow v. Jewish Orphans' Home of Southern 20 California, Inc., 645 F.2d 757, 760 (9th Cir.1981), abrogated on other grounds by Hoffmann– 21 La Roche v. Sperling, 493 U.S. 165 (1989). In the event the opt-in consent is later dismissed 22 from the case, the statute of limitations does not begin running again until at least the date of 23 the dismissal, if not later. See In re Tyson Foods, Inc., 2008 WL 4613654, at *2 (M.D. Ga. 24 Oct. 15, 2008) ("Once an individual opts in to an FLSA collective action, the statute of 25 limitations is tolled from the date the consent form was filed, but if the court later denies 26 certification of the collective action and dismisses the opt-in plaintiffs, the statute of 27 In the Smith case, Plaintiff’s motion for conditional certification was delayed as a result of 6 28 obtaining discovery of applicable policies, as discussed in more detail in Plaintiff Judd’s currently pending Motion for conditional Certification. [ECF 11]. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 16 Case 3:17-cv-08050-SPL Document 16 Filed 05/01/17 Page 18 of 18 1 limitations resumes upon that dismissal."); Armstrong v. Martin Marietta Corp., 138 F.3d 2 1374, 1380 (11th Cir.1998); see also Ford v. Navika Capital Group, LLC 2016 WL 1069676, 3 at *12 (S.D. Ala., Mar. 17, 2016). 4 Under well settled law, the statute of limitations on Mr. Judd’s claims did not run for 5 the seventeen months his opt-in was pending in the Smith case. Conversely, Mr. Judd is only 6 13 months into the applicable statute of limitations—eleven (11) months from the end of his 7 employment until his consent was pending in the Smith action, and another two months from 8 the judgment dismissing his consent to join without prejudice, and the filing this case. 9 Accordingly, Judd’s claims fall within both the FLSA’s two-year and three-year statute of 10 limitations. 29 U.S.C. § 255(a).7 11 V. CONCLUSION 12 For the foregoing reasons, Plaintiff respectfully requests that this Court deny 13 Defendant’s Motion. 14 Dated: May 1, 2017 SCHNEIDER WALLACE 15 COTTRELL KONECKY WOTKYNS LLP 16 By:/s/Joshua Konecky 17 JOSHUA KONECKY Attorney for Plaintiff Orson Judd and the Proposed 18 Collective 19 7 20 Aside from the fact that the statute of limitations was suspended for 24 months while the Smith case was pending, KeyPoint is overreaching to suggest that the summary judgment 21 order in the Smith action has resolved the question of whether the two-year or three-year 22 limitations period under 29 U.S.C. § 255(a) applies to Mr. Judd’s claims (or anyone’s claims other than Mr. Smith). In Smith, the Court granted summary judgment against Mr. Smith, 23 who concededly was not within the two-year period, because he did not produce evidence that KeyPoint knew or had reason to know that its decision to classify the Investigators as 24 independent contractors was in violation of the FLSA, which would have triggered the 25 three-year period See Smith action, Order Granting Summary Judgment [ECF 95] at p. 4-5. As noted above, KeyPoint did not alert the District Court in Colorado of either the IRS 26 determination finding that it had misclassified another Investigator, nor other evidence of 27 knowledge and intent that Mr. Judd may present here. See Konecky Decl. at ¶ 3. These facts, which are pled in Mr. Judd’s Complaint, if true, are sufficient to demonstrate that 28 KeyPoint’s violation of the FLSA was willful so as to trigger the three year limitations period under 29 U.S.C. § 255(a). PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER/DISMISS Judd v. Keypoint 17

Affidavit DECLARATION OF JOSHUA G. KONECKY IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO TRANSFER VENUE OR IN THE ALTERNATIVE, DISMISS FOR FAILURE TO STATE A CLAIM AND FOR A STAY OF LITIGATION

Case 3:17-cv-08050-SPL Document 16-1 Filed 05/01/17 Page 1 of 4 Michael C. McKay, SBN 023354 1 SCHNEIDER WALLACE COTTRELL KONECKY 2 WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 3 Scottsdale, Arizona 85253 Telephone: (480) 428-0142 4 Facsimile: (866) 505-8036 mmckay@schneiderwallace.com 5 Joshua Konecky, SBN 182897 6 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 7 ljoyner@schneiderwallace.com SCHNEIDER WALLACE 8 COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 9 Emeryville, CA 94608 Telephone: (415) 421-7100 10 Facsimile: (415) 421-7105 11 Attorneys for Plaintiffs and the Proposed Collective 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF ARIZONA 14 ORSON JUDD, individually and on) Case No.: CV-17-08050-PCT-SPL 15 behalf of all others similarly situated,)) The Honorable Steven P. Logan 16 Plaintiffs,)) DECLARATION OF JOSHUA G. 17 vs.) KONECKY IN SUPPORT OF) PLAINTIFF’S OPPOSITION TO 18 KEYPOINT GOVERNMENT) DEFENDANT’S MOTION TO SOLUTIONS, INC., a Delaware) TRANSFER VENUE OR IN THE 19 corporation,) ALTERNATIVE, DISMISS FOR) FAILURE TO STATE A CLAIM AND 20 Defendant.) FOR A STAY OF LITIGATION) 21) Oral Argument Requested 22 23 24 25 26 27 28 DECLARATION OF JOSHUA G. KONECKY ISO OPPOSITION TO MOTION TO TRANSFER/DISMISS Judd v. Keypoint, Case No.: CV-17-08050-PCT-SPL Case 3:17-cv-08050-SPL Document 16-1 Filed 05/01/17 Page 2 of 4 1 I, JOSHUA KONECKY, hereby declare as follows: 2 1. I am a partner at Schneider Wallace Cottrell Konecky Wotkyns LLP, the attorneys 3 of record for Plaintiff in the above-captioned case. I am submitting this declaration in support 4 of Plaintiff’s Opposition to Defendant’s Motion to Transfer Venue, or in the Alternative, 5 Dismiss for Failure to State a Claim and for a Stay of Litigation. I am familiar with the file, 6 the documents, and the history related to this case. The following statements are based on my 7 personal knowledge and review of the files. If called on to do so, I could and would testify 8 competently thereto. 9 2. Our office has performed significant work in this litigation and in the earlier filed 10 action, Richard Smith, et al. v. KeyPoint Government Solutions, Inc., Case No. 1:15-cv-00865 11 (D. Colo.) ("Smith Action"). 12 3. In the Smith Action, before deciding the plaintiff’s conditional certification motion, 13 the Court held that the claims of the named plaintiff there (Mr. Smith) fell outside the statute 14 of limitations. The basis of the ruling was that Mr. Smith was beyond the shorter two year 15 statute of limitations under the FLSA, and did not raise a triable issue of fact to show 16 KeyPoint’s violation was "willful" to invoke the longer three-year limitations period under the 17 FLSA, 29 U.S.C. § 255(a). In deciding this issue, the Court did not have before it the IRS 18 determination letter of September 29, 2011, to KeyPoint’s CEO, Jeff Schlanger, explaining the 19 IRS’s conclusion that KeyPoint had misclassified one of its Investigators as an independent 20 contractor rather than an employee, which is attached as Exhibit A to this Declaration. Nor did 21 the Court have before it evidence of the previous misclassification case in California (Exhibits 22 B and C), or KeyPoint’s subsequent elimination of the independent contractor designation for 23 Investigators in California, but not in other States. Indeed, neither side in the Smith case 24 significantly briefed the statute of limitations or willful question. Still, the Court found that 25 Mr. Smith’s claims were barred by the statute of limitations and dismissed his action, without 26 reaching the substantive arguments concerning the merits of the classification scheme or 27 conditional certification. Significantly, the Court made the dismissal without prejudice to the 28 pursuit of the collective action claims by one or more of KeyPoint’s other Investigators in DECLARATION OF JOSHUA G. KONECKY ISO OPPOSITION TO MOTION TO TRANSFER/DISMISS Judd v. Keypoint, Case No.: CV-17-08050-PCT-SPL 1 Case 3:17-cv-08050-SPL Document 16-1 Filed 05/01/17 Page 3 of 4 1 another case. 2 4. Mr. Judd was one of the Investigators who had opted into the Smith case. His claims 3 were pending in the Smith Action from August 17, 2015, when he filed his consent to join form, 4 until January 20, 2017, when his claims were dismissed without prejudice. Mr. Judd filed the 5 instant collective action complaint in this Court on March 10, 2017. 6 5. Attached herewith as Exhibit A is a true and correct copy of the Internal Revenue 7 Service’s (IRS) seven-page determination letter to Defendant’s CEO, Jeff Schlanger, dated 8 September 29, 2011, explaining its conclusion that KeyPoint had misclassified one of its 9 Investigators as an independent contractor rather than an employee. 10 6. Attached herewith as Exhibit B is a true and correct copy of an email exchange 11 between with defense counsel for KeyPoint regarding stipulated Notice and discussing 12 KeyPoint’s position with respect to the arbitration agreement. 13 7. Attached herewith as Exhibit C is a true and correct copy of the Class Action 14 Settlement Agreement and Joint Stipulation filed in the Michael Sgherzi v. KeyPoint 15 Government Solutions, Inc., et al., Los Angeles County Superior Court, Case No. BC487486, 16 on June 5, 2014. 17 8. Attached herewith as Exhibit D is a true and correct copy of the complaint filed in 18 the Smith Action on January 29, 2015. 19 9. Attached herewith as Exhibit E is a true and correct copy of Defendant’s corporate 20 filing with the Arizona Corporation Commission dated January 16, 2017. 21 10. Attached herewith as Exhibit F are true and correct copies of excerpts of the 22 Deposition of Orson Judd, taken by Defendant in the Smith Action on March 24, 2016. 23 11. Attached herewith as Exhibit G is a true and correct copy Defendant’s Motion to 24 Transfer Venue in the Smith Action filed on March 31, 2015. 25 12. Attached herewith as Exhibit H is a true and correct copy of Defendant’s Website 26 page regarding its "Key Capabilities" which was accessed on April 26, 2017 at 27 http://www.keypoint.us.com/key-capabilities/and which my office caused to be printed. 28 13. Attached herewith as Exhibit I is a true and correct copy of the detailed billing entries DECLARATION OF JOSHUA G. KONECKY ISO OPPOSITION TO MOTION TO TRANSFER/DISMISS Judd v. Keypoint, Case No.: CV-17-08050-PCT-SPL 2 Case 3:17-cv-08050-SPL Document 16-1 Filed 05/01/17 Page 4 of 4 1 for the Special Master in the Smith Action. 2 14. Attached herewith as Exhibit J is a true and correct copy of the Consent-to-Join form 3 filed by Mr. Judd in the Smith Action. 4 15. Attached herewith as Exhibit K is a true and correct copy of Defendant’s Motion for 5 Summary Judgment filed on April 18, 2016 in the Smith Action. 6 16. Attached herewith as Exhibit L is a true and correct copy of Plaintiff Richard Smith’s 7 Opposition Defendant’s Motion for Summary Judgment filed on May 9, 2016 in the Smith 8 Action. 9 17. Attached herewith as Exhibit M is a true and correct copy of Defendant’s Reply in 10 support of its Motion for Summary Judgment filed on May 26, 2016 in the Smith Action. 11 18. Attached herewith as Exhibit N is a true and correct copy is a true and correct copy 12 of the declaration of Catherine Grassman filed in support of Defendant’s Motion to Transfer 13 on March 31, 2015 in the Smith Action. 14 I declare under penalty of perjury under the laws of the United States that the foregoing is 15 true and correct. Executed in Emeryville, CA on May 1, 2017. 16 17/s/Joshua G. Konecky 18 Joshua G. Konecky 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSHUA G. KONECKY ISO OPPOSITION TO MOTION TO TRANSFER/DISMISS Judd v. Keypoint, Case No.: CV-17-08050-PCT-SPL 3

Exhibit A to Declaration of Joshua G. Konecky

Case 3: 17-cv-08050-SPL Document 16-2 Filed 05/01/17 Page 1 of 8 EXHIBIT A Case 3: 17-cv-08050-SPL Document 16-2 Filed 05/01/17 Page 2 of 8 * i Internal Revenue Service 40 Lakemont Road Newport, VT 05855-1555 Department of the Treasury SBSE, Compliance BIRSC, SS-8 Program Septerriber 29, 2011 Jeff Schlanger, CEO Keypoint Government Solutions Inc. 1750 Foxtrail Dr., Unit 120 Loveland, CO 80538-8807 454 Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and income Tax Withholding Person to Contact: Beverly Miller 1023114 Telephone Number: 802-751-4446 Fax Number: 802-751-44544455 '. S... XK15.: NNEKSEIHIRBINIRAHrossiparwoodwinklemanya no. 7. * * * s. startCondon a' r *-Refer Reply to: Case # 86360 Dear Mr. Schlanger. The purpose of this letter is to respond to a request for a determination of employment status, for federal employment tax purposes, concerning the work relationship between Keypoint Government Solutions Inc., referred to as " the firm " in the rest of this tetter, and Michael J. Sgherzi referred to as " the worker " in the rest of this letter, it has come to our attention that the services were performed in 2005 through 2010. DETERMINATION RESULT We hold the Worker to have been an employee of the firm. In the rest of this letter, we will explain the facts, law, and rationale that form the basis for this finding. DESCRIPTION OF WORK RELATIONSHIP The firrn is the investigative service business. The fimm engaged the worker as an investigator to perform services under the firm's business contracts. Prior to the firm being awarded business contracts by the firm's customers, the firm was required to submit bids with proposals to the firm's customers. Within the blds were the firm's practices and procedures pertaining to enforcement, supervision, arid monitoring of the contracted services, The firm engaged the worker through signed contracts based on the woriker s experience, holding of required credentials, and availability. The firm assignäd the worker jobs that were available to be performed according to the workers qualifications.... sss!-ss8S0 UA vodsaak peo 2XCELLARIS 85JAtas a SSH PRESS EXHIBIT Szl-2DB PENGAD 800-681-6993 Zwił: Fasan Case 3: 17-cv-08050-SPL Document 16-2. Filed 05/01/17 Page 3 of 8. * * * Ta TEDYAKALAYAAN ATAS LAI-L '..... N:.-------ir... 1. V " " WM mus.-. u...----and credentials. The worker was allowed to accept or dec {re job ulers. Tiré wus kor determined when and how to perform the services based on specified rules and " regulations required under the film's contracted customers requirements as well as the firm's practices and procedures. The worker contacted the firm's designated management regarding any problems or complaints for resolution and the firm required the worker to resolve them. The worker was required to complete and provide various job related reports as required by the firm's contracted customerS) The worker determined the hours he--performed the services and was required to meet job related deadlineg once he accepted jobs. Theyorker was not prohibited by the firm from hiring substitutes or • helpers as long as they were preapproved by the firm and firm's contracted customers. · The firm provided the worker with the necessary access to acquire jobs, forms, and necessary information in order to perform the contracted services. The worker provided a computer, Supplies, automobile, and telephone. The firm'S COAtrasted customer provided investigative credentials and forms. The worker incurred some expenses that were not reimbursed by the firm. The worker was (paid an hourly wage ar fee' by the firm. The firm's contracted customers paid the firm based on the firm's bids. The workers economic loss and financial risks were related to re-yWork of unsatisfactory services at no additional costas determined by the firm and finn's contracted Customers. st IT-n Tur ILI IL ASES HI AAN. F34 There were contradas signed between the firm and the Worker indicating the worker to be an independerit contractor engaged on a nort-Exclusive basis. There were signed * * contracts between the firm and firm's clients, The Werke waƏTequired to completeall training ATROCIedentiating Mandated by the fifilŠICONERALECOUstarietät: Ehe worker was required to keepintutsforeealliligensASSTequired forderte-perfosETEtiers & IVIGASI Tae worker was PequireditorSubmit. GompletediWork tirsely as required by the fir and linsContracted: customers. The firm was requliet të pravide-the-firm s Customers prior to the firm' s. staft working: Off-site. with policies and procedures: Tegarding the satequaçding of documents, Information-positions, and job titles FhéilirTwąs-Tequired to provide the: labor, facilities;-materials manageInent-prosessing-IIAvestigation-qualité assurance-Badany. suticontractor, äAd-consultant: Oversighterneeded to produce quality: FPUOEK R. EE EI OP: VAS stificiale 17E * E€8% vestigaty ATT Orato KAHIT AF * PURPITS to-feminatstFREWork. Félationship at any time without imeuring any fiability. LAWN The question of whether an individual is an independent contractor or an employee is one that is determined through consideration of the facts of a particular case along with the application of law and regulations for worker classification issues, known as " common law. " Common law flows chiefly from court decisions and is a major part of the justice System of the United States. Under the common law, the treatment of a worker as an independent contractor or an employee originates from the legal definitions developed in the law and it depends on the payer's right to direct and control the worker in the performance of his or her duties. Section 3121 (d) {(2) of ie Code provides that the term GSSI-ssagO A * Hockey peng Heart POLASAS Case 3: 17-cv-08050-SPL Document 16-2. Filed 05/01/17 Page 4 of 8-im......----3 RII issission der. " employee " means any individual defined as an errepiuyue by using the vaual oammon law rules. Generally, the relationship of employer and employee exists when the person for whom the services are performed has the right to control and direct the individual who performs the services, not only as to what is to be done, but also how it is to be done. It is not necessary that the employer actually direct or control the individual, it is sufficient if he or she has the right to do so. In determining whether an individual is an employee or an independent contractor under the common law, all evidence of both control and lack of control or independence must be considered. We must examine the relationship of the worker and the business. We consider facis that show a right to direct or control how the worker performs the specific tasks for which he or she is hired, who controls the financial aspects of the worker's activities, and how the parties perceive their relationship, The degree of importance of each factor varies depending on the occupation and the context in which the services are performed. Section 31. 312i (d)-f (a) (3) of the regulations provides that if the relationship of an employer and employee exists, the designation or description of the parties as anything other than that of employer and employee Is Armaterial. Thus, if an employer employee relationship exists, any contractual designation of the employee as a partner, Co adventurer, agent, or independent contractor must be disregarded. Therefore, your statement that the worker was an independent contractor pursuant to an agreement is without ment. For federal employment tax purposes, it is the actual working relationship that is controlling and not the terms of the contract (oral or written) between the parties, A person who can realize a profit or suffer a loss as a result of his or her services is generally an independent coritractor, while the person who cannot is an employee. See Rev. Rui. 70-809, 1970-1 C. B. 199. " Profe or loss " implies the use of capital by a person in an independent business of his or her own. The risk that a worker wil not receive payment for his or her services, however, is Comrior to both independent contractors and employees and, thus, does not constitute a sufficient economic risk to support treatment as an independent contractor. If a worker losés payment from the firm's customer for poor work, the firm shares the risk of such loss. Control of the firm over the worker would be necessary in order to reduce the risk of financial loss to the fim. The opportunity for higher earnings or of gain or loss from a commission arrangement is not considered profit or loss. ANALYSIS We have applied the above law to the information submitted. As is the case in almost all worker classification cases, some tacts point to an employment relationship while other facts indicate independent contractor status. The determination of the workers status, then, rests on the weight given to the factors, keeping in mind that no one factor rules. The degree of importance of each factor varias depending on the occupation and the circumstances. SSSL-SS8SD " UDİLƏN 护学 aỊAjaş agUASSARE... Case 3: 17-cv-08050-SPL Document 16-2. Filed 05/01/17 Page 5 of 8----------تتیستمبضتستانتننتنت تست ، تهنشتسهتنتهنشیننسیسیقتستشنغنيته. مین: 2. gt Evidence of control generally falls into three categories: behavioral control, financial control, and relationship of the parties, which are collectively referred to as the categories of evidence. In weighing the evidence, careful consideration has been given to the factors outlined below. Factors that illustrate whether there is a right to control how a Worker. performs a task include training and instructions. In this case, you retained the right to change the workers methods and to direct the worker to the extent necessary to protect your financial investment. You engaged the worker to perform services for your business Customers. You entered into contracts with your customers to provide qualified labor, facilities, materials, management, processing, Investigation, quality assurance, and any subcontractor and consultant oversight needed to produce quality investigative leads provided in the reports of investigations provided by your customers. You required the WOFker to sign a contract Indicating he would comply with your Customers criteria for Investigators, and keep in full force ali licenses required to perform the services. You required the worker to contact your designated management regarding probierns or Complaints and resolve them. You required the Worker to provide you with required reports on accepted assignments timely based on due dates established by you and your customers. You required the worker to perform any re-work without payment for reports not accepted by you or your customers. You required the worker to have any substitutes or helpers pre-approved as required by your customers. These facts evidence behavioral control by you over the services performed by the worker, Even though you allowed the worker Some flexibility in performing the services, once accepted by the Worker, you were responsible for the Oversight necessary in order to meet your customers dešired and results per your contract with your Customers. Factors triat illustrate whether there is a right to direct and control the financial aspects of the worker's activities include significant Investment, unreimbursed expenses, the methods of payment, and the opportunity for profit or loss. In this case, the worker did not invest significant capital in a business. The worker did not have control over profit and loss with regard to the services you contracted to perform for your customers. You provided the contracted jobs, access to forms required by your customers, and management. The worker provided a computer, supplies, transportation, and telephone. Your custormers provided credentials and fois. The Worker incuted sortie expenses for personal items needed in order to perform the services. You reimbursed the worker for some expenses. You paid the worker an hourly wage or a fee. Your custorniers pald you. The worker could incur a profit or loss when required to perform re-work ał no additional cost as required by you. Although this could be an important factor to consider in an independent contractor relationship, this factor alone would not make the worker to be an independent contractor. In your contracts with your Customers, you established the prices in your bid for the contracts. Your business also could suffer a loss with regard to untimely submissions and re-work requirements. In order to protect your financial investment it would be both necessary and integral to your business operations to control the performance of the services. These facts show that you retained control over the financial aspects of the worker's services. ses SGSI-SS8SO LA Fedhe Pe問蒙 POINS SNUBNARJASSA Case 3: 17-cv-08050-SPL Document 16-2. Filed 05/01/17 Page 6 of 8..-: liv KER LO PENSIS * 1y. * * ntis: ritirat. * * * *. *..:: Trri err i I Factors that illustrate how the parties perceive their relationsnıp include the intent of Ure parties as expressed in written contracts; the provision of, or lack of employee benefits; the right of the parties to terminate the relationship: the permanency of the relationship, and whether the services performed are part of the service recipients regular business activities. There were written contracts between you and the worker indicating the worker to be an independent contractor. For federal employment tax purposes, the autonomy of a work relationship determines a worker status. If the autonomy is employer/employee than any agreements written or verbal indicating otherwise are irrelevant. The worker did perform similar services for others while performing services for your business and you did not prohibit the worker from doing so unless there was a conflict of interest. Orice the worker accepted jobs you determined the worker was qualified to perform, the worker was required to perform the services as contracted and meet your established due dates based on your business needs and your contracts with your customers. The services the worker performed were both a necessary and integral part of your business operations and fulfillment or your contracts with your customers.--... +--LITT FLEU..--+ 1-del---+ All parties retained the right to terminate the work relationship at any time without incurring any liability. The ability to terminate a work relationship at any time without incurring a legal contractual liability for early temination is indicative of an employer/employee relationship. An Independent contractor, on the other hand, cannot be fired or quit without incuring a liability so long as the independent contractor produces a result that meets the contract specifications. CONCLUSION Based on the above analysis, we conclude that the firm had the right to exercise direction and control over the worker to the degree necessary to establish that the worker was a common law employee, and riot an independent contractor operating a trade or business. TAX RAMIFICATIONS En + 1-Compensation to an individual classified as an employee is subject to federal income tax withholding, Federal Insurance Contributions Act fax (FICA), and Federal Unemployment Tax Act (FUTA) fax as provided by Sections 3101, 3301, and 3401 of the Iniemal Róvenue Code, and it is possible you are ilable for the same. The employFFIent tax liabilities for income tax withholding and FICA also apply to resident and nor-resident aliens, except that non-resident aliens may have an exception depending on their immigrant status. FUTA may also apply to the income earned by aliens, even when the income is not subject to FICA tax. If your worker is a resident or non-resident alien, and you need additional information, you may wish to obtain Publication 515, Withtolding of Tax on Nonresident Aliens and Foreign Entitles. For the years prior to 2008 in question, it is possible that the statute of limitations has expired for the assessment of taxes in this matter. If so, it will not be necessary for you to amend your return(s). Internal Revenue Code (IRC) section 6501 (a) provides that' irar p r HBr---InFIww. veten......... rrettrotruntur SsSE-SSSSO LA' voda peDY PUOLAREJO aƏLAƏS anime EREN----Case 3: 17-cv-08050-SPL Document 16-2. Filed 05/01/17 Page 7 of 8-I--...-LEI LE.-JU--.::: T ALESSANDRIA Situdinii ". PA. Si * A.,, " * ' ', the statute of limitations for assessment generally expires three years from the due date of the retum, or three years after the date the return was actually filed, whichever is later. IRC section 6501 (b) (2) provides that for certain employment tax returns, the three years would begin April 15 of the following year for which the return was due. IRC section 6511 (a) provides that a claim for credit or refund of an overpayment shall be fled within three years from the date the return was filed, or two years from the date the tax was paid, whichever expires later. This determination is based on the application of law to the information presented to us and/or discovered by us during the course of our investigation; however, we are not in a position to personally judge the validity of the information submitted. This ruling pertains to all workers performing services under the same or similar circumstances. It is binding on the taxpayer to whom it is addressed; however, section 6110 {k} (3) of the Code provides it may not be used or cited as precedent.-... H Je U S Lawrsuy Luth-Aras-. '-' 1. Internal Revenue Code section 7436 concerns reclassifications of worker status that occur during AS examinations. As this determination is not related to an IRS audit, it does not constitute a notice of determination under the provisions of section 7436, nor is this an audit for purposes of entitling you to section 530 relief (further explained below) if you are not otherwise eligible for such relief. OPTIONS AND ASSISTANCE... The S8-8 Program does not calculate your balance due and send you a bill. You are responsible for satisfying the employment tax reporting, filing, and payment obligations that result from this determination, such as filing employment tax retums or adjusting previously filed employment tax returns. Your immediate handling of this correction and your prompt payment of the tax may reduce any related interest and penalties.... S. S. TOSHKEIHGELEITA: # sit. w. ', ' n ":, k} AXNEFERTEKORAPILEFLAT' Ica "... Section 530 of the 1978 Revenue Act established a safe haven from an employers liability for employment taxes arising from an employment relationship. This relief may be available to employers who have misclassified workers if they meet certain criteria. This is explained more fully in the enclosed fact sheet. It is important to note that this office does not have the authority to grant section 530 relief in relation to this determination. Section 530 relief is officially considered and possibly granted by an auditor at the commencement of the examination process shoufd IRS select your return(s) for audit. The SS-8 determination process is not related to an examination of your returns. There is also no procedure available to you by which you can request an audit for the purpose of addressing your eligibility for section 530 relief. You should contact a tax professional if you need assistance with this matter, If you deem that the firm meets the criteria for section 580 relief as outlined in the enclosure, you do not have to file/adjust your employment tax returns to reflect this determination. Also, you may choose to reclassify this class of worker to employee status in accordance with this determination for future periods without Jeopardizing your ability to claim section 530 relief for past periods. If you are not eligible for section 530 rellet, and the failure to pay the correct amount of employment tax was due to the misclassification of a worker's status, you must adjust GSSL-SSSSO LA' Piots peoy Aroa 304nsag anuas TIM Case 3: 17-cv-08050-SPL Document 16-2. Filed 05/01/17 Page 8 of 8 3r::: " Trail....}... ',..., KATEdiingiznir. Y:: »...: your return(s) using speGITIG tax rates. I ne rates and other instructions on ne amendment process are outlined in Publication 4341, Information Guide for Employers Filing Fom 941 or Form 944. You may wish to obtain a copy of Publication 4341. The publication is available on the IRS internet site, or you may call to have a copy mailed to you (see the contact information at the bottom of this letter). If you need further assistance in filing/adjusting your employment tax returns due to the reclassification of your worker, please call the IRS help line at 1-800-829-4933. Call 1 866-455-7438 for assistance in preparing or correcting Forms W-2, W-3, 1099, 1096, or other information retums. For personal assistance, go to http://www.irs. gowapp/officeLocator/index. jsp to locate and visit the closest Taxpayer Assistance Center.----+ 1 +--H + +-+ · · · · · If you have any questions concerning this determination, please foel free to contact the person whose name and number are listed at the top of this letter. Please refer to your case number (86360) when contacting us about this case. Sincerely, Колише 2 дmao Patricia J. DeMaio Operations Manager Enclosures: Section 530 Fact Sheet Notice of IRS Compliance Expectations Notice 441 Sanitized Determination Letter for Public Disclosure cc: Michael J. Sgherzi To order forms and publications, please call 1-800-TAX-FORM or visit us online at WYWW. IIS.gov/formspubs. Letter 3711-A (CG) (Rev. 5-2011) Catakog Number abasco--------ŚSS1-S5890 LA' VodAEN PEc은 14議 80IAJag anuaAKAN....

Exhibit B to Declaration of Joshua G. Konecky

Case 3: 17-cv-08050-SPL Document 16-3 Filed 05/01/17 Page 1 of 2 EXHIBIT B Case 3: 17-cv-08050-SPL Document 16-3 Filed 05/01/17 Page 2 of 2 Josh G. Konecky From: Sent: To: Cc: Subject: Attachments: Kalk, Jacqueline E. < JKalk@littler.com > Friday, April 21, 2017 5: 08 PM Josh G. Konecky Hogan, Margaret Parnell; Lockner, Ryan G. Judd-Draft Tolling Agreement/Notice Proposal Firmwide _ 141920558 _ 1-C2. docx ENERALULLEIKARANNEN ALKOISEN VALLANMALALAYAK Riesta aikaisississistiniais ASEAN statakse teistes RSSALARAWANYIKA KATIKA KARNEesti keeles Josh: Thank you for taking the time to talk with me about these issues this evening. I have attached a draft tolling agreement for you to review on the proposed stay (as I mentioned our client has not reviewed the language so we may have a few modest edits). We look forward to your thoughts on this and appreciate your agreeing to at a minimum, give us a 21 day window to response. Also, I have confirmed that the arbitration agreements were not rolled out until June 2015. Our proposal on notice is that if Plaintiff would agree that the putative class is limited to those individuals that have not signed an arbitration agreement, we would recommend that our client agree to notice. Our position is that if anyone opted out for the Smith case, they are now bound by arbitration. I will shortly send you a calendar note for Monday to continue our conversation. In the interim, have a nice weekend. Jackie AI. Jacqueline Kalk, Shareholder 612. 313. 7645 direct 612. 222. 5609 mobile 612. 677. 3139 fax jkalk@littler.com 1300 IDS CENTER, 80 South 8th Street Minneapolis, MN 55402-2136 Littler, littler.com Employment & Labor Law Solutions Worldwide This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, P. C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information..

