FILED: NEW YORK COUNTY CLERK 08/08/2016 03:26 PM INDEX NO. 156382/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/08/2016 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY NAACP NEW YORK STATE CONFERENCE METROPOLITAN COUNCIL OF BRANCHES, v. Plaintiff, X PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, KONINKLIJKE PHILIPS N.V., NTT DATA, INC., RECALL HOLDINGS LIMITED, RECALL TOTAL INFORMATION MANAGEMENT, INC., ADVANCE TECH PEST CONTROL, DOES 1-100, AND Defendants, individually and on behalf of a Defendant Class, Index No. 156382/2015 DEFENDANT NTT DATA, INC. S ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO PLAINTIFF S FIRST AMENDED CLASS ACTION COMPLAINT MONSTER WORLDWIDE, INC., ZIPRECRUITER, INC., INDEED, INC., Joined Defendants. X Defendant NTT DATA, Inc. ( Defendant or NTT DATA ), by and through its undersigned attorneys Jackson Lewis P.C., respectfully submits the following Answer and Affirmative and Other Defenses to Plaintiff s First Amended Class Action Complaint For Declaratory And Injunctive Relief filed on February 16, 2016 ( Complaint ) in the abovecaptioned action. AS TO NATURE OF THE ACTION 1. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 1 of 1 of 16
2. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 2 of 3. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 3 of the Complaint, except admits that NTT DATA has in the past created and caused to be posted job openings through services provided by Monster Worldwide, Inc. and Indeed, Inc. 4. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 4 of the Complaint, except denies that NTT DATA created, posted, and disseminated job postings that explicitly bar applicants with felony convictions for positions in New York City within the applicable limitations period. 5. No response is required to the allegations set forth in Paragraph 5 of the Complaint to the extent they contain conclusions of law. To the extent a response is required, Defendant denies the allegations set forth in Paragraph 5 of the Complaint and respectfully refers to the New York City Administrative Code 8-107 for its contents. 6. Defendant denies each and every allegation set forth in Paragraph 6 of 7. Defendant denies each and every allegation set forth in Paragraph 7 of the Complaint, except admits that Plaintiff purports to bring this suit on behalf of its members as well as the African American residents of the City of New York. 8. Defendant denies each and every allegation set forth in Paragraph 8 of the Complaint, except admits that Plaintiff purports to bring this action under CPLR 901 and avers that Plaintiff has moved this Court for Preliminary Approval of Class Action Settlement 2 2 of 16
and Conditional Certification of a Settlement Class (Dkt. 81-82), which purports to exclude NTT DATA and Philips Electronics North America Corporation. 9. Defendant denies each and every allegation set forth in Paragraph 9 of the Complaint, except admits that Plaintiff purports to join Monster, ZipRecruiter, and Indeed as parties pursuant to CPLR 1001 because they are necessary if complete relief is to be accorded and will be affected by a judgment in this action. AS TO STATUTORY BACKGROUND 10. No response is required to the allegations set forth in Paragraph 10 of required, Defendant denies the allegations set forth in Paragraph 10 of the Complaint and respectfully refers to the New York Correction Law for its contents. 11. No response is required to the allegations set forth in Paragraph 11 of required, Defendant respectfully refers to the New York City Human Rights Law for its contents. 12. No response is required to the allegations set forth in Paragraph 12 of required, Defendant denies the allegations set forth in Paragraph 12. 13. No response is required to the allegations set forth in Paragraph 13 of required, Defendant denies the allegations set forth in Paragraph 13. 14. No response is required to the allegations set forth in Paragraph 14 of required, Defendant denies the allegations set forth in Paragraph 14 and respectfully refers to the New York City Human Rights Law ( NYCHRL ) for its contents. 3 3 of 16
15. No response is required to the allegations set forth in Paragraph 15 of required, Defendant denies the allegations set forth in Paragraph 15 of 16. No response is required to the allegations set forth in Paragraph 16 of the Complaint to the extent they contain conclusions of law. To the extent a response is required, Defendant denies the allegations set forth in Paragraph 16 of AS TO PARTIES Plaintiff 17. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 17 of 18. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 18 of 19. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 19 of 20. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 20 of 21. No response is required to the allegations set forth in Paragraph 21 of required, Defendant denies the allegations set forth in Paragraph 21 of Defendants Philips 22. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 22 of 4 4 of 16
23. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 23 of 24. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 24 of 25. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 25 of 26. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 26 of the Complaint, except states that to the extent the allegations contain conclusions of law, no response is required thereto. 27. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 27 of the Complaint, except states that to the extent the allegations contain conclusions of law, no response is required thereto. 28. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 28 of the Complaint, except states that to the extent the allegations contain conclusions of law, no response is required thereto. NTT Data, Inc. 29. Defendant denies the allegations set forth in Paragraph 29 of the Complaint, except admits that NTT DATA is authorized to do business in New York and that an agent of NTT DATA for service of process is National Registered Agents, Inc. 30. Defendant denies each and every allegation set forth in Paragraph 30 of 31. No response is required to the allegations set forth in Paragraph 31 of required, Defendant denies the allegations set forth in Paragraph 31 of 5 5 of 16
32. No response is required to the allegations set forth in Paragraph 32 of required, Defendant denies the allegations set forth in Paragraph 32 of 33. No response is required to the allegations set forth in Paragraph 33 of required, Defendant denies the allegations set forth in Paragraph 33 of Recall 34. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 34 of 35. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 35 of 36. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 36 of 37. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 37 of 38. No response is required to the allegations set forth in Paragraph 38 of required, Defendant denies the allegations set forth in Paragraph 38 of 39. No response is required to the allegations set forth in Paragraph 39 of required, Defendant denies the allegations set forth in Paragraph 39 of 40. No response is required to the allegations set forth in Paragraph 40 of required, Defendant denies the allegations set forth in Paragraph 40 of 6 6 of 16
Advance Tech Pest Control, Corp. 41. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 41 of 42. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 42 of 43. No response is required to the allegations set forth in Paragraph 43 of required, Defendant denies the allegations set forth in Paragraph 43 of 44. No response is required to the allegations set forth in Paragraph 44 of required, Defendant denies the allegations set forth in Paragraph 44 of 45. No response is required to the allegations set forth in Paragraph 45 of required, Defendant denies the allegations set forth in Paragraph 45 of Does 1-100 46. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 46 of Joined Defendants Monster 47. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 47 of 48. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 48 of the Complaint, except admits upon information and belief that Monster Worldwide, Inc. provides on-line job posting services. 7 7 of 16
49. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 49 of 50. No response is required to the allegations set forth in Paragraph 50 of required, Defendant denies the allegations set forth in Paragraph 50 of Zip Recruiter 51. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 51 of 52. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 52 of 53. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 53 of 54. No response is required to the allegations set forth in Paragraph 54 of required, Defendant denies the allegations set forth in Paragraph 54 of Indeed 55. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 55 of 56. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 56 of the Complaint, except admits upon information and belief that Indeed, Inc. provides on-line job posting services. 57. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 57 of 8 8 of 16