Exhibit C to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-4 Filed 05/01/17 Page 1 of 17 EXHIBIT C Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page2 Page 2ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page3 Page 3ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page4 Page 4ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page5 Page 5ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page6 Page 6ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page7 Page 7ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page8 Page 8ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page9 Page 9ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page10 Page 10ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page11 Page 11ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page12 Page 12ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page13 Page 13ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page14 Page 14ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page15 Page 15ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page16 Page 16ofof17 17 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-3 16-4 Filed Filed03/31/15 05/01/17 Page17 Page 17ofof17 17

Exhibit D to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-5 Filed 05/01/17 Page 1 of 15 EXHIBIT D Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page1 Page of 14 2 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page2 Page of 14 3 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page3 Page of 14 4 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page4 Page of 14 5 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page5 Page of 14 6 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page6 Page of 14 7 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page7 Page of 14 8 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page8 Page of 14 9 of 15 Case 3:17-cv-08050-SPL Case3:15-cv-00429 Document Document116-5 Filed01/29/15 Filed 05/01/17 Page9 Page of 14 10 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page10 Page of 11 14 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page11 Page of 12 14 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page12 Page of 13 14 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page13 Page of 14 14 of 15 Case Case3:15-cv-00429 3:17-cv-08050-SPL Document1 Document 16-5 Filed01/29/15 Filed 05/01/17 Page14 Page of 15 14 of 15

Exhibit E to Declaration of Joshua G. Konecky

Case 3: 17-cv-08050-SPL Document 16-6 Filed 05/01/17 Page 1 of 5 EXHIBIT E ONA CORPO DITAT DEVS Case 3: 17-cv-08050-SRSTATE Ontal€1 & N! 05/01/17 Page 2 of 5 E-FILED CORPORATION COMMISSION 05798980 CORPORATION ANNUAL REPORT & CERTIFICATE OF DISCLOSURE ORATION CO in OF THE ARE SUSANA... COMMISSIE ADITAT DEUS * 1912 * DUE ON OR BEFORE 02/26/2017 FILING FEE $ 45 PLEASE READ ALL INSTRUCTIONS. The following information is required by A. R. S. SS10-1622 & 10-11622 for all corporations organized pursuant to Arizona Revised Statutes, Title 10. The Commission's authority to prescribe this form is A. R. S. SS 10 121 (A) & 10-3121 (A). YOUR REPORT MUST BE SUBMITTED ON THIS ORIGINAL FORM. Make changes or corrections where necessary. Information for the report should reflect the current status of the corporation. F15087750 KEYPOINT GOVERNMENT SOLUTIONS, INC. 2338 W ROYAL PALM RD # J PHOENIX, AZ 85021 Business Phone: State of Domicile: DE (Business phone is optional.) Type of Corporation: BUSINESS Statutory Agent: CORPORATION SERVICE COMPANY Mailing Address: 2338 W ROYAL PALM RD # J City, state, Zip: PHOENIX, AZ 85021 Statutory Agent's Street or Physical Address: Physical Address: City, State, Zip: 33 BRERET;} ACC USE ONLY Fee $ _ 45. Penalty $ _ 0 Reinstate $ 0 Expedite $. Resubmit $ _ If appointing a new statutory agent, the new agent MUST consent to that appointment by signing below. Note that the agent address must be in Arizona. I, (individual) or We, (corporation or limited liability company) having been designated the new Statutory Agent, do hereby consent to this appointment until my removal or resignation pursuant to law. Signature of new Statutory Agent Printed Name of new Statutory Agent 3. Secondary Address: (Foreign Corporations are REQUIRED to complete this section). 1750 FOXTRAIL DRIVE LOVELAND, co 80538 CHARACTER OF BUSINESS SECURITY INVESTIGATIONS & CONSULTING SERVICES Received: 01/16/2017 09: 33 AR: 0046 Rev. 08/2016 Arizona Corporation Commission Corporations Division F1508775CasEY POINT GOVERNMENOGOLOTTINS, Fird 05/01/17 Page 3 of 5 Page 2 5. CAPITALIZATION:-profit Corporations and Business Trusts are REQUIRED to complete this section.) Business trusts must indicate the number of transferable certificates held by trustees evidencing their beneficial interest in the trust estate. 5a. Please examine the corporation's original Articles of Incorporation for the amount of shares authorized. Number of Shares/Certificates Authorized Class Series Within Class (if any) 1000 5b. Review all corporation amendments to determine if the original number of shares has changed. Examine the corporation's minutes for the number of shares issued. Number of Shares/Certificates Issued Class Series Within Class (if any) 100 6. SHAREHOLDERS: [[For-profit Corporations and Business Trusts are REQUIRED to complete this section.) List shareholders holding more than 20% of any class of shares issued by the corporation, or having more than a 20% beneficial interest in the corporation. NONE 7. OFFICERS Name: ERIC HESS Title: PRESIDENT/CEO Address: 1750 FOXTRAIL DRIVE LOVELAND, CO 80538 Date Taking office: 03/01/2014 Name: SUSAN A ORDAKOWSKI Title: SECRETARY Address: 1750 FOXTRAIL DRIVE LOVELAND, CO 80538 Date Taking Office: 06/23/2011 Name: MICHAEL CHAO Title: TREASURER Address: 1750 FOXTRAIL DRIVE LOVELAND, CO 80538 Date Taking Office: 12/15/2014 Name: Title: Address: Date Taking Office: 8. DIRECTORS Name: RAMZI M MUSALLAM Address: 590 MADISON AVENUE 41ST FLOOR NEW YORK, NY 10022 Date Taking Office: 01/01/2009 Name: HUGH D EVANS Address: 590 MADISON AVENUE 41ST FLOOR NEW YORK, NY 10022 Date Taking Office: 01/01/2009 Name: BENJAMIN M POLK Address: 590 MADISON AVENUE 41ST FLOOR NEW YORK, NY 10022 Date Taking Office: 01/01/2009 Name: JEFFREY R SCHLANGER Address: 590 MADISON AVENUE 41ST FLOOR NEW YORK, NY 10022 Date Taking Office: 01/31/2014 AR: 0046 Rev. 08/2016 Arizona Corporation Commission Corporations Division F15087750 GASTPOINTCVCONTRNMENT SOLUTIONS-61Nilęd 05/01/17 Page 4 of 5 Page 3 9. FINANCIAL DISCLOSURE (A. R. S. 410-11622 (A) (9)) Nonprofits – financial disclosure is no longer required. Cooperative marketing associations – must submit a financial statement. All other types of corporations are not required to file a financial statement. A. Hasa w N--ONLY NONPROFIT CORPORATIONS MUST ANSWER THIS QUESTION: 9A. MEMBERS (A. R. S. $ 10-11622 (A) (6)) This corporation DOES O DOES NOT a have members. 10. CERTIFICATE OF DISCLOSURE (A. R. S. 88 10-202 (D), 10-3202 (D), 10-1622 (A) (8) & 10-11622 (A) (7)) Has any person who is currently an officer, director, trustee, incorporator, or who, in a For-profit corporation, controls or holds more than 10% of the issued and outstanding common shares or 10% of any other proprietary, beneficial or membership interest in the corporation been: Convicted of a felony involving a transaction in securities, consumer fraud or antitrust in any state or federal jurisdiction within the five year period immediately preceding the execution of this certificate? Convicted of a felony, the essential elements of which consisted of fraud, misrepresentation, theft by false pretenses or restraint of trade or monopoly in any state or federal jurisdiction within the five year period immediately preceding execution of this certificate? Subject to an injunction, judgment, decree or permanent order of any state or federal court entered within the five year period immediately preceding execution of this certificate where such injunction, judgment, decree or permanent order involved the violation of: (a) fraud or registration provisions of the securities laws of that jurisdiction, or (b) the consumer fraud laws of that jurisdiction, or (c) the antitrust or restraint of trade laws of that jurisdiction? 5. 2. 4. One box must be marked: YESO NO If " YES " to A, the following information must be submitted as an attachment to this report for each person subject to one or more of the actions stated in Items 1 through 3 above. 1. Full birth name. 5. Date and location of birth. Full present name and prior names used. The nature and description of each conviction or judicial 3. Present home address. action; the date and location; the court and public agency All prior addresses for immediately preceding 5 year involved; and the file or cause number of the case. period. Has any person who is currently an officer, director, trustee, incorporator, or who, in a For-profit corporation, controls or holds over 20% of the issued and outstanding common shares, or 20% of any other proprietary, beneficial or membership interest in the corporation, served in any such capacity or held a 20% interest in any other corporation on the bankruptcy or receivership of that other corporation? One box must be marked: YES O NO If " YES " to B, the following information must be submitted as an attachment to this report for each corporation subject to the statement above. (a) Name and address of each corporation and the persons involved. (b) State(s) in which it: (1) was incorporated and (i) transacted business. (c) Dates of corporate operation. 11. STATEMENT OF BANKRUPTCY OR RECEIVERSHIP (A. R. S. SS 10-1623 & 10-11623) A. Has the corporation filed a petition for bankruptcy or appointed a receiver? One box must be marked: YES O NO If " Yes " to A, the following information must be submitted as an attachment to this report: 1. All officers, directors, trustees and major stockholders of the corporation within one year of filing the petition for bankruptcy or the appointment of a receiver. If a major stockholder is a corporation, the statement shall list the current president, chairman of the board of directors and major stockholders of such corporate stockholder. " Major stockholder " means a shareholder possessing or controlling twenty per cent of the issued and outstanding shares or twenty per cent of any proprietary, beneficial or membership interest in the corporation. Whether any such person has been an officer, director, trustee or major stockholder of any other corporation within one year of the bankruptcy or receivership of the other corporation. If so, for each such corporation give: (a) Name and address of each corporation, (b) States in which it: (i) was incorporated and (ii) transacted business. (c) Dates of operation. 12. SIGNATURES: Annual Reports must be signed and dated by at least one duly authorized officer or they will be rejected. I declare, under penalty of perjury, that all corporate income tax returns required by Title 43 of the Arizona Revised Statutes have been filed with the Arizona Department of Revenue. I further declare under penalty of perjury that I (we) have examined this report and the certificate, including any attachments, and to the best of my (our) knowledge and belief they are true, correct and complete. SUSAN A ORDAKOWSKI 01/16/2017 Name Date Signature SUSAN A ORDAKOWSKI SECRETARY Title (Signator(s) must be duly authorized corporate officer(s) listed in section 7 of this report.) Arizona Corporation Commission Rev. 08/2016 Corporations Division 2. AR: 0046 F15087750ay在全BATS = 08252 RHE OgbDevilESS, Fried 05/01/17 Page 5 of5 Additional Directors Name: MICHAEL CHERTOFF Address: 590 MADISON AVENUE 41ST FLOOR NEW YORK, NY 10022 Date Taking Office: 01/01/2009 Name: JOE BENAVIDES Address: 590 MADISON AVENUE 41ST FLOOR NEW YORK, NY 10022 Date Taking Office: 01/01/2009

Exhibit F to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-7 Filed 05/01/17 Page 1 of 12 EXHIBIT F IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLORADO RICHARD SMITH, individually and) on behalf of all others) similarly situated,)) Plaintiff,)) v.) No. 15-cv-00865-REB) KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,)) Defendant.) ________________________________) DEPOSITION OF ORSON V. JUDD Tucson, Arizona March 24, 2016 9:07 a.m. REPORTED BY: Thomas A. Woppert, RPR AZ CCR No. 50476 Hunter + Geist, Inc. 303.832.5966 1900 Grant Street, Suite 1025 www.huntergeist.com 800.525.8490 Denver, CO 80203 scheduling@huntergeist.com Your Partner in Making the Record Court Reporting, Legal Videography, and Videoconferencing Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 3 of 12 3/24/2016 Page 2 DEPOSITION OF ORSON V. JUDD, taken on March 24, 2016, commencing at 9:07 a.m., at the offices of KATHY FINK & ASSOCIATES, 2819 East 22nd Street, Tucson, Arizona, 85713, before THOMAS A. WOPPERT, RPR, a Certified Court Reporter in the State of Arizona. COUNSEL APPEARING: LITTLER MENDELSON, P.C. By Ms. Karin M. Cogbill 50 West San Fernando Street, 15th Floor San Jose, California 95113 Attorneys for Defendant KeyPoint Government Solutions, inc. LAW OFFICES OF KEVIN T. BARNES By Mr. Michael C. Sheridan 5670 Wilshire Boulevard, Suite 1460 Los Angeles, California 90036 Attorneys for Plaintiffs ALSO PRESENT: Ms. Jennifer Boaz, National Director of Independent Contracts. scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 4 of 12 3/24/2016 Page 4 1 ORSON V. JUDD 2 called as a witness herein, having been first duly sworn, 3 was examined and testified as follows: 4 5 E X A M I N A T I O N 6 7 BY MS. COGBILL: 8 Q. Can you go ahead and state your full name for the 9 record? 10 A. Orson Vern Judd. 11 Q. Mr. Judd, have you ever had your deposition taken 12 before? 13 A. No. 14 Q. Okay. So I'm going to go over just some initial 15 ground rules before we get started. 16 So the first one is that we do have a court 17 reporter here and he'll be taking down everything that's 18 said, so my questions, your answers, any objections your 19 counsel may have. In order to ensure that we have a 20 complete record, it's very important to allow me to finish 21 my question before you give your answer. There will be 22 plenty of times where you know exactly what I'm going to say 23 and conversationally you might anticipate and be ready to 24 answer, but I need you to actually wait until that whole 25 question gets out and then give me your answer. scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 5 of 12 3/24/2016 Page 22 1 Q. Can you generally tell me what's involved in 2 handling a case? 3 So what are the steps that you would take when 4 you receive a case assignment? 5 A. When I received a case assignment, then I would 6 go into the--I'd get on the computer and I would check to 7 find out what the case is all about and who--if I was--8 got a full-blown case, you know, like subject interview, 9 source interviews, neighborhood checks and--and things of 10 this nature, then I would have to do--have to print out 11 the case, review the case, find out where the subject was 12 working or living, find out who--who he put down as 13 possible sources that I could interview. 14 So I would have to brief the case. I would have 15 to set up and determine how to--how to go about it. If 16 there's any financial issues, any criminal issues or 17 anything, drug usage or anything like that, then I would 18 have to determine which forms I needed to use, and then I 19 would have to set up the case, get ready to--and I would 20 have to contact these individuals. 21 Q. Are there times where you just on an 22 assignment--on a case assignment where you would have just 23 done a records check or a source interview versus doing what 24 you have just described as the source, the subject 25 interviews, the records check? scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 6 of 12 3/24/2016 Page 23 1 A. Oh, yeah. They would--if there was--you 2 know, if they gave you cases, and then if there's something 3 that you're going to be doing in that area, they may request 4 that you do a--a records check for somebody else, source 5 and neighbor checks and things like this, yes. 6 Q. What's involved in a neighborhood check? 7 A. The neighborhood check, you have a form, it's 8 just like a source form, and you find out what this--you 9 know, you knock on the door and you check with the neighbor, 10 you know, did you know so-and-so and what would you--you 11 know, just ask them the source questions to find out what 12 kind of a, you know, person this individual was, if they 13 knew them very well. 14 Q. And other examples of source interviews might be 15 co-workers? 16 A. Right. 17 Q. It might be roommates? 18 A. Friends. 19 Q. Any other types of sources? 20 A. If there's anything derogatory about--21 especially in a divorce case. If there's derogatory, then 22 we would go and interview the ex-spouse and try to get their 23 information. 24 Q. Now, part of your goal as an investigator would 25 be determining which individuals to interview as part of scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 7 of 12 3/24/2016 Page 24 1 your source interviews; correct? 2 A. Right. Basically we would interview the subject 3 and he would give us information, people that we could 4 interview. We would interview the sources and determine if 5 there's any other people that we can interview. You have to 6 interview so many sources based on the--on the case. 7 Q. And is the scope of the case kind of driven by 8 the--whatever security clearance the individual's 9 requesting? 10 A. Right. 11 Q. And so does the number of sources differ from 12 case to case? 13 A. Yes. In a single-scope investigation, what I can 14 remember, you required at least two sources. A full-blown 15 case would require, I think, at least four sources. 16 Q. And what do you recall as being a case--and I 17 don't necessarily want you to give me last names, but maybe 18 give me location or time period of when it occurred, but 19 that you recall being--a case that took you the most 20 amount of time to complete? 21 A. A case that would start at Fort Huachuca, but the 22 person lived in Tucson. I would interview sources at Fort 23 Huachuca, and then I would interview sources in--in 24 Tucson, do neighborhood checks, check with the police there 25 because he lived in that area, you know, a certain amount of scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 8 of 12 3/24/2016 Page 25 1 time. And then at Fort Huachuca, you're doing a subject 2 interview, and then you interview sources at his work. 3 Q. And in total, approximately how long might you 4 have spent doing the interviews, the records check and 5 preparing the report? 6 A. On a daily basis? 7 Q. No, total on this case. 8 A. Oh, boy. 9 Q. What I'm trying to get a sense of is--think 10 about the case that took you the longest amount of time to 11 complete and tell me how much time that was. 12 A. Probably over a period of time, I'd say between 13 two to three days. 14 Q. And about how many hours between those two to 15 three days? 16 A. To actually, you know, do the footwork, the 17 interviews and preparation, time that--in between, you go 18 to Tucson, there's a certain amount of time that you can, 19 you know, do neighborhood checks. You can't just do them--20 a lot of people work, and then you have to wait until, you 21 know, about five o'clock or six o'clock in the afternoon to 22 interview these people, so you're looking at--and then 23 getting home and typing up the cases and submitting them. 24 I'd say I probably spent about 10 to 12 hours per day on 25 those. scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V. Document JUDD 16-7 Filed 05/01/17 Page 9 of 12 3/24/2016 Page 40 1 A. I think it was--what was it--20 or $25. 2 Q. And what was involved in a records check? 3 A. Well, it depends if it was a financial records 4 check or if it's a police records check. So what's the 5 question? 6 Q. What was involved? 7 So you'd go to the police station? 8 A. Right. Yeah, we'd go to the police station. 9 Q. You give them the forms? 10 A. Yes, we'd give them the forms, and then we would 11 have to leave the--the forms with them. And sometimes--12 let me see. On post when we did a records check, a police 13 records check, they could do it right then and there. In 14 Sierra Vista or other places, we would have to fill out the 15 form and leave it there, and then we would have to come back 16 and pick up the form. 17 Q. And then writing your reports, approximately how 18 long did it take to do a report? 19 A. It depends on the--on the case itself. I mean, 20 if it's a subject interview and there was no glaring 21 deficiencies or anything like that, I would say anywhere 22 from, oh, two to--two to three hours to do the report. 23 Q. And you were not paid a separate fee for the 24 report; correct? 25 A. No. scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint CaseGovernment Solutions 3:17-cv-08050-SPL ORSON 16-7 Document V. JUDD Filed 05/01/17 Page 10 of 12 3/24/2016 Page 51 1 Q. And are there some weeks when you worked as an 2 investigator where you might drive more than others? 3 A. Yes. 4 Q. Okay. There were some weeks where you might have 5 a case assignment that is more local to where you live; 6 correct? 7 A. I think I had one--one case that I worked out 8 of Benson, which is only seven miles away. I can't recall 9 when I did that case, but for the most part, I worked in 10 Sierra Vista or Fort Huachuca. 11 Q. Let me ask you, was it your practice to work on 12 like one case at a time? 13 A. No. If I had several cases and they were in the 14 same area, then I would attempt to work on cases at the same 15 time. 16 Q. When you looked at kind of what your earnings--17 what your offerings were to the church--18 A. Uh-huh. 19 Q.--and you extrapolated that to the--what the 20 kind of monthly payment you would have received from 21 KeyPoint was, how then did you decide how many weeks in that 22 given month you would have worked? 23 For example, in September of 2012--24 Sorry. That's a terrible example. 25 Let's go to October of 2012. How were you able scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint CaseGovernment Solutions 3:17-cv-08050-SPL ORSON 16-7 Document V. JUDD Filed 05/01/17 Page 11 of 12 3/24/2016 Page 68 1 quick as possible, so when I get a case assignment, I look 2 at the information I have on that person, and then I will 3 attempt to contact them, set up the--make the appointment 4 and go out there to interview them. 5 Q. And earlier you talked about sort of it was 6 your--you would get a case done within about two to three 7 days. Is that kind of what your general practice is? You 8 start a case and you finish it within two to three days? 9 A. If I can. 10 Q. Now, you could, if you wanted to, do a subject 11 interview on one day, do two source interviews the next day 12 and wait and do two other source interviews three days 13 later? 14 MR. SHERIDAN: Incomplete hypothetical. 15 THE WITNESS: I wouldn't do that because, if I'm 16 working on a case and I'm in that area, I'm going to do as 17 much as I can on that case because, like I say, I live in 18 St. David. I'm 35 miles away from there, and so I don't 19 want to, you know, keep going back. It's not cost 20 effective, so I will attempt to get as much done on that 21 case as I can. 22 BY MS. COGBILL: 23 Q. After you submit your report, have you ever had 24 the report sent back to you for a redo? 25 A. A redo, yes, I have. scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490

Exhibit G to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-8 Filed 05/01/17 Page 1 of 17 EXHIBIT G Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page1 Page of 2 of 1617 1 KARIN M. COGBILL, Bar No. 244606 kcogbill@littler.com 2 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor 3 San Jose, California 95113.2303 Telephone: 408.998.4150 4 Facsimile: 408.288.5686 5 Attorneys for Defendant KEYPOINT GOVERNMENT SOLUTIONS, INC. 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD SMITH, individually and on Case No. 3:15-cv-00429 (HSG) behalf of all others similarly situated, 12 DEFENDANT KEYPOINT Plaintiff, GOVERNMENT SOLUTIONS, INC.’S 13 NOTICE OF MOTION AND MOTION TO v. TRANSFER VENUE; MEMORANDUM OF 14 POINTS AND AUTHORITIES IN KEYPOINT GOVERNMENT SUPPORT THEREOF 15 SOLUTIONS, INC., a Delaware Corporation, [28 U.S.C. § 1404] 16 Defendant. Date: June 4, 2015 17 Time: 2:00 pm Courtroom: 15 18 Judge Haywood S Gilliam, Jr. 19 Complaint Filed: January 29, 2015 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. MOTION TO TRANSFER VENUE 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 Case No. 3:15-cv-00429 (HSG) 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page2 Page of 3 of 1617 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION................................................................................................................... 2 4 II. FACTUAL BACKGROUND.................................................................................................. 3 5 A. KeyPoint Retains Independent Contractors Outside of California to Perform Investigative Services On Behalf of The Federal Government................................... 3 6 B. Plaintiff Smith Resided and Worked in Ohio During the Limited Time Period 7 Applicable to His Claim............................................................................................... 3 8 C. Any California Independent Contractor Who Previously Had an FLSA Claim Released Said Claim By Way of Prior Litigation........................................................ 4 9 D. The Scope of Plaintiff’s Claim Against KeyPoint....................................................... 5 10 III. LEGAL ARGUMENT............................................................................................................. 5 11 A. Legal Standard for Transfer of Venue Under 28 U.S.C. § 1404(a)............................. 5 12 B. Venue Is Proper In Both Ohio and Colorado Because Plaintiff Could Have 13 Filed This Complaint Either District............................................................................ 6 14 C. The Convenience Of The Parties And Witnesses And The Interest Of Justice Weigh In Favor Of A Transfer To The Southern District of Ohio, or 15 Alternatively the District of Colorado......................................................................... 7 16 1. The Court Should Give Little Weight To Plaintiff’s Choice of Forum In Balancing The Factors Affecting Whether A Transfer Of Venue Is 17 Warranted......................................................................................................... 8 18 2. Convenience of the Parties and Witnesses and Ease of Access to Evidence Favor Transfer to the Southern District of Ohio, or in the 19 Alternative the District of Colorado................................................................ 9 20 3. This District Has No Local Interest In This Case.......................................... 10 21 4. Transfer Is Appropriate Because The Northern District of California Court Is More Congested Than Either The Southern District of Ohio or 22 The District of Colorado................................................................................ 11 23 IV. CONCLUSION...................................................................................................................... 11 24 25 26 27 28 LITTLER MENDELSON, P.C. MOTION TO TRANSFER VENUE 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 i. Case No. 3:15-cv-00429 (HSG) 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page3 Page of 4 of 1617 TABLE OF AUTHORITIES 1 Page(s) 2 CASES 3 Costco Wholesale Corp. v. Liberty Mutual Ins. Co., 472 F. Supp. 1183 (S.D. Cal. 2007).........................................................................................11 4 Decker Coal Co. v. Commonwealth Edison Co., 5 805 F.2d 834 (9th Cir. 1986)...................................................................................................11 6 Evancho v. Sanofi-Aventis U.S., Inc., 7 2007 U.S. Dist. LEXIS 35500 (N.D. Cal May 3, 2007)............................................................9 8 Foster v. Nationwide Mut. Ins. Co., 2007 U.S. Dist. LEXIS 95240 (N.D. Cal. Dec. 14, 2007).....................................................7, 8 9 Gates Learjet Corp. v. Jensen, 10 745 F.2d (9th Cir. 1984)..........................................................................................................11 11 Hatch v. Reliance Ins. Co., 12 758 F.2d. 409 (9th Cir. 1985)....................................................................................................6 13 Hernandez v. United States, 2009 U.S. Dist. Lexis 24452 (N.D. Cal. Mar. 13, 2009).................................................8, 9, 10 14 Hoefer v. U.S. Dep’t of Commerce, 15 2000 U.S. Dist. LEXIS 9299 (N.D. Cal. June 28, 2000)...........................................................8 16 Johns v. Panera Bread Company, 17 2008 U.S. Dist. LEXIS 78756 (N.D. Cal July 21, 2008).......................................................7, 8 18 Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987).....................................................................................................8 19 Pac. Car and Foundry Co. v. Pence, 20 403 F.2d 949 (9th Cir. 1968).....................................................................................................8 21 Piper Aircraft Co. v. Reyno, 22 454 U.S. 235 (1981)...................................................................................................................5 23 Stabencheck v. Safeway Stores, Inc., 2012 U.S. Dist. Lexis 168965 (N.D. Cal. Nov. 28, 2012).................................................5, 6, 8 24 Stewart Org. v. Ricoh Corp., 25 487 U.S. 22 (1988).....................................................................................................................7 26 Van Dusen v. Barrack, 376 U.S. 612 (1964)...................................................................................................................5 27 28 LITTLER MENDELSON, P.C. MOTION TO TRANSFER VENUE 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 i. Case No. 3:15-cv-00429 (HSG) 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page4 Page of 5 of 1617 1 TABLE OF AUTHORITIES (continued) 2 Page 3 STATUTES 4 28 U.S.C. § 1391(b)(2)....................................................................................................................6 5 28 U.S.C. § 1404(a)...........................................................................................................1, 5, 8, 11 6 29 U.S.C. § 255(a)...........................................................................................................................5 7 Fair Labor Standards Act, 29 U.S.C. § 201, et seq......................................................................4, 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. MOTION TO TRANSFER VENUE 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 ii. Case No. 3:15-cv-00429 (HSG) 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page5 Page of 6 of 1617 1 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on June 4, 2015, at 2:00 p.m., or as soon thereafter as 3 the matter may be heard in Courtroom 15 of the above-entitled Court located at 450 Golden Gate 4 Avenue, San Francisco, California 94102, Defendant KEYPOINT GOVERNMENT SOLUTIONS, 5 INC. will move this Court for an order transferring this case to the United States District Court, 6 Southern District of Ohio, Western Division, or in the alternative to the United States District Court 7 of Colorado. This motion is made on the grounds that pursuant to 28 U.S.C. section 1404(a) the case 8 should be transferred for the convenience of witnesses and the parties, and to promote the interests 9 of justice. 10 This motion is made and based on this Notice of Motion and the Memorandum of 11 Points and Authorities filed herewith, the declaration of Karin Cogbill, the declaration of Catherine 12 Grassman, the pleadings and records on file with this Court, and on such oral and documentary 13 evidence as may be presented at the time of hearing. 14 Dated: March 31, 2015 15 16/s/Karin M. Cogbill 17 KARIN M. COGBILL LITTLER MENDELSON, P.C. 18 Attorneys for Defendant KEYPOINT GOVERNMENT SOLUTIONS, 19 INC. 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. MOTION TO TRANSFER VENUE 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 1. Case No. 3:15-cv-00429 (HSG) 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page6 Page of 7 of 1617 1 I. INTRODUCTION 2 Plaintiff Richard Smith ("Plaintiff") filed this proposed nationwide collective action 3 against Defendant KEYPOINT GOVERNMENT SOLUTIONS, INC. ("Defendant" or "KeyPoint") 4 in California despite the fact that the material events underlying the allegations in Plaintiff’s 5 Complaint occurred on the other side of the country in Ohio. Plaintiff alleges that KeyPoint 6 misclassified him and other unspecified individuals as independent contractors, and in doing so 7 allegedly violated federal law – the Fair Labor Standards Act ("FLSA") – by failing to pay overtime. 8 Plaintiff does not allege any violations of California law. Plaintiff did not perform services as an 9 independent contractor in California during the relevant time period. Plaintiff does not reside in 10 California, nor has he for five years. KeyPoint does not have any independent contractors in 11 California, and those that previously worked as independent contractors in the Northern District of 12 California have no claim against KeyPoint. Further, KeyPoint is neither incorporated nor 13 headquartered in California, nor does it maintain any offices in California. 14 Accordingly, venue of this case should be transferred to either the Southern District 15 of Ohio, Western Division, 1 where Plaintiff presently resides and previously worked as an 16 independent contractor, or alternatively to the District of Colorado where Defendant is 17 headquartered and its corporate witnesses reside. A transfer to either district would promote the 18 interests of justice and provide a more convenient forum for the parties and witnesses because: (1) 19 Plaintiff has been living and working in the Southern District of Ohio since 2010; (2) Plaintiff has no 20 nexus to California, or the Northern District of California; (3) the events which gave rise to 21 Plaintiff’s claims allegedly occurred in the Southern District of Ohio; (4) evidence related to 22 Plaintiff’s claims reside outside of the Northern District of California; (5) judges in both the 23 Southern District of Ohio and the District of Colorado are equally capable of interpreting the 24 requirements of the FLSA; and (6) the Northern District of California’s docket is congested in 25 comparison to the Southern District of Ohio and the District of Colorado. 26 27 1 Southern District of Ohio, Local Rule 82.1, provides that Greene County, where Plaintiff resides 28 and works is within the Western Division. LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 2. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page7 Page of 8 of 1617 1 The Court should therefore grant KeyPoint’s motion and transfer this action to the 2 United States District Court for the Southern District of Ohio, or in the alternative to the District of 3 Colorado. 4 II. FACTUAL BACKGROUND 5 A. KeyPoint Retains Independent Contractors Outside of California to Perform Investigative Services On Behalf of The Federal Government 6 7 KeyPoint retains individuals as independent contractors to perform investigative 8 services on behalf of the Federal Government. (Declaration of Catherine Grassman in Support of 9 Defendant’s Motion to Transfer Venue "Grassman Decl." ¶ 4). These investigative services may 10 include travelling to a local court house or department of motor vehicle office to obtain records on 11 an applicant, interviewing the applicant or friends, family and colleagues who knew the applicant, 12 and compiling a report of the interview(s) and/or records obtained. (Id.) Independent contractors 13 perform work on a per project or assignment basis. (Id.) They have the flexibility to accept or reject 14 assignments, and accordingly to determine how many assignments to accept during in any particular 15 period of time. (Id.) After completion of the assigned work, the Contractor submits an invoice for 16 services rendered. (Id.) 17 KeyPoint is incorporated in Delaware with its corporate headquarters in Loveland, 18 Colorado. (Grassman Decl. ¶¶2-3). Over the past three years, KeyPoint has contracted with 19 appropriately 2100 independent contractors to perform investigative services. Of the 950 currently 20 engaged independent contractors, none of them are in California, approximately 20 reside in Ohio, 21 and approximately 40 reside in Colorado. (Grassman Decl. ¶ 9). The four largest concentrations of 22 independent contractors are in Texas, Maryland, Virginia, and Florida, which cumulatively account 23 for one-third of the proposed putative class. (Id.) 24 B. Plaintiff Smith Resided and Worked in Ohio During the Limited Time Period Applicable to His Claim. 25 26 For nearly five years, Plaintiff has resided in Fairborn, Ohio. (Complaint ¶ 11.) 27 Although Plaintiff previously worked for KeyPoint as an independent contractor in California, that 28 role ended in April, 2010 when he moved to Ohio. (Complaint ¶ 11.) While in Ohio, Plaintiff LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 3. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page8 Page of 9 of 1617 1 continued to perform services as an independent contractor for KeyPoint until May, 2012. (Id.) 2 Plaintiff has not worked as an independent contractor for KeyPoint since May, 2012. (Id.) 3 While engaged as an independent contractor, Plaintiff performed investigative 4 services pursuant to KeyPoint’s contract with the Office of Personnel Management (OPM). Plaintiff 5 would have been offered projects geographically located to his residence, which during the relevant 6 time period was Fairborn, Ohio. (Grassman Decl. ¶¶6, 8). 7 C. Any California Independent Contractor Who Previously Had an FLSA Claim Released Said Claim By Way of Prior Litigation. 8 9 In 2012, former independent contractor, Michael Sgherzi, filed a class action 10 complaint against KeyPoint in the Superior Court for the County of Los Angeles, Case No. 11 BC487486. Sgherzi alleged that KeyPoint misclassified independent contractors, and on that basis 12 alleged claims for unpaid wages and related penalties under both California law and the FLSA. 13 (Declaration Karin Cogbill (hereafter "Cogbill Decl.") ¶2, Exhibit A). The Sgherzi matter ultimately 14 settled on a class-wide basis. (Cogbill Decl. ¶3). The Sgherzi Settlement covered all current and 15 former investigators who were independent contractors and performed services for KeyPoint in 16 California from June 1, 2009 to July 7, 2014. (Cogbill Decl. ¶3, Exhibit B.) The Sgherzi Settlement 17 "operate[d] as a release of any Fair Labor Standards Act, 29 U.S.C. § 201, et seq., claims by those 18 Settlement Class members who cashed their settlement checks, thereby affirmatively opting in to the 19 FLSA collective action." (Cogbill Decl. ¶3, Exhibit B at 8:15-17.) Of the approximately 165 20 independent contractors from California who have performed any services for KeyPoint since April 21 1, 2012, all but seven of them have released their FLSA claims against KeyPoint. 2 (Cogbill 22 Decl.¶¶4-6). None of these seven individuals reside within the Northern District of California. 23 (Cogbill Decl. ¶7). Statistically therefore, less than 1% of the entire proposed putative class members 24 reside within the state of California. 25 2 Although the relevant time period for any opt-in Plaintiff will run from the date they file their 26 consent to join, for purposes of this motion, KeyPoint assumes that each opt-in has perfected a claim as of April 1, 2015 and further assumes each opt-in could in fact establish a willful violation of the 27 FLSA allowing him or her to seek overtime for a period of 3 years. Since KeyPoint no longer retains independent contractors in California, the number of potential opt-ins from California will 28 decrease overtime. LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 4. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page9 Page 10 of 16 of 17 1 D. The Scope of Plaintiff’s Claim Against KeyPoint 2 Plaintiff’s Complaint asserts a single cause of action for unpaid overtime under the 3 FLSA. Plaintiff alleges that KeyPoint misclassified him and others as independent contractors. This 4 case therefore involves two primary issues: (1) was Plaintiff misclassified as an independent 5 contractor, and if so (2) did Plaintiff work in excess of 40 hours in a given week, thus entitling him 6 to overtime compensation. Plaintiff brings this action as a collective action pursuant to 29 U.S.C. 7 §201, et seq. The action has not been conditionally certified, and with the exception of Plaintiff, no 8 other potential class member has filed a consent to join. 9 The FLSA provides a two-year statute of limitations, which may be extended to three 10 years if the violations of the Act are found to be willful. 29 U.S.C. § 255(a). Although Plaintiff 11 filed the instant in January, 2015, he did not file his consent to join the lawsuit until March 4, 2015. 12 (Dkt. 8). Thus, any claim for unpaid overtime by Plaintiff falls only within the outside three year 13 statute of limitations for willful violations – and only for the finite period of time from March 5, 14 2012 to May, 2012. 15 III. LEGAL ARGUMENT 16 A. Legal Standard for Transfer of Venue Under 28 U.S.C. § 1404(a) 17 Under the transfer venue statute, "a district court may transfer a civil action to any 18 district or division where the action might have originally been brought for the convenience of 19 parties and witnesses and in the interest of justice." 28 U.S.C. § 1404(a). Congress enacted this 20 provision as a "federal housekeeping measure, allowing easy change of venue within a unified 21 federal system." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981)(citations omitted). Its 22 purpose is "to prevent the waste of time, energy and money, and to protect litigants, witnesses and 23 the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 24 616 (1964)(citations omitted). "In order for a district court to transfer an action under § 1404, the 25 court must therefore make two findings: first, that the transferee court is one where the action'might 26 have been brought,’ and second, that the convenience of the parties and witnesses and the interest of 27 justice favor transfer." Stabencheck v. Safeway Stores, Inc., 2012 U.S. Dist. Lexis 168965, *9 (N.D. 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 5. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page10 Page 11 ofof 1617 1 Cal. Nov. 28, 2012) (citations omitted); See also Hatch v. Reliance Ins. Co., 758 F.2d. 409, 414 (9th 2 Cir. 1985). 3 As demonstrated below, this action could have been brought in the Southern District 4 of Ohio where Plaintiff resides, or alternatively in the District of Colorado where Defendant is 5 headquartered. The convenience of the witnesses, parties, as well as the interests of justice are better 6 served by transferring this case to the Southern District of Ohio, or in the alternative to the District 7 of Colorado. 8 B. Venue Is Proper In Both Ohio and Colorado Because Plaintiff Could Have Filed This Complaint Either District. 9 10 The first requirement for transferring venue is met here because this action could 11 have been filed in either the United States District Court for the Southern District of Ohio or the 12 District of Colorado. Venue is proper in a judicial district in which a substantial part of the events or 13 omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of 14 the action is situated. 28 U.S.C. § 1391(b)(2); Stabencheck, 2012 U.S. Dist. LEXIS 168965 at *9. 15 Here, Plaintiff could have filed this action in the Southern District of Ohio because 16 his individual FLSA claim for overtime arose exclusively out of the work he performed in that 17 District. During the applicable time period of March 5, 2012 until May, 2012, Plaintiff both resided 18 and worked as an independent contractor in Fairborn, Ohio. (Complaint at ¶11.) In that role, 19 Plaintiff performed public record searches, conducted interviews, and compiled reports. (Complaint 20 at ¶18.) As an independent contractor residing in Fairborn, Ohio, Plaintiff would have been offered 21 projects geographically located to his residence. (Grassman Decl. ¶ 7). For example, a project 22 might have included travelling to a local court house or department of motor vehicle office to obtain 23 records on an applicant. (Grassman Decl. ¶ 4). Another project might have included interviewing 24 individuals in the geographical area of Plaintiff’s residence who knew the applicant, and compiling a 25 report of the interview. (Grassman Decl. ¶ 4). Given the nature of the work performed, Plaintiff’s 26 claim that he was misclassified and worked overtime under the FLSA, arises nearly exclusively in 27 Ohio. 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 6. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page11 Page 12 ofof 1617 1 Alternatively, the action could have been brought in the District of Colorado. 2 Defendant KeyPoint is headquartered in Colorado, and the policy decision at issue (i.e. the retention 3 of independent contractors) is enforced by corporate employees in Colorado. (Grassman Decl. ¶¶2, 4 5-6). KeyPoint’s accounting department, which processes the invoices submitted by independent 5 contractors, is located in Colorado. (Id.) The contracts and other written documents related to the 6 terms of the relationship between KeyPoint and any particular independent contractor are also 7 maintained in Loveland, Colorado. (Id.) The corporate individuals at KeyPoint knowledgeable 8 about the independent contractor relationship and the scope of work performed by independent 9 contractors are located in Colorado. (Id.) The corporate individuals familiar with KeyPoint’s 10 contracts with the Federal Government, pursuant to which it retains independent contractors such as 11 Plaintiff Richard Smith, also reside in Colorado. (Id.) 12 C. The Convenience Of The Parties And Witnesses And The Interest Of Justice Weigh In Favor Of A Transfer To The Southern District of Ohio, or 13 Alternatively the District of Colorado. 14 The decision to transfer a case is within the sound discretion of the district court 15 judge on a "case-by-case consideration of convenience and fairness." Stewart Org. v. Ricoh Corp., 16 487 U.S. 22, 29 (1988). When evaluating whether a transfer serves the convenience of the parties 17 and promotes the interest of justice, courts consider the following factors: (1) the plaintiff's choice of 18 forum; (2) convenience of the parties and witnesses; (3) ease of access to the evidence; (4) 19 familiarity of each forum with the applicable law; (5) feasibility of consolidation with other claims; 20 (6) any local interest in the controversy; and (7) the relative court congestion and time of trial in each 21 forum." Johns v. Panera Bread Company, 2008 U.S. Dist. LEXIS 78756 at *3 (N.D. Cal July 21, 22 2008); Foster v. Nationwide Mut. Ins. Co., 2007 U.S. Dist. LEXIS 95240 at *2 (N.D. Cal. Dec. 14, 23 2007). Under these factors, a transfer to either the Southern District of Ohio, or alternatively the 24 District of Colorado is strongly favored. 25 Here, in determining the appropriateness of the transfer, the fourth and fifth factors do 26 not particularly favor any District because the applicable law at issue is a Federal statute, and 27 presumably judges in the Southern District of Ohio and District of Colorado are undoubtedly as 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 7. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page12 Page 13 ofof 1617 1 competent as the judges in this District to apply federal wage and hour law. Nor are there any 2 pending claims which might need to be consolidated with this action in any District. 3 1. The Court Should Give Little Weight To Plaintiff’s Choice of Forum In Balancing The Factors Affecting Whether A Transfer Of Venue Is 4 Warranted. 5 Although courts may accord a certain amount of weight to a plaintiff’s choice of 6 forum, this factor is not determinative. Pac. Car and Foundry Co. v. Pence, 403 F.2d 949, 954 (9th 7 Cir. 1968) "If the operative facts have not occurred within the forum of original selection and that 8 forum has no particular interest in the parties or the subject matter, the plaintiff’s choice is entitled 9 only to minimal consideration." Id. "Further, the plaintiff’s choice of forum is accorded less weight 10 when the plaintiff has commenced the action in a forum that is not his residence." Hernandez v. 11 United States, 2009 U.S. Dist. Lexis 24452, *10 (N.D. Cal. Mar. 13, 2009) (citing New Image, Inc. 12 v. Travelers Indem. Co., 536 F. Supp. 58, 59 (E.D. Pa 1981)). In sum, "a fundamental principle 13 underpinning the § 1404(a) analysis is that litigation should proceed'in that place where the case 14 finds its'center of gravity.’" Stabencheck, 2012 U.S. Dist. LEXIS 168965 at *11 (quoting Lewis v. 15 ACB Bus. Servs., Inc., 135 F.3d 389, 413 (6th Cir. 1998)). Deference to the plaintiff’s choice of 16 forum should be minimized where, the forum selected by the plaintiffs is not the situs of the material 17 events. Id. 18 The Ninth Circuit has also held that a plaintiff’s choice of forum is accorded less 19 weight in class actions. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) ("In judging the weight 20 to be accorded [the plaintiff’s] choice of forum, consideration must be given to the extent of [the 21 parties] contacts with the forum, including those relating to [the plaintiff’s] cause of action.") 22 Plaintiff’s decision to seek to represent a nationwide class substantially undercuts this deference. 23 See Foster, 2007 U.S. Dist. LEXIS 95240 at *5 (stating that one of the multiple factors weighing 24 against consideration of plaintiff’s choice of forum was the fact that plaintiffs brought the case as a 25 class action); Hoefer v. U.S. Dep’t of Commerce, 2000 U.S. Dist. LEXIS 9299 (N.D. Cal. June 28, 26 2000) (holding that because the members of the purported class are numerous and are located 27 throughout the nation, the plaintiff’s choice of forum was not to be given substantial deference when 28 determining if a transfer of venue was proper); Johns, 2008 U.S. Dist. LEXIS 78756 (N.D. Cal July LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 8. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page13 Page 14 ofof 1617 1 21, 2008) (transfer of venue to the Eastern District of Missouri in an FLSA case where although 2 plaintiff resided in California, the putative class members in California comprised 40 persons, while 3 the nationwide putative class consisted of 1400 persons with more than a third in Missouri, Illinois, 4 Indiana, and Michigan.) 5 Here, since Plaintiff commenced the action in a forum where he does not reside, his 6 choice of forum should be given little weight given that he commenced this action in a forum that is 7 not his residence. See Hernandez, 2009 U.S. Dist. LEXIS 24452 at *10. Moreover, like Johns, 8 Plaintiff brought his FLSA claim as a collective action in a district where there are no current 9 independent contractors as compared to the one-third of the potential class members who reside in 10 Texas, Maryland, Virginia, and Florida – states geographically closer to Ohio and Colorado, than 11 California. 12 2. Convenience of the Parties and Witnesses and Ease of Access to Evidence Favor Transfer to the Southern District of Ohio, or in the Alternative the 13 District of Colorado. 14 The convenience of the parties and witnesses and ease of access to sources of proof, 15 also dictate that transfer is appropriate, as the party and non-party witnesses related to Plaintiff’s 16 claims reside outside the Northern District of California. In Evancho v. Sanofi-Aventis U.S., Inc., 17 2007 U.S. Dist. LEXIS 35500 (N.D. Cal May 3, 2007), this Court found that where it is undisputed 18 that there are more FLSA putative class members who work on the east coast than on the west coast, 19 and where many of the key witnesses and documents were located in the forum where transfer was 20 sought, that the convenience of the parties, witnesses, and evidence weigh substantially in favor of 21 transfer. 22 Plaintiff would be hard-pressed to argue that it would be more convenient for him to 23 travel to and prosecute this case in California as compared to his home state of Ohio. Indeed, 24 transferring the case to the Southern District of Ohio would eliminate the need for Plaintiff to incur 25 the cost and expense of traveling to California for depositions, mediation, hearings, and trial. 26 Moreover, given that less than 1% of potential opt-in plaintiffs reside in California (none of whom 27 reside in the Northern District), Plaintiff cannot argue the Northern District is a convenient forum. 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 9. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page14 Page 15 ofof 1617 1 On the contrary, both the Southern District of Ohio and the District of Colorado are 2 more convenient forums for the parties, witnesses and potential opt-in plaintiffs. The corporate 3 employees Defendant intends to call as witnesses to discuss KeyPoint’s relationship with 4 independent contractors, KeyPoint’s contractual relationship with the Federal Government, the scope 5 of work performed by independent contractors and how independent contractors are paid, all reside 6 in Colorado. These individuals include for example, the Program Manager and Deputy Program 7 Manager for KeyPoint’s contract with OPM, the contract pursuant to which Plaintiff worked. As 8 with the company witnesses, the documents related to this case, such as independent contractor 9 agreements, reports related to projects offered, accepted and rejected, and accounts payable 10 information also reside in Colorado. 11 Finally, there are no non-putative class members KeyPoint would call as a witness 12 who reside in the Northern District of California. The putative class members who might opt-in, and 13 thus be called as witnesses are predominantly concentrated in various regions, including, the Mid-14 West, Southwest, the Deep South, and Eastern United States, in states such as Texas, Maryland, 15 Virginia, and Florida (Grassman Decl. ¶ 9). For these potential class members and witnesses, either 16 the Southern District of Ohio or Colorado would be a more convenient forum. 17 3. This District Has No Local Interest In This Case. 18 By his own admission, Plaintiff has not resided or worked in the Northern District for 19 over five years. Moreover, the Complaint is void of facts which suggest that Plaintiff’s prior 20 contacts with the Northern District relate to his FLSA cause of action for unpaid overtime during the 21 finite period of time at issue in this case. There is no factual basis linking the Northern District to 22 Plaintiff’s individual claim. See Hernandez, 2009 U.S. Dist. LEXIS at *14. 23 Similarly, KeyPoint does not currently engage independent contractors in the 24 Northern District, and has not since July, 2014. (Grassman Decl. ¶ 9). Moreover, as a result of the 25 Sgherzi settlement, there are at most seven former independent contractors from California who 26 might possibly be eligible to join this action. (Cogbill Decl., ¶ 6). These 7 individuals make up less 27 than 1% percent of the total potential collective action. 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 10. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page15 Page 16 ofof 1617 1 In light of the minimal connection KeyPoint has to the Northern District as it relates 2 to this case, and the nonexistent connection Plaintiff has, there is no question that this District has 3 virtually no interest in this case. On contrary, the Southern District of Ohio has an interest in this 4 case, as Plaintiff resides there and worked the alleged overtime there. Alternatively, as Defendant’s 5 headquarters and the location of its corporate witnesses, the District of Colorado also has an interest 6 in this case, not present in the Northern District of California. 7 4. Transfer Is Appropriate Because The Northern District of California Court Is More Congested Than Either The Southern District of Ohio or 8 The District of Colorado. 9 The relative congestion of the Court's docket to that of the transferee forum is 10 relevant in determining whether to transfer a case pursuant to section 1404(a). Decker Coal Co. v. 11 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). This factor examines "whether a 12 trial may be speedier in another court because of its less crowded docket." Gates Learjet Corp. v. 13 Jensen, 745 F.2d, 1325, 1337 (9th Cir. 1984). To measure congestion, courts compare "median time 14 from filing to disposition or trial." Costco Wholesale Corp. v. Liberty Mutual Ins. Co., 472 F. Supp. 15 1183, 1196 (S.D. Cal. 2007)). 16 Here, the relative Court congestion is greater in the Northern District of California. A 17 review of the most recent Federal Court Management Statistics shows that in the 12-month period 18 ending March 31, 2013, the Northern District of California had an average of 499 pending cases per 19 judgeship while the Southern District of Ohio had an average of 300 pending cases per judgeship, 20 and the District of Colorado had an average of 479 pending cases per judgeship. See 21 http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics/district-courts 22 march2013.aspx. The median time from filing to trial for civil cases was 28.4 months in both the 23 Northern District of California and the Southern District of Ohio, but only 24.8 in Colorado. Id. In 24 sum, judges in the Northern District of California have nearly 40% more cases than those in the 25 Southern District of Ohio, and cases on average, progress faster in the District of Colorado. 26 IV. CONCLUSION 27 This case is the quintessential case appropriate for a transfer of venue. With the 28 exception of his counsel’s office location, Plaintiff has no relevant connection to the Northern LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 11. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15 16-8 Filed03/31/15 Filed 05/01/17 Page16 Page 17 ofof 1617 1 District. The convenience of the parties and witnesses, interest of justice and congestion of the 2 respective courts all weigh in favor of a transfer to either Plaintiff’s residence the Southern District 3 of Ohio, or Defendant’s headquarters in Colorado. 4 5 Dated: March 31, 2015 6 7/s/Karin M. Cogbill KARIN M. COGBILL 8 LITTLER MENDELSON, P.C. Attorneys for Defendant 9 KEYPOINT GOVERNMENT SOLUTIONS, INC., A DELAWARE CORPORATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor MOTION TO TRANSFER VENUE 12. Case No. 3:15-cv-00429 (HSG) San Jose, CA 95113.2303 408.998.4150