58. No response is required to the allegations set forth in Paragraph 58 of required, Defendant denies the allegations set forth in Paragraph 58 of AS TO JURISDICTION AND VENUE 59. Defendant denies each and every allegation set forth in Paragraph 59 of the Complaint, except admits that Plaintiff purports this Court has jurisdiction over the claim alleged in this First Amended Complaint for Declaratory and Injunctive Relief pursuant to New York Civil Practice Law and Rule 301. 60. Defendant denies each and every allegation set forth in Paragraph 60 of the Complaint, except admits that Plaintiff purports this Court has personal jurisdiction over Defendants under New York Civil Practice Law and Rule 302. 61. Defendant denies each and every allegation set forth in Paragraph 61 of 62. Defendant denies each and every allegation set forth in Paragraph 62 of the Complaint, except admits that Plaintiff purports venue is proper in this County pursuant to New York Civil Practice Law and Rule 503. 63. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 63 of AS TO CLASS FACTUAL ALLEGATION 64. Defendant denies each and every allegation set forth in Paragraph 64 of the Complaint, except NTT DATA admits that a job opening and description for a position with NTT DATA as Network/Systems Administrator in the form attached to the Complaint as Exhibit B was posted on Monster Worldwide, Inc. s website in or about May 2015, that it was subsequently removed, and that it has not been re-posted at any time. 9 9 of 16
65. Defendant denies each and every allegation set forth in Paragraph 65 of 66. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 66 of the Complaint, except avers that NTT DATA has utilized the services of Monster Worldwide, Inc. 67. Defendant denies each and every allegation set forth in Paragraph 67 of 68. Defendant denies each and every allegation set forth in Paragraph 68 of 69. Defendant denies each and every allegation set forth in Paragraph 69 of AS TO CLASS ACTION ALLEGATIONS 70. Defendant denies each and every allegation set forth in Paragraph 70 of the Complaint, except admits that Plaintiff purports to bring this claim as a class action under CPLR 901 and avers that Plaintiff has moved this Court for Preliminary Approval of Class Action Settlement and Conditional Certification of a Settlement Class (Dkt. 81-82), which purports to exclude NTT DATA and Philips Electronics North America Corporation. 71. Defendant admits that Plaintiff purports to exclude the parties and/or entities identified in Paragraph 71 of the Complaint from the putative defendant class, except denies that any class is appropriate. 72. Defendant denies each and every allegation set forth in Paragraph 72 of 73. Defendant denies each and every allegation set forth in Paragraph 73 of 10 10 of 16
74. Defendant denies each and every allegation set forth in Paragraph 74 of 75. Defendant denies each and every allegation set forth in Paragraph 75 of the Complaint, including each of its sub-paragraphs a. through c. 76. Defendant denies each and every allegation set forth in Paragraph 76 of 77. Defendant denies each and every allegation set forth in Paragraph 77 of 78. Defendant denies each and every allegation set forth in Paragraph 78 of 79. Defendant denies each and every allegation set forth in Paragraph 79 of AS TO INJURIES TO THE NAACP S MEMBERS 80. Defendant denies each and every allegation set forth in Paragraph 80 of 81. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 81 of 82. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 82 of 83. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 83 of 84. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 84 of 11 11 of 16
85. Defendant denies each and every allegation set forth in Paragraph 85 of 86. Defendant denies each and every allegation set forth in Paragraph 86 of 87. Defendant denies each and every allegation set forth in Paragraph 87 of 88. Defendant denies each and every allegation set forth in Paragraph 88 of 89. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 89 of the Complaint, except avers that Plaintiff purports to bring this lawsuit to protect the interests of unidentified individuals, but denies that Plaintiff has standing to pursue any claim in this lawsuit. 90. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 90 of 91. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 91 of 92. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 92 of the Complaint, except avers that NTT DATA does not maintain a blanket ban on employment for job applicants with criminal records. 93. No response is required to the allegations set forth in Paragraph 93 of required, Defendant denies each and every allegation set forth in Paragraph 93 of the Complaint and further denies that Plaintiff has standing to pursue any claim in this lawsuit. 12 12 of 16