Exhibit H to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-9 Filed 05/01/17 Page 1 of 5 EXHIBIT H Background Investigation Opportunities Investigator Jobs for Contractors Page 1 of 4 Case 3:17-cv-08050-SPL Document 16-9 Filed 05/01/17 Page 2 of 5 Í ­ ¬ ã Ť KEY CAPABILITIES KeyPoint is the largest provider of investigative services and background screening for the Federal government and provides these services to the intelligence and civilian sectors as well. Our asset is our people: thousands strong, vetted to the Top Secret level, highly trained investigators and inspectors distributed throughout the U.S, Puerto Rico, and Guam. Additionally, experienced field management teams, quality control staff, and strong management support our customers’ missions. Investigations Background Investigations of People or Companies For suitability or security clearance Due diligence of companies and their principals Preliminary checks of candidates http://www.keypoint.us.com/key-capabilities/4/26/2017 Background Investigation Opportunities Investigator Jobs for Contractors Page 2 of 4 Case 3:17-cv-08050-SPL Document 16-9 Filed 05/01/17 Page 3 of 5 Employment issues Inspections Inspect for Fraud Indicators Validate companies and people to be authentic Inspect for product counterfeits Inspect medical providers Monitoring Monitor for Compliance Monitor compliance with court consent decrees Monitor compliance with financial laws and regulations http://www.keypoint.us.com/key-capabilities/4/26/2017 Background Investigation Opportunities Investigator Jobs for Contractors Page 3 of 4 Case 3:17-cv-08050-SPL Document 16-9 Filed 05/01/17 Page 4 of 5 Footprint KeyPoint’s workforce, thousands strong, spans the U.S. and its territories, Puerto Rico and Guam KeyPoint Government Solutions is a leading provider of investigative and risk mitigation services to government organizations, including the U.S. Office of Personnel Management, Customs and Border Protection and Department of Homeland Security...Read more NAVIGATE CONTACT US Integrity & Commitment ƣ 1750 Foxtrail Drive Key Capabilities Loveland, CO 80538 Careers About You Info@keypoint.us.com About Us ¨ 866.667.3635 phone Ƣ 800.979.3522 fax http://www.keypoint.us.com/key-capabilities/4/26/2017 Background Investigation Opportunities Investigator Jobs for Contractors Page 4 of 4 Case 3:17-cv-08050-SPL Document 16-9 Filed 05/01/17 Page 5 of 5 Ť http://www.keypoint.us.com/key-capabilities/4/26/2017

Exhibit I to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-10 Filed 05/01/17 Page 1 of 6 EXHIBIT I Case 3:17-cv-08050-SPL Document 16-10 Filed 05/01/17 Page 2 of 6 IP Resolution Co., LLC Invoice 12364 W. Nevada PL, Suite 305 Date Invoice # Lakewood. CO 80228 4/17/2017 1150 Bill To Joshua Konccky. Esq.. SWCKW LLP 180 Montgomeiy Street #2000 SF Jacqueline Kalk, Esq.. Littler Mcndelson 80 S 8th St #1300 Minneapolis Terms Due on receipt Service Description Qty Rate Amount 4/21/2016 Review request of Magistrate Judge Mix for special master 0.00 300.00 0.00 appointment; clear conflicts; review appointment order. [N/C] 5/5/2016 Preliminaiy review of docket items, course of proceedings: 1.50 300.00 450.00 review July Scheduling Order; continued review of docket items relevant to scheduling. 5/12/2016 Prepare advisory-to counsel: confer with JL 1 lobbs. 2.00 300.00 600.00 5/14/2016 Confer with JL Mobbs regarding action plan: review counsel 0.50 300.00 150.00 advisory emails. 5/16/2016 Review counsel email; review transcript of discovery 1.25 300.00 375.00 dispute; prepare schedule email. 5/19/2016 Review joint statement to special master, including exhibits 1.75 300.00 525.00 and review previous Blackburn orders; confer with JL Hobbs. 5/23/2016 Prepare for and conduct telephonic status conference; 2.00 300.00 600.00 follow-up with JL Hobbs. 5/26/2016 Prepare and conduct telephonic conference of counsel; 1.00 300.00 300.00 follow-up with JL Hobbs. 6/10/2016 Review interim court filings [N/C]. 0.00 300.00 0.00 6/22/2016 Review counsel advisory regarding cooperative efTorts and 0.50 300.00 150.00 grant requested postponement. 6/28/2016 Review advisory emails; prepare response and make status 0.50 300.00 150.00 request. 6/29/2016 Review scheduling request. 0.25 300.00 75.00 7/1 1/2016 Review and respond to counsel advisory. 0.25 300.00 75.00 7/14/2016 Prepare and conduct telephonic conference with counsel. 0.50 300.00 150.00 12/16/2016 Review key pleadings [N/C]. 0.00 300.00 0.00 1/30/2017 Review final judgment and costs bill [N/C]. 0.00 300.00 0.00 TOTAL BILLABLE TIME: 12.0 hours DELAYED BILLING DISCOUNT: 50% OR $1,800 TO BE SPLIT EVENLY Aim Rookkeeninp-this is a sniir hill and iliscnimfrd-net due Y $900/side ^ Thank you for allowing us to work on this important matter. Total J:ic, Case 3:17-cv-08050-SPL Document 16-10 Filed 05/01/17 Page 3 of 6 IP Resolution Co., LLC Invoice 12364 W. Nevada PL, Suite 305 Date Invoice# Lakewood, CO 80228 4/17/2017 1151 Bill To Joshua Konccky. Esq., SWCKW LLP 180 Monlgomery Street #2000 SF Jacqueline Kalk. Esq., Littler Mendelson SOS 8th St#1300 Minneapolis Terms Due on receipt Service Description Qty Rate Amount 6/30/2016 Paralegal Services by JL Hobbs 1.00 637.50 637.50 attn Bookkeeping: THIS IS A SPLIT BILL thus each side owcsr$318.75 Thank you for allowing us to work on this important matter. Total $637.50 Case 3:17-cv-08050-SPL Document 16-10 Filed 05/01/17 Page 4 of 6 JODYL HOBBS Freelance Paralegal Services 37Flower Street Lakewoodf Colorado 80226 303-906-0400 ilhobbs(a)a,com June 30,2016 J. Gregory Whitehair, Esq. The Whitehair Law Firm, P.C. 12364 W. Nevada Place,#306 Lakewood, Colorado 80228 RE: SMITH v.KEYPOINT DATE DESCRIPTION HOURS AMOUNT 05/12/2016 Confer with G. Whitehair regarding disputed.5 $ 42.50 discovery matters; read background case information. Smith V. KevPoint 05/14/2016 Confer with G. Whitehair regarding scheduling.5 $ 42.50 initial conference with counsel; read Orders and pertinent filings; review correspondence from counsel and confer with G. Whitehair re case status. Smith V. KevPoint 05/16/2016 Read transcripts and materials provided by counsel 1.25 $ 106.25 pertaining to discovery disputes. Smith V. KevPoint Case 3:17-cv-08050-SPL Document 16-10 Filed 05/01/17 Page 5 of 6 JODYL,HOBBS Freelance Paralegal Services illtobbs(a)ja,com RE: SMITH v. KEYPOINT DATE DESCRIPTION HOURS AMOUNT 05/19/2016 Read Counsels' Joint Statement to Special Master 1.25 $ 106.25 and review exhibits; confer with G. Whitehair as to outstanding discovery issues in preparation for telephone conference. Smith V. KevPoint 05/23/2016 Prepare for and participate in telephone status 2.0 $ 170.00 conference with all counsel; follow-up call with G. Whitehair re instructions to counsel. Smith V. KevPoint 05/26/2016 Participate in conference call with all parties to 1.0 $ 85.00 discuss status of directives by Special Master Whitehair; confer with G. Whitehair re suggestions to counsel and scheduling follow-up conference call. Smith V. KevPoint 06/22/2016 Read correspondence between counsel and G..5 $ 42.50 Whitehair re status and scheduling of a hearing; confer with G. Whitehair re potential hearing dates. Smith V. KevPoint 06/28/2016 Correspondence with counsel for all parties and.5 $ 42.50 Special Master to reschedule hearing date; work with counsel and Special Master to coordinate suggested hearing times and dates; finalize hearing date and time and contact counsel. Smith V. KevPoint Case 3:17-cv-08050-SPL Document 16-10 Filed 05/01/17 Page 6 of 6 JODYL,HOBBS Freelance Paralegal Services ilhobbs(a)ja.com RE: SMITH v.KEYPOINT DATE DESCRIPTION HOURS AMOUNT May & For Professional Services Rendered: 7.5 $ 637.50 June 2016 May & Costs and Expenses: $0.00 June 2016 TOTAL BALANCE NOW DUE: $ 637.50 THANK YOU!! Interest is charged on any outstanding balance, at a rate of 1% per month, beginning 30 days from the original statement date.

Exhibit J to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 1 of 7 EXHIBIT J Case 1:15-cv-00865-REB-KLM Document 43 Filed 08/20/15 USDC Colorado Page 1 of 6 Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 2 of 7 Kevin T. Barnes, Esq. (#138477) Gregg Lander, Esq. (#194018) 2 LAW OFFICES OF KEVIN T. BARNES 5670 Wilshire Boulevard, Suite 1460 3 Los Angeles, CA 90036-5664 Tel.: (323) 549-9100 I Fax: (323) 549-0101 4 Email: Barnes@kbarnes.com 5 Joshua G. Konecky (SBN 182897) jkonecky@schneiderwallace.com 6 Nathan B. Piller (SBN 300569) npiller@schneiderwallace.com 7 SCHNEIDER WALLACE 8 COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 9 Emeryville, CA 94608 Telephone: (415) 421-7100 10 Facsimile: (415) 421-7105 11 Attorneys for Plaintiff RICHARD SMITH, on behalf of himself and all others similarly situated 12 13 UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF COLORADO 15 RICHARD SMITH, individually and on) Case No.: 15-cv-00865-REB ~) behalf of all other.s similarly situated, Honorable Robert E. Blackburn 16 Department A 1001 Plaintiffs,: 17) CLASS ACTION v. 18 NOTICE BY PLAINTIFFS OF FILING KEYPOINT GOVERNMENT l) OF CONSENT TO JOIN COLLECTIVE l SOLUTIONS, INC., a Delaware ACTION 19 20 Action filed: January 29, 2015 c-o-rp-o-ra-Defendants. t-io_n_, __t _ _ _ _ _ _ _ _ Trial Date: None Set 21-' Plaintiff Richard Smith, on behalf of himself and all others similarly situated, 22 23 hereby file the following Consent to Join Collective Action in the above cited action, 24 submitted herewith as Exhibit 1, pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 25 201,et seq. 26 I Dated: August 20; 2015 By: Is/Kevin T. Barnes 27 Kevin T. Barnes, Esq. Law Offices of Kevin T. Barnes 28 5670 Wilshire Boulevard, Suite 1460 Kl·:VTNT. 81\RN!-}i 5(17flWDliiiiRE BI.\'D Sum,1460 Lt!C\A:\(il'il.l'~ CA 'XX)1f,..S614 I-1-TF.J.:(J2J)WJ-9II)O FA"X:(J2J)S4 J1lllll 1 NOTICE BY PLAINTIFFS OF FILING OF CONSENT TO JOIN COLLECTIVE ACTION i Case 1:15-cv-00865-REB-KLM Document 43 Filed 08/20/15 USDC Colorado Page 2 of 6 Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 3 of 7 1 Los Angeles, CA 90036-5664 Telephone: (323) 549-0101 2 FAX: (323) 549-0101 E-mail: barnes@kbarnes.com 3 Attorney for (Plaintiff) Richard Smith 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kf.VJNT.BARN~,; S67UWD.'iiiiRE Bl VD. Sum: 1460 LosANGPJFS.CA 'lXY.\6-5614-2-TrJ.:(J2J)~41)..91UO F.\.\":(J2J)S4'MIOI NOTICE BY PLAINTIFFS OF FILING OF CONSENT TO JOIN COLLECTIVE ACTION Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 4 of 7 EXHIBIT 1 Case 1:15-cv-00865-REB-KLM Document 43 Filed 08/20/15 USDC Colorado Page 4 of 6 Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 5 of 7 1 Kevin T. Barnes, SBN 138477 barnes@kbarnes.com 2 Gregg Lander, SBN 194018 lander@kbarnes.com 3.LAW OFFICES OF KEVIN T. BARNES 4 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5664 5 Telephone: (323) 549-9100 Facsimile: (323) 549-0101 6 7 Joshua G. Konecky (SBN 182897) jkonecky@schnelderwallace.com 8 Nathan B. Piller (SBN 300569) npiller@schneiderwallace.com 9 SCHNEIDER WALLACE 10 COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 11 Emeryville, CA 94608 Telephone: (415) 421-7100 12 Facsimile: (415) 421-7105 13 Attorneys for Plaintiffs 14 IS UNITED STATES DISTRICT COURT 16 DISTRICT OF COLORADO 17 RICHARD SMITH, on behalf of himself and all Case No. 15-cv-00865-REB others similarly situated, 18 CONSENT TO JOIN 19 Plaintiffs, COLLECTIVE ACTION v. 20 Fair Labor Standards Act of 1938 21 KEYPOINT GOVERNMENT SOLUTIONS, 29 U.S.C. § 216(b) INC., 22 Defendant. 23 ~~--------------------------~ 24 25 26 27 28 CONSENT TO JOIN COLLECTIVE ACTION Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 6 of 7 1 I worked tor Keypalnt Government Solutions, Inc. (11Keypolnt"), within the past three 2 years. I want to jqln this lawsuit alleging that ~Seypolnt has violated the Fair Labor Standards 3 Act by mlsclasslfylng me and other Investigators as Independent contractors rather than 4 employees. I understand that this lawsuit seeks unpaid wages and/or overtime that may be 5 owed to me, and that by joining the lawsuit I will become a party plaintiff. 6 By joining this lawsuit, I designate the plaintiffs named In the Complaint as my 7 representatives; to the fullest extent possible under applicable laws, to make decisions on my 8 behalf concerning the litigation, the method and manner of conducting and resolving the 9 litigation, and all other matters pertaining to this lawsuit. I0 I understand I have the right to choose other counsel, and I choose to be represented In 11 this matter by the law firms of Schneider Wallac!! Cottrell Konecky Wotkyns LLP, the Law 12 Offices of Kevin T. Barnes and other attorneys with whom they may associate. 13 14 Orson Judd IS Name 16 17 18 19 20 Cl~~~~ 21 Signature: 22 ~119@.01$' I' 23 Date signed: 24 25 26 27 28 1 CONSENT TO JOIN COLLECTIVE ACTION Case 1:15-cv-00865-REB-KLM Document 43 Filed 08/20/15 USDC Colorado Page 6 of 6 Case 3:17-cv-08050-SPL Document 16-11 Filed 05/01/17 Page 7 of 7 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I, the undersigned, am over the age of 18 years and not a party to this action. My business address is 5670 Wilshire Boulevard, Suite 1460, Los Angeles, CA 90036-4 5664, which is located in Los Angeles County, where the service herein occurred. 5 On the date of execution hereof, I caused to be served the following attached document/s: 6 NOTICE BY PLAINTIFFS OF FILING OF CONSENT TO JOIN COLLECTIVE ACTION 7 on the interested parties in this action, addressed as follows: 8 Attornevs for Defendant: Attorneys for Plaintiffs: 9 Margaret Parnell Hogan, Esq. Joshua G. Konecky (SBN 182897) 10 LITTLER MENDELSON, P.C. jkonecky@schneiderwallace.com 1900 Sixteenth Street, Suite 800 Nathan B. Piller (SBN 300569) 11 Denver, CO 80202 npiller@schneiderwallace.com Tel.: (303) 629-6200 I Fax: (303) 629-12 0200 SCHNEIDER WALLACE Email: MPHogan@littler.com COTTRELL KONECKY WOTKYNS LLP 13 r 2000 Powell Street, Suite 1400 Karin M. Cogbill, Esq. Emeryville, CA 94608 14 LITTLER MENDELSON, P.C. Tel.: (415) 421-7100 I Fax: (415) 421-50 W. San Fernando, 151h Floor 7105 15 San Jose, CA 95113 Email: jkonecky@schneiderwallace.com Tel.: (408) 998-4.150 I Fax: (408) 288-16 5686 Email: KCoqbill@littler.com 17 using the following service method(s): 18 X VIA ELECTRONIC S.ERVICE: The above documents were electronically filed 19 with the Clerk of the Court using the CMIECF system, which sent notification of such filing to the above interested parties. 20 I DECLARE under penalty of perjury that the foregoing is true and correct. 21 I Executed on August 20, 2015, at Los Angeles, California. 22 Is/Cindv Rivas 23 Cindy Rivas 24 25 26 27 28 Kf.VJNT. BARNI'.IO 5(i711WD.'iii!Rf. Bt \ll Sl!nl\ I.Wl LLlfiA1'<lJmJ'-".CA 01)16-5614-1-n'~~ (l2J)549-9HJO F,\.'l:: (]l1)S49~l\lll PROOF OF SERVICE

Exhibit K to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 1 of 22 EXHIBIT K Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 2 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 15-cv-00865-REB-KLM RICHARD SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Richard Smith claims that KeyPoint Government Solutions, Inc. ("KeyPoint") violated the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., by improperly classifying him as an "independent contractor." (Dkt. 3 ¶ 7). Because the FLSA does not apply to independent contractors, the critical threshold issue here is whether, as a matter of "economic reality," Smith was properly treated as an independent contractor. See Mason v. Fantasy, LLC, 2015 WL 4512327, *8 (D. Colo. July 27, 2015). Simply put, he was. I. STATEMENT OF UNDISPUTED FACTS 1. KeyPoint provides specialized investigative and risk mitigation services to a variety of U.S. government agencies and organizations, in the civilian, defense, and intelligence sectors. Declaration of Jennifer Boaz, attached as Exhibit A, at ¶ 3. 1 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 3 of 22 2. The Company offers a variety of security clearance, background investigation, and site inspection services, financial and other fraud investigation services, among other things, to law enforcement agencies, background information and primary source document gathering services to assist government agencies. Id. 3. KeyPoint is obligated under government contracts to provide specific investigations services to various federal agencies. Id. ¶ 4. 4. KeyPoint’s largest government client for background investigation services is the Office of Personnel Management (OPM). Id. 5. KeyPoint also contracts to provide background investigation services for the Department of Homeland Security (DHS). Id. 6. KeyPoint’s primary role in its investigations business is to ensure that its contractors follow security procedures dictated by KeyPoint’s clients, including OPM and DHS. Rule 30(b)(6) Deposition of Jennifer Boaz ("Boaz Dep."), attached as Exhibit B, at 34:11-19; Boaz Dec. ¶ 5. 7. In general, KeyPoint’s investigations business consists of investigating individuals who seek security clearance (or renewal of a clearance) to be affiliated with a federal agency. Boaz Dec. ¶ 6. The individual seeking a clearance is known as the "subject" of the investigation. Id. ¶ 6. 1 8. The nature of the clearance, and the requesting government entity, determine the type of investigation services KeyPoint is contracted to perform. Boaz Dec. ¶ 6. For example, an investigation may consist of a "subject interview," a "source 1 See also February 9, 2016 Deposition of Richard Smith ("Smith Dep."), attached as Exhibit C, at 85:20-24. 2 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 4 of 22 interview," records collections, or neighborhood checks. Id. Most investigations conclude with a report by the investigator. Id. 9. KeyPoint contracts with investigators for these services. Id. KeyPoint’s clients award KeyPoint the work and KeyPoint, in turn, subcontracts the work to independent contractors. Boaz Dep. 99:14-20. Independent contractors self-regulate how much work they want from KeyPoint and in what weeks they want that work. Id. 52:16-53:9. Each contract between KeyPoint and a government agency will set the pricing structure for the rates investigators are to be paid for this work, which differs between contracts. Boaz Dec. ¶ 7. 10. Given the sensitive and confidential nature of the investigations, OPM sets limits on how investigations must be conducted, and who may conduct them. Id. ¶ 8. OPM limits where interviews may be conducted. Smith Dep. 123:4-10; Boaz Dec. ¶ 8. 11. OPM requires extensive training and credentialing before individuals may conduct investigations under its KeyPoint contract. Boaz Dep. 41:5-12; Boaz Dec. ¶ 8. 12. OPM reviews investigators’ reports, and determines whether the reports comply with applicable regulatory procedures. Boaz Dep. 44:12-25; Boaz Dec. ¶ 8. 13. OPM sets deadlines for when investigations must be completed, from which KeyPoint sets deadlines for contractors. Boaz Dep. 56:11-20, Boaz Dec. ¶ 8. 14. Prior to being an Army criminal investigator for 14 years, Smith had extensive training with the Army, particularly including training in how to conduct interviews. Smith Dep. 9:14-10:1; 13:13-24; 14:13-19. 3 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 5 of 22 15. Smith also attended 16 weeks of California police academy training, where he learned additional investigations skills. Id. 13:8-12. 16. Between 1992 and 2010, Smith worked as a welfare fraud investigator for the State of California. Id. 9:14-10:1, 83:20-84:13. 17. In 2006, prior to contracting with KeyPoint, Smith completed the 18-month process to obtain a security clearance to conduct federal background investigations for OPM. Id. 28:11-29:8, 30:2-7. 18. Beginning in 2006, Smith performed background investigations for two companies, MSM and ADC, as an independent contractor. During this time, he also continued working simultaneously for the State of California as a welfare fraud investigator. Id. 30:11-19, 37:14-22, 42:12-43:12. 19. In 2006, Smith formed a company, "RW Smith & Associates," by filing fictitious name paperwork with the state of California and obtaining a business license. See id. 32:13-34:8. 20. From 2006 to 2012, Smith filed separate tax returns for RW Smith & Associates, reflecting the income he received from the various entities for which he contracted to work. Id. 47:19-24, 48:1-15. 21. Smith established a separate cell phone number that he used for his business, and deducted the cost as a business expense on the business’ taxes. March 14, 2016 Deposition of Richard Smith ("Smith March Dep."), attached as Exhibit D, at 33:9-22, 43:15-44:2. 4 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 6 of 22 22. In 2006, RW Smith & Associates entered into an Independent Contractor Agreement with Kroll, KeyPoint’s predecessor, for Smith to provide services as a Contract Investigator. Smith Dep. 76:23-77:1. 23. The agreement was renewed by both parties in both September and October 2008. Id. at 107:2-108:18, 108:10-13; September 3, 2008 Independent Contractor Engagement Agreement with RW Smith & Associates (Smith Dep. Exh. 5), attached as Exhibit E; October 10, 2008 Independent Contractor Engagement Agreement with Richard Smith (Smith Dep. Exh. 6), attached as Exhibit F. 24. Smith began his contracting relationship with Kroll on September 11, 2006. Smith Dep. 91:23-92:22. Because of his prior experience with MSM and ADC, he already knew how to conduct background investigations for OPM, and as such, had only minimal training during his first week as a contractor. Id. 83:9-14, 91:23-92:22. 25. The purpose of each investigation is to verify the information provided by the "subject" – the person applying for a security clearance from OPM. Id. 85:20-24. To accomplish this, Smith interviewed "sources" – individuals such as co-workers or neighbors named by the subject in the application. See id. 117:15-22, 134:14-17. In addition, Smith reviewed public, police, and financial records. Id. 119:8-24. Smith worked exclusively from his home and drove his personal car to and from the interviews and research he conducted as a contract investigator with KeyPoint. Id. 154:1-25. 26. Smith determined which sources to interview; he was not directed by either KeyPoint or OPM to select specific individuals. Id. 132:3-6, 134:3-9, 134:22-135:5, 135:6-8. OPM – not KeyPoint – set some limits on where interviews could occur 5 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 7 of 22 for safety purposes. Id. 123:4-10. Smith was able to schedule interviews at any time convenient for both him and the individuals he interviewed. Id. 122:3-10, 135:9-23, 138:16-21. KeyPoint did not give parameters about when or where to conduct an interview. Id. 135:9-23, 139:10-19. Overall, it was up to Smith to determine how to sequence and schedule interviews and any other tasks that he may have had, whether related to his contract work or otherwise, to make good use of his time. Id. 166:2-6. 27. Smith used the same OPM Investigator Handbook 2 and OPM documents for all his investigations, regardless of the company he contracted with. Id. 93:16-94:5. 28. The OPM handbook is created by OPM, not KeyPoint. Id. 40:3-24. It lists requirements from OPM about how an investigator must conduct investigations. Id. 117:15-22. The contract for services between OPM and KeyPoint requires that its contract investigators follow the OPM handbook. Boaz Dep. 106:16-110:4. 3 Any information in optional guides KeyPoint makes available to investigators to use while conducting interviews is derived from the OPM handbook. Boaz Dep. 202:4-205:23. 29. While KeyPoint issued some instructions about conducting investigations, the content of those instructions was "taken from the OPM handbook." Smith Dep. 120:1-121:8. Smith had "no idea" whether other directions he received from KeyPoint 2 Attached as Exhibit I is OPM’s Field Investigator Handbook as redacted by OPM which KeyPoint received pursuant to its Touhy request and which was originally marked "Confidential" out of an abundance of caution so it could be immediately produced to Plaintiff’s counsel. See Dkt. No. 55. KeyPoint attaches it here without restriction as OPM redacted any portions that OPM determined could not be made publicly available. To the extent OPM subsequently produces a different version of the Handbook, KeyPoint retains the right to mark such version Confidential pursuant to the Protective Order in this case. See Dkt. No. 35. 3 See 2011 OPM Contract Solicitation (Boaz Dep. Exh. C), attached as Exhibit G, at Bates 0001129. 6 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 8 of 22 or answers to his questions originated from OPM. Id. 151:12-22; 164:16-165:10; 198:2-5; 206:21-207:10; 332:5-14; 332:15-21. 30. In addition to OPM, Smith conducted investigations for Customs & Border Patrol, Immigration & Naturalization Services, and had one case for the federal prison system. Id. 172:15-173:9. Smith identified the agencies he was willing to work for, and in turn KeyPoint offered him the ability to accept investigation work for only those requested agencies. Id. 174:18-175:3. 31. Smith was paid on a per-project basis. Id. 160:8-14. Smith regularly negotiated the rate he received for the investigations he completed. Id. 157:12-16. He did so when the case was listed as a "priority" or required considerable travel. Id. 156:12-157:11. Between 2006 and 2010, Smith negotiated a higher rate of pay with KeyPoint approximately 100 times. Id. Smith determined how to structure his time and schedule in order to use his time most efficiently, which maximized his profitability. Id. 152:14-154:11. For example, he scheduled interviews that were geographically close at the same time because it was more cost effective. Id. 165:11-166:6. 32. Other than a weekly 5-10 minute call with a Field Manager, which he initiated roughly half the time, Smith had no other contact with KeyPoint employees as a contract investigator. Id. 111:3-112:16. 33. Smith moved from California to Ohio in 2010, and did not need approval from KeyPoint to relocate or continue as a contract investigator. Id. 193:18-20. 34. That year, he purchased a computer to use for his investigations business and used that computer for some of his work for KeyPoint. Smith March Dep. 10:13-15; 7 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 9 of 22 13:8-17; 14:7-11. See also Boaz Dep. 166:12-17. The following year, Smith purchased a laptop computer, which he also used to "prepare documents to complete the investigations." Id. 44:11-45:6. Smith claimed the cost of both computers as business expenses for his investigations business. Id. 10:3-15. He also deducted the cost of his home office supplies and mileage from his business expenses. Id. 7-7:8-21; 47:14-48:8. Some years, Smith’s reported business expenses were over $15,000. Id. 9:9-19. 35. Smith continued working for ADC and as a welfare fraud investigator while a KeyPoint contractor. Smith Dep. 9:14-10:1, 58:15-59:10, 103:5-17. As a full-time fraud investigator, Smith structured his schedule to only conduct investigations for KeyPoint and ADC on weekends and days off. Smith March Dep. 66:8-25. 36. Smith also conducted investigations for Omnisec from 2010 to 2011. Smith Dep. 186:10-187:6; 48:14-49:6. Smith sometimes conducted investigations for ADC, Omnisec, and KeyPoint on the same day. Id. 247:14-23. 37. Smith used the same facilities and materials in the work he performed for KeyPoint, ADC, and Omnisec. Smith March Dep. 8:18-9:2. 38. In 2012, Smith chose to become a full-time employee of KeyPoint. Smith Dep. 50:20-51:7. He described many changes in his work from contractor to employee: Topic Contractor Experience Employee Experience Pay Rate "Absolutely" able to negotiate Could not negotiate rates or turn rate of pay. Id. 157:12-16. down assignments. Id. 275:1-8. Work Hours Was never told any hours of Recommended 8:00 – 5:00 with work. Id. 331:22-332:4. lunch break. Id. 267:13-22. Reporting to Asked only to send message Field Manager required updates Manager following subject interview and and status reports. Id. 296:1-9. final report at investigation Only happened as employee. Id. conclusion. Id. 161:10-162:16. 8 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 10 of 22 Report Deadline Occasionally declined cases Firm two-week deadline, would with no consequences. See id. be repercussions for missing 221:9-223:8. Never had a case deadline. Id. 275:13-24. taken away because of a missed deadline. Id. 231:9-11. No deadline for submitting invoices. Id. 216:18-217:13. Requests for extension denied fewer than 12 times in four years; typically approved. Id. 129:16-130:9, 130:14-23. Work for Other Worked for State of California, Not allowed to work elsewhere. Companies ADC, Omnisec, and KeyPoint Id. 272:2-6. Had to resign ACD with overlap. See, e.g. id. to work exclusively for KeyPoint 247:14-23. as employee. Id. 50:20-51:7. Government Selected agencies he wanted to Only did OPM work; not Agencies investigate for, worked for permitted to do investigations for multiple agencies. Id. 174:18-multiple agencies. Id. 318:3-5, 175:3; 317:4-15. 319:1-12. Temporary Duty Could decline this work. Id. Could no longer decline the work. Assignments 370:12-18. Rates were all Id. 370:12-18. Company paid all negotiated. Id. 369:4-12. Smith expenses and travel costs. Id. paid for own expenses and 370:21-371:1. travel costs. Id. 369:21-370:4. Required Work None – declined cases without Required to complete 17 "source Volume consequences. See id. 221:9-units" each week. Id. 264:14-24. 223:8; see also id. 158:14-21. Required source units increased To stop flow of work, simply told with experience. Id. 271:3-12. contact to stop sending work. See also Boaz Dep. 180:11-25. See id. 226:19-227:11. Negative Never had a case taken away Would be disciplined or receive Consequences because of a missed deadline. negative review if did not for Low Work Smith Dep. 231:9-11. complete required source units. Volume Id. 264:14-24. 39. Smith resigned his employment with KeyPoint in September 2015. Smith Resignation Letter (Smith Dep. Exh. 15), attached as Exhibit H. 4 4 Smith only seeks payment of alleged unpaid wages until June 2012; his time as an employee is not part of his FLSA claim. Smith Dep. 288:14-18. 9 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 11 of 22 II. LEGAL ANALYSIS A. KeyPoint Did Not Employ Smith as a Matter of Law It is axiomatic that the FLSA only protects employees and has no application to independent contractors. 29 U.S.C. § 203(e)(1). To determine whether an individual is an employee under the FLSA, Tenth Circuit courts look to the six-factor "economic realities test." See Mason v. Fantasy, LLC, 2015 WL 4512327, *8 (D. Colo. July 27, 2015) (citing Baker v. Flint Eng'g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998)). That test considers: (1) the degree of control exerted by the alleged employer over the worker; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the work; and (6) the extent to which the work is an integral part of the alleged employer's business. Id. "None of the factors is to be considered dispositive; the test is instead based on the totality of the circumstances." Johnson v. Unified Gov’t of Wyandotte County/Kansas City, 371 F.3d 723, 729 (10th Cir. 2004). The focal point of the analysis is "whether the individual is economically dependent on the business to which he renders service … or is, as a matter of economic fact, in business for himself." Id. at 729 (citation omitted). Here, Smith was in business for himself, and the economic realities demonstrate he was not an employee. 1. KeyPoint Exercised Little Control Over Smith’s Work a. Smith Controlled His Own Schedule KeyPoint did not control Smith’s work schedule in any manner. Lack of control over a putative employee’s work schedule is a clear indicator of independent contractor 10 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 12 of 22 status. For example, in Murray v. Playmaker Services, LLC, the court found the plaintiff was an independent contractor, in part, because she "set her hours" and "could even structure her time around her job as a nurse" and because "[t]here was no minimum or maximum number of hours or days per week that she was expected to work." 512 F. Supp. 2d 1273, 1278 (S.D. Fla. 2007). Similarly, in Herman v. Express Sixty-Minutes Delivery Service, courier drivers who set their own schedule and could reject delivery requests were independent contractors, not employees. 161 F.3d 299, 303 (5th Cir. 1998). See also Bates v. Bell Telephone Co. of Pennsylvania, 1993 WL 379542, at *3 (W.D. Pa. July 13, 1993) (lack of rigid working schedule and freedom to determine work hours militated in favor of a finding that the plaintiff was an independent contractor). Here, in contrast with his later experience as an employee, Smith testified that as a contractor, he was never told the hours he should work. (Facts, ¶ 38). He declined investigations without consequences, and was able to control the flow of investigations by simply telling his contact at the Company to stop sending him work. (Id.). He testified he was able to schedule interviews at any time convenient for him and the individuals he interviewed, sometimes only on weekends, and that KeyPoint did not give parameters about when or where to conduct an interview. (Facts, ¶¶ 26; 35). The undisputed record shows Smith decided how to sequence and schedule interviews and other tasks to make good use of his time. (Facts, ¶ 26). b. KeyPoint Did Not "Supervise" Smith’s Investigations KeyPoint did not supervise Smith in the traditional sense of an employment relationship. Where a worker has the "freedom to decide how to accomplish his tasks, 11 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 13 of 22 even if the company reviewed the ultimate work product," independent contractor status is supported. Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012); see also Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200, 1211 (11th Cir. 2003) ("infrequent assertions of minimal oversight do not constitute the requisite degree of supervision" to establish employment relationship under FLSA). Where the purported "supervision" takes place after the work has been performed to check on compliance with contract specifications, there is no basis for finding that the putative employer exercised the requisite degree of control necessary to transform the individual into an employee. See, e.g. Barlow, 703 F.3d at 506; Santalices v. Cable Wiring, 147 F. Supp. 2d 1313, 1327 (S.D. Fla. 2001) (FLSA plaintiff did not establish control or supervision where putative employer routinely checked installations for contract compliance). Smith testified that other than a weekly 5-10 minute call that he initiated roughly half the time with the Company, he did not have any other regular contact with KeyPoint employees. (Facts, ¶ 32). Other than some post-investigation quality control, Smith operated primarily without oversight or supervision by KeyPoint. (Facts, ¶¶ 26, 38). c. Any Significant Substantive Control Was Exercised by the Federal Government, not by KeyPoint Importantly, the Federal Government – not KeyPoint – provided the only substantive control over Smith’s work. Where a company enlists independent contractors in a model similar to a "subcontractor" relationship, independent contractor status for those workers is appropriate. Herman v. Mid-Atlantic Installation Services, Inc., 164 F. Supp. 2d 667 (D. Md. 2000) aff’d 16 Fed. Appx. 104 (4th Cir. 2001). 12 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 14 of 22 KeyPoint contracted with Smith to supply the services it provided to OPM. The services KeyPoint provided are tailored to the specifications and requirements developed by OPM. With few exceptions, Smith has "no idea" whether instructions he received from KeyPoint were, in fact, instructions from OPM (Facts, ¶ 29). In fact, the primary restrictions on Smith’s work were directions from OPM, not KeyPoint. Smith testified that the OPM handbook – the source of most control over his activities – was created by OPM, not KeyPoint. (Facts, ¶¶ 27-28). While Smith claims that he received some instructions about conducting investigations, Smith testified the content of many of those instructions was "taken from the OPM handbook." (Facts, ¶ 29). For example, OPM – not KeyPoint – set some limits on where interviews could occur for safety purposes. (Facts, ¶ 26). Any training KeyPoint requires is to ensure the company is in compliance with its contractual obligations to OPM and other clients. (Facts, ¶ 11). In addition, most substantive criticism of an investigator’s work originates with the client, not KeyPoint, with KeyPoint acting as a go-between. (Facts, ¶ 12). Finally, although KeyPoint sets the deadline for an investigator’s report, it is "based on the due dates that are required back to the customer [OPM or DHS]." (Facts, ¶ 13). KeyPoint Director Jennifer Boaz explained, "The customer awarded KeyPoint the work, and KeyPoint is, in essence, subcontracting the work to independent contractors." (Facts, ¶ 9). In this regard, KeyPoint’s business model and relationship with OPM is similar to the practice of general contractors in the construction industry and many cable television providers. Herman v. Mid-Atlantic Installation Services, Inc. is instructive. 164 F. Supp. 2d 667. In Herman, the Secretary of Labor brought suit against a cable 13 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 15 of 22 television provider, alleging that cable installers were employees. Id. at 669. The Secretary argued that the "strict specifications" provided by the customer (such as specific routes, uniforms, timing of work, and required reporting) were indicative of an employment relationship. Id. at 672. The court rejected this view, noting, "[i]t is the nature of the contract that the contractor promises to deliver the performance bargained for by the client." Id. The court analogized to the construction context, stating: [A] builder will build a building according to the specifications of an architect. That does not make the builder an employee. A painter will paint a house the colors dictated by the homeowner. That does not make the painter an employee. Simply "requiring a contractor to meet the client’s technical specifications is not the type of'control’ which bestows employee status on the contractor." Id. (emphasis added). The court explained, "this [quality control] constraint inheres in any subcontractor relationship." Id. at 673-73 (brackets original). The same result is warranted here. Smith will argue that OPM’s compliance, interview, and reporting requirements limited his independence and flexibility and made him an employee. This argument is contrary to the law. First and foremost, these requirements are not mere attempts by KeyPoint to control Smith’s conduct for its own purposes; the requirements are established by OPM as part of KeyPoint’s regulatory compliance obligations. (Facts, ¶¶ 6, 28-29). Further, even accepting these facts as true, that OPM did impose restrictions on Smith’s work, Hermann and other federal precedent instructs that such restrictions are inherent in a subcontractor relationship and directions from the client (OPM) through the subcontractor (KeyPoint) do not render the subcontractor an employer under the FLSA. See, e.g., id.; Weisgerber v. Allstate Ins. Co., 2001 WL 14 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 16 of 22 36413167, *5 (D. Colo. Mar. 9, 2001) ("Independent contractors may be subject to control sufficient to ensure the end result contracted for is reached."). 2. Smith Controlled His Own Profit Or Loss The opportunity for profit and loss exists where the worker may bid on jobs and set his own schedule. C.f. Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1441 (10th Cir. 1998) ("If plaintiffs could bid on jobs at a set amount and correspondingly set their own hours or schedule, they would have the opportunity for profit or loss.") Here, Smith regularly negotiated a higher rate of pay for the investigations he completed. (Facts, ¶ 31). He chose to negotiate his rate when the case was listed as a "priority" or required considerable travel. (Id.). Between 2006 and 2010, Smith negotiated a higher rate of pay with KeyPoint approximately 100 times. (Id.). When Smith was not paid a rate he directly negotiated, he was paid a flat rate for each investigation he completed. (Id.). Smith further testified that he was able to identify the agencies for which he was willing to work. (Facts, ¶ 30). He determined how to structure his time and schedule to use his time most efficiently, maximizing his profitability. (Facts, ¶ 31). Smith had the flexibility to work for additional, or fewer, agencies, to accept more, or fewer, cases, to choose the case types he would work on (which had different pricing structures), and to negotiate a rate adjustment often. (Facts, ¶¶ 9; 30-31). These facts demonstrate that Smith could control his profit and loss. C.f. id. (no opportunity for profit or loss where plaintiffs were paid on a per-hour basis); Johnson, 371 F.3d at 730 (flexibility afforded to janitorial workers to set own hours supported contractor status). 15 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 17 of 22 3. Investment In Equipment And Materials Required For The Job Smith provided much of the equipment and materials he used as a contract investigator. Unlike employees, independent contractors typically provide the equipment and space and bear the operational expenses necessary to provide contracted services. See Brennan v. Partida, 492 F.2d 707, 709-710 (5th Cir. 1974). It is undisputed that Smith worked exclusively from his home and drove his personal car to and from the interviews and research he conducted for KeyPoint. (Facts, ¶ 25). He testified that he had a separate cell phone number that he used for his business, the cost of which he deducted as a business expense on the taxes for his company. (Facts, ¶ 21). Smith also testified that he deducted the cost of his home office supplies, mileage, and a new computer, from the business expenses for his investigations company, RW Smith & Associates. (Facts, ¶ 34). In some years, Smith’s reported business expenses amounted to over $15,000. (Facts, ¶ 34); see Carrell v. Sunland Const., Inc., 998 F.2d 330 (5th Cir. 1993) (welders who supplied all their own essential equipment, at an average cost of $15,000, were independent contractors). Further, the record reflects that Smith used these facilities and materials in the work he performed for other companies while also working for KeyPoint. (Facts, ¶ 37). See Martin v. NITV, LLC, 2007 WL 1560202, *2 (S.D. Fla. May 29, 2007) (plaintiff’s ability to use the same equipment for other clients supported independent contractor status). 4. Smith Worked for Other Companies Through His Personal Business While Working for KeyPoint The fourth factor – the permanence of the relationship between Smith and KeyPoint – also supports the conclusion that Smith was not an employee. Two 16 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 18 of 22 important undisputed facts weigh in favor of independent contractor status. First, Smith created a business in order to provide contract investigator services to several companies, including KeyPoint. (Facts, ¶ 19). He filed appropriate papers, obtained a business license, filed separate tax returns for his company, and reported his investigation expenses as expenses incurred by the company. (Facts, ¶¶ 19-21; 34). This demonstrates that Smith was not a permanent, exclusive KeyPoint employee, but was instead "in business for himself." See Barlow, 703 F.3d at 506 (summary judgment affirmed where contractor created a licensed company to provide services, kept records and filed a separate tax return for the company); Johnson, 371 F.3d at 729. Second, for nearly the entire duration of his tenure as a contract investigator with KeyPoint, Smith worked for multiple entities simultaneously. He testified that he worked for the State of California, ADC, and Omnisec while contracting with KeyPoint. (Facts, ¶¶ 35-36). In fact, Smith sometimes conducted investigations for ADC, Omnisec, and KeyPoint on the same day. (Facts, ¶ 36). This important fact supports a finding that Smith was not an employee. See Barlow, 703 F.3d at 506; Herman v. Express Sixty-Minutes Delivery Service, 161 F.3d 299, 303 (5th Cir. 1998) (fact that the majority of drivers were able to work for other competing courier services under the terms of the independent contractor agreements militated in favor of a finding that they were independent contractors); Johnson, 371 F.3d at 729. 5. Smith Applied Special Skills to His Work for KeyPoint As a result of his prior experience with MSM and ADC, Smith knew how to conduct a background investigation for OPM before he contracted with KeyPoint. 17 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 19 of 22 (Facts, ¶ 24). Smith’s decades of specialized skill as an investigator translated to the many entities with which his company contracted. And, most significantly, Smith possessed the exclusive security clearance necessary to perform the kind of work he did for KeyPoint (Facts, ¶ 17), and had familiarity with the highly-restricted OPM investigator’s handbook that was essential to his work. (Facts, ¶¶ 27-28). These facts support a finding that Smith was not an employee of KeyPoint. See Martin v. NITV, LLC, 2007 WL 1560202 (S.D. Fla. May 29, 2007) (fact that the plaintiff used his skills and equipment for other companies weighed in favor of a finding of independent contractor status). 6. The Relationship Between Smith and KeyPoint’s Business In many jurisdictions, this "sixth factor" is not a part of the employment-relationship analysis. See Dept. of Labor, Administrator’s Interpretation No. 2015-1 (July 15, 2015) n.5 (noting that several federal jurisdictions, including the entirety of the Fifth Circuit, do not recognize the "sixth factor"). Even if considered, federal courts give little weight to this factor. See, e.g. Harris v. Vector Marketing Group, 656 F. Supp. 2d 1128, 1140 (N.D. Cal. 2009) (noting, "this factor is not dispositive" and granting summary judgment to company). The undisputed "economic realities" of Smith’s relationship to KeyPoint demonstrate that he was not "economically dependent on the business to which he render[d] service" and was, "as a matter of economic fact, in business for himself." Johnson, 371 F.3d at 729 (citation omitted). Summary judgment to KeyPoint is then appropriate. See, e.g. Weisgerber v. Allstate Ins. Co., 2001 WL 36413167, *5 (D. Colo. 18 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 20 of 22 Mar. 8, 2001) (summary judgment granted despite that "defendant concedes that the work of their agents is an integral part of their business" because plaintiff exercised control over profits and losses, filed taxes as self-employed person, paid expenses related to work, and an agreement existed establishing a contractor relationship). III. SMITH’S CLAIMS ARE EXCLUDED BY THE STATUTE OF LIMITATIONS The FLSA provides a period of two years after a cause of action occurs in which to file a complaint for unpaid wages. 29 U.S.C. § 255(a). That period may be extended to three years, only if the alleged violation was "willful." Id. Here, Smith filed his Complaint on January 29, 2015 (Dkt. 3) but did not file a consent to join the lawsuit until March 4, 2015 (Dkt. 8). Thus, any claims arising before March 4, 2013 are excluded under the two-year limitations period. See 29 U.S.C. § 255(a). Smith has not presented any evidence that KeyPoint knew of any violation or acted with reckless disregard of the law. Because there is no evidence that any failure to comply with the FLSA was reckless or willful, a three-year statute of limitations is inapplicable. See, e.g. McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). There is no basis for applying a three-year statute of limitations and none of Smith’s claims arose during the applicable, two-year limitations period, summary judgment is warranted. IV. SUMMARY JUDGMENT TO KEYPOINT CONCLUDES THIS ACTION If summary judgment is granted, the Court should also dismiss this litigation in its entirety. Despite characterizing his Complaint as a collective action under § 216(b), Smith has not moved for conditional certification even though this case has been pending for well over one year. Plaintiffs may be added to the case only through the 19 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 21 of 22 notice process. 29 U.S.C. § 216(b). That process has never been requested or started, so this case falls with Smith’s claims. See, e.g. Genesis HealthCare Corp. et al. v. Symczyk, 133 S. Ct. 1523, 1529 (April 16, 2013) ("While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and'other employees similarly situated,’ the mere presence of collective-action allegations in the complaint cannot save the suit... once the individual claim is satisfied."); McGlathery v. Lincare, Inc., 2014 WL 1338610 2014, *3 (M.D. Fla. April 3, 2014) (dismissing "opt-in" plaintiffs without prejudice where "the plaintiff never moved for conditional certification"). V. CONCLUSION KeyPoint respectfully requests that this Court grant its Motion for Summary Judgment by dismissing this action in its entirety and award KeyPoint its costs and fees, and award further relief as the Court deems appropriate. Date: April 18, 2016 s/Jennifer S. Harpole Karin Cogbill Margaret Parnell Hogan LITTLER MENDELSON, P.C. Jennifer S. Harpole 50 W. San Fernando Street, 15th Floor Michelle L. Gomez San Jose, CA 95113-2431 LITTLER MENDELSON, P.C. Telephone: 408.998.4150 1900 16th Street, Suite 800 Facsimile: 408.288.5686 Denver, CO 80202.5835 Email: kcogbill@littler.com Telephone: 303.629.6200 Facsimile: 303.629.0200 Email: mphogan@littler.com ATTORNEYS FOR DEFENDANT jharpole@littler.com KEYPOINT GOVERNMENT SOLUTIONS, mgomez@littler.com INC. 20 Case 3:17-cv-08050-SPL Document 16-12 Filed 05/01/17 Page 22 of 22 CERTIFICATE OF SERVICE I hereby certify that on the 18th day of April, 2016, a true and correct copy of the foregoing was filed using the Court’s CM/ECF filing system, which will serve the following: Todd M. Schneider, Esq. Joshua Konecky, Esq. Nathan Piller, Esq. Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Email: tschneider@schneiderwallace.com jkonecky@schneiderwallace.com npiller@schneiderwanwllace.com Kevin T. Barnes, Esq. Gregg Lander, Esq. Law Offices of Kevin T. Barnes 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5664 Email: barnes@kbarnes.com lander@kbarnes.com s/Nancy Weber Nancy Weber 21