94. Defendant denies each and every allegation set forth in Paragraph 94 of AS TO CAUSE OF ACTION Discriminatory Denial of Employment because of Criminal Convictions (New York City Human Rights Law, N.Y.C. Admin. Code 8-101 et seq.) 95. Defendant repeats and realleges its responses to each and every allegation set forth in Paragraphs 1 through 94, inclusive, as though fully set forth herein in response to the allegations in Paragraph 95 of 96. No response is required to the allegations set forth in Paragraph 96 of required, Defendant denies the allegations set forth in Paragraph 96 of the Complaint and respectfully refers to the NYCHRL for its contents. 97. No response is required to the allegations set forth in Paragraph 97 of required, Defendant respectfully refers to Article 23-A of the Correction Law for its contents. 98. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 98 of the Complaint, except NTT DATA denies that it violated the NYCHRL. 99. Defendant denies each and every allegation set forth in Paragraph 99 of 13 13 of 16
PRAYER FOR RELIEF 100. NTT DATA denies that the NAACP is entitled to any relief set forth in the WHEREFORE clause of the Complaint, inclusive of sub-paragraphs (a) through (f). ADDITIONAL AVERMENTS 101. NTT DATA denies all claims and allegations not unequivocally admitted herein. AFFIRMATIVE AND OTHER DEFENSES 102. As further answer to the Complaint, NTT DATA asserts the following affirmative and other defenses, without assuming any burden of production or proof that it would not otherwise have. AS AND FOR DEFENDANT S FIRST AFFIRMATIVE DEFENSE 103. The Complaint fails, in whole or in part, to state a claim on which relief can be granted. AS AND FOR DEFENDANT S SECOND AFFIRMATIVE DEFENSE 104. The claims asserted in the Complaint are barred, in whole or in part, by the applicable statute of limitations. AS AND FOR DEFENDANT S THIRD AFFIRMATIVE DEFENSE 105. Plaintiff lacks standing to pursue any of the claims set forth in the Complaint. AS AND FOR DEFENDANT S FOURTH AFFIRMATIVE DEFENSE 106. Plaintiff cannot meet its burden to demonstrate that the prerequisites to a class action under CPLR 901 are met. 14 14 of 16
AS AND FOR DEFENDANT S FIFTH AFFIRMATIVE DEFENSE 107. Plaintiff s claims are barred in whole or in part, on the grounds that Plaintiff has suffered no damage by reason of the acts or omissions alleged in the Complaint or otherwise. AS AND FOR DEFENDANT S SIXTH AFFIRMATIVE DEFENSE 108. Plaintiff s claims are barred, in whole or in part, because Plaintiff did not suffer any damages attributable to any allegedly wrongful conduct by NTT DATA. AS AND FOR DEFENDANT S SEVENTH AFFIRMATIVE DEFENSE 109. Plaintiff s claims and alleged damages are barred, in whole or in part, because Defendant acted with a good-faith and reasonable belief that they had complied with all applicable laws, rules and regulations. AS AND FOR DEFENDANT S EIGHTH AFFIRMATIVE DEFENSE 110. Plaintiff s claims are barred, in whole or in part, by equitable principles, including but not limited to, estoppel and laches. AS AND FOR DEFENDANT S NINTH AFFIRMATIVE DEFENSE 111. Plaintiff s claim against Defendant based on the job posting appended as Exhibit B to Plaintiff s complaint must fail because the posting related to a position for placement with a law enforcement agency per N.Y.C. Admin. Code 8-107(10)(b), and (11- a)(f)(1). AS AND FOR DEFENDANT S TENTH AFFIRMATIVE DEFENSE 112. Plaintiff s claim against Defendant is moot. 15 15 of 16
AS AND FOR DEFENDANT S ELEVENTH AFFIRMATIVE DEFENSE 113. Defendant reserves the right to plead additional affirmative defenses which may be ascertained during the course of this action or otherwise. WHEREFORE, Defendant prays that the Court: (a) (b) (c) (d) (e) Dismiss Plaintiff s Complaint in its entirety with prejudice; Deny each and every demand and prayer for relief contained therein; Award Defendant its costs and attorneys fees incurred in defending this action; Enter judgment in favor of Defendant, and against Plaintiff; and Grant such other and further relief to Defendant as the Court deems just and proper. Respectfully submitted, JACKSON LEWIS P.C. 44 South Broadway, 14th Floor White Plains, New York 10601 Tel.: (914) 872-8060 Fax: (914) 946-1216 Dated: August 8, 2016 White Plains, New York By: /s/ Jonathan M. Kozak Jonathan M. Kozak Sarah B. Herlihy Maria Biaggi Attorneys for Defendant NTT DATA, Inc. 4832-7462-4821, v. 5 16 16 of 16