Exhibit L to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 1 of 26 EXHIBIT L Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 2 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 15-cv-00865-REB-KLM RICHARD SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 3 of 26 TABLE OF CONTENTS I. INTRODUCTION.................................................................................................. 1 II. STATEMENT OF FACTS..................................................................................... 3 A. Mr. Smith’s work was integral to KeyPoint’s core business....................... 3 B. KeyPoint exercised extensive control over the details of Mr. Smith’s work........................................................................................................... 3 C. Mr. Smith had a permanent relationship with KeyPoint............................. 6 D. Mr. Smith did not invest heavily in his business......................................... 7 E. Mr. Smith did not control his own profit and loss........................................ 7 F. Mr. Smith’s work for KeyPoint did not require specialized skills................ 8 G. KeyPoint willfully and/or recklessly misclassified Mr. Smith....................... 8 III. ARGUMENT......................................................................................................... 9 A. KeyPoint’s independent contractor defense is not amenable to summary judgment.................................................................................................... 9 B. Mr. Smith has raised material issues of fact with regard to the extensive control KeyPoint exercised over him........................................................ 11 C. Defendant concedes Mr. Smith performed work integral to KeyPoint’s business.................................................................................................. 15 D. KeyPoint does not dispute it had a permanent relationship with Mr. Smith....................................................................................................... 15 E. Mr. Smith has raised material issues of fact regarding the inferences to be drawn from the parties’ respective investments into the business...... 16 F. Mr. Smith has raised material Issues of fact regarding the inferences to be drawn concerning his opportunity for profit and loss........................... 16 G. Mr. Smith has raised material issues of fact regarding whether his work for KeyPoint required specialized skills.................................................... 18 H. Summary judgment is inappropriate as to the statute of limitations because KeyPoint’s willfulness and/or reckless disregard are highly fact driven issues about which Mr. Smith has raised a genuine dispute......... 18 IV. CONCLUSION................................................................................................... 19 i Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 4 of 26 TABLE OF AUTHORITIES Federal Cases Ali v. Jerusalem Restaurant, Inc. 2015 WL 1345326 (D. Colo. Mar. 23, 2015)............................................................................ 19 Baker v. Flint Engineering & Const. Co. 137 F.3d 1436 (10th Cir. 1998)............................................................................. 10, 15, 16, 18 Bamgbose v. Delta-T Group, Inc. 724 F.Supp.2d 510 (E.D. Pa. 2010)........................................................................................ 20 Barlow v. C.R. England, Inc. 703 F.3d 497 (10th Cir. 2012)................................................................................................. 15 Bartels v. Birmingham 332 U.S. 126 (1947)................................................................................................................ 10 Boden v. HMS Host Corp. 2015 WL 4538417 (D. Colo. July 28, 2015)...................................................................... 18, 19 Brubach v. City of Albuquerque 893 F.Supp.2d 1216 (D.N.M. 2012)........................................................................................ 19 Bustillos v. Bd. of Cty. Comm'rs of Hidalgo Cty. 310 F.R.D. 631 (D.N.M. 2015)................................................................................................... 9 Dole v. Snell 875 F.2d 802 (10th Cir. 1989)....................................................................................... 9, 10, 11 Doty v. Elias 733 F.2d 720 (10th Cir. 1984)........................................................................................... 14, 15 Genesis Healthcare Corp. v. Symczyk 133 S.Ct. 1523 (2013)............................................................................................................. 20 Halferty v. Pulse Drug Co., Inc. 821 F.2d 261 (5th Cir. 1987)............................................................................................. 10, 17 Henderson v. Inter-Chem Coal Co., Inc. 41 F.3d 567 (10th Cir. 1994)................................................................................. 10, 11, 15, 18 Herman v. Mid-Atlantic Installation Services, Inc. 164 F.Supp.2d 667 (D. Md. 2000)........................................................................................... 14 Hoffmann-La Roche Inc. v. Sperling 493 U.S. 165 (1989)................................................................................................................ 20 Johnson v. Unified Gov't of Wyandotte Cnty. 371 F.3d 723 (10th Cir.2004).................................................................................................... 9 Mason v. Fantasy, LLC 2015 WL 4512327 (D. Colo. July 27, 2015)............................................................................ 11 Matrai v. DirecTV, LLC No. 14-2022-SAC, 2016 WL 845257 (D. Kan. Mar. 4, 2016).................................................. 11 McGlathery v. Lincare, Inc. 2014 WL 1338610 (M.D. Fla. Apr. 3, 2014)............................................................................. 20 Mumby v. Pure Energy Services (USA), Inc. 636 F.3d 1266 (10th Cir. 2011)............................................................................................... 18 ii Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 5 of 26 Nationwide Mutual Ins. Co. v. Darden 503 U.S. 318 (1992).................................................................................................................. 9 Pabst v. Oklahoma Gas & Elec. Co. 228 F.3d 1128 (10th Cir. 2000)............................................................................................... 18 Perez v. El Tequila, LLC 2015 WL 4173541 (N.D. Okla. July 10, 2015)......................................................................... 19 Robertson v. Bd. of Cty. Comm'rs of Cty. of Morgan 78 F. Supp. 2d 1142 (D. Colo. 1999)....................................................................................... 14 Ruiz v. Affinity Logistics Corp. 754 F.3d 1093 (9th Cir. 2014)................................................................................................. 13 Rutherford Food Corp. v. McComb 331 U.S. 722 (1947).................................................................................................................. 9 Santelices v. Cable Wiring 147 F.Supp.2d 1313 (S.D. Fla. 2001)...................................................................................... 14 Schultz v. Capital Intern. Sec., Inc. 466 F.3d 298 (4th Cir. 2006)................................................................................................... 14 Villalpando v. Exel Direct Inc. No. 12-cv-04137-JCS, 2015 WL 5179486 (N.D. Cal. Sept. 3, 2015)...................................... 14 State Cases S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations 48 Cal. 3d 341 (1989).............................................................................................................. 13 Statutes 29 U.S.C. § 203(d)........................................................................................................................ 9 29 U.S.C. § 203(e)(1).................................................................................................................... 9 29 U.S.C. § 203(g)........................................................................................................................ 9 29 U.S.C. § 255(a)...................................................................................................................... 18 Regulations 29 C.F.R. § 578.3........................................................................................................................ 18 iii Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 6 of 26 I. INTRODUCTION The Tenth Circuit and other courts across the country have consistently interpreted the terms "employ," "employer," and "employee" expansively to effectuate the broad, remedial provisions of the Fair Labor Standards Act ("FLSA"). Moreover, the test for determining employment status is a fact-intensive, six-prong inquiry that the trier of fact must apply to the totality of circumstances. Here, the evidence raises triable issues of material fact as to each of the six factors as well as to the totality of the circumstances. If anything, the record favors Mr. Smith on each of the six factors of the FLSA test for employment status: (1) Work is integral to business: Mr. Smith does the actual background investigations that are integral to KeyPoint’s core business; (2) KeyPoint’s control: KeyPoint admits it has multiple, detailed policies and procedures that control the way in which Mr. Smith must perform his job, from the interview questions he has to use and the procedures for organizing handwritten notes, to KeyPoint’s multi-layered internal review process of his work and random audits of his interview techniques in the field; (3) Permanence: KeyPoint designed Mr. Smith’s position to be permanent, and Mr. Smith worked in it continuously for six years; (4) Opportunity for profit and loss: Mr. Smith’s opportunity for profit and loss is severely limited by the amount and type of assignments KeyPoint makes available to him, the rules for completing them, the underlying pay structure that KeyPoint employs, and the fact that KeyPoint prohibits him from subcontracting out or assigning any component of his work to someone else; (5) Investment: the only investment Mr. Smith makes into his business is for basic office supplies; KeyPoint provides a laptop, software, credentials, and over $12,000 worth of training; and (6) Skills required: KeyPoint does not require any advanced degree or particular training other than the training that KeyPoint provides to Mr. Smith and the other Investigators. KeyPoint’s summary judgment motion is premised on two arguments that attempt to sidestep the pertinent facts. First, KeyPoint suggests that the Court should not 1 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 7 of 26 consider the admittedly extensive control KeyPoint exercises over its Investigators because many of the policies it uses to control them originate from one of its clients, the Office of Personnel Management (OPM). This argument has no merit. Indeed, as part of its profitable business contract with OPM and its other clients, KeyPoint freely agreed to become an active participant in implementing and overseeing the OPM policies. KeyPoint is not a passive or helpless observer. If KeyPoint could evade liability by blaming its policies of control on its clients, then any company could violate legal standards in any number of respects simply by saying that "my client made me do it;" this is simply not the law. Moreover, KeyPoint further admits that it has drafted and enforced its own set of policies—apart from the OPM policies—which similarly control the work of Mr. Smith and the other Investigators. Second, KeyPoint also argues that Mr. Smith is an independent contractor because he can "negotiate" his compensation and set his own schedule. Yet, both KeyPoint’s admissions and Mr. Smith’s testimony raise triable issues of fact as to how much control Mr. Smith and the other Investigators really had over these issues. Even to the extent Mr. Smith had some ability to negotiate his compensation and set his hours, these considerations carry relatively little weight in the totality of the circumstances. KeyPoint’s attempt to obtain summary judgment on the three-year statute of limitations is similarly misplaced. The willfulness inquiry is highly factual and unsuited for summary judgment. Moreover, the Court need look no further than KeyPoint’s own admission that it knowingly classified Mr. Smith and the other Investigators as independent contractors and denied them overtime pay for no other reason than to assist KeyPoint in managing its workflow, rather than because it believed the Investigators were actually independent under the applicable test for employment status. The motivation behind KeyPoint’s classification scheme itself raises a triable issue of fact, whether KeyPoint acted willfully and/or recklessly. Finally, KeyPoint’s attempt to make this putative collective action disappear 2 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 8 of 26 simply by bringing a motion for summary judgment against Mr. Smith is a poor use of judicial resources. As KeyPoint concedes, eight other Investigators already have joined the case as party plaintiffs pursuant to 29 U.S.C. § 216(b), and KeyPoint does not challenge the merits of their claims. Even assuming summary judgment were granted against Mr. Smith, dismissing the other Plaintiffs would simply force them to re-file the same case either in this Court or in an array of District Courts throughout the country. This would accomplish nothing other than to waste the resources of the parties and the Court, and delay the Plaintiffs’ day in Court to secure their non-waivable overtime rights. II. STATEMENT OF FACTS A. Mr. Smith’s work was integral to KeyPoint’s core business KeyPoint is in the business of performing background investigations for the federal government. See Deposition of Jennifer Boaz ("Boaz (PMK) Dep.") at 46:25-47:5, attached as Exhibit B to the Declaration of Joshua Konecky in Support of Plaintiff’s Response ("Konecky Decl.").1 The Investigators’ job is to "complete the actual case investigations in the field where... the case is assigned." Id. at 47:12-17. As an independent contractor, Mr. Smith worked for KeyPoint to perform these case investigations. Declaration of Richard Smith ("Smith Decl.") at ¶ 5. B. KeyPoint exercised extensive control over the details of Mr. Smith’s work KeyPoint admits that it requires all its Investigators classified as independent contractors to attend extensive training regarding compliance with KeyPoint’s policies and procedures for completing investigations. Boaz (PMK) Dep. 41:5-42:4, 35:13-36:22; see also Exh E (Job Announcement, KEYPOINT0000097-98). KeyPoint’s training even goes so far as to discuss specific lines of questioning for interviews. Boaz (PMK) Dep. 203:17-204:18; 234:4-6. Indeed, Mr. Smith testifies to extensive mandatory training that KeyPoint required him to attend throughout his time as an independent contractor. Smith Decl. at ¶ 7; Smith Dep. 179:19-180:17. KeyPoint exercised significant control over Mr. Smith’s work assignments and 1 All Exhibit references herein are to the Exhibits attached to the Konecky Declaration. 3 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 9 of 26 opportunities as well. To begin with, KeyPoint assigns work to the Investigators based on KeyPoint’s own strategic and logistical needs. Exh C (Deposition of Angela Deabler ("Deabler Dep.")) at 48:6-53:2. The Investigators, such as Mr. Smith, play no role in this process. Id. Moreover, KeyPoint prohibited Mr. Smith and the other Investigators from working with, or even contacting, KeyPoint’s clients directly. Exh D (Deposition of Russell McAbee ("McAbee Dep.") at 166:13-169:13); Boaz (PMK) Dep. 39:2-5; 40:5-21. Thus, Mr. Smith relied on KeyPoint for the work and could only accept assignments based on the work KeyPoint offered to him. Smith Dep. 355:20-356:6; see also id. at 108:19-109:5; and see Boaz (PMK) Dep. 42:5-12 (explaining that the Investigators receive all case assignments directly from KeyPoint). At the same time, KeyPoint’s managers pressured Mr. Smith not to turn down assignments KeyPoint offered, by intimating that he would not receive future assignments if he rejected any current ones. Smith 108:23-109:15; 221:3-221:15; 63:4-14. Even if Mr. Smith could turn down cases, KeyPoint did not provide him information on the work that would be required for a case until after he accepted the case; Mr. Smith had to "hope for the best." Smith Dep. 143:15-22. After receiving an assignment, KeyPoint heavily monitored and controlled the process by which Mr. Smith had to perform his work. KeyPoint required him to follow detailed policies governing both who he could interview and the specific lines of questioning during those interviews. Smith Decl. at ¶ 8; Smith Dep. 133:8-16; see also Boaz (PMK) Dep. 203:17-204:18; 234:4-6. KeyPoint also governed where Mr. Smith could conduct interviews; he could only stray from KeyPoint’s approved interview locations with the consent of his field manager. Smith Dep. 123:8-125:13. Mr. Smith also needed KeyPoint’s approval to bring an interpreter to an interview if the subject required an interpreter. Smith Dep. 126:2-15. Mr. Smith further confirms that KeyPoint controlled his method of completing his assignments by enforcing the numerous detailed policies contained within OPM’s Investigator’s Handbook. The Investigator’s Handbook housed a vast array of policies, 4 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 10 of 26 protocols and procedures that strictly governed how Mr. Smith and the other Investigators completed their assignments. Boaz (PMK) Dep. 110:21-111:15; see also Exh F (Investigator’s Handbook, OPM_Touhy_0000003-0000575). KeyPoint concedes that OPM policies are in effect "KeyPoint policies and procedures," and that any contractor who does not follow them "is out of compliance with KeyPoint," not just OPM. Boaz (PMK) Dep. 175:14-22; see also Smith Dep. at 356:1-6. Furthermore, KeyPoint’s Program Director overseeing KeyPoint’s contract with OPM admitted that KeyPoint freely made a business decision to "take oversight and monitoring responsibility" over the detailed policies and procedures that OPM drafted. Deabler Dep. at 134:12-136:29. No one forced KeyPoint into it. Id. KeyPoint also retains its own independent authority to "disengage" with any independent contractor who does not comply with the OPM rules (it does not need to seek permissions from OPM). See Boaz (PMK) Dep. 75:12-76:23. Aside from its management and enforcement of OPM’s policies, KeyPoint has drafted and implemented numerous additional policies that it uses to control the manner and means of the Investigators’ work. Smith Dep. 241:1-17; Boaz (PMK) Dep. 176:4-177:7; and see Exhibits G to I (examples of Keypoint-drafted policies). For example, KeyPoint has specific instructions for shipping and manifesting handwritten notes and other case materials that all Investigators, including Mr. Smith, must follow. Boaz (PMK) Dep. 65:23-66:15. KeyPoint also enforces compliance with rules governing materials that may or may not be sent via email. Boaz (PMK) Dep. 69:4-24. KeyPoint evaluates Investigators based on a set of 78 standards. Deabler Dep. 101:3-102:13. KeyPoint further exercised control over Mr. Smith’s schedule by setting the deadlines by which he had to complete his assignments. Smith Dep. 60:3-62:16. Mr. Smith explained in deposition how KeyPoint’s deadlines restricted his ability to set his own schedule. Id. For its part, KeyPoint admits that it imposes deadlines upon Investigators based on its contracts with its clients. Boaz (PMK) Dep. 56:11-20; see also Exh J (sample email, KEYPOINT0001878-79). Neither Mr. Smith nor any of the 5 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 11 of 26 other Investigators have any role in negotiating these contracts, and thus are beholden to the KeyPoint-negotiated deadlines without input. Deabler Dep. 37:3-10; McAbee Dep. 46:10-48:12; 170:7-25; Boaz (PMK) Dep. 56:11-57:5. KeyPoint further subjected Mr. Smith and the other Investigators to a multi-layered internal review and reworking process before sending his report of investigation to the client. Boaz (PMK) Dep. 10:23-11:11; McAbee Dep. 117:13-121:24. If KeyPoint determines a report does not meet all standards and requirements, the Investigator must rewrite it. Boaz (PMK) Dep. 10:23-11:11. KeyPoint also subjects the Investigators to random audits and internal inspections to ensure they comply with the "proper process." Deabler Dep. 106:2-12; 134:18-136:22; Boaz (PMK) Dep. 199:15-200:18. KeyPoint also monitors Investigators’ emails to ensure compliance with KeyPoint’s security protocols. Boaz (PMK) Dep. 68:7-69:24. Further, KeyPoint keeps track of complaints filed against its Investigators. Deabler Dep. 110:14-20. Finally, Mr. Smith had to attend weekly telephone calls with his field manager (the "contract liaison") to update KeyPoint on the status of any active assignment. Smith Dep. 110:24-112:1. KeyPoint confirms that its contract liasons guide the Investigators and "manage the case through to the end." McAbee Dep. 80:21-81:7; Boaz (PMK) Dep. 7:5-9:24. Mr. Smith also had to attend a monthly teleconference hosted by KeyPoint. Smith Dep. 231:15-232:18. C. Mr. Smith had a permanent relationship with KeyPoint While classified as an independent contractor, Mr. Smith worked as a KeyPoint Investigator for 6 years. Smith Decl. at ¶¶ 2-3. When he started, KeyPoint required him to devote at least 20 hours per week to assignments KeyPoint gave him on its contract with OPM. Smith Dep. 58:15-20. During the time KeyPoint classified him as an independent contractor, Mr. Smith performed approximately three-quarters of his work for KeyPoint and one quarter for other companies. Id. at 79:3-9. KeyPoint’s managers confirm that, like Mr. Smith, most Investigators have a permanent relationship with KeyPoint. According to KeyPoint, over 95% of Investigators 6 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 12 of 26 remain with KeyPoint for more than one year, just as Mr. Smith did. Boaz (PMK) Dep. 121:14-122:23. KeyPoint incentivizes Investigators to remain for an extended period of time by requiring them to repay the costs of their training if they leave KeyPoint before a full year. Exh K (Independent Contractor Training Repayment Agreement, KEYPOINT1526). Indeed, KeyPoint invests over $12,000 for most Investigators’ training and credentials. Boaz Dep. 148:6-149:13. KeyPoint also keeps Investigators working regularly and continuously by enforcing a policy that Investigators must work at least once every 30 days to stay credentialed. Id. D. Mr. Smith did not invest heavily in his business KeyPoint admits that the expenses of the independent contractors do not extend beyond basic office equipment. Deabler Dep. 65:8-66:15. Investigators such as Mr. Smith do not invest time or resources into developing relationships with KeyPoint’s clients. Id. at 64:10-65:7. They also do not invest in additional employees to perform work (each Investigator must personally perform all the tasks themselves). Boaz (PMK) Dep. 84:7-85:11; McAbee Dep. 166:13-169:13. In fact, KeyPoint provided Mr. Smith with a laptop to use for his investigations. Smith Dep. 65:5-6. KeyPoint also provided Mr. Smith with required training. Smith Dep. 180:13-14; Smith Decl. at ¶ 7. In addition, KeyPoint paid for Mr. Smith to update his clearance with the federal government so that he could continue performing investigations. Smith Dep. 114:8-115:11. In the words of one of KeyPoint’s program directors, "we provide everything [] they [the independent contractors] need to … receive and complete their tasks." McAbee Dep. 155:11-15. E. Mr. Smith did not control his own profit and loss Mr. Smith had little opportunity to control his own profit and loss. KeyPoint paid him based on a uniform piece-rate formula. See Exh L (DHS Project Fee Structure, KEYPOINT0000761-62); Exh M ("OPM Project contractor Fee Structure," KEYPOINT0001746). Furthermore, Mr. Smith was completely dependent on KeyPoint for assignments. He could not directly contact OPM or DHS to generate new business 7 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 13 of 26 or to ask for additional assignments. Smith Dep. 355:20-356:6. Mr. Smith could only accept additional assignments if KeyPoint made more assignments available to him. Deabler Dep. 126:13-17. While Mr. Smith could request a premium for performing certain assignments, KeyPoint admits that it generally limited premium pay to 25% of the base rate. Boaz (PMK) Dep. 188:12-15; Deabler Dep. 119:7-120:4. At the same time, KeyPoint’s program directors have testified that the company only provides higher pay in 12-15% of assignments. Boaz (PMK) Dep. 183:23-185:2; Deabler Dep. 124:2-24.2 F. Mr. Smith’s work for KeyPoint did not require specialized skills KeyPoint does not require that Investigators have any special degree or specific prior experience. KEYPOINT0000098. KeyPoint’s only requirement is that prospective Investigators complete KeyPoint’s training. Deabler Dep. 89:6-20. Mr. Smith testified that KeyPoint did not credit or provide him discretion to conduct his interviews based on his prior experience, but instead directed him to carry out his assignments in accordance with the specific procedures, questions and protocols required by KeyPoint. Smith Decl. at ¶ 11; Smith Dep. at 84:17-85:16. G. KeyPoint willfully and/or recklessly misclassified Mr. Smith KeyPoint classified Mr. Smith as an independent contractor from the summer of 2006 to 2012, and then as an employee from 2012 until October 2015. Smith Decl. at ¶¶ 2-3. Yet, when he worked as an independent contractor, Mr. Smith performed the same job duties, had the same responsibilities, and had to follow the same rules and techniques as he did later when classified as an employee. Smith Decl. at ¶¶ 4-5; Smith Dep. 292:21-294:2; Boaz (PMK) Dep. 107:25-112:19, 119:6-9; Deabler Dep. 23:12-18; 77:17-79:7. According to KeyPoint’s PMK witness, the reason KeyPoint classified Mr. 2 KeyPoint opines that Mr. Smith negotiated his own pay rate at least 100 times. See Motion for Summary Judgment Statement of Undisputed Facts at ¶ 31. This overstates the testimony, as Mr. Smith testified that he was guessing as to the estimate of 100, which had been suggested by defense counsel. Smith Dep. 157:2-11. Even accepting Defendant’s estimate, this sheds no light on the frequency with which Plaintiff actually negotiated his pay, as KeyPoint has not indicated how many assignments Plaintiff had during his six years as an independent contractor. 8 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 14 of 26 Smith and other Investigators as independent contractors, rather than employees, was simply to allow KeyPoint to manage its workload by flexing up or down its workforce, and not because the work of the contractors is categorically different from that of employees. Boaz (PMK) Dep. 103:25-105:15. Although the work is fundamentally the same, Mr. Smith and KeyPoint’s other independent contractor Investigators did not receive overtime or other employment benefits. Boaz (PMK) Dep. 81:16-20, 82:18-21, 92:6-15.3 III. ARGUMENT A. KeyPoint’s independent contractor defense is not amenable to summary judgment The FLSA defines "employ" broadly as "to suffer or permit to work." 29 U.S.C. § 203(g); see also id at § 203(d) (definition of "employer") and § 203(e)(1)(definition of "employee"). "The Supreme Court of the United States has instructed courts to construe the terms'employer’ and'employee’ expansively under the FLSA." Bustillos v. Bd. of Cty. Comm'rs of Hidalgo Cty., 310 F.R.D. 631, 643 (D.N.M. 2015) (citing Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326 (1992)); see also Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947) ("The definition of'employ’ is broad."). As the Tenth Circuit has recognized, "[c]ourts have adopted an expansive interpretation of the definitions relating to employment status under the FLSA, in order to effectuate its broad remedial purposes." Dole v. Snell, 875 F.2d 802, 804 (10th Cir. 1989) (footnote omitted); see also Johnson v. Unified Gov't of Wyandotte Cnty., 371 F.3d 723, 729 (10th Cir.2004) ("The terms'employ’ and'employer’ are given... broad... definitions."). 3 KeyPoint presents a summary chart purporting to show the differences in Plaintiff’s experience from when he was an Independent Contractor to when he was an Employee. Motion for Summary Judgment, "Statement of Undisputed Facts" at ¶ 38. This chart focuses primarily on issues concerning workflow and work hours, which carry less weight in the totality of the circumstances than those cited in the text above. Moreover (as evidenced by the testimony that KeyPoint’s chart omits) KeyPoint fails to provide a complete or accurate summary of the evidence on even those issues on which it has fixated. KeyPoint’s chart also ignores the demonstrated similarities in the work performed as well as the policies, protocols and techniques that controlled the way it must be performed, regardless of whether Mr. Smith was classified as an independent contractor or employee. 9 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 15 of 26 Whether a plaintiff should be classified as an employee or an independent contractor turns on whether he or she is "economically dependent on the business to which he renders service... or is, as a matter of economic fact, in business for himself[.]" Dole v. Snell, 875 F.2d 802, 804-805 (10th Cir. 1989) (quoting Bartels v. Birmingham, 332 U.S. 126, 130 (1947)).4 In making this determination, the courts generally consider six factors: (1) the degree of control exerted by the alleged employer over the worker; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the work; and (6) the extent to which the work is an integral part of the alleged employer's business. Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th Cir. 1998). The finding on each factor is a question of fact. Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 571 (10th Cir. 1994). The ultimate determination of whether an individual is an employee is a legal conclusion drawn from those factual findings. Id. "None of the factors alone is dispositive; instead, the court must employ a totality-of-the-circumstances approach." Baker, 137 F.3d at 1441. Summary judgment is inappropriate "if an inference can be deduced from the facts whereby the non-movant might recover[.]". Henderson, 41 F.3d at 570; see also 4 The "economic dependence" at issue focuses on whether Mr. Smith relied on KeyPoint "during the time period [he] work[ed] for [KeyPoint], however long or short that period may be. In other words,'the dependence at issue is dependence on that job for that income to be continued and not necessarily for complete sustenance.’" Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1443 (10th Cir. 1998) (footnote omitted) (quoting Halferty v. Pulse Drug Co., Inc., 821 F.2d 261, 267 (5th Cir. 1987)). This is significant because KeyPoint appears to argue that Investigators are economically independent because they have sources of income beyond their work for KeyPoint. However, accepting such an argument would lead to absurd results in which "wealthy persons could never be employees under the FLSA, and employers could avoid liability to workers simply by paying them so low a wage that the workers are forced to live on other sources of income." Halferty, 821 F.2d at 268. As discussed infra, Mr. Smith is economically dependent on KeyPoint for the work he completes for KeyPoint because Investigators must follow KeyPoint policies and must rely on KeyPoint for all communications with DHS or OPM. Boaz (PMK) Dep. 39:2-5, 175:14-22. 10 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 16 of 26 Matrai v. DirecTV, LLC, No. 14-2022-SAC, 2016 WL 845257, at *5 (D. Kan. Mar. 4, 2016) (denying summary judgment on independent contractor test based on disputed facts and contested inferences). For example, in Henderson, the Tenth Circuit reversed a summary judgment in favor of the defendant under the economic realities test because the defendants’ evidence "could support inferences by a trier of fact that [the plaintiff’s] work (1) was more controlled by the defendants than not; (2) was an integral part of defendant’s business; and (3) was permanent." Id. Here, there is evidence from which a trier of fact can draw inferences in Mr. Smith’s favor on the relevant factors. B. Mr. Smith has raised material issues of fact with regard to the extensive control KeyPoint exercised over him A defendant exercises control over workers where its production and quality demands control the individual’s day-to-day work. See Dole, 875 F.2d at 806. Under this factor, the relevant inquiry is KeyPoint’s assertion of control over the manner and means by which Investigators complete their work. See Mason v. Fantasy, LLC, 2015 WL 4512327, at *9-*10 (D. Colo. July 27, 2015) (defendants exercised significant control over exotic dancers where defendants had rules concerning, among other things, appearance requirements, use of a timer during private dances, and scheduling that could be enforced through monetary fines). KeyPoint controls nearly every detail of an Investigator’s work, including the work of Mr. Smith. First, Mr. Smith and the other Investigators must meet KeyPoint’s training requirements before even beginning work. Smith Decl. at ¶ 7; Boaz (PMK) Dep. 41:5-42:4, 35:13-36:22; see also Exh E (Job Announcement, KEYPOINT0000097-98). Mr. Smith had to attend additional periodic training during his time as an Investigator. Smith Dep. 179:19-180:17. KeyPoint’s training went so far as to direct specific lines of questioning. Boaz (PMK) Dep. 203:17-204:18; 234:4-6. Second, Investigators must receive their assignments from KeyPoint. Smith Dep. 108:19-109:5. Investigators must go through KeyPoint because they are prohibited from negotiating with or even contacting KeyPoint’s clients. McAbee Dep. 166:13-169:13; Boaz (PMK) Dep. 39:2-5; 40:5-21. KeyPoint offers assignments based on its own 11 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 17 of 26 strategic and logistical needs and Mr. Smith played no role in this process. Deabler Dep. 48:6-53:2; see also McAbee Dep. 72:3-14; 163:25-165:4 (discussing how KeyPoint divides a full investigation into discrete tasks to assign to Investigators). Third, Investigators must accept or decline an assignment without KeyPoint even providing the full details of the assignment. Smith Dep. 143:15-22. KeyPoint also pressured Mr. Smith to accept assignments with the looming threat that KeyPoint would limit further assignments if he did not accept what was offered. Id. at 108:23-109:15; 221:3-221:15; 63:4-14. Fourth, Investigators must complete their assignments subject to the numerous detailed policies enforced by KeyPoint. KeyPoint’s policies include – but are not limited to – the 550 page single-spaced Investigator’s Handbook. Boaz (PMK) Dep. 110:21-111:15; see also Exh F (Investigator’s Handbook, OPM_Touhy_0000003-0000575). KeyPoint’s policies govern who Investigators must interview, the questions that Investigators must ask, where Investigators conduct interviews, and other minute details of the Investigators’ work. Smith Decl. at ¶ 8; Smith Dep. 123:8-125:13, 126:2-15, 241:1-17; Boaz (PMK) Dep. 110:21-111:15. Fifth, Investigators must await approval as their final report navigates KeyPoint’s multi-layer internal review process. If KeyPoint finds that an Investigator’s report does not meet KeyPoint’s standards, the Investigator is required to rectify the problem before KeyPoint sends it to the client. McAbee Dep. 117:13-121:24; Boaz (PMK) Dep. 10:23-11:11; see also Exh J (sample email, KEYPOINT0001878-79). Within 30 days of submitting a final report Mr. Smith was required to send all of his case materials to KeyPoint’s document control division in compliance with KeyPoint’s specific manifesting and shipping instructions. Boaz (PMK) Dep. 65:23-66:15, 72:2-73:14, 69:4-24. Sixth, KeyPoint subjects the Investigators to random audits, internal inspections and constant monitoring to ensure they comply with the "proper process." Deabler Dep. 106:2-12; 134:18-136:22; Boaz (PMK) Dep. 68:7-69:24; 199:15-200:18. KeyPoint retains the authority to take corrective action up to and including termination if it 12 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 18 of 26 determines that an Investigator, such as Mr. Smith, did not follow the "proper process." Deabler Dep. 28:10-13; 116:14-117:17. KeyPoint also monitored Mr. Smith’s progress by making him kept in regular contact with his field manager (contract liaison) and attend monthly teleconferences. Smith Dep. 110:24-112:1; 231:20-232:18. KeyPoint argues that its numerous policies of control are irrelevant because many were created by its business client, OPM. This argument is wrong as a matter of both fact and law. As a matter of fact, KeyPoint admits that there are numerous policies and procedures dictating the manner and means of the work of the independent contractors that KeyPoint itself created. Boaz (PMK) Dep. 176:4-177:7. Even with respect to the policies originating from OPM, KeyPoint’s own Director of Independent Contracts has admitted – in no uncertain terms – that KeyPoint considers OPM’s policies and procedures to be "KeyPoint policies and procedures." Boaz (PMK) Dep. 175:14-22. Mr. Smith testified that KeyPoint presented the policies that come from OPM as KeyPoint’s own policies and that KeyPoint controlled his work through its own management of those policies. Smith Dep. 355:20-356:6. Indeed, KeyPoint admits that it freely and intentionally took on the affirmative responsibility of enforcing OPM policies in the field, through business contracts that brought financial profits to KeyPoint. Deabler Dep. 134:12-136:22. KeyPoint’s attempt to push off blame onto OPM and DHS is similarly wrong as a matter of law. For example, in Ruiz v. Affinity Logistics Corp., 754 F.3d 1093 (9th Cir. 2014), the Ninth Circuit held that the presumptive employer’s control over the worker is not negated for purposes of the independent contractor analysis simply because the reason the employer retains the control is to ensure customer security or to comply with federal law. Id. at 1102-1103 & n.5; see also S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations, 48 Cal. 3d 341, 356-57 (1989) (rejecting the defendant’s argument that its contract with the migrant workers should not be considered as evidence of control because defendant’s customers made it adopt the contract). 13 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 19 of 26 As one District Court reasoned in an analogous circumstance: [T]he detailed requirements as to customer service go far beyond what is necessary to ensure that the [contractors] achieve the'end result’ of the [] work, that is, to provide timely and professional deliveries. In any event, even if these requirements were based, in part, on legal requirements or the needs of customers, as [defendant] asserts, they are nonetheless indicative of the fact that [defendant] retains the right to exercise extensive control over its [workers], supporting the conclusion that the [workers] are employees and not independent contractors. Villalpando v. Exel Direct Inc., No. 12-cv-04137-JCS, 2015 WL 5179486, at *48 (N.D. Cal. Sept. 3, 2015) (emphasis added) (citation omitted). As stated by the Fourth Circuit, "the issue is not the degree of control that an alleged employer has over the manner in which the work is performed in comparison to that of another employer. Rather, it is the degree of control that the alleged employer has in comparison to the control exerted by the worker." Schultz v. Capital Intern. Sec., Inc., 466 F.3d 298, 305 (4th Cir. 2006) (emphasis in original).5 KeyPoint cites two cases involving cable installers from outside the 10th Circuit for the proposition that a defendant may not be held liable for enforcing its clients’ demands. See Herman v. Mid-Atlantic Installation Services, Inc., 164 F.Supp.2d 667 (D. Md. 2000); Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (S.D. Fla. 2001). These cases are inapposite, as there, the client demands on the cable installers are not even in the same ballpark as KeyPoint’s detailed protocols, procedures, monitoring and oversight over the Investigators here. KeyPoint also argues that Mr. Smith could set his own schedule. "A relatively flexible work schedule alone, however, does not make an individual an independent contractor rather than an employee." Doty v. Elias, 733 F.2d 720, 723 (10th Cir. 1984) (citation omitted). Indeed, "flexibility in work schedules is common to many businesses and is not significant in and of itself." Dole, 875 F.2d at 806. Moreover, KeyPoint 5 If anything, KeyPoint’s argument supports joint employer liability between it and OPM, not the absence of liability on the part of KeyPoint. Indeed, "the FLSA contemplates that an employee may have more than one employer responsible for its provisions." Robertson v. Bd. of Cty. Comm'rs of Cty. of Morgan, 78 F. Supp. 2d 1142, 1150 (D. Colo. 1999) (citations omitted). 14 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 20 of 26 exercised significant control over Mr. Smith’s schedule by agreeing to deadlines with its clients that Mr. Smith had no ability to negotiate. Deabler Dep. 37:3-10; McAbee Dep. 46:10-48:12; 170:7-25; Boaz (PMK) Dep. 56:11-57:5. Mr. Smith testified that KeyPoint’s deadlines set functional limits on his ability to set his own schedule. Smith Dep. 60:3-62:16, 331:15-21. Mr. Smith’s schedule was further restricted by the hours of the public buildings where he was required to conduct research and interviews. See Doty v. Elias, 733 F.2d 720, 723 (10th Cir. 1984) (holding that a waitress did not have scheduling flexibility because of functional limits on her schedule). In sum, whatever scheduling flexibility Mr. Smith may have had, it does not override the numerous issues of fact that preclude summary judgment for KeyPoint. C. Defendant concedes Mr. Smith performed work integral to KeyPoint’s business KeyPoint’s own witnesses admit that Investigators are responsible for performing "the actual case investigations in the field." Boaz (PMK) Dep. 47:12-17. The 10th Circuit has plainly stated that whether the plaintiff is integral to the defendant’s business is a factor in determining whether the plaintiff if an employee. See Henderson, 41 F.3d at 570; Baker, 137 F.3d at 1443; Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012). Mr. Smith’s integral role in KeyPoint’s business is one more factor that raises triable issues of material fact as to the totality of circumstances. D. KeyPoint does not dispute it had a permanent relationship with Mr. Smith A permanent and consistent work relationship, rather than temporary and sporadic ones, provides evidence of an employment relationship. Henderson, 41 F.3d at 570. Here, Mr. Smith worked for KeyPoint as an independent contractor Investigator for six years. Smith Decl. at ¶¶ 2-3. Furthermore, KeyPoint required him to work at least 20 hours each week for KeyPoint. Smith Dep. 58:15-20. Over 95% of the Investigators remain at KeyPoint for more than one year. Boaz (PMK) Dep. 121:14-122:23. KeyPoint’s business model is dependent on Investigators like Mr. Smith who stay with KeyPoint for an extended period of time. Indeed, Keypoint invests approximately 15 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 21 of 26 $12,000 per contractor on mandatory training and development See Boaz Dep. 148:6-149:13; see also Exh K (Independent Contractor Training Repayment Agreement, KEYPOINT1526). E. Mr. Smith has raised material issues of fact regarding the inferences to be drawn from the parties’ respective investments into the business Where a plaintiff makes minor capital investments in the business relative to the investments made by the putative employer, the plaintiff is an employee rather than an independent contractor. Baker, 137 F.3d at 1441-42. Here, the parties agree that Mr. Smith’s investments amounted to basic office supplies. Deabler Dep. 65:8-66:15. Although Mr. Smith did purchase a computer, KeyPoint also provided him with a computer that he used to complete work on KeyPoint assignments. Boaz (PMK) Dep. 166:8-167:23; see also Deabler Dep. 66:16-25; Smith Dep. 314:23-315:2. KeyPoint also paid for Mr. Smith’s training and for the renewal of his credentials. Smith Dep. 180:13-14, 114:8-115:11. KeyPoint claims that Mr. Smith wrote-off a large number of expenses on his taxes; however, these tax deductions indicate periodic expenses rather than large capital investments. See Baker, 137 F.3d at 1441-42. KeyPoint’s own witnesses admit that Mr. Smith and other Investigators do not invest time and resources into developing KeyPoint’s clients or into additional employees. Deabler Dep. 64:10-65:7; Boaz (PMK) Dep. 83:19-85:11; McAbee Dep. 163:25-165:4; 166:13-169:13. Again, KeyPoint’s own program director testified that "we provide everything... they need to... complete their tasks." McAbee Dep. 155:11-15. Again, Mr. Smith has raised triable issues of material fact as to what inferences may be drawn with respect to his level of investment as opposed to KeyPoint’s level of investment. F. Mr. Smith has raised material Issues of fact regarding the inferences to be drawn concerning his opportunity for profit and loss Mr. Smith had minimal opportunity for profit and loss while working as an Investigator for KeyPoint. Mr. Smith – like all Investigators – was paid based on a uniform pay schedule driven by negotiations between KeyPoint and its clients; Mr. 16 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 22 of 26 Smith played no role in negotiating this pay schedule. See Exh L (DHS Project Fee Structure, KEYPOINT0000761-62); Exh M ("OPM Project contractor Fee Structure," KEYPOINT0001746); Deabler Dep. 119:4-6, 134:18-136:22; McAbee Dep. 170:7-25. Even when Plaintiff could "negotiate" a higher pay rate for a particular assignment, these "negotiations" depended on KeyPoint’s willingness to offer Plaintiff additional compensation. KeyPoint has failed to provide evidence of the percentage of times Mr. Smith actually received increased pay from the base rate, but its witnesses have admitted that this generally occurs in just 12-15% of assignments. Boaz (PMK) Dep. 183:23-185:2; see also Deabler Dep. 124:2-24. Its witnesses also admit that increases in pay generally do not exceed 25% of the base rate for any assignment. Boaz (PMK) Dep. 188:12-15; Deabler Dep. 119:7-120:4. KeyPoint also restricted Mr. Smith’s opportunity for profit and loss by making him dependent on receiving assignments only after KeyPoint’s internal management decided how to divvy them up between the various contractor and employee Investigators. Boaz (PMK) Dep. 106:7-10; Deabler Dep. 121:14-15; McAbee Dep. 74:8-76:18. Further, Mr. Smith could not increase profits by creating a business that would subcontract out work or assign projects to other employees, as each contractor must personally perform all the tasks themselves. McAbee Dep. 166:13-169:13; Boaz (PMK) Dep. 83:19-85:11. And, of course, KeyPoint’s imposition of specific deadlines, review protocols and quality standards limited Mr. Smith’s ability to increase his profits through ingenuity and independence. KeyPoint argues that Mr. Smith worked for several other companies while working for KeyPoint. However, Mr. Smith’s work for other companies was sporadic and three-quarters of his work was for KeyPoint. Smith Dep. 79:3-9. KeyPoint’s argument cannot withstand minimal scrutiny as it would effectively render any part-time employee an independent contractor. See Halferty, 821 F.2d at 268. The facts discussed here show that – at minimum – Mr. Smith has raised triable issues of material fact with regard to his opportunity for profit and loss while working for 17 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 23 of 26 KeyPoint. G. Mr. Smith has raised material issues of fact regarding whether his work for KeyPoint required specialized skills The use of specialized skills is not itself indicative of independent contractor status, especially if the workers do not use their specialized skills in an independent way. Baker, 137 F.3d at 1442-43. Indeed, Mr. Smith disputes whether his work with KeyPoint required any specialized skills or whether he had the freedom to exercise his skills in the way he could if he were his own business. Smith Decl. at ¶ 11; Smith Dep. 84:17-85:16. Whatever skills Mr. Smith brought to the table, KeyPoint did not allow him the discretion to apply them in an independent fashion. Id. Moreover, KeyPoint did not even require that Investigators hold any specialized degree. Exh E (KEYPOINT0000098). Mr. Smith’s evidence raises triable issues of material fact concerning (1) whether KeyPoint required any specialized skills; and (2) even assuming it did, the inferences that might be drawn given the evidence that Mr. Smith lacked the discretion to independently exercise his skills. See Henderson, 41 F.3d at 570 (triable issue based on differing inferences that might be drawn from competing facts). H. Summary judgment is inappropriate as to the statute of limitations because KeyPoint’s willfulness and/or reckless disregard are highly fact driven issues about which Mr. Smith has raised a genuine dispute Under the FLSA, a three-year statute of limitations applies where the defendant acts willfully or with reckless disregard for the law. Mumby v. Pure Energy Services (USA), Inc., 636 F.3d 1266, 1270 (10th Cir. 2011); 29 U.S.C. § 255(a). Reckless disregard can be shown through action entailing an unjustifiably high risk of harm that is either known or so obvious that it should be known. Id. Whether a violation was willful is a mixed question of law and fact, but factual questions predominate. Pabst v. Oklahoma Gas & Elec. Co., 228 F.3d 1128, 1137 (10th Cir. 2000). "All of the facts and circumstances surrounding a violation shall be taken into account in determining whether a violation was willful." Boden v. HMS Host Corp., 2015 WL 4538417, at *3 (D. Colo. July 28, 2015) (quoting 29 C.F.R. § 578.3). 18 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 24 of 26 Cases involving knowledge, motive, and intent are not well suited to summary disposition. Perez v. El Tequila, LLC, 2015 WL 4173541, at *4 (N.D. Okla. July 10, 2015). Summary judgment is inappropriate where the plaintiff identifies facts sufficient to support the inference that the defendant acted willfully or with reckless disregard for the law. See Ali v. Jerusalem Restaurant, Inc., 2015 WL 1345326, at *2-*3 (D. Colo. Mar. 23, 2015); Brubach v. City of Albuquerque, 893 F.Supp.2d 1216, 1236-37 (D.N.M. 2012); Perez, 2015 WL 4173541, at *3-*4; see also Boden, 2015 WL 4538417, at *3-*4. Here, KeyPoint classified some Investigators as independent contractors and others as employees despite the fact that all Investigators perform the same work and must follow KeyPoint’s same detailed policies of control. Smith Dep. 292:21-294:2; Boaz (PMK) Dep. 107:25-112:19; 119:6-9; Deabler Dep. 23:12-18; 77:17-79:7. KeyPoint’s witnesses admit that the sole reason that KeyPoint classifies some Investigators as independent contractors is to allow KeyPoint to flex its workforce (and not because their work is categorically different from that of employees). Boaz (PMK) Dep. 103:25-105:15. Furthermore, KeyPoint freely entered into contracts with OPM and DHS knowing that these contracts would require it to exercise strict control over the Investigators classified as independent contractors. Deabler Dep. 134:12-136:22. Taken together, these facts raise a triable issue as to whether KeyPoint intentionally or with reckless disregard classified Investigators as independent contractors despite knowing that they would not be able to work with the kind of freedom and independence that is necessary to justify the independent contractor classification, simply to make KeyPoint’s own workflow more convenient and profitable. IV. CONCLUSION For the reasons stated above, the Court should deny KeyPoint’s Motion for Summary Judgment.6 6 Even if there were a basis to grant summary judgment against Smith, the Court should not dismiss the opt-in plaintiffs’ claims. The FLSA implicitly grants district courts "the procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands of the Federal Rules of Civil Procedure." See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 19 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 25 of 26 Dated: May 9, 2016 Respectfully submitted,/s/Joshua G. Konecky Joshua G. Konecky Counsel for Plaintiff (1989). Judicial economy favors maintaining the opt-ins in this action. If the Court were to dismiss the opt-ins, the opt-ins would file individual lawsuits, which would require individual conferences and orders for case management. See Bamgbose v. Delta-T Group, Inc., 724 F.Supp.2d 510, 514 (E.D. Pa. 2010). It will save much time and expense to maintain the present action headed by one or more of the opt-in plaintiffs. Compare id. at 513-19 (permitting a plaintiff to amend the complaint to add an opt-in as a named plaintiff in the interests of judicial economy where the original named plaintiff had accepted an offer of judgment). Importantly, KeyPoint has not cited any authority holding that the Court lacks jurisdiction to proceed in the interests of judicial economy where numerous individuals have opted in to the suit. Compare id. at 517 (offer of judgment to named plaintiff did not moot the plaintiff’s claim because plaintiff also represented opt-ins, even where the plaintiff’s initial conditional certification motion had been denied without prejudice); with Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1529 (2013) ("In the absence of any claimant’s opting in, respondent’s suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action"). Moreover, this case bears nothing in common with a situation where certification will be impossible. Mr. Smith intends to pursue conditional certification and his conditional certification motion was denied without prejudice, simply so that the Court could first consider Defendant’s Motion for Summary Judgment. Compare McGlathery v. Lincare, Inc., 2014 WL 1338610, at *3 (M.D. Fla. Apr. 3, 2014) (dismissing opt-ins because, unlike in the present case, the individual plaintiff expressed an intent not to proceed to certification such that class certification was not possible). 20 Case 3:17-cv-08050-SPL Document 16-13 Filed 05/01/17 Page 26 of 26 CERTIFICATE OF SERVICE I hereby certify that on May 9, 2016, I electronically filed the foregoing document with the Clerk of the Court using the Court's CM/ECF system, which will send a notice of electronic filing to all CM/ECF participants./s/Joshua G. Konecky Joshua G. Konecky (SBN 182897) SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com Counsel for Plaintiff

Exhibit M to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 1 of 12 EXHIBIT M Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 2 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 15-cv-00865-REB-KLM RICHARD SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Instead of fully and properly responding to KeyPoint Government Solutions, Inc.’s ("KeyPoint") Motion for Summary Judgment against Plaintiff Richard Smith ("Smith"), to dismiss Smith’s Fair Labor Standards Act ("FLSA") claim, Plaintiff attempts to create an issue of fact where none exists using inaccurate record citations and inapplicable case law interpreting California state law, all in violation of this Court’s Civil Practice Standards. Plaintiff’s efforts are in vain, as there is no record evidence to suggest that KeyPoint violated the FLSA by classifying Smith as an independent contractor in 2012. I. NO GENUINE ISSUE OF MATERIAL FACT EXISTS A. SMITH DOES NOT DISPUTE KEYPOINT’S STATEMENT OF UNDISPUTED FACTS Smith does not dispute the facts set forth in KeyPoint’s Statement of Undisputed Facts, so those facts should be deemed admitted. FED. R. CIV. P. 56(e)(2) ("If a party... fails to properly address another party’s assertion of fact... the court may... consider Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 3 of 12 the fact undisputed for purposes of the motion"); Cox v. Zavislan, 2014 U.S. Dist. LEXIS 150909, at *12-13 (D. Colo. Oct. 23, 2014) (observing Rule 56(e)(2) provides that the court may consider undisputed defendants’ statements of facts that were not disputed). B. PLAINTIFF DOES NOT CREATE AN ISSUE OF FACT 1. Response to Plaintiff’s "Factual" Statement Smith also sets forth "factual" statements of his own. In doing so, Smith misrepresents the record. See, e.g. Khan v. Associated Deliveries, Inc., No. 05 CV 2273 (SJ), 2007 WL 2246092, at *5 (E.D.N.Y. July 31, 2007) ("[I]n attempting to establish a genuine issue of material fact, Defendants mischaracterize [the] deposition testimony and ignore the full record. It is well-settled that a party may not attempt to generate a genuine issue of material fact by merely submitting an affidavit contradicting or mischaracterizing prior deposition testimony.") (citation omitted). With respect to Smith’s "factual" statements, KeyPoint admits the following (solely for purposes of this Motion): Paragraphs A-1, A-2, A-3, B-2, B-8, B-10, B-13, B-14, B-18, B-19, B-20, B-22, B-23, B-26, B-29, B-32, B-35C-1, C-3, C-6, D-2, D-3, D-6, E-2, E-5, F-1, F-3, and G-1. 1 As addressed more fully in KeyPoint’s Motion to Strike Portions of Plaintiff’s Response to Defendant’s Motion for Summary Judgment ("Motion to Strike"), Plaintiff’s Fact Nos. B-4, B-11, B-15, C-3, C-4, E-1, and E-3 are not supported by any citation to the record. Consequently, their denial cannot create a genuine issue of material fact to preclude Defendant’s motion. Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir. 2004); see also Castaneda v. East Otero School 1 Because Plaintiff failed to number his facts and for the Court’s ease, Defendant has done so and attached to its Motion to Strike as Exhibit 1.. See Dkt. 88. 2 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 4 of 12 Dist. R-1, No. 04-cv-01595-EWN-BNB, 2005 WL 3280240, at *3 n.1 (D. Colo. Dec. 1, 2005) ("Plaintiff denies this factual averment, however, Plaintiff does not offer any citation in support of her denial.... Accordingly, I deemed this fact admitted as true."). Likewise, Plaintiff’s Fact Nos. B-9, B-24, B-25, B-31, B-33, C-2, C-3, and D-4 cite testimony that discusses alleged events occurring either before March 4, 2012, which is the earliest that Smith’s claims could have begun, or after he stopped being an independent contractor in July 2012, and thus have no bearing on Smith’s claims and cannot create a genuine issue of material fact. 2 See 29 U.S.C § 255(a). Plaintiff’s Fact Nos. B-1, B-5, B-6, B-7, B-11, B-12, B-15. B-16, B-17, B-21, B-27, B-28, B-29, B-30, B-32, B-34, C-5, C-7, C-8, D-1, D-7, E-6, E-3, and F-2 all rely on citations of the record that do not support that alleged statement. The depth of Smith’s mischaracterization of the record is discussed in depth in the Motion to Strike. As described therein, Smith’s efforts to create a genuine issue of material fact where none exists are in vain. See Doud v. Countrywide Home Mortgage Loan, No. 96-2079-JWL, 1997 WL 292127, at *5 n.4 (D. Kan. May 5, 1997); see also Khan v. Associated Deliveries, Inc., No. 05 CV 2273 (SJ), 2007 WL 2246092, at *5 (E.D.N.Y. July 31, 2007). Finally, Plaintiff’s Fact Nos. B-3, D-5 and G-2 rely on Smith’s declaration which contradicts his sworn deposition testimony. Such a "sham" declaration may not create a genuine issue of material fact. Franks v. Nimmo, 796 F.2d 1230, 1237-38 (10th Cir. 1986); see also Juarez v. Utah, 263 F. App’x 726, 735-36 (10th Cir. 2008) (unpublished) 2 As addressed supra, because Smith has not presented any evidence that KeyPoint knew of any violation or acted in willful disregard of the law, the two-year limitations is appropriate here, which once applied, renders Smith’s claims immediately moot. [Dkt. 77 at p 19.] 3 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 5 of 12 (quoting Mitchael v. Intracorp, Inc., 179 F.3d 847, 854-55 (10th Cir. 1999)). 2. Plaintiff’s "Statement of Facts" Does Not Preclude a Grant of Summary Judgment Here, Smith fails to demonstrate a material issue of fact to dispute that the "economic realities" of his relationship with KeyPoint indicate he was a contractor, not an employee. See Johnson v. Unified Gov’t of Wyandotte County/Kansas City, 371 F.3d 723, 729 (10th Cir. 2004). Smith attempts to show that KeyPoint controlled his training by contradicting his own prior testimony about the depth of that training. 3 He emphasizes that this training cost $12,000, but fails to note that cost was for training others, not him. 4 Smith attempts to show that KeyPoint’s employees do the same work as its contractors, but does so by misrepresenting the testimony of KeyPoint’s corporate deponent. Smith attempts to show that he lacked control over his work load, but does so by manipulating undisputed facts. 5 He argues that he was required to work certain intervals, but there is nothing of the sort in the record. 6 Smith laments that he was prohibited from sub-contracting his labor, but such a thing is plainly not in the record at 3 See Motion to Strike, Dkt. No. 88, pp.6-7. 4 See Motion to Strike, Dkt. No. 88, pp. 6-7. 5 Smith emphasizes that he could only accept the work offered to him by KeyPoint [Dkt. 87, p. 4]. The parties do not dispute this. However, the parties also do not dispute that Smith was able to direct the types of work KeyPoint offered him. See Smith Dep. 174:18-175:3, Dkt 77-4 at 27-28. 6 Smith claims that KeyPoint requires its investigators to work at least once every 30 days [Dkt. 87, p. 7]. The testimony cited for this proposition does not discuss any such requirement. See Boaz Dep. 148:6-149:13, Dkt 87-3 at 80-81. The record referenced simply does not show that Smith was required to work at any specific intervals of time. 4 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 6 of 12 all. 7 Smith references his own testimony about timeframes outside the scope of this litigation, 8 relies on testimony regarding individuals not party to this litigation, 9 and references testimony by KeyPoint managers who never worked for KeyPoint at the same time as Smith. 10 These and other specific contradictions in Smith’s testimony are addressed in KeyPoint’s Motion to Strike. Without relying on these mischaracterizations, the record plainly shows that Smith "is, as a matter of economic fact, in business for himself." Johnson, 371 F.3d at 729 (citation omitted). 11 Smith has 7 Smith claims that "each investigator must personally perform all the tasks themselves" [Dkt. 87 at p. 7]. In fact, the Independent Contractor Engagement Agreement between Smith and KeyPoint explicitly states, "Contractor is expressly authorized to hire its own employees but all employees must meet the criteria for investigators established by the government." Smith Dep. Ex. 6, Dkt 77-8. Smith relies on Boaz’s testimony for the proposition that subcontracting was prohibited, but in fact, the deposition pages referenced say nothing of the sort. See Boaz Dep. 84:7-85:11, Dkt 87-3 at 61-62 (discussing whether and how many contract investigators subcontracted their services). 8 Smith argues that KeyPoint "required him to work at least 20 hours each week," citing his own deposition. However, Smith clarifies that this testimony is about the year 2006. Smith Dep. 58:15-22, Dkt 77-3 at 23 and Dkt 87-3 at 3. Events in 2006 are outside the scope of this litigation. 9 Smith relies on evidence regarding other contract investigators to support conclusions about his own experiences. There is no conditionally certified class in this litigation and, as such, neither the parties nor the Court have observed that Smith is similarly situated to any other contract investigator. Smith’s testimony about investigators other than himself should be disregarded for purposes of this Motion. 10 The record reveals that Boaz did not work for KeyPoint at any time that Smith was a contract investigator. See Boaz Dep. 5:21-6:2, Exh. J, (hired by KeyPoint in 2013); Smith Dep. 264:14-24, Dkt 77-5 at 6 (became full time employee of KeyPoint in summer 2012). Smith further relies on testimony by Mr. McAbee, whose experience is limited to work on contracts for the Department of Homeland Security (DHS). McAbee Dep. 8:21-9:23, Exh. K,. Smith performed nearly all of his services for KeyPoint on contracts with OPM, not DHS. Smith Dep. 317:4-15, Dkt 77-5 at 13 (spent 75-80 percent of time on OPM investigations). 11 If the Court elects to deny KeyPoint’s Motion to Strike, and accepts as true the mischaracterized facts in Plaintiff’s Response, KeyPoint is still entitled to summary judgment because Smith’s facts – even taken as true – are not adequate to create a material dispute. 5 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 7 of 12 not created any genuine dispute of material fact. II. OPM’S REQUIREMENTS ARE NOT KEYPOINT’S REQUIREMENTS Smith devotes much of his Response to arguing that requirements of KeyPoint’s largest customer, OPM, are, in fact, KeyPoint requirements. Smith accurately notes that, by agreeing to work for OPM, KeyPoint voluntarily assumed the obligation of enforcing OPM’s rules. [Dkt. 87, pp.13-15]. However, Smith does not reference any legal authority for the notion that "voluntarily" entering into a business agreement with the federal government transforms the federal law required for such an arrangement into an exclusively private business practice. It does not. Instead, Smith relies once again on inaccurate record citations to support this argument. Smith claims that KeyPoint enforced policies unique and separate from OPM’s restrictions. For example, Smith points out that Boaz testified that KeyPoint enforces specific instructions for investigators’ shipping and manifesting handwritten notes and case materials. [Dkt. 87, p. 5]. Smith fails to note, however, that Boaz plainly testified such restrictions on shipping and manifesting were dictated by the OPM contract and OPM investigator handbook. Boaz Dep. 66:3-8, Dkt 87-3 at 54. Next, Smith emphasizes that KeyPoint enforced compliance with rules governing what materials may be sent via email. [Dkt. 87, p. 5]. Again, this policy did not originate with KeyPoint, Boaz testified that this was an OPM contract requirement. Boaz Dep. 69:4-24, Dkt 87-3 at 55. Frankly, though this requirement did not even originate with OPM. Restrictions on the use of email by individuals with Top Secret security clearance are imposed by federal law, such that any government contractor – or in Smith’s case, 6 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 8 of 12 subcontractor – must comply. See e.g., Executive Order 13526; 18 U.S.C. s. 793(f); The Federal Records Act of 2009, s 1236.22. The facts do not support Smith’s argument that KeyPoint –and not the federal government– controlled Smith’s labor. Furthermore, the legal authority upon which Smith relies does not address the unique nature of the customer relationship where the customer is in fact the federal government. Instead, Smith relies on Ruiz v. Affinity Logistics Corporation, a case decided by the Ninth Circuit Court of Appeals applying exclusively California law. 754 F.3d 1093, 1096 (9th Cir. 2014). Smith further relies on S.G. Borello & Sons, Inc. v. Department of Industrial Relations, a case decided by the Supreme Court of California, once again, addressing only California law. 48 Cal. 3d 341 (Cal. 1989). Finally, Smith cites to Villalpando v. Excel Direct Inc. for the principle that customer requirements do not discount control exercised by a company over an independent contractor. 2015 U.S. Dist. LEXIS 118065 (N.D. Cal. Sept. 3, 2015). But Villalpando, too, applies exclusively California law. Id. The laws of the state of California are not at issue in this FLSA case, venued in the U.S. District Court for Colorado. Smith does not identify any legal precedent indicating that the applicable law–the FLSA–requires that OPM’s strict security and compliance requirements, directed by the agency and by federal law, be transferred to KeyPoint simply because the company is a government contractor and, as such, is obligated to follow OPM’s rules. KeyPoint’s initial Motion describes the legal authority supporting the proper conclusion: that OPM’s requirements for how its investigations are conducted do not reflect the type of "control" by KeyPoint that transforms contract investigators into employees under the FLSA. 7 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 9 of 12 III. SMITH’S CASE IS TIME-BARRED Smith apparently concedes that any of his alleged damages occurred only within a three-year statute of limitations, not a two-year statute of limitations. See Dkt. 87 at18-19; Smith Dep. 50:20-51:7, 91:23-92:22, Dkt. 77-3 at 21-22, 30-31 (worked for KeyPoint as a contract investigator from September 2006 to June 2012). Accordingly, for any claim to damages to be viable, Smith bears the burden of establishing that KeyPoint’s alleged violation was "willful." See 29 U.S.C. § 255(a). Smith cannot rely solely on evidence that KeyPoint’s decision to classify him as an independent contractor was a mere error, or an "unreasonable" decision. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 n.13 (1988). The parties do not dispute KeyPoint’s rationale for classifying Smith as an independent contractor. As Smith noted in his brief, Boaz explained that KeyPoint began enlisting independent contractors because customer demand changes dramatically. Boaz Dep. 103:24-105:15, Dkt 87-3 at 64-66. KeyPoint contracts with contract investigators to conduct investigations in areas where "we don’t normally have workload but then we do, and so it’s not as steady." Id.at 104:16-20, Dkt 87-3 at 64-66. 12 Smith does not provide any legal support for the proposition that a practical business decision such as this suggests a willful violation of the FLSA [see Dkt. 19]. To the contrary, "courts have found willful violations where the evidence showed (1) admissions that an employer knew its method of payment violated the FLSA prior to the accrual of the action; (2) continuation of a pay practice without further investigation after 12 Boaz did not testify that contract and employee investigators hold the same position. 8 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 10 of 12 being put on notice that the practice violated the FLSA; (3) earlier violations of the FLSA that would put the employer on actual notice of the requirements of the FLSA; (4) failure to keep accurate or complete records of employment; and (5) prior internal investigations which revealed similar violations." Nieddu v. Lifetime Fitness, Inc., 2013 U.S. Dist. LEXIS 143534 n.1 (S.D. Tex. Sept. 30, 2013) (internal quotations omitted). 13 Smith makes no such allegations here. Instead, Smith implies that because the company did not base its decision to use contractors on the nature of the contractor’s work, any other rationale for enlisting contract support is somehow a willful violation of the law. [Dkt. 87, p.19]. That is simply not the law. Further, while KeyPoint may have elected to enlist contract labor for business purposes and customer convenience, KeyPoint exercised far more control over Smith’s work as an employee than as a contract investigator. There is no record evidence to suggest that KeyPoint deliberately ignored these critical differences, and merely labeled some of its employees as "contractors" for convenience. To the contrary, the record demonstrates that KeyPoint established and upheld clear differences between its labor forces to ensure that individuals such as Smith were properly classified. IV. SMITH IS THE ONLY PARTY PLAINTIFF Smith boldly states that KeyPoint "concedes eight other investigators already have joined the case as party plaintiffs pursuant to 29 U.S.C. § 216(b)." [Dkt. 87 at p.3]. KeyPoint concedes nothing of the sort. Section 216(b) is not a mechanism for party 13 Conversely, courts have viewed violations as non-willful where employers made efforts to keep abreast of FLSA requirements, but made mistaken legal interpretations. See, e.g. Mireles v. Frio Foods, 899 F.2d 1407, 1416 (5th Cir. 1990) (willfulness finding improper where employer discussed the law with state officials and obtained some publications). 9 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 11 of 12 joinder. Instead, Section 216(b) establishes that class members may join FLSA litigation only following certification and notice, a process which Smith did not pursue prior to KeyPoint’s instant motion. If Smith intended for the eight potential "opt-in" plaintiffs to be "party plaintiffs," the proper avenue to achieve that was to amend his Complaint. The deadline to do so was August 1, 2015 – nearly a year ago. [Dkt. 27]. Smith has not requested leave to amend the Complaint to add any plaintiffs, and did not move for certification of a collective action and notice before the instant motion was filed, which is the FLSA’s established mechanism. There is no recognized federal procedure under which putative class members are currently parties to this litigation and, accordingly, if summary judgment is granted, the Court should dismiss this litigation in its entirety. V. CONCLUSION KeyPoint respectfully requests that this Court grant its Motion for Summary Judgment by dismissing this action in its entirety and award KeyPoint its costs and fees, and award further relief as the Court deems appropriate. Date: May 26, 2016 s/Margaret Parnell Hogan Karin Cogbill Margaret Parnell Hogan LITTLER MENDELSON, P.C. Jennifer S. Harpole 50 W. San Fernando Street, 15th Floor Michelle L. Gomez San Jose, CA 95113-2431 LITTLER MENDELSON, P.C. Telephone: 408.998.4150 1900 16th Street, Suite 800 Facsimile: 408.288.5686 Denver, CO 80202.5835 Email: kcogbill@littler.com Telephone: 303.629.6200 Facsimile: 303.629.0200 Email: mphogan@littler.com ATTORNEYS FOR DEFENDANT jharpole@littler.com KEYPOINT GOVERNMENT SOLUTIONS, mgomez@littler.com INC. 10 Case 3:17-cv-08050-SPL Document 16-14 Filed 05/01/17 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of May, 2016, a true and correct copy of the foregoing was filed using the Court’s CM/ECF filing system, serving the following: Todd M. Schneider, Esq. Joshua Konecky, Esq. Nathan Piller, Esq. Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Email: tschneider@schneiderwallace.com jkonecky@schneiderwallace.com npiller@schneiderwanwllace.com Kevin T. Barnes, Esq. Gregg Lander, Esq. Law Offices of Kevin T. Barnes 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5664 Email: barnes@kbarnes.com lander@kbarnes.com s/Arlene Aguilarr Arlene Aguilar Firmwide:140680552.1 063273.1034 11

Exhibit N to Declaration of Joshua G. Konecky

Case 3:17-cv-08050-SPL Document 16-15 Filed 05/01/17 Page 1 of 4 EXHIBIT N Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-4 16-15 Filed03/31/15 Filed 05/01/17 Page1 Page 2ofof3 4 1 KARIN M. COGBILL, Bar No. 244606 kcogbill@littler.com 2 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor 3 San Jose, California 95113.2303 Telephone: 408.998.4150 4 Facsimile: 408.288.5686 5 Attorneys for Defendant KEYPOINT GOVERNMENT SOLUTIONS, INC., 6 a Delaware Corporation 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD SMITH, individually and on Case No. 3:15-cv-00429-KAW behalf of all others similarly situated,, 12 DECLARATION OF CATHERINE Plaintiff, GRASSMAN IN SUPPORT OF 13 DEFENDANT’S MOTION TO TRANSFER v. VENUE 14 KEYPOINT GOVERNMENT Date: June 4, 2015 15 SOLUTIONS, INC., a Delaware Time: 2:00 pm Corporation,, Courtroom: 15 16 Judge Haywood S Gilliam, Jr. Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor GRASSMAN DECLARATION IN SUPPORT San Jose, CA 95113.2303 OF MOTION TO TRANSFER VENUE 408.998.4150 Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-4 16-15 Filed03/31/15 Filed 05/01/17 Page2 Page 3ofof3 4 1 I, Catherine Grassman, hereby declare as follows: 2 1. I am the Controller for Defendant KEYPOINT GOVERNMENT SOLUTIONS 3 ("KeyPoint"). I have personal knowledge of the following facts, and if called to testify, I could and 4 would competently testify thereto. I submit the following Declaration in support of KeyPoint’s 5 Motion to Transfer Venue. 6 1. KeyPoint is a corporation organized and incorporated under the laws of the State of 7 Delaware. 8 2. KeyPoint is headquartered in Loveland, Colorado. Likewise, KeyPoint’s primary 9 administrative and financial offices, including human resources, benefits, accounts payable and 10 payroll, are located in the State of Colorado, and a substantial majority of the corporate decisions, 11 including operational, executive and administrative policy are all made at its headquarters. 12 3. KeyPoint does not own or operate any business office in the State of California. 13 4. KeyPoint retains individuals as independent contractors to perform investigative 14 services on behalf of the Federal Government. These investigative services may include travelling 15 to a local court house or department of motor vehicle office to obtain records on an applicant, 16 interviewing the applicant or friends, family and colleagues who knew the applicant, and compiling 17 a report of the interview(s) and/or records obtained. Independent contractors perform work on a per 18 project or assignment basis. They have the flexibility to accept or reject assignments, and 19 accordingly to determine how many assignments they will during in any particular period of time. 20 After completion of the assigned work, the Contractor submits an invoice for services rendered. 21 5. KeyPoint’s accounting department, which processes the invoices submitted by 22 independent contractors, is located in Colorado. The contracts and other written documents related 23 to the terms of the relationship between KeyPoint and any particular independent contractor are also 24 maintained in Loveland, Colorado. The corporate individuals at KeyPoint knowledgeable about the 25 independent contractor relationship and the scope of work performed by independent contractors are 26 located in Colorado. The corporate individuals familiar with KeyPoint’s contracts with the Federal 27 Government, pursuant to which it retains independent contractors such as Plaintiff Richard Smith, 28 also reside in Colorado. Since independent contracts are retained on a project basis and are not LITTLER MENDELSON, P.C. GRASSMAN DECLARATION IN SUPPORT 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 2. 408.998.4150 OF MOTION TO TRANSFER VENUE Case Case3:15-cv-00429-HSG 3:17-cv-08050-SPL Document Document15-4 16-15 Filed03/31/15 Filed 05/01/17 Page3 Page 4ofof3 4

REPLY to Response to Motion re: {{9}} MOTION to Change Venue/Transfer Case to USDC Colorado or in the Alternative, Dismiss for Failure to State a Claim and for a Stay of Litigation filed by Keypoint Government Solutions Incorporated.

Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 1 of 12 1 Ryan G. Lockner; AZ Bar No. 031517 rlockner@littler.com 2 LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 3 Phoenix, AZ 85016 Telephone: 602.474.3600 4 Margaret Parnell Hogan; pro hac vice 5 mphogan@littler.com 6 LITTLER MENDELSON, P.C. 1900 Sixteenth Street, Suite 800 7 Denver, CO 80202-5835 Telephone: 303.629.6200 8 Attorneys for Defendant 9 KeyPoint Government Solutions, Inc. 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 11 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL 12 similarly situated individuals, DEFENDANT’S REPLY IN 13 Plaintiff, SUPPORT OF ITS MOTION TO TRANSFER VENUE, OR IN THE 14 v. ALTERNATIVE, DISMISS FOR FAILURE TO STATE A CLAIM 15 KeyPoint Government Solutions, Inc., a Delaware corporation, 16 Defendant. 17 18 KeyPoint is not forum shopping. KeyPoint moves for transfer because transfer to the 19 District of Colorado is appropriate as it is the venue most convenient for the parties and the 20 witnesses who will provide testimony critical to the primary issue in this case. Further, 21 KeyPoint’s transfer request would promote the interests of justice because this case would be 22 in a less crowded jurisdiction with familiarity regarding unique legal issues which will 23 undoubtedly arise in the course of this litigation. Orson Judd is suing KeyPoint, a Colorado 24 company, to challenge a decision made in Colorado. Judd, who requested and received work 25 assignments from a Contractor Liaison based in Colorado, claims his suit should proceed in 26 Arizona because he lived and worked in Arizona. Judd’s speculation as to why KeyPoint 27 would prefer to litigate the case in Colorado is insufficient to overcome the conclusion that 28 this litigation should proceed in the District of Colorado. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 2 of 12 1 If this case is not transferred, it should be dismissed. Judd did not file this lawsuit 2 within the applicable two year statutory limitations period. Judd disingenuously attempts to 3 persuade this Court that three years is the appropriate limitations with "evidence" concerning 4 a determination made by an administrative agency, using a different legal test and a different 5 individual. 1 Judd’s attempt to distract this Court from the District of Colorado’s proper 6 application of the two-year statutory limitations period with irrelevant evidence is 7 unavailing. Judd’s contention that his claims were tolled when he filed a Consent to Join in 8 Smith should be rejected. As the Smith court recognized, there were no valid opt-ins in that 9 action since a collective action had not been certified yet. 10 I. THIS LITIGATION SHOULD BE TRANSFERRED TO THE DISTRICT OF COLORADO AS THE MOST CONVENIENT AND EFFICIENT FORUM 11 There are two prongs to analyzing a motion to transfer venue. The Court decides 12 whether the case may have been brought in the district where the moving party seeks to 13 transfer the case. See 28 U.S.C. §1404(a). As Judd does not address this prong of the test in 14 his Opposition, KeyPoint has satisfied the first prong of the evaluation. See Buerle v. United 15 States Dep’t of Health and Human Servs., 2014 WL 3658670, at *6 (D. Ariz. Jul. 22, 2014). 16 KeyPoint also has proven that transfer serves "the convenience of the parties and 17 witnesses, and the interests of justice." See 28 U.S.C. § 1404(a). Application of the Ninth 18 Circuit’s eight relevant factors and despite Judd’s arguments to the contrary, the District of 19 Colorado is the most convenient forum for the parties and important witnesses. See Jones v. 20 GNC Franchising, Inc., 211 F.3d 498-99 (9th Cir. 2000). The District of Colorado is familiar 21 with legal issues unique to this case and is the jurisdiction where the case likely will proceed 22 to trial more quickly. Accordingly, transfer to the District of Colorado is appropriate. 23 A. Judd’s Forum Choice Is Not Entitled to Significant Deference Because KeyPoint Does Not Have substantial Contacts With Arizona. 24 Generally, "in the context of a class or collective action, however, the named 25 26 1 Judd’s attempt to rationalize why Smith failed to prove a willful violation by relying on an 27 unauthenticated document should be disregarded. To the extent Judd’s counsel (the same counsel that represented Judd and other opt-in Plaintiffs in Smith) thought the letter was 28 probative or outcome determinative, they could have so argued to the Smith Court. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-2-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 3 of 12 1 plaintiff’s choice of forum is given less weight." Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 2 1987). Judd, who seeks to represent individuals throughout the United States, contends this 3 rule does not apply here because KeyPoint has substantial contacts in Arizona. [ECF 16 at 9-4 11]. To support his flawed argument, Judd directs the Court to Roling v. E*Trade Sec., LLC, 5 756 F. Supp. 2d 1179, 1186 (N.D. Cal. 2010) and Talley v. Pembrooke Occupational Health, 6 Inc., 2009 WL 899701, at *1 (D. Ariz., Mar. 27, 2009). 7 In Roling, the plaintiff filed a putative class action in the Northern District of 8 California, alleging breach of contract under California law. Roling, 756 F. Supp. 2d at 1183, 9 1186. E*Trade sought transfer to New York, the site of its headquarters, but the court denied 10 the motion. The court concluded E*Trade maintained significant contacts with California as 11 it used to be headquartered there and continued to maintain "a physically larger office in 12 California than it does in New York." Id. at 1186. The plaintiff in Talley filed a breach of 13 contract action against her employer, which was headquartered in Virginia. Talley, 2009 WL 14 899701, at *1. In analyzing the defendant’s motion to transfer venue, the court accorded 15 significant weight to plaintiff’s decision to file in Arizona because, in part, she negotiated 16 and executed the employment contract on which her claim was based in Arizona. Id. 17 The material factual distinctions between this matter and the cases on which Judd 18 relies render those cases inapplicable. Judd brings a collective action on behalf of individuals 19 who reside throughout the United States while Talley pursued claims solely on her own 20 behalf. KeyPoint has never been headquartered in Arizona and does not maintain a physical 21 presence in the state. [See Deposition of Jennifer Boaz at 45:15-23, attached as Ex. A to the 22 Declaration of Margaret Parnell Hogan]. 2 Moreover, unlike in Talley, KeyPoint’s contacts to 23 Arizona do not relate to Judd’s cause of action. See Hendricks v. StarKist Co., 2014 U.S. 24 Dist. LEXIS 124880, at *2 (N.D. Cal. Mar. 25, 2014) ("[C]ourts must consider the extent of 25 the parties’ contacts with the chosen forum, including contacts relating to the plaintiff’s 26 cause of action.") (internal citation and quotation omitted). Judd’s case is unquestionably 27 28 2 All exhibit references refer to the Declaration of Margaret Parnell Hogan. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-3-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 4 of 12 1 based on a decision made and enforced in Colorado. [ECF 9-1 at ¶ 4]. Judd received his job 2 assignments from his Contractor Liaison who worked in Colorado. [Ex. B, Deposition of 3 Orson Judd at 59:17-60:2; ECF 9-1 at ¶ 10]. Judd interacted only with KeyPoint employees 4 based in Colorado. He had no contact, concerning his job duties or otherwise, with KeyPoint 5 employees based in Arizona. 6 KeyPoint’s minimal and unrelated contacts with Arizona do not justify departure from 7 the general rule that less deference is owed to the forum choice of a plaintiff who seeks to 8 represent a group of individuals spread throughout the United States. Judd’s choice of forum 9 should be accorded minimal, if any, deference. 10 B. Judd’s Mischaracterization Of KeyPoint’s Arguments In The Smith Litigation Do Not Prevent Transfer Of This Litigation To Colorado 11 In his attempt to overstate the significance of KeyPoint’s connection to Arizona, Judd 12 contends KeyPoint, in its motion to transfer venue in the Smith litigation, "took the position 13 that these precise facts warranted transfer to the Plaintiff’s home forum." [ECF 16 at 10]. 14 Judd’s statement is a blatant mischaracterization of KeyPoint’s argument. 15 Smith initiated his lawsuit in the Northern District of California where he did not 16 reside. KeyPoint moved to transfer the case to the Southern District of Ohio, Western 17 Division, where Smith lived and worked or to the District of Colorado, KeyPoint’s home 18 state. [ECF 16-8 at 7]. KeyPoint included details regarding Smith’s place of work, place of 19 residence, and work duties to argue, as is clear from the heading on the page, that Smith 20 could have filed his lawsuit in the Southern District of Ohio instead of the Northern District 21 of California. [ECF 16-8 at 11]. KeyPoint asserted a similar argument regarding Colorado, 22 pointing out Smith could have filed the litigation in Colorado because: KeyPoint is 23 headquartered there; the policy decision at issue is enforced by employees there; KeyPoint’s 24 accounting department which processes independent contractor invoices is located there; 25 independent contractor documents are maintained there; and the corporate individuals 26 familiar with KeyPoint’s independent contractors relationship and the company’s 27 relationships with the Federal Government are located in Colorado. [ECF 16-8 at 12]. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-4-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 5 of 12 1 In addition to being an inaccurate representation, Judd’s argument is irrelevant to 2 resolution of the current motion. KeyPoint does not challenge the propriety of Arizona as a 3 forum. Nor does KeyPoint challenge Judd’s connection to the State of Arizona. The issue is 4 whether a balancing of the relevant factors warrants transfer away from Judd’s home forum. 5 Judd’s mischaracterization of KeyPoint’s argument in a previous case under different 6 circumstances does nothing to tip the balance of that evaluation against transfer. 7 C. Colorado Is A More Convenient Forum For The Parties And Witnesses 8 Judd is an Arizona resident while KeyPoint is headquartered in Colorado. On their 9 face, these facts support Judd’s contention that Colorado is an inconvenient forum for him. 10 But, these facts do not tell the whole story and Judd cannot ignore his previous voluntary 11 pursuit of these same claims against KeyPoint in the District of Colorado. Further, as Judd 12 alludes to in his Opposition, the burden on Judd of litigating in Colorado can be alleviated 13 through a deposition in Arizona, where Judd was deposed in the Smith litigation. Given the 14 unique history of this litigation, Colorado is a convenient forum for Judd. 15 Nevertheless, Judd argues evaluation of the convenience of the witnesses factor favors 16 transfer because KeyPoint’s employees will testify wherever the case is pending and the 17 most likely non-party witnesses are people Judd interviewed during his time as a contractor 18 for KeyPoint. [ECF 16 at 12-14]. Judd’s argument is unconvincing, especially because this 19 case is not likely to require significant non-party witness testimony, at least with respect to 20 the most important issues in the case. See Rubio v. Monstano Co., 181 F. Supp.3d 746, 763 21 (C.D. Cal. 2016) ("In assessing whether the convenience of the witnesses favors transfer, the 22 Court must consider both the location and number of witnesses each side has and the relative 23 importance of those witnesses.") (internal citations omitted). 24 The primary issue in this case is whether KeyPoint correctly classified Judd as an 25 independent contractor. To resolve that issue, the Court must evaluate six factors: (1) the 26 degree of control KeyPoint exercised over the manner in which Judd performed work; (2) 27 Judd’s opportunity for profit or loss; (3) Judd’s investment in equipment or materials 28 required for his task; (4) whether Judd rendered a service requiring a special skill; (5) the LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-5-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 6 of 12 1 degree of permanence of the relationship between Judd and KeyPoint; and (6) whether Judd 2 provided a service integral to KeyPoint’s business. Collinge v. Intelliquick Delivery, Inc., 3 2015 WL 1292444, at *2-3 (D. Ariz. Mar. 23, 2015) (citing Real v. Driscoll Strawberry 4 Associates, Inc., 603 F.2d 748, 754 (9th Cir. 1979)). Judd’s unidentified non-party witnesses 5 cannot possibly have personal knowledge relevant to evaluation of any of these factors. 6 Therefore, their testimony is irrelevant to the most critical issue in the case. 7 Testimony regarding the most important issue in this case will be derived exclusively 8 from the parties, including KeyPoint employees. To defend against Judd’s claim, KeyPoint 9 will rely on the testimony of individuals who reside in Colorado or frequently travel to 10 Colorado to address each element. Jennifer Boaz, KeyPoint’s National Director of 11 Independent Contracts will testify about the duties Judd performed as contractor, the 12 independence Judd had while performing those duties, Judd’s opportunity for profit or loss, 13 and the special skillset KeyPoint looks for when engaging independent contractors. [ECF 9-1 14 at ¶¶7-12; Ex. A at 52:16-53:9]. Boaz resides in Pittsboro, North Carolina, which is 15 approximately six hundred miles closer to Loveland, Colorado than it is to Phoenix, Arizona. 16 Boaz regularly travels to Loveland, Colorado, KeyPoint’s headquarters, for work. [ECF 9-1 17 at ¶2]. She does not travel to Arizona for work. 18 In addition to Boaz’s testimony, KeyPoint will offer the testimony of Julie Hammond, 19 Judd’s Contractor Liaison. Ms. Hammond, a Colorado resident, will testify regarding Judd’s 20 receipt and execution of assignments, his compensation for those assignments, and his ability 21 to negotiate for more compensation on assignments. [See Deposition of Orson Judd at 59:17-22 60:2, attached as Ex. B.] Further, KeyPoint will likely rely on testimony from Angela 23 Deabler, the Program Director for KeyPoint’s contract with the Office of Personnel 24 Management ("OPM"). Ms. Deabler, a Colorado resident, will testify about requirements 25 imposed on KeyPoint and contractors by virtue of KeyPoint’s contract with OPM. [Ex. A at 26 7:14-25]. 27 KeyPoint makes corporate policy decisions in Colorado. [ECF 9-1 at ¶4]. Judd 28 challenges the legality of one of those policies, and for that reason alone, Colorado is the LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-6-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 7 of 12 1 more convenient forum for the relevant and important witnesses in this case. See Martinago 2 v. Merrill Lynch & Co., 2012 WL 112246, at *6 (S.D.N.Y. Jan. 13, 2012) ("Where a plaintiff 3 asserts – on behalf of h[im]self and a nationwide collective class – FLSA violations flowing 4 from a corporate policy mandating an allegedly unlawful compensation scheme, courts 5 generally conclude that the'more critical and extensive [testimony] is likely to be provided 6 by the parties and witnesses residing … where [the company] is headquartered’") (quoting 7 Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp.2d 246, 256 (E.D.N.Y. Oct. 8, 2010)). 8 The parties and KeyPoint’s employees will be the primary witnesses on the most important 9 issue in Judd’s claim. The number of witnesses, the importance of their testimony, and their 10 location or relative contacts with each potential venue demonstrate that Colorado is the more 11 convenient forum. As such, this factor weighs in favor of transfer. 12 D. Relevant Documents Which Are Within KeyPoint’s Possession, Custody, Or Control Are Stored In Hard Copy In Colorado, Making Access To 13 Those Documents Easier In Colorado. 14 Judd’s attempt to direct this factor toward neutral by pointing to Smith’s motion to 15 compel in Smith fails. The motion to compel involved a request for documents belonging to 16 and controlled by a third party, OPM. The relevant inquiry here is the location of those 17 documents within KeyPoint’s possession, custody and control. With respect to the location 18 of those documents, the Court should consider the undisputed fact that KeyPoint maintains 19 relevant records that pre-date January 1, 2017, including independent contractor agreements, 20 copies of contracts between KeyPoint and its customers, and reports related to work 21 assignments, in hard copies that are maintained in Loveland, Colorado. [ECF 9-1 at ¶5]. 22 KeyPoint does not deny the impact technology has had on the exchange of 23 documentary evidence in litigation. However, Judd’s engagement ended long before 24 KeyPoint began maintaining potentially relevant documents electronically. Further, the 25 electronic transfer of documents does not change the fact that Julie Hammond resides and 26 works in Colorado. Her testimony will likely be necessary to authenticate reports and other 27 documents which cannot, or have not, been authenticated by Judd. The electronic exchange 28 of documents does not change the fact that Ms. Hammond is more easily accessible in LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-7-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 8 of 12 1 Colorado than Arizona. As such, this factor of the evaluation weighs in favor of transfer. 2 E. Judd’s Mischaracterization Of The Discovery Disputes Does Not Negate The District Of Colorado’s Familiarity With Legal Issues Particular To 3 This Case 4 KeyPoint admits this case arises under federal law, just as the Smith litigation which 5 was litigated in the District of Colorado, arose under federal law. 3 During the pendency of 6 the Smith litigation, the parties required judicial assistance on several discovery issues, 7 including the production of materials belonging to OPM. Despite the fact that this issue will 8 arise in this case because Judd worked exclusively on OPM contracts, Judd contends the 9 District of Colorado’s previous receipt of briefing and consideration of the issue are "a red 10 herring." Judd’s contention is both odd and unsupported by fact. 11 The parties fully briefed the issue to the District of Colorado. KeyPoint argued it did 12 not have authority to produce the document and the proper course of action for Plaintiff to 13 take was to submit a request directly to OPM under United States ex. rel Touhy v. Ragen, 14 430 U.S. 462 (1951). KeyPoint further argued that Smith’s failure to make such a request 15 precluded any order compelling KeyPoint to provide the documents. [Smith Litigation, ECF 16 52 at 6]. Contrary to Judd’s argument, the District of Colorado’s familiarity with the 17 arguments and the applicable law regarding those arguments places the District of Colorado 18 in a better position to efficiently resolve an issue that will arise in the instant litigation. F. Colorado’s Interest in this Controversy Outweighs Arizona’s Interest. 19 Like Arizona, Colorado has an interest in assuring companies within its borders 20 follow the law. KeyPoint, the business at issue here, is headquartered in Colorado. Nearly 21 200 KeyPoint employees and 40 contractors reside in Colorado. Conversely, KeyPoint has 22 no physical presence in Arizona, employs only 11 Arizona residents, and has contracts with 23 54 residents. Given these numbers, Colorado has a greater interest than Arizona in ensuring 24 KeyPoint complies with the law. This factor also weighs in favor of transfer. 25 26 3 Notably, the Sgherzi litigation, to which Judd makes repeated reference, asserted claims 27 only under California law. It was not until the action settled that plaintiff amended his Complaint to include an FLSA claim for purposes of settlement only. Accordingly reliance 28 on Smith is wholly irrelevant to this proceeding. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-8-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 9 of 12 1 G. The Six Month Difference In The Median Time From Filing To Trial Is Significant Enough for this Factor to Favor Transfer 2 Even if relative congestion "is at best, a minor factor in the section 1404 calculus," it 3 is a factor in the analysis, and here it favors transfer. Lopatin v. LTF Club Operations Co., 4 Inc., 2016 WL 407319, at *3 (D. Ariz. Feb. 3, 2016). The Lopatin court evaluated a motion 5 to transfer from the District of Arizona to the District of Minnesota, where the time to trial 6 was less than 3 months shorter than in the District of Arizona. Id. at *3. Because the court 7 expected to get this breach of contract case to trial "in less than 27 months" the court did not 8 place much emphasis on the relative congestion factor due to the short time frame. Id. at *3. 9 The potential delay here is double the potential delay in Lopatin. Further, this is not a 10 simple contract case. It is a potential collective action concerning the same issue KeyPoint 11 and Smith litigated for nearly two years before it was adjudicated in KeyPoint’s favor. The 12 court cannot reasonably expect this case to move expeditiously through the litigation 13 process. For this reason, and because the docket in the District of Arizona is more congested 14 than the docket in the District of Colorado, transfer of this litigation to the District of 15 Colorado is proper to ensure the parties proceed to trial as quickly as possible. See Ito v. 16 Tokio Marine & Fire Ins. Co., 166 F. App’x 932, 935 (9th Cir. 2006) ("[t]he real issue is not 17 whether a dismissal will reduce a court’s congestion but whether a trial may be speedier in 18 another court because of its less crowded docket.") (internal quotation omitted). 19 II. EQUITABLE TOLLING DOES NOT SAVE JUDD’S DELINQUENTLY 20 FILED COMPLAINT 21 The District of Colorado decided the two year statute of limitations is applicable. 22 [Smith Litigation, ECF 95]. Judd argues the District of Colorado’s decision is inapplicable 23 because KeyPoint (which does not bear the burden to prove willfulness) "failed" to alert the 24 District of Colorado of an IRS determination made under a different legal test, regarding a 25 different individual, and applying to a time period (2005-2010) which predates Judd’s 26 claims. [ECF 16 at 17, n.7]. This is a red-herring. Notably Judd’s counsel does not disclose 27 to this Court that they were aware of, and had access to the IRS determination throughout the 28 entire pendency of the Smith litigation. Smith’s counsel chose not to rely on the IRS LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-9-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 10 of 12 1 determination, and for good reason. The IRS determination specifically states that pursuant 2 to IRS Code § 6110(k)(3) "it may not be used or cited as precedent." [ECF 16-2 at 6]. In 3 filing his Consent to Join the Smith litigation, Judd specifically designated plaintiff Smith as 4 his representative "to make decisions on my behalf concerning the litigation, the method and 5 manner of conducting and resolving the litigation, and all other matters pertaining to this 6 lawsuit." [Doc. 16-11 at 6]. He further chose to be represented by the law firms of Schneider 7 Wallace Cottrell Konecky Wotkyns LLP and the Law Offices of Kevin T. Barnes. (Id.) 8 Judd’s apparent disagreement now with the strategy employed by his representatives (both 9 Smith and Counsel) should not serve as a basis for disregarding the District of Colorado’s 10 conclusion that KeyPoint did not act with a reckless disregard for the requirements of the 11 FLSA in its classification of investigators as independent contractors. 12 Because application of the two year statute of limitations is appropriate, and Judd did 13 not file this action until March 3, 2017 (two years and 7 months after his relationship with 14 KeyPoint ended), Judd’s only hope to avoid dismissal is through equitable tolling. In support 15 of his tolling argument, Judd directs the Court to three cases for the proposition that Judd’s 16 filing of a consent to join in Smith acts to equitably toll his claims. 4 Ford v. Navika Capital 17 Group, LLC, 2016 WL 1069676 (S.D. Ala., Mar. 17, 2016), presented the following fact 18 pattern: a plaintiff files a lawsuit, obtains conditional certification, other individuals opt-in to 19 the conditionally certified action, the court later decertifies the collective action, and the 20 individual opt-ins are dismissed without prejudice. The individual seeking equitable tolling 21 was a member of a conditionally certified class and thus a party to the litigation, rendering 22 equitable tolling appropriate as the court had already made an initial determination that the 23 matter would proceed as a collective action with the opt-in as a member of said collective. 5 24 25 4 Judd’s reliance on Armstrong v. Martin Marietta Corp., 138 F.3d 1374 (11th Cir. 1998) is puzzling as the question presented there related to tolling in the Rule 23 class action context. 26 5 In In re Tyson Foods, Inc., 2008 WL 4613654, at *2 (M.D. Ga. Oct. 15, 2008), the consents 27 were filed after the conditional certification motion had been filed so there was a motion pending upon which the opt-ins could reasonably rely to believe that their claims were being 28 pursued. That argument cannot be made here. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-10-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 11 of 12 1 Judd has no similar argument. The Smith litigation was filed in January 2015. Judd filed his 2 notice to consent to join the litigation on August 20, 2015. [Smith Litigation, ECF 43]. At 3 that point, Smith had not moved to conditionally certify a collective action, and did not do so 4 until April 18, 2016. [Smith Litigation, ECF 95]. On April 25, 2016, the Smith court denied 5 the motion for certification of a collective action without prejudice. [Smith Litigation, ECF 6 83 at 2]. With no granted (or even pending) motion for conditional certification, Judd cannot 7 be said to have reasonably believed that his claims were being adjudicated in Smith. 8 The inapplicability of equitable tolling when an action has not been conditionally 9 certified is further supported by the Smith Court’s rejection of plaintiff’s argument that his 10 action could proceed despite the summary judgment order: 11 As a factual matter, plaintiff is simply mistaken in suggesting that other plaintiffs have opted in to this lawsuit. Indeed, such would be impossible, as a 12 collective action has not been certified yet. Moreover, "the mere presence of 13 collective-action allegations in the complaint cannot save the suit from mootness once the individual claims is satisfied." Genesis Healthcare Copr. v. 14 Smczyk, 133 S.Ct. 1523, 1529, (2013). Until certification is granted, no consequence attaches to the alleged collective nature of the action. 15 [Smith Litigation, ECF 95 at 6]. 16 Equitable tolling is designed to prevent dismissal where fault for the dismissal does 17 not lie with the plaintiff. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013). 18 Judd had no reasonable basis for relying on his consent to join in the Smith action to toll the 19 statute of limitations. His failure to move, through his representative and counsel, for 20 conditional certification or to file his own action does not justify equitable tolling. 21 Judd filed this lawsuit more than two years after the end of his contractual relationship 22 with KeyPoint. The District of Colorado has already found the two year statute of limitations 23 to be the applicable limitations period. Because tolling is not appropriate under the facts of 24 this case, Judd’s claim is time-barred and must be dismissed. 25 III. CONCLUSION 26 For the foregoing reasons, KeyPoint respectfully requests this Court grant its’ Motion 27 to Transfer Venue, or in the Alternative, Dismiss Judd’s Claim with Prejudice. 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-11-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 17 Filed 05/08/17 Page 12 of 12 1 DATED this 8th day of May, 2017 2 3 4 s/Margaret Parnell Hogan Margaret Parnell Hogan 5 Ryan G. Lockner LITTLER MENDELSON, P.C. 6 Attorneys for Defendant KeyPoint Government Solutions, Inc. 7 8 I hereby certify that I electronically transmitted the attached document to the 9 Clerk’s Office using the CM/ECF System for filing and transmittal of a 10 Notice of Electronic Filing to the following CM/ECF registrants this 8th 11 day of May, 2017: 12 Michael C. McKay SCHNEIDER WALLACE COTTRELL 13 KONECY WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 14 Scottsdale, AZ 85253 mmckay@schneiderwallace.com 15 Joshua Konecky 16 Leslie H. Joyner SCHNEIDER WALLACE COTTRELL 17 KONECY WOTKYNS LLP 2000 Powell Street, Suite 1400 18 Emeryville, CA 94608 jkonecky@schneiderwallace.com 19 ljoyner@schneiderwallace.com 20 Attorneys for Plaintiff 21 s/Nancy R. Weber 22 Nancy R. Weber 23 24 25 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-12-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

DECLARATION of Margaret Parnell Hogan re: {{17}} Reply to Response to Motion to Transfer Venue, or in the Alternative, Dismiss for Failure to State a Claim by Defendant Keypoint Government Solutions Incorporated.

Case 3:17-cv-08050-SPL Document 18 Filed 05/08/17 Page 1 of 3 1 Ryan G. Lockner; AZ Bar No. 031517 rlockner@littler.com 2 LITTLER MENDELSON, P.C. Camelback Esplanade 3 2425 East Camelback Road Suite 900 4 Phoenix, AZ 85016 Telephone: 602.474.3600 5 Margaret Parnell Hogan; pro hac vice 6 mphogan@littler.com 7 LITTLER MENDELSON, P.C. 1900 Sixteenth Street, Suite 800 8 Denver, CO 80202-5835 Telephone: 303.629.6200 9 Attorneys for Defendant 10 KeyPoint Government Solutions, Inc. 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 12 13 ORSON JUDD, on behalf of himself and all Case No. 3:17-cv-08050-SPL 14 similarly situated individuals, DECLARATION OF MARGARET 15 Plaintiff, PARNELL HOGAN IN SUPPORT OF KEYPOINT’S REPLY IN 16 v. SUPPORT OF MOTION TO TRANSFER VENUE, OR IN THE 17 KEYPOINT GOVERNMENT ALTERNATIVE, DISMISS FOR SOLUTIONS, INC., a Delaware FAILURE TO STATE A CLAIM 18 corporation, 19 Defendant. 20 21 I, Margaret Parnell Hogan, hereby declare: 22 1. I am a Shareholder with the firm of Littler Mendelson, P.C., attorneys of 23 record for KeyPoint Government Solutions, Inc. in the above-captioned matter, and with my 24 colleague Ryan Lockner, counsel for defendant. I have been admitted pro hac vice to 25 practice before this Court. I make this declaration to authenticate deposition transcripts in 26 support of Defendant KeyPoint Government Solutions Inc.’s motion to transfer venue or, 27 alternatively, dismiss for failure to state a claim. I have personal knowledge of the facts 28 stated below. LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 18 Filed 05/08/17 Page 2 of 3 1 2. On February 17, 2016, Joshua Konecky, counsel for Plaintiff, Orson 2 Judd, took the deposition of Jennifer Boaz in the litigation which was then pending in the 3 United States District Court for the District of Colorado styled, Richard A Smith, et al. v. 4 KeyPoint Government Solutions, Inc., Case No. 15-cv-00865-REB-KLM. The deposition 5 was reported by Dawn K. Larson. After the deposition was concluded, I received a certified 6 copy of the transcripts of the deposition from the court reporter. Attached hereto as Exhibit 7 A are true and correct copies of relevant pages from Boaz’s deposition transcript. 8 3. On March 24, 2016, my colleague Karen Cogbill, a Shareholder with 9 Littler Mendelson, P.C., took the deposition of Orson Judd. The deposition was reported by 10 Thomas A. Woppert. After the deposition was concluded, I received certified transcripts of 11 the deposition from the court reporter. Attached hereto as Exhibit B are true and correct 12 copies of relevant pages from Judd’s deposition transcript. 13 I declare under penalty of perjury that the foregoing statement is true and correct. 14 15 s/Margaret Parnell Hogan 16 Margaret Parnell Hogan LITTLER MENDELSON, P.C. 17 Attorneys for Defendant KeyPoint Government Solutions, Inc. 18 19 I hereby certify that I electronically transmitted the attached document to the 20 Clerk’s Office using the CM/ECF System for filing and transmittal of a 21 Notice of Electronic Filing to the following CM/ECF registrants this 8th 22 day of May, 2017: 23 Michael C. McKay SCHNEIDER WALLACE COTTRELL 24 KONECY WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 25 Scottsdale, AZ 85253 mmckay@schneiderwallace.com 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-2-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 18 Filed 05/08/17 Page 3 of 3 1 Joshua Konecky 2 Leslie H. Joyner SCHNEIDER WALLACE COTTRELL 3 KONECY WOTKYNS LLP 2000 Powell Street, Suite 1400 4 Emeryville, CA 94608 jkonecky@schneiderwallace.com 5 ljoyner@schneiderwallace.com 6 Attorneys for Plaintiff 7 s/Nancy R. Weber 8 Nancy R. Weber 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-3-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Exhibit A- Jennifer Boaz Depo Excerpts

Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ORSON JUDD, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, Plaintiff, v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. EXHIBIT A TO DECLARATION OF MARGARET PARNELL HOGAN IN SUPPORT OF KEYPOINT’S REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE, OR IN THE ALTERNATIVE, DISMISS FOR FAILURE TO STATE A CLAIM Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 2 of 8 Page 1 1 J. BOAZ 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF COLORADO 3 _____________________________________________________ 4 RICHARD SMITH, individually and on behalf of all others similarly situated, 5 Plaintiffs, 6 v. 7 KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware 8 corporation, 9 Defendant. 10 COURT USE ONLY _____________________ 11 Case No. 15-CV-00865-REB-KLM 12 DEPOSITION OF JENNIFER BOAZ 13 Denver, Colorado 14 Wednesday, February 17, 2016 15 16 17 18 19 20 21 22 23 Reported by: 24 DAWN K. LARSON, MBA, RDR, CRR, CRC 25 JOB NO. 103363 TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 3 of 8 Page 2 1 J. BOAZ 2 3 4 Wednesday, February 17, 2016 5 9:16 a.m. 6 7 PURSUANT TO NOTICE and the Colorado Rules of 8 Civil Procedure, the above-entitled deposition of 9 JENNIFER BOAZ was taken by the Plaintiffs, held at the 10 offices of Littler Mendelson P.C., 1900 Sixteenth 11 Street, Suite 800, Denver, Colorado, before Dawn K. 12 Larson, Registered Diplomate Reporter, Certified 13 Realtime Reporter, Certified Realtime Captioner and 14 Notary Public for the State of Colorado. 15 16 A P P E A R A N C E S 17 FOR THE PLAINTIFFS: 18 JOSHUA KONECKY, ESQ. Schneider Wallace Cottrell Konecky 19 Wotkyns 2000 Powell Street 20 Emeryville, California 94608 21 22 FOR THE DEFENDANTS: 23 MARGARET HOGAN, ESQ. Littler Mendelson 24 1900 Sixteenth Street Denver, Colorado 80202 25 TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 4 of 8 Page 7 1 J. BOAZ 2 Q. What do you do now? You could go on 3 forever, but could you just summarize, if you can, 4 what you do now in your current role? 5 A. As the national director, I have the 6 primary responsibility to the OPM contract, which is 7 Office of Personnel Management, and I have direct 8 relations provision of the contract liaison team that 9 assists and supports the independent contractors on 10 the OPM contract for KeyPoint. 11 Q. How many contract liaisons are there on 12 the contract liaison team for the OPM contract? 13 A. There are currently 19. 14 Q. Are they dispersed across the country? 15 A. Correct. 16 Q. Are there other contract liaisons at 17 KeyPoint other than the ones on the OPM team? 18 A. There are contract liaison case managers 19 on the DHS and other VI projects. 20 Q. Did you say contract case managers--21 A. They're called Case Manager/Contract 22 Liaison, so CM/CL. 23 Q. How many on--you said the DHS project? 24 A. Project, uh-huh. 25 Q. How many--TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 5 of 8 Page 45 1 J. BOAZ 2 MS. HOGAN: Whenever you have time for a 3 break, Josh, I need a bathroom break. 4 MR. KONECKY: Sure. 5 Q. (By Mr. Konecky) What does CRA stand 6 for? 7 A. Case review analyst. 8 Q. And then the PIP system, is that just on 9 the OPM side? 10 A. That is correct. 11 MR. KONECKY: Okay. We can take a 12 break. 13 MS. HOGAN: Thank you. 14 (Brief recess.) 15 Q. (By Mr. Konecky) As I understand, 16 KeyPoint is headquartered here in Denver? 17 MS. HOGAN: Object to form. 18 A. It is actually located in Loveland, 19 Colorado. 20 Q. (By Mr. Konecky) Are there any other 21 physical locations that KeyPoint has? 22 A. We have an office in Slippery Rock, 23 Pennsylvania, and another office in Fairfax, Virginia. 24 Q. Is there anything, in particular, that 25 the Pennsylvania or Virginia offices handle, or is it TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 6 of 8 Page 52 1 J. BOAZ 2 external--when they transmit a report of 3 investigation through PIPs, which is an OPM system, it 4 calculates the source unit values of the information 5 that they are transmitting, and that causes that 6 four-week average. 7 Q. So a contractor can request--8 specifically request work through the workload request 9 tool? That's one mechanism? 10 A. That's correct. 11 Q. They can also contact the workload 12 coordinator or logistic analyst through a different 13 medium? 14 A. Correct. They can contact them directly 15 via telephone or e-mail. 16 Q. And are they--do they request--is 17 there any specifics in terms of the type of work they 18 can request, or is it a quantity of work or something 19 else? 20 A. In the workload request tool, it's a 21 quantity. So it defaults to their four-week average. 22 They can override that. So if, for an example, a CI's 23 average is five source units per week. That would be 24 the auto default. The independent contractor can go 25 in and say, "On Week 1, I'd like five. On Week 2, I'd TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 7 of 8 Page 53 1 J. BOAZ 2 like 10. On Week 3 and 4, I'm going on vacation. I'm 3 zeroing myself out," indicating I don't want any work, 4 I will not be engaging in any work during that time 5 frame. On week, you know, default call--Week 10, a 6 trip coming up again or I need to pay for the trip I 7 just did and I want 20. So it's self-regulated on the 8 independent contractor's part as to how much they want 9 and in what week they want that work. 10 Q. And you discuss the quantity. Can the 11 contractor say "I want to do a background check for a 12 particular types of checks?" Like "I want to do a 13 background check for somebody applying for this kind 14 of position or somebody applying for that kind of 15 position," or is it just a quantity they're putting 16 in? 17 A. Well, there are parameters, and we 18 discuss them with the LA or the CL. They can also 19 gain work from the CL. 20 Q. And CL is? 21 A. Contract liaison. They can tell them 22 specifically, "I would like this case type," or "I 23 would like to work in this zip code. I live in 24 Colorado, but I'm going to Florida for two months, but 25 I would like to work while I'm visiting my TSG Reporting-Worldwide 877-702-9580 Case 3:17-cv-08050-SPL Document 18-1 Filed 05/08/17 Page 8 of 8 Page 261 1 J. BOAZ 2 STATE OF COLORADO)) ss. REPORTER'S CERTIFICATE 3 COUNTY OF JEFFERSON) 4 I, Dawn K. Larson, Registered Diplomate 5 Reporter, Certified Realtime Reporter, Certified 6 Realtime Captioner, and Notary Public within the State 7 of Colorado, do hereby certify that previous to the 8 commencement of the examination, the deponent was duly 9 sworn by me to testify to the truth. 10 I further certify this deposition was taken 11 in shorthand by me at the time and place herein set 12 forth and thereafter reduced to typewritten form, that 13 the foregoing constitutes a true and correct 14 transcript. 15 I further certify that I am not related to, 16 employed by, nor of counsel for any of the parties or 17 attorneys herein, nor otherwise interested in the 18 result of the within action. 19 In witness whereof, I have hereunto affixed 20 my hand and seal. My commission expires: April 3, 21 2018. 22 DATED: 2-29-2016 23 __________________________________ Dawn K. Larson, MBA, RDR, CRR, CRC 24 Notary Public 25 TSG Reporting-Worldwide 877-702-9580

Exhibit B-Orson Judd Depo Excerpts

Case 3:17-cv-08050-SPL Document 18-2 Filed 05/08/17 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ORSON JUDD, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, Plaintiff, v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. EXHIBIT B TO DECLARATION OF MARGARET PARNELL HOGAN IN SUPPORT OF KEYPOINT’S REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE, OR IN THE ALTERNATIVE, DISMISS FOR FAILURE TO STATE A CLAIM Case 3:17-cv-08050-SPL Document 18-2 Filed 05/08/17 Page 2 of 6 IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLORADO RICHARD SMITH, individually and) on behalf of all others) similarly situated,)) Plaintiff,)) v.) No. 15-cv-00865-REB) KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,)) Defendant.) ________________________________) DEPOSITION OF ORSON V. JUDD Tucson, Arizona March 24, 2016 9:07 a.m. REPORTED BY: Thomas A. Woppert, RPR AZ CCR No. 50476 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V.18-2 Document JUDDFiled 05/08/17 Page 3 of 6 3/24/2016 Page 2 DEPOSITION OF ORSON V. JUDD, taken on March 24, 2016, commencing at 9:07 a.m., at the offices of KATHY FINK & ASSOCIATES, 2819 East 22nd Street, Tucson, Arizona, 85713, before THOMAS A. WOPPERT, RPR, a Certified Court Reporter in the State of Arizona. COUNSEL APPEARING: LITTLER MENDELSON, P.C. By Ms. Karin M. Cogbill 50 West San Fernando Street, 15th Floor San Jose, California 95113 Attorneys for Defendant KeyPoint Government Solutions, inc. LAW OFFICES OF KEVIN T. BARNES By Mr. Michael C. Sheridan 5670 Wilshire Boulevard, Suite 1460 Los Angeles, California 90036 Attorneys for Plaintiffs ALSO PRESENT: Ms. Jennifer Boaz, National Director of Independent Contracts. scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V.18-2 Document JUDDFiled 05/08/17 Page 4 of 6 3/24/2016 Page 59 1 about 1,450. And then she was receiving a disability. Of 2 course, I don't think we need to add that in there, so 3 basically my retirement just for me with social security 4 would be about 75,000 a year. 5 Q. And was that consistent in 2012, 2013 and then 6 2014? 7 A. Yeah. Pretty much so, yes. 8 Q. So the last one I want to have you look at is 9 your 2014--10 A. Okay. 11 Q.--that page. And for the record, it's Bates 12 labeled number two. And if you could just again identify 13 for me which ones relate to your payments from KeyPoint. 14 A. 2 February for 380, 9 March for 400, 6 April for 15 220, 11 May for 250, 1 June for 320, 6 July for 400, 14 16 September for 11--110, and for 12 October, 400. 17 Q. Do you recall that your contractor liaison was 18 Julie Hammand, at least at the--19 A. Yes, I believe so. 20 Q. And is Ms. Hammand who you would have 21 corresponded with with respect to requesting more 22 assignments? 23 A. Right. 24 Q. And if you were going to negotiate or ask for a 25 premium or any kind of an increase on an assignment, you scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V.18-2 Document JUDDFiled 05/08/17 Page 5 of 6 3/24/2016 Page 60 1 would do that with Julie? 2 A. Yes. If I asked for it, yes, I would. 3 Q. Did you tend to communicate with Julie mostly by 4 e-mail? 5 A. Oh, sometimes by e-mail and sometimes it would be 6 on the phone. 7 Q. Do you still have any of the e-mails that you 8 sent or received as a contract investigator? 9 A. No, I don't. 10 Q. And tell me what happened to them. 11 A. Well, they were on the KeyPoint computer, so I 12 don't know what happened to them. 13 Q. Okay. 14 A. So when I sent back the computer. 15 Q. Was there a time when you were using a personal 16 e-mail address as an investigator? 17 MR. SHERIDAN: To do investigative work? 18 MS. COGBILL: Correct. 19 THE WITNESS: Yes. 20 BY MS. COGBILL: 21 Q. And what about your personal e-mail account? Do 22 you still have any of the e-mails in that personal e-mail 23 account related to your investigative work? 24 A. No, I don't. 25 Q. And would you have deleted all of those? scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 Smith v. Keypoint Government Case Solutions 3:17-cv-08050-SPL ORSON V.18-2 Document JUDDFiled 05/08/17 Page 6 of 6 3/24/2016 Page 93 STATE OF ARIZONA)) ss. COUNTY OF PIMA) BE IT KNOWN that the foregoing transcript was taken before me, THOMAS A. WOPPERT, RPR; that I was then and there a Certified Reporter, Certificate No. 50476, in the State of Arizona; that the witness before testifying was duly sworn by me to testify to the whole truth; that the foregoing pages are a true and correct transcript of all proceedings; and that preparation, production and distribution of the transcript and copies comply with law and code as required by ACJA 7-206(F)(3). I FURTHER CERTIFY that I have acted in compliance with ACJA 7-206(J)(1)(g)(1). (X) Pursuant to request, notification was provided that the deposition transcript is available for review and signature. () Deposition transcript review and signature was not requested. WITNESS MY HAND this 1st day of April 2016. _________________________ Thomas A. Woppert, RPR AZ CCR No. 50476 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490

NOTICE re: Filing Consent to Join Collective Action by Orson Judd.

Case 3:17-cv-08050-SPL Document 19 Filed 05/26/17 Page 1 of 3 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 ORSON JUDD, an individual, on behalf of) Case No. 3:17-cv-08050-SPL himself and on behalf of all others similarly) 12 situated,) NOTICE BY PLAINTIFF OF FILING) CONSENT TO JOIN COLLECTIVE 13 Plaintiff,) ACTION) 14 vs.)) 15 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,) 16) Defendant.) 17)) 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFF OF FILING CONSENT TO JOIN COLLECTIVE ACTION 28 Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 19 Filed 05/26/17 Page 2 of 3 1 Plaintiff Orson Judd, on behalf of himself and all others similarly situated, hereby files the 2 following Consent to Join Collective Action in the above cited action, submitted herewith as Exhibit 1, 3 pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). 4 5 CONSENT TO JOIN COLLECTIVE ACTION: 6 3. Sal Barrientos 7 8 Dated: May 26, 2017 Respectfully Submitted, 9 By:/s/Joshua Konecky 10 Joshua Konecky 11 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 12 2000 Powell Street, Suite 1400 Emeryville, California 94608 13 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 14 jkonecky@schneiderwallace.com 15 Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 1 28 NOTICE BY PLAINTIFF OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 19 Filed 05/26/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 26, 2017, I electronically filed the above document with the Clerk of 3 the Court using the CM/ECF system, which will send a notification of electronic filing to all 4 CM/ECF participants interested in this matter. 5 6 7/s/Joshua Konecky Joshua Konecky (SBN 182897) 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 10 Emeryville, California 94608 Telephone: (415) 421-7100 11 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 12 Attorneys for Plaintiff 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE BY PLAINTIFF OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL

Exhibit 1

Case 3: 17-cv-08050-SPL Document 19-1 Filed 05/26/17 Page 1 of 3 Exhibit 1 Case 3: 17-cv-08050-SPL Document 19-1 Filed 05/26/17 Page 2 of 3 N N T Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 Attorneys for Plaintiff O Uh O CON UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 TI ORSON JUDD, an individual, on behalf of) Case No. 3: 17-cv-08050-SPL himself and on behalf of all others similarly) situated, CONSENT TO JOIN COLLECTIVE ACTION UNDER THE FAIR LABOR 12 Plaintiff, STANDARDS ACT, 29 U. S. C. 216 (b) 13 VS. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. 1 7 18 20 23 24 25/26 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint Case 3: 17-cv-08050-SPL Document 19-1 Filed 05/26/17 Page 3 of 3 NOU A WNE I worked for KeyPoint Government Solutions, Inc. (" KeyPoint "), within the past three years. Specifically, I worked for KeyPoint from March 2015 through July 2015 and I filed an opt-in consent form in Richard Smith, et al. v. KeyPoint Government Solutions, Case No. 1: 15-cv-00865 (D. Colo.) on July 24, 2015, which was pending until final judgment was entered on January 20, 2017. I want to join this lawsuit alleging that KeyPoint has violated the Fair Labor Standards Act by misclassifying me and other Investigators as independent contractors rather than employees. I understand that this lawsuit seeks unpaid wages and/or overtime that may be owed to me, and that by joining this lawsuit 8 9 I will become a party plaintiff. By joining this lawsuit, I designate the Plaintiff named in the Complaint as my representative to the fullest extent possible under applicable laws, to make decisions on my behalf concerning the litigation, the manner and method of conducting and resolving the litigation, and all other matters pertaining to this lawsuit. I understand that I have the right to choose other counsel and I choose to be represented in this matter by the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP and other attorneys with 15 whom they associate. 16 17 A kaut DMoes, JC GNEDY 18 Name 20 Address N N City State Zip 5/22/2007 Date: 2/20/7 Signature: CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint--------

NOTICE re: by Plaintiff of Filing of Consent to Join Collective Action by Orson Judd.

Case 3:17-cv-08050-SPL Document 20 Filed 06/19/17 Page 1 of 3 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 ORSON JUDD, an individual, on behalf of) Case No. 3:17-cv-08050-SPL himself and on behalf of all others similarly) 11 situated,) NOTICE BY PLAINTIFFS OF FILING) CONSENT TO JOIN COLLECTIVE 12 Plaintiff,) ACTION) 13 vs.)) 14 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,) 15) Defendant.) 16)) 17 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION 28 Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 20 Filed 06/19/17 Page 2 of 3 1 Plaintiff Orson Judd, on behalf of himself and all others similarly situated, hereby files the 2 following Consent to Join Collective Action in the above cited action, submitted herewith as Exhibit 3 1, pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). 4 5 CONSENT TO JOIN COLLECTIVE ACTION: 6 4. Andrew Prior 7 8 Dated: June 19, 2017 Respectfully Submitted, 9 By:/s/Joshua Konecky 10 Joshua Konecky 11 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 12 2000 Powell Street, Suite 1400 Emeryville, California 94608 13 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 14 jkonecky@schneiderwallace.com 15 Attorney for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 20 Filed 06/19/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on June 19, 2017, I electronically filed the above document with the 3 Clerk of the Court using the CM/ECF system, which will send a notification of electronic filing to 4 all CM/ECF participants interested in this matter. 5 6 7/s/Joshua Konecky Joshua Konecky (SBN 182897) 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 10 Emeryville, California 94608 Telephone: (415) 421-7100 11 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 12 Attorney for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL 2

Exhibit 1 to Notice by Plaintiffs of Filing of Consent to Join Collective Action

Case 3: 17-cv-08050-SPL Document 20-1 Filed 06/19/17 Page 1 of 3 EXHIBIT 1 Case 3: 17-cv-08050-SPL Document 20-1 Filed 06/19/17 Page 2 of 3 w N E Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com Leslie H. Joyner, SBN 262705 ljoyner (@schneiderwallace.com SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 Attorneys for Plaintiff 191 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ORSON JUDD, an individual, on behalf of Case No. 3: 17-cy-08050-SPL himself and on behalf of all others similarly situated, CONSENT TO JOIN COLLECTIVE ACTION UNDER THE FAIR LABOR Plaintiff, STANDARDS ACT, 29 U. S. C. E 216 (b) 1 Vs. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant. 16 18 19 20 21 22 23/24 25 26 27 28/CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint Case 3: 17-cv-08050-SPL Document 20-1 Filed 06/19/17 Page 3 of 3 OU A WN NO I worked for KeyPoint Government Solutions, Inc. (" KeyPoint "), within the past three years. Specifically, I worked for KeyPoint from 2011 through 2016 and I filed an opt-in consent form in Richard Smith, et al. v. KeyPoint Government Solutions, Case No. 1: 15-cv-00865 (D. Colo.) on September 29, 2015, which was pending until final judgment was entered on January 20, 2017. I want to join this lawsuit alleging that KeyPoint has violated the Fair Labor Standards Act by misclassifying me and other Investigators as independent contractors rather than employees. I understand that this lawsuit seeks unpaid wages and/or overtime that may be owed to me, and that by joining this lawsuit I will become a party plaintiff. By joining this lawsuit, I designate the Plaintiff named in the Complaint as my representative 10 to the fullest extent possible under applicable laws, to make decisions on my behalf concerning the litigation, the manner and method of conducting and resolving the litigation, and all other matters pertaining to this lawsuit. I understand that I have the right to choose other counsel and I choose to be represented in this--....... 14 matter by the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP and other attorneys with 15 whom they associate. 16 11 Celul Anton. TAN 18 Name 20 Address 21 22 City, State Zip 25 pats. 613/2007 Date: 6/13/2017 senere. Questo Signature: 27 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint

NOTICE re: Filing Consent to Join Collective Action by Orson Judd.

Case 3:17-cv-08050-SPL Document 21 Filed 09/27/17 Page 1 of 3 1 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 2 Leslie H. Joyner, SBN 262705 ljoyner@schneiderwallace.com 3 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 4 2000 Powell Street, Suite 1400 Emeryville, CA 94608 5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 ORSON JUDD, an individual, on behalf of) Case No. 3:17-cv-08050-SPL himself and on behalf of all others similarly) 11 situated,) NOTICE BY PLAINTIFFS OF FILING) CONSENT TO JOIN COLLECTIVE 12 Plaintiff,) ACTION) 13 vs.)) 14 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation,) 15) Defendant.) 16)) 17 18 19 20 21 22 23 24 25 26 27 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION 28 Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 21 Filed 09/27/17 Page 2 of 3 1 Plaintiff Orson Judd, on behalf of himself and all others similarly situated, hereby files the 2 following Consent to Join Collective Action in the above cited action, submitted herewith as Exhibit 1, 3 pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). 4 5 CONSENT TO JOIN COLLECTIVE ACTION: 6 5. Kristin Hettler 7 8 Dated: September 27, 2017 Respectfully Submitted, 9 By:/s/Joshua Konecky 10 Joshua Konecky 11 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 12 2000 Powell Street, Suite 1400 Emeryville, California 94608 13 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 14 jkonecky@schneiderwallace.com 15 Attorney for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL Case 3:17-cv-08050-SPL Document 21 Filed 09/27/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on September 27, 2017, I electronically filed the above document with 3 the Clerk of the Court using the CM/ECF system, which will send a notification of electronic filing 4 to all CM/ECF participants interested in this matter. 5 6 7/s/Joshua Konecky Joshua Konecky (SBN 182897) 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 2000 Powell Street, Suite 1400 10 Emeryville, California 94608 Telephone: (415) 421-7100 11 Facsimile: (415) 421-7105 jkonecky@schneiderwallace.com 12 Attorney for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE BY PLAINTIFFS OF FILING CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint, Case No. 3:17-cv-08050-SPL 2

Exhibit 1 - Consent to Join of Kristin Hettler

Case 3: 17-cv-08050-SPL Document 21-1 Filed 09/27/17 Page 1 of 3 EXHIBIT 1 Case 3: 17-cv-08050-SPL Document 21-1 Filed 09/27/17 Page 2 of 3 4 Joshua Konecky, SBN 182897 jkonecky@schneiderwallace.com 4 Leslie H. Joyner, SBN 262705 I JoynercaschneiderWallace.com SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 I Emeryville, CA 94608 Telephone: (415) 421-7100 d Facsimile: (415) 421-7105 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 1 ORSON JUDD, an individual, on behalf of) Case No. 3: 17-cv-08050-SPL himself and on behalf of all others similarly) 11 situated.) CONSENT TO JOIN COLLECTIVE) ACTION UNDER THE FAIR LABOR 12 Plaintiff,) STANDARDS ACT, 29 U. S. C. 216 (b) 13 VS. 1 KEYPOINT GOVERNMENT SOLUTIONS,) INC., a Delaware corporation, 15 Defendant. 16 18 20 21 23 26 27 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint Case 3: 17-cv-08050-SPL Document 21-1 Filed 09/27/17 Page 3 of 3 I worked for KeyPoint Government Solutions, Inc. (KeyPoint "), within t the past three years. I want to join this lawsuit alleging that KeyPoint has violated the Fair Labor Standards Act by misclassifying me and other Investigators as independent contractors rather than employees. I understand that this lawsuit seeks unpaid wages and/or overtime that may be owed to me, and that by joining this lawsuit I will become a party plaintiff. By joining this lawsuit, I designate the Plaintiff named in the Complaint as my representative to the fullest extent possible under applicable laws, to make decisions on my behalf concerning the litigation, the manner and method of conducting and resolving the litigation, and all other matters pertaining to this lawsuit I understand that I have the right to choose other counsel and I choose to be represented in this matter by the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP and 11 other attorneys with whom they associate. 12 13! Krista Hette Name 15 9/17/17 16 Date UK dottie 18 Signature 20 21 Address 22 23 City, State Zip 24 Telephone 26 27 Email 28 CONSENT TO JOIN COLLECTIVE ACTION Judd v. Keypoint

NOTICE re: Notice of Pending Motion by Keypoint Government Solutions Incorporated.

Case 3:17-cv-08050-SPL Document 22 Filed 11/06/17 Page 1 of 3 1 Michael C. McKay, SBN 023354 Ryan G. Lockner; AZ Bar No. 031517 SCHNEIDER WALLACE COTTRELL rlockner@littler.com 2 KONECKY WOTKYNS LLP LITTLER MENDELSON, P.C. 3 8501 North Scottsdale Road, Suite 270 Camelback Esplanade Scottsdale, Arizona 85253 2425 East Camelback Road, Suite 900 4 Telephone: (480) 428-0142 Phoenix, AZ 85016 5 Facsimile: (866) 505-8036 Telephone: 602.474.3600 mmckay@schneiderwallace.com 6 Margaret Parnell Hogan; pro hac vice Joshua Konecky, CA SBN 182897 pro hac mphogan@littler.com 7 vice LITTLER MENDELSON, P.C. 8 Leslie H. Joyner, CA SBN 262705 pro hac 1900 Sixteenth Street, Suite 800 vice Denver, CO 80202-5835 9 SCHNEIDER WALLACE COTTRELL Telephone: 303.629.6200 10 KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Attorneys for Defendant 11 Emeryville, CA 94608 Telephone: (415) 421-7100 KeyPoint Government Solutions, Inc. 12 Facsimile: (415) 421-7105 13 jkonecky@schneiderwallace.com ljoyner@schneiderwallace.com 14 15 Attorneys for Plaintiff 16 IN THE UNITED STATES DISTRICT COURT 17 FOR THE DISTRICT OF ARIZONA 18 Orson Judd, on behalf of himself and all Case No. 3:17-cv-08050-SPL similarly situated individuals, 19 Plaintiff, NOTICE OF PENDING MOTION 20 21 v. 22 KeyPoint Government Solutions, Inc., a Delaware corporation, 23 24 Defendant. 25 26 Plaintiff Orson Judd ("Plaintiff") and KeyPoint Government Solutions, Inc. 27 ("Defendant") hereby submit this Pending Motions Notification Pursuant to L.R.Civ. 7.2(n). 28 Defendant filed its Motion to Transfer Venue, or in the Alternative, Dismiss for LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 22 Filed 11/06/17 Page 2 of 3 1 Failure to State a Claim on April 17, 2017. (Doc. 9). Plaintiff filed his Opposition to 2 Defendant’s Motion on May 1, 2017. (Doc. 16). Defendant filed a Reply in Support of its 3 Motion on May 8, 2017. (Doc. 17). 4 As it has been more than 180 days since this matter was taken under advisement by 5 the Court, the attorneys of record hereby submit this pending motions notification inquiring 6 as to the status of the matter. 7 8 DATED this 6th day of November, 2017. 9 10 11 s/Joshua Konecky (with permission) s/Ryan G. Lockner 12 Michael C. McKay Margaret Parnell Hogan Joshua Konecky Ryan G. Lockner 13 Leslie H. Joyner LITTLER MENDELSON, P.C. SCHNEIDER WALLACE 14 COTTRELL KONECKY WOTKYNS LLP Attorneys for Defendant 15 KeyPoint Government Solutions, Inc. Attorneys for Plaintiff and the Proposed 16 Collective 17 18 I hereby certify that I electronically 19 transmitted the attached document to the Clerk’s Office using the CM/ECF 20 System for filing and transmittal of a Notice of Electronic Filing to the 21 following CM/ECF registrants this 6th day of November, 2017: 22 Michael C. McKay 23 SCHNEIDER WALLACE COTTRELL KONECY WOTKYNS LLP 24 8501 North Scottsdale Road, Suite 270 Scottsdale, AZ 85253 25 mmckay@schneiderwallace.com 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-2-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600 Case 3:17-cv-08050-SPL Document 22 Filed 11/06/17 Page 3 of 3 1 Joshua Konecky Leslie H. Joyner 2 SCHNEIDER WALLACE COTTRELL KONECY WOTKYNS LLP 3 2000 Powell Street, Suite 1400 Emeryville, CA 94608 4 jkonecky@schneiderwallace.com ljoyner@schneiderwallace.com 5 Attorneys for Plaintiff 6 7 s/Carolyn Smith Carolyn Smith 8 Firmwide:151062592.1 063273.1053 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLE R MEND ELSO N, P.C. A PROF E S SION AL C ORP OR A TION-3-Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

ORDER denying [22] Motion for Status. Signed by Judge Steven P. Logan on 11/6/17.

Case 3:17-cv-08050-SPL Document 23 Filed 11/06/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-08050-PCT-SPL Orson Judd, 9)) Plaintiff,) ORDER 10) vs. 11)) KeyPoint Government Solutions, Inc.,) 12) 13 Defendant.)) 14) 15 Before the Court is Plaintiff’s Notice of Pending Motion (Doc. 22), inquiring as to 16 the status of his Motion to Transfer Venue, or in the Alternative, Dismiss for Failure to 17 State a Claim (Doc. 9). The matter is presently pending before the Court, and a ruling 18 shall issue in due course. No further action by the parties is required at this time. 19 Accordingly, 20 IT IS ORDERED that Plaintiff’s Motion for Status (Doc. 22) is granted. 21 Dated this 6th day of November, 2017. 22 23 Honorable Steven P. Logan United States District Judge 24 25 26 27 28

ORDER that Defendant's [9] Motion is granted in part as to transfer of venue, and denied in part without prejudice as to dismissal for failure to state a claim. IT IS FURTHER ORDERED that Clerk of Court transfer this matter to the United States District Court for the District of Colorado and terminate the case in the District of Arizona. Signed by Judge Steven P Logan on 2/8/2018.

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-08050-PHX-SPL Orson Judd, 9)) Plaintiff,) ORDER 10) vs. 11)) KeyPoint Government Solutions, Inc.,) 12) 13 Defendant.)) 14) 15 Before the Court is Defendant's Motion to Transfer Venue, or in the Alternative, 16 Dismiss for Failure to State a Claim and for a Stay of Litigation. (Doc. 9.) The Court has 17 already addressed Defendant's Motion to Stay. (Doc. 14.) Also pending before the Court 18 is Plaintiff's Motion for Conditional Certification. (Doc. 11.) The motions are ready for 19 resolution. 20 I. Background 21 Plaintiff Orson Judd brings this action against Defendant KeyPoint Government 22 Solutions, Inc. ("KeyPoint") for alleged violations of the Fair Labor Standards Act 23 ("FLSA"). Defendant KeyPoint is incorporated in Delaware, and maintains its corporate 24 headquarters and principal place of business in Loveland, Colorado. (Doc. 1 at 6; Doc. 9 25 at 3.) Defendant provides "security-clearance background investigations and screening 26 services to the United States Government." (Doc. 1 at 7.) Plaintiff Judd lives in Arizona 27 and worked for Defendant as an investigator from June of 2008 until September of 2014. 28 (Doc. 1 at 5.) Plaintiff alleges that Defendant misclassified numerous investigators as 1 independent contractors, rather than as employees, in violation of the FLSA. (Doc. 1 at 2- 2 3.) In spite of classification differences, Plaintiff argues that all investigators "perform the 3 same basic job: interviewing subjects, conducting public records searches, interviewing 4 sources, and writing investigation reports." (Doc. 1 at 7.) Plaintiff alleges his position as 5 an investigator regularly required him to work more than forty hours a week, but that he 6 was not eligible for overtime because of his classification as an independent contractor. 7 (Doc. 1 at 3.) 8 Plaintiff has brought suit against Defendant on behalf of himself, and all other 9 investigators working for Defendant nationwide,1 for failure to pay overtime wages in 10 violation of 29 U.S.C. § 207. (Doc. 1 at 16-18.) Defendant has moved to transfer this case 11 to the District of Colorado, or in alternative, to dismiss for failure to state a claim and to 12 stay this litigation until the Court's resolution of the Motion to Transfer Venue. (Doc. 9.) 13 While Defendant's motion was pending, Plaintiff filed a Motion for Conditional 14 Certification. (Doc. 11.) Defendant moved for an expedited stay of all litigation deadlines 15 until resolution of the Motion to Transfer Venue (Doc. 12), which the Court granted. 16 (Doc. 14.) 17 II. Standard of Review 18 "For the convenience of parties and witnesses, in the interest of justice, a district 19 court may transfer any civil action to any other district or division where it might have 20 been brought." 28 U.S.C. § 1404(a). District courts exercise broad discretion to 21 adjudicate motions to transfer on an individualized, case-by-case determination. Jones v. 22 GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (citing Stewart Org. v. Ricoh 23 Corp., 487 U.S. 22, 29 (1988)). In making such a determination, courts consider (1) 24 25 1 Because Plaintiff alleges that Defendant reclassified investigators working in California from independent contractors to employees, the Court infers that Plaintiff is 26 not suing on behalf of investigators working for Defendant in California. (Doc. 1 at 4.) Plaintiff's description of the proposed Collective also supports this inference. (Doc. 1 at 27 13.) 28 2 1 whether the case could have been brought in the forum which the moving party seeks to 2 have the case transferred to, and (2) whether the proposed forum is a more suitable venue 3 based on the convenience of the parties and the interests of justice. Hatch v. Reliance Ins. 4 Co., 758 F.2d 409, 414 (9th Cir. 1985). A plaintiff's choice of forum is given deference 5 and will not ordinarily be disturbed unless a defendant is capable of "making a strong 6 showing" of inconvenience so as to warrant transfer. Decker Coal Co. v. Commonwealth 7 Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Transfer of venue is inappropriate, 8 however, if "the result is merely to shift the inconvenience from one party to another." 9 Scovil v. Medtronic, Inc., 995 F.Supp.2d 1082, 1098-99 (D. Ariz. 2014) (citing Van 10 Dusen v. Barrack, 376 U.S. 612, 645-46 (1964)). 11 III. Discussion 12 A. Proper venue 13 28 U.S.C. § 1391 governs the venue of all civil cases in federal district courts and 14 reads, in part: A civil action may be brought in— 15 (1) a judicial district in which any defendant resides, if 16 all defendants are residents of the State in which the district is located; 17 (2) a judicial district in which a substantial part of the 18 events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is 19 situated; or 20 (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial 21 district in which any defendant is subject to the court's 22 personal jurisdiction with respect to such action. 23 28 U.S.C. § 1391(b). 24 Here, venue is proper in the District of Colorado because Defendant is a resident 25 of Colorado. A corporation is "deemed to reside, if a defendant, in any judicial district in 26 which such defendant is subject to the court's personal jurisdiction with respect to the 27 civil action in question." 28 U.S.C. § 1391(c)(2). Because Defendant's principal place of 28 business is in Loveland, Colorado, it follows that Defendant is subject to the District of 3 1 Colorado's jurisdiction2 and Plaintiff could have filed suit against Defendant there. 2 B. Convenience of the parties and witnesses and the interest of justice 3 Courts may consider a variety of factors when determining whether transfer is 4 warranted based on the convenience of the parties and in the interest of justice, including: (1) the location where the relevant agreements were 5 negotiated and executed, (2) the state that is most familiar 6 with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the 7 contacts relating to the plaintiff's cause of action in the 8 chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to 9 compel attendance of unwilling non-party witnesses, and (8) 10 the ease of access to sources of proof. 11 Jones, 211 F.3d at 498-99. Other factors that may be considered are "ensuring speedy 12 trials, trying related litigation together, and having a judge who is familiar with the 13 applicable law try the case." Conte v. Ginsey Indus., Inc., No. CV-12-0728-PHX-JAT, 14 2012 WL 3095019, at *2 (D. Ariz. 2012) (internal citations omitted). No single factor is 15 dispositive. R. Prasad Indus. v. Flat Irons Envtl. Sols. Corp., No. CV-12-08261-PCT- 16 JAT, 2017 WL 4409463, at *3 (D. Ariz. 2017) (citing Stewart, 487 U.S. at 31). 17 Defendant argues that the District of Colorado is a more appropriate venue to 18 litigate this case than the District of Arizona for several reasons. According to Defendant, 19 Plaintiff's consent to join the Smith litigation3 demonstrates Plaintiff's previous 20 willingness and capacity to litigate these exact claims in the District of Colorado. (Doc. 9 21 2 A corporation's "place of incorporation and principal place are paradigm bases for 22 general jurisdiction." Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014) (internal citations and punctuation omitted); see also Fed. R. Civ. P. 4(k)(1)(A). 23 3 Richard Smith worked as an independent contractor for Defendant and filed suit 24 against Defendant, individually and on behalf of all others similarly situated, for unpaid wages under the FLSA in 2015. Smith v. KeyPoint Gov't Sols., Inc., No. 15-CV-00865- 25 REB-KLM, 2016 WL 7324606, at *1-2 (D. Colo. 2016). Judge Robert E. Blackburn granted summary judgment in favor of Defendant upon finding Smith's claims to be 26 barred by the FLSA's statute of limitations. Id. at 4. The FLSA claims of those who "opted-in" to the collective action—including Plaintiff Judd—were dismissed without 27 prejudice. Id. 28 4 1 at 7.) Defendant further maintains that Colorado is more convenient for Defendant's 2 witnesses, putative class members, and non-party witnesses. (Doc. 9 at 7-11.) Defendant 3 also points to the ease with which evidence stored at Defendant's headquarters in 4 Loveland could be accessed in the District of Colorado. (Doc. 9 at 11-12.) Defendant 5 asserts that Plaintiff's claims against Defendant will, by virtue of Defendant's work on 6 behalf of the United States, implicate unique security concerns that the District of 7 Colorado is familiar with because of the Smith litigation. (Doc. 9 at 12-13.) Finally, 8 Defendant emphasizes the differences in the courts' dockets, and argues that the District 9 of Colorado's caseload will allow for faster resolution of Plaintiff's claims than if the 10 case remains in the District of Arizona. (Doc. 9 at 13-14.) 11 Plaintiff opposes Defendant's Motion to Transfer. (Doc. 16.) Focusing heavily on 12 the deference Plaintiff's choice of forum should be afforded, Plaintiff maintains that 13 Defendant's arguments regarding his forum choice are mistaken. (Doc. 16 at 7-10.) 14 Moreover, Plaintiff directs the Court to the parties' contacts with Arizona (Doc. 16 at 10- 15 11), as well as Defendant's failure to meet its burden of proof regarding the convenience 16 of the District of Colorado for party and non-party witnesses. (Doc. 16 at 12-15.) Finally, 17 Plaintiff characterizes the differences between the districts' dockets as insignificant. 18 (Doc. 16 at 17.) 19 Interestingly, both parties accuse the other of forum shopping. (Doc. 9 at 2; Doc. 20 16 at 4.) That being said, the Court finds that there are several factors that support a 21 finding that transfer of this case to the District of Colorado is warranted. First, the weight 22 given to Plaintiff's choice of forum is afforded less deference than customary because 23 Plaintiff seeks to represent a class. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987); 24 Wenokur v. AXA Equitable Life Ins. Co., No. CV-17-00165-PHX-DLR, 2017 WL 25 4357916, at *3 (D. Ariz. 2017). Further, Plaintiff voluntarily opted-in to the Smith 26 litigation prior to its dismissal, which lends credence to the idea that Plaintiff is capable 27 and willing to litigate these claims in the District of Colorado. See, e.g., Reiffin v. 28 Microsoft Corp., 104 F.Supp.2d 48, 52 (D. D.C. 2000) (finding that transfer of venue was 5 1 supported by plaintiff's previous decision to litigate "clearly related" action in transferee 2 forum). 3 "The convenience of witnesses is said to be the most important factor in passing 4 on a transfer motion." F.T.C v. Wyndham Worldwide Corp., No. CV-12-1365-PHX-PGR, 5 2013 WL 1222491, at *3 (D. Ariz. 2013) (internal citation omitted). In evaluating this 6 factor, courts look not just at the quantity of witnesses in each potential venue, but to the 7 nature and quality of witness testimony. Id. at *4. "To demonstrate an inconvenience to 8 witnesses, the moving party must identify relevant witnesses, state their location and 9 describe their testimony and its relevance." Haswell v. Nat'l R.R. Passenger Corp., No. 10 CV-05-723-TUC-DCB(JM), 2006 WL 839067, at *2 (D. Ariz. 2006). 11 Here, Defendant has identified two witnesses—Jennifer Boaz and Julie 12 Hammond—each of whom Defendant expects will have prominent roles in this litigation. 13 (Doc. 9 at 8.) Jennifer Boaz serves as the "National Director of Independent Contracts" 14 for Defendant. (Doc. 9 at 8.) Boaz lives in North Carolina, but regularly travels to 15 Loveland, Colorado. (Doc. 9 at 8.) According to Defendant, Boaz will testify to the 16 following: "the Company's engagement with independent contractor Investigators; the 17 purpose for those contracts; the requirements imposed on KeyPoint by its clients; how 18 independent contractors receive work; and how the Company pays independent 19 contractor Investigators." (Doc. 9 at 8.) Julie Hammond who is employed by Defendant 20 as a "Contractor Liaison" and worked directly with Plaintiff is expected to testify to 21 "Judd's contractual relationship with the Company, including the investigations he 22 agreed to perform and the compensation he received." (Doc. 9 at 8.) Like many of 23 Defendant's Contractor Liaisons who may be called to testify, Hammond resides in 24 Colorado. (Doc. 9 at 9, n.1.) The Court agrees with Defendant that the potential 25 testimony of Arizona witnesses is not as significant as that of the Colorado witnesses. 26 Accordingly, the convenience of the parties is weighted towards transfer. 27 Finally, the Court is persuaded by Defendant's argument that the District of 28 Arizona's docket, as compared to that of the District of Colorado, favors transfer. (Doc. 9 6 1 at 13-14.) Bearing in mind the interest of ensuring a speedy trial, docket conditions are a 2 factor that courts may consider in deciding a motion to transfer venue. See Conte, 2012 3 WL 3095019, at *2. As of September 2017, judges in the District of Arizona had 636 4 pending cases, whereas judges in the District of Colorado had 451 pending cases; the 5 median time between the filing of a civil action to trial was 32.6 months in the District of 6 Arizona and 23.9 months in the District of Colorado.4 Because it is likely that Plaintiff's 7 claims will be resolved faster in the District of Colorado, this factor also weighs in favor 8 of transfer. 9 IV. Conclusion 10 The Court finds that in the interest of justice, transferring the present case to the 11 District of Colorado is appropriate. Because the Court's Order to stay the litigation during 12 pendency of Defendant's Motion to Transfer precluded Defendant from filing a response 13 to Plaintiff's Motion for Conditional Certification, it will be for the District of Colorado 14 to determine how it wishes to address Plaintiff's Motion for Conditional Certification. 15 (Doc. 11.) Accordingly, 16 IT IS ORDERED that Defendant's Motion (Doc. 9) is granted in part as to 17 transfer of venue, and denied in part without prejudice as to dismissal for failure to 18 state a claim. 19 IT IS FURTHER ORDERED that Clerk of Court transfer this matter to the 20 United States District Court for the District of Colorado and terminate the case in the 21 District of Arizona. 22 Dated this 8th day of February, 2018. 23 Honorable Steven P. Logan 24 United States District Judge 25 26 4 Federal district court docket statistics are calculated every six months. U.S. 27 COURTS, U.S. District Courts Combined Civil and Criminal Federal Court Management Statistics (September 30, 2017), http://www.uscourts.gov/statistics/table/na/federal-court- 28 management-statistics/2017/09/30-1. 7

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Description
1
03/10/2017
COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-14004634 filed by Orson Judd. (submitted by Michael McKay)
1
Exhibit A
2
Exhibit B
3
Civil Cover Sheet)(REW
3 Attachments
2
03/10/2017
SUMMONS Submitted by Orson Judd. (submitted by Michael McKay)
3
03/10/2017
Filing fee paid, receipt number 0970-14004634. This case has been assigned to the Honorable Steven P Logan. All future pleadings or documents should bear the correct case number: CV 17-8050-PCT-SPL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
4
03/13/2017
NOTICE TO FILER OF DEFICIENCY re: Pursuant to the Electronic Case Filing Administrative Policies and Procedures Manual Section II(B), attorneys are required to submit the automated Civil Cover Sheet when filing a new case. The form submitted was the old form. In the future, please use the new form. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
5
03/13/2017
Summons Issued as to Keypoint Government Solutions Incorporated. (REW). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document.
6
03/13/2017
PRELIMINARY ORDER that motions pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect can be cured by filing an amended pleading. The parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED that Plaintiff serve a copy of this Order upon Defendant and file a notice of service. See attached Order for complete details. Signed by Judge Steven P. Logan on 3/13/17.
03/31/2017
Remark: Pro hac vice application approved for Joshua G Konecky on behalf of plaintiff Orson Judd 03/31/2017. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
04/07/2017
Remark: Pro hac vice motion granted for Leslie H Joyner on behalf of plaintiff Orson Judd. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
7
04/11/2017
SERVICE EXECUTED filed by Orson Judd: Rule 4 Waiver of Service of Summons. Waiver sent on April 6, 2017 to Margaret Parnell Hogan.
8
04/14/2017
NOTICE re: Filing Consent to Join Collective Action by Orson Judd.
1
Exhibit 1
1 Attachment
9
04/17/2017
MOTION to Change Venue/Transfer Case to USDC Colorado or in the Alternative, Dismiss for Failure to State a Claim and for a Stay of Litigation by Keypoint Government Solutions Incorporated.
1
Exhibit A
1 Attachment
10
04/17/2017
Corporate Disclosure Statement by Keypoint Government Solutions Incorporated identifying Corporate Parent KGS Holding Corp, Corporate Parent KGS Holding LLC for Keypoint Government Solutions Incorporated.
04/17/2017
Remark: Pro hac vice motion granted for Margaret Parnell Hogan on behalf of defendant KeyPoint Governmnet Solutions Incorporated. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
11
04/18/2017
MOTION to Certify Class Plaintiff's Motion for Conditional Certificate and to Facilitate Notice of Collective Action Pursuant to Section 216(b) of the Fair Labor Standards Act by Orson Judd.
1
Affidavit Declaration of Joshua G. Konecky in Support of Plaintiff's Motion for Conditional Certificate and to Facilitate Notice of Collective Action Pursuant to Section 216(b) of the Fair Labor Standards Act
2
Exhibit A through B to Declaration of Joshua G. Konecky
3
Exhibit C through G to Declaration of Joshua G. Konecky
4
Exhibit H through I to Declaration of Joshua G. Konecky
5
Exhibit J Part 1 to Declaration of Joshua G. Konecky
6
Exhibit J Part 2 to Declaration of Joshua G. Konecky
7
Exhibit J Part 3 to Declaration of Joshua G. Konecky
8
Exhibit J Part 4 to Declaration of Joshua G. Konecky
9
Exhibit J Part 5 to Declaration of Joshua G. Konecky
10
Exhibit K through N to Declaration of Joshua G. Konecky
11
Exhibit O through Q to Declaration of Joshua G. Konecky
12
Exhibit R to Declaration of Joshua G. Konecky
13
Exhibit S to Declaration of Joshua G. Konecky
14
Exhibit T to Declaration of Joshua G. Konecky
15
Exhibit U to Declaration of Joshua G. Konecky
16
Exhibit V to Declaration of Joshua G. Konecky
17
Exhibit W Part 1 to Declaration of Joshua G. Konecky
18
Exhibit W Part 2 to Declaration of Joshua G. Konecky
19
Exhibit X to Declaration of Joshua G. Konecky
20
Exhibit Y to Declaration of Joshua G. Konecky
21
Text of Proposed Order Proposed Order Granting Plaintiff's Motion for Conditional Certification and to Facilitate Notice of Collective Action
21 Attachments
12
04/25/2017
MOTION to Stay Defendant's Expedited Motion to Stay Pending Resolution of Defendant's Motion to Transfer Or in the Alternative Motion to Extending Briefing Schedule (First Request) by Keypoint Government Solutions Incorporated.
1
Exhibit Exhibit 1
2
Text of Proposed Order Proposed Order
2 Attachments
13
04/26/2017
RESPONSE to Motion re: 12 MOTION to Stay Defendant's Expedited Motion to Stay Pending Resolution of Defendant's Motion to Transfer Or in the Alternative Motion to Extending Briefing Schedule (First Request) Plaintiff Orson Judd's Notice of Non Opposition filed by Orson Judd.
14
04/28/2017
ORDER That Defendant KeyPoint Government Solutions, Inc.'s Expedited Motion toStay 12 is granted, including briefing on the Motion for Conditional Certification 11. Plaintiff shall file a response to the Motion to Transfer 9 no later than May 1, 2017. Defendant may file a reply no later than May 8, 2017. Signed by Judge Steven P. Logan on 4/27/17.
15
05/01/2017
NOTICE re: Filing Consent to Join Collective Action by Orson Judd.
1
Exhibit 1
1 Attachment
16
05/01/2017
RESPONSE in Opposition re: 9 MOTION to Change Venue/Transfer Case to USDC Colorado or in the Alternative, Dismiss for Failure to State a Claim and for a Stay of Litigation filed by Orson Judd.
1
Affidavit DECLARATION OF JOSHUA G. KONECKY IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO TRANSFER VENUE OR IN THE ALTERNATIVE, DISMISS FOR FAILURE TO STATE A CLAIM AND FOR A STAY OF LITIGATION
2
Exhibit A to Declaration of Joshua G. Konecky
3
Exhibit B to Declaration of Joshua G. Konecky
4
Exhibit C to Declaration of Joshua G. Konecky
5
Exhibit D to Declaration of Joshua G. Konecky
6
Exhibit E to Declaration of Joshua G. Konecky
7
Exhibit F to Declaration of Joshua G. Konecky
8
Exhibit G to Declaration of Joshua G. Konecky
9
Exhibit H to Declaration of Joshua G. Konecky
10
Exhibit I to Declaration of Joshua G. Konecky
11
Exhibit J to Declaration of Joshua G. Konecky
12
Exhibit K to Declaration of Joshua G. Konecky
13
Exhibit L to Declaration of Joshua G. Konecky
14
Exhibit M to Declaration of Joshua G. Konecky
15
Exhibit N to Declaration of Joshua G. Konecky
15 Attachments
17
05/08/2017
REPLY to Response to Motion re: 9 MOTION to Change Venue/Transfer Case to USDC Colorado or in the Alternative, Dismiss for Failure to State a Claim and for a Stay of Litigation filed by Keypoint Government Solutions Incorporated.
18
05/08/2017
DECLARATION of Margaret Parnell Hogan re: 17 Reply to Response to Motion to Transfer Venue, or in the Alternative, Dismiss for Failure to State a Claim by Defendant Keypoint Government Solutions Incorporated.
1
Exhibit A- Jennifer Boaz Depo Excerpts
2
Exhibit B-Orson Judd Depo Excerpts
2 Attachments
19
05/26/2017
NOTICE re: Filing Consent to Join Collective Action by Orson Judd.
1
Exhibit 1
1 Attachment
20
06/19/2017
NOTICE re: by Plaintiff of Filing of Consent to Join Collective Action by Orson Judd.
1
Exhibit 1 to Notice by Plaintiffs of Filing of Consent to Join Collective Action
1 Attachment
21
09/27/2017
NOTICE re: Filing Consent to Join Collective Action by Orson Judd.
1
Exhibit 1 - Consent to Join of Kristin Hettler
1 Attachment
22
11/06/2017
NOTICE re: Notice of Pending Motion by Keypoint Government Solutions Incorporated.
23
11/06/2017
ORDER denying [22] Motion for Status. Signed by Judge Steven P. Logan on 11/6/17.
24
02/09/2018
ORDER that Defendant's [9] Motion is granted in part as to transfer of venue, and denied in part without prejudice as to dismissal for failure to state a claim. IT IS FURTHER ORDERED that Clerk of Court transfer this matter to the United States District Court for the District of Colorado and terminate the case in the District of Arizona. Signed by Judge Steven P Logan on 2/8/2018.
02/09/2018
ACKNOWLEDGMENT of Receipt of Electronic Case Transfer from the District of Colorado. New Case Number: 1:18-cv-327. (Text entry; no document attached.)
